Democratic Progressive Party v Malawi Electoral Commission (Civil Cause 127 of 2024) [2024] MWHC 51 (9 October 2024)

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4A SN REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI SITTING AT BLANTYRE PRINCIPAL REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 127 OF 2024 BETWEEN DEMOCRATIC PROGRESSIVE PARTY .sscsseessseeoneessseesnerneeseen CLAIMANT -AND- MALAWI ELECTORAL COMMISSION. ..sssssineeesseeneeusnmeresseees DEFENDANT

Coram

HH ELIJAH BLACKBOARD DAZILIKWIZA PACHALO DANIELS Mr. Tambulasi, Counsel for the Claimant, Mr. F, Mathanda, Court Official,

Notice of Rejection

DANIELS AR. “..the court has the power to protect its own procedure against abuse, and control the conduct of the advocates who exercise the privilege of audience.”! (Emphasis supplied) “Jt cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It isa jurisdiction, which ‘ought to be sparingly exercised and only in exceptional cases...”? (Emphasis supplied) * Webb D. Hopeless Cases: In Defence of Compensating Litigants at the Advocate’s Expense. (1999) 30

(1) Victoria University of Wellington Law Review

295. Par 299 2 Yaya Towers Limited vs, Trade Bank Limited (In Liquidation) Civil Appeal No. 35 of 2000

1. Is the claimant being denied her constitutional right to vote? Can she even possess that right? Has she been denied any civil rights? Did she go to register as a voter somewhere where a zealous elections officer (credit be given to their work) or whosoever it may be, returned her on the premise that, she did not possess a national identity card? We do not have immediate answers. We do not promise that we will. In fact, the claimant herself has not supplied us with answers in the originating process. Pethaps, she has capacity to possess a national identity card or to be forced into having one? There i, a sea of questions that are coming to our faculties with force, but, we decline to announce ‘ourselves, for ours is apolitical role to only deal with legal issues, regard being had to prescriptions of law. We accordingly warn ourselves not to divert from this our premise. Perhaps, we are asking the wrong questions? We do not know, We wish we did, But we do not, It still torments our mind to ask, has she shown any reasonable cause of action? Or, is it even for us, to determine that? The facts, will soon betray her on many ‘a question we have. But, why then is the claimant coming in her own name over the issues of voter registration as though she has capacity to have her voting rights violated directly? Ours is simply a wonder We are unsure as to what is the motivation of the claimant in coming in her own name. ‘We must in limine determine the fate of the originating process for want of capacity ‘We think her coming is an outright abuse of court process. We will later on, call to duty Order 5 rule 10 of the Courts (High Court) (Civil Procedure) Rules, 2017. For now, we will calmly relax the spirit of the rules. Unless otherwise stated, reference to niles, should mean, the Courts (High Court) (Civil Procedure) Rules, 2017,

2. Be that as it may, maybe we should allow ourselves to ask the last question? However, \we must make no promise on that, rest we betray our inquisitive finger later. But, who anointed her to be a constitutional guardian, walking around our streets and villages, volunteering hope to those she thinks will be denied the right to vote by the Defendant's decision to enforce section 12 ofthe Presidential, Parliamentary and Local Government Elections Act, 20237 Was it not easy for those with standing to come in her stead? We have searched and searched through their summons and the statement of case and they have not supplied us with the answers we need. Clearly, they are testing the waters. We must pause here, and make a promise that, we will come back to address this issue later when the time is ripe. Now is not the time.

3. Notwithstanding the above, we must announce that the Claimant committed a ‘gargantuan number of procedural sins which are fatal in their nature. When, we first made these observations, we had thought of invoking Order 5 rule 9(a) of the Courts (High Court)(Civil Procedure) Rules, 2017. The Order provides as follows:

The Registrar may reject a document that is filed in the Court where: (a) the document does not comply substantially with the requirements, of these Rules

(Emphasis supplied) But, we restrained our finger to so proceed and we accordingly referred this matter to the honourable Judge with the observations we wrote by our pen on the summons. We ‘were motivated by Order 5 rule 11 of the Courts (High Court)\Civil Procedure) Rules, 2017. The order is couched as follows: ‘The Registrar may reject a document or refer the document to a Judge for directions about how to deal with it. (Emphasis supplied) Clearly, the word “or” in the provision in issue, gives us two possible choices. One, ‘we could reject the processes on our own or secondly, we could as was in this case, refer the matter to the honourable Judge with the observations made, That, is what we id, In casu, we thought that the summons were supposed to be rejected first for non- ‘compliance with the rules and being an abuse of court process. We will come back on the abuse of process argument. So, after our referral to the honourable Judge, we accordingly, on 7 October, 2024 received directions and or authority from the honourable Judge for us to proceed as we hereby do. It is clear, that the honourable Judge was proceeding under Order S rule 12 of the Courts (High CourtyCivil Procedure) Rules, 2017 in giving us his directions. The said order is framed as follows: ‘A Judge may direct the Registrar to accept or reject the document, ‘We wish to put our lip on the framing of this rule. Our view is that, rule 12 needed to be a sub-rule to rule 11 and not a stand-alone rule as itis. We think that, that was an oversight, because when one reads rule 12, the implication one has, is that, the Judge can randomly direct the Registrar to so act. But, logically that does not make sense, for the only place where the Judge is referred to in the Order is on this rule and Order S rule 19 of the Courts (High Court) (Civil Procedure) Rules, 2017. We think that, rule 12 should be read as a consequence of the referral by the Registrar on rule 11, This reasoning is supported for instance, with the way Order 25 rules 2 (1) & (2) of the Courts (High Court) (Civil Procedure) Rules 2017 are couched. This, is our reading of the spirit of the rules. We may be wrong, But, we know that we are not 4, That said, we still remember that, we are under duty to show our basis for rejecting the originating process herein. We will, soon enough. Not now still. However, we have zziven ourselves permission to put our mouth on general issues that affect our daily conduct of work. Thus, we have always maintained the view that, whenever a proceeding is commenced by the hand of Counsel, without first having a searching of his soul, as to whether the said proceeding should be brought to Court, solely on his usual confidence and or experience in his daily trade, and in the end, he omits to appreciate whether he should in the first place, bring that proceeding or not, (then he must either be overly confident of his art and therefore naive or that, he may simply be

careless to know that his may be a hopeless proceeding) or that he casually omits to be careful enough, so as to be meticulous before he brings his case and thus, thinking to himself either that, the Court will share in his omission and therefore issue an originating process, which otherwise it would not have issued for want of merit (thereby perpetuating the vice of an abuse of the processes of the Court)

Respectfully, we submit that, if Counsel will ever be that careless, Counsel will not escape the cunning eyes of our Court and where like in this case, the Court shall properly and respectfully guide Counsel who is a quasi-member of the Court (as his, is 4 statutory duty under section 32 of the Legal Education and Legal Practitioners Act, 2017, as an officer of the Court) not to promote frivolous or hopeless claims which he should or ought to know that, such frivolous and vexatious claims may not have real prospect of success in Court, and therefore costly if not arrested from their inception ‘Our duty, is to curb against that. This, duty is to say the least, judicial, because it would require us to exercise our legal mind.

5. What is the role of the Registrar? We think Registrars must out of duty not just issue documents and sign them incorrectly thinking to themselves that perhaps theirs is simply an administrative role, We submit that, that is not always the case. There are those administrative duties that we gladly do. But, not when it comes to exercising our legal mind. We must exercise our legal mind on the processes that get before us so that, if we are to arrest those processes that need not to see the light of the day, we must so do, because that will further the imperative of the rules, which is to avoid costs and ‘unnecessary expenses, We had said it before, and we think we will not be guilty of anything if we are to repeat ourselves as follows

As gatekeepers we must again articulate, our duty is to ensure that only those processes that are prima facie ripe in law are issued for the attendance of the Honourable Judges. We must not rubber-stamp everything, assuming the Judge will decide; to do so, is to respectfully fail in our duty.?

(6. Exactly, that is what we think is the correct position, We are tempted to say that, if any messenger of judicial truths will blossom and say contrary things from the above discourse, they should not be believed. But, we will keep that to our mind and we will not assert that, We wam ourself. However, there are those who would for once doubt and say to themselves that, is this not the Registrars blessing themselves before the time is so ripe? In that, what we are doing is in fact, us handling substantive matters that ‘otherwise should be dealt with by the honourable Judge? Our answer to that is simple, ‘we do not think that we are being overly ambitious, we have just read the law and we

3 In The Matter of The Admissions of Aled Hlewani Ndhlovu, Chikondi Kwacha Changwanjira, ‘Temwva Peace Mfinda, Jean Sharon Banda, Nicole Myra Chombo and in the Matter of the Admission of Flavia Petra Mulaio in the Matter of the Legal Education and Legal Practitioners Act, 2017 Admission Causes No, 28,29,30,31,32,33,34,35836) (Unreported)

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