LIBERIA AGGREGATE CORPORATION, represented by its General Manager, Informant, v. JOSIAH TAYLOR, HIS HONOUR FREDERICK K. TULAY, Resident Circuit Judge, Sixth Judicial Circuit, et al., Respondents.
INFORMATION PROCEEDINGS
Heard: March 1, 1988. Decided: July 29, 1988.
1. Where a trial court judge or any judicial officer attempts to execute the mandate of the Supreme Court in an improper manner, the correct remedy is to proceed by a bill of information.
2. In order for the Supreme Court to entertain information, the case must have either been pending before or decided by it, there must appear to be a usurpation of the province of the Court by the respondents, there must exist some irregularities or obstruction in the execution of the Court’s mandate, or there must have been a refusal to carry out the Court’s mandate or orders.
3. Where a party who is summoned fails to file an answer or appear at a hearing, and judgment is entered in his absence, the appropriate remedy is to proceed by a regular appeal or by a petition for a writ of error.
4. The Supreme Court lacks jurisdiction to review by information the judgment of a lower court, from which a regular appeal or remedial process should have been pursued.
Co-respondent Josiah Taylor, who had withdrawn his action of damages for trespass filed against the informant following an agreement between the parties, whereby informant agreed to vacate the co-respondent’s premises and to pay compensation and the co-respondent agreed not to bring any further action against the informant, brought a subsequent action of trespass when the informant failed to vacate the premises as agreed. When the informant failed to answer or appear, default judgment was entered against it.
Following the denial of a petition for a writ of error, informant filed a bill of information before the Chambers Justice asserting that the co-respondent was estopped from filing the last action because he had signed a release not to do so. The information was granted and an appeal announced on behalf of the respondents who were not present for the hearing.
The Supreme Court reversed the Chambers Justice’s ruling, holding that the grounds stated by the informant did not constitute any of the legal basis upon which information could be granted. The Court noted that for information to be granted, the case must be pending before the Court, there must appear to be a usurpation of the province of the Court, there must exist some irregularities or obstruction in the execution of the mandate or orders of the Court, or there must be a refusal to carry out the mandate or orders of the Court. None .of these was present in the instant case. Hence, the Court concluded, there was no basis for the granting of the information. Accordingly, it ordered that the information be denied.
Joseph P. H Findley appeared for informant. J. Emmanuel R. Berry appeared for respondents.
MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.
Plaintiff filed an action of damages for trespass against defendant in the Sixth Judicial Circuit Court, Montserrado County, in December, 1982, but withdrew same upon the mutual understanding and agreement of both parties that a compensation of $7,500.00 would be paid and that the defendant would vacate the premises. The amount agreed to was paid, predicated upon which payment the plaintiff issued a RELEASE not to sue the defendant. However, the defendant refused to vacate the premises. Therefore, the plaintiff again sued the defendant, this time for wrongful occupation and trespass. The writ of summons was served by the sheriff on the 27 th day of June, 1984. The defendant failed to file an answer or to appear at the trial. Hence, on October 1, 1984, judgment was rendered by default against it. No exceptions were noted and no appeal was announced.
Subsequently, however, the defendant filed a petition, praying the issuance of the remedial writ of error, stating, among other things, that he had not had his day in court. The Chambers Justice, Associate Justice Boima K. Morris, heard and denied the petition on April 18, 1985. Again, no exceptions was noted and no appeal announced. Consequently, a mandate was sent to the court below to resume jurisdiction over the case and enforce its judgment against the defendant for $57,176.60.
Defendant’s counsel, Joseph Findley, obviously seeing no way out, filed a bill of information before Chambers Justice Elwood L. Jangaba to stop the execution of the October 1, 1984 judgment, stating, inter alia, that the plaintiff was estopped from refiling his action of damages for trespass because he had signed a release not to do so. This contention was raised in the information, although the issue was never raised in the court below by the informant. Nevertheless, the informant prevailed upon Chambers Justice Jangaba to issue an assignment for the hearing of the information, to which the respondents had filed no returns. However, after hearing and granting of the information, Chambers Justice Jangaba ordered the notation of exception to the ruling and the announcement of an appeal therefrom, on behalf of the respondents, who were absent from the hearing.
The informant’s counsel contends that since the respondents did not file returns to the information, they should not be allowed to benefit from the exception taken and the appeal announced on their behalf He argued that as respondents were not properly before this Court, Justice Jangaba’s ruling should not be disturbed.
On the other hand, the respondents contend that a bill of information will not lie to review a case which has been heard and decided. Such review, they say, can be had only by regular appeal or writ of error. The respondents argued further that the informant having failed to file an answer in the damages suit, where it could have raised the issue raised in the information, it cannot seek surreptitiously to have the same reviewed by information. Hence, they assert that Justice Jangaba’s ruling should be reversed and the judgment of the lower court affirmed.
From the foregoing circumstances surrounding the case, the following issues are presented for our determination:
1. Whether or not a bill of information will lie to review a case where the parties were legally notified to appear and defend but failed to do so?
2. Can a party substitute a bill of information for a regular appeal or writ of error?
Our task, in disposing of these issues, is made easier by the fact that this is not the first time that such issues have been presented to this Court for determination. We shall therefore turn to a rich source of precedents to which this Court has adhered with respect to bill of information, especially in recent times.
In an opinion handed down by this Court during its October Term, A. D. 1986, Mr. Justice Horace, speaking for the Court, stated the following regarding a bill of information:
“. . .When an issue had reached the point of executing a mandate of the Supreme Court, a remedial writ was out of the question. If anything went wrong at that stage, it was the duty of the party who felt he was being wronged in some way to bring the action of wrong against whoever was committing the wrong to the attention of the Court en banc. . . . From time immemorial, it has been the practice to come by bill of information to this Court in cases like these, and therefore, if a judge or any judicial officer attempts to execute the mandate of the Supreme Court in an improper manner, the correct remedy is by bill of information to the Court.” See Kromah v. Pearson and British Petroleum Med West Africa (Liberia) Ltd., [1987] LRSC 3; 34 LLR 304 (1986).
In another bill of information proceeding which grew out of an action of ejectment based on allegations that instead of the trial judge carrying out the mandate of the Supreme Court, he permitted the withdrawal of the case which was the subject-matter of the mandate and entertained the filing of a bill in equity for the cancellation of a lease agreement, the Court ruled that the bill of information was unmeritorious in that the judge had not in any way acted irregularly or contrary to law in the reading of the Supreme Court’s mandate to warrant this Court’s intervention. Waggay v. Belleh and Jawhary, 33 LLR 494 (1985).
The question of whether a bill of information is the proper remedy for this Court to review the ruling of the trial court was answered by this Court in the case Ajami v. Koroma and Saleeby, [1983] LRSC 31; 30 LLR 742 (1982). In that case, the information was dismissed because the informant had failed to raise the issues in the court below and because of the absence of any irregularities on the part of the trial judge or any officer of the trial court in the execution of the Supreme Court’s mandate.
Still in another case, Mr. Justice Morris dismissed a bill of information during the March Term, A. D. 1982, while in Chambers, because, like the instant case, the informant had not filed an answer to the complaint, or excepted to the judgment, or announced an appeal from the judgment in the case. Nimley et al. v. Yancy et al.[1982] LRSC 72; , 30 LLR 403 (1982). According to the sheriffs returns in that case, only defendant Kima Nimley had been served with summons and a copy of the complaint on December 26, 1980, but he had failed to file any answer. At the call of the case, the plaintiffs and their counsel were present while the defendants appeared only by counsel, in person of Counsellor Lewis K. Free. The jury was empanelled and trial commenced. When trial resumed at the next day’s session, July 28, 1981, neither the defendants nor their counsel appeared. Whereupon, the plaintiffs were permitted to proceed with trial, upon leave of court. Following the resting of evidence in toto by the plaintiffs, the jury brought a verdict against the defendants, awarding $19,000.00 in damages for the illegal and wrongful withholding of the property. Judgment was rendered affirming and confirming the verdict. No exception was taken or appeal announced, as the defendants and their counsel were absent. This was on the 4th day of August 1981. When a writ of possession was issued against the defendants, they elected to come by information. The issue in that case was whether the Supreme Court lacked jurisdiction to review a lower court’s judgment by a bill of information instead of by regular appeal or remedial process? The Court answered in the affirmative, stating that it lacked jurisdiction which is conferred only by law. See Judiciary Law, Rev. Code 17:2.1, 2.2 and 2.9.
The Supreme Court said further that in order for it to entertain the information, the case must have either been pending before or decided by it, that there appeared to be a usurpation of the province of the Court by the respondents, that there existed some irregularities or obstruction in the execution of the Court’s mandate, or that there was a refusal to carry out the Court’s orders. The Court concluded by saying that in the absence of any of the foregoing, “. . . we find ourselves paralyzed to entertain an information . . .already decided by the court below, without any appeal taken from said final judgment or remedial or extraordinary writs being prayed for and issued.” Accordingly, the Court ruled that since it lacked jurisdiction, it was unnecessary to go into the merits or demerits of the case. It therefore affirmed the ruling of the Justice in Chambers dismissing the information as baseless and unmeritorious. See Nimley et al. v. Yancy et al.[1982] LRSC 72; , 30 LLR 403 (1982). Again, there is no material difference between the foregoing case and the instant case.
In another related case, the information was dismissed because this Court determined that it could not entertain a bill of information against the enforcement of its own mandate, growing out of a previously decided case, where there was no allegation of irregularities. See Kuyette and Malike v. Kandakai and Sirleaf [1982] LRSC 52; 30 LLR 217 (1982).
In yet another case decided by this Court on February 4, 1982, during its October Term, A. D. 1981, the jury had retired to their room of deliberation and returned a verdict against the informant. That verdict was confirmed by the trial court in a judgment entered thereon to the affect that the informant should return the four (4) pigs involved in the case to Co-appellee Klueh-yee or pay the market value therefor, as stipulated in informant’s replevin bond. The informant was also required to pay to Co-appellee Klueh-yee the sum of $300.00 as costs and expenses. The informant neither excepted to the verdict of the jury nor to the court’s final judgment. Notwithstanding, the informant applied for a writ of prohibition against Judge James M. T. Kandakai and Co-appellee Klueh-yee. The alternative writ of prohibition was issued. Mr. Justice Horace, then presiding in Chambers, heard the prohibition proceedings and on the 5 th of October, 1976, denied the petition and ordered the alternative writ quashed. On the 30th day of December, 1976, during the November Term, A. D. 1976, of the Third Judicial Circuit Court, His Honour James L. Brathwaite, then presiding by assignment, read the mandate from this Court on the petition for prohibition and ordered the enforcement of the final judgment of Judge Kandakai.
At that stage, the informant fled to this Court, as in the instant case, and filed a bill of information. The information was dismissed, the Court rightly observing that “. . . the appellant (informant) and his counsel resorted to delay tactics to defeat the ends of justice which this Court has repeatedly frowned upon. This Court views such behaviour as unprofessional and a disgrace to the legal profession of this Republic. We are once again compelled to warn members of the legal profession of this country against such unethical behaviour and urge them to respect their professional oaths.” Those remarks could not have been better stated by this Court as advice to the informant and his counsel in the present case.
In our opinion, the informant having failed to file an answer to the complaint in the action of damages for wrongful occupation and trespass, and to put in an appearance at the trial while he was opportuned to do so, and raise the defenses deemed necessary, it would be improper for us to review said case by a bill of information. Hence, the said bill of information is denied. The ruling of Chambers Justice Elwood L. Jangaba is hereby reversed and the original judgment ordered enforced, with costs against the informant. And it is so ordered.
Information denied.