HAFEZ M. JAWHARY, Appellant/Petitioner, v. HIS HONOUR JOHN L. GREAVES, Judge, Monthly and Probate Court, Montserrado County and THE INTESTATE ESTATE OF THE LATE ROSETTA WATTS-JOHNSON, Appellees/Respondents.

APPEAL FROM THE RULING OF THE CHAMBERS JUSTICE DENYING THE PETITION FOR THE ISSUANCE OF A WRIT OF CERTIORARI.

Heard: April 25, 2001. Decided: July 5, 2001.

1. Certiorari is a special proceeding to review and correct decisions of officials, boards, or agencies acting in a judicial capacity, or to review an intermediate order or interlocutory judgment of a court.

2. A petition for a writ of certiorari shall contain the following: Certification by two members of the bar that in their opinion the contention of the petitioner is sound in law.

3. A petitioner in certiorari shall pay all accrued costs and may be required to give a bond conditioned on paying the respondent such damages as he may sustain if the writ is dismissed.

4. The statute controlling certiorari proceedings requires and mandates that the petition for certiorari contains a statement that the petitioner is a party to an action pending before a court or judge or administrative board.

5. The requirements for filing a petition for certiorari are clear, unambiguous, and mandatory, and any non-compliance with the statutory provisions leads to incurable and fatal defects and a mandatory basis for the dismissal of the petition.

6. Where a person applying for the writ of certiorari has failed to meet any of the mandatory requirements, the petition shall be denied.

7. The Chambers Justice has the statutory authority to exercise discretion as to whether or not to order the issuance of a remedial writ. Notwithstanding, the Justice shall exercise that discretion in compliance with the Constitution and laws and with due regard for the rights of the party litigants.

Petitioner/appellant filed a petition for the issuance of writ of certiorari against the judge of the Monthly and Probate Court for Montserrado County and the Intestate Estate of the late Rosetta Watts-Johnson, growing out of the attempt by the co-respondent judge to hold the appellant in contempt of court because of his failure to obey the instructions of the court and for causing injury to the court’s bailiffs who had attempted to serve the court’s writ on the appellant. The appellant, lessee of property owned by Rosetta Watts-Johnson, had reported to the probate court that following the death of Mrs. Rebecca Watts-Pierre, daughter of Mrs. Rosetta Watts-Johnson, to whom the leased property had been willed by the lessor, he had not been informed as to whom he should make the annual rental payment. Subsequently, the appellant had agreed with the probate court that payment of the rent would be made to the court for the estate. When the appellant defaulted in making the payment as agreed, the court issued writs of summons and re-summons, and a letter, which the appellant ignored a: refused to receive and sign for.

Thereafter, following the refusal of the Justice in Chambers to issue a writ of prohibition sought against the probate court judge to restrain him from seeking appellant’s compliance with the payment instructions, the probate judge issued a writ of criminal contempt against the appellant. When the bailiffs of the probate court sought to serve the writ, they were physically assaulted by the appellant and his employees. As a result, criminal proceedings were commenced for aggravated assault against the appellant. Upon posting bond and being released, the appellant proceeded to the probate court where he made payment of the rental amount due the estate. However, because the actions in both courts continued to be pursued, the appellant sought the writ of certiorari from the Supreme Court. The Justice in Chambers ordered the issuance of the alternative writ, but upon a hearing by a successor Chambers Justice, the petition and the peremptory writ were denied. From this ruling, an appeal was taken to the Full Bench.

The Supreme Court en banc agreed with the Justice in Chambers that the appellant had failed to meet the mandatory statutory requirements for the issuance of the writ of certiorari. The Court noted some of the mandatory requirements as (a) the payment of accrued costs; (b) a statement from two members of the Liberian Bar stating that in their opinion the contention of the petitioner is sound in law; and (c) a statement by the petitioner that the case grows out of proceedings in the trial court to which the petitioner is a party. The Court observed that as none of these requirements were met by the appellant the Justice in Chambers should not have ordered the issuance of the alternative writ of certiorari, which the Court said had the effect of halting the contempt proceedings in the Monthly and Probate Court for Montserra-do County commenced to protect the dignity of the court and its officers, and the criminal proceedings in the Magisterial Court for the City of Monrovia commenced to have the appellant account for the assault on female officers of the court. The Court observed that the provisions of the statute were clear, unambiguous and mandatory, and that a failure to fulfill any one of the mandatory statutory requirements was sufficient ground for denial of the petition. Accordingly, the Court confirmed the denial of the petition by the Justice in Chambers, and ordered the trial courts to resume jurisdiction over the respective matters and to proceed therewith in accordance with the law.

Alexander B. Zoe and 1 D. Baryogar Junius appeared for the petitioner/appellant. James E. Pierre of the Pierre, Tweh and Associates Law Firm appeared for the respondents/ appellees.

MADAM CHIEF JUSTICE SCOTT delivered the opinion of the Court.

This matter has come before this Court, sitting en banc, on appeal from the ruling of the Chambers Justice who rendered a decision denying the appellant/petitioner’s petition and quashing the alternative writ of certiorari. The records in the case revealed that the appellant herein had leased a parcel of real property located on Carey Street, in the City of Monrovia, from the late Rosetta Watts-Johnson in 1973, for a period of thirty years, commencing from March 1, 1973, to February 28, 2003, for the consideration of an annual rental of US$1,200.00, payable in advance. In 1979, Rosetta Watts-Johnson died and willed the said property to her daughter, Rebecca Watts-Pierre, who died in August 1990. The appellant was current in the payment of the rental up to and including February 1991.

On March 10, 1994, the appellee wrote a letter to the judge of the Monthly and Probate Court for Montserrado County, R.L., requesting instructions as to whom to pay the accrued rental for the leased premises, covering the period March 1, 1991 through February 28, 1996. Subsequently, on August 13, 1996, the Monthly and Probate Court for Montserrado County issued a decree granting letters of administration to Eugene Cooper and Mabel Pierre to administer the Intestate Estate of the late Rebecca Watts-Pierre. The appellant was accordingly informed of the foregoing decree by the said court on August 27, 1996. The appellant thereafter, in a meeting with the probate court judge, promised to make installment payments of the outstanding rental due the said estate. The request was approved by the probate judge.

Due to the appellant’s refusal and failure to honor his promise and the installment payment plan worked out with the court for the payment of the overdue rental, the probate court issued a writ of summons on September 5, 1996, ordering the appellant to appear and show cause why he should not be held in contempt of court. The appellant refused to accept service of the writ, which refusal necessitated the court’s issuance of a writ of re-summons. Again, as before, the appellant refused to accept service of the writ of re-summons. The court thereafter chose to write the appellant a letter requesting that he honor his schedule of payment of the overdue rental due the Intestate Estate of Rebecca Watts-Pierre.

At this point, the appellant fled to the Chambers Justice and filed a petition for a writ of prohibition to prohibit and restrain the judge of the probate court from enforcing the payment schedule made by the appellant for the payment of overdue rental due the estate. The Chambers Justice, after a conference, refused to issue the alternative writ of prohibition and ordered the Monthly and Probate Court for Montserrado County to resume jurisdiction over the matter.

On September 30, 1996, the Judge of the Monthly and Probate Court issued a writ of criminal contempt against the appellant to compel compliance with the court’s payment instructions, as per the payment schedule made by the appellant. The writ was placed in the hands of two female bailiffs for service on the appellant. However, the bailiffs were physically and brutally attacked by the appellant and his employees who worked at the appellant’s hotel when they attempted to serve the writ. The court officers alleged that they suffered pain and bodily harm and lost personal property. The bailiffs thereafter filed a complaint before the Magisterial Court for the City of Monrovia, at the Temple of Justice, against the appellant. Based on the said complaint, the Magisterial Court issued a writ of arrest against the appellant for the offense of aggravated assault. The appellant was then arrested and allowed to post a criminal appearance bond to secure his release. Following his release, the appellant proceeded to the probate court where he paid the entire outstanding rental of US$7,200.00 due the intestate estate aforesaid.

On November 26, 1996, the appellant filed a petition for a writ of certiorari before the Chambers Justice, who ordered the issuance of the alternative writ of certiorari. After a period of time, a succeeding Chambers Justice heard and denied the petition, refused to issue the peremptory writ, and ordered the alternative writ of certiorari quashed. It was from this ruling that the appellant announced an appeal to this Court sitting en banc.

The paramount issue this Court must decide is whether certiorari will lie. Section 16.2 1(1) of the Civil Procedure Law provides, as follows: “Certiorari is a special proceeding to review and correct decisions of officials, boards, or agencies acting in a judicial capacity, or to review an intermediate order or interlocutory judgment of a court.” For reliance, see Civil Procedure Law, Rev. Code 1: l6.21(l)(c).

Section 16.23 provides, inter alia:

“(1) Contents of petition. A petition for a writ of certiorari shall contain the following:

(c) Certification by two members of the bar that in their opinion the contention of the petitioner is sound in law.

(3) Payment of accrued costs; bond. The petitioner shall pay all the accrued costs, and he may be required to give a bond, conditioned on paying the respondent such damages as he may sustain if the writ is dismissed.” (Ibid.)

We shall now consider whether the petitioner has satisfied the prerequisites statutorily mandated for the filing of a petition for a writ of certiorari. An examination of the petitioner’s petition revealed that there is no certificate signed by two counsellors-at-law of the Supreme Court certifying that in their opinion the contention of the petitioner is sound in law. This requirement is mandated by 1 6.23(1)(c) of the Civil Procedure Law. (Ibid.). Further, a closer scrutiny of the petition reveal the following caption:

Hafez M. Jawhary, a Lebanese )

National……………… Petitioner ) Petition for a Writ

of

Versus ) Certiorari

His Honour John L. Greaves, )

Judge, Monthly and Probate )

Court, Montserrado County, and)

The Intestate Estate of the Late )

Rosetta Watts-Johnson..Respondents)

The foregoing caption is not in compliance with the statutory provision which controls proceedings in certiorari, and which mandates that a petition for certiorari shall contain a statement that the petitioner is a party to an action pending before a court or judge or administrative board.

The caption of the case, quoted hereinabove, conveys the impression that this matter is for the first time being filed before the Chambers Justice. Our research of the records revealed that the caption of the petition could not possibly have been otherwise. The following catalogue of events ex-plains our conclusion. The petitioner, in complete submission to the jurisdiction of the Monthly and Probate Court for Montserrado County, wrote the then probate judge the following letter:

March 10, 1994

Her Honour Gloria Scott

Probate Judge

Monthly & Probate Court

Monrovia, Liberia

IN RE: The Intestate Estate of the late Rosetta Watts-

Johnson: Lease Agreement With Hafez M. Jawhary

May It Please Your Honour:

1 have the honour to forward you a self-explanatory copy of a lease agreement between Rosetta Watts Johnson lessor, and 1, Hafez M. Jawhary, lessee, for a portion of lot number 115, situated, laying, and being on Carey Street Monrovia, Montserrado County, Liberia.

This lease agreement covers a period of 30 calender years certain, commencing on the 1st day of March, A. D. 1973, up to and including the 28th day of February, A. D. 2003.

Your Honour, since my occupancy of the said premises 1 have been paying rental as specified in the lease agreement, which 1 did up to the civil crisis. But since the civil crisis and up to the present, 1 have not been able to pay the rental. This is due to the fact that 1 do not know to whom the rental should be paid because I having been credibly informed that my lessor, Mrs. Rosetta Watts-Johnson is demised. 1 has received no letter from Your Honourable Court with respect to the administra-tion or administrators given authority to administer the Intestate Estate of the late Mrs. Johnson.

As such, 1 would be pleased if 1 could be advised by Your Honourable Court what steps 1 should take with respect to payment of the rental, since 1 stand ready to comply.

Respectfully Yours,

Hafez M. Jawhary

LESSEE”

The probate court, on August 27, 1996, wrote the following letter to the appellant/petitioner:

“Dear Mr. Jawhary:

By orders of His Honour John L. Greaves, Judge of the Monthly & Probate Court for Montserrado County, 1 am directed to inform you that the Intestate Estate of your lessor, the late Mrs. Rebecca H. Watts-Pierre, is the subject of probate proceedings and that Mrs. Mabel S. Pierre and Eugene H. Cooper have been appointed administratrix and administrator, respectively, of the aforesaid Intestate Estate.

According to the inventory field by the administratrix and administrator, you have rental arrears to the Estate for the period February 1991 – February 1997 in the amount of US$7,200.00.

His Honour therefore directs that you forthwith make payment of the said amount to this office and obtain an official receipt from this court evidencing payment of your indebtedness to the said estate

Very truly yours,

Ellen Hall

Clerk, Monthly & Probate Court

MONTSERRADO COUNTY, R. L.

APPROVED

John L. Greaves

JUDGE, MONTHLY & PROBATE COURT”

MONTSERRADO COUNTY, R.L.

The probate court, on September 5, 1996, issued a writ of summons on the petitioner herein, ordering him to appear on the 6th day of September 1996, to show cause why be should not be held in contempt for his “… failure to adhere to court’s letter dated August 27, 1996…” To this writ of summons the following returns were made by the sheriff:

“SHERIFF’S RETURNS

On the 5th day of September, A. D. 1996, Bailiff Mary Neufville of the Monthly and Probate Court, Monrovia, Liberia, served the within writ of summons on Defendant Hafez K. Jawhary and he (Jawhary) refused to accept the within writ of summons. 1 now make this as my official returns to the office of the clerk of this Honourable Monthly and Probate Court, Monrovia, Liberia.

Dated this 5th day of September, A. D. 1996 Signed”

Mont. Co., Monrovia, Liberia, R. L.

After the service of the court’s precept, which returns are hereinabove quoted, counsel for the petitioner wrote the probate court judge, His Honour John L. Greaves, the following letter:

“May It Please Your Honour.

1 have the honour to acknowledge receipt of a letter dated August 27, 1996, under the signature of the clerk of court, which is approved by you, informing our client, Mr. Hafez M. Jawhary, that he is in arrears for rental payment to the Intestate Estate of the late Mrs. Rebecca H. Watts-Pierre, and requesting that he forthwith make payment of said amount to the office of the clerk of court.

Your Honour, my client does have a lease agreement with Mrs. Rosetta Watts-Johnson, now demised. Before her death, regular payments were made as my client has receipts to show. Since her death, no one has presented him with a letter of authority stating that he/she is in charge of the Intestate Estate of Mrs. Rosetta Watts-Johnson and that payment should be made thereof; neither has your court written any directive to that effect. The rent is available awaiting the authorized person or persons.

Your Honour, my client stands ready at all times to make payment to the proper authority when called upon. It is also foreign to him about rent being paid in US Currency. The lease is a living evidence to the effect.

In the meantime, 1 would be pleased to call at your office (court) any time for a conference on the matter.

Kind regards.

Very truly yours,

J. D. Baryogar Junius

COUNSELLOR AT LAW”

On September 6, 1996, the probate court issued a writ of resummons and the ministerial officer proceeded to serve same on the petitioner herein. Hereunder is the sheriff’s return.

“On the 6th day of September, A. D. 1996, Sheriff Emma Johnson Kollie and Bailiff Mary Neufville, all of the Honourable Monthly and Probate Court, Monrovia, Liberia, served the within writ of re-summons on Defendant Hafez M. Jawhary and he (Mr. Jawhary) refused to accept the within writ of re-summons. Defendant Jawhary also threw the writ of re-summons on the floor.

Dated this 6th day of September, A. D. 1996

Signed:

Sheriff, Monthly & Probate Court,

Mont. Co., Monrovia, Liberia, R. L.”

It was at this stage that petitioner then fled to the Chambers Justice and filed a petition for a writ of prohibition to restrain the judge of the Monthly and Probate Court for Montserrado County from proceeding any further with the matter. The Chambers Justice, after a conference hearing on the petition for the writ of prohibition, refused to issue the alternative writ and ordered the judge of the probate court to resume jurisdiction over the case. Upon the resumption of jurisdiction, the probate judge ordered the issuance of a writ of arrest to compel the petitioner herein to appear in furtherance of the said writ of resummons and to answer in criminal contempt. It was during the service of this writ that the petitioner physically assaulted the court officers. The below quoted words is petitioner’s own description of what transpired:

“8. And also because petitioner says that during the service of said writ of arrest, altercation ensued. As a result of said altercation, the sheriff and attending bailiffs instituted an action against the petitioner before His Honour J. Blamo Dixon, charging him with the crime of aggravated assault, for which he had to file a bond. (See copies of said proceedings attached). This, petitioner says, grossly violated his constitutional right since the sheriff and attending bailiffs were executing order(s) from the probate court and should have reported same to said court. Not only that, but also the probate court is holding him in contempt for the same self-act that had been reported to the magisterial court growing out of his illegal action.” (Emphasis ours) (count 8 of petitioners’ petition for a writ of certiorari).

After the assault on the court officers, the petitioner proceeded to the Monthly and Probate Court for Montserrado County, where he made full and complete settlement of the US$7,200.00 rental arrears due the Intestate Estate of the late Rosetta Watts-Johnson. The rental arrears were paid on September 30, 1996.

This Court emphasizes that the issue of the non-payment of rental was initiated by the appellant. The probate court, under the authority of the Decedents Estates Law, and pursuant to the payment arrangements agreed to by the appellant, issued payment instructions to the appellant. The appellant then fled to the Chambers Justice with a petition for a writ of prohibition to prohibit and restrain the probate judge from enforcing the payment instructions. The Chambers Justice denied the petition and refused to order the issuance of the alternative writ of prohibition. The petitioner finally settled and made payment of the overdue rental due the mentioned Intestate Estate. The matter of the payment, in compliance with the instructions of the probate court, therefore became moot. Hence, this issue could not have been the subject of a petition for a writ of certiorari. There was no pending action in the said probate court, from which emanated an interlocutory ruling which could be a fit subject for review and correction under the office of the writ of certiorari. Therefore, the appellant could not, and correctly did not caption the petition and therein name the parties in a pending action out of which the petition for the writ of certiorari grew. The petition for the writ of certiorari therefore failed to satisfy one of the mandatory statutory requirements, which is “(a) a statement that the petitioner is a party to an action or proceeding pending before a judge or administrative board or agency”. Civil Procedure Law, Rev. Code 1:16.25(1)(a).

We had previously found that the petition, as filed, contained no evidence that the petitioner had made payment of accrued costs and also that it lacked a certificate signed by two counsellors-at-law stating that the contentions of the petitioner were sound in law. Clearly the petitioner’s petition has failed to satisfy the mandatory statutory requirements as stipulated in chapter 16, sub-chapter B, section 16.23 (1)(a), (b), (c), and 16.23(3) of the Civil Procedure Law, contained in Volume 1, Liberia Code of Law Revised, enacted and published in 1973. The provisions of the stated sections of the Civil Procedure Law are clear and unambiguous, and non-compliance with the requirements stated therein leads to incurable and fatal defects and a mandatory basis for the dismissal of the petition. This is consistent with the prior holdings of this Court that “where a party applying to this Court for a writ of certiorari has failed to meet any one of the mandatory requirements, the petition shall be denied.” See Dixon v. Kandakai, [1976] LRSC 75; 25 LLR 362 (1976), text at 365. This Court upholds, reconfirms, and reaffirms the foregoing holding and therefore finds that our distinguished colleague sitting in Chambers was legally correct when he ruled on the 5th day of December, A. D. 2000, denying the petitioner’s petition for the writ of certiorari, refused to order the issuance of the peremptory writ, and proceeded to order that the alternative writ be quashed.

In count 8 of the petition, the petitioner asserted as follows:

“8 And also because petitioner says that during the service of said writ of arrest, altercation ensued. As a result of said altercation, the sheriff and attending bailiffs instituted an action against the petitioner before His Honour A. Blamo Dixon, charging him with the crime of aggravated assault for which he had to file a bond. (See copies of said proceedings attached). This, petitioner says, grossly violated his constitutional right since the sheriff and attending bailiffs were executing order(s) from the probate court and should have reported same to said court. Not only that, but also the probate court is holding him in contempt for the self-same act that had been reported to the magisterial court growing out of his illegal action.”

Clearly from the foregoing, the expressed object of this petition for a writ of certiorari was to prevent the Stipendiary Magistrate of the Monrovia City Magisterial Court, His Honour A. Blamo Dixon, from proceeding in the matter of the writ of arrest for the crime of aggravated assault issued against the petitioner. Secondly, the petition for a writ of certiorari earnestly sought to prevent His Honour John L. Greaves, Judge of the Monthly and Probate Court, from proceeding further in the contempt hearing against petitioner for physically and brutally assaulting the two court officers of the Monthly and Probate Court for Montserrado County.

The petitioner achieved his objective when the Chambers Justice ordered the issuance of the alternative writ of certiorari on February 6, 1997. The issuance of the said alternative writ effectively stayed further proceedings in the Monrovia City Magisterial Court in the criminal action initiated by the ministerial officers who had been physically assaulted by the petitioner, and the contempt proceedings in the Monthly and Probate Court for the brutal physical assault on the said court officers. Indeed, the order of the Chambers Justice for the issuance of the alternative writ of certiorari prevented and halted the proceedings for the violation of the Penal Law of Liberia and the contempt proceedings to restore the sanctity, dignity and honour of the Monthly and Probate Court for Montserrado County. With the slightest diligence, the Cham-bers Justice would have discovered that the petition did not satisfy the mandatory statutory requirements and that in fact the petitioner had expressly stated that the intent was to halt proceedings in the courts below.

This Court confirms and affirms the statutory authority of the Chambers Justice to exercise discretion whether or not to order the issuance of a remedial writ. Notwithstanding, this Court expects that a Chambers Justice, who is also a member of this Court, will exercise discretion in compliance with the Constitution and laws, and give due regard to the rights of party litigants. It is therefore with regrets that this Court finds that the Chambers Justice did not exercise sound discretion when he ordered the issuance of the alternative writ of certiorari.

Accordingly, we totally agree with and confirm the decision of the succeeding Chambers Justice who heard the petition for the writ of certiorari, denied the same, ordered the alternative writ quashed, and refused to issue the peremptory writ of certiorari.

Wherefore and in view of the foregoing, the ruling of the Chambers Justice is hereby ordered affirmed and confirmed. The Clerk of this Court is hereby ordered to send a mandate below ordering the Monrovia City Magisterial Court to proceed with its criminal proceedings and the Monthly and Probate Court for Montserrado County to proceed with its contempt proceedings, giving priority thereto and as the law provides respectively. The respective stay orders on the criminal proceedings pending in the Monrovia City Court for the crime of aggravated assault and the contempt proceedings pending in the Monthly and Probate Court for Montserrado County are hereby lifted and the magistrate and probate court judge therein respectively, are hereby ordered to proceed as the law provides. Costs are ruled against the appellant. And it is hereby so ordered.

Petition denied.