Chronicles Newspaper & Browne v RL LRSC 31 (2015)

Chronicles Newspaper & Browne v RL [2015] LRSC 31 (2 July 2015)

Chronicles Newspaper & Browne v RL [2015] LRSC 31 (7 February 2015)

National Chronicles Newspaper and Philipbert S. Browne Represented by the Press Union of Liberia By and thru its President, Kamara A. Kamara of the city of Monrovia, Montserrado County, Republic of Liberia, PETITIONERS Versus The Government of Liberia by and thru the Ministry of Justice including the Liberia National Police, and the Ministry of Information also of the city of Monrovia, Liberia, RESPONDENT

PETITION FOR A WRIT OF PROHIBITION

Heard: March 19, 2015 Decided: August 7, 2015

MR. CHIEF JUSTICE KORKPOR DELIVERED THE OPINION OF THE COURT.

September 18, 2014, the National Chronicles Newspaper and Philipbert S. Browne, represented by and thru the Press Union of Liberia, by and thru its President, Kamara A. Kamara (“the petitioners”)filed a petition for the writ of prohibition before the Justice presiding in the Chambers of this Court against the Government of the Republic of Liberia, by and thru the Ministry of lnformation (“the respondent”).The petition, filed before His Honor Kabineh M. Ja’neh, Associate Justice, alleged essentially that the respondent, acting through the Liberia National Police violated the petitioners’ constitutional rights when the police invaded the premises of the National Chronicles Newspapers, arrested two staffers, seized computers belonging to the Newspaper, closed down its offices and deployed armed police officers at the said offices to prevent the National Chronicles Newspapers from operating.

Justice Ja’neh cited the parties to a conference on September 24, 2014. But before the conference could be held, the petitioners withdrew their petition, paid the accrued costs in keeping with law and filed an amended petition for the writ of prohibition on September 24, 2014. Because constitutional issues were raised and traversed in the amended petition for the writ of prohibition and the returns thereto, the Chambers Justice, after ordering the issuance of the alternative writ of prohibition, further ordered the Clerk of the Supreme Court to venue the petition before the full Bench of the Supreme Court.

To fully understand the background of the petition for prohibition, it is necessary that we provide a brief synopsis of the events leading to its filing. In February 2014, health authorities in Liberia reported the outbreak of the deadly Ebola virus in Lofa County, at the Guinea-Liberia border. The virus spread very fast; by August it was said that it had reached all fifteen counties. Reports further said that more than 3,000 persons had died from the disease in Liberia, Guinea and Sierra Leone and unless drastic actions were taken, about 1.4 million people were likely to be infected by January, 2015.

To “contain the spread and bring an end to the Ebola virus”, the President of Liberia declared a state of emergency on August 6, 2014. Under the state of emergency certain rights and privileges were suspended and measures taken, including: (a) quarantining persons confirmed to have the virus; (b) removing persons suspected of having the virus and subjecting them to treatment; (c) restricting the movement of people into areas not yet affected by the virus and (d) restricting the print, electronic or social media from sensational, false and/or inaccurate reporting that could cause panic and undermine the fight against the virus, etc. These measures were approved by the National Legislature.

On August 11, 2014, during the height of the Ebola crisis, the National Chronicles Newspaper, operated by Philipbert S. Browne, published a story in volume 21, #116 captioned: “New Interim Government Formed and Dr. James Teah Tarpeh is to head the Government?”

On Wednesday, August 13, 2014, another story was published by the Newspaper in its volume 21, #118 captioned: “President Sirleaf last days in office”.

The Government contends that the stories are heinous, disrespectful and detestable and were published at the time while the state of emergency was in force and effect; that if left unchecked, the stories would create fear and panic resulting into uprising and the destruction of lives and properties. Consequently, on August 16, 2014, the Government of Liberia, through Attorney Isaac Jackson, Deputy Minister for Information, Culture & Tourism, wrote the following letter to Mr. Philipbert S. Browne, Publisher of the Chronicles Newspaper:

REPUBLIC OF LIBERIA
MINISTRY OF INFORMATION,CULTURE AND TOURISM
P.O.BOX 10-9021-CAPITOL HILL
1000 MONROVIA, 10, LIBERIA
“Office of the Deputy Minister For Public Affairs
Cell:06523518
Email:whiekgablo.com

August 16, 2014

Mr. Philipbert S. Browne
Publisher
National Chronicles Newspaper
Monrovia, Liberia

Dear Mr. Browne:

The national security apparatus including the Liberia National Police has drawn the urgent attention of the Ministry of Information, Cultural Affairs and Tourism to ongoing investigations necessitated by at least two publications of the National Chronicles Newspaper in which it is claimed that the democratic order and consolidation processes of the country are being torpedoed and reversed by means not provided for by the Liberian Constitution in the summary replacement of the administration of President Ellen Johnson Sirleaf by a transitional administration. The National Chronicles also claims that these unconstitutional maneuvers have the backing and support of a friendly government with which the Liberian Government and people have long-standing and ongoing excellent relations. Subsequently, you have indicated on at least two radio stations including the national broadcaster and UNMIL radio that you possess evidentiary support for these grave charges.

Aware of the recent difficult history of our country, the security institutions are entreating these claims with the deserved level of seriousness, and have requested that the Ministry of Information, Cultural Affairs and Tourism immediately suspend all further publications of the National Chronicles Newspaper to enable a thorough investigation. We feel compelled to oblige this request and to dutifully inform you that the publication of the National Chronicles Newspaper is hereby suspended pending the conclusion of these investigations which we have been assumed will be conducted and concluded in the shortest possible time.

Needless to say, this action on the part of the Ministry of Information, Cultural Affairs and Tourism is necessitated by urgent national security concerns, and ought not to reflect on the enviable record of the Liberian Government in protecting freedom of speech and the press. In due time, and without compromising the ongoing investigations of the security, we intend to seek and explore remedial actions from the Press Union of Liberia on a number of ethical journalistic transgressions which we have subsequently discovered to be punctuated throughout the nationally disturbing publications leading to the unwarranted panic, fear and uncertainty in the society, at a time when the country is desperately coming together to tackle the dreadful Ebola virus.

Finally, we urge you to cooperate fully with these investigations and the suspension order herein contained.

Sincerely,

Atty. Isaac W. Jackson, Jr.
Deputy Minister for Press & Public Affairs

Cc: Hon. Christiana Tah
Minister, Ministry of Justice

Hon. Henry Boima Fahnbulleh
National Security Advisor

Hon. Christopher Massaquoi
Director, Liberia National Police

Hon. Fomba Sirleaf
National Security Agency

Mr. K. Abdullai Kamara
President, Press Union of Liberia

Mr. Stanley Seakor
President, Newspapers Publishers’ Association”

Five days after receiving the above quoted letter, Mr. Philipbert S. Browne wrote to Mr. Kamara A. Kamara, President of the Press Union of Liberia, the following letter:

“Philipbert S. Browne
NATIONAL CHRONICLES NEWSPAPERS
Monrovia, Liberia
+231886515516

August 21, 2014

Mr. Kamara A. Kamara

PRESIDENT
Press Union of Liberia
Clay Street
Monrovia, Liberia

Dear Mr. Kamara:

The National Chronicles Newspaper presents its compliments and has the honor to inform you that on Thursday, August 14, 2014 its offices were invaded by three trucks loads of heavily armed police from the Emergency Response Unit (ERU) of the Liberia National Police, who tear-gas(sed], broke the door to the main entrance of the office, entered thereupon illegally, seized and took away computers (two laptops), arrested two of the paper’s senior staff, and thereafter, shut down the paper without any court order in total disregard of our basic constitutional rights as a body corporate and a duly registered and licensed media entity operating under the laws of Liberia.

Further, as if this was not enough, the next morning, the Ministry of Information, acting in concert with the Police, wrote and informed us that the National Chronicles Newspaper is hereby shut down until further orders, and as a result of that illegal and arbitrary action. We are unable or cannot gain access to our offices, which is why this communication is not on our corporate letterhead.

We believe that the actions by these two institutions violate our basic constitutional rights and deny us the opportunity of due process of law and therefore, wish to seek your indulgence as the parent body of our media organs in the Republic of Liberia to challenge this arbitrary and illegal action in a court of law on our behalf to prevent the continued closure of our offices and the paper without due process.

Besides, in an apparent attempt to save face or to aptly put [it], as a subterfuge to justify their wanton and blatant disregard for press freedom and the right of privacy as guaranteed by the Constitution, the Liberia National Police, has initiated a charade in the form of an investigation mainly intended to distract public attention, and is now using that purported investigation to hold me down (Publisher, Mr. Philipbert Browne) unjustifiably.

Finally, we are available at all times to provide your good offices any information that you may need in the prosecution of a lawsuit against such illegal order on our behalf.

Thanks.

Very truly yours,

Philipbert S. Browne
PUBLISHER
NATIONAL CHRONICLES NEWSPAPER”

On September 8, 2014, the Director/Inspector General of the Liberia National Police wrote a letter to Mr. Philipbert S. Browne as follows:

“REPUBLIC OF LIBERIA

The Charles B. Alfonso Caine Building
Headquarters of the Liberia National Police
MINISTRY OF JUSTICE
Monrovia, Liberia

The Director/Inspector General
Cell No. 0770800100

Email:cmassaguol5@yahoo.com

JLNP/CCM/DoP/220/09/14/RL

September 8, 2014

Mr. Philipbert Brown
Publisher
Chronicle Newspaper Carey Street
Monrovia, Liberia

Dear Mr. Brown:

We acknowledge receipt of your text message dated September 8, 2014 addressed to the Director of Police informing of an Olympic meeting to be held in Washington D.C., the USA on Monday, September 15, 2014, and further informing that you will be leaving the country via SN Brussels by Friday, September 12, 2014, to attend said meeting with the intent to return to the country the following Friday. You further indicated that you are on your way to purchase your ticket for the trip on ground that “the Police has no further use for you”.

May we inform you that contrary to your assertion that “the Police has no further use for you”, the investigation is inconclusive and is ongoing, considering that in the Chronicle’s Publication you named a number of individuals, [both] in and out of government, who are alleged to be members of the said “Interim government formally named and styled “Liberia Leadership Forum (LLF), now referred to as Liberia Diaspora Development Rescue Committee (LDDRC)”, which the Police are in the process of contacting as a continuance of the investigation, and as such, your presence as Publisher of the National Chronicle Newspaper is vital (for the] conclusion of the investigation.

In consideration of the above, you are advised not to leave the bailiwick of the Republic of Liberia in order to assist in concluding the investigation.

Sincerely,

C. Clarence Massaquoi
DIRECTOR”

The foregoing provides the background for the petitioners’ petition for prohibition which we now quote verbatim for the benefit of this opinion:

“COME NOW THE PETITIONER, by counsels, to this Honorable Supreme Court of Liberia, and most respectfully prays Court and Your Honor for the issuance of the Alternative Writ of Prohibition against the within named Respondent for reasons as showeth to wit:

Basis for invoking Court’s Jurisdiction

a. This petition is urgent and it is the only timely remedy available to Petitioner because freedom of the press and the constitutional guarantee of the unlimited right of the public to be informed as contained and provided for under Article 1 5(c) of the 1986 Constitution of Liberia is being threatened, hijacked and trampled upon with arbitrary and illegal closure order of the offices of the National Chronicles Newspaper by the Liberia National Police and the Ministry of Information absent any judicial process consistent with due process of law;

b. That such illegal action is not only a painful reminder of the “old order” and of past military dictatorships where citizens and corporate entitles were subjected to all forms horrific and extra judicial actions but presents a “clear and present danger” to press freedoms, democracy and the rule of law and Is shrouded in attempts to reverse the democratic gains made by the Liberian people and thereby introduce an autocratic, dictatorial and authoritarian rule under the pretext of protecting “national security” only meant to and harass and intimidate the free press with creeping vestiges of press censorship in the offing, for which this Honorable Court’s urgent intervention is required to protect Petitioner’s agents, the National Chronicle Newspaper and Mr. Philipbert S. Browne and other would-be targets against these wanton and unconstitutional actions by the Respondent (Government) and its agents; that this petition is urgent and necessary to inhibit, restrain and prevent the unorthodox application of scare tactics and martial law practices adopted by the Government, the Respondent herein, to prevent it from demonstrating a callous and blatant disregard for press freedoms, individual rights as enshrined in the 1986 Constitution of Liberia;

c. That this Petition is urgent and necessary to prevent the Respondent from any further illegal acts and activities as it has done as demonstrably shown by its unprovoked attacks, the arbitrary arrest of two staffers of the National Chronicles Newspaper, and deployment of two trucks loads of armed police officers at the National Chronicles Offices since August 14, 2014 up to and including the time of the filing of this Petition, thus preventing the paper from operation and the disproportionate use of force by tear-gassing and breaking down the offices of the paper as though the National Chronicles Newspaper and Philipbert Browne were “armed combatants” which is not the case.

d. Further the Respondent has secretly deployed plain clothes security to monitor the dally activities of Mr. Philipbert S. Browne and prevent him from leaving the Republic of Liberia and that such illegal conduct is not only a serious threat to democracy, the rule of law, and freedom of movement but also violates Articles 13 of the 1986 Constitution of Liberia. This Petition calls for the review by this Honorable Court of such illegal conduct to protect the rights of freedom of movement, of assembly without any precondition as enshrined in the 1986 Constitution of Liberia consistent with due process of law;

e. The Respondent has reverted to the use of martial law not granted under the 1986 Constitution; has not said which specific laws or rights that have been suspended and which laws the National Chronicles Newspaper and Mr. Philipbert Browne have violated during the current state of emergency:

f. Deprivation of the right to public information under the state of emergency regarding which specific rights that have not been suspended contravenes Article 15(c), and the illegal seizure, denial of the rights of Mr. Philipbert S. Browne to due process of law and free movement violates Articles 20(a) and 13 of the 1986 Constitution.

g. Publication or declaration of certain suspended rights under the constitution “is not when or if the state (Respondent) so decides” instead, it is inarguably imperative constitutionally for any responsible government professedly guided by or adhering to the tenets of democracy and accountability to make such information public so that every citizen may know and properly govern himself, something the Respondent has woefully failed to do.

h. Mr. Philipbert S. Browne and the National Chronicles Newspaper are being subjected to foreign laws being executed in secrecy that are not made public and by the use of state-sponsored scare tactics and other grisly actions Inimical to any democratic environment, Petitioner feels threatened that press freedom Is now at risk by the illegal and arbitrary closure of the National Chronicles Newspaper, a body corporate.

i. The use of scare tactics to muzzle the free press into silence or submission as it is done in the case of the National Chronicles Newspaper is irregular and unconstitutional and does not constitute the powers granted the Respondent under the 1986 Constitution during a state of emergency. Instead, it is a draconian law employed to abuse the rights of innocent citizens and institutions not the least, the National Chronicles Newspaper and Mr. Philipbert S. Browne.

j. The rights granted to any branch of the Liberian Government, specifically the Respondent herein are clearly and explicitly defined by the 1986 Constitution and therefore, it is not what the Respondent (state) feels and thinks that is necessary and right to do but rather what is legal, and what powers the Respondent has under the Constitution of Liberia to do what it has done.

k. What the 1986 Constitution does not give a branch of the government, is excluded from its province; what it gives are clearly defined and provided in its specific provisions and articles. The power to issue writs, save ne exeat republica and restrain the movement of any Liberian citizen or halt or close down any corporation are judicial functions which can only be performed by a court of competent jurisdiction; the Respondent herein, lacks the legal authority or standing or cannot arrogate unto itself the authority to arbitrarily close down a legitimate corporate entity duly registered and licensed under the laws of Liberia without a court order, and by so doing, it has performed a judicial function not assigned to it by the Constitution of Liberia.

l. By concurring with the Respondent by means of a two-thirds majority votes of both Houses, the National Legislature has not, and there is evidence to the effect to prove whether directly or indirectly that the Legislature gave the Respondent any authority to perform judicial functions or to suspend certain rights, and were that to be the case, and assuming the Respondent does have such authorization, same would have been made public as a matter of right under Article 15 (c).

m. That in total violation of Article 3 of the 1986 Constitution, the Respondent has assumed and is now performing judicial functions by becoming a complainant and a judge and by illegally closing down offices absent court, order and prohibiting the free movement of the National Chronicles Newspaper and Mr. Philipbert S. Browne.

n. If the illegal closure order, the continued surveillance and the denial of the rights of free movement, association of Co-Petitioner, Philipbert S, Browne by the Respondent’s agents is maintained or allowed to persist absent any judicial order or review by this Honorable Court, pursuant to the constitutional phrase contained in Article 2(b) of the 1986 Constitution that: “The Supreme Court, pursuant to its power of judicial review, is empowered to declare any inconsistent laws unconstitutional” the Petitioner whose principal objective is to defend press freedoms and protect the rights of journalists to work, move and interact with the public freely without any hindrance, will inarguably suffer irreparable losses in stature and respect and Petitioner’s ability to function as an advocacy organization and parent body of all media institutions in Liberia would be viewed both nationally and internationally as submitting to an illegal and unconstitutional closure order by the agents of the Respondent and for these reasons this Honorable Court is called upon review and declare the conduct of the Respondent unconstitutional as a matter of law;

o. This Petition is necessary because it is petitioner’s constitutional right to be informed or told as to which curfew is imposed, whether it is an Emergency Health Curfew and for how long or Business Curfew and which line of businesses are prohibited to be sold, or which areas with high levels of Ebola outbreak are deemed “no go areas” for businesses and commuters and for how long, etc.

FACTUAL ALLEGATIONS

1. The Petitioner hereinafter referred to as [THE PETITIONER] is the parent umbrella body of all media institutions in the Republic of Liberia, of which, the National Chronicles Newspaper, a duly registered and licensed media organization is a member and Mr. Philipbert S. Browne is also a bona fide member. Petitioner is a legally registered corporate entity under the laws of Liberia and therefore has the legal standing or capacity to defend, speak for, and bring this cause of action for and on behalf of the National Chronicles Newspaper and Mr. Philipbert S. Browne. Attached hereto is Petitioner’s Articles of Incorporation marked as Exhibit “PUE/1”, outlining its functions and responsibilities to form a cogent part of this petition.

2. Further to count 1 above Petitioner says and submits that as parent body of all media entities and practicing journalists, ‘Petitioner was requested to bring this cause of action against the Respondent in a representative capacity as shown by the request contained in the National Chronicles’ letter beseeching Petitioner to challenge the illegal closure order of its offices by the Respondent herein. Hence, Petitioner has both the legal capacity and legal standing in a representative capacity by such instrument to bring this action on behalf of the Petitioner before this Honorable Supreme Court of Liberia to challenge the illegal and unconstitutional actions of the Respondent. Petitioner hereby attaches a copy of the Chronicles’ letter asking Petitioner to bring this cause of action marked as Exhibit “PUE/2″.

3. The Respondent hereinafter referred to as (THE RESPONDENT] is the sovereign Government of the Republic of Liberia whose most important duties by and thru its agencies, are to protect life and property, uphold the rule of law, press freedom, and create the necessary conducive environment for media entities to operate and Liberian citizens to move freely without any molestation or intimidation. Petitioner submits that the functions and activities of these agencies of the Respondent are disseminated through the media for public information and consumption and are consistent with the constitutional guarantee of the public’s unlimited right to information as provided for under Article 15 (c) of the 1986 Constitution of Liberia which expressly states as follows: ” In pursuance of this right, there shall be no limitation on the public right to be informed about the government and its functionaries.”

4. Petitioner submits and says that as statutory agencies of the Respondent, the Liberia National Police and the Ministry of Justice including all agencies of government are required to perform their respective duties within the confines of the law; the closure of any corporate entity duly licensed and registered under the laws of Liberia is a judicial order and can only be carried out upon the issuance of a proper precept duly issued by a court of competent jurisdiction, followed by a hearing consistent with due process of law. No agency of government can assume or perform judicial functions as both a complainant and a judge as in the instant case. Your Honor is most respectfully requested to take judicial notice of the statutory functions of the Liberia National Police and the Ministry of Justice.

5. Further to count 4 above, Petitioner says the Respondent herein by and thru its agents listed inter alia, absolutely unmindful of its responsibilities to be guided by the 1986 Constitution of Liberia, and seemed quite determined and adopting an intolerant and aggressive posture to unjustifiably abuse and violate the constitutional rights of the National Chronicles Newspaper and Mr. Philipbert S. Browne, on August 14, 2014, at about 1700hrs, without any provocation and justification, invaded the premises of the National Chronicles Newspaper, barricaded the entire surroundings with heavily armed police guards (ERU) from the Liberia National Police and broke into the offices with hammers, tear gas its officials and staff without any warrant duly issued by a court of competent jurisdiction, and thereafter, shut down the offices, seized and took control of computers and other office materials and arrested two senior staffers without giving any explanation for their actions in total violation of the rights enshrined in the 1986 Constitution.

6. Petitioner says that the petition for a Writ of Prohibition to restrain, inhibit and prevent such arbitrary exercise and abuse of power is the proper remedy available to Petitioner because the Honorable Supreme Court of Liberia has held in many of its opinions, and it is now a principle of law, practice and procedure in this jurisdiction, that the remedial Writ of Prohibition “does not only prevent, avert or discourage the illegal performance of any act by a judicial or administrative official or citizen but also is intended to undo an illegal act that has already been, or is being performed. See, Sesay vs. Badio, 37 Liberian Law Reports (37LLR, 359), syllabus 9 and all other opinions of this Honorable Court regarding the issuance of the remedial writ of prohibition.

7. Petitioner says the arbitrary closure of the offices of the National Chronicles Newspaper and the denial of the rights of Mr. Philipbert Browne to move freely throughout Liberia by the Respondent’s agents are illegal and unconstitutional and prohibition will surely lie to “prevent, avert or discourage the illegal performance of such acts by the Liberia National Police and the Ministry of Justice and undo the illegal deployment of armed police guard to the offices of the National Chronicles Newspapers and halt the continued surveillance of the movements of Mr. Philipbert S. Browne by plain clothes security personnel acting under the directives of the Minister of Justice and the Liberia National Police.

8. Further, Petitioner says and avers that while the National Chronicles Newspaper and Mr. Philipbert S. Browne were nursing the injuries sustained as a result of the disproportionate use of force on the premises of the National Chronicles Newspaper, the illegal seizure of the computers and arrest of two staffers of the newspaper, the Ministry of lnformation, an agent of the Respondent wrote the management of the National Chronicles Newspaper on August 16, 2014, and advised that the management of the paper cooperate fully with the illegal closure order and the suspension of its publication under the pretext that it is being investigated simply to justify unconstitutional actions of the Respondent and its agents. Attached hereto is a copy of the letter written by the Ministry of Information marked as “Exhibit PUE/3”.

9. That Petitioner says the National Chronicles has not breached any law and has not been informed of violating any law; and cognizant of its social responsibility and its rights as a body corporate, the National Chronicles Newspaper has been operating as a law abiding entity over the years, entertaining, educating and informing the Liberian public about the functions and responsibilities of the Respondent and its agents without fear and favor. Petitioner gives notice to Court and Your Honor to produce witnesses at a conference to the effect that since the offices of the National Chronicles Newspaper were summarily shut down without any court order, the Respondent is yet to give reason for such action.

10. What is baffling to Petitioner is that the National Chronicles Newspaper and Mr. Philipbert S. Browne do not know or have not been told, which of course is their right, the specific rights under the 1986 Constitution that have been suspended for which the use and enjoyment of freedoms of the press, of association and free movement of the National Chronicles Newspaper and Mr. Browne have been unduly restrained, inhibited and prohibited by the Respondent.

11.Further, by the clear and unequivocal language of Article 88 of the 1986 Constitution, read together with Article 15(c), the Respondent, in the proper exercise of its powers, ought to have, as a matter of law, following its engagement with the National Legislature, should have declared or made public those rights under the 1986 Constitution that are, or will be suspended during the state of emergency. This, the Respondent has failed to do so, thus depriving the public and petitioner of the constitutional guarantee of the right to public information within the context of Article 15(c).

12. Petitioner hereby strenuously contends and submits that the publication or declaration of certain suspended rights under the constitution “is not when or if the state so decides” but rather, it is inarguably imperative constitutionally for any responsible government professedly guided by or adhering to the tenets of democracy and accountability to make such information public so that every citizen may know and properly govern himself, something the Respondent has woefully failed to do.

13. Also, Petitioner argues that this petition is predicated upon the fact that the Respondent herein has openly demonstrated its flagrant disregard for the constitutional rights of Mr. Philipbert S. Browne and the National Chronicles Newspaper by subjecting them to foreign laws that are not made public and by the use of state sponsored scare tactics and other grisly actions inimical to any democratic environment. Petitioner contends that the use of scare tactics to muzzle the free press into silence are irregular and unconstitutional and do not constitute the powers that were granted the Respondent under the 1986 Constitution during a state of emergency. Instead, they are draconian actions employed to abuse the rights of innocent citizens and institutions not least, the National Chronicles Newspaper and Mr. Philipbert Browne.

14. Petitioner say the rights granted to any branch of the Liberian Government are clearly and explicitly defined by the 1986 Constitution and therefore, it is not what the Respondent (state) feels and thinks is necessary and right to do in abusing or trampling the rights of a citizen but rather what is legal, and what powers the Respondent has under the Constitution of Liberia to do what it has done. Further, by law and practice, what the Constitution does not give a branch of government, is excluded from its province; what it gives are clearly defined and provided in Its specific provisions and articles. The power to issue writs, save ne exeat republica and restrain the movement of any Liberian citizen or halt or close down any corporation are judicial functions which can only be performed by a court of competent jurisdiction. Respondent herein, lacks the legal authority or standing or cannot arrogate unto itself the authority to arbitrarily close down a legitimate corporate entity duly registered and licensed under the laws of Liberia without a court order, and by so doing, it has performed a judicial function not assigned to It by the Constitution of Liberia.

15. Moreover, since concurring with the Respondent by means of a two-thirds majority votes of both Houses, the National Legislature has not and there is no evidence to prove whether directly or indirectly that it gave the Respondent authority to suspend certain rights and were that to be so, and assuming the Respondent does have such authorization, same is yet to be made public and therefore does not exist as a matter of right under Article 15 (c).

16. Further, Petitioner contends [that] whether during a state of emergency or normalcy, the constitutional delineation of power under Article 3 of the 1986 Constitution remains sacrosanct, thus, no matter the situation, the Respondent herein is estopped and cannot be both a complainant and a judge-it cannot assume whether directly or indirectly any judicial power or authority to restrain or prohibit the peaceful assembly, freedoms of the press and free movement of any citizen without court order consistent with due process of law. Petitioner says in total violation of Article 3 of the 1986 Constitution, the Respondent has assumed and is now performing judicial functions by illegally closing down officials absent court order and prohibiting the free movement of the National Chronicles Newspaper and Mr. Philipbert S. Browne.

17. Petitioner submits that under the 1986 Constitution, specifically Article 20 (a)-the due process principle provides an accused an impartial and disinterested forum whether civil or criminal; it sets the basis for a tripartite arrangement, i.e. a complainant, accused and the tribunal or court presided over by an objective and independent referee. Article 3 of the 1986 Constitution divides the Liberian government into three branches, with each having well defined functions under the principle of coordination, notwithstanding, with none being a subservient to the other to ensure checks and balances. Petitioner says any legislative enactment whether by means of a joint resolution, treaties or protocols or any act originating from any of the two Houses or the executive, should be promulgated for public knowledge and guidance. Petitioner says the National Chronicles Newspaper and Mr. Philipbert Browne are quite unaware which law or which constitutional provision under the current state of emergency that has been suspended and that they have violated for which they have been subjected to all forms of harassment threats and brutality by the Respondent herein.

18.That Petitioner says the illegal and unauthorized invasion, seizure and arrests of two of the National Chronicles’ computers and senior staffers without any warrant duly issued by a competent court of jurisdiction is in violation of Article 21(b) of the 1986 Constitution which expressly states: “No person shall be subject to search or seizure of his person or property, whether on a criminal charge or any other purpose, unless upon warrant lawfully issued upon probable cause supported by a solemn oath or affirmation, specifically identifying the person or place to be searched and stating the object of the search; provided, however, that a search or seizure shall be permissible without a search warrant where the arresting authorities act during the commission of a crime or in hot pursuit of a person who has committed a crime.”Your Honor is most respectfully requested to take judicial notice of Article 21(b) of the 1986 Constitution of Liberia.

19. Further, Petitioner says the conduct of the Respondent through its agents is also in total violation of Article 20(a) of the 1986 Constitution which expressly states: “No person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with the provisions laid down In this Constitution and in accordance with due process of law.” Petitioner says the arrests of two staffers of the paper and the seizure of computers followed by the continued barricade of armed flaunting policemen around the offices of the paper and its closure absence any warrant are part of the scare tactics employed by the Respondent which are in contravention of the rights contained in the 1986 Constitution of Liberia.

20.That Petitioner says the National Chronicles is a civilized corporate body which is involved in gathering, writing, editing and publishing news stories for public consumption and is accountable for whatever abuse thereof and that such right is consistent with Article 15(a) of the 1986 Constitution which states “…shall not be curtailed, restricted or enjoined by government save during an emergency declared in accordance with this Constitution.”Your Honor is most respectfully requested to take judicial notice of the constitutional provision cited herein.

21. Also, Petitioner says the Respondent has violated the constitutional rights of Mr. Philipbert S. Browne, the Publisher of the National Chronicles by issuing orders and informing him through a communication that he is prevented from leaving Liberia. Petitioner says such conduct absent any court order consistent with due process of law is in total violation of Article 13(a) of the 1986 Constitution which expressly states: “Every person lawfully within the Republic shall have the right to move freely throughout Liberia, to reside in any part thereof and to leave therefrom subject however to the safeguarding of public security, public order, public health or morals or the rights and freedoms of others.” Petitioner says the Publisher of the National Chronicles is separate and distinct from the corporation, but was informed through a communication issued by the Respondent’s agent, the Liberia National Police that we cannot leave the country and as at the filing of this Petition he has been fully restricted to his Paynesville residence and thereabouts and his activities monitored by plain clothes security in violation of his constitutional rights. Petitioner hereby attaches a copy of the letter written by the Director of Police marked as Exhibit “PUE/4”.

22. Petitioner says the constitutional rights of the National Chronicles Newspaper and that of Mr. Philipbert S. Browne as provided for under Article 21 (c) of the 1986 Constitution have been continually violated in that since the illegal closure order of its offices and the arbitrary restriction imposed on Mr. Browne not to leave the country, the Respondent for almost 36 days is yet to state or provide any justifiable reason for its conduct. Article 21 (c) of the 1986 Constitution expressly states: “Every person suspected or accused of committing a crime shall immediately upon arrest be informed in detail of the charges, of the right to remain silent and of the fact that any statement made could be used against him in a court of law. Such person shall be entitled to counsel at every stage of the investigation and shall have the right not to be interrogated except in the presence of counsel. Any admission or other statements made by the accused in the absence of such counsel shall be deemed inadmissible as evidence in a court of law.”

23. Petitioner says when the Publisher of the National Chronicles Newspaper was invited by state security, agents of the Respondent herein, they had nothing reasonable and substantive to say for the damages done to the offices of the newspaper during their illegal closure order, instead, the authorities were asking for “assistance” from the Publisher to help them contact their would-be targets or victims for harassment something which was out rightly rejected. Petitioner avers that such crude and uncivilized persuasive games hatched to harass and intimidate private citizens for pecuniary purposes as demonstrated by state security begging the Publisher to call names and provide contact numbers is unconstitutional and this Honorable has the constitutional power to declare this crude behavior null and void as a matter of law.

24.That Petitioner says this cause of action is filed to avert the willful, deliberate and arbitrary abuse of power and of the rights of the National Chronicles and its Publisher, Mr. Philipbert S. Browne by the Respondent and its agents under the pretext of national security and this Honorable Court should take judicial notice of the disproportionate use of force absent any court order against the offices of the National Chronicles Newspaper.

25. Petitioner says the right to public information is constitutionally sacrosanct and that this Petition is necessary because it is petitioner’s constitutional right, like any Liberian citizen to be informed or told as to which curfew is imposed, whether it is an Emergency Health Curfew, and for how long, or Business Curfew and which line of businesses are prohibited to be sold, or which areas with high levels of Ebola outbreak are deemed “no go areas” for businesses and commuters and for how long, etc. Petitioner says the Respondent has grossly violated the constitutional guarantee of the public unlimited right to information which cannot be curtailed by a state of emergency.

26. Petitioner says the Respondent by and thru its agencies, i.e. the Liberia National Police, Ministries of Justice and Information, has no justifiable reason to invade and shut down the Chronicles Newspaper without any court order and that such illegal action is not only a painful reminder of the draconian tactics of yester–years but also part of the scare and harassment policy employed by the Respondent to intimidate the free press and thereby unduly trample underfoot press freedom, democracy and the rule of law. Your Honor is most respectfully requested to take judicial notice of the conduct of the Respondent.

Wherefore and in view of the foregoing, it is the prayer of movant that your honor will:

1. Grant Petitioner’s Petition and issue an Alternative Writ of Prohibition against the Respondent to enjoin, stop and Stay any further actions or proceedings on the part of the Respondent in preventing the National Chronicles from operation;

2. Order issued the Peremptory Writ of Prohibition after the conduct of a conference with the parties and issue other imperative remedial actions to prevent and avert any further abuse and violations of the rights of the National Chronicles Newspaper, a body corporate, and that of Mr. Philipbert S. Browne, a peaceful and law abiding citizen of the Republic of Liberia;

3. Order that the parties return to Status Quo Ante pending the final determination of this petition;

4. Make or issue any instruction that will compel the Respondent herein to file its Returns and show cause why the Peremptory Writ cannot be issued;

5. Set aside any argument regarding the State of Emergency, curfew and the so-called fight against Ebola on grounds that free speech and freedom of the press are not Inhibited or restrained during state of emergency or curfew for whatever reasons;

6. Pass any order, make any declaration pursuant to the intent and purpose of the constitutional guarantee of the unlimited rights of the public to be informed and pass any order that will ensure and guarantee unto Petitioner and all media institutions in the country a free and unfettered environment void of any harassment and intimidation that will eventually ensure press freedom;

7. Order or declare the purported restriction order preventing Mr. Philipbert S. Browne from leaving Liberia as imposed by the Liberia National Police absent any court order as constitutionally void ab initio;

8. Grant unto Petitioner these and all further relief that Your Honor will determine as fair, just, legitimate and legal to advance the aspirations of press freedom, rule of law and democracy and that will protect the current democratic process; and

9. Authorize the Respondent to initiative legitimate processes to avert a recurrence of such atrocious and unorthodox conduct of the Respondent and ensure that press freedom and the rule of law is genuinely protected at all times according to the laws and constitution of Liberia.”

On October 14, 2014, the Government of Liberia filed its returns to the petition for the writ of prohibition. We quote, also, verbatim, the returns to the writ of prohibition.

Respondents’ Returns

Respondents in the above entitled Cause of Action most respectfully pray Your Honors and this Honorable Court to deny and dismiss the Petition for a writ of Prohibition for the following reasons to wit:

Basis for Denying the Petition for Prohibition and Refusing Jurisdiction

a. Respondents say as to the entire petition, same is a fit subject for dismissal because the Petitioner lacks capacity and standing to file this petition before this Honorable Court. Respondents say that the National Chronicles, a corporate entity and Philipbert S. Browne, a natural person, elected to file this petition by and thru the President of the Press Union of Liberia, Kamara A. Kamara, another legal entity which has acted without a board resolution. Respondents say corporate actions are taken pursuant to aboard-resolution and the absence thereof renders such action illegal and without authority. The entire petition should be dismissed and respondents so pray.

b. Respondents say that the Supreme Court of Liberia held in a case: Concerned Sector Youth versus LISGIS, et al. decided. 30th August A.D. 2010 March Term that the purpose of the law relating to standing is to protect against an improper plaintiff and ensure the benefit of the real adverse party who is entitled to a relief. The Court held that even if it were established that the one instituting an action is a Chairperson of the Board of an Organization, the said Chairperson would still need authorization, (a board resolution), from the organization to institute a law suit in such a representative capacity. This not being the case and even worst, the Press Union being a separate legal entity, the said petition is a fit subject for dismissal.

c. Respondents submit that it is a principle of law that in order to benefit from a set of laws, you must first obey said law. Respondents say that Article (15c) of the 1986 Constitution of Liberia provides thus: “in pursuance of this right, there shall be no limitation on the public right to be informed about the government and its functionaries”. Respondents submit that publications about the term of the Government being over, the establishment of an interim government among others does not qualify under said provision. Respondents submit that reference to article (15c) is merely intended to mislead this Honorable Court and should therefore be ignored and the entire petition dismissed.

d. Further to count (c) above, Respondents say that the publication of the expiration of the term of the Government prematurely borders on National security which even the code of the Press Union prohibits the publication of such materials. [See Article 22 of the Press Union Code of Ethics]

e. Further to count (a) above, Respondents say that at no time have they denied press freedom, neither will they threaten to hijack such freedom. The averment that there was an arbitrary and illegal closure of the Chronicles Newspapers is calculated to damage the reputation the Respondents have built with respect to press freedom to include the decriminalization of actions pursuant to press freedom. Count (a) is grossly misleading and should therefore be ignored and the entire petition dismissed and respondents so pray.

f. Respondents say as to count (b) of the petition that had petitioners elected to abuse press freedom, the ”Table Mountain Declaration” would not have been ratified. This Government is on records for going to the extreme to ensure press freedom by passing the Freedom of Information Act. There are several Newspapers operating; the narratives of the past Governments do not conform to the reality and therefore same should be ignored and the entire petition dismissed and Respondents so pray.

g. Further to count (e) above, Respondents say the National Chronicles Newspaper is a separate legal entity that can sue and be sued and not an agent of the Press Union. The fact is that as an entity engaged in press activities it sought and obtained membership from the press union, an organization set up to monitor and aid in the regulation of press and press related entities. The National Chronicles Newspaper is responsible for its own actions which are not transferrable to the Press Union under the doctrine of Respondent superior. The averment that the National Chronicles Newspaper is an agent of the Press Union was deliberately inserted to mislead the Court to believe that an action against the National Chronicles Newspaper would maintain an action against the Press Union.

h. Respondents say that as to count (c) of the petition is merely a recital of words that have no probative value with respect to this petition and therefore same should be ignored and the entire petition dismissed.

i. Respondents say as to count (d) of the petition, that it is an elementary, although cardinal principle of law that instruments relied upon in support of a pleading must be attached thereto. Respondents submit that the names of the alleged staffers are not stated, the plate number of the trucks allegedly used not mentioned, the photographs of officers allegedly on the said duty not attached hence the averment constitute mere thoughts of the Counsel for the petitioner and is far from the truth. Fabricated information has no place before this Honorable Court and hence said count should be ignored and the entire petition dismissed.

j. Respondents say as to count (e) of the petition, the only relevant sentence is the right for Liberians to leave and to enter Liberia at any time. The other portion of Article 13b is not applicable; hence to cite the entire provision is an attempt to mislead this Honorable Court.

k. Further to count (i) above respondents say that again, petitioner did not attach an employment letter neither did he name the so called secret security. Count (e) of the petition is false, misleading and constitutes an unprofessional behavior on the part of a lawyer. [See Rule 11 of the Code of Moral and Professional Ethics of the Liberia National Bar Association].

l. Respondents say as to count (f) of the petition, that same is unintelligible and presents an academic confusion. Respondents say that the second paragraph of Article 2 of the 1986 Constitution of the Republic of Liberia and not “2b” as stated by the petitioner does vest in the Supreme Court the authority to declare inconsistent laws unconstitutional but how is this applicable? Respondents say that the petitioner has not attacked the unconstitutionality of any law and therefore said count should be ignored and the entire petition dismissed.

FACTUAL ALLEGATIONS

1. That truly the Press Union of Liberia is one of the bodies responsible for monitoring the press and press related activities; the Ministry of Information is the Regulatory Agency of Government under which the Press Union and separate press entitles operate consistent with the regulations promulgated.

2. Further, the Press Union of Liberia cannot institute an action for and on behalf of its press entity like the National Chronicles Newspaper without first obtaining the expressed authority from the board by way of a resolution. The President of the Press Union acted unilaterally and without authority. The petition should be dismissed.

3. That assuming without admitting that the letter from the National Chronicles Newspaper met the legal requirement from its board, yet there is no board resolution from the board of the Press Union authorizing the President to file an action. Respondents maintain that the Petitioner lacks legal standing to sue. For to entertain this petition would be opening a Pandora box wherein officers of professional organizations like the Press Union of Liberia will act without obtaining the expressed authority from the Board of Directors by way of resolution.

4. That the respondents have and will at all times perform their constitutional duties and so the recital of same is irrelevant.

5. That counts four and five of the statement of facts are repetitive and should be ignored. Respondents maintain that they have at all times acted within the frame work of the law. Respondents submit that the suspension of the National Chronicles Newspaper was an administrative action consistent with the regulation promulgated by the Ministry of Information as well as the Code of Conduct of the Press Union of Liberia. Your Honors are respectfully requested to take judicial notice of a copy each hereto attached and marked Exhibit “R/1 in bulk”.

6. That count six of the statement of facts is a recital of the law that Respondents know. Respondents submit that the key words are ‘illegal acts’. Respondents have not engaged in an illegal act against the petitioner and hence prohibition will not lie.

7. That counts seven and eight of the statement of facts is false and misleading. Respondents say that the mere fact that the Counsels of the petitioner could read the letter from the Ministry of Information and say that the Ministry asked the National Chronicles Newspaper to cooperate with the illegal closure; they have acted deliberately to mislead this Honorable Court and have therefore acted unprofessionally. Your Honors are respectfully requested to read Petitioner’s exhibit “PUE/3”.

8. That count nine of the statement of facts besides being self serving is totally untrue. Respondents say that the Petitioner admitted being a member of the Press Union and yet violated Articles (13, 15, 19 and 22) of the Code of Conduct of the Press Union of Liberia. Count (9) should be ignored for its falsity.

9. That as to counts ten and eleven of the statements of facts, Respondents say that same are mere fabrications. Respondents say that the restatement of the Constitutional provisions does not and cannot mean that the respondents violated the Constitution. There being no evidentiary material attached, the said counts have no value and should be ignored.

10. That as to count twelve of the statement of facts, Respondents say that consistent with portion of Article 15(a) cited by petitioner’s counsels, the National Chronicles Newspaper was suspended subject to giving account of its publications. Clearly, there is no violation of the 1986 Constitution as petitioner wants this court to believe. The alternative writ ought to be quashed and the entire petition dismissed.

11. That as to count thirteen of the statement of facts, Respondents say that petitioner’s “PUE/4” is clear and does not constitute an “Order” not to leave the Country. Respondents say that consistent with Article 15a of the 1986 Constitution, and the fact that our mode of investigation is confrontational, Mr. Philipbert S. Browne who had revealed the names of the proponents of the Interim Government ought to confront them for justice and fair play. There is nothing unconstitutional about petitioner’s “PUE/4”.

12. That as to count fourteen of the statement of facts, Respondents say that the petitioner knows that he is working with the Police during the investigation consistent with our laws and practice and therefore the citing of various constitutional provisions has no relevance and should therefore be ignored and the petition dismissed.

13. That as to count fifteen of the statement of facts, Respondents say the merits or demerits of an investigation held with the Liberia National Police is not and cannot be the basis of a petition for the writ of prohibition. Said count is a fit subject for dismissal and Respondents so pray.

14. That as to counts sixteen and seventeen of the statement of facts, Respondents say that they are a duplication of several counts which have been addressed in these returns and therefore have no probative value and should therefore be ignored and the entire petition dismissed.

15. That Respondents deny all and singular the counts in petitioner’s petition not made subject of special traverse herein.

WHEREFORE AND IN VIEW OF THE FOREGOING, Respondents pray that the entire petition be dismissed, Co-respondent the Liberia National Police be allowed to continue its investigation and grant unto Respondents any and all further relief as Your Honor may deem just, legal and necessary.

Both parties filed their respective legal briefs and arguments were entertained by this Court on March 18, 2015.

There are many issues, including constitutional issues that were raised in the respective pleadings and briefs filed by the parties and argued before us. We shall first address the issue of standing. This is because this Court has repeated held that standing involves jurisdictional issue which concerns the power of courts to hear and decide cases and does not concern the ultimate merits of substantive claims involved in the action. Before a matter can be decided on its merits, the issue of standing must first be decided. And if it is determined that the plaintiff lacks standing to institute the action, the action will be dismissed without deciding the substantive issues raised in the case.

The respondent has argued at length, that the petitioner lacks standing to bring this action. According to the respondent, the National Chronicles Newspaper, a corporate entity and Philipbert S. Browne, a natural person, elected to file this petition for prohibition by and thru the Press Union of Liberia, another legal entity, without a board resolution; that there is no board resolution from the Board of Directions of the National Chronicles Newspaper authorizing the request made to the Press Union of Liberia to file this action for and on behalf of the National Chronicles Newspaper; and that there is no board resolution, also from the Board of Directors of the Press Union of Liberia authorizing and approving the filing of the action by the Press Union of Liberia. The respondent maintained that corporate actions are taken pursuant to board resolutions and that the absence thereof renders such actions illegal and without authority.

The petitioner, on the other hand, contended that the Press Union of Liberia is the parent and umbrella body of all media institutions in the Republic of Liberia of which the National Chronicles Newspaper is a duly licensed and accredited member; that Mr. Philipbert S. Browne is a practicing journalist and a bona fide card carrying member of the Press Union, as such, as part of its solemn responsibility to speak for and on behalf of media institutions, the Press Union has the authority to bring this suit on behalf of both the National Chronicles Newspaper and Mr. Philipbert S. Browne.

Before delving into the issues and counter issues raised by the parties, let us first settle as to who the petitioner is that Instituted this action. The question is, was this prohibition action instituted by the Press Union of Liberia as the party petitioner under the theory that it is the parent body and umbrella group of all media institutions of which the National Chronicles Newspaper and Mr. Philipbert S. Brown are full-fledged members? Or, was the action instituted by the National Chronicles Newspaper whose offices were allegedly shut down, computers taken away and some staff members arrested? Or, was the action brought by Philipbert S. Browne for himself and on behalf of the Chronicles Newspaper in his capacity as the publisher of the National Chronicles Newspaper? Or, better still, was the action jointly brought by both the National Chronicles Newspaper and Mr. Philipbert S. Browne?

As indicated, the caption of this petition reads: “National Chronicles Newspaper and Philipbert S. Browne represented by the Press Union of Liberia by and thru its President, Kamara A. Kamara of the city of Monrovia, Montserrado County, Republic of Liberia, Petitioners versus[t]he Government of Liberia by and thru the Ministry of Justice including the Liberia National Police, and the Ministry of Information also of the City of Monrovia, Liberia, Respondent”.

From the caption, we see that the National Chronicles Newspaper and Philipbert S. Browne are designated as the parties bringing this action, with the Press Union as their agent through whom the action was filed. In other words, the caption of this case does not designate the Press Union of Liberia as the petitioner, or party in interest who instituted the action. Rather, the Press Union is depleted as an agent acting in a representative capacity for the purpose of instituting this action and for the service of process. To properly designate the Press Union as a party, the caption of the case should have read: “The Press Union of Liberia, by and thru its President, Kamara A. Kamara v. The Government of Liberia by and thru the Ministry of Justice, including the Liberian National Police, and the Ministry of Information.”

But having designated the National Chronicles Newspaper & Philipbert S. Browne as the petitioner and the Press Union as the agent through whom the action was filed, we see in the body of the petition, the assertion made by the Press Union that it is in fact the party petitioner. This is what count 1 of the petition says under what is styled Factual Allegations:

1. “The Petitioner hereinafter referred to as [THE PETITIONER] is the parent umbrella body of all media institutions in the Republic of Liberia, of which, the National Chronicles Newspaper, a duly registered and licensed media organization is a member and Mr. Philipbert S. Browne is also a bona fide member. Petitioner is a legally registered corporate entity under the laws of Liberia and therefore has the legal standing or capacity to defend, speak for, and bring this cause of action for and on behalf of the National Chronicles Newspaper and Mr. Philipbert S. Browne. Attached hereto is Petitioner’s Articles of Incorporation marked as Exhibit “PUE/1”, outlining its functions and responsibilities to form a cogent part of this petition.

Then, in count 2 of the same petition, the Press Union, while still maintaining that it is the party petitioner, says that it “was requested to bring this cause of action against the Respondent in a representative capacity…”Count 2 says:

2. Further to count 1 above. Petitioner says and submits that as a parent body of all media entities and practicing journalists, ‘Petitioner was requested to bring this cause of action against the Respondent in a representative capacity as shown by the request contained in the National Chronicles’ letter beseeching Petitioner to challenge the illegal closure order of its offices by the Respondent herein. Hence, Petitioner has both the legal capacity and legal Standing in a representative capacity by such instrument to bring this action on behalf of the Petitioners before this Honorable Supreme Court of Liberia to challenge the illegal and unconstitutional actions of the Respondent. Petitioner hereby attaches a copy of the Chronicles’ letter asking Petitioner to bring this cause of action marked as Exhibit “PUE/2”. [Emphasis supplied].

We must note, at this juncture, that a party to a case and an agent or representative of that party for the purpose of instituting the action are not one and the same. A party, [the real party of interest] is the person or entity who, by substantive law, possesses the right sought to be enforced, and not necessarily the person who might also benefit from the recovery or final outcome of the cause. Black’s Law Dictionary, 9th Edition.

An agent, on the other hand, is a representative; one who is authorized to act for or in the place of another. The agent normally binds not himself, but his principal by the contracts or decisions he makes. Ibid. Thus, one cannot claim to be a party to a case and at the same time files the said case in a representative capacity. The agent and the principal are not necessarily the same. And certainly in the instant case, the National Chronicles Newspaper and Philipbert S. Browne on the one hand(principal) and the Press Union of Liberia on the other hand (the agent) are not the same. They are separate and distinct persons in the eyes of the law.

So, with the caption of the petition saying one thing and the body of the same petition suggesting another, there appeared to be a confusion regarding who actually instituted this action. But this Court had decided long ago, that it is not the caption of an action which is controlling in such situation, but rather the averments in the body of the case to which we must look to determine the cause of action. Mathies & Fima Captical Corp. Ltd. v. Alpha lnternational Investment Ltd. [2001] LRSC 21; 40 LLR, 561 (2001).

We recognize and are aware that the principle of law in the Mathies & Fima case cited above relates to the determination of a cause of action; here, we want to determine who the party is. But our position is that when the Supreme Court says that the body of the action controls in such situation, it does not only mean controlling the determination of the cause of action. What it means is that the body of the action is where the intent of the pleader is as to the statement of the cause of action, the party, the claim or demand and defense, etc. Therefore, where there is an apparent conflict between the caption and the body of the action as to who the party is, we must look to the body of the action to decide.

From all indications, as gathered from the facts and circumstances, particularly the averments contained in the body of the petition, it is clear that the real party of interest in this case is the National Chronicles Newspaper and Philipbert S. Browne. They are the ones who complained of the alleged illegal action of the Government; they are the ones who allegedly suffered some concrete, particularized and actual or imminent invasion of a legally protected interest or right; and they are the ones in whose favor a finding is likely to redress or remedy the wrong or injury complained of. The caption of the case designated them as the parties and rightly so. And counts 1 and 2 of the petition referred to them as the parties in whose behalf the petition for prohibition was filed. We hold, therefore, that the National Chronicles Newspapers and Philipbert S. Browne are the real parties in this case. The Press Union itself admits that it brought this action only in a representative capacity. Incidentally, the caption and body of this petition are in accord as to who the real parties of interest are. Therefore, any reference to the Press Union of Liberia as being the party is misguided and is therefore of no legal consequence.

But the question is, can the Press Union of Liberia legally bring this action on behalf of the National Chronicles Newspaper and Philipbert Browne? Our answer is no! The Press Union of Liberia does not have the legal standing to bring this action on behalf of the National Chronicles Newspaper and Philipbert S. Browne without express authorization.

We are in full agreement with the respondents’ contention that corporate actions are taken pursuant to board resolutions and the absence of such resolutions renders such actions illegal and without authority. This means that any request made by the National Chronicles Newspaper to the Press Union for the latter to file a law suit on behalf of the former should have been through a board resolution indicating that the Board of Directors of the National Chronicles Newspaper, the highest decision making body of that entity, authorized and approved the action. In the case before us we see that, Philipbert S. Browne wrote a letter to the President of the Press Union of Liberia, Kamara A. Kamara, requesting the Press Union of Liberia to represent the National Chronicles Newspaper and himself. The letter was signed in the capacity of its author as the Publisher of the National Chronicles Newspaper. A publisher of a newspaper is the person who is in the business or profession of commercial production, issuance and circulation of the newspaper. While generally, a publisher is responsible for the overall management of a newspaper operation, a publisher is not always the owner of the newspaper and may not be a member of its board. In some cases, the publisher of a newspaper is just an employee hired by the owner. Unfortunately, the Articles of Incorporation of the Chronicles Newspaper is not part of the records of this case to indicate otherwise. So, where a letter is written and signed by one in the capacity as publisher of a newspaper, that letter will not suffice to derive legal authority from the entity to the addressee to act on the former’s behalf for the purpose of filing a law suit. Only the board of directors of the entity can commit that entity in such manner.

Similarly, a board resolution was also required from the Board of Directors of the Press Union of Liberia expressly authorizing Kamara A. Kamara, the President of the Press Union of Liberia, to file this action on behalf of the National Chronicles Newspaper and Philipbert S. Browne. In the case of the Press Union of Liberia, its Articles of Incorporation was annexed to the respondent’s pleadings. We see from the said Articles of Incorporation that the Press Union of Liberia has a 7-man Board of Directors headed by K.Y. Best as its President. But as we have noted, the Board of Directors of the Press Union did not authorize Kamara A. Kamara to institute this action for and on behalf of the National Chronicles Newspaper.

Under the Association Law of Liberia, a corporate entity is a “legal or judicial person separate and distinct from its shareholders, officers and directors. The corporate entity can sue or be sued in its own name. And as observed by this Court in the case: Republic of Liberia v. The Independent Newspaper decided during the March Term, 2007, “…the legal person, the corporation, has no hands, no feet, eyes and ears and lacks the ability to speak for itself. Therefore, for the purpose of achieving its goal, [including the filing of law suits], and for the convenience of those who interact with this legal person”, it is practical and logical that actions for and against it be channeled through a designated [natural) person.”But the corporation cannot act just through any natural person. The practice in vogue is for the corporation to act “by and thru” a corporate officer. A corporate officer is a person who fills the office which is provided for in the charter or articles of incorporation of the corporation such as president, vice president, general manager or treasurer. In our jurisdiction, a corporation may also act through its chairman of the board of directors. In all such cases, however, the corporation’s board of directors should authorize the action through a board solution.

And an individual natural person, like Philipbert S. Browne in this case, who alleges that he has been injured by a wrongful act may bring suit in his own name. Where, however, he elects to do so through another person, natural or non-natural, the appropriate requirements as provided by law such as issuing a Power of Attorney must be followed. But this was not the case, and no just reason was advanced why the Press Union of Liberia, a separate corporate entity, should file this suit for and on behalf of another separate corporate entity as well as a natural person.

The Press Union’s contention that it can legally bring this suit because it is the parent body and umbrella group of all media institutions to which the National Chronicles Newspapers and Philipbert S. Browne are duly registered and accredited members is untenable. We see no parent body-subsidiary relationship between the National Chronicles Newspaper and the Press Union of Liberia; the Articles of Incorporation of the Press Union does not show this and nowhere in the records of this case do we see proof of this assertion that give rise to the Press Union to bring this suit as a party.

The purpose of the law on standing is to protect against an improper plaintiff and ensure the benefit of a real party. It is only a real party of interest to a suit that a court of law can grant relief to, or access damages against. In this jurisdiction, the law is that a person who is not a party to a suit cannot be legally bound by a judgment flowing from that suit.

Now, let us consider, for argument sake, the position advanced by the Press Union of Liberia that because it is the parent and umbrella body of all media institutions in the Republic of Liberia of which the National Chronicles Newspaper is a duly licensed and accredited member and Mr. Philipbert S. Browne is a practicing journalist and a bona fide card carrying member, therefore, the Press Union has the right to bring this suit as a party. We ask can the Press Union be personally bound by any judgment, for or against the National Chronicles Newspaper and Philipbert S. Browne growing out of this present action? The answer is no! But if we were to accept the position advanced by the Press Union it would mean that all acts, the commission and omission of which any media institution or practicing journalist in this country are accused of would be directly attributable to the Press Union of Liberia. Where reliefs are granted they would inure to the benefit of the Press Union. Conversely, this would mean that where damages are assessed against any media institution or practicing journalist, the Press Union of Liberia would be personally attached. But this cannot be.

As we have said, standing involves jurisdictional issues which concerns the power of courts to hear and decide cases and does not concern the ultimate merits of substantive claims involved in the action. Where, as in this case, it is determined that the party lacks standing to institute the action, the action is dismissed without deciding the substantive issues, including constitutional raised in the case. So, we are by law precluded from addressing and determining the many constitutional issues raised in this petition for the writ prohibition. Therefore, we must defer the determination of the constitutionality or unconstitutionality of the actions of the Government complained of by the petitioner to another day when the real party of interest properly clothed with standing to sue is before this Court.

Moreover, when disposing of constitutional issues, this Court has said that “if a case can be decided on either of two grounds, one involving a constitutional question and the other on statutory or general rule, the Court will decide on the latter. Zoe v. National Elections Commission, Opinion of the Supreme Court, decided September 21, 2005; Dukuly v. National Elections Commission, Opinion of the Supreme Court, decided September 21, 2005; and Menlor and Guanue v. National Elections Commission, Opinion of the Supreme Court, decided February 2, 2007.

Based on the foregoing, we see no need to pass on the many constitutional issues raised in this case, since our conclusion is based on the application of the general rule that the petitioner, the Press Union of Liberia, lacks standing to bring this action. Therefore, the alternative writ of prohibition issued is ordered quashed and the peremptory writ requested denied, however, without prejudice.

Ordinarily, with our conclusion dismissing this petition for the writ of prohibition due to the petitioner’s lack of standing, this matter would be abated. But we will not stop here. We will go one step further, to consider the reasons given for the Government’s decision for closing the National Chronicles Newspapers. The Government contended that the National Chronicles Newspaper published stories which were heinous, disrespectful and detestable and that the stories were published at the time when the state of emergency declared to fight the deadly Ebola virus was still in force and effect; that if left unchecked, the stories would create fear and panic resulting into uprising and the destruction of lives and properties; and that restricting the print, electronic or social media from sensational, false and/or inaccurate reporting that could cause panic and undermine the fight against the virus was one of the measures approved by the National Legislature for the Government to use in the fight against the Ebola virus. Whatever the merit or demerit of this contention, what is not in doubt is that the state of emergency, declared on August 7, 2014, expired on November 13, 2014, and was not renewed. So, there is no more state of emergency operating in the country.

Furthermore, the Ebola virus is no longer a threat to our national existence. Liberia was officially declared free of the virus by the World Health Organization on May 9, 2015, and the official program marking that declaration was held at the Centennial Memorial Pavilion in Monrovia on May 11, 2015. And even though few new cases of the virus were recently reported in the country, the situation appears to be fully contained and not prevalent to warrant the declaration of another state of emergency. Given this fact, and given the further fact that the petitioners herein were not charged and have not been charged with the commission or omission of any crime as a result of the alleged heinous, detestable and disrespectful publications, we see no tangible reason for the continued closure of the offices of the National Chronicles Newspaper. If the Government believed that the petitioners committed an offense, the Government should have, by now, proceeded to court to charge and prosecute the petitioners for whatever offense(s) they may have committed since the state of emergency is no longer in force and effect. But to continue to have the offices of the National Chronicles Newspaper closed without a court order long after the state of emergency is a violating of the petitioners’ rights not contemplated by law.

To our minds, the reasons advanced by the Government for closing the offices the National Chronicles Newspaper have become moot and of no consequence in the absence of charges being brought against the petitioners. A matter is moot when the determination sought cannot have any practical effect on the existing controversy. With the near total eradication of the Ebola virus from our country, there is now no threat to the population; thus, there cannot now be any fear and panic created from the stories published by the petitioners that would result into uprising and destruction of lives and properties as contended by the Government. Courts of law have the authority, and often duty, to dismiss a case or pass on an issue on their own initiatives, without any application from any party, where the matter has become moot, abstract or irrelevant.

Accordingly, it is the order of this Court that the offices of the National Chronicles Newspaper closed down on orders of the Government, by and through the Ministry of Information, Cultural & Tourism be reopened with immediate effect. The Clerk of this Court is ordered to forthwith inform the parties of the decision of this Court. It is so ordered. Prohibition denied.

CLLR. SAYMAH SYRENIUS CEPHAS OF JUSTICE & PEACE CONSORTIUM (JUPICA)IN ASSOCIATION WITH CLLR. MILTON D. TAYLOR OF TAYLOR & ASSOCIATES LAW FIRM, SYLVESTER D. RENNIE OF LEGAL WATCH, INC. AND CLLR. SAM Y. COOPER OF LEGAL MINDS, INC. APPEARED FOR THE PETITIONERS.

CLLR. BETTY LAMIN-BLAMO, SOLICITOR GENERAL, MINISTRY OF JUSTICE, CLLR. J. DAKU MULBAH, COUNTY ATTORNEY FOR MONTSERRADO COUNTY, MINISTRY OF JUSTICE AND CLLR. AUGUSTINE C. FAYIAH, ASSISTANT MINISTER FOR LITIGATION, MINISTRY OF JUSTICE APPEARED FOR THE RESPONDENT.

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Categories: 2015

Chronicles Newspaper & Browne v RL LRSC 31 (2015)

Chronicles Newspaper & Browne v RL [2015] LRSC 31 (2 July 2015)

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