In re: Madama Donzo and David Siaway of the City of Kakata, Margibi County, Republic of Liberia Versus Her Honor Mardea T. Chenoweth, Presiding Circuit Judge, 13 ^th Judicial Circuit, Rocky Ahmar and Marie Leigh Parker also of the City of Kakata, Repulic of Liberia Respondents

BILL OF INFORMATION

Heard: November 5, 2019              Decided: February 7, 2020

When this case was called for hearing, Counsellor J. Daku Mulbah of the Lex Group, Liberia, LLG appeared for informants. Counsellor David W. Woah of the Woah and Associates, Inc., appeared for the respondents.

MR. JUSTICE KABA DELIVERED THE OPINION OF THE COURT

The gravamen of the bill of information before us is that the trial court is executing the Mandate of the Supreme Court improperly. We are again troubled by the revelation that it took nine years to have the Mandate of this Court read and enforced. During the

March Term, A.D. 2019, our attention was drawn to a similar case; Juanita C.

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case; Juanita C. Walker-Calloway et al versus His Honor J. Vinton Holder et al where it appeared on the records that it took about nineteen years to have the Mandate of this Court read and enforced contrary to rules and practice in this jurisdiction. And because of the effluxion of time, subsequent actions were taken by the parties and the lower courts interference with the Judgment of the Court, thereby making enforcement of the mandate ineffectual to a great extent. We note with strong emphasis that all subordinate courts and counsels practicing before the Supreme Court must take due cognizance of the revised rules of the Court in carrying out their respective duties as arms of the Court for the fair administration of justice, Rule XII, Part I provides as follows:

“Mandates to the couns below commanding the execution of judgments shall be transmitted immediately upon adjournment of the term of court or immediately after the rendition of the Opinion during the term time. To all mandates of this Court, returns shall be made, and they shall contain a clear statement of the manner in which they have been complied with, and shall be verified, except such returns are made by judges. Every judge before the first day of the term immediately succeeding the term at which a mandate shall be issued, unless directed to make returns to a justice in chambers, shall file a return showing the action taken by him in the premises. Should the judge of any court fail to make a return, such failure shall be recorded, and the clerk shall present the original of he returns made to the Court on the first day of the term when a return calendar shall be read and disposed of.

The operative command of the revised above-quoted rule is that the Mandate of the

Court shall be transmitted “immediately” that is after the fulfillment of Rule IX Part l . Regarding the three (3) days allowance for re-argument, we do not doubt that the mandate in the case at issue was immediately transmitted to the trial court, which ought to have given the same immediacy for its enforcement. We emphasize the word “immediate” because the rule was not intended for delayed enforcement of the Court’s Mandate. A further examination of Rule XII Part I above provides for returns to show the action taken in pursuance thereof.

The facts culled from the records show that during the March Term, A.D. 2010, this Court handed down a Judgment in the case Rocky Ahmar versus Madama

Donzo and David Siaway as quoted hereunder:

“Having heard arguments presented by both parties and considering the relevant laws relied on, it is adjudged:

That the judgment of the lower coun is reversed and the case remanded with instructions as follows:

1. That in order to prevent a multiplicity of suits, the Leighs be allowed to file and serve the necessary papers to join in this matter, and the trial court should pass on these papers as a necessary party.
2. That the trial court below summons the board of arbitration to reconvene and carry out an appropriate and accurate survey identifying appellee’s property as per intervenor’s deed attached and proffered as exhibit “M/2” to its Motion to Intervene; and the board of arbitration conducts a resurvey using the same Dean Sr.’s deed and the appellants’ deed to confirm whether or not appellants are occupying appellee’s property.
3. That the appellants pay to the board of arbitration the balance Six Hundred United States Dollars (US$600.00) in order for it to finalize its report as per our instructions and to bring finalization to this matter, no other amount should be required as the cost for the resurvey, except that the court should determine a minimum amount for incidental and transportation expenses.
4. That since this matter involves property rights, which in our opinion, was not properly settled by the trial court, all rental payments received from the disputed property be put in escrow until this matter is finalized.

The Clerk of this Court is ordered to send a mandate to the court below to resume jurisdiction and give effect to this Judgment….

The informants, Madama Donzo and David Siaway have filed a nine count bill of information in which they averred in substance that on August 19, 2019, that is nine years after the rendition of the Judgment, the Mandate of this Court as quoted above was read upon regular notice of assignment under the gavel of Her Honor, Mardea

1. Chenoweth, Resident Circuit Judge of the Thirteenth Judicial Circuit Court for Margibi County, Republic of Liberia; that after the reading of the Mandate, the trial court ordered the parties to bring every receipt of rental collected effective from the time of the rendition of the Judgment by the Supreme Court during the March Term, A.D. 2010; that upon the presentment of the various receipts by the parties as ordered by the trial court, the trial court further ordered the parties to make available the amounts received and/or collected as rental by the parties to be placed in the court’s account rather than an escrow account prior to the reading of the Supreme Court’s Mandate; that the co-respondent judge ordered the arrest and incarceration of Lewis Siaway, son of co-informant, David Siaway without a notice of contempt and a hearing thereof; that the only role played by Lewis Siaway is to

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assist his ailing father, David Siaway, in matter pertaining to the father; that the corespondent judge proceeded to the tenants of co-informant, David Siaway, whose premises she ordered locked and thereafter collected from them rents for one (l) year each in advance as prerequisite for the opening of their business; and that the co-respondent judge openly told Lewis Siaway that the survey ordered by the Supreme Court will not be carried out until all of the money demanded is paid to the trial cotilt. The informants, therefore, contend that the alleged acts of the corespondent judge contravene the mandate of the Supreme Court or that the corespondent judge is executing the Mandate of this Court in an improper manner for which reason the bill of information will lie.

In their returns to the informants’ bill of information, respondents, Rocky Ahmar and Marie Leigh Parker, ave1Ted that when the Judgment out of which the mandate grew was rendered, the counsels of the patties were given copies of the said Judgment containing the andate on behalf of the their respective clients; that in implementing count four of the Mandate, the co-respondent judge summoned the patties, their lawyers and all of those renting from the parties, portions of the disputed property to a conference; that at the conference, David Siaway presented receipts and Marie Leigh Parker also presented receipts; that when the receipts were read in open court, it was shown that the son of David Siaway has collected rentals from the tenants of David Siaway up to and including 2023 and it was also shown that Marie Leigh Parker had also collected rentals from her tenants up to and including 2021; that the co-respondent judge after reading the receipts ordered that the money collected be reported to the court and place in the court’s escrow account and all other and further rental be paid to the court by all of the tenants on the disputed property; that when the co-informant, David Siaway’s son, Lewis Siaway, whose name is on the receipts as the person who collected the money from the tenants of his father could not bring the money collected, he was arrested and attached in contempt, imprisoned until the money is fully paid; that the corespondent judge was in obedience to the mandate of the Supreme Court when from the circumstances herein stated, she compelled the tenants on the disputed property to pay rental to the court and which amount is now in escrow; and that the respondent judge denies ever telling Lewis Siaway that the survey ordered by the preme Court will not be carried out until the money demanded is paid to the court.

The respondents contend that consistent with count four of the Mandate of the Honorable Supreme Court, .all rental payments received from the disputed property be put in escrow until this matter is finalized”. From the day the disputed property was rented out, all rental received should be placed into escrow. In carrying out this part of the Mandate, the co-respondent judge ordered that the receipts be brought to court so that she will have an idea as to how much money has been received as rental from the disputed property, but to her uttermost surprise, Lewis Siaway had received rentals even up to 2023 from tenants, despite the mandate of the Supreme Court and which Mandate the Siaway’s have reason to know of since 2010.

The respondents are hammering the argument that when the Judgment out of which the mandate grew was handed down, counsels for both parties received copies of the Judgment; therefore, the parties knew or had reason to know that the Court mandated that all rents received be deposited in an escrow account by the trial court. It is the further contention of the respondents that the co-respondent judge acted or proceeded to enforce the mandate of the Court in keeping with count four thereof

This Court says that had the trial court proceeded to immediately read the Mandate and resume jurisdiction of the case in 2010, the collection of rents up to and including 2023 by the patties would have been avoided. The staleness of enforcement of the Judgment comes with attending events tending to interfere with or obstruct the implementation of the Court’s Judgment. The lapse of about nine years before the trial court read and enforced the Mandate goes to the crux of the alleged improper execution of the Court’s Mandate. In Juanita C. WalkerCalloway supra, this Court held that “a lower court assumes jurisdiction upon the receipt and reading of a Mandate from this Court instructing or directing it to carry out a certain action or course of actions. Upon the transmission of a Mandate from this Court to a lower cotilt, the usual and legal procedure is to have the said Mandate read by the lower court in the presence of the patties upon the issuance of assignment either at the instance of a party or upon the court’s own initiative.” We hold that the mandate becomes operative upon reading by the lower court. Our laws being progressive and not retroactive, the Mandate starts to take effect upon reading in the lower court. It follows that the Judgment of August 31, 2010, having been read on August 19, 2019, became effective from the date of reading at the lower court. We must add that ordinarily and by practice, the lower courts are duty bound to enforce Judgments of Supreme Court. The lower courts can do so only by resuming jurisdiction, as stated above in this Opinion. A delay in reading the Mandate of this Court and resuming jurisdiction by the trial couns in itself produced the enabling conditions to render the Court’s Mandate ineffectual. We hold that the trial court not having promptly acted to read the Mandate induced the interference and obstruction to the Mandate of the Court.

It is apparent from the records that the facts are undisputed as to the executing count four of the Mandate of 2010 which was not read in open court until August 19, 2019, the single issue presented, therefore, is whether in view of the facts and circumstances of this case, bill of information will lie?

To proceed in addressing the sole dispositive issue, we take recourse again to Juanita C. Walker-Calloway et al supra and glean from there the principle controlling the office of bill of information as follows:

.0ur practice and procedures are very clear in the office of a bill of information. It is provided by the Revised Rules of the Supreme Court that “a bill of information will lie to prevent a judge or any judicial officer who attempts to execute the mandate of the Supreme Court in an improper manner from doing so” Rule IV Part 12(a). This Court has held on numerous occasions ‘that the matter forming the basis of the information must have been pending before the court or decided by it; that there must be an act tending to usurp the province of the Court; that there must exist some irregularities or obstruction in the execution of the Supreme Court’s Mandate; or that there must have been a refusal to carry out the Supreme Court’s Mandate. NEC et al. v. NPP, Opinion of the Supreme Court, March Term, A.D. 2015.

Both the bill of information and the returns thereto admitted that since the rendition of the Court’s Judgment in 2010, the parties had collected rents from the tenants in the absence of the reading of Mandate of the Court. As a consequence of the staled reading of the Mandate, the trial court is embarking on a retroactive collection of the rents, an act the informants considered as improperly executing the Court’s Mandate. We agree.

Besides the fact that it is impracticable and unrealistic to retroactively collect nine years’ rent from the parties because of the staleness to enforce the Court’s

Mandate which in our view works hardship against the parties, count four of the said Mandate was not intended by the Court to enforce retroactive collection of the rents. The respondents’ contention that the Mandate reads “payments received” means all payments received in the past is untenable. An examination of the language of count four of the Mandate clearly instructed the trial court to put in escrow all payments received from the time the Mandate is read until the matter is finalized. Because the Court had ordered the case remanded to allow the Leighs’ to intervene and to reconvene the arbitral board to carry out an appropriate and accurate survey, the Court was aware of the fact that the parties were receiving rents to the dispute, the Court then saw it fair to order that all such rents received to be put in an escrow pending the final determination of the case. It does not appear logical for the Court to have ordered that all rents received before the Judgment rendered on August 31, 2010, be put in an escrow account. This Court is aware that damages attached to wrongful withholding of properties and the party injured by such wrongful withholding have an adequate remedy at law; therefore, the Court could not have ordered a retroactive collection of rents as contended by the respondents. We hold that the exercise cannot cure the inexcusable failure to read and enforce the Mandate of the Court in 2010 of retroactive enforcement in 2019.

Our attention was drawn to several happenings that ensued from the retroactive enforcement of the Court’s Mandate, including the arrest and incarceration of Lewis Siaway, who allegedly collected rents on behalf of co-informant, David Siaway and closing of premises on the disputed property. Upon inquiry, this Court has been informed that Lewis Siaway was later released from incarceration and that the premises have been reopened, thereby rendering the information moot.

Disturbed by the nagging fact that this case remains undecided for nine years after remanding the same to allow the Leighs to intervene, reconvene the arbitral board and conduct a resurvey using the Samuel Dean, Sr’s deed and the appellants’ deeds to confirm whether or not the appellants (informants) are occupying the appellee’s (respondent’s) property, we hold that the protracted delay in carrying out these instructions are totally unwarranted. We agree with the contention of the informants that count four of the Court’s Mandate is as important as the three other counts preceding said count four. We also hold that the inexcusable failure of the trial court to resume jurisdiction, reconvene the arbitral board and conduct a resurvey of the disputed property since the rendition of our decision on August 31, 2010, aggravate the improper manner in which the trial court is proceeding with the execution of this Court’s mandate.

We, therefore„ grant the bill of information with instructions as follows:

• That the escrow account tabulate became effective from August 19, 2019, the date of reading the Supreme Court’s mandate by the trial court. Therefore, rents received by the parties up to and including 2023 before the reading of the Court’s mandate are excluded from deposit into the escrow account, and all rents received as of August 19, 2019, and going forward are to be put in escrow until the final determination of the case;
• That moneys retroactively collected by the trial court from the parties and deposited in court’s account as a result of a delayed reading of the Court’s mandate on

August 19, 2019, are ordered returned to the parties;

• That the trial court shall immediately proceed to reconvene the arbitral board for the resurvey of the disputed property in keeping with our mandate dated August 31, 2010, and file returns as to the manner of execution of the mandate within thirty days as of the date of this Opinion.
• That the trial court shall give priority to the expeditious determination of this case over all other cases upon the transmission to the lower court of the mandate hereof.

WHEREFORE AND IN VIEW OF THE FOREGOING, the bill of information is granted. The Clerk of Court is ordered to send a Mandate to the coult below to resume jurisdiction and give effect to this Opinion. AND IT IS HEREBY SO

ORDERED.