MERCHED G. BAAKLINI, Chairman, Board of Directors and Managing Director, METROPOLITAN BANK s.a.l, and METROPOLITAN BANK s.a.l., Antelias, Beirut, Petitioners, v. HIS HONOUR JOSEPH W. ANDREWS, Assigned Circuit Judge, Sixth Judicial Circuit, Montserrado County, March 1999 Term, and JOSEPH H. YOUNIS, by and thru his Attorney-In-Fact, MOHAMMED EL HOUSSENI, Respondents.

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

Heard: March 28, 2001. Decided: July 5, 2001.

1. A letter from a non-domiciliary foreign corporation to a Liberian lawyer requesting him to institute legal action in its behalf is sufficient authority for the suit to be commenced by the lawyer, and for the courts of Liberia to entertain the same.

2. After proper service of summons, a court may exercise jurisdiction over a non-domiciliary even though the non-domiciliary has not been in Liberia, as to a claim arising from any act in the same manner as if it or he were a domiciliary if, in person or through an agent, he or it transacts business in Liberia or makes a contract with a person in Liberia which is to be performed in Liberia.

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

4. Certiorari is corrective and not an end in itself it is intended to correct errors complained of and send the appropriate order to the lower court.

5. Certiorari is not intended and cannot be used to render final judgment on the merits of a case not heard below on its merits.

6. A Chambers Justice of the Supreme Court commits error in including in his determination matters of evidence which were not testified to in the lower court, and confirmed and admitted into evidence in the trial court.

7. The exercise of the appellate jurisdiction of the Supreme Court, in a remedial proceeding, is not to pass on the complaint, answer, and reply of the litigants or on documentary evidence which have not been ruled to trial and passed upon by the trial court.

8. The appellate review of the entire pleadings and all relevant documentary evidence are reserved for a regular appeal taken by either party to a case.

The co-respondent, Joseph H. Younis, sued out an action of damages against the petitioners, Metropolitan Bank s.a.l. and its Chairman, Merched G. Baaklini, in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County. Service of the summons was made on Sherman and Sherman, Inc., a law firm operating in Liberia, through its lawyers. The said Firm had been engaged by the petitioners as their legal counsel and had also been given a power of attorney by the petitioners to represent their interest, appear and give evidence, and to do any and all things the petitioners would or would have the power to do.

In response to the service of the summons on the above mentioned Law Firm, an answer was filed, along with a motion to dismiss the action, on the ground that the trial court lacked jurisdiction over the petitioner, they being non-domiciliaries who were not resident or operating in Liberia, and further, that the power of attorney given Sherman and Sherman, Inc. did not authorized the Law Firm to receive precepts for and on behalf of the petitioners. They contended that the service of the precepts on the said Firm was in violation of the Liberian Business Corporation Act, and that the improper service rendered the complaint and entire action dismissible. The trial court denied the motion to dismiss, holding that it had jurisdiction over the petitioners since the contract was entered into with a Liberian resident while petitioners agent was in Liberia, that the contract was to be performed in Liberia since the equipment which was covered under the contract were to be shipped to and thus destined for Liberia, and that the court had acquired jurisdiction over the matter and the petitioners by virtue of their filing of an answer and a motion to dismiss, through their attorney-in-fact, Sherman and Sherman, Inc. From this ruling, the petitioners sought certiorari, which was granted by the Justice in Chambers.

On appeal to the Full Bench, the Supreme Court disagreed, holding that under Liberian law, a mere letter to a lawyer or law firm from a non-domiciliary to commence a law suit or defend its interest therein was sufficient authority to have the lawyer or firm represent the non-domiciliary in court, and therefore to accept process on its behalf. In the instant case, the Court pointed out, the petitioners had specifically authorized Sherman and Sherman, Inc. to appear and present evidence in their behalf and to do any and all things that they had the power to do if they were present. The Court noted that the question of whether the contract constituted a transaction to be performed in Liberia was a question of fact for determination by the jury.

The Court further held that certiorari would not lie since it was a proceeding intended to correct errors made by a trial judge in the course of a trial, and not to render a final judgment in a case as the petitioners had sought to have it do. The Court observed that the Chambers Justice had erred in using the certiorari proceedings to pass upon the pleadings and documentary evidence which had not been testified to, identified, and confirmed by the trial court. The Court therefore reversed the ruling of the Chambers Justice, denied the petition, and ordered the trial court to proceed with the case on the merits, commencing with the disposition of the law issues.

Momodu T. B. Jawonda and F. Musa Dean, Jr. of Sherman and Sherman, Inc. appeared for the petitioners. Isaac C. Nyeplu and Benedict F. Sannoh appeared for the respondents.

MR. JUSTICE MORRIS delivered the opinion of the Court.

This case is before us on appeal for the second time for determination upon a petition for a writ of certiorari from the ruling of our distinguish colleague, Mr. Justice Jangaba, presiding in Chambers during the March Term, A. D. 1999, of this Honourable Court. The first time the case was before us on appeal was during the October Term, A. D. 1998, of this Court, and was from the ruling of Mr. Justice Sackor. This Court, during its October Term, A. D. 1998, denied the petitioners’ petition for certiorari, remanded the case to the trial court, ordered the reinstatement of the pleadings, and directed the trial judge to rehear the motion to dismiss and the resistance thereto and to make a ruling on all the law issues raised therein. This Court confirmed the portion of the Chambers Justice’s ruling which stated that the trial judge had erred when he ruled that the defendant’s motion to dismiss the plaintiff’s amended complaint should have been designated as an amended motion.

In obedience to the Supreme Court’s mandate, His Honour Joseph W. Andrews, Assigned Circuit Judge, presiding over the March Term, A. D. 1999 of the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, heard and denied the petitioners’ motion to dismiss the co-respondent’s amended complaint. The trial judge stated as the grounds for the denial of the motion to dismiss that the petitioners had made a contract with the co-respondent while residing in Liberia, and that the contract was to be performed in Liberia, as the equipment for sale was to be shipped or transported to Liberia by the petitioners. The trial judge also ruled that the court had acquired jurisdiction over the persons of the petitioners by virtue of the filing of an answer and a motion to dismiss by the attorney-in-fact of the petitioners.

The defendants excepted to the ruling of the trial court and, upon notice given, filed with the Supreme Court a 79-count petition for a writ of certiorari. This Court deems only counts 35 & 36 of the petitioners’ petition to be relevant to the disposition of the case. In count 35 of the petition, the petitioners contended that they had not been brought under the jurisdiction of the trial court because the service of the writ of summons of August 7, 1998 on Counsellor Momodu Jawandoh of Sherman & Sherman, Inc. did not constitute proper service upon the petitioners. The petitioners also contended that Sherman & Sherman, Inc. was merely legal counsel for the petitioners under a limited power of attorney, and that the co-respondent, Joseph H. Younis, should have served the writ of summons consistent with chapter 3, section 3.30 and 3.38 of the Civil Procedure Law and section 3.3 of the Liberian Business Corporation Act, Associations Law of Liberia.

In count 36 of the petition, the petitioners contended that the trial judge had also erred in ruling that the main suit was not in respect of a dispute over a savings account maintained by Co-respondent Younis with Co-petitioner Metropolitan Bank in Lebanon. The petitioners maintained specifically that the judge had erred when he ruled that the claim was related to the breach of an oral sales contract entered into between Co-petitioner Baaklini and Co-respondent Younis by virtue of a telephone conversation in early 1990 while Co-respondent Younis was in Liberia and Co-petitioner Baaklini was in Lebanon.

From the foregoing contentions, the petitioners raised three (3) issues. However, this Court deems only issue one (1) to be worthy of consideration. In regard to the said issue, the petitioners argued before that the service of process on one of the lawyers of Sherman & Sherman, Inc., did not constitute proper service on the petitioners. The petitioners averred that the writ of summons should have been served on them either by publication or on the Ministry of Foreign Affairs. They argued that there was nothing in the limited power of attorney from them to Sherman & Sherman, Inc. stating that Sherman & Sherman, Inc. was being appointed as their agent to receive service on their behalf. Hence, they said, the service of the August 7, 1998 writ of summons was defective, and therefore they had not been brought under the jurisdiction of the court.

The respondents countered the petitioners contentions with an 84-count resistance. However, this Court considers only counts 29, 41, 47 and 48 to be relevant to the determination of this case. In count 29 of their returns, the respondents contended that the trial court had acquired jurisdiction over the persons of the petitioners, in that they had made a contract with Co-respondent Younis to sell to him earth-moving equipment for the purpose of having the co-respondents perform activities in Liberia; that the petitioners had received the cost price of the equipment from the co-respondent in Liberia; that the petitioners had refused to deliver the equipment to Co-respondent Younis in Liberia; and that petitioners had given Sherman & Sherman, Inc. a power of attorney retaining Sherman & Sherman, Inc. as legal counsel and attorney-in-fact to appear and present evidence, and to do any and all things that we would or would have the power to do….”

In count 41 of the returns, the respondents argued that the writ of summons issued on August 7, 1998, and served on Sherman & Sherman, Inc. and the lawyers therein, constituted proper service of summons on the petitioners’ counsel and attorney-in-fact, for which Sherman and Sherman, Inc. appeared and filed an answer and a motion to dismiss the co-respondent’s amended complaint.

In counts 47 and 48 of the returns, the respondents alleged that Sherman & Sherman did not reject the writ of summons of August 7, 1998, because the lawyers therein were undoubtedly aware that they were serving in a two-fold capacity, firstly, as lawyers, and secondly, as attorneys-in-fact for the petitioners. The respondents further contended that the power of attorney given to Sherman and Sherman, Inc. had conferred generic powers on Sherman and Sherman, Inc.

From the arguments advanced by the respondents, seven (7) issues were raised before this Honourable Court. We deem issues 4 and 6 to be important for the determination of this case. With regard to issue four (4), the respondents contended that a non-domiciliary who, by his voluntary general appearance through his agent, attorney-in-fact, and retained counsel, submits itself to the jurisdiction of the Liberian court, and that by virtue of the court having acquired jurisdiction over him, he cannot later challenge the jurisdiction of the court. Regarding issue six (6), the respondents argued that a non-domiciliary who makes a contract with a person in Liberia, consistent with chapter 3, section 3.2 of the Civil Procedure Law, cannot challenge the jurisdiction of the court in which he made his appearance and submission.

The facts and arguments of both parties present two paramount questions to be resolved by this Honourable Court. They are:

(1) Whether or not the trial court acquired jurisdiction over the persons of the petitioners?

(2) Whether or not certiorari will lie under the given facts and circumstances in this case?

The records in this case show that the petitioners appointed Sherman & Sherman, Inc. in two capacities: (l) legal counsel and (2) attorney-in-fact. The power of attorney specifically authorized Sherman and Sherman, Inc. “to appear and present evidence, and to do any and all things that we would or would have the power to do….” We observe from the language of this instrument that it had conferred generic powers on Sherman & Sherman, Inc. to receive service of process as attorney-in-fact of the petitioners. Also, the instrument authorized and empowered Sherman & Sherman, Inc. as attorney-in-fact, to do any and all things that the petitioners would or would have the power to do as though they were physically present in Liberia.

In the case Saleeby Brothers, Inc. v. Barclay Export Finance Company, Ltd., [1971] LRSC 70; 20 LLR 520 (1971), text at 522, this Court held as follows:

“A letter from a non-domiciliary foreign corporation to a Liberian lawyer, requesting him to institute legal action on its behalf is sufficient authority for the suit to be entertained by the courts of Liberia.”

In the Saleeby Brothers case, Barclay’s Export Finance Company of London had by letter authorized the Barclay Law Firm in Monrovia to institute an action of debt against the Saleeby Brothers and to obtain a judgment. In an appeal from the judgment, the defendant corporation contended that the plaintiff had no capacity to sue in the courts of Liberia, except through an agent to whom it had given a power of attorney for such purpose. This Court held that the letter from the non-domiciliary foreign corporation to the Barclay Law Firm in Monrovia was sufficient authority for the Law Firm to institute a suit on its behalf for recovery of a certain sum of money allegedly due the corporation, in consequence of some business transaction. See also Fazzah v. Rogers Brothers Shoes, Inc., [1956] LRSC 12; 12 LLR 300 (1956).

The petitioners contended, however, that the averments in the co-respondent’s complaint stated what constituted a dispute over a savings account held by Co-respondent Younis with the petitioners’ bank in Lebanon. Hence, they said, the Liberian court had no jurisdiction over the thing involved in the action. On the other hand, the respondents argued that the action of damages for wrong was predicated upon the transfer of a sundry amount from Liberia to Co-petitioner Baaklini of Lebanon, pursuant to a contract made and entered into between the parties for the purchase of earth-moving equipment for shipment to Liberia. Co-respondent Younis maintained that the Liberian court did have jurisdiction over the things involved in the action because the contract was to be performed in Liberia, and was recognized under chapter 3, section 3.2(a) of the Civil Procedure Law. The referenced statutory provision states:

“After proper service of summons, a court may exercise jurisdiction over a non-domiciliary, even though he has not been in Liberia, as to a claim arising from any of the acts enumerated in this section in the same manner as if he were a domiciliary, if, in person or through an agent, he

(a) Transacts any business within Liberia or makes a contract with a person in Liberia which is to be performed there…”

This Court observed that the alleged contract, made and entered into by the parties hereto for the purchase of earth-moving equipment to be shipped to Liberia, and regarding which a savings account was established by Co-respondent Younis with the co-respondent bank in Lebanon, were all issues of facts to be proven and established by the parties at the trial. It was also within the province of the trial jury to weigh the credibility of the evidence, predicated upon the documentary evidence adduced at the trial.

The second issue for our determination is whether or not certiorari will lie under the given facts and circumstances in the case? The law in this jurisdiction is that “certiorari is a special proceeding to review and correct decisions of officials, boards, or agencies acting in a judicial capacity, or to review an intermediate order or interlocutory judgment of a court.” Civil Procedure Law, Rev. Code 1:16.21(1). Moreover, this Court, at its October, A. D. 1998 Term held in this very case that “certiorari is corrective and not an end in itself; it is intended to correct errors complained of and send the appropriate order to the court below. Certiorari is not intended and cannot be used to render final judgment on the merits of a case not heard below on its merits. It was therefore an error for the Chambers Justice to have included in his determination evidence which were not testified to, confirmed, and admitted into evidence by the trial court…”

The Supreme Court is mindful of the exercise of its appellate jurisdiction in a remedial proceeding, as in the instant case, and notes that such exercise is not intended to pass on the complaint, answer, and reply of the litigants, or documentary evidence which have not been ruled to trial and passed upon by the trial judge. The appellate review of the entire pleadings and all relevant documentary evidence are reserved for a regular appeal taken by either party to the case. We are therefore reluctant to grant certiorari under the facts and circumstances in this case.

Wherefore, and in view of the foregoing it is the considered opinion of this Court that the ruling of the Chambers Justice should be, and the same is hereby reversed. The petition for the writ of certiorari is denied and the alternative writ is quashed. The Clerk of this Court is hereby ordered to send a mandate to the court below ordering the judge presiding therein to resume jurisdiction over the case and to proceed with the hearing thereof on its merits, commencing with the disposition of the law issues. Costs are to abide the final determination of the case. And it is hereby so ordered.

Petition denied.