YARSAH BAYBAH, Petitioner/Appellant, v. HIS HONOUR HALL W. BADIO, SR., Resident Circuit Judge, Sixth Judicial Circuit, September Term, 1987, WILLIAM F. SATTO, Stipendiary Magistrate, Gardnersville Magisterial Court, and YARKPASUA BAYBAH, Respondents/Appellees.

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

Heard: November 20, 1989.DDecided: January 9, 1990.

1. An appeal shall be dismissed where the appellant fails to file an approved appeal bond or notify the appellee of the completion of the appeal as required by statute.

2. Prohibition will lie to give relief whenever a subordinate court is conducting trial contrary to known and acceptable practice and in violation of proper and acceptable procedure.

3. A party cannot in the appellate court urge a ground for relief which was not presented to the lower court, especially where the ground is inconsistent with the theory on which he proceeded at trial.

4. Appellant, whose appeal is pending, cannot file a motion in the appellate court to dismiss the original action out of which the appeal grew.

Appellant and Co-respondent Yarkpazuo Baybah lived together as husband and wife under customary marriage for several years, were blessed with children, acquired land, and built three houses thereon. The relationship later became sour and they allegedly began to live apart. Co-respondent Yarkpazuo Baybah instituted an action of summary proceedings against the petitioner in the Gardnersville Magisterial Court to recover possession of one of the houses. After a hearing, the magistrate ruled against petitioner Yarsah Baybah who, excepted thereto and announced an appeal.
On appeal before the Civil Law Court, the judge dismissed the appeal on motion of the co-respondent, on the ground that petitioner had failed to appear for hearing and to file an approved appeal bond as required by law. Thereafter, the petitioner filed a petition for the writ of prohibition before the Justice in Chambers. The Chambers Justice conducted a hearing and denied the issuance of the writ of prohibition. From this ruling the petitioner appealed to the Bench en banc.

On appeal to the Supreme Court, the Court held that an appeal will be dismissed where the appellant fails to file an approved appeal bond and notify the appellee of the completion of appeal. The Court also held that prohibition will not lie where no known rules have been violated. The Court opined that an appellant, whose appeal is pending, cannot file a motion in the appellate court to dismiss the original action out of which the appeal grew. The ruling of the Chambers Justice was therefore upheld and the writ of prohibition denied.

J. Laveli Supuwood appeared for the petitioner/appellant. Stephen B. Dunbar appeared for the respondents/appellees.

MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.

This case has its genesis in the settlement of Gardnersville Montserrado County, where Co-respondent Yarkpazuo Maybah and appellant, Madam Yarsah Baybah, allegedly lived together for several years as husband and wife by customary marriage, and were blessed with children. Together they built three houses. However, said relationship eventually grew sour. In 1987, while allegedly living apart, Mr. Baybah instituted an action of summary proceedings against Madam Baybah in Gardnersville to oust and evict her from one of the houses she occupied. She appeared by counsel and strongly contended that the magisterial court had no trial jurisdiction over the subject matter. After a hearing, the magistrate ruled in favour of the Co-respondent Baybah. From this ruling, petitioner Yarsah Baybah announced an appeal to the Civil Law Court for the Sixth Judicial Circuit, Montserrado County.

It is interesting to note that while the appeal was pending before the Civil Law Court, counsel for petitioner filed a motion to dismiss the original action of summary proceedings allegedly because another action was pending between the same parties concerning the same matter without stating where the other action was pending.

Notwithstanding, the judge assigned the appeal for hearing on November 13, 1987. However, despite indications in the records of timely notice to petitioner, she never appeared at the hearing. Consequently, the co-respondent took advantage of the requisite statute and moved the court to dismiss the appeal for failure of petitioner to appear and for failure to file an approved appeal bond as required by law. The judge sustained the appellee’s motion and therefore dismissed petitioner’s appeal.

The petitioner thereafter petitioned the Chambers Justice for a writ of prohibition alleging that the reviewing judge had proceeded erroneously and with bias when he sent a mandate to the trial magistrate to enforce his judgment without first affording her a hearing on her motion. She contended that the motion to dismiss should not have been granted because the magisterial court lacked jurisdiction over the subject matter and for reason of lis pendens.

The Chambers Justice conducted a hearing on the petition for prohibition, reviewed the records, and concluded that the writ should be denied. Hence, the petitioner resorted to this appeal before us on the ground that our colleague erred in denying her the writ and for affirming the reviewing judge.

Three pertinent issues concern us, and these are:

1. What are the effects on an appellant who after due notice fails to appear for the hearing of his own appeal?

2. Whether or not the errors of a judicial proceeding are reviewable by a writ of prohibition.

3. Whether or not an appellant, while his appeal is pending, can file a separate motion before the said appellate court to dismiss the parent action out of which the appeal grew.

In addressing these issues we will commence with the first one, that is, whether or not an appellant can benefit from the hearing of his appeal where he fails to appear despite timely notice to appear? We answer the question in the negative because our Civil Procedure Law unambiguously provides that:

“An appeal may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute, and by the appellate court after filing of the bill of exceptions for failure of the appellant to appear on the hearing of the appeal, to file an appeal bond, or to serve notice of the completion of the appeal as required by statute. Civil Procedure Law, Rev. Code 1:51.16.

In this case, the petitioner failed to appear for the hearing of the appeal although the records revealed that she was sufficiently notified to do so. We uphold the trial judge for maintaining that petitioner’s failure to file an approved appeal bond or to notify the co-respondent of the completion of the appeal as required by statute amounted to sufficient cause for dismissal of the appeal. We further confirm that the appellant cannot and should not benefit in the appellate court after failing to appear and prosecute her own appeal.

We consider the second salient issue as to whether or not prohibition will lie to review a judge, or in fact correct errors of any judicial proceedings. Our statute provides that:

“Prohibition is a special proceeding to obtain a writ ordering the respondent to refrain from further pursuing a judicial act or proceeding specified therein”. Civil Procedure Law, Rev. Code 1:16.21.

Furthermore, this Court previously held that prohibition will lie to give relief whenever a subordinate court is conducting a trial contrary to known and accepted practice, and in violation of proper and accepted proceedings. Montgomery v. Findley and Haddard, [1961] LRSC 27; 14 LLR 463 (1961). From a review of the present case, we hold that prohibition is not the proper remedy for no known rules have been violated, and therefore the Chambers Justice did not err when he denied the petition for a writ of prohibition.

Finally, we take our third issue, which is whether or not an appellant whose appeal is pending can move to dismiss that original action out of which the appeal grew. We say no because the original action is not before the appellate court, but rather before the trial court, and it is only the appeal from the judgment of the latter court which is before the appellate court. A dismissal of the parent action, as appellant wanted, would have also meant dismissal of the appeal from which it emanated. Legal writers maintain that:

“A party cannot in the appellate court urge a ground for relief which was not presented to the court below especially where the ground is inconsistent with the theory on which he proceeded at the trial.” 2 CYC 674.

In view of the foregoing laws and facts, we hold that an appellant whose appeal is pending cannot file a motion in the appellate court to dismiss the original action out of which the appeal had grown.

The ruling of the Chambers Justice is therefore confirmed and the petition for a writ of prohibition denied to all intents and purposes.

We express regrets for concluding this way since the petitioner and the co-respondent were married for several years and have children. Hence, counsel for petitioner is supposed to have resorted to some other appropriate way to secure some benefits for his client, but he, rather, negligently handled the matter.

Therefore, the Clerk of this Court is ordered to send a mandate to the court below instructing the judge presiding therein to resume jurisdiction over this case and enforce its judgment. Costs disallowed. And it is hereby so ordered.

Petition denied; ruling affirmed.