NAGBE BRISCO et al., Petitioners/Appellees, v. JUDGE FRANK W. SMITH, Judge presiding by assignment over the Civil Law Court, Sixth Judicial Circuit, Montserrado, September Term, 1981, and DENCO SHIPPING LINES, Respondents/Appellants.

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

Heard: April 23, 1985. Decided: June 21, 1985.

1. A circuit court judge of concurrent jurisdiction cannot review, modify or rescind the decision of another circuit court judge who is of the same official hierarchy or review any point already acted upon by said judge.
2. Where a judge of concurrent jurisdiction has reviewed, modified or rescinded the decision of a colleague, the only remedy is an appeal.
3. Mandamus is a special proceeding to obtain a writ requiring the respondent to perform an official duty.
4. A writ of mandamus should be issued whenever the petitioner can state plainly (1) that he has a legal right to have the act done for which he is petitioning, (2) that it is the duty of the respondent to perform said act, and (3) that if granted, petitioner will obtain relief for which no other speedy and adequate remedy exists.
5. Mandamus is used only as a remedy for inaction on the part of the person to whom it is directed.
6. Mandamus is not a preventive remedy; it is merely prospective, its purpose and object being to command performance, not resistance.
7. Mandamus will not ordinarily be issued unless there has been an actual default of duty as distinguished from a threatened or anticipated omission to act.
8. A judge has the duty to hear the cases on the docket for the term over which he presides. The duty is discretionary, however, with respect to the particular case he chooses to assign.
9. A trial judge has the mandatory duty to give a ruling on any issue argued before him.
10. Mandamus cannot be used to review an exercise of judicial discretion, even though the court may have erred in its conclusion.
11. Mandamus cannot be issued when there is an adequate and complete remedy at law.
12. A writ of mandamus will not be granted if it would be ineffectual to accomplish its objects, either because of want of power on the part of the respondent to perform the act required, or on part of the court to compel its performance.

13. The writ of mandamus is used to stimulate action pursuant to some legal duty, and not to cause the respondent to undo action already done, or to correct or review such action, however erroneous it may have been.

Petitioners, employees of co-respondent Denco Shipping Lines, filed a petition for the issuance of a writ of mandamus against the co-respondent judge to compel him to enforce the judgment of the Board of General Appeals. The petitioner accused the co-respondent judge of reviewing and reversing the ruling of his colleague of concurrent jurisdiction who, acting upon the petition for enforcement of the ruling of the Board of General Appeals, had remanded the case to the Board for recalculation of the award.
The facts of the case were that petitioners had filed a claim in the Ministry of Labour against Denco Shipping Lines, demanding lunch pay, transportation allowance, and accrued overtime pay. Following a hearing before the Board of General Appeals, the Board rendered its decision in the absence of both parties. Ten days after receipt of the Board’s ruling, the petitioners filed a petition before the circuit court for enforcement of the ruling. In resisting the petition for enforcement, correspondent Denco Shipping Lines called the court’s attention to the fact that following receipt of the Board’s ruling on July 22, 1981, it had filed a motion before the Board for reconsideration of the ruling. The respondent therefore moved the circuit court to dismiss the petition for enforcement, arguing that in view of the fact that the case was still pending before the Board for rehearing, the circuit court lacked jurisdiction to entertain the petition for enforcement.

The trial judge did not pass upon the motion to dismiss but instead heard the petition and remanded the case for recalculation by the Board. When the Board’s calculation was forwarded to the court, a new judge, the co-respondent judge herein, was presiding. He proceeded to hear and dispose of the motion to dismiss. The judge, upon receiving confirmation from the Board that the case was still awaiting disposition of the petition for rehearing, granted the motion to dismiss the petition for enforcement and sent the case back to the Board. It was from this ruling that the petitioners filed the petition for a writ of mandamus. The Chambers Justice granted the petition and ordered the trial court to enforce the award of the Board. From this ruling, an appeal was taken to the Supreme Court en banc.
On appeal, the Supreme Court reversed the ruling of the Chambers Justice, holding that as the petition for rehearing was still pending before the Board of General Appeals, the circuit court was without jurisdiction to entertain the petition for enforcement. The Court said that mandamus is a writ to compel a judicial official to do an act which he had a duty to perform. As no case was before the trial judge, since the Board still had jurisdiction of the case, there was nothing for which the trial judge had a duty to perform, the Court opined. The Court observed that while a trial judge could not review, reversed, modify, or rescind a decision made by a judge of concurrent jurisdiction, it also noted that there was no rule which prevents a trial judge passing on a motion not passed upon by his colleague. Accordingly, the Court said, the trial judge, having the discretion of deciding whether the court had jurisdiction to entertain the motion to dismiss, was not in error in so acting. In any event, the Court opined, the province of mandamus is not to review the exercise of discretion by the trial judge or to undo an act already performed, noting that exceptions should have been taken and an appeal announced, or another remedial remedy pursued.
The Court also used as a basis for denial of the writ of mandamus that the writ would serve no useful purpose under the circumstances presented in the case since the matter was pending before the Board which retained jurisdiction of it at all time. Accordingly, the ruling of the Chambers Justice was reversed and the petition denied.

Stephen B. Dunbar appeared for the petitioners/appellee. David A. B. Jallah appeared for the respondents/appellants.

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

The employees of Denco Shipping Lines, successors of Farrell Lines, filed a complaint with the Ministry of Labour, demanding lunch time pay, transportation allowance and over-time pay which they alleged had accrued to them over a period of five years. The case was heard on appeal by the Board of General Appeals which entered a ruling confirming the award made in favor of the workers. As none of the parties to the action was present at the rendition of the final ruling by the Board, a copy of said ruling was sent to each party separately. The workers received their copy, dated June 5, 1981, whilst management received its copy on July 22, 1981.
Ten days after the receipt of the workers’ copy they request-ed the circuit court, presided over by His Honour Fulton W. Yancy, Jr. to enforce the Board’s ruling, contending that the ten days within which a party adjudged liable by the Board should appeal had expired. Management filed a resistance to the petition for enforcement, maintaining that the judgment had been rendered on July 22, 1981, and that the ten days within which to appeal had not expired. The respondent management informed the trial court that it had in fact already requested the Board to reconsider its position, that is, it had requested the Board to grant it a rehearing. At the same time, management moved the court to dismiss the petition for enforcement, contending that the matter was still before the Board by virtue of its request for a rehearing. Judge Yancy heard the petition and ruled that the enforcement could not be had since the amount involved had not been calculated. He therefore sent the parties back to the Board to ascertain the amount payable to the workers. He did not pass upon management’s motion to dismiss for want of jurisdiction.
After the calculation was made at the Ministry of Labour, the parties returned to the circuit court, by which time Judge Frank W. Smith was presiding. Judge Smith heard and granted management’s motion to dismiss for lack of jurisdiction after first ascertaining from the Board, through its chairman at that time, Mr. John T. Freeman, that the case was pending before the Board for rehearing. Thereupon, Judge Smith left the case where he had met it.

Messrs. Nagbe Brisco et. al, now petitioners, being dissatis-fied with the ruling of Judge Smith, flew to the Chambers of Justice Yangbe for the writ of mandamus to compel Judge Smith to enforce the judgment of the Board which, according to them, was rendered on June 5, 1981, based upon the calculations ordered by Judge Yancy. They also asserted that Judge Smith be restrained from overruling Judge Yancy, both of them being of concurrent jurisdiction and powers.
In resisting the petition for mandamus, respondents maintained basically that mandamus was the wrong cause of action since petitioners could have appealed or moved on some other remedial writ for a review of Judge Smiths ruling. They contended also that Judge Smith having left the case to the Board for the rehearing, there was nothing remaining to be done by him which mandamus could compel him to do.
The Justice in Chambers granted the mandamus as prayed for by the petitioners, holding that he could not believe the records which said that respondents received the ruling of the Board on July 22, 1981, since they had cause to know of said ruling earlier. The Justice also held that Judge Frank W. Smith erred when he entertained respondents motion to dismiss the application for enforcement of the ruling of the Board, as by so doing, he illegally reviewed his colleague, Judge Yancy who had ruled earlier that the parties should return to the Board for calculation of the sums involved in the ruling before enforcement could be had. Justice Yangbe maintained further that no other remedies were available to remedy the petitioners’ situation except the extraordinary writ of mandamus, to compel Judge Smith to enforce the ruling of the Board and, at the same time, to restrain him from interfering with the ruling of Judge Yancy who had remanded the matter to the Board for calculation of the amount involved.
From these facts the key issues for our deliberation are:

1. Whether or not the ruling of the Board of General Appeals in this case was in fact rendered on July 22, 1981, and if so, whether same was pending before the Sixth Judicial Circuit Court for its enforcement;

2. Whether or not Judge Smith reviewed Judge Yancy’s ruling when he granted respondent’s motion to dismiss the petition for enforcement of the Board’s ruling;
3. Can mandamus lie against a judge to enforce a judgment which indeed does not exist?

In resolving the first issue, it is imperative that we first ascertain the date when the final ruling of the Board was given in this case. We shall then later ascertain whether said ruling was pending before the Sixth Judicial Circuit for enforcement. The best evidence in such cases is the Board of General Appeals itself. An examination of its records reveal that on October 26, 1981, the clerk of the Civil Law Court, Sixth Judicial Circuit, by directive of His Honour Frank W. Smith, assigned Circuit Judge presiding over the September Term, A. D. 1981, of the Peoples’ Civil Law Court, wrote a letter of inquiry to the chairman of the Board of General Appeals. The letter is quoted here verbatim:
EXHIBIT “G”
October 26, 1981

The Chairman

Board of General Appeals

Ministry of Labour

Monrovia

Dear Mr. Chairman:

We acknowledge with thanks the receipt of your letter of October 16, 1981, explaining how the award was awarded to Nagbe Brisco et. al arrived at. However, an information has been filed before this court by the management of Denco Shipping. Lines in which it is stated that a rehearing by the Board was requested by the said management.

As there are no records before us to show that Management requested for rehearing of said case, we would be pleased were you to write and inform this court as to whether the rehearing as alleged by Denco manage-ment was requested and what was the Board’s reaction on the issues of the rehearing.

By order of His Honour Frank W. Smith, assigned Circuit Judge, presiding over the September Term, A. D. 1981 of the People’s Civil Law Court.
Very truly yours,
Sgd: Robert B. Anthony
Robert B. Anthony
CLERK, PEOPLE’S CIVIL LAW COURT.
In reply to this letter, John T. Freeman, chairman of the Board of General Appeals, on October 30, 1981, wrote the following reply:
EXHIBIT “H”

Republic of Liberia

Ministry of Labour

Monrovia, Liberia

October 30, 1981

Mr. Robert B, Anthony

Clerk, People’s Civil Law Court

Temple of Justice

Monrovia, Liberia

I wish to acknowledge receipt of your letter of October 26, 1981, requesting me to state whether a petition for rehearing of the case: Nagbe Brisco et. al, Versus Denco Shipping Lines is pending before the Board of General Appeals. In this connection, I wish to advise that the case file contains a petition dated July 31, 1981, filed by the Shipping Lines for a reconsideration of the Board’s ruling of July 22, 1981, and so it appears that the Board has jurisdiction to entertain a rehearing of the said case.

I hope that this information will enable you to resolve the issue of whether or not a petition for rehearing of the said case is pending before the Board of General Appeals.

Kind regards,

IN THE CAUSE OF THE PEOPLE, THE STRUGGLE CONTINUES:

Very truly yours, .

Sgd: John T. Freeman

CHAIRMAN, BOARD OF GENERAL APPEALS

FILED OCTOBER 30, 1981

Signature illegible.
From the foregoing letters, there is no doubt that according to the Board, its ruling was entered July 22, 1981, and that a petition dated July 31, 1981, was filed by Denco Shipping Line for a reconsideration of the Boards ruling; and that as a result of said petition, the Board had jurisdiction to entertain a rehearing of the said case. This reply of the chairman of the Board was obviously the best evidence available to the court to determine whether or not it had jurisdiction over the case, or whether or not said case was pending before the Board for rehearing. Civil Procedure Law, Rev. Code 1 :25.4 and 25.6.
It must be recalled that when the petition for enforcement of the ruling of the Board was before Judge Yancy, he could not enforce said ruling because there still remained the calculation of the sum of money involved by a hearing officer. Conse-quently, Judge Yancy had cause to remand the matter to the Ministry of Labour for said calculations to be effected. That simply meant that the Board still had jurisdiction over the matter, in spite of the fact that respondent had petitioned it for a rehearing which was still pending. But certainly, by the letter of October 30, 1981, written by the chairman of the Board, the court had no jurisdiction over said matter when Judge Yancy entertained the petition for enforcement of the ruling of the Board. Hence, no ruling from the Board was thus pending before the Sixth Judicial Circuit Court for which enforcement could be sought.

Next, we will determine whether or not Judge Smith reviewed Judge Yancy’s ruling when he entertained and granted respondent’s motion to dismiss petitioners’ petition for enforcement. According to the records before us, Judge Fulton Yancy never passed on the respondent’s motion to dismiss the petition for enforcement, the matter being still pending before the Board. It is not therefore possible for Judge Smith to have reviewed the ruling of Judge Yancy on that subject. It is true, according to numerous case law authorities in this jurisdiction, that a circuit court judge of concurrent jurisdiction cannot review, modify or rescind any decision of another circuit judge who is of the same official hierarchy on any point already acted upon by him. However, the only remedy is an appeal. Gage v. Pratt, [1938] LRSC 11; 6 LLR 246 (1938); Republic of Liberia v. Aggrey, 13 LLR 479; 13 LLR 469 (1959). There is no rule which prevents one circuit judge from ruling on a motion not passed upon by his colleague, as in this case. Judge Smith certainly had the discretion to pass upon respondent’s motion to dismiss the petitioners’ petition for enforcement of the ruling of the Board of General Appeals. Thus, we are of the opinion that being convinced that the Board still had jurisdiction over the matter, Judge Smith used his sound discretion in granting the motion.
Finally, we shall proceed to the last issue to determine whether or not mandamus will lie against a judge to enforce a judgment which does not exist. According to our statute, mandamus is a special proceeding to obtain a writ requiring the respondents to perform an official duty. Civil Procedure Law, Rev. Code 1 :16.21(2). Also, according to case law authority, a writ of mandamus should issue whenever petitioner can state plainly: (1) that he has a legal right to have the act done for which he is petitioning; (2) that it is the legal duty of defendant to perform said act; and (3) that if granted, petitioner will obtain relief for which no other speedy and adequate remedy exists. Other authorities hold that mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law, 52 AM JUR 2d, Mandamus, § 1, at 30.

Common to all the above definitions is the stress on duty, or command into action where there is a duty to perform some act. In fact, a limitation on the use of mandamus maintained by the general current of authority is that it is used only as a remedy for inaction on the part of the person to whom it is directed. It is not by any means a preventive remedy, but is prospective merely, its purpose and object being to command performance, not resistance. It will not ordinarily issue unless there has been an actual default of duty as distinguished from a threatened or anticipated omission to act. 52 AM JUR.2d., Mandamus, § 9, p. 337.
Did Judge Smith have such a duty as could warrant the issuance of mandamus for its performance? This Court once held that there are two classes of duties a judge is called to perform: One is discretionary, the other is mandatory. For example, it is a judge’s duty to hear the cases on the docket for the term over which he presides; that duty is discretionary in respect to any particular case he might care to assign. It is also his duty to give a ruling on any issue argued before him; that duty is not discretionary but mandatory. Perry v. Richardson, [1960] LRSC 48; 14 LLR 116 (1960).
The object of petitioners’ prayer for mandamus is to compel Judge Smith to enforce the judgment of the Board of General Appeals and to restrain him from reviewing Judge Yancy’s decision. But Judge Smith met the said case before the Board, and by its own document the Board claimed jurisdiction over the matter. In a sense, there was no ruling before the court to enforce as long as the Boards jurisdiction was confirmed, since the administrative remedies had to be exhausted first before resort could be had to the law courts. Judge Smith’s act in sustaining respondent’s motion was a discretionary one, especially so when none of his colleagues had passed on the subject before. The act had already been done and the matter was still pending before the Board. The judge’s act being discretionary, this Court cannot question the exercise of that discretion by the use of mandamus. In such a case, appeal or some other remedial process was the proper course opened to petitioners instead of mandamus. Mandamus cannot be used to review an exercise of judicial discretion, even though the court may have erred in its conclusion. Furthermore, mandamus cannot issue when there is an adequate and complete remedy at law. King v. Randall, 10 LLR 225 (1944); Harmon v. Horace, [1948] LRSC 6; 10 LLR 29(1948).

The issuance of the writ will, under the circumstances stated above, serve no useful purpose in view of the fact that the Board still has jurisdiction over the matter for rehearing. The court to which the writ is to be directed had no jurisdiction over the matter, while the Board retained jurisdiction to exercise its duty in allowing the parties a rehearing. The writ is not sought to be directed against the Board, but against the circuit court. This Court has held before that a writ of mandamus will not be granted if it would be ineffectual to accomplish its objects either because of want of power on the part of the respondent to perform the act required, or on the part of the court to compel its performance. Davidson v. Worrell, [1932] LRSC 14; 3 LLR 362 (undated).
If the petitioner had appealed against Judge Smith’s ruling in granting the motion against the enforcement, or had moved on certiorari, the results would have indeed been different.
The rational is that the writ is not a preventive remedy but is essentially a coercive writ, one that commands performance, not resistance. 52 AM JUR 2d., Mandamus, § 1, p. 331. The writ is used to stimulate action pursuant to some legal duty, and not to cause the respondent to undo action already taken, or to correct or review such action, however erroneous it may have been. Therefore, the Justice in Chambers could not have issued the writ to compel Judge Smith to enforce the Board’s ruling, and at the same time to order him to desist or refrain from interfering with the judgment of Judge Yancy as though it was a writ of prohibition. 52 AM JUR 2d, Mandamus, § 9, at 337-338.
Wherefore, and in view of the circumstances narrated and the applicable laws herein cited, the ruling of the Chambers Justice is reversed and the case is hereby remanded to the Board of General Appeals for the rehearing. And it is hereby so ordered.

Ruling reversed; case remanded.