Clark et al. v Clinton Johnson et al. LRSC 34 (2015)

In order to provide a full picture of the various arguments presented, we have deemed it appropriate to reproduce Judge Clinton-Johnson’s returns later in this Opinion.

This Court should note further that the Judge of Criminal Court “E” was not the only named respondent. Also named in the Petition as a party respondent was the Ministry of Justice, the arm of the Liberian Government responsible both for prosecuting criminal acts and to represent the Government in all matters in which the Government is named as a party.

2. Also because as to Count one and two of Petitioners’ Petition, Co­ Respondent, the Ministry of Justice says that chapter 12, section 12.1 of the Criminal Procedure Law which gives a Magistrate the mandate to inform a Criminal defendant of his rights; to have a preliminary Examination; the right not to make any statement and that the statement made could be used against him and a right to Counsel at any Preliminary Examination is a Legislative provision/enactment enacted in 1973. The act creating the Criminal Court “E”, is most recent that the statute relied upon by the petitioner for the demand of preliminary hearing, Co-respondent submits that the Act of the Legislature passed in 2005, limits the Magisterial Jurisdiction over Sexual Offenses to the issuance of a warrant of Arrest, detention and transfer with in seventy-two (72) hours to the Circuit court with Original Jurisdiction.

3. Further to count two above, Co-respondent, the Ministry of Justice says that it is within the power of the Legislature to amend, supplement or repeal any act previously passed by them. Co­ Respondent says further that the later enactment of 2005, chapter 25, section 25.3 (a) of the act creating Criminal Court “E” limits the Magisterial Court’s jurisdiction to the making of a charge of sexual offense, the exercise of the power of arrest of the person(s) charged and to transfer the criminal defendant charged with the commission of sexual offense within 72 hours is the governing law which ought to be obeyed by all including the Co-respondent Magistrate. Your Honor is respectfully requested to take judicial notice of the law controlling. (See Supreme Court of Liberia Opinion in the case, Jurgensmeyer v. Horace, 6 LLR, page 256, syl. 1., 1938).

4. And also because as to count three of the Petition, Co-respondent Ministry of Justice says that Article 11 of the 1986 Constitution of the Republic of Liberia provides among other things that the rights to defend life and liberty and of pursuing and maintaining the security of the person is guaranteed. Co-respondent submits that Chapter 25, section 25.3 (a) of the act creating the Criminal Court “E” holds that a magistrate does not have a jurisdiction to grant preliminary examination to person(s) charged with the commission of sexual offenses does In any way constitutes the denial of the defendant the right to defend himself neither does it deny him the right to counsel. The averment that the Co-respondent Magistrate violated the Constitutional rights of the defendant/petitioner is not tenable in law and should therefore be ignored and the entire petition dismissed.

5. Further to count four above and in further traversing count three of the petitioner’s petition, Co-Respondent Ministry of Justice says that the article 21 (f) of the 1986 constitution of Liberia is also clear and unambiguous that “every person arrested or detained shall be formally charged and presented to a court of competent jurisdiction within forty-eight hours, and should the court determine the existence of a prima facie case against the accused, it shall issue a formal writ of arrest setting out the charge or charges and shall provide for a speedy trial.” This provision of the constitution is in no way violated since the petitioner has not complained of being detained beyond forty-eight hours without being formally charged and presented to court, nor did the court itself say that it did not determine a prima facie case, neither did the Petitioner say that a writ of arrest was not formally issued by the court. The Co­ respondent wonders how is Article 21 (f) violated with a court issued a warrant of arrest like the one issued against the petitioner herein.

6. And also because to count four of the petition, Co-respondent says that a Circuit Judge is believed to know the law and that the issuance of a writ is predicated upon the facts and the conviction of the Judge that the Magistrate/Justice of the peace complained against had acted arbitrarily and contrary to law. Co-respondent submits that the Judge of Criminal Court “E” realizing that the statute does not grant further rights to the Magistrate was right when she refused to issue a writ against the magistrate holding that the magistrate acted within the framework of the law. Count four should therefore be ignored and the entire petition dismissed.

7. Further to count six above, co-respondent says that there is no evidence for an application for preliminary examination before Criminal Court “E” as the law requires the defendants to request same. A deliberation on the summary proceedings does not and cannot be construed as preliminary examination requested by the defendant.
8. And also because as to count five of the petition, co-respondent says that truly, there have been instances where co-respondent Judge Johnson has denied the application of the Co-respondent Ministry for a nolle prosequi consistent with Chapter 18 section 18.1 of the Criminal Procedure Law.

9. And also because as to count six of the petition, the Co-respondent/ Ministry of Justice says that section 25.3 of the Act creating the Criminal Court “E” does not contravene articles 11 (c) and 21 (f) of the 1986 Constitution of Liberia. The Co-respondent, Ministry of Justice maintains counts two through five herein above.

10.The co-respondent, Ministry of Justice denies all allegations of facts and laws in the Petition not specifically traversed herein this Returns.

WHEREFORE AND IN VIEW OF THE FOREGOING FACTS AND PRINCIPLES OF LAWS, THE CO-RESPONDENT, THE MINISTRY OF JUSTICE REQUESTS YOUR HONOR TO ISSUE A PEREMPTORY WRIT OF MANDAMUS IN SO FAR AS IT RELATES TO THE DISMISSAL OF THE CHARGES AGAINST DEFENDANTS, ALPHONSO LANDFORD, EZEKIEL FARLEY, BLAMA WEAH AND FRANCIS NYANTEE, AND REFUSE TO ISSUE A PEREMPTORY WRIT AS TO THE VIOLATION OF ARTICLES 11 (C) AND 21 (F) OF THE 1986 CONSTITUTION OF THE REPUBLIC OF LIBERIA TO COMPEL THE GRANTING OF PRELIMIANRY EXAMINATION, AND GRANT UNTO THE CO­ RESPONDENT, MINISTRY OF JUSTICE ALL THAT ARE JUST AND LEGAL UNDER THE CIRCUMSTANCES.”

This Court must here acknowledge that the returns filed by the Ministry of Justice, as quoted herein above, was in direct response to it or the Government being named as a party respondent to the action. While this was the case here, we also take due note of the fact that even had the Government or the Ministry not been named in Petitioners’ Petition as a party respondent, it would still have the statutory duty to intervene and file returns as the constitutionality of an Act of the Legislature was being challenged.

(1) Did the Magistrate act offensive to the law in vogue when he declined to conduct a preliminary examination in a sexual crime?

(2) In apparent reliance on Section 25.3 (a), did the Judge of Criminal Court “E” commit reversible error when she failed to conduct a hearing on the “summary proceeding” complaining the magistrate’s refusal to conduct preliminary examination in a sexual offense, in which “summary” constitutional challenge was also raised?

(3) Does Section 25.3 (a) of the Act Creating Criminal Assizes “E” violate Articles 11 (c) and 21 (f), respectively, of the Liberian Constitution?

(4) Whether the circuit judge transgressed the laws applicable when she failed to consider the application for nolle prose quoi?

We intend to traverse the questions raised following the serial sequence in which they were presented. To aid an intelligent discourse of the issues as well as the disposition of this case, and for reasons this Court deems satisfactory in this process, we shall consider the first two issues concurrently; that is, whether the magistrate’s refusal to conduct preliminary examination requested by one accused of a sexual offense violated the law in vogue; and secondly, did the Judge of Criminal Court “E” commit reversible error when she disregarded, in apparent reliance on Section 25.3 (a), a complaint against the magistrate’s refusal to conduct preliminary examination in a matter of sexual nature? To aid the Court in this undertaking, it is proper to consider, first and foremost, the province of “Preliminary Examination” in the prosecution of criminal conduct in our justice system.

It is worthy of note that the principal domain of “Preliminary Examination” is manifold: (1) to endow practical meaning to the principle of “presumption of innocence” as the foundation of our criminal justice system captured in Article 21 (h) of the Liberian Constitution (1986); (2) in furtherance of the principle of “presumption of innocence” save and protect an accused person from both deprivation of his freedom and the tedious and long pre-trial detention to which he/she may be subjected while awaiting regular trial; (3) accord the accused a speedy hearing thereby affording him, through preliminary examination, an opportunity to see the evidence based upon which he has been arrested and charged; and (4) set in motion a process of truth finding which often leads to speedy restoration of the rights of the accused and his discharge upon judicial findings by a Justice of the Peace or a Magistrate that the evidence in the hands of Prosecution is slothful and inconclusive.

“Summary proceeding according to law, practice and procedure in this jurisdiction, authorizes a review exercise undertaken by a judge of a circuit court without the aid of a jury or without delving into technical rules. The sole purpose is to give “speedy relief.” Pratt v. Badio et al.[1983] LRSC 14; , 30 LLR 558, 562, (1983); Giese v. Jallah [1965] LRSC 1; 16 LLR 141 (1960); Smith v. Stubblefield and Brown, [1963] LRSC 32; 15 LLR 338 (1963); King v. Ledlow, [1916] LRSC 15; 2 LLR 283 (1916).

“The jurisdiction of magistrates in respect of Sexual Offences shall terminate upon the making of a charge of a Sexual Offence and the exercise of the power of arrest of the person or persons charged. There shall be no jurisdiction to conduct any preliminary or other investigations into any sexual offence charge. Each sexual offence shall be transferred to the Circuit Court within 72 hours.”

To the mind of this Court, the language of Section 25.3 (a) leaves no room, even in the most skeptic but reasonable mind for the slightest ambiguity. The statutory expression strictly confines the authority of a Magistrate to the formal issuance of a Writ of Arrest on one accused of a sexual offense and thereafter forwarding the case, within the prescribed time of 72 (seventy two) hours, to Criminal Assizes “E” or similar divisions in other circuits. Nothing more!

It therefore follows that under the direction of Section 25.3, it is hardly tenable to assign error to the refusal by Magistrate James B. Cooper to conduct a preliminary examination where the applicant for preliminary examination, as in the instant case, has been accused of committing a sexual offense.

Accordingly, we hold that the Magistrate, by not conducting preliminary examination, acted perfectly under the canopy of section 25.3 (a). We further hold that Section 25.3 (a) is the controlling statute in matters of sexual offense and therefore constitutes the supersedea law over and above all statues to the contrary, including Section 12.2 of the Criminal Procedure Law (1973).

Whether in apparent reliance on section 25.3 (a) the trial judge committed reversible error by failing to conduct a hearing on the summary proceeding, in which also a constitutional challenge was made, it is again worth mentioning, as we earlier stated, that upon being served with the provisional writ of mandamus, directing the respondents therein named to file returns to the petition, Her Honour Ceaineh Clinton-Johnson of Criminal Assizes “E”, in compliance with that command, filed a fifteen (15) count returns. The first eight (8) counts of the Judge’s returns seeks to respond to petitioner’s grave allegations that he was denied preliminary examination and due process of law. Hence, we hereby reproduce said returns in substantial part, as follows:

1.The Co-respondent Judge says that the entire Petitioner’s Petition for Mandamus must be dismissed and given no legal standing because the Office for Mandamus is a special proceeding to obtain a writ requiring the respondent to perform an official duty. To have Co­ respondent Judge to do a duty not in accordance with law or one which is expressly prohibited by law is not in the office of a Writ of Mandamus. Mandamus lies to have a respondent perform an official duty within the province of law.

2. Co-respondent Judge says that as the Count one (1) of Petitioners’ Petition for Writ of Mandamus, as a matter of law, same is not within the orbit of the law controlling in the matter before this Honorable Court. For, to say that this Honorable court to be held responsible for that part of Petitioners’ Petition which says informing the First Petitioner of his legal rights, is to say that Co-Respondent judge is exercising concurrent jurisdiction in two courts.

3. Co-respondent Judge further says that as to the count two, same is strictly out of the jurisdiction of the said Magistrate to do. First Petitioner clearly says that it was in the Magisterial Court that his rights were violated; this court does not see any violations and so could not even read into the action of SUMMARY PROCEEDINGS FOR PROHIBITION, against Co Respondent Magistrate Cooper.

4. Co-respondent Judge also says that the only matter before this Court is the SUMMARY PROCEEDINGS FOR PROHIBITION, which First Petitioner is yet to approach the Honorable Court for assignment for hearing. From a perusal of the records of this case file, same is clear that First Petitioner’s Petition is a fallacy; for all petitions, motions and or information to be heard, a request for assignment is made by application in writing of same and filed before the Clerk or Assistant Clerk of Court. Co-Respondent Judge respectfully requests this Honorable Court to take judicial notice of the case file and Petitioner’s Petition in its entirety.

5. Further as to Counts one (1) and two (2) of Petitioners’ Petition, Co­ Respondent Judge avers and says that the Law establishing this Court, An Act Amending Title 14 of the revised Code of Liberia, known as the Judiciary Law of 1972 by adding thereto a New Chapter to be known as Chapter 25 establishing Criminal Court “E” of the First Judicial Circuit, Montserrado County, and Special Divisions of the Circuit Courts of other Counties of the Republic to have Exclusive Original Jurisdiction over the crimes of Rape, Aggravated involuntary Sodomy, involuntary Sodomy, Voluntary Sodomy, Corruption of minors, Sexual Assault, respectively. Further, under Section 25.3 (a), the law provides:

“Jurisdiction of Magistrates in respect of Sexual Offenses shall terminate upon the making of a charge of a Sexual Offense” and the exercise of the power of arrest of the person or person charged.” There shall be no jurisdiction to conduct any preliminary or other investigations into any sexual offense charge. Each sexual offense case shall be transferred to the circuit court within 72 hours of arrest.”

6. Further, that the Co-Respondent Judge says that the Court could have only acted if Co-Respondent Magistrate Cooper had exercised jurisdiction over the case by conducting preliminary examination over the subject matter it has no jurisdiction over. This could have been in accordance with the provisions of law; that is to say that 25.3 (b) of the above stated Act which provides that Judges appointed to the Sexual Offences Division shall exercise the power to prohibit, by issuance of a stay order in the nature of a writ of Prohibition, any exercise of jurisdiction by Magistrates regarding Sexual offenses, Co­ respondent Judge is under no authority to instruct a magistrate to violate the above mentioned law.

7. Still further, co-respondent avers and says that at no time was this court’s act illegal and abuse of discretion by not granting First Petitioner Petition; for said Petition is in complete contravention of the law creating this court, which First Petitioner himself has admitted in Count two (2) of his Petition. To which Co-Respondent Judge prays that the entire count should be dismissed and denied by Your Honor’s refusal of the issuance of Writ of Mandamus.

8. Still further as to Count four (4) of Petitioner’s Petition, the refusal to do any illegal act, even if mentioned, is not an abuse of discretion. Secondly, First Petitioner’s allegations that Co-respondent Judge is lacking in knowledge of the law so this Court should be compelled to act illegally is a myth; therefore said count should be dismissed and denied. The Co-Respondent Judge says further as to counts three and four, same are fabricated and as such, Co-respondent Judge says that until First Petitioner can show how and when First Petitioner had the attention of this Court, Co-respondent Judge says that this Court cannot address itself to said fabrication because this Court is a Court of record.”

As can be seen, Judge Clinton-Johnson’s response to the petitioners’ petition raises a number of interesting questions. We will examine her response carefully in the manner following:

(a)Co-respondent Judge Clinton-Johnson has primarily contended that to warrant the issuance of the writ of mandamus, there must have been a refusal or failure to perform an official duty required under the law. But she contends that in the instant case, she has neither refused nor failed to perform any such duty to compel the issuance of this extraordinary writ; hence, Petitioners’ Petition must be dismissed in its entirety in keeping with the dictates of the law.

(b) Further providing reasons why mandamus will not lie, Judge Clinton­Johnson averred that the Act of the National Legislature establishing Criminal Court “E” of the First Judicial Circuit, Montserrado County, and similar Special Divisions in all other Circuit Courts of the Republic of Liberia, confers thereon “exclusive original jurisdiction” over sexual crimes and concurrently strips courts of first instance of the jurisdiction of preliminary examination or any other investigation into sexual offense charge.

(c) Also according to Co-respondent Judge, contrary to petitioner’s contention, mandamus would have been the appropriate remedy if the judge had failed to prohibit a Magistrate who dared embark on the conduct of preliminary examination or initiate investigation into sexual crime over which courts of first instance are want of jurisdiction.

(d) Co-respondent Judge Clinton-Johnson has equally maintained that the law does not impose any duty on her to conduct a hearing into the First Petitioner’s “summary proceeding”.

“The Supreme Court of Liberia Opinion in the case, Jurgensmeyer v. Horace, 6 LLR, page 256, syl. 1, 1938 says that it is within the power of the Legislature to amend, supplement or repeal any act previously passed by them chapter 12, section 12.1 of the Criminal Procedure Law which give the mandate to a magisterial court Judge to inform an accused of the right to Preliminary Examination, is a legislative Enactment of 1973. The section 25.3 (a) which prohibits a Magisterial Court Judge from conducting a Preliminary Examination in Sexual offense cases and limits jurisdiction to the making of a Charge in Sexual offense cases and the power to arrest the person(s) charged is also a Legislative Enactment. The later Legislative enactment which is the section 25.3 (a) on the issue of the Jurisdiction of a magisterial court Judge as it relates to Preliminary Examination is the controlling law within our jurisdiction.”

We are however reluctant to agree with Co-respondent Judge Clinton-Johnson that no duty existed to conduct a hearing on the “summary proceeding”. Clearly, several critical issues were set forth in the summary proceeding. These included a clearly raised challenge to the constitutionality of the statutory provision of section 25.3 (a). The judge’s conduct of inaction tended to assign meaning, however unclear, to Section 25.3 (a).

This is most troubling especially in the face of a clear constitutional challenge. In Ayad v. Dennis, one of the celebrated cases on due process of law, Mr. Justice Henries, speaking for a unanimous Supreme Court, held that when an application “might raise a constitutional issue”, said application shall be properly referred to the Full Bench for the Court’s consideration of the relief prayed for and final disposition thereof. [1974] LRSC 42; 23 LLR 165, 166 (1974). This principle has been articulated in numerous Opinions of this Court: See: Keyor v. Borbor and Carr, [1966] LRSC 54; 17 LLR 465, 471 (1966); Goodman Shipping and Stevedoring Corporation v. National Port Authority, 37 LLR 545, 548 (1994); Garlawolo et al. v. Elections Commission et al.[2003] LRSC 6; , 41 LLR 377, 383 (2003; Inter Burgo Industrial Company v . The Ministry of Agriculture et al., Supreme Court Opinion, October Term 2008.

Let us now consider the third crucial question. It should be observed that First Petitioner Clark has posed a strong challenge to the constitutionality of Section 25.3 (a). This contention evokes the question whether Section 25.3 (a) of the Act establishing Criminal Court “E”, by expressly divesting courts of first instance of the authority to conduct preliminary examination in cases of sexual nature, violate Article 21 (f) of the Liberian Constitution (1986)?

On the other hand, the language of Section 25.3 (a) clearly forbids any entertainment of a sexual offense case by a magistrate/justice of the peace for the purpose of conducting a preliminary examination. This is the clear and unambiguous expression of the provision:

“There shall be no jurisdiction to conduct any preliminary or other investigations into any sexual offence charge.”
As can be seen, the quoted provision expressly limits the power of courts of first Instance in every case where an accused is charged with an offense of sexual character. Accordingly, where the accused faces a charge of sexual nature, the function of courts of first instance (magistrate/justice of the peace) is there and then circumscribed only to issuing a formal Writ of Arrest setting forth therein the charge and serving the Writ of Arrest on the arrestee.

By the categorically clear language of Section 25.3 (a), no justice of the peace or magistrate can properly exercise the power of preliminary examination in any matter where the charge involves a matter of sexual assault.

First Petitioner Clark has submitted however that every accused person in this jurisdiction has a protected constitutional right to preliminary examination. Appearing before this Court of dernier resort, Petitioner’s lawyers exerted tremendous energy seeking to persuade this Court to accept the proposition that Section 25.3 (a) of the Act under review, by divesting the courts of first instance of the jurisdiction of preliminary examination in sexual offenses, contravenes and in fact snubs Article 21 (f) of the Liberian Constitution (1986); hence, should be declared as unconstitutional for all intents and purposes.

“A preliminary examination shall be given a defendant after his first appearance before the Magistrate or Justice of the Peace only if he requests it,

“The Legislature shall have the power: (e) to constitute courts inferior to the Supreme Court, including circuit courts, claims courts and such other courts with such prescribed jurisdictional powers as may be deemed necessary for the proper administration of justice throughout the Republic; ” (f) to establish various categories of criminal offenses and provide for the punishment thereof;”

It is in the exercise of its authority granted by the Constitution under Article 34 (e) and (j) that the Legislature enacted section 12.2 of the Criminal Procedure Code to give actual meaning to Article 21 (f) of our Organic Law providing, as follows:

“Every person arrested or detained shall be formally charged and presented before a court of competent jurisdiction within forty-eight hours. Should the court determine the existence of a prima facie case against the accused, it shall issue a formal writ of arrest setting out the charge or charges and shall provide for a speedy trial. There shall be no preventive detention.”

From the clear expression of the above quoted provision of the Constitution, we see a duty imposed on the State to present to court within forty eight (48) hours a person suspected of the commission of a crime. If the court is satisfied that a crime was committed, it would then issue a formal writ of arrest against the defendant. No reference is made to a person being accorded a preliminary examination. Indeed no reference is made to whether the person is presented before a magisterial or justice of the peace court, or a circuit court. Instead, no process or procedure is set out as to how the court, which ever court, reaches a conclusion that a crime was or was not committed and therefore whether a writ of arrest should issue or not. Instead, what the Constitution has done is to mandate our national Legislature to make laws to further the purpose of the Constitution. Thus, “Preliminary Examination” as provided in Section 2:12.1-12.3 of the Criminal Procedure Law, Rev. Code is the statutory handiwork of the Legislature.

In passing, it might be of interest to mention that this is not the first time a provision of the Act creating Criminal Court “E” has faced a constitutional challenge. In Solomon Fallah v. Republic, Supreme Court Opinion, March Term, A. D. 2011, the appellant, Solomon Fallah, contended that Section 25.3(c) of the Act violated a provision of Article 21 (h) of the Liberian Constitution granting an accused the right to confront his accusers. Section 25.3(c) of the Act, challenged to be in contravention of the Organic Law allows for “in camera conduct” of trial of sexual crimes ( 1) where the crime victim is less than 18 years old, and (2) where the need for victim’s protection has been judicially determined to be warranted. Trial “in camera” is a procedure enabling a crime victim or private prosecutor/prosecutrix to testify behind a screen or via closed-circuit television.

Also in Kasaykro Corporation v. Stewart and Winter Reisner & Company, [1982] LRSC 47; 30 LLR 164 (1982), Mr. Justice Smith, restating a settled principle in this jurisdiction, held:

“This Court can only construe a statute to find the legislative intent.” Id. 172. Also see: George v. Republic, 14 LLR 158, 159 (1960).

For this prime reason, this Court declines to accept the proposition that the Legislature, by stripping courts of first instance of the authority to conduct preliminary examination in sexual crimes, as provided under Section 25.3 (a), the Legislature intended to garnish forever the right it heretofore granted for the conduct of preliminary examination. We hold that the stripping by Section examination in crimes of sexual nature does not, ipso facto, constitute an absolute ban of the office of preliminary examination in sexual cases. This Court has determined that Section 25.3 (a) neither garnishes, nor could the Legislature have intended to extinguish the rights of preliminary examination. To the contrary, the Act of the National Legislature amendatory to Title 14 of the Revised Code of Liberia expressly confers “exclusive original jurisdiction” on Criminal Assizes “E” and all similar special divisions over “rape, aggravated involuntary sodomy, involuntary sodomy, voluntary sodomy, corruption of minors, and sexual assault.” The Legislature, by in one breadth stripping courts of first instance of the jurisdiction to conduct any preliminary examination in sexual crimes and in the same breadth mandating a magistrate to “transfer” all such sexual crimes to the Circuit Courts with concurrent conferral of “exclusive original jurisdiction” on said Circuit Courts, the law makers clearly intended that these Special Tribunals conduct preliminary examination, as if they were courts of first instance.

As at September 25, A. D. 2014, the date of filing of the petition for a writ of mandamus, Second Petitioners claimed to have been locked up behind bars for more than eighteen (18) months. Although Second Petitioners have been detained for this agonizingly long period, Prosecution is yet to secure an indictment due to the apparent inability of Prosecution to “find evidence against them (Second Petitioners]”.

Following over one and the half years of incarceration without even the benefit of being presented an indictment, and now that Prosecution has filed an application for nolle prosequi in their favour, Co-respondent Judge, Her Honour Ceaineh Clinton-Johnson, Petitioners say, has refused to order a hearing on the application. Second Petitioners have reproached this alleged conduct on the part of Judge Clinton-Johnson terming said conduct as an act of bolstering “preventive detention”. It is Second Petitioners’ submission that in many instances, persons charged with rape are detained long before evidence is procured for their prosecution. If no evidence is found after two or more years, they have further submitted, the accused persons sometimes die in jail if not released through the application of nolle prosequi. Second Petitioners maintain that nolle prosequi is a legal right of the State provided under Chapter 18, section 18.1 of the Criminal Procedure Law of Liberia. For this conduct, Second Petitioners have accused the judge of depriving the petitioners of their constitutional right to due process of law. Hence, mandamus will lie.

To these grave accusations Judge Clinton-Johnson responded. Again this Court will quote hereunder the relevant counts of her returns to wit:

” 9. That as to count 5 (five) of Second Petitioners’ Petition, Co­ Respondent Judge denies same and requests this Honorable Court to take judicial notice of the files of said cases. This Court says that the rights of indigent defendants are protected by the Public Defense Office upon a showing to Court that said defendants are indigents. The said defendants’ rights represented by the office of the Public Defense have no showing that this Court has ever determined said defendants to be indigents before this Court; Second Petitions cannot establish this.

10. That further as to Count five (5) of Petitioners’ Petition, which says that even though a Motion of Nolle prosequoi in five different cases (Republic of Liberia versus Blama Weah; Alphonso Landford and others, were filed by Prosecutor on the 27h day of May, Co­ Respondent Judge respectfully request this Honorable Court to take judicial notice of the files in these proceedings.

11. Co-respondent Judge admits and says that it is now in the process of clearing dormant cases from its docket but denies that it ever advised prosecution that all Nolle Prosequoi cases will be heard after this court shall have exhausted its trial docket for this Term of Court; this Term of Court is almost over and out of the 22 cases docketed prosecution was only able to effectively prosecute two cases; how can the court determine that the docket has to be exhausted before it can hear matters brought before in the Term. Co-respondent Judge says that this is untrue and misleading and intended to make a mockery of the Court’s reputation. Further, Co-respondent Judge says that the office of the Public Defense did request for one assignment for the hearing of the Nolle Prosequoi while the court was in the middle of a jury trial.

12. Co-Respondent Judge argued and averred that the Motion to Nolle Prosequoi shall only be granted under section 18.1 of the Criminal Procedure law upon leave of court; and this right/ motion can only be brought to the attention of this Court if the Nolle prosequoi is to dismiss an indictment in case of indictable nature Chapter 18, Section 18.1 provides:

“The prosecution Attorney may ‘by leave of court’ file a dismissal of an indictment or complaint or of a count contained therein as to either all or some of the defendants. The Prosecution shall thereupon terminate to the extent indicated.” Hence, Co-Respondent Judge says and argues that before this Court there have been no indictment filed against the within stated Second petitioners Blama Weah et al., neither are three case files before this Court stating that the said Second Petitioners/Defendants are indicted and awaiting trial. Hence, Second Petitioners’ Petition should be denied and dismissed.

13. That Co-Respondent Judge says that second Petitioners would have had a right of action against the court if they had filed a Motion to Dismiss and the Prosecution did not show good cause for their prolonged detention and the court had refused to grant their Motion absent this, the Second Petitioners have no claim on this court. Therefore their Petition for Mandamus must be dismissed.

14. That Co-Respondent Judge avers and says that a Nolle Prosequoi is an application, which can only be granted by leave of court. This Court’s understanding of this provision of law is that the court must hear same and make a determination as to whether or not to grant same as it is a request for judicial permission to allow the Prosecution to follow a non-routine procedure.

“Application’ according to Black’s Law Dictionary (9th Edition), is “A request or petition; Motion.” P.115. In this jurisdiction, the word “motion” is generally used interchangeably with the word “application”. The word “application” has also been defined and passed upon by the Supreme Court of Liberia in a litany of its Opinions.

To this contention as well as the law relied on, this Is Judge Clinton­ Johnson’s response as set forth in the following counts of her returns:

12. Co-Respondent Judge argued and averred that the Motion to Nolle Prosequoi shall only be granted under section 18.1 of the Criminal Procedure law upon leave of court; and this right/motion can only be brought to the attention of this Court if the Nolle prosequoi is to dismiss an indictment in case of Indictable nature Chapter 18, Section 18.1 provides:

“The prosecution Attorney may ‘by leave of court’ file a dismissal of an indictment or complaint or of a count contained therein as to either all or some of the defendants. The Prosecution shall thereupon terminate to the extent indicated.” Hence, Co-Respondent Judge says and argues that before this Court there have been no Indictment filed against the within stated Second petitioners Blama weah et al., neither are three case files before this Court stating that the said Second Petitioners/Defendants are indicted and awaiting trial. Hence, Second Petitioners’ Petition should be denied and dismissed.

13. That Co-Respondent Judge says that second Petitioners would have had a right of action against the court If they had filed a Motion to Dismiss and the Prosecution did not show good cause for their prolonged detention and the court had refused to grant their Motion; absent this, the Second Petitioners have no claim on this court. Therefore their Petition for Mandamus must be dismissed.

Accordingly, the Clerk of this Court Is hereby commanded to issue a mandate directed at the judge presiding in the court below to resume jurisdiction over this case and give effect to this judgment. AND IT IS SO ORDERED.

COUNSELLORS JAMES C.R. FLOMO AND ELIJAH Y. CHEAPOO. SR. OF THE PUBLIC DEFENDERS FOR MONTSERRADO COUNTY, REPUBLIC OF LIBERIA, IN ASSOCIATION WITH COUNSELLOR J. LAVELI SUPUWOOD, APPEARED FOR THE PETITIONERS. COUNSELLOR BETTY LAMIN-BLAMO, SOLICITOR GENERAL, REPUBLIC OF LIBERIA, APPEARED FOR THE RESPONDENTS.