The Concerned Sector Youthby and thru its Board Chairman, Mr. James K. Doe of the City of Monrovia, Liberia PETITIONER Versus LISGISrepresented by its Director General, Dr. Edward Liberty, National ElectionsCommissionrepresented by and thru its Chairman, the Speakerand Members of the House of Representativesand the President Pro Temporeand Members of the House of the Senate, all of the City of Monrovia, Liberia RESPONDENTS
LRSC 40
PETITION FOR A WRIT OF PROHIBITION
HEARD: JUNE 16, 2010 DECIDED: August 30, 2010
MR. JUSTICE FRANCIS S. KORKPOR, SR.
MR. JUSTICE KORKPOR DELIVERED THE OPINION OF THE COURT
On February 17, 2010, the petitioner, known as the Concerned Sector Youth by and through its Board Chairman, James K. Doe of the City of Monrovia, Liberia, filed a petition for a writ of prohibition with the Justice in the Chambers of this, Court. The petition was filed against LISGIS represented by its Director General; National Elections Commission represented by and thru its Chairman; the Speaker and members of the House of Representatives; and the President Pro Tempore and members of the House of the Senate.
The petition prayed the Chambers Justice to grant the writ of prohibition “to restrain, undo and prohibit the use of the report from the census conducted by LISGIS and to prohibit the Legislature from passing the threshold bill based on the census report, prohibit co-respondent National Elections Commission from relying on the said census report in creating constituencies, and order the Legislature not to cause the conduct of any census in keeping with Article 39 of the Constitution until after ten years as enshrined in the Constitution, until such time when conditions are favorable for the conduct of census to allow citizens to be reached and counted.”
We must note, at this juncture, that the petitioner’s original petition filed was entitled: “Petitioner’s Amended Petition”. Then we see in the records a notice of withdrawal filed with the Clerk of this Court on May 27, 2010, by which the petitioner withdrew its original petition reserving unto itself the right to refile. And on the same day, May 27, 2010, the petitioner filed another amended petition. This is a strange practice. But we shall come to this later in this opinion.
We quote the petitioner’s second amended petition:
“1. That the petitioner is a corporate entity duly established under the laws of Liberia with specific operation in human, civil rights advocacy, community development, etc. Attached is a copy of petitioner’s articles of incorporation herein marked exhibit p/1 to form a cogent part of these proceedings.”
“2. That pursuant to article 39 of the Constitution of Liberia, it is required that census is taken every ten years, but as a result of the civil crisis, that provision of the constitution became mute, more besides, many of our people fled the country to neighboring states or far away near or other continents, as such since then, up to and including the filing of this petition, many of our people are yet to return. Petitioner requests that Your Honours will take judicial notice of [these] historical facts.”
- That due to the civil crisis, roads were not maintained and needed rehabilitation to make most of the places accessible to ensure free movement of citizens throughout the Country.”
“4. Petitioner says that in pursuance of the constitutional provision for the conduct of census, the Government of Liberia elected to put into place a mechanism for the conduct of census as such, co-respondent LISGIS was clothed with authority to ensure the successful conduct of census, that is to recruit and train enumerators and to facilitate their operation so as to ensure said census be conducted within the slated time and that our people are counted accurately.”
“5. That the legislation authorizing the conduct of census failed to observe the constitutional provision which says that census shall be conducted after every ten years for the fact that constitutional operation started January 2006 following the inauguration of this Government as such ten years of constitutional operation to complete ten years period for census should be 2016 and not 2008. Hence the authority to conduct census is illegal for which prohibition will lie.”
“6. Petitioner says that in addition to the illegality of the legislation for the conduct of census, bad road conditions hampered the process, because enumerators’ human resource capacities were limited, they were unable to reach some towns and cities within given counties, and as such many of our people were not counted, more besides, government’s inability to ensure that our people return to participate in the process also served as an impediment to the accuracy, legitimacy and necessity of the process, yet corespondent LISGIS claimed to have had successful census conducted, which petitioner vehemently opposes for its authority by the untimely act is illegal.”
“7. Further, petitioner says that because of the illegality of the act, reports emanating from the census conducted under such illegal authority are not legitimate.”
“8. That because of the inaccessibility of roads, many enumerators were also unable to reach every part of our country, as such, petitioner says said census report cannot be considered accurate and acceptable.”
“9. That the conduct of census after every ten years as enshrined in the constitution is intended to ensure full and fair participation of the people in the fetch of their government, hence the conduct of said census that will determine representation and participation of the people in their government needs to be done in the manner that will reflect fairness in the best interest of participatory democracy, which is contrary in the instant case, therefore, petitioner vehemently rejects the use of the census report for threshold bill by co-respondent the National Legislature, and the reapportionment of constituencies by co-respondent NEC as it does not show and guarantee the full participation of our citizenry.”
“10. That with all the impediments above mentioned, fulfillment of constitutional provision does not have to be prioritized against its consequences. The civil crisis prevented the conduct of census and we have just returned to civilian rule after the 2005 election. It will be prudent to begin the ten-year census provision from 2006 so as to allow adequate preparation for a successful census.”
“11. That the petition is filed in good faith and not for dilatory purpose.”
On receiving the petition, the Justice in Chambers cited the parties to a conference on February 22, 2010. Co-respondent National Elections Commission, by and through its legal counsel, Counsellor Joseph N. Blidi, requested postponement for one week to “prepare for the conference”. Similarly, co-respondents, Liberian Senate and House of Representatives, by and through their legal counsel, Counsellor Joseph N. Nagbe, requested postponement of the conference for about three (3) weeks. “… to adequately respond to the petition”.
The requests for postponement were granted and the conference was rescheduled to March 8, 2020. All the parties were informed accordingly. However, on March 3, 2010, five days before the date of the rescheduled conference, the petitioner filed with the Justice in Chambers, a bill of information consisting of three counts, praying for a stay order to restrain the respondents from performing any act in connection with the subject matter of the petition for prohibition. We quote counts two and three of the bill of information:
“2.That Your Honor’s order of February 17, 2010, citing the respondents to a conference did not include a stay order for which, while the matter is pending before Your Honour, respondents are proceeding with the passage of said bill.”
“3. Due to the importance of this constitutional matter, a stay order is necessary for subsequent issuance of the writ of prohibition.”
On receipt of the bill of information, the Chambers Justice cited the parties to a conference on May 5, 2010. In the citation issued, a clause was inserted for the respondents “to stay all further proceedings pending the outcome of the conference.” It appears that the parties did not arrive at any amicable resolution of the matter amongst themselves at the conference called by the Justice in Chambers.
On May 19, 2010 the Justice in Chambers ordered the Clerk of this Court to issue the alternative writ of prohibition prayed for. And the Justice having determined that the petition raised constitutional issues which must be decided by the full bench of this Court, ordered the Clerk to forward the matter to us. The named respondents in the petition for prohibition were ordered to file their returns. The Chambers Justice instructed the Clerk to inform the Minister of Justice that due to the constitutional issues raised in the petition for prohibition and because the Ministry of Justice is the legal representative for the Government, that Ministry should file a brief to present Government’s position on the matter.
On May 31, 2010, co-respondent LISGIS filed an eight —count returns to the petition for prohibition. We quote counts 2, 4, 7, 8 and the relevant part of the prayer of the returns:
“2. That as to count two of the petitioner’s petition, co-respondent says that the Supreme Court does not take evidence. The suggestion by the petitioner that during the hearing of the petition, it will prove and/or substantiate the allegations that since the Liberian civil crisis, many Liberians have not returned which is one of the basis for the writ of prohibition runs contrary to our law extant. In this jurisdiction, like other jurisdictions in world, the Supreme Court exercises appellate jurisdiction. In the instant case, where the petitioner intends to establish or prove its allegations by the production of documentary evidence to substantiate the allegations, [petitioner] should have first sought to have done so in the court below, either by means of a petition for declaratory judgment along with a petition for preliminary injunction, so that any ruling therefrom can be reviewed by this Honourable Court. The attempt by the petition to do this before the Supreme Court is not supported by our law. Hence, count two of the petitioner’s petition should be disregarded and dismissed.”
“4. That as to count four of the petitioner’s petition, co-respondent says that the census was conducted and the report thereof was received and adopted by the government more than two years ago without any objection from the petitioner. Whatever objection that t he petitioner herein must have had against the conduct of the census should have been raised during the census or after the census result was published. More besides, the petitioner was in Liberia when the preliminary as well as the final results of the census were announced. Again, the petitioner did not raise any objection. The office of prohibition is to prevent. The fact that the petitioner sat supinely without taking any action until the entire census process was finalized and approved, means that the petitioner suffers waiver and latches against the census result or the implementation of same. Count five of the petitioner’s petition should be disregarded and dismissed.”
“7. Further to count six above, co-respondent says that as a result of the census, Liberia and Liberians have benefited enormously. Most of the assistance that are being raised could not have come about without the 2005 census. In other words, the benefits that the country is reaping from the 2005 census out-weigh [whatever] discrepancy the petitioner has spelt out in its petition. More besides, the current census report is likely to increase the number of representation of the people in the government, meaning that to do away with the current census report will deprive the citizen of full representation.”
“8.Further to counts six and seven above, co-respondent says that this petition was filed in bad faith and is impregnated with political over tune. Any attempt to politicize the census report by attempting to set it aside, is likely to affect the Liberian nation, in that the international community in their desire to assist the Liberian nation, expended the total of seven million United Stated dollars (US$7,000.000.00) to support the conduct of the census while the government of Liberia used two million United States dollars (US$2,000,000.00) from its meager resources so that the people of Liberia can get the needed assistance. Counts nine, ten and eleven of the petitioner’s petition should be disregarded and dismissed.” “Wherefore, and in view of the foregoing, co-respondent most respectfully prays Your Honours and this Honourable Court to deny and dismiss the petitioner’s petition:
“a.because the petitioner failed to establish legal capacity for the institution of this action.”
“b.because the petitioner wants the Supreme Court to take evidence …in violation of our rule of evidence.”
“c.because the petitioner’s petition is belated, in that, prohibition is preventive and the petitioner herein having sat supinely until the preliminary census result was published without any objection and the final census result was also published and adopted by the government without any objection from the petitioner means that the petitioner suffers waiver latches and that t he petition therefore lacks any legal foundation.”
On May 31, 2010, also, co-respondent Government of Liberia filed a sixteencount returns to the petition for prohibition. We quote counts 1, 2, 4, 5, 6, 7, 10, 12, and 14 of the returns:
“1. The Government of Liberia contends and maintains that prohibition is the wrong form of action and prohibition will not lie to restrain the National Legislature from performing its constitutional mandate to set a threshold based on the population statistics. In other words, prohibition cannot, should not, and ought not to lie to prohibit the implementation of the Constitution which is the organic law of the Republic.”
“2. That prohibition would also not lie in that neither the Legislature nor LIGIS is performing a judicial act. The acts sought to be restrained are administrative, political and a constitutional mandate on the part of the National Legislature and a statutory mandate on the part of LIGIS. Those acts are not the office of prohibition under Liberian law. See Civil Procedure Law, Chapter 16 16.21 (3), 1LCLR 146.”
“4.Petitioner’s amended petition should be denied, dismissed and set aside because it is improperly verified. The affidavit attached thereto verifies and confirms that the allegations set forth in the petitioner’s “petition” are true and correct. The amended petition has no attestation or verification and hence the said amended petition stands alone and unverified. Therefore it should be stricken as if it were never field. See Civil Procedure Law, Chapter 9 9, 10 (1) (5), 1 LCLR 109-110.”
“5. The amended petition should further be denied because the petitioner failed to comply with the mandatory statutory requirement of paying accrued costs. Petitioner in deed did not pay accrued costs and that accounts for why it is not mentioned in the amended petition and also why the receipt in evidence thereof is not attached as an exhibit. See Civil Procedure Law, Chapter 9 9, 10, (1), 1LCLR 112. For this woeful legal blunder the amended petition should be denied and dismissed. And the Government so prays.”
“6.That as to count two of the petitioner’s amended petition, same is vague as to the phrase “our people”. The question is, who are “our people” that have not returned. Assuming that petitioner is referring to the citizens and residents of Liberia, the fact that some Liberian citizens choose to remain outside of Liberia is natural and cannot be the basis of objecting to the usage of a legally conducted census result as a basis for determining constituencies in Liberia.”
“7.Further addressing count two of petitioner’s amended petition, the Government submits that the Liberian people that sought refuge outside of Liberia came from all fifteen counties of Liberia. So, the fact that some of them have not returned ought not to invalidate a census result. The census results is a reflection of those who were present in each of the fifteen counties of Liberia and is not in any way prejudicial to any county, hence our system of government being that of a representative democracy, the net of the majority is binding on the absent minority. Hence, count two ought to be overruled, set aside and dismissed.”
“10. That as to count four of the petitioner’s amended petition, the Government says that certainly the Government of Liberia, thru LIGIS, set in motion a mechanism and the census was conducted without reservation from any quarter and the result was acceptable and published by the National Government and all national and international actors were advised by the President of Liberia to use it as the official statistics of the Republic. Therefore, count four should be overruled and dismissed.”
“12. That as to count six of the petitioner’s amended petition, co-respondent, LIGIS submits that it professionally conducted the 2008 National Census in collaboration with its several partners and international organizations and that the result was submitted to the Government of Liberia and published as an official document, without any objection whatsoever. Hence, count six of petitioner’s amended petition should be overruled and dismissed.”
On June 4, 2010, co-respondent National Elections Commission filed a sixteen — count returns to the petition for prohibition. We quote counts 2, 4, 7, 8, 9, and 11 of the returns:
“2. [That]…under Liberian Law, a corporate entity like the petitioner is a fictitious person or corporate person. It does not have voting rights. There is no showing by petitioner that the people on whose behalf it filed this petition authorized [petitioner] by a power of attorney or any other legal means.
“4. That still as to counts 1 and 11 of petitioner’s amended petition, corespondent NEC, contends that the purported articles of incorporation attached to petitioner’s amended petition is signed by Cllr. Thompson Jarba alone as incorporator; nowhere in said purported articles of incorporation is the name of James IK. Doe mentioned as incorporator. There is no instrument/document attached to Petitioner’s Amended Petition to show that James K. Doe has been its board member or chairman since the time it was formed or that he was elected as chairman of the board; therefore, the petitioner does not meet the requirements to be considered a corporate entity; even if petition were to meet the requirements of being a corporate entity, James K. Doe was never elected its board chairman. As such the Petitioner and James K. Doe are non existing entities and individual who have no capacity/standing to file the petition for a writ of prohibition [therefore], petitioner’s entire amended petition should be dismissed.”
“7. That still further to count 2 of petitioner’s amended petition and as to counts 3 and 5(b) of petitioner’s amended petition which mentioned that many Liberians are living in foreign countries and therefore they were not counted; that roads which were not maintained due to the civil crisis needed to be rehabilitated to ensure access and free movement throughout Liberia and that bad road conditions prevented enumerators of co-respondent LISGIS from reaching some towns and cities thereby causing many people from being counted, co-respondent NEC asserts:
“a. The Liberian Government(s), including the present government and interim ones, in collaboration with the international community since the year 1994 has exerted huge efforts to repatriate Liberian citizens which efforts resulted to the return to Liberia of most of the Liberian refugees who are willing to return home.”
“(i) An act to make provision for refugees and to establish the Liberia Refugee Repatriation and Resettlement Commission (LRRRC) was approved November 1, 1993 and published on January 19, 1994. Co-respondent NEC requests court to take judicial notice of this Act.”
“(ii) Since the establishment of the LRRRC in 1994, it has collaborated with and continues to collaborate with the United Nations High Commissioner for Refugees (UNHCR) as a result of which Liberian refugees have been repatriated from a number of countries, including but not limited to Guinea, Ivory Coast, Sierra Leone, Ghana and Nigeria.”
Recent statistics show the following:
“(a) From October 2004 up to August, 2009 — [the] total of 233,264 were originally registered;”
“(b) 122,810 returned to Liberia upon receiving assistance;”
“(c) 45,954 returned to Liberia spontaneously;”
“(d) The total number of returnees was 168,764 leaving a balance of 64,500 Liberians.”
“Co-respondent NEC requests Court to take judicial notice of copies of UNHCR voluntary repatriation statistics marked as NEC/1 and attached hereto for easy reference.”
“Co-respondent NEC says that since September 2009 up to and including the present, many more Liberians have returned home (with or without assistance).”
“Co-respondent NEC avers and asserts that petitioner has placed unwarranted and undue emphasis on Liberians in foreign countries, especially when these relatively small number of Liberians are pitched against the three million four hundred thousand Liberians counted and reflected in the 2008 National Population and Housing Census. Co-respondent NEC requests Court to take judicial notice of UNHCR Voluntary Repatriation Statistics marked as R/1 and attached hereto to form cogent part of the returns.”
“8. That further to counts 2, 3 and 6 of petitioner’s amended petition, specifically those relating to bad road condition, alleged non-rehabilitation of roads and lack of access to towns and cities allegedly resulting to noncounting by co-respondent LISGIS’ enumerators of some people, corespondent NEC says that the fact that GOL has been rehabilitating roads and even building new ones is public historical fact which this Honourable Court is respectfully requested to take judicial notice of (1 LCLR 25.2, p. 196). Co- respondent NEC says that experience is the best teacher; when the first Liberian National Census was undertaken in the year 1962, there were fewer roads then there were in 2008 and paths were used in 1962 by enumerators to reach citizens in remote areas. Enumerators in the 2008 census were better situated in this regard than those of 1962.”
“9. That as to count 4 of petitioner’s amended petition, co-respondent NEC says petitioner admitted that co-respondent LISGIS exercised jurisdiction vested in it when petitioner states in said count 4: “Petitioner says that in pursuance of the constitutional provision for the conduct of census, the government of Liberia elected to put into place a mechanism for the conduct of census as such, co-respondent LISGIS was clothed with the authority to ensure the successful conduct of census, that is to recruit and train enumerators and to facilitate their operation so as to ensure said census be conducted within the slated time and that our people are counted accurately.,” Under Liberian law, a petition for a writ of prohibition will not lie where, as in the instant case, an agency or court exercises jurisdiction vested in it sand where there is no attempt made on its part to abuse its jurisdiction or proceed by the wrong rule. In addition to this admission by petitioner, an act creating co-respondent LISGIS grants it the power to conduct census under 50A.8 (6). In addition, the Legislature passed an act authorizing co-respondent LISGIS granting it specific powers to conduct the 2008 National Population and Housing Census. “An Act Authorizing the Executive Branch of Government to Conduct the National Census of the Republic of Liberia.” Moreover, since co-respondent LISGIS did nothing illegal by conducting the 2008 census, the results and figures contained in the 2008 Population and Housing Census are legal, legitimate and accurate. Hence, they should be used to pass a threshold bill to enable co-respondent NEC to reapportion constituencies and subsequently conduct presidential and legislative elections on the second Tuesday in October 2011. In other words, prohibition will not lie under these facts and circumstances.”
“11. That still further to counts 5 and 6 of petitioner’s amended petition, as well as the entire petitioner’s amended petition, co-respondent NEC contends vehemently that petitioner suffers lashes in that it slept on its purported rights; assuming without admitting that it had such rights in the first place, because the petitioner sat and looked on supinely when the National Legislature passed the Acts in the year 2004 creating co-respondent LISGIS wherein it is granted powers to conduct censuses. (See Chapter 50A, subsection 6). The Legislature passed another Act in the year 2007 authorizing the Executive Branch and by extension empowering corespondent ISGIS to conduct the 2008 National Population Census; huge funds were raised and generated for the conduct of the census; the census was conducted; preliminary results to the census were released for public scrutiny; final results were released and published; the National Legislature conducted protracted debate and passed a Threshold Bill at 40,000 per constituency; the President of Liberia vetoed it; the Legislature passed another Threshold Bill setting the threshold at 48,000; the President again vetoed this. All these activities were done in the public domain covering a period of about six (6) years. Yet petitioner did not file any petition until the 17th day of February 2010 and amended same on May 27, 2010.””Petitioner suffered lashes given the facts and circumstances narrated supra.”
The petitioner filed its legal brief which it withdrew and amended; the various entities of Government—the National Legislature, LISGIS, NEC and the Ministry of Justice consulted among themselves, combined and consolidated their defenses in one joint legal brief. Argument in the matter was had on June 16, 2010.
Before delving into other issues relating to this matter, let us now comment on the original petition filed by the petitioner on February 17, 2010 which it entitled:
“Petitioner’s Amended Petition.”
Section 9.10, 1LCL Rev., tit.1 (1973) provides:
“At any time before trial any party may, insofar as it does not unreasonably delay trial, once amend any pleading made by him by:
(a) Withdrawing it and any subsequent pleading made by him;”
(b) Paying all costs incurred by the opposing party in filing and serving pleadings subsequent to the withdrawn pleading; and
(c) Substituting an amended pleading.”
As we have noted, what the petitioner did is foreign to our practice. Under our practice, an original pleading can not be styled and entitled “amended”. For an amended pleading to exist, there must be a first pleading which the amended pleading seeks to correct or rectify or replace. This is what is known in legal parlance as amendment to a pleading.
As the statute provides, either party has one chance to amend his/her pleading before trial commences so long this does not unreasonably delay trial. And this is done by a party withdrawing the original pleading, paying all costs incurred by the opposing party in filing and serving pleading subsequent to the withdrawn pleading and substituting the original pleading with an amended pleading. This Court has held that petitions for remedial process before the Justice in chambers or the full bench are pleadings which may be amended in accordance with the law applicable to pleadings generally. Nasser vs. Gray, 26 LLR 115 (1977).
But the records before us do not show that the petitioner filed an original petition, withdrew it, paid accrued costs to the respondents and then filed an amended petition as provided by statute. Were this to be the case, there would have been no need for the amended petition filed on February 27, 2010, since the law provides that a party can only amend a pleading one time. The truth is that the original petition filed by the petitioner was entitled “Petitioner’s Amended Petition” and this is not the practice in this jurisdiction.
When questioned concerning the filing of the two amended petitions, the counsel representing the petitioner, Counsellor Thompson Jargba, apologized and requested Court to disregard the amended petition filed on February 17, 2010. We must say that ordinarily, this Court would have dismissed the petition for prohibition for this legal blunder committed. However, considering the nature of this case, we granted the request of the petitioner’s counsel and disregarded the use of the word “amended” on the petitioner’s petition for prohibition filed on February 17, 2010.
Now, the parties in this prohibition matter have raised several issues, some tending to invoke the interpretation of provisions of our Constitution. The law requires that issues in a prohibition matter be narrowly drawn and only questions that are necessary to a decision may be considered. Section 84, 63c AM JUR 2d, Scope of hearing; determination of issues by superior court.
Regarding the disposition of constitutional issues, the law is that “if a case can be decided on either of two grounds, one involving a constitutional question, the other on statutory or general rule, the Court will decide on the latter.” In other words, the Court will not pass upon a constitutional question if there is also present, some other ground upon which the case may be disposed of. Liberia Bank for Development and Investment vs. Lancelot Holder, 29 LLR 310 (1981).
So, we have narrowed the issues in this case and will consider only two questions based on statutory and general rule, not any constitutional question.
The first question is, does the petitioner have standing to institute this action? We note that this issue was raised by all of the respondents.
“Standing to sue means that [a] party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. The requirement of “standing” is satisfied if it can be said that the plaintiff has a legally protectable and tangible interest at stake in the litigation.” Black’s Law Dictionary, 8thEdition.
The doctrine of standing ensures that the courts will have the benefit of real adverse parties in cases. Thus the question whether a party has standing to participate in a judicial proceeding is not simply a procedural technicality but, rather involves the remedial rights affecting the whole of the proceeding. Section 30, 59 AM JUR 2d; Standing.
Standing involves jurisdictional issue which concerns power of courts to hear and decide cases and does not concern ultimate merits of substantive claims involved in the action. Before a matter can be decided on its merits the issue of standing must first be decided. And if it is determined that the plaintiff lacks standing to institute the actions, the action will be dismissed without deciding the substantive issues raised in the case.
By virtue of its articles of incorporation duly filed with the Ministry of Foreign Affairs and the endorsement by that Ministry as required by section 1.4 of the Associations Law of Liberia for the petitioner to operate as a juridical person —to sue and be sued, no one is questioning the petitioner’s right to file a law suit. No one is questioning, also, the petitioner’s right to file an action in the cause of the “civic and social interests of Liberians” as this is provided for under article 4 (4) of the petitioner’s articles of incorporation.
Our law provides that one who may be prejudiced or threatened by the enforcement of an act of the Legislature may question its constitutionality. A group or organization can also have standing as a representative of its members in bringing a suit. But the group or organization must allege facts sufficient to make out a case or controversy as if the members themselves had instituted the suit. A mere interest in a problem, no matter how qualified the group or organization is in evaluation the problem, is not sufficient by itself to render a group or organization adversely affected or aggrieved for the purpose of giving it standing to obtain judicial decision. Only a real party in interest has the right to question the constitutionality of a statute or ordinance before the court. Center for Law and Human Rights Education et al. vs. Monrovia City Corporation, 39 LLR 32 (1998).
The question then is, who is James K. Doe, the purported chairman of petitioner’s board through whom the petitioner filed this petition? What is James K. Doe’s connection, if any with the petitioner and by what authority did he institute this action? We ask these questions because the petitioner did not establish that James K. Doe had any connection whatsoever, with the petitioner and he was authorized to institute this petition for prohibition.
Under the Associations Law of Liberia, a corporate entity, like the petitioner in this case, is a fictional person distinct from its shareholders or members with separate rights and liabilities. Reliance: Section 2.5, Associations Law of Liberia. And a corporate entity, a fictional person, operates and acts through a natural person; but not just any natural person, a corporate officer. A corporate officer is a person who fills the office which is provided for in the charter or articles of incorporation of the corporation such as president, vice president, general manager, treasurer, etc. In our jurisdiction, a corporation may also act through its chairman of the board of directors.
But before a law suit is maintained in the name of a corporation through its chairman of the board, there must be a showing that the designated person is in deed the chairman of the board. Every corporate entity, under Liberian law is required to have a board. The procedure in vogue is for the shareholders to choose and name the initial board of directors in the articles of incorporation, or state the number of directors in the articles of incorporation and subsequently choose the directors.
At each annual meeting of shareholders, directors shall be elected to hold office until the next annual meeting except as authorized by section 6.5 of the Associations Law of Liberia. (Classification of directors). The articles of incorporation may provide for the election of one or more directors by the holders of the shares of any class or series. Each director shall hold office until the expiration of the term for which he is elected, and until his/her successor has been elected and qualified.Section 6.4 (1) & (2) Associations Law of Liberia.
In the records certified to us, there is no showing that James K. Doe was ever elected a board member of the Concerned Sector Youth, thoughtless of him being the chairman of such board. The articles of incorporation proffered by the petitioner are completely silent on this point. In fact the articles of incorporation do not show, and the petitioner did not annex any other document to its petition to show that James K. Doe, petitioner’s purported board chairman is even remotely connected with the Concerned Sector Youth.
But even if James K. Doe were a bonafide chairman of the board of the petitioner and could therefore bring suit in the name of the corporation, James K. Doe would still need authorization from the Concerned Sector Youth to institute a law suit in such representative capacity. Normally, a board resolution giving authority would issue. The petitioner did not annex any such document to substantiate that James K. Doe was authorized and empowered to file this petition for prohibition.
So, without establishing who James K. Doe is, without establishing his connection, if any, with the petitioner and without showing that James K. Doe was authorized to file this prohibition matter on behalf of the petitioner, how are we to take it that the petitioner has a legal and actual interest in filing this petition?
Moreover, we observe that the petitioner, a corporate entity, undertook to file this petition on behalf of certain group of Liberian citizens who the petitioner has referred to as “our people”. As the co — respondent Government of Liberia asked in its returns to the petitioner’s petition, so do we ask: who are these people? Did they authorize the petitioner to file this petition on their behalf? If so through what means, individual contacts by word of mouth or collective approach through a written request? We doubt that the petitioner was authorized to file this petition. And our doubt stems from the fact that there is no show of authority from the purported group of Liberians flowing to the petitioner to act on their behalf.
As we have stated, the purpose of the law on standing is to protect against an improper plaintiff and ensure the benefit of a real adverse party who is entitled to a relief. The petitioner has not established that James K. Doe is indeed its board chairman and was authorized to institute this action in the name of the Concerned Sector Youth. Thus, in the absence of a real adverse party, we hold that the petitioner lacks standing to institute this prohibition proceeding.
The second question we must pass on is whether prohibition will lie in this case. On this question we say first of all, that where an action is instituted by one who fails to establish that he is the real party plaintiff with standing, the action will be dismissed, since courts do not adjudicate hypothetical situations or give advisory opinions. It follows, therefore, that the extraordinary writ of prohibition will not issue where there is no real party petitioner of interest seeking relief on account of injury suffered.
Secondly, we fully agree with the respondents in this case that the petitioner slept on its rights, assuming it had such rights in the first place, and therefore suffered waiver. We take note of the activities leading to the conduct of the National Population Census in 2008: a) an act was passed by the National Legislature in 2004 which established LISGIS and gave it the power to conduct censuses including the National Population and Housing Census; b) another act was passed by the National Legislature in 2007 which authorized the Executive Branch of Government and by extension, LISGIS, to conduct the National Population and Housing Census. c) on June 28, 2008, co-respondent LISGIS publicly launched the 2008 National Census d) on December 17, 2009, the final report of the 2008 National Population and Housing Census was launched at the Ministry of Foreign Affairs which was widely publicized.
All the while, during the activities leading to the National Population and Housing Census as enumerated herein above, the petitioner took no step(s) to protect its rights, or the rights of its members, if any. It was only on February 17, 2010 that the petitioner saw it fit to bring this action. The primary act, subject of this prohibition proceeding being the conduct of the National Population and Housing Census has been completed and there is nothing left to be done. This Court has held that where the act is completed and there is nothing left to be done, prohibition will not lie. Sinoe vs. Nimley, 16 LLR 152 Sodatonou vs. Bank of Liberia Inc. 20 LLR 512, (1971).
This Court has also held that the right to apply for a writ of prohibition will be deemed waived by failure to file timely application therefor. Coleman vs. Cooper, 12 LLR 226 (1955).
Under the circumstance, we hold the petition for prohibition is belatedly filed, therefore, the petitioner cannot enjoy the benefit of the extraordinary writ of prohibition.
Wherefore, the alternative writ of prohibition issued is ordered quashed and the preemptory writ prayed for denied. The Clerk of this Court is ordered to inform the parties of this decision. And it is so ordered.
Prohibition denied.
COUNSELLORS THOMPSON N. JARGBA APPEARED FOR PETITIONER. COUNSELLORS M. WILKINS WRIGHT AND JOSEPH N. BLIDI APPEARED FOR RESPONDENT.S