Farrell Denco Shipping et al v Williams et al LRSC 79; 35 LLR 476 (1988)

MANAGEMENT OF FARRELL LINES/DENCO SHIPPING LINES and THE BUREAU OF LABOR STANDARDS, Petitioners/Appellees, v. JUDGE ARTHUR K. WILLIAMS of the National Labour Court, and FARRELL LINES EMPLOYEES, Respondents/Appellants.

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

Heard: October 25, 1988. Decided: December 29, 1988.

1. Judges of subordinate courts are required to obey mandates of the Supreme Court.

 

2. Failure by judges to obey mandates of the Supreme Court is a ground for contempt.

 

3. A judge of an inferior court who disobeys a mandate of the Supreme Court will be held in contempt of the Supreme Court.

 

4. A mandate is a command order or direction, which may be written or oral, that must be obeyed by all persons and inferior judges.

 

5. A mandate is a judicial command or precept from a court or judicial officer directing the proper officer to enforce a judgment, sentence or decree.

 

6. An appellate court’s mandate is a precept or order based upon the decision of an appeal indicating the direction to be taken or disposition to be made of a case by an inferior court.

 

7. A mandate includes any and all orders properly made by a court.

 

8. It is contemptuous for an inferior court judge to rule on a case and take other actions after receiving an order from a Chambers Justice to halt all proceedings until otherwise ordered.

 

9. A ruling by an inferior court judge after receipt of an order to halt all further proceedings has no legal validity.

 

10. A de novo trial or hearing means to try the matter anew as if it had not been heard before and no decision had been previously rendered.

 

11. Where a statute provides that an appeal shall be heard de novo, such hearing is in no sense a review of the hearing previously held, but it is a complete trial of the controversy, the same as if no previous hearing had over been held, especially where the hearing is in a court of general, original jurisdiction.

 

12. Where statute provides for a trial de novo and does not provide that the findings of the administrative agency shall be conclusive or of any force, the whole matter is opened up for consideration on appeal as if the proceeding had been originally brought in the reviewing court.

 

13. Where the statute provides for a suit to set aside an award and for determination of the issues upon trial de novo, such a trial is not an appellate proceeding.

 

14. Even though designated an ‘appeal,’ a review in which the court is not confined to a mere re-examination of the case as heard before the administrative agency on the record, but hears the case de novo, and hear any such further evidence as either party may see fit produce, it is to be regarded as an original proceeding.

 

15. In a trial or hearing de novo, it is immaterial what error or irregularities or even invasion of constitutional rights took place in the initial proceedings.

 

16. The Labor Court is an appellate court and does not have the statutory authority to hear cases de novo.

 

17. A writ of certiorari is a special proceeding to review and correct decisions of officers, boards, or agencies acting in judicial capacities or to review an intermediate order or interlocutory judgment of inferior courts.

 

18. A writ of certiorari issued to an inferior court of record or to some other tribunal or officer exercising a judicial function requires the court or tribunal to certify the records of its proceedings to the Supreme Court so that the record may be revised and corrected in matters of law.

 

19. The scope of the writ of certiorari extends to a review of all questions of jurisdiction, power and authority of the inferior tribunal, and to examine questions of irregularity in the proceedings to determine whether the inferior tribunal has acted within the express terms of the statutes or well settled principles of common law.

 

20. The function of a writ or certiorari is to correct substantial errors of law that are committed by a judicial or quasi judicial tribunal, which are not otherwise reviewable by a court.

 

21. A writ of certiorari determines whether the record is valid or invalid, and the judgment of the court in certiorari affects only the validity of the record.

 

22. Certiorari differs from mandamus in that mandamus compels an unperformed ministerial duty; certiorari reviews a performed judicial or official duty and issues to determine whether the questioned conduct was legal or within the jurisdiction of the lower tribunal.

 

Respondents/appellees, former employees of Farrell Lines, were awarded severance pay by a hearing officer of the Ministry of Labor. Subsequently, they applied to the National Labor Court to enforce the decision of the hearing officer on the grounds that Petitioner/Appellant Farrell Lines/Denco Shipping Lines had failed to take an appeal from the decision of the hearing officer. The National Labour Court denied the petition for enforcement, after trying the matter “do novo.” Respondents/appellees then filed a petition for a writ of certiorari before the Chambers Justice. The Chambers Justice ordered the lower court to temporarily stay all proceedings. The lower court judge, nonetheless, proceeded to rule on the case and to approve the bill of exceptions of appellants. The Chambers Justice subsequently fined the trial judge and ordered the court to resume jurisdiction and investigate whether there had been an appeal of the hearing officer’s ruling. On appeal, the Supreme Court affirmed the ruling of the Chambers Justice with modification, and remanded the case to the hearing officer to conduct a hearing and rule in accordance with the evidence. The ruling was therefore affirmed with modification.

 

1. Nypan Torpor for appellants. E. Winfred Smallwood and E. Mulbah Togba for appellees.

 

1. JUSTICE BELLEH, delivered the opinion of the court.

 

Recourse to the record certified to this Court reveals that on the 30″ of June, A. D. 1987, the former employees of Farrell Lines Shipping Company, through their counsel, Counsellor F. Nypan Torpor of the Brettwalda Law Chambers, co-respondents herein, applied to the National Labour Court for the “enforce­ment of an administrative decision of the hearing officer of the Ministry of Labour dated November 23, 1982 against the management of Denco Shipping Lines, for the payment of the total sum of $246,933.31, representing severance pay in favor of the former employees of Farrell Lines Shipping Company, Co­respondents herein, withhold by the petitioners.” In their application to the National Labour Court, respondents/appellees contended among other things that the petitioner/appellant Farrell Lines/Denco Shipping Lines were defendants in a corn-plaint filed with the Ministry of Labor by the former employees of Farrell Lines Shipping Company against the management of Denco Shipping Lines as agent and successor of Farrell Lines Shipping Company. In their complaint, respondents/appellees alleged unfair labor practices and wrongful withholding of res­pondents’ severance pay.

 

Respondents/appellees further alleged that on the 23′ day of November, A. D. 1982, the hearing officer of the Ministry of Labour ruled in favor of the respondents and held the manage­ment of Denco Shipping Lines liable to pay the total sum of $246,933.31 as severance pay. According to respondents, there was no appeal taken from the ruling of the hearing officer.

 

The record further reveals that the management of Denco Shipping Lines, as agent and successor of Farrell Lines Shipping Company, after being summoned by the National Labor Court, appeared and resisted the petition, denying the truthfulness of the allegations contained in respondents’ application and vigorously contended that upon rendition of the ruling of the hearing officer against management, management excepted to the ruling and appealed to the Board of General Appeals of the Ministry of Labour and the board upon reviewing the case, reversed the ruling of the hearing officer and from which decision, there was no appeal taken to any court of record for a judicial review of the matter. In support of their contention, the management of Denco Shipping Lines, a petitioner/appellant here, proffered a copy of the notice of assignment issued by the Board of General Appeals in connection with the hearing of the appeal and also a copy of the decision of the Board of General Appeals.

 

Because Respondents/appellees challenged the authenticity of the purported board’s decision perfected by petitioner/ appellant Farrell Shipping Lines/Denco, they requested the court to order the Ministry of Labour to conduct an investigation as to the authenticity of the board’s decision, as well as the present status of the case. The records show that the court below denied Farrell Shipping Line/Denco’s request, but instead ruled that the parties file submission to enable the court to try the case de novo. For the benefit of this opinion, we hereunder quote relevant portions of the court’s ruling:

 

“. . .this letter of transmission of the various documents also void of the Board’s proceedings of the hearing of the appeal from the hearing officer’s ruling of the 23” of November, A. D. 1982. Neither an indication of the service of the said Board’s decision upon the petitioners, so as to enable them to except and announce an appeal to the Civil Law Court at the time, nor any information reaching the Petitioners of the rendition of the Board’s Decision.

 

Petitioners in the Petition contended that since the ruling of the hearing officer on the 23′ day of November, A .D 1982, they have never received any information regarding the taking of an appeal from the hearing officer’s ruling of No­vember 23, 1982 and therefore appealed to this court for enforcement of said ruling. This court in ruling says that since the record transmitted to us shows the following documents:

1. The hearing officer ruling,

 

2. An assignment from the Board without indication of the service upon petitioners; and

 

3. A decision by the Board rendered in the year 1983 and void of the minutes of the Board’s proceedings,

 

the parties are required to file their submission before this court on/or before the 12th day of October, A . D. 1987, at which time the case will be heard.

 

Petitioners’ petition to enforce the ruling of the hearing officer dated November 23, 1982 is hereby denied. Cost to abide by the final determined of the case.

And it is hereby so ordered. Matter suspended.

Given under my hand and Seal of this Honourable Court this eh day of October, A. D. 1987.”

/s/ Arthur K. Williams

JUDGE, NATIONAL LABOR COURT

 

Petitioner/appellant, Farrell Lines Shipping/Denco, conside­ring the ruling of the National Labour Court to be erroneous and prejudicial to their interest, fled to the Chambers of this Court on a seven-court petition for a writ of certiorari, praying for the “review of the interlocutory and prejudicial ruling made by the Respondent Judge.” For the benefit of this opinion, we here­under quote relevant portions of the petitioners’ petition:

 

PETITIONERS’ PETITION

1. That your petitioners are respondents in the case below in which the former employees of Farrell Lines have peti­tioned the National Labour Court for enforcement of a ruling that was made by the hearing officer.

 

2. That your petitioners upon the receipt of the copy of the Petition for enforcement, filed their returns with which they perfected their letter of appeal from the ruling of the hearing officer, a page from the register whereat a letter of appeal was signed for, another letter reminding the hearing officer to transmit the records of the hearing to the Board of General Appeals, along with a letter of complaint to then Minister of Labor, Honourable E. Sumo Jones, against the hearing officer for failing to transmit the records of the proceedings to the Board. Copies of these documents are attached as our exhibits “A”, “B”, “C” and “D” respectively.”

 

3. That based on the report, the records were transmitted to the Board and a hearing was had in May and a Decision made by the Board of General Appeals in June 1983 which is attached as our Exhibit “E”.

 

4. That after the Petitioners below failed to appeal from the Board’s decision within statutory time, your petitioners ob­tained a certificate from the clerk of the then Board to that effect. Copy of the certificate is attached as our exhibit “F” together with a copy of a page from the Board’s register where at the respondents signed for and received a copy of the Board’s decision which page is marked as our Exhibit

 

5. And also because your Petitioners say that when the records from the Ministry of Labor were sent to the court, it was observed that the records relating to the proceedings of the Board, its Decision and the Certificate issued by the Clerk to your Petitioners, had all been removed from the files of the Board and therefore could not be included in the transcribed records. Whereupon your Petitioners applied to the court to order an investigation into the matter in order to establish the authenticity of the Board’s Ruling which has been proffered by your Petitioners. Copy of the minutes of court is attached as our Exhibit “HI”. Unfortunately, the Respondent Judge in an arbitrary and prejudicial manner refused and failed to order said investigation and arbitrarily set aside the ruling of the Board and the Certificate by the Clerk of said Board. Your petitioners wonder what is the significance of the court issuing or serving party litigants with copies of their records if said records are given no credit or effect in the event of the loss of the court’s file in a given case. Your Petitioners submit and strongly argue that such a practice will be against public policy if in the event of the loss of the court’s file in a given case, and which is not uncommon in this jurisdiction, the reviewing court will disregard such records without an investigation to show whether or not they were authentic. Your Petitioners submit that under the doctrine of Holder et al v American Life Insurance Company, decided by this Honorable Court on July 29, 1981, a public officer is presumed to have acted honorably and honestly unless there is evidence to show the contrary (see page 25 of said Opinion).

 

Your petitioners aver that in the absence of any evidence that the Board’s decision of 1983 proffered by Petitioners with their returns was not authentic, it was prejudicial, arbitrary and against public policy and sound principle of law for the respondent judge to have set aside said Ruling especially in the face of a request by a party of interest to institute such as investigation.

 

6. And also because petitioners say that among the records transmitted by the Ministry of Labour was a notice of assignment calling the parties to appear before the Board for the hearing of this case. Copy of said notice of assignment is attached as our exhibit “I”. Your petitioners also submit that the letter of transmittal from the Ministry sending forward the records to the court acknowledged the existence of said notice of assignment. Copy of said letter is attached as our exhibit “J”. Petitioners submit that this fact was even brought to the attention of the respondent judge in the bill of information hereto attached as exhibit “K”. Petitioners say that the existence of this notice of assignment was sufficient ground for the respondent judge to have ordered an investigation in this matter.”

 

7. And also because petitioners say that instead of instituting an investigation, when the court had doubt about the authenticity of the Board’s ruling, the court ruled that the parties should file submissions before it in order to have a de novo judicial review. Petitioners submit that there can be no judicial review when there is no regular petition filed before the court for judicial review. Copy of said ruling is attached as our exhibit “L”.

 

WHEREFORE and in view of the foregoing, your petitioners most respectfully pray Your Honour to order the issuance of the writ of certiorari against the respondents in order for Your Honour to review the interlocutory and prejudicial ruling made by the respondent judge and to grant all and further relief promises with cost against the respon­dents.

 

The Chambers Justice, upon being notified by the Clerk of Court that Petitioner Farrell Lines/Denco had filed a petition for a writ of certiorari, sent a mandate to the judge of the National Labour Court, His Honour Arthur K. Williams, ordering the said judge to temporarily stay all further proceedings in this matter until he shall have had a scheduled conference with counsellors representing both parties. For the benefit of this opinion, we hereunder quote verbatim, the Chambers Justice’s letter of October 12, 1987:

 

October 12, 1987

His Honour Arthur K. Williams

Judge, National Labour Court

Temple of Justice

Monrovia, Liberia

 

May It Please Your Honour:

The Chambers Justice, His Honour David D. Kpomakpor, has directed me to inform your Honour that a Petition for certiorari has been filed before him by the Togba and Cooper Law Firm in the interest of their client in the case:

 

Bureau of Labor Standards, management of Farrell Lines/Denco Shipping Lines, Monrovia,

 

PETITIONER PETITION FOR A WRIT OF CERTIORARI

Versus His Honor Arthur K. Williams, Judge of Labor Court and Farrell Lines employees,

Monrovia, Liberia, RESPONDENTS

 

In the light of the above, you are to temporarily stay all further proceedings into this matter until he shall have had a scheduled conference with the counsellors.

 

Respectful regards,

Respectfully yours,

Emily N. Badio

ACTING CLERK, SUPREME COURT, R.L.

 

Although the Marshal’s returns shows that the respondent judge, His Honour Arthur K. Williams of the National Labor Court, was duly served with the summons issued by the Clerk of this Court, upon the orders of the Justice presiding in Chambers, to stay all further proceedings pending a conference with the said Justice, yet, withstanding this mandate from the Chambers of this Court, the respondent judge defiantly proceeded to rule on the case and to approve the bill of exceptions submitted by former employees of Farrell Lines Shipping Company, co-respondents herein. Further, the Chambers Justice considering the act of co­-respondent Judge Williams to be contemptuous, therefore, imposed a fine of $500.00 on the said respondent judge to be paid into the Bureau of Internal Revenue within twenty-four hours. The Chambers Justice then ordered the National Labor Court to “resume jurisdiction in the said matter and hold an investigation into whether or not the Board of General Appeals of the Ministry of Labor did hear the case and/or made a ruling in it or not in Petitioner’s favor.”

 

This Court has held in several opinions that “judges of subordinate courts are required to obey the mandates of this Honorable Court to their letter and failure to do so is a ground to punish such judge for contempt. That a judge of an inferior court who disobeys the mandate of the Supreme Court will adjudged guilty in contempt of the Supreme Court and punished accordingly.” Wolo v. Simpson, 20 LLR 24, 26 (1970).

 

Black’s Law Dictionary, 4th ed., page 1114, defines “man­date” as follows: “A command order, or direction, written or oral, which court is authorized to give and person is bound to obey. A judicial command or precept proceedings from a court or judicial officer directing the proper officer to enforce a judgment, sentence, or decree. A precept or order issued upon the decision of an appeal or writ or error, direction action to be taken, or disposition to be made of case, by inferior court.”

 

From the above definition, it is clear that mandate does not only mean a writ. It include any and all orders properly made by court. Such orders should and must be obeyed by all persons or inferior court judges. To do otherwise, will undermine the authority of this Court. We therefore hold that it was con­temptuous for the respondent judge to have proceeded to rule on the case, and approved co-respondents’ bill of exceptions after the receipt of the order from the Chambers Justice to halt all proceedings until otherwise ordered. The judge below acted illegally when with due notice of the pendency of the case, before the Justice presiding in Chambers, proceeded to hear the case ruled on it and approved the bill of exceptions, long after the receipt of the mandate, such acts are void ab initio and therefore had no legal validity. Under these circumstances, we are constrained to uphold the position taken by our distinguished colleague in Chambers in respect to the fine of $500.00 imposed on Judge Arthur K. Williams of the National Labour Court.

 

We gather from the brief submitted by petitioners in certiorari that there is only one principle issue to be considered for our consideration, and that is:

 

Whether or not the ruling of the respondent judge of the National Labour Court was prejudicial and erroneous for which a writ of certiorari will lie.

 

According to the Act of the National Legislature Creating the National Labor Court, chapter 23, 23.1, thereof, with respect to “jurisdiction and procedure,” it is provide that: “The National Labor Court shall be a court of limited jurisdiction and shall have exclusive appellate jurisdiction over all labor cases as appealed to it from the decisions of the hearing officer and labor commis­sioner in the county where it is established. The procedure and method of enforcement shall be the same as that of the debt court, except as modified herein.”

 

Section 23.4 relative to Procedure and Review of the same Act also provides:

 

“In the conduct of all cases brought before it, the Labour Court shall be guided by the rules of the debt court and shall make a finding of facts and conclusion of law thereon in accordance with the provision of Chapter 23 of the Civil Procedure Law of Liberia and may revise, affirm or modify, wholly or in part any judgment before it as to any party and, when the interest of justice so requires, remand the case to the hearing officer of the labor commissioner for further proceeding with such instruction or orders as would be necessary and proper.

 

In keeping with above provision of the statue creating the labor court with respect to the procedure to be followed, as well as its jurisdiction, there is no showing that the labour court has been authorized to conduct de novo trials of any proceedings.

 

A trial or hearing de novo means trying the matter anew the same as if it had not been heard before as if no decision had been previously rendered. Thus, it is said that where a statute provides that an appeal shall be heard de novo, such hearing is in no sense a review of the hearing previously held, but it is a complete trial of the controversy, the same as if no previous hearing had over been held, especially where the hearing is in a court of general, original jurisdiction. Where statute provides for a trial de novo and does not provide that the findings of the administrative agency shall be conclusive or of any force, the whole matter is opened up for consideration on appeal as if the proceeding had been originally brought in the reviewing court. Trial in court is not an appellate proceed­ing where the statute provides for a court to set aside an award and for determination of the issues upon trial de novo. Even though designated an ‘appeal,’ a review in which the court is not confined to a mere re-examination of the case as heard before the administrative agency but hears the case de novo on the record before the agency and such further evidence as either party may see fit produce is to be regarded as an original proceeding. Thus, on a trial or hearing de novo, it has been held immaterial what error or irregularities or invasion of constitutional rights took place in the initial proceedings. 2 AM. JUR 2d., Appeal and Error, at 597.

 

In keeping with the above citations of law, we hold that the ruling of the judge of the National Labour Court to the effect that the parties should file submissions to have the case heard de novo was not only illegal, but also erroneous and prejudicial to all parties concerned for reasons that the petitioner Farrell Shipping Lines/Denco, having requested the court to order the Ministry of Labour to conduct an investigation as to the authenticity of the document proffered by petitioners on the grounds that the authenticity of the document proffered had been challenged by his adversary, we are of the opinion that in the interest of transparent justice, this application of petitioners should have been granted. We will therefore affirm the ruling of our distinguished colleague, Mr. Justice Junius, who heard the petition for certiorari with modification, in respect to that portion of his ruling which states “to resume jurisdiction in the said matter and hold an investigation into whether or not the Board of General Appeals of the Ministry of Labour did hear the case and/or made a ruling in it or not in petitioners’ favor.”

 

A writ of certiorari is defined as “a special proceedings to review and correct decision of officers, boards, or agencies acting in a judicial capacity or to review an intermediate order or interlocutory judgment of court.” Civil Procedure Law, Rev. Code 1:16.21.

 

The Civil Procedure Law, Rev. Code 1: 16.23, with respect to Procedure of Certiorari, provides as follows :

 

A petition for a writ of certiorari shall contain the following:

 

1. A statement that the petitioner is a party to an action or proceedings pending before a court or judge or an admini­strative board or agency;

     2. A statement of the decision of the official, board or agen­cy that is alleged to be illegal or of the intermediate order or interlocutory judgment of which review is sought; and

       3. Certificate by two members of the bar that in their opinion, the contention of the petitioner is sound in law.

 

There is considerable authority on the functions of the office of certiorari:

 

Certiorari is a writ issued by a superior to an inferior court of record or to some other tribunal or officer exercising a judicial function, requiring the certification and return of the record and proceedings in order that the record may be revised and corrected in matters of law. It is a common-law writ, but is also usually provide for by statue. 14 AM JUR. 2d., Certiorari, at 777.

 

Certiorari is in the nature of an appellate process, it is a method of obtaining review, as contrasted to a collateral assault. The office of the common law writ of certiorari is to bring before the court for inspection, the records of the proceedings of an inferior tribunal in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction or has not proceeded according to the essential requirements of the law. And where the scope of the writ has not been narrowed by statute, its office generally extends to the review of all questions of jurisdiction, power and authority of the inferior tribunal to do the action complained of, and all question of irregularity in the proceedings, that is, of the question whether the inferior tribunal has kept within the boundaries prescribed by the express terms of the statute law or well-settled principles of the common law.

 

The principal office of the writ is to determine whether the conduct of an inferior tribunal was within the jurisdic­tion and otherwise legal, that is, to control the action of the inferior tribunal and to keep it within its jurisdiction. The function of a writ of certiorari is to correct substantial errors of law committed by a judicial or quasi-judicial tribunal which are not otherwise reviewable by a court. 14 AM JUR 2d., Certiorari, at 799.

 

The judgment of the court in certiorari affects only the validity of the record. That is, its judgment determines whether the record is valid or invalid. Moreover, on a writ of certiorari, in the absence of the statutory enlargement, only the external validity of the proceedings had in the lower court may be examined by the superior court under its supervisory jurisdiction; the supervisory jurisdiction of the court cannot be exercised in order to review the judgment as to its intrinsic correctness, either on the law or the facts of the case. Under the modern practice prevailing in many jurisdictions, the writ issues in a proper case not only to review the proceedings of an inferior board, commission, or officer exercising judicial or quasi-judicial functions, and is in this latter area that the most significant development of the law has taken place.” 14 AM JUR. 2d., Certiorari, at 780.

 

Certiorari differs from mandamus in that mandamus compels an unperformed ministerial duty; certiorari reviews a performed judicial or official duty and issues to determine whether the questioned conduct was legal or within the jurisdiction of the lower tribunal. Certiorari is merely a writ of review to determine legality, mandamus is coercive remedy. Certiorari may be used, however, as an ancillary writ in a mandamus proceeding for the “purpose of bringing up from the inferior tribunal or board, records necessary for the use in the trial of the case on its merits. 14 AM JUR. 2d., Certiorari, at 781.

In view of all we have said and the laws cited, it is our considered opinion that His Honour Arthur K. Williams of the National Labor Court grossly erred whom he ruled that a labor case before the National Labor Court should be heard de novo; the Labor Court is an appellate court and does not have the statutory authority to hear cases de novo. The ruling of the Chambers Justice granting the petition for a writ of certiorari, being sound in law, is therefore affirmed and confirmed with modification as indicated, supra, and the alternative writ ordered issued and issued hereby withhold. The Clerk of this Court is hereby ordered to send a mandate to the court below to remand the case to the hearing officer of the Ministry of Labor to conduct a fair and impartial trial and to render a ruling in keeping with the evidence alluded. Costs disallowed. And it is so ordered.

Petition granted; ruling affirmed.