JITCO INC., through its President, FOFFEE S. JABATEH, Petitioner, v. HONORABLE BANGALY SESAY, Co-Chairman, Joint Security, and THE LIBERIA NATIONAL POLICE FORCE et al., Respondents.
APPEAL FROM THE RULING OF THE CHAMBERS JUSTICE DENYING THE PETITION FOR WRIT OF PROHIBITION.
Heard: November 14, 1989 Decided: January 9, 1990
1. Any executive officer who attempts to exercise judicial functions is usurping the constitutional powers of the courts.
2. No department of government can exercise judicial functions but the court itself.
3. An executive officer cannot exercise judicial function.
4. The determination of property rights lie within the province of the court.
5. Prohibition is the proper remedy to prevent a tribunal, possessing judicial or quasi-judicial powers, from exercising jurisdiction over matters not within its cognizance or exceeding its jurisdiction in matters of which it has cognizance.
6. A writ of prohibition may be directed to the court or to the parties to a case pending therein or to both jointly.
7. Under the doctrine of separation of powers, none of the three branches of government can usurp the functions of any of the other two.
8. Prohibition can prevent what remains to be done as well as to undo what has illegally been done.
The petitioner, by virtue of a memorandum of understanding executed by and between the said petitioner and one Sarah Hayes-Cooper, heir and administratrix of the late Benedict Hayes, acquired a store at Randall Street from where it operated its business. Co-respondent T’jani Darrah represented to corespondent Bangaly Sesay that he was the owner of the property mentioned above, that the petitioner was his tenant and that he wanted said petitioner ousted and ejected from said premises. Co-respondent Bangaly Sesay, based upon the representation made to him by co-respondent T’jani Darrah, ordered his military and police officers to go to the petitioner’s premises and have said petitioner evicted and ousted. That order was carried out. As a result of the aforesaid act of respondents, petitioner filed a petition for a writ of prohibition before the Chambers Justice, who, after hearing the petition, ruled that the petition was unmeritorious and denied the issuance of the writ. To the Chambers Justice’s ruling, petitioner excepted and announced an appeal to the Supreme Court en banc.
The Supreme Court held that the petitioner’s premises were unlawfully, illegally and unwarrantedly seized from it by the arbitrary act of Bangaly Sesay and the joint security officers. The ruling of the Chambers Justice was therefore reversed and the peremptory writ granted.
M Fahnbulleh Jones appeared for the petitioner. J. Laveli Supuwood appeared for the respondents.
MR. JUSTICE AZANGO delivered the opinion of the Court.
On the 12th day of May, A. D. 1989, petitioners filed a petition against respondents in the Chambers of His Honour, Justice James K. Belleh, in which they prayed among other things for the return of the premises on Randall Street which were unlawfully and illegally taken away from them by respondents and also for the issuance of the alternative writ of prohibition to restrain and prohibit respondents from further interfering with the peaceful enjoyment of said premises which the petitioner claimed to have acquired through a memorandum of understanding dated April 1, A.D. 1989, executed by and between them and one Sarah Hayes-Cooper, heir and administratrix of the estate of H. Benedict Hayes of the City of Monrovia. The contents of the petition are:
1. That petitioner is the title owner of the Liberian business, known as JITCO INC, operating a store at Randall Street with dimension of 20′ x 25′, which is engaged in the business of selling used clothing and imported foot wear and sundry goods, which property, the petitioner acquired by virtue of a memorandum of understanding between petitioner and Sarah Hayes-Cooper, heir and administratrix of the late H. Benedict Hayes.
2. That notwithstanding the foregoing, Co-respondent T’jani Darrah on the morning of Thursday, May 11, 1989,represented to Co-respondent Bangaly Sesay that he was owner of the premises and that petitioner who had been operating on the premises was his tenant when, in fact, the actual owner of the property was the father of the Co-respondent T’jani Darrah and the said co-respondent Bangaly Sesay without any authority and/or color of rightordered his military and police officers to go to petitioner’s premises, throw out all of petitioner’s goods, furniture, money and everything out of the said premises and put their locks and keys to the doors leading into petitioner’s business premises. That as a result of the aforesaid act of Co-respondent Bangaly Sesay and co-respondent T’jani Darrah, his business has been closed and has remained closed, much to his inconvenience, loss and embarrassment.
3. That the property in question was obtained by a valid instrument and Co-respondent T’jani Darrah has complained against Madam Massa Fofana before the Magisterial Court, Temple of Justice, which matter traveled to the First Judicial Circuit, Criminal Court “A”, Montserrado County, and the said Criminal Court “A” had no jurisdiction to determine title and the said title was not an issue before that court even though Massa Fofana is an agent and an employee of petitioner and the said Corespondent Bangaly Sesay, on representations made to him by Co-respondent T’jani Darrah, elected to use the arbitrary force of the military and paramilitary to evict and oust the petitioner from his legally acquired premises, thereby deciding title or seeking to decide title.
4. That the joint security, military officers and policemen, being agents of the executive branch of government, are without jurisdiction to decide title and hence the entire proceedings and acts of the respondents are violative of the rules and procedures of the statutes, in such cases made and provided by law and which ought to be observed at all times, and for which prohibition will lie.
To this petition, respondents filed returns in which they prayed for a denial and dismissal of the petition in its entirety on the following grounds:
1. That as to count 1 of the petition, respondents neither deny nor admit that Sarah Hayes-Cooper is heir and administratrix of E. Benedict Hayes as same is not an issue for determination in this case. They maintained, however, that she could not execute a memorandum of understanding with anyone to create liens, easements, title or any interest in their property. This count should therefore be dismissed.
2. Referring to counts 2, 3 and 4 of the petition, respondents deny the averments contained therein and maintain that same provide no basis for a writ of prohibition as prayed for in this case. Unlike this case, prohibition can only be directed at a judicial forum, administrative forum acting in quasi judicial capacity, and not individuals who happen to be police or military officers.
3. Further to counts 2, 3, and 4 of the petition, Co-respondent Bangaly Sesay denied ever ordering police, military and paramilitary forces to evict petitioner as falsely alleged. This allegation of petitioner is a mere fabrication intended to embarrass and defame the professional reputation of Co-respondent Sesay.
4. Further to counts 2, 3, and 4 of the petition, Co-respondent Darrah admits instituting a summary proceeding to recover possession of real property in the Magisterial Court at the Temple of Justice against one Massa Fofana since title was not in issue. This matter traveled to Criminal Court “A” which has no jurisdiction whatsoever at the instance of Massa Fofana, agent of petitioner herein.
5. The purpose of that strange procedure as in this case was to frustrate Co-respondent Darrah and deprive him of his property as said case which Criminal Court “A”, under Judge Badio, assumed jurisdiction over without even a petition, remains undetermined and there is no record for succeeding judges to investigate. Thus, Your Honour can see a clear case of miscarriage of justice. Co-respondent Darrah maintains that if any act appeared illegal to petitioner, the remedy was to file a bill of information in the lower court, but not prohibition in the Supreme Court by the same people who have carried a civil case to Criminal Court “A” and tied it up.
6. Respondents maintain that the procedure adopted by petitioner in this case is irregular, illegal and strange in that the Supreme Court can only enforce its judgment through orders directing the Clerk of Court to issue a mandate to a lower court or administrative forum. Whereas, in this case, no forum is made a party, nor any judge alleged to have violated laws to be observed at all times in proceeding over matters brought before them. In the absence of the conditions stated herein above, prohibition cannot lie.
7. Co-respondent Darrah begs to inform this Honourable Court that although Your Honour ordered closed the subject premises, petitioner has broken the doors and entered into the said premises against your orders.
8. That the purpose of this petition is to baffle and defeat the ends of justice as there is no basis for a writ of prohibition.
Having carefully read through the records of this case and listened to the arguments pro et con, the Justice in Chambers ruled in favor of respondents on the grounds that the petition was unmeritorious and denied the issuance of the writ. From his ruling, Counsellor Roger Martin, who deputized for counsel for petitioners, excepted and announced an appeal to this Court sitting en bane in its October Term, A.D. 1989.
From the facts, there are two issues presented to this court for consideration and final determination:
1. Whether or not Co-Respondent Honourable Bangaly Sesay and other members of the armed forces and the National Police Force of the Republic of Liberia are clothed with authority to perform judicial functions?
2. Whether or not giving the foregoing facts and circumstances the writ of prohibition will lie?
The powers of the Government of the Republic of Liberia and for that matter all other democratic governments are divided into three (3) distinct branches namely:
a) The Legislative
b) The Executive
c) The Judicial
A multitude of very ingenious reasons based upon the doctrine of separation of powers have been offered to support the principle that no person belonging to one of these branches shall exercise any of the powers of either of the others. Manney et al. v. Money[1927] LRSC 2; , 2 LLR 618 (1926).
This view was echoed in the case, Jarkoonne v. Akoi, 36 LLR 392 (1989); and same is in absolute conformity with that expressed by counsel for petitioners when in his presentation he argued and maintained that the joint security, the military and police officers being agents of the executive branch of government lacked jurisdiction to preside over and decide title to property, whether real or personal. The determination of property rights lie within the domain of the judicial branch of government.
Moreover, all executive officers who attempt to exercise judicial functions are thereby committing usurpations on the constitutional powers of the courts. Posum v. Pardee, [1935] LRSC 11; 4 LLR 299 (1935). Further, no department of government can exercise judicial functions but the Court itself. In re the Constitutionality of the Act of the Legislature of Liberia, approved January 20, 1914, entitled “An act providing for uniform Rules of Practice in all the Circuit Courts of this Republic[1914] LRSC 5; , 2 LLR 157 (1914). An Executive officer cannot exercise judicial functions. Jeddeh et al. v. Horace [1916] LRSC 12; 2 LLR 265 (1916); Karmo et al. v. Morris et al. [1919] LRSC 2; 2 LLR 317 (1919).
Therefore, Co-respondent Bangaly Sesay and the joint security personnel who were employed to evict and oust the petitioners from the premises, subject matter of these proceedings, acted in violation of the laws governing the doctrine of separation of powers as contained in our Constitution.
Relative to the second issue as to whether or not prohibition will lie considering the facts of the instant case, a resort to our statute will be of considerable help. According to our statute, “prohibition is a special proceeding to obtain a writ ordering the respondent to refrain from further pursuing a judicial action or proceeding specified therein”. Civil Procedure Law, Rev. Code 1:16.21(3).
Additionally, a common thread runs through the above citation and the one which states that:
“Prohibition is a remedy the purpose of which is to prevent a tribunal possessing judicial or quasi-judicial powers from exercising jurisdiction over matters not within its cognizance, or exceeding its jurisdiction in matters of which it has cognizance”.
A recourse to the facts of the case at bar reveals that counsel for respondents in his argument maintained that because of the absence of a forum or judge as a party to the petition, prohibition will not lie.
While this argument may be reasonable, however, a writ of prohibition may be directed to the court or to the parties to a case pending therein or to both or jointly. Boye v. Nelson et al. [1978] LRSC 33; 27 LLR 174 (1978). In the instant case, the joint security, through its chairman Bangaly Sesay, assumed a quasi judicial capacity, even though agents of the executive branch of government, in presiding over and disposing of a matter concerning the ownership of real property, a matter not within their cognizance, this Court is of the opinion that our colleague did err in dismissing the petition. Moreover, this Court has held that under the doctrine of separation of powers, none of the three branches of government can usurp the functions of any of the other two, for to permit it once would initiate the erosion of the doctrine. Since the writ of prohibition is designed to prevent what remains to be done as well as to undo what has illegally been done (Ayad v. Dennis et al.[1974] LRSC 42; , 23 LLR 165 (1974), it is our opinion that the petition for the writ of prohibition should not only be granted but should undo what has already been done. That is to say, respondents are hereby prohibited and restrained from continuing their acts involving this matter wherein title to petitioner’s business entity is sought to be determined and the respondents are hereby required to immediately deliver to petitioner his premises which were unlawfully, illegally, and unwarrantedly seized from him by the arbitrary acts of Bangaly Sesay and the Joint Security officers. The peremptory writ is therefore granted, with costs against respondents.
The Clerk of this Court is hereby ordered to send a mandate to the court below informing it of this judgment; the ruling of the Chambers Justice having been reversed. And it is hereby so ordered.
Ruling reversed.