LIBERIA ELECTRICITY CORPORATION, Petitioner, v. HIS HONOUR SAMUEL KPANAN, Judge, National Labour Court, and FOLOKULA VARPULAH, Respondents.
PETITION FOR A WRIT OF PROHIBITION TO THE NATIONAL LABOUR COURT, MONTSERRADO COUNTY.
Decided July 13, 1993.
1. The National Labour Court is the proper forum before which petition for the enforcement of rulings of hearing officers of the Ministry of Labour are to be filed.
2. Where a judge or justice has confirmed and affirmed a judgment of an inferior court, it is not necessary to state a sum certain when said sum has already been stated in the ruling or judgment confirmed.
3. An interlocutory judgment or ruling is one that is provisional, temporary and not final. It intervenes between the commencement and the end of a suit which decides some point or matter, but it is not a final decision of the whole controversy.
4. Final judgment is defined as one that puts an end to a suit or action. One which puts an end to an action at law by declaring that the plaintiff either is or is not entitled to recover the remedy he has sued for. A judgment which determines a particular cause. A judgment which disposes of the subject matter of the controversy or determines the litigation as to all parties on its merits.
5. Prohibition will lie to restrain the enforcement of a void judgment where no other remedy is available.
6. Prohibition will lie to restrain the enforcement of an illegal judgment.
7. It is illegal and unconstitutional for a judge or justice to deny a party litigant the right to appeal.
The gravamen of this petition is that petitioner herein, respondent in the trial court, was adjudged liable before the hearing officer at the Ministry of Labour but failed to prosecute his appeal within the time required by statute on grounds of physical incapacities. Consequently, respondent, petitioner then, petitioned the National Labour Court for enforcement of the default judgment rendered against petitioner in the Ministry of Labour. The petition was resisted, heard and thereafter granted. The court appointed counsel excepted to the ruling and announced an appeal on behalf of petitioner. Subsequently, on January 28th 1993, respondent herein, filed a motion in the National Labour Court to dismiss petitioner’s appeal for failure to proceed. In resisting the motion petitioner herein contended that the Ministry of Labour has authority to enforce its own judgment and consequently a judge of the National Labour _Court does not have jurisdiction to enforce any decision from the Ministry of Labour. Petitioner also contended that the motion to dismiss be denied because the pleading was not verified.
After hearing arguments pro et con, the trial court granted the motion and ordered the enforcement of the ruling of the hearing officer. Petitioner excepted to the ruling and announced an appeal therefrom, which was granted. Shortly thereafter, the trial court made another ruling on the minutes of court declaring its earlier decision, granting petitioner’s appeal, null and void on grounds that an appeal had earlier been granted to petitioner on the same matter. The petitioner excepted and announced an appeal to this latter ruling of the trial judge, but same was denied. When the trial judge attempted to enforce his ruling, petitioner filed a petition to the Chambers Justice for a writ of prohibition to restrain and prohibit the trial judge from enforcing his ruling. In its returns to the petition for prohibition, the respondent herein contended that the ruling of the trial judge granting the motion to dismiss was interlocutory. As such, an appeal could not lie. The Chambers justice held that the ruling of the trial judge had all the characteristics and features of a final judgment because there was nothing pending before the trial judge, as he had already instructed the clerk to issue a bill of cost and writ of execution to be served on petitioner. The Chambers justice also held that the trial judge acted illegally by denying petitioner’s right to appeal. Accordingly the Chambers Justice granted the petition and ordered the writ issued.
David A. B. Jonah appeared for appellant. Joseph P. H. Findley and Moses K White appeared for appellee
SMALLWOOD, J., presiding in Chambers.
The petitioner herein filed a five-count petition against the judge of the National Labour Court to restrain him from enforcing his ruling in a labor matter from which an appeal was announced and denied.
In count 1 of the petition the petitioner alleges that it was a party respondent before the National Labour Court presided over by the co-respondent judge. In count 2 of the petition it is contended that the co-respondent judge assumed jurisdiction by way of a petition for enforcement filed by Co-respondent Varpulah, contrary to statutory laws. It also contended in the said count 2 that the Ministry of Labour has the authority to enforce its own decision and hence the act of the co-respondent judge is contrary to law for which prohibition will lie.
It is contended in count 3 that the co-respondent judge having illegally assumed jurisdiction, ruled confirming the judgment of the hearing officer without indicating in his judgment a sum certain. Petitioner prays that the judge be stopped from enforcing this illegal ruling.
In count 4, it is contended that the October 1992 attack on Monrovia made petitioner’s counsel physically incapacitated as per the Civil Procedure Law, Rev. Code 1: 61.10, and the co-respondent judge, ignoring the legal and factual basis, denied petitioners returns, contrary to the rule that should be observed at all times.
The petitioner also contended in count 5 that the co-respondent judge denied petitioner’s appeal, relying on the Civil Procedure Law, Rev. Code 1: 41.6, when, in fact, there was no permission from the appellate court and said act was contrary to law. Therefore, the petitioner contended, prohibition will lie.
The respondent filed a four-count returns contending in count 1 that counts 1 and 2 of the petition are baseless and misleading and therefore should be denied. It is also contended in count 1 of the returns that the co-respondent judge did not assume jurisdiction contrary to law, neither did he proceed by wrong rules for which prohibition will lie. It is further contended in count 1 of the returns that petitioner failed to realize that the December 24, 1985 INA Decree relied on in its petition, with respect to authority of the Labour Ministry to enforce its own judgment, has been repealed by an Act Creating the National Labour Court, and Amending the Labour Practices Laws of Liberia, respecting administration and enforcement, and to amend decree 21 of the Interim National Assembly approved October 20, 1986, with specific reference to section 23.3 (Power of National Labour Court).
In count 2 of the returns, the respondents contend that count 3 of the petition is baseless and misleading and should be overruled because the co-respondent judge did not err since the court was only petitioned on November 16, 1992 to enforce a judgment already rendered on October 7, 1992 by the hearing officer, and in which judgment a sum certain was stipulated in the amount of L$57,490. Sheet 4 of the hearing officer’s ruling, in which the sum certain is stated, is attached to the returns as exhibit “A”. Respondents prayed for count 3 of the petition to be overruled.
In count 3 of the returns the respondents contend that count 4 of the petition is false, misleading and baseless and should equally be overruled, in that on Tuesday, October 6, 1992, a regular notice of assignment for the rendition of judgment by the hearing officer on Wednesday, October 7, 1992, was duly served and returned served on the parties. Photostat copy of the notice of assignment is attached as exhibit “B”, along with a photostat copy of the receipt indicating the receipt of copy of the default judgment which was served on petitioner on the same day, October 7, 1992. It is also contended in count 3 that petitioner’s allegation that the October 1992 attack on Monrovia made petitioner’s counsel physically incapacitated is a mere sham as, obviously, petitioner had ample opportunity (8 days before the October 15, 1992 attack) to file any document, and could have done so.
In count 4 of the returns respondent contends that count 5 of the petition is unfounded and should be overruled and the petition denied, in that the co-respondent judge did not proceed without jurisdiction neither did he proceed by the wrong rules, other than with those that should be observed at all times. It is also contended that the correction made on the records by the co-respondent judge is regular, foreseeable and within the pale of the law as the correction so made was made in court while the parties were still in court, and the matter not yet suspended. It is further contended that the statute gives a trial judge the right to correct his judgment or order before appeal is docketed and prior to the remission of the mandate of the appellate court, and therefore pray that count 5 of the petition be overruled.
The records of the court below show that on the 12 th day of November 1992, the petitioner filed a motion to enforce judgment in the National Labour Court which was withdrawn on the 17th day of November A. D. 1992, and substituted with a petition to enforce Judgment filed on the same day, 17 th day of November, A. D. 1992. The management corporation filed returns on 27th November A. D. 1992.
Arguments on the petition to enforce judgment and the resistance thereto were had on the 15t h day of December, A. D.1992, and ruling rendered on the 8 th day of January, A. D.1993, confirming and affirming the ruling of the hearing officer. Since respondent and his counsel were not present, the court appointed Attorney Jessie E. Gould to take the ruling for management and ordered that a copy of the ruling be sent to the respondent management within 24 hours. Attorney Gould entered exceptions to the ruling and announced an appeal which was granted. Interestingly, there is in the court’s file a letter dated January 20th 1993, with a medical certificate attached, from Counsellor George S. B. Tulay, counsel for respondent management, informing the court that upon his doctor’s advice he was traveling to Europe for medical treatment and asked that his cases be suspended until he returns. Nevertheless, up to January 25, 1993, no bill of exceptions had been filed according to the certificate of the Clerk of Court.
On January 28th 1993, the petitioner in the court below filed a motion to dismiss the appeal for failure to proceed. Thereafter a notice of assignment was issued on February 10, 1993, and served for the hearing of the motion on February 12, 1993 at 11:00 a. m. When the case was called for the hearing of the motion to dismiss for failure to proceed, Attorney James C. R. Flomo of the Tulay & Tulay Law Associates appeared for the defendant management on whom a copy of the motion had been served. Attorney Flomo then begged leave of court for a continuance of the matter because of the absence of Counsellor Tulay due to illness. His motion was resisted by Counsellor Moses Vah of the Findley Associates.
The court in its ruling on the motion for continuance stated that Counsellor Tulay failed to indicate in his letter of January 20, 1993, his expected date of departure from the country and his expected date of return, yet he had signed the notice of assignment on February 9, 1993. The judge however continued the case from February 12, 1993 to February 19, 1993, and advised that management gets another lawyer to associate with Tulay & Associates.
We should mention in passing that, according to the records from the Ministry of Labour, during the hearing, Counsellor Tulay had constantly announced his representation of management as assistant manager for legal affairs, which gives the impression that there was a position for manager for legal affairs with the petitioner.
On Friday February 19, 1993, when the court met to continue the hearing of the case, Attorney James C. R. Flomo again appeared alone to represent management. Movant was permitted to argue his motion to dismiss, and when it came time for respondent to argue his side, he first gave his law citations and then asked the court to permit him to spread his resistance to the motion on the minutes of court. There being no objection, the court granted the request and respondent spread a one-count resistance on the minutes praying the denial and dismissal of the motion to dismiss for failure to proceed because his copy of the motion was not verified. The court again reserved ruling until February 24, 1993 at 11:00 a.m.
Subsequently, the court rendered its ruling and, in passing on the contention of management’s counsel that his copy of the motion to dismiss the appeal was not verified, said that the court’s copy of the affidavit was verified and cited the Civil Procedure Law, Rev. Code 1: 9.4, which provides that “every written pleading except one containing only issues of law shall be verified on oath or affirmation,” that the averment or denial are true. The court then overruled the resistance of management’s counsel, sustained the motion to dismiss the appeal and ordered the enforcement of the ruling of the hearing officer. He also ordered the clerk of court to prepare a bill of costs and present same to both parties for taxing.
Management excepted to the ruling and announced an appeal to the Supreme Court sitting in its March Term 1993. The National Labour Court granted the appeal as a matter of right.
After granting the appeal, the court made the following point on the same page of the records: “The above captioned case having been ruled or decided, the court on its own has decided to make a correction of its judgment in keeping with the Civil Procedure Law, Rev. Code 1: 41.6. After quoting this section of the statute, the court went on to say “Since this case was tried just a few minutes ago, court will therefore, in keeping with the above section quoted, declare the last paragraph, that is to say the announcement of an appeal, null and void. And in its place, the court says that the appeal hereby announced is denied since this is the second time that this court has ruled against the respondent corporation. The first time the case was ruled against the respondent corporation was when the petition for enforcement of the ruling of the hearing officer was heard, when an appeal was announced, but respondent failed to file a bill of exceptions within the statutory period. Petitioner then filed a motion to dismiss the appeal on grounds for failure to proceed and that motion was sustained. Respondent cannot therefore announce an appeal on the ruling of this motion. The announcement of this appeal is therefore denied.”
The respondent again excepted to this latter ruling, and again appealed to the Supreme Court of Liberia in its March Term 1993. The Court then made the following records:
“The appeal is denied. The Clerk is hereby instructed to prepare a bill of cost and place same in the hands of the sheriff to be served on the parties for taxing. And it is hereby so ordered.”
It is because of the judge’s denial of the appeal thus announced that the respondent fled to our Chambers and applied for a writ of prohibition to restrain the co-respondent judge from enforcing his ruling. The issues presented in this petition for our determination are the following:
1. Whether or not the National Labour Court illegally assumed jurisdiction over this matter contrary to statute laws of Liberia?
2. Whether or not a sum certain was stated in any ruling in this matter which could have been enforced by the Court?
3. Whether or not the ruling of the judge of the National Labour Court was interlocutory and therefore the judge was correct in denying the appeal?
Section 23.3 of an Act to Repeal An Act Amending the Labour Practices Law of Liberia with Respect to Administration and Enforcement and to Amend Decree No. 21 of the Interim National Assembly in Connection Therewith, Approved October 20th 1986, provides:
“Power of the Labour Court: The Labour Court and judges thereof shall have the exclusive jurisdiction, power and authority to issue; or cause the issuance of writs of execution, attachment, garnishment, ne exeat republica and summons in summary proceedings addressed to hearing officers or labour commissioners under their jurisdiction for the enforcement of judgments or orders and in exercise of the appellate jurisdiction herein vested in each Labour Court. The Labour Court or a judge thereof shall exercise the power and authority vested in the debt courts or judges thereof in civil cases”.
It is clear, therefore, that the National Labour Court is the proper forum before which petition for the enforcement of rulings of hearing officers of the Ministry of Labour are to be filed. The judge did not therefore illegally assumed jurisdiction over this matter.
The hearing officer awarded compensation to the respondent herein as follows:
39 months suspension at $1,210.00 per month $47,190.00
39 months transportation $250.00 ” ” $ 9,750.00
5 months back pay $110.00 ” 550.00
$57,490.00
It is this ruling of the hearing officer which the judge of the National Labour Court confirmed and affirmed, and hence it was not necessary for him to have named a sum certain in his ruling confirming the ruling of the hearing officer.
Lawyers for the respondent herein, in their arguments, contended that the ruling of the co-respondent judge on the motion to dismiss the appeal was interlocutory and therefore no appeal could lie from said ruling, therefore the judge was correct in denying the said announcement of appeal.
An interlocutory judgment or ruling is one that is provisional, temporary and not final. It is something intervening between the commencement and the end of a suit which decides some point or matter, but it is not a final decision of the whole controversy. The Liberian Bank For Development and Investment v. Badio and Liberia Fisheries Industries, Inc. , 37 LLR 56 (1992).
Final judgment is defined as “one that puts an end to a suit or action; one which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sued for. To distinguish from interlocutory judgment, which merely establishes the right of the plaintiff to recover in general terms; it is judgment which determines a particular cause; a judgment which disposes of the subject matter of the controversy or determines the litigation as to all parties on its merits”. BLACK’S LAW DICTIONARY 979 (4th ed.).
The ruling of the respondent judge has all of the features of a final judgment and therefore cannot be considered an interlocutory judgment or ruling because there was nothing left for the judge to do, nor was the matter still pending when he, after his ruling, ordered the clerk to prepare a bill of cost which, in keeping with the records filed before us, had been prepared and taxed by the respondent herein, approved by the judge, and a writ of execution issued for the collection of the money judgment and cost.
Prohibition will lie to restrain the enforcement of a void judgment where no other remedy is available. Kanawaty et al., v. King[1960] LRSC 66; , 14 LLR 241(1960). Also, prohibition will lie to restrain the enforcement of an illegal judgment. Odeli v. Verdier, [1963] LRSC 20; 15 LLR 285 (1963). Our Constitution provides for the right of appeal from the judgment, decree, decision, or ruling of any Court, administrative board or agency, except the Supreme Court. LIB. CONST., Art. 20 (b) (1986).
We therefore hold that the trial judge’s act of denying petitioner’s announcement of an appeal was illegal and the said judgment or ruling is hereby reversed, and the case remanded to the court below with instruction that the petitioner perfects his appeal nunc pro tunc.
The Clerk of this Court is hereby instructed to send a mandate to the court below commanding the judge to resume jurisdiction over this matter and give effect to this ruling. Costs to abide final determination of this matter. And it is hereby so ordered.
Ruling reversed.