JAMES K. MOMO, Petitioner, v. HIS HONOUR HALL W. BADIO, Assigned Circuit Judge, Criminal Court “C”, and BENSON GWYAN, Respondents.

PETITION FOR A WRIT OF PROHIBITION TO THE CIRCUIT COURT FOR THE FIRST JUDICIAL CIRCUIT, CRIMINAL ASSIZES, COURT “C”.

Heard: November 28, 1994. Decided: February 16, 1995.

1. Where a criminally charged defendant alleges that his constitutional rights to a fair and impartial trial has been violated as a result of the conduct of the trial judge, he must show how the judge’s conduct prevented him from enjoying a fair and impartial trial.
2. Even though the Constitution as well the Rules of court provide that only the Supreme Court may finally decide constitutional issues, it is not every matter alleging a violation of a constitutional right that must be forwarded by the Chambers Justice to the Bench en banc.
3. For a matter to be forwarded to the bench en banc, a real constitutional issue must be squarely raised, as constitutional issues are not raised by mere allegations.
4. Prohibition cannot be used to correct errors of law or facts because there is an adequate remedy in the form of an appeal for the correction of such errors by an appellate court.
5. Where a criminal trial has progressed as far as rendition of a verdict by the empaneled jury, to which exceptions have been noted, a petition for prohibition filed thereafter to prohibit the trial judge from rendering final judgment, will be deemed an attempt to frustrate and delay the speedy administration of justice, and will not be countenanced by the Supreme Court.

Petitioner in these proceedings applied to the Chambers Justice for a writ of prohibition to prohibit the trial judge from rendering final judgment, after the empaneled jury brought in a verdict, to which he had noted his exceptions. Petitioner in his petition alleged that his constitutional right to a free, fair, and impartial trial was violated by the trial judge, when during the trial, he held private conversations with the trial jurors outside the hearing of the petitioner and his legal representative. Because of the allegations of violations of constitutional rights, the chambers justice forwarded the entire prohibition to the full bench.

The Supreme Court opined firstly that even though the constitution as well the rule of court provide that only the full bench may finally decide constitutional issues, it is not every matter alleging a violation of a constitutional right that must be forwarded by the Chambers Justice to the bench en banc. For a matter to be forwarded to the full bench, the court opined, a real constitutional issue must be squarely raised. In the instant case, the court said that no real constitutional issue has been squarely raised. With respect to the allegations against the judge for conversations with the jury, the court held that whilst such behavior may be considered improper and hence reprehensible, petitioner must, however, show how the judge’s conversation with his jurors prevented him from enjoying a fair and impartial trial. Finally, the Court held that prohibition will not be used to correct errors of law or facts where there is an adequate remedy in the form of an appeal; and that where a criminal trial has progressed as far as rendition of a verdict by the empaneled jury, to which exceptions have been noted, a petition for prohibition filed thereafter to prohibit the trial judge from rendering final judgment, will be deemed an attempt to frustrate and delay the speedy administration of justice, and will not countenanced by the Supreme Court. All of the errors which plaintiff complained of are properly reserved for an appeal, the court concluded. Accordingly, the petition was denied.

George S. B. Tulay appeared for petitioner. C. Aimesa Reeves, Solicitor General, Ministry of Justice and Flaagwaa R. MacFarlandappeared for respondents.

MR. CHIEF JUSTICE BULL delivered the opinion of the Court.
Petitioner in this prohibition proceeding is defendant in a criminal case of theft of a Mazda 626 GLX Sedan, which is still pending for final judgment before Criminal Court “C’, Montserrado County. During the trial of the criminal case, defendant’s counsels filed several motions praying the trial judge for the continuance of the trial for various reasons. The judge denied all of these motions. Whereupon petitioner fled to the chambers of Mr. Justice Morris for a writ of prohibition to stop the trial judge from further proceeding with the trial of the theft case. This petition was filed after the jury had brought in its verdict.

The petition for prohibition contains nineteen (19) counts, which for the most part, contain issues identical to those in the several motions petitioner had filed before the trial judge, praying for discontinuance of the theft of property case.

We deem it important to briefly summarize some of these 19 counts:

Petitioner alleged that prior to his being indicted for theft of property, he had instituted a theft of property action in the Magisterial Court in Monrovia against co-respondent Gwyan for the same subject property, a Mazda 626 GLX Sedan; that the said matter was decided against Mr. Gwyan who took an appeal which is still pending; that notwithstanding the appeal, co-respondent Gwyan, who was a defendant in the previous criminal case for theft of the same property pending on appeal , has caused petitioner to be indicted and tried for theft of property involving the same Mazda 626 GLX Sedan; that when the theft of property suit was called for hearing in Criminal Court “C”, petitioner made his first motion to dismiss the case on the ground that a similar action was pending on appeal undetermined, but the said motion was denied by the trial Judge; and that petitioner later made another motion before the said Judge of Criminal Court “C’, for change of venue which motion was also denied.

These are basically the kind of allegations made in the petition by petitioner’s counsel which he believes entitles his client to a writ of prohibition. Additionally, this petition filed before the chambers of Mr. Justice Morris alleged that the right guaranteed to a criminally charged defendant under our constitution for a fair and impartial trial was violated by the trial judge, when during said trial, he held private conversations with the trial jurors outside the hearing of the petitioner and his legal representative. As we said earlier, petitioner did file motions before the trial court for the discontinuance of this theft case for each of the reasons enumerated above, all of which the trial court denied. This matter is now before us purely upon the allegation that petitioner had suffered a violation of his constitutional right to a fair and impartial trial. Our constitution as well the rule of court, provides that only the Supreme Court may finally decide constitutional issues and obviously, it was for this constitutional mandate that prompted the Chamber Justice to forward this matter to the Bench en bane for disposition.

However, we do not believe that a real constitutional issue has been squarely raised in these proceedings, which this court must decide by law. Constitutional issues are not raised by merely alleging, as the petitioner has done in his petition, that his constitutional right has been violated. The petitioner believed that the trial judge violated his constitutional right to a fair and impartial trial by having private conversation with the empaneled jurors. Whilst such behavior may be considered improper and hence reprehensible, petitioner must show how the judge’s conversation with his jurors prevented him from enjoying a fair and impartial trial. No mention was made as to what was said when the trial judge had conversation with the jurors, neither was any mention made as to what gave rise to these conversations. We deem it necessary to say also that none of the allegations in the petition warrants the application for the writ of prohibition. Remedial writs, especially a writ of prohibition, continues to be too frequently applied for by counsels who represent their clients before this court. More often than not, these petitions are denied for want of merit in pursuing them. Several opinions of the Supreme Court have defined the function of the writ of prohibition and declaring when such writs may be used by parties litigant.

Prohibition will not be used to correct errors of law or facts because there is an adequate remedy in the form of an appeal for the correction of such errors by an appellate court. There are numerous opinions of this Court which have held that prohibition cannot correct errors and irregularities committed by trial judges as the making of such corrections is obtained by the filing of an appeal or a writ of error. Wilson v. Kandakai, [1973] LRSC 8; 21 LLR 452 (1973); Lamco J. V. Operating Company v. Flomo and Wollie, [1978] LRSC 24; 27 LLR 52 (1978).

In the instant case, the criminal trial had progressed as far as rendition of a verdict by the empaneled jury but before final judgment could be rendered by the trial judge, this petition for the writ of prohibition was filed to prohibit the trial judge from proceeding further with the case. Petitioner had excepted to the jury’s verdict as well as to the denial by the trial judge of his several motions made during the trial. What then does the counsel hope to achieve by filing a writ of prohibition on behalf of his client? All of the issues raised in the petition could be properly addressed by an appeal. We see no other reason for the writ of prohibition except to frustrate or delay the speedy administration of justice. We are forced to warn petitioner’s counsel against filing such unmeritorious petition and we admonish all lawyers practicing before this court to refrain from filing such ridiculous and unmeritorious petition.

All of the errors which plaintiff complained of are properly reserved for an appeal. All that was necessary for the counsel to do was to submit to the rendition of the final judgment, announce his appeal, and perfect same for review by this court.

In view of the foregoing, we see no reason why this writ of prohibition should be entertained in any shape, form or manner. These proceedings are hereby dismissed and the judge below is hereby ordered to resume jurisdiction over the theft of property case, render his final judgment and permit the defendant to except and announce an appeal to said final judgment if he so desires. Costs against petitioner. And it is hereby so ordered.

Petition dismissed.