FRANCELIA NAH, Plaintiff-In-Error, v. HIS HONOUR FRANCIS N. TOPOR, Assigned Circuit Judge, Criminal Court “B”, First Judicial Circuit, Montserrado County, and WILLIAM TOBY, on behalf of ROGER and KUKOR TOBY, Defendants-In-Error.

PETITION FOR A WRIT OF ERROR TO THE CIRCUIT COURT FOR THE FIST JUDICIAL CIRCUIT, CRIMINAL ASSIZES, B, MONTSERRADO COUNTY.

Heard: May 21, 1998. Decided: August 6, 1998.

1. A plaintiff-in-error shall pay all accrued costs as a prerequisite for the issuance of the writ of error by the Supreme Court.

2. The statutory provision for payment of accrued costs by a petitioner for a writ of error as a prerequisite to the issuance of the writ is mandatory.

3. The Supreme Court will not issue a writ of error unless the applicant has satisfied the statutory prerequisite of payment in the court below of all costs accrued in the case, out of which the error application grows.

4. Habeas corpus generally is not the proper remedy for the custody of minor children who are in the legal custody of their natural mother.

5. According to Liberian jurisprudence, matters relating to custody of children in Montserrado County are legally cognizable before the Civil Law Court, Sixth Judicial Circuit Court, Montserrado County, and not before any court of the criminal assizes. Any ruling made by such criminal assizes is void ab initio.

6. Jurisdiction is conferred by law and not by consent of parties. Judges should be cognizant of the fact that without jurisdiction, their rulings would be illegal and therefore unenforceable.

7. A petition for a writ of habeas corpus will lie if the custody of the children by defendant is illegal.

The plaintiff-in-error, Madam Francelia Nah, lived with the late Nimely Toby as a paramour for many years, out of which relationship they were blessed with three children, one of whom died after the death of their father, Mr. Nimely Toby. The records disclosed that in August, 1997, co-defendant-in-error, William Toby, brother of the late Nimely Toby, filed a petition for a writ of habeas corpus in Criminal Court “B” of the First Judicial Circuit, Montserrado County, for the custody of the two minor children of his late brother, in persons of Roger Toby and Kukor Toby, for their proper care and welfare.

Due to the persistent absence of plaintiff-in-error, the petition for habeas corpus was reassigned several times until finally, on the 3rd day of September, A. D. 1997, a default judgment was rendered by the judge against the plaintiff-in-error, then respondent in the petition for habeas corpus. She then filed a petition for a writ of error, contending that the children were never legitimized by their father, and that therefore their uncle could not take custody of them. She also contended that she was legally, financially and morally capable of taking care of the children as their natural mother. She therefore prayed that the default judgment in the lower court be reversed.

The defendants-in-error argued that plaintiff-in-error had failed to pay accrued costs, which was a prerequisite for the issuance of the writ of error, and that because of this failure the error petition could not lie and should be dismissed.

The Supreme Court agreed with the respondents’ contention that the payment of accrued costs was a mandatory prerequisite for the issuance of a writ of error and that a failure to pay such costs was ground for the denial of the petition for a writ of error. The Court acknowledged that the plaintiff-in-error had failed to pay the requisite accrued costs and that accordingly the petition for the writ of error should be dismissed. Notwithstanding the dismissal, however, the Court decided that in the interest of transparent justice, it would go into the merits of the petition. In doing so, the Court determined, firstly, that habeas corpus was not the proper remedy to gain custody of children who are in the legal custody of the natural mother. The Court took particular note of the fact that the children had not been legitimized by their father and that the children had been with their natural mother since birth.

With regard to the jurisdiction of Criminal Court “B” over the habeas corpus proceedings, the Court opined that proceedings relating to the custody of children were cognizable before the civil courts and not the criminal courts, that as such the criminal court had no jurisdiction over the case, and that any judgment rendered by it was void ab initio. Therefore, although it denied the petition for the writ of error, the Supreme Court reversed the judgment of the trial court granting custody of the children to the brother of their deceased father and ordered that the children be placed in the custody of their natural mother.

Snosio E. Nigba appeared for plaintiff-in-error. Joseph H Constance appeared for defendants-in-error.

MR. JUSTICE MORRIS delivered the opinion of the Court.

The plaintiff-in-error herein, Madam Francelia Nah, lived with the late Nimely Toby far many years as a paramour. During those years, they were blessed with three children, one of whom died after the death of their father. The certified records before this Court disclosed that in August 1997, Co-defendant-in-error William Toby, brother of the late Nimely Toby, filed a petition for a writ of habeas corpus in Criminal Court “B” of the First Judicial Circuit, Montserrado County, for the custody of his brother’s two minor children, Roger Toby and Kukor Toby, for their care and welfare.

The records further revealed that the hearing of the petition was reassigned several times, because of the absence of the plaintiff-in-error, and that finally a default judgment was rendered on September 3, 1997 against plaintiff-in-error. It is from this judgment that respondent in the habeas corpus proceedings filed a five-count petition for a writ of error before this Honourable Court.

The plaintiff-in-error basically contended that the father of the minor children died without legitimizing them, and that as such, the deceased’s brother could not take custody of the illegitimate children because plaintiff-in-error was legally, financially and morally capable of taking care of her children, being their natural mother. Plaintiff-in-error also argued before this Court that a default judgment cannot be rendered in a habeas corpus proceeding, as in the instant case, and that the trial court should have issued a compulsory writ of habeas corpus or should have held plaintiff-in-error in contempt to compel the production of the two (2) minor children. Plaintiff-in-error therefore requested this Honourable Court to reverse the ruling of the lower court and remand the case for a new trial.

In response thereto, defendants-in-error filed a six-count returns contending, among other things, that the application for assignment for hearing of the petition for a writ of error did not carry a statement as to why an appeal was not taken. Defendants-in-error also contended that plaintiff-in-error had failed to pay the accrued costs, which was a prerequisite to issuance of the writ of error, and that as such, the writ should be dismissed for failure of plaintiff-in-error to comply with the mandatory requirement for the issuance of the writ by this Court. They maintained that the writ of habeas corpus does not question the legitimacy or illegitimacy of the person subject to the writ, but its paramount consideration is the welfare of the children where custody of such minor children is at issue, as in the instant case. Defendants-in-error therefore prayed this Court to deny the petition and order the children placed in the custody of co-defendant-in-error, William Toby.

Predicated upon the contentions of the parties, as couched and summarized from the certified records before this Honourable Court, we consider the following issues to be germane for the determination of this case:

1. Whether or not the failure of plaintiff-in-error to pay accrued costs is ground for the denial of the issuance of a writ of error.

2. Whether or not the writ of habeas corpus under our law, is the proper writ for the granting of custody of illegitimate child or children to a person other than their natural mother.

3. Whether or not the issue of custody of children is cognizable before the First Judicial Circuit Court, Criminal Assizes “B” for Montserrado County.

Traversing the first issue, which is, whether or not the failure of the plaintiff-in-error to pay accrued costs is ground for the denial of the of a writ of error. The answer to this question is in the affirmative. The records certified before this Court show that the plaintiff-in-error failed and neglected to pay accrued costs, which is a prerequisite for the issuance of a writ of error. It has been, and is still the elementary principle of law, procedure and practice hoary with age in our jurisdiction, that a plaintiff-in-error shall pay all accrued costs as a prerequisite for the issuance of a writ of error by this Honourable Court. For reliance, see Civil Procedure Law, Rev. Code 1:16.24.

In the case Nigerian Port Authority v. Braithwaite, [1977] LRSC 55; 26 LLR 338 (1977), this Court held that: “The statutory provision for payment of accrued costs by a petitioner for a writ of error, as a prerequisite to issuance of the writ, is mandatory.” It is clearly shown from the statutory provision and in keeping with its construction and interpretation by this Court in the above cited case that the payment of accrued costs by a party applying for a writ of error to this Court is deemed a mandatory requirement for the issuance of a writ of error. This requirement has not been met by the plaintiff-in-error in the instant case.

This Court in the case Morris v. Reeves, [1978] LRSC 60; 27 LLR 334 (1978) held: “that the Supreme Court will not issue a writ of error unless the applicant has satisfied the statutory prerequisite of payment in the court below of all costs accrued in the case out of which the error application grows.” Hence, the petition for the writ of error is hereby denied and the alternative writ quashed.

Notwithstanding the foregoing precedents, which we still affirm, this Court will however delve into the merits of the error proceeding in order to promote the ends of substantial justice and the welfare of the minor children.

We observe from the records in this case that Plaintiff-in-error Francelia Nah, was never downed by the late Toby and that the decedent never legitimized his two minor children, subject of the habeas corpus proceedings. We also observe in the records in this case that the two minor children had been in the custody of their natural mother, Francelia Nah, before and after the death of their father, up to and including the date of the filing of the habeas corpus proceedings in the court below, and that the said natural mother had been caring for the welfare of her minor children since the death of their father.

With respect to the second issue, which is whether or not the writ of habeas corpus under our law is the proper writ for the granting of custody of illegitimate children to another, other than their natural mother, the certified records before this Honourable Court did not indicate that the co-defendant-in-error, William Toby, brother of the deceased, had ever been appointed as guardian ad litem by the Monthly and Probate Court for Montserrado County, as required by law. It is therefore the holding of this Court that habeas corpus is not the proper remedy for the custodian of minor children who are in the legal custody of their natural mother; and as such, there is no illegality with respect to the custody of a minor children for which habeas corpus proceedings could be sought and granted, as was done in the instant case. The judgment of the trial court is therefore hereby reversed and the children are ordered placed in the custody of their natural mother.

Traversing the third issue, which is whether or not the issue of custody of the children is cognizable before the First Judicial Circuit Court, Criminal Assizes “B” for Montserrado County, this Court says that according to our Liberian jurisprudence, matters relating to custody of children in Montserrado County are definitely and legally cognizable before the Civil Law Court, Sixth Judicial Circuit, Montserrado County, and not the First Judicial Circuit Court, Criminal Assizes “B”. Therefore, it is the holding of this Honourable Court that the First Judicial Circuit Court, Criminal Assizes “B”, which rendered the judgment, lacked jurisdiction over the subject matter. Hence, said judgment is null and void ab initio. For reliance, see Civil Procedure Law, Rev. Code 1: 11.2 (a).

This Court hereby uses this case at this time to strongly warn all judges of subordinate courts to strictly observe their respective jurisdiction over cases they handle because jurisdiction is conferred by law and not by consent of the parties. Judges should be cognizance of the fact that without jurisdiction their rulings would be illegal and unenforceable. Therefore, we wish to inform all judges of subordinate courts that effective as of the October Term, A. D. 1998, this Honourable Court shall commence rigid disciplinary actions, including suspension form office, against any and all judges who glaringly and unprofessionally neglect to observe the respective judicial limitations to avoid and prevent unnecessary liabilities to partly litigants which they ought not to be subjected to.

In our jurisdiction, a petition for a writ of habeas corpus could only lie if the holding of the children by the defendant is illegal. For reliance, see Civil Procedure Law, Rev. Code 16.51. In addition to the foregoing, there is nothing criminal about a natural mother of illegitimate children having them live with her, where they have always lived since their birth, as in the instant case.

Wherefore, and in view of the foregoing, it is the considered opinion of this Court that the judgment of the lower court is hereby reversed and the children ordered placed in the custody of their natural mother, notwithstanding the denial of the writ of error. The Clerk of this Court is hereby ordered to send a mandate to the court below commanding the presiding judge therein to resume jurisdiction and give effect to this opinion. Costs are disallowed. And it is hereby so ordered.

Judgment reversed