ELLEN A. C. OKAGBARE, Appellant, v. N. OVED JE OKAGBARE and His Honor, SAMUEL B. COLE,

Judge of the Circuit Court of the First Judicial Circuit, Montserrado County, Appellees. APPEAL FROM RULING IN CHAMBERS OF APPLICATION FOR WRIT OF PROHIBITION TO THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY, IN HABEAS CORPUS PROCEEDINGS. Argued November 4, 1959. Decided January 15, 1960. 1. An appeal from an order granting a writ of habeas corpus does not operate as a stay of execution. 2. Prohibition ordinarily lies only upon a showing of unlawful exercise of judicial function. 3. Although a writ of prohibition will not ordinarily be granted to stay execution of a writ of habeas corpus, the Supreme Court, upon application for a writ of prohibition, will stay execution of a writ of habeas corpus pending appeal of a judgment awarding custody of a minor child, where such a stay is shown to be required for the welfare of the minor child. 4. Judicial implementation of a statutory direction with respect to the award of custody of a minor child is subject to and controlled by paramount considerations of facts and circumstances affecting the welfare of the child in question. Appellee Okagbare, husband of, but separated from appellant, instituted habeas corpus proceedings seeking award of custody of their minor child then in appellant’s custody. On award of custody to the husband, appellant filed an appeal therefrom, and also applied to the Supreme Court for a writ of prohibition staying execution of the writ of habeas corpus and of the award of custody thereunder. Prohibition was denied by the Justice presiding in Chambers. The Supreme Court, sitting en banc, heard an appeal from the ruling of the Justice presiding in Chambers, reversed the ruling denying prohibition, and ordered that the minor child remain in appellant’s custody pending disposition of the appeal from the award in the habeas corpus proceedings. 594 LIBERIAN LAW REPORTS Anthony Barclay and William N. Witherspoon for appellant. 0. Natty B. Davis for appellees. MR. JUSTICE WARDSWORTH delivered the opinion of the Court. N. 0. Okagbare, appellee herein, instituted habeas corpus proceedings in the Circuit Court of the First Judicial Circuit, Montserrado County, against his wife, Ellen A. C. Okagbare, appellant herein, alleging, inter alia, that she was unlawfully detaining his infant child, born to them during coverture, and that, she being separated from him, he was demanding the custody of his said infant child. Appellant having duly filed returns to the writ of habeas corpus, same was heard, and ruling was rendered awarding appellee the custody of the said infant child. Thereupon, although an appeal was announced, appellant fled to the Chambers of His Honor, Dessaline T. Harris, with an application for a writ of prohibition, which was ordered issued. Upon hearing, the application was denied, from which ruling in Chambers, appellant prayed an appeal to to the Court, en banc. After careful perusal of the application for the writ of habeas corpus and of the returns thereto, we observed that each of the parties in these proceedings charged the other with being morally unfit to have custody of the infant child in question. For good and sufficient reasons we deem it expedient to incorporate into this opinion the ruling handed down by the Justice presiding in Chambers; and this is what he said : “The application pleads the following grounds for the issuance of the writ of prohibition : ” I. That on May 3o, 1959, a writ of habeas corpus was served on the petitioner in these proceedings ordering her to produce the body of her minor child, being of tender age, one year and three LIBERIAN LAW REPORTS 595 months old, predicated upon the petition of her husband, from whom she had separated and a divorce pending. 2. That notwithstanding her desire to retain the custody of her minor child, for reasons pointed out in her returns to the writ of habeas corpus, copy of which returns is herewith made profert to form a part of these proceedings, the respondent judge ruled that the said minor child be turned over to her estranged husband, the respondent N. Ovedje Okagbare, to live with a third person appointed by him, against which ruling petitioner promptly announced her exception and appealed to Honorable Supreme Court of Liberia during its October, 1959 term. ” `3. And also because petitioner says she is employed in the capacities pointed out by respondent N. Ovedje Okagbare in his petition for a writ of habeas corpus; nevertheless she is capable of taking care of her minor child as against the ability of respondent, who also is employed in more than one capacity. ” ‘4. And also because the said respondent Okagbare is aware that he is not the natural father of the petitioner’s minor child, and has never sought the child’s welfare. ” ‘5. And also because petitioner says that, despite her announcement of an appeal, which should serve as a supersedeas to an enforcement of the judgment rendered, the said respondent Judge is about to strictly enforce his judgment and take the said infant from her, and thereby is attempting to proceed by rule different from those which ought to be observed at all times.’ “The respondents countered the petition by filing returns containing seven counts, as follows : ” ‘I. That the father is the proper custodian of his ( 596 LIBERIAN LAW REPORTS ” minor children in case of separation of husband and wife, and has a right to apply for a writ of habeas corpus, even without the privity of the child. Prohibition therefore does not lie. 2. And also because respondent says that prohibition is not available to stop the execution of a judgment, especially in habeas corpus proceedings where the giving of the notice of appeal does not operate as a supersedeas. And also because respondent says that a decree in habeas corpus proceedings is self-executing, and the taking of an appeal by the respondent, and even the giving of an appeal bond, does not entitle said respondent to retain custody of the child pending the determination of the appeal. Li (4� That the appeal is confined to the determination of the regularity of the proceedings of the lower court. ” ‘5. And also because the determination of the matter at bar is solely discretionary from the pleadings presented, and hence respondents pray that the writ of prohibition should be denied with costs against petitioner. ” ‘6. And also because respondent Judge Cole denies that he is attempting to proceed by a rule different from those which ought to be observed at all times, and alleges that he is proceeding strictly in accordance with the law of the land. (( ‘7. And also because respondents say that the issue raised in Count “4” of the petition about respondent Okagbare not being the natural father of the child was not raised in the returns filed by respondent in the habeas corpus proceedings, and hence is out of place in these proceedings, and should be ignored by this court, which respondents now pray. “Upon all the foregoing, the respondents prayed a de’ LIBERIAN LAW REPORTS 597 nial of the writ of prohibition prayed for by the petitioner. “From all of the above it is seen that these prohibition proceedings have grown out of habeas corpus proceedings prosecuted by N. Ovedje Okagbare in the court below against his wife, Ellen A. C. Okagbare, to recover his minor child, begotten by her after they had separated. Judgment was rendered in the court below in favor of the petitioner, and the child was ordered placed in his custody, to which ruling the respondent took exceptions and announced an appeal to this Honorable Court. Despite the exceptions taken and the appeal announced by the respondent below, she fled to this Court praying the issuance of a writ of prohibition against the trial Judge and the petitioner, praying, that the Judge be prohibited from enforcing his judgment pending the appeal, because, according to Count ‘5’ of the petition, the said Judge was attempting to enforce his judgment by ordering the child to be taken from the mother and placed in the custody of the father, when the appeal should act as a supersedeas, thereby proceeding by rule different from those which ought to be observed at all times. “Let us now search the law and see if the action of the trial Judge in attempting to enforce his judgment in habeas corpus proceedings pending an appeal, would be proceeding by rule different from those which ought to be observed at all times or in strict accordance with the law of the land. “The following statutory provision is controlling: ” ‘An appeal from any judgment, except in an action for summary ejectment or maintenance or in habeas corpus proceedings, shall operate as a stay of execution.’ 1956 Code,,tit. 6, � 991.’ “From the above citation of law it is clearly seen that an appeal in habeas corpus proceedings does not operate as a stay of the execution of the judgment, and 598 LIBERIAN LAW REPORTS that the Judge, in attempting to enforce his judgment, did not follow a rule different from those which ought to be observed at all times, but acted in strict accordance with the law of the land. “Count ‘4’ of the petition for the issuance of the writ of prohibition alleged that N. Ovedje Okagbare is not the natural father of the child. This count of the petition is countered by Count ‘7’ of the returns which alleges that such an issue was never raised by the appellant in the lower court and therefore cannot be raised in the Supreme Court. Prohibition, Mr. Bouvier says is : `The name of a writ issued by a superior court, directed to the judge and parties to a suit in an inferior court, commanding them to cease from the prosecution of the same, upon a suggestion that the cause originally, or some collateral matter arising therein, does not belong to the jurisdiction, but to the cognizance of some other court . . . . The writ of prohibition may also be issued when, having jurisdiction, the court has attempted to proceed by rules different from those which ought to be observed ; or when by the exercise of its jurisdiction, the inferior court would defeat a legal right. . . .’ BOUVIER, LAW DICTIONARY 2739-4o Prohibition (Rawle’s 3rd rev. 1914). “This Court is of the opinion that the legal right of the respondent Okagbare to the child should have been contested in the lower court so as to have given the trial Judge a chance to have heard evidence and made a ruling on such an issue; for the writ only lies in case of the unlawful exercise of judicial function. If, therefore, no such issue was ever projected in the lower court so as to obtain a ruling of the Judge thereon, there is nothing in connection therewith for this Court to review. “On the whole, this Court is of the opinion that the LIBERIAN LAW REPORTS 599 court below has jurisdiction over the proceedings; that it did not exceed its jurisdiction ; nor did it proceed by rule different from those which ought to be observed at all times. We note the following statutory provision relating to custody of minor children : ” ‘The father shall be the custodian of his children against the claim of any person whosoever; but if he is unable or morally unfit to perform his paternal, legal, moral, and natural duties towards his children or for any other reason he fails or neglects to perform such duties, the children may, upon petition to a Circuit Court showing such inability, moral unfitness, or failure on the part of the father, be entrusted to the mother or some other person who is capable of performing such duties.’ 1956 Code, tit. to, � 6o. “This Court has not been convinced that the father in this case is unfit or unable to take care of his child, or is not the natural father of the child. “The application of the petitioner is therefore dismissed for unmeritoriousness with costs against the petitioner. The clerk of this Court is ordered to send a mandate down to the court below informing it of this ruling, ordering it to resume jurisdiction and enforce its judgment. And it is so ordered.” We are unable to agree with the conclusions reached in the above ruling by our colleague, the Justice presiding in Chambers, since we are predominantly influenced by the peculiar surrounding circumstances in this case. He has prepared and filed a dissenting opinion. For the benefit of this opinion, we quote Count “5” of petitioner’s application for the writ of habeas corpus, which reads thus : “And your humble petitioner further says, that because he is not permitted to visit or support his minor child, and since the respondent is neither in a position to devote full time to the child’s care, nor is she financially able to procure the services of a qualified nurse 600 LIBERIAN LAW REPORTS to take care of said minor child as if she, the said respondent, were physically present, the petitioner fears and verily believes that the said minor child is suffering from the want of parental care and guidance and also fears that the child will grow up without fatherly feelings and respect for him. To avoid this (and especially since petitioner strongly feels that respondent’s present way of life is not morally impeccable, nor does it offer the proper environment or atmosphere in which he would prefer his minor daughter to be bred and trained) petitioner addressed several letters to the said respondent demanding from her the said minor child, Odiri Okagbare, prisoner in these proceedings, so that he could provide adequate means whereby the said child would be afforded every necessary care and attention as if her mother, respondent in these proceedings, were physically present. But said respondent flagrantly refused, failed and neglected to deliver to petitioner his minor child, regardless of the fact that the said child is suffering from dire need of parental care and adequate support and maintenance. The said respondent has continued to detain the said child, much to the future detriment of the said child, as will more fully appear from certified copies of letters herewith annexed and marked Exhibits `A,”B’ and ‘C,’ respectively, to form a part of this petition.” Conversely, we quote Count “5” of the respondent’s returns, which reads as follows: “5. And also because respondent says further to Counts `2,”3,”4,”5′ and `6,’ that the same are false and misleading, and therefore, are foundationless for relief of habeas corpus. Once the child was ill, and upon repeated requests made to petitioner for prompt medical attention, instead of petitioner supplying funds to take the child to a recognized medical doctor, petitioner undertook to experiment on the child by injecting her with a concoc- LIBERIAN LAW REPORTS 601 tion of his own making, whereby the child took up with serious illness to the extent that, had not respondent taken her to a medical doctor, at expense borne entirely by respondent, the child would have met with a fatal end ; wherefore in view of this and numerous other cruel acts of petitioner towards the child, respondent prays that she is the best custodian of her minor child without prejudice to any support petitioner may be capable of giving while the child remains with respondent.” We observe further that, although the petitioner for habeas corpus did not deny the charges made against him by the respondent, yet, to satisfy himself, the trial Judge failed to have each of the parties in the court below establish, by evidence, the allegations contained in the petition for the writ of habeas corpus and the returns made by respondent. It is provided by statute that the father is the custodian of his children under certain conditions. This provision of law specifically prescribes the legal steps to be taken by the children in a Circuit Court; but in habeas corpus proceedings authorities are agreed that, under certain circumstances evidence should be introduced to justify the detention of the prisoner or the award of the custody thereof. “While the form and contents of the returns are ordinarily prescribed by local statutes, a return is not invalid on account of technicality in accuracy or a defect which is formal rather than substantial. But while less certainty is required in returns to writs of habeas corpus than in pleadings in civil actions, the returns should contain such statements respecting the detention as to apprise the opposite party of what is intended to be proved and thereby give him an opportunity to answer the return ; and these .facts ought not to appear by way of recital only. “The one to whom a writ of habeas corpus is di- 602 LIBERIAN LAW REPORTS rected is ordinarily required by statute to certify to the court or judge before whom the writ is returnable the case or authority for the prisoner’s detention ; that is to say, the respondent should, in his returns, set forth facts which will relieve him from the imputation of imprisoning or detaining the prisoner without lawful authority.” 25 Am. JUR. 242 Habeas Corpus � 139, 140. In passing, we might mention that it should be borne in mind and duly recognized that the guiding principle in these proceedings should not be whether either parent is economically more prepared to care for the child than the other, or as a matter of right is more entitled to the custody thereof. The paramount issue with which the Court should be deeply concerned, and which should influence its action, is the vital interest, moral and physical wellbeing of the infant child of such a tender age. Hence, every scintilla of evidence tending to show the parent morally or otherwise unfit to retain or be awarded custody of the child, should be given judicial consideration. The statutory provision that every father is legally entitled to the custody of his minor children is admissible of exceptions and does not legally apply in every case. It is true that, in a case of this kind, the fate of the child is left entirely to the good judgment and discretion of the Judge, and his every consideration should therefore be to the child’s safety and best advantage. We hold and feel strongly that a Judge can either abuse the discretion given him under the law in such cases, or he can unwisely or inadequately use it; and in the event of misuse of discretion, he might do irreparable harm to the interest of an infant whose very life could rest in his hands. It was within the discretion of the Judge to have ordered this infant child delivered to the parent, as he did, relying upon the impression he must have gained from the pleadings filed before him. In doing so, he must have had abundant and controlling belief in the averments con- LIBERIAN LAW REPORTS 603 tained in the father’s petition which made it unnecessary for him to have required any testimony at the hearing. But it was also within his discretion to have disqualified both parents upon the pleadings, and to have appointed a guardian of the Judge’s choosing in whom the court had confidence that the required duties of a parent would be performed. The rights of the parents fade into insignificance beside the obligatory duty of the court toward an infant child, who happens to become the subject of such proceedings. The court has an abiding and inescapable duty to every child, especially those of very tender age. That duty is to guard the child’s safety and welfare, supervise its moral and spiritual upbringing, and provide, if necessary, for its education and training. Performance of that duty should not be slackly and irresponsibly handled, as to preclude proof of the legal qualification of one fit to assume such parental care of the child. We maintain, therefore, that the Judge should have tested the truthfulness of the allegations contained in the pleadings of the parents before preparing and reading his ruling which he based upon the unqualified right of a father to the custody of his minor children. One would think that, in such a case, some semblance of regularity at the hearing would have been observed ; and no matter how superficial or perfunctory, it would have at least removed the impression of a prearranged understanding. Although, in ordinary cases, the law makes the father custodian of his minor children, there are circumstances under which the father has been held to be incompetent and unfit for such custody. Law writers have held that moral fitness, financial ability, organized and exemplary home-life, humane treatment to children, respect for parental responsibility for the children’s welfare, are among the qualifications required to justify the father’s custody of his minor children. It should be unreasonable to a logical mind, to assume that, because a father is legally entitled to custody of his minor children, custody of them 604 LIBERIAN LAW REPORTS should be arbitrarily given to him where he is, in fact, unfit by lack of the qualification mentioned above. We cannot bring ourselves to agree that the law intended that every father, without exception, should have custody of a growing child, and thereby be associated with and influence the growing and tender years of an infant. We quote the following authority in support of the position we have taken in this opinion : “The parents have the natural right to the custody and control of their children, and in the case of death of one parent the surviving parent has the prima facie right to the custody of the children. The parents’ right to the custody of the child is, however, not absolute; but is subject to judicial control when the safety or interest of the child demands it, and must yield where the real and permanent interest of the child demands a different disposition. The right of the parents are, however, entitled to great consideration and the courts should not deprive them of the custody of their children without good cause. “Where the father and mother are living together they are jointly entitled to the custody of their children. But the primary right to the custody of their children is in the father, and at common law, in case the parents are living apart and there is a dispute as to the custody, the right of the father is superior to that of the mother. This common-law rule, however, has been much modified by statutes under which the rights of the parents against each other are equal and the custody of the children is to be determined according to the exigencies of the particular case, and even in the absence of statute the father has only a primary and not an absolute right, which is subject to the general rule that the welfare of the child is the paramount consideration, in pursuance of which the mother may be given preference over the father where her custody LIBERIAN LAW REPORTS 605 appears most beneficial to the child.” 29 CYC. i 58890 Parent and Child. “It is well established as a general rule that the welfare and best interest of the child are the controlling element in the determination of all disputes as to the custody. But nevertheless the court should always give the custody to the person having the legal right thereto, unless the circumstances of the case justify it, acting for the welfare of the child, in decreasing the custody elsewhere, and cannot interfere with the rights of a parent unless he so conducts himself as to render it essential to the safety and welfare of the child in some serious and important respect, either physically, intellectually, or morally, that it should be removed from his custody.” 29 CYC. 1594-95 Parent and Child. “A parent may be deprived of or refused the custody of the children where his right has been relinquished or forfeited, as by abandonment or failure to provide for the child, misconduct, or misuse of or cruelty to the child. So the custody is properly refused to a parent who is shown to be unworthy, unsuitable, unfit, of bad moral character or reputation, intemperate, unable to afford the child the necessary care, support, and education, or in any way incompetent for the trust.” 29 CYC. 1597-99 Parent and Child. While we will agree that prohibition is not ordinarily a remedy to stay the execution of a writ of habeas corpus, we feel strongly that, in the instant case, where the safety and well-being of an infant child are at stake, and where an enforcement of habeas corpus during the pendency of the appeal could do the child irreparable hurt, the rigorous and unrelenting provisions of habeas corpus should give way to considerations respecting the welfare of the child. It having been shown on the face of the trial Judge’s ruling that he neglected to institute an investigation into 606 LIBERIAN LAW REPORTS the allegations of appellant and appellee, or to hear any testimony whatever from witnesses of either party, that portion of his said ruling ordering the child turned over within 48 hours is hereby set aside; and the ruling rendered by the aforesaid trial Judge in the habeas corpus proceedings on June io, 1959, from which ruling an appeal was taken, is ordered sent with the records for review by the Supreme Court; and the child in question should remain where it is until such time as this Court can dispose of said appeal. And it is so ordered. Ruling reversed. MR. JUSTICE HARRIS dissenting. These proceedings in prohibition have grown out of habeas corpus proceedings instituted in the Circuit Court of the First Judicial Circuit, Montserrado County, by the appellee in these proceedings against his wife, the appellant, to recover the custody of his child begotten by his said wife, they having separated as husband and wife, but not yet divorced. The case was heard in the court below by Circuit Judge Samuel B. Cole who rendered a judgment placing the child into the custody of the husband. To this ruling the wife excepted and prayed an appeal to this Honorable Court. Notwithstanding the appeal announced by the appellant, defendant in the court below, she fled to this Court with a petition praying the Justice presiding in Chambers for issuance of a writ of prohibition, which petition is fully quoted, supra, in the opinion subscribed to by my colleagues. When presiding in Chambers, I heard the petition and handed down a ruling denying prohibition, having been convinced that the court below had jurisdiction over the cause, that it did not exceed its jurisdiction, nor did it proceed differently from rules which ought to be observed at all times. The Judge attempting to enforce his judgment in the habeas corpus proceedings acted in strict conformity with the following statutory provision : LIBERIAN LAW REPORTS 607 “An appeal from any judgment, except in an action for summary ejectment or maintenance, or in habeas corpus proceedings shall operate as a stay of execution.” 1956 Code, tit.6, � 991. I am of the considered opinion that, until the constitutionality of the above-quoted statutory provision is fairly and squarely raised before the Supreme Court of Liberia, and the said provision declared unconstitutional, it should be judicially enforced. I am of the further considered opinion that, since the question of whether respondent Okagbare was the natural father of the minor child was not raised in the court below, it could not for the first time be raised in this Court, the trial Judge not having had notice of the same so as to make a ruling thereon. I am of the further considered opinion that any error committed by the trial Judge in ruling that the minor child be turned over to the father, as against the protest of the mother, without taking evidence as to which one of the parents was better able to care for the child, would constitute an error of a type for which prohibition would not and cannot lie, and which could be redressed only by appeal, the defendant in the Court below having previously announced such an appeal. Finally, I am of the considered opinion that the sole object of the appellant in seeking the issuance of the writ of prohibition is, contrary to law, to prevent the enforcement of the judgment of the court below. The case being an appealable one, and the defendant in the habeas corpus proceedings having announced an appeal to the Supreme Court, prohibition should not lie; for, says the law: “Errors of an inferior court in the exercise of its admitted jurisdiction are properly reviewable on ap peal and do not justify a resort to a writ of prohibition. Thus, when jurisdiction is clear, an erroneous decision in ruling on the sufficiency of the petition or complaint, or on a motion to dismiss, or for a change of venue, or on matters of defense, is not ground for a 608 LIBERIAN LAW REPORTS writ of prohibition.” 22 R.C.L. 12 Prohibition � lo. “It is well established that a writ of prohibition may not ordinarily be used as a process for the review and correction of errors committed by inferior tribunals. Mere error, irregularity, or mistake in the proceedings of a court having jurisdiction does not justify a resort to the extraordinary remedy by prohibition, both because there has been no usurpation or abuse of power, and because there exists other adequate remedies. Whatever power is conferred may be exercised, and, if it be exercised injudiciously or irregularly, it amounts to an error merely and not to a usurpation or excess of jurisdiction.” 22 R.C.L. 23-24 Prohibition � 22. I have read with much care the opinion of my colleagues, but I cannot agree with them. Because an appeal was taken, the judgment could not properly be modified or reversed, as has been done in this case, until the records in the appeal case, which have been ordered sent up, reach this Court. Do we judge without having a full hearing of a case? Moreover, to order that the child remain in the custody of the appellant is in direct conflict with the law of the land which says, in mandatory language, that an appeal shall not act as a supersedeas in an action of habeas corpus, maintenance and summary ejectment. I would agree with my colleagues in ordering the records sent up if the proceedings were in certiorari, and not prohibition, because it is the function of certiorari to review a case upon the record, but prohibition inquires, mainly, into whether the inferior court has jurisdiction, whether it has exceeded its jurisdiction, and whether it has proceeded contrary to rules which ought to be observed or followed at all times. Surely the act of the Judge in ordering the child into the custody of the father is not contrary to any rule which ought to be observed at all times, but in strict conformity to the law of the land. LIBERIAN LAW REPORTS 609 I reaffirm that, in my opinion, the court below had jurisdiction, and that it did not exceed its jurisdiction ; neither did it proceed contrary to rules which ought to be observed at all times; and that, if the Judge erred in any ruling during the trial of the case, the adequate remedy vouchsafed to the petitioner is an appeal, which she did announce, and which was granted. I repeat that I cannot agree with the position taken by my colleagues in this case. Notwithstanding the affection of the mother for her infant child, as well as the tender age of the child, the law should be enforced ; not that I love Caesar less, but Rome more. Because of the foregoing, I have dissented and refused to sign the judgment in this case.