PAN AMERICAN AIRWAYS, by and thru its Resident Manager, Plaintiff-In-Error, v. HIS HONOUR C. WALLACE OCTAVIUS OBEY, Assigned Circuit Judge, People’s Sixth Judicial Circuit Court, Montserrado County, June Term, A. D. 1980, and HENRIETTA BADIO et al., Defendants-In-Error.

APPEAL FROM A RULING OF THE CHAMBERS JUSTICE GRANTING A PETITION FOR A WRIT OF ERROR.

Heard: June 14, 1982. Decided: July 9, 1982.

1. A petition in special proceedings is a pleading and is therefore governed by the rules of pleadings under the Civil Procedure Law.

2. The withdrawal of a complaint does not deprive the court of jurisdiction so long as the writ which was issued, served and returned, and which brought the parties before the court, remains undisturbed.
3. A party may once withdraw an entire action and file a new one. Upon withdrawal of an entire action, either with or without reservation, nothing is left before the court.
4. The withdrawal of a petition to amend the same, does not divest the Supreme Court of jurisdiction over the matter, and the parties remain in court by virtue of the writ previously issued and served.
5. A petition in special proceedings may be withdrawn and amended before trial without orders of the court.

An action of damages was instituted in the Civil Law Court of the Sixth Judicial Circuit, Montserrado County, against plaintiff-in-error. The writ of summons emanating from the action was served on an employee of plaintiff-in-error who, it is alleged, is not an authorized agent of plaintiff-in-error for the purpose of receiving court precepts. The plaintiff-in-error failed to file an answer, whereupon the trial proceeded without a notice of assignment, and a default judgment was rendered against plaintiff-in-error.

When the bill of costs was served on the plaintiff-in-error to satisfy the judgment, it applied to the Justice in Chambers for a writ of error, whereupon the alternative writ was issued and served. Defendants-in-error filed their returns along with a motion to quash the alternative writ of error and to dismiss the petition on the grounds, among other things, that plaintiff-in-error failed to file an affidavit containing a statement that the application for error was not made for the mere purpose of harassment and delay. Plaintiff-in-error, upon the receipt of the returns and the motion to quash, filed a notice of withdrawal of its petition with reservation to refile, paid the accrued costs, and filed an amended petition for error. To the aforesaid amended returns, defendants-in-error filed their returns, along with an amended motion to quash and dismiss.

In their amended returns, defendants-in-error did not deny the averments in the amended petition, but contended that plaintiff-in-error by withdrawing the petition has conceded the motion to quash and dismiss, thus leaving nothing in the court to be heard. Defendants-in-error also contended that there being no order for the issuance of another alternative writ, the Chambers Justice was without jurisdiction to hear the amended petition. The Justice in Chambers denied the motion, overruled the resistance, and granted the petition. In his ruling, the Justice in Chambers declared the judgment of the Civil Law Court null and void, to which defendants-in-error excepted and appealed to the full Bench. The full Bench, finding the ruling of the Justice in Chambers to be sound in law, affirmed the same.

McDonald M. Perry appeared for appellants. John A. Dennis appeared for appellees.

MR. JUSTICE SMITH delivered the opinion of the Court.

The following is the synopsis of the facts in this case as we have been able to gather from the records before us on appeal from the ruling of the Chambers Justice.

The plaintiff-in-error in these proceedings, Pan American Airways, was defendant in a damages suit instituted in the People’s Civil Law Court for the Sixth Judicial Circuit, Montserrado County, by Co-defendants-in-error Henrietta Badio for herself and her minor children, Theodore W. Badio, Jr., Wilmot Eugene Badio, and her sister, Ellen F. Dennis, all of Monrovia, Liberia. The complaint in the damages suit was not served on the authorized representative of the Airline in Liberia; instead, it was served on one Samuel B. Cole, who, it is alleged, is not an authorized agent of the plaintiff-in-error in Liberia for the purpose of receiving service of court processes, but rather a mere employee of the plaintiff-in-error, Pan American Airlines. The plaintiff-in-error, therefore, did not file and serve any answer to the com-plaint in the damages suit.

During the June, A. D. 1980, Term of the trial court, presided over by co-defendant-in-error Judge Obey, a default judgment was sought and granted by the court below, awarding $6,500.00 special damages and $50,000.00 general damages to Co-defendants-in-error Henrietta Badio et al. A bill of costs was thereupon issued and served on the plaintiff-in-error to satisfy the judgment. It was at this point that the plaintiff-in-error, defend-ant in the court below, applied to the Chambers of this Court for the issuance of a writ of error against the defendants-in-error, alleging, among other things, that the writ of summons issued by the court below in the action of damages was improperly served, and, therefore, the plaintiff-in-error was not afforded an opportunity to file his answer to the complaint. Co-defendants-in-error, the trial judge, compounded the irregularities by hearing the case without the service of notice of assignment and by adjudging plaintiff-in-error liable to pay damages of $6,500.00, and $50,000.00, respectively.

When the alternative writ of error was issued and served upon the defendants-in-error to appear and show cause why a peremptory writ of error should not issue, defendants-in-error filed their returns simultaneously with a motion to quash the alternative writ of error and dismiss the petition on several grounds, among which was the failure of plaintiff-in-error to file an affidavit containing a statement that the application for a writ of error was not being made for the mere purpose of harassment and delay.

Upon the service of defendants-in-error’s returns, and before assignment of the error proceedings for hearing, plaintiff-in-error filed a notice of withdrawal with reservation to file an amended petition, enclosing an amount of $25.00, representing defend-ants-in-error’s return costs, along with the amended petition for a writ of error. The records show that when the clerk presented to counsel for the defendants-in-error, Counselor McDonald M. Perry, the copies of the notice of withdrawal and the amended petition, together with the accrued costs of $25.00, the counsel refused to accept any of them. Thereupon, plaintiff-in-error filed a bill of information complaining of the act of counsel for the defendants-in-error. However, defendants-in-error thereafter filed amended returns to the amended petition along with an amended motion to quash the writ of error and to dismiss the petition as well as the returns to the bill of information. All of the aforesaid papers raised the issue that the plaintiff-in-error, having conceded the contention of the defendants-in-error raised in their motion to quash and dismiss, and having accordingly withdrawn its petition, there was nothing left in court to be heard. Defendants-in-error also contended that the amended petition was filed without an order of the Chambers Justice for the issuance of another alternative writ, the issuance and service of which would have placed defendants-in-error under the jurisdiction of the Court; and that in the absence of such order, the amended petition was a nullity. Therefore, the defendants-in-error contended that the Chambers Justice was without jurisdiction to hear the amended petition.

Defendants-in-error did not deny the averments contained in the amended petition, but contended that the petition was a nullity because there was no order of the Chambers Justice accompanying the amended petition and no affidavit stating that the petition was not being filed for the mere purpose of harassment and delay. Plaintiff-in-error filed a resistance, denying that the amended petition was a nullity, and asked the Chambers Justice to take judicial notice of the affidavit filed along with the amended petition.

Our departed colleague, Mr. Justice Bortue, heard the proceedings in Chambers and on the 20th day of October, 1981, entered a ruling in which he concluded as follows:

“In view of the foregoing, the amended petition of the plaintiff-in-error is hereby granted and the peremptory writ ordered issued. The judgment of the court below which forms the basis of these error proceedings is hereby vacated and declared null and void to all intents and purposes with strict instructions to the court below that, the clerk of the People’s Civil Law Court for the Sixth Judicial Circuit, Montserrado County, is ordered to issue another writ of summons directed to the sheriff for Montserrado County and place same in his hands for service after the plaintiffs below shall have furnished the clerk of the trial court with a copy of their complaint and the proffers pleaded and referred to as exhibits and filed with the said complaint on the 21st day of January, A. D. 1980, so as to afford the defendant below, plaintiff-in-error herein, an opportunity to answer said complaint. Costs for defendants-in-error.”

“The Clerk of this Court is hereby instructed to send a mandate to the court below to this effect. AND IT IS HEREBY SO ORDERED.”

Mr. Justice Yangbe heard the information proceedings which raised the same issues as raised in the petition for a writ of error, and he too granted the information and dismissed defendants-in-error’s motion to quash. The defendants-in-error have excepted to these rulings and appealed to the Court en banc.

When the case was called before this Bench for argument, counsel on both sides, agreed to a consolidation of all of the issues, and have presented to us only the following issues which they desire the Court to pass upon, and which, in our opinion, are relevant and necessary to the final and fair determination of the error proceedings. They are:

5.1. Whether or not the withdrawal of a petition in a special proceeding for the purpose of filing an amended petition, leaves nothing in court? and

5.2. Whether or not an amended petition in a special proceeding cannot be filed without an order of the Court.

These are the two basic issues presented for our consideration and determination. Counsel for the defendants-in-error has argued before us that a special proceeding is not controlled by the strict rules of pleadings in that when a notice of withdrawal is filed by the petitioner of the petition, withdrawal affects both the petition and the writ; hence, nothing is left in court to be heard. However, should the petitioner desire to renew or amend his petition, he must first obtain an order of the Court for the issuance and service of another writ to bring the defendant-in-error under the jurisdiction of the Court; otherwise, the amended petition is a nullity.

Counsel for plaintiff-in-error on the other hand argued that a petition in a special proceeding is a pleading; that all actions in special proceedings are governed by the rules of pleadings, which allow a party to withdraw and amend at any time before trial without the intervention of the Court. Counsel for plaintiff-in-error also argued that the citation or alternative writ having been previously issued and served, the Justice in Chambers retains jurisdiction over the parties by reason of the citation; and that the withdrawal of the petition to amend does not affect the alternative writ previously served and returned served under which the defendants-in-error appeared and filed their returns.

In 4 AM JUR. 2d., Appeal and Error, at § 309, it is stated that procedures for institution of appeal or error proceedings are governed by statutes or rules of court which vary in different jurisdictions. In our jurisdiction, the statute is not silent on the institution of special proceedings to review the ruling of inferior courts on the question of law. Our law is also not silent on the amendment of pleadings, neither is it silent on the question of whether a petition is a pleading or not, nor is a special proceeding, under our statute, not governed by rules of pleadings. We must therefore take recourse to our own law and the several decisions of this Court on the points in issue.

Before discussing the two basic issues as presented to us and already referred to in this opinion, we need to first of all ascertain whether or not generally a petition is a pleading. In Black’s Law Dictionary, we have the following definition:

“In practice, the word ‘petition’ is adopted as the name of that initiatory pleading in an action which is elsewhere called ‘declaration’ or ‘complaint’”. BLACK’S LAW DICTIONARY (4th ed).

The above definition clearly settles the question that a petition is a pleading; it is the initial pleading required to commence a special proceeding and is, therefore, governed by the rules of pleadings under our statute. Here is the relevant portion of our statute governing special proceedings, which we herewith quote:

“There shall be a petition, which shall comply with the rules of a complaint in an action, and a return, if there is an adverse party. There may be such other pleadings as are authorized in an action. The petition shall be accompanied by an affidavit stating the result of any prior application for a similar relief.” Civil Procedure Law, Rev. Code 1: 16.5.

In view of this provision of our statute, it is our holding that a petition is a pleading and is, therefore, governed by the rules of pleadings as provided by our statute.

As to the question of whether or not the withdrawal of a petition for the purpose of filing an amended petition leaves nothing in court, this Court held in the case Cooper-King v. Cooper-Scott,[1963] LRSC 38; 15 LLR 390 (1963), as follows:

“That withdrawal of a complaint does not deprive the court of jurisdiction so long as the writ which was issued, served and returned served, and which brought the parties before the court, remains undisturbed.”

The withdrawal of a pleading with reservation to amend is quite different from the withdrawal of an entire action with reservation to refile. Although our current Civil Procedure Law is silent on the withdrawal of an entire action and subsequent filing of a new action, a long established practice in this jurisdiction permits a party to once withdraw an entire action and file a new one, and doing so neither affects the substantive rights of the defendant nor does it divest the court of jurisdiction over the parties and of the subject matter. It is only when the action is withdrawn without reservation that nothing is left in court. Where the plaintiff or the petitioner reserved the right to refile, he may do so by filing a new action which will require a written direction and the issuance of another writ of summons to be duly served and returned served because the former action was withdrawn and there was nothing left in the court by which the court will exercise jurisdiction over the parties. But in the case of withdrawal of a pleading to amend, the withdrawal does not remove the action and the writ of summons, or the citation or the alternative writ from the court. It is only the pleading that is withdrawn for the purpose of correcting some error or mistake in the pleading that is really before the court. Therefore, the parties are still in court by virtue of the process previously issued and served.

Our statute permits withdrawal and amendment of pleadings, and here is the relevant statute on the point:

“1. Amendment of pleading permitted. At any time before trial any party may, in so far as it does not unreasonably delay trial, once amend any pleading made by him by:

1.1. Withdrawing it and any subsequent pleading made by him;

1.2. Paying all costs incurred by the opposing party in filing and serving pleadings subsequent to the withdrawn pleading; and

1.3. Substituting an amended pleading.” Civil Procedure Law, Rev. Code, 1: 9.10.

In view of the relevant statutes and laws we have quoted, it is our holding that special proceedings are governed by the rules of pleadings, generally; and that the withdrawal by the plaintiff-in-error of its petition for a writ of error to amend the same, did not take or remove the proceedings from the Chambers of this Court. The contention of the defendants-in-error that the filing of the notice of withdrawal of the petition left nothing in the Court and, therefore, the Chambers Justice was without jurisdiction to hear and pass upon the amended petition, is not sustained.

Coming to the other issue which centers around whether a party cannot withdraw and amend his petition in a special proceeding except by orders of the Chamber Justice, as argued by counsel for defendants-in-error, it is our considered opinion that a petition is the initial pleading in an action instituted by a party in the appellate court under special proceedings. It is therefore governed by the same rules governing pleadings generally. Hence, the petition may be withdrawn and amended before trial for the purpose of correcting errors and mistakes in the pleading without intervention of the Court.

In the case Kuyete and Kuyete v. Sirleaf,, [1979] LRSC 31; 28 LLR 163 (1979), this Court upheld the view of Mr. Justice Henries, then presiding in Chambers, who concluded that our law does not provide for the making of an application to withdraw a pleading in order to file amended pleading. Thus, a pleading may be withdrawn with reservation and a new one filed upon payment of accrued costs without an order of court. That was a case of a petition for a writ of error, as in the instant case, and when petitioners’ petition was attacked for defect, they applied to the Chambers Justice for leave to withdraw their petition for the purpose of filing an amended petition. Mr. Justice Henries denied the application and noted, and this Court en banc affirmed, that the application of the plaintiffs-in-error was intended to cure the defects in their petition which had already been attacked in the defendant-in-error’s returns. To grant the application after the case had been called for hearing, Justice Henries opined, would work injustice on the opposite party. The application was, therefore, denied. And so no order of court is necessary for a party to withdraw and amend his pleading; if he found any reason to do so, he may withdraw and amend any pleading before trial insofar as it does not unreasonably delay the trial. It is therefore our holding that the contention of the appellants, defendants-in-error in these proceedings, presented for our decision, is unjustified.

In view of the foregoing and the citations of law in support of our position, the rulings of the Justice in Chambers are affirmed; costs to abide final determination of the case of damages in the court below. And it is hereby so ordered.
Our distinguished colleague, Mr. Justice Mabande, disagrees with our conclusion, and hence, will read his dissenting opinion.

Petition granted; ruling affirmed.

MR. JUSTICE MABANDE dissents.

One who reads the records beyond those of the error proceedings now pending before this Court may be tempted to peruse the trial records with disdain.

The primary issues raised and presented by the appeal is entirely procedural and not factual. The issues are: (1) whether a Chambers Justice waives his right to re-examine and determine the orders given to the Clerk of Court to issue a remedial writ by his prior reading of a similar petition which was filed and withdrawn because of its legal defects? and (2) whether a writ of error may be issued without the exercise of the discretion of the Chambers Justice?

In spite of what the facts in the trial records of this case may be, I am of the firm opinion that the discretionary and legal right of a Chambers Justice cannot be impliedly waived by him.

The ordering of the Clerk of Court to issue the writ and the supervision of the issuance of any remedial writ by a Chambers Justice cannot be delegated to a party litigant. I also conscientiously hold the belief that where a remedial writ issued is discovered by the party litigants and the Court to be illegally issued because of a legal defect appearing in the application, the legal defect in the application permeates in its entirety the writ based upon the application, and renders it also legally defective. Unlike other writs, a remedial writ and its application are inseparable.

The rules which apply to withdrawal of pleadings and to amendment of pleadings in the circuit courts do not necessarily apply to the Supreme Court. Cooper-King v. Cooper-Scott, [1963] LRSC 38; 15 LLR 390 (1963).

Although a legally defective writ may subject one to the jurisdiction of the Court until ordered revoked by the Court, it cannot legally coerce one into submitting to the enforcement of an application filed without an order of the Chambers Justice. An application for any special proceeding before a Chambers Justice cannot legally have any judicial potency without an order of the Chambers Justice to issue the corresponding writ.

The withdrawal of a case in a trial court does not deprive the court of jurisdiction over the parties. However, in the Supreme Court, unlike a circuit court, every writ is issued by virtue of a mandate of either the Chambers Justice or the Full Bench, based upon the application before either the Justice in Chambers or the Full Bench, and on which it has exercised its discretion and ordered the writ issued.

The judicial discretionary power vested in a Supreme Court Justice is a fundamental duty of each justice. It can neither be waived nor delegated to another Justice or a judicial officer.
For these reasons, I have refused to concur with my distinguished colleagues. I therefore dissent.