SACKALLAH PONGAY, Petitioner, v. HIS HONOUR A. W. OBEY, Assigned Circuit Judge presiding over the Tenth Judicial Circuit, Lofa County, and HARLIE KORLUBAH, Respondents.
APPEAL FROM A RULING OF THE JUSTICE IN CHAMBERS DENYING ISSUANCE OF THE WRIT OF CERTIORARI.
Heard: November 1981. Decided: February 4, 1982.
1. The right of a party to apply for certiorari is limited to the review of an interlocutory ruling; that right terminates as soon as the trial court gives final judgment.
2. The finality of a judgment may depend on the text of the judgment itself.
3. Where a trial judge decides issues joined, gives a command and awaits its execution, it is a final judgment except the party against whose interest the order operates seeks another appropriate legal remedy to stay the judgment.
Co-respondent Harlie Korlubah sued Petitioner Sackallah Porgy in the magisterial court of Kolahum in an action of summary proceeding to recover possession of real property and obtained judgement against the said petitioner. Petitioner, thereupon, announced an appeal to the Tenth Judicial Circuit Court, Lofa County. The assigned judge presiding over the Tenth Judicial Circuit Court dismissed the appeal, following a hearing. Petitioner did not except to the ruling or announce an appeal from the said ruling. Petitioner later filed petition for the writ of certiorari. The Justice in Chambers issued the alternative writ, but denied the issuance of the peremptory writ, following a hearing. Petitioner appealed to the Supreme Court en bane. The Court found that the ruling of the trial judge was a final judgment and not an interlocutory ruling and therefore held that certiorari would not lie to review a final judgment. Accordingly, the Court affirmed the ruling of the Justice in Chambers.
Robert G.W Azango appeared for the petitioner/appellant.
J Emmanuel Berry appeared for the respondents/appellees.
MR. JUSTICE MABANDE delivered the opinion of the Court.
The land, subject of this case, was originally owned by Oldman Meamah of Ndoliloe, Kissi Chiefdom, Kolahun District of Lofa County. After the death of Meamah, a dispute arose between Tengbeh Sowwinor, son of Meamah and Chief Sackallah Pongay who claimed that Mamas sold the land to him. Chief Sackallah Pongay is nephew of Meamah.
In November 1967, a type of class action, entitled an action of tribal bush dispute, was instituted by Tengbeh Sowwinor, Plaintiff, against Chief Pongay in the court of Paramount Chief Tamba Taylor. After regular trial according to the local tribal trial procedure, there was evidence that Chief Ponca bought the land from Meamah. Paramount Chief Tamba Taylor therefore ruled that defendant Chief Pongay was entitled to the disputed land. Plaintiff did not appeal; he paid the costs. In spite of the unappealed judgment, Harlie Korlubah, another son of Meamah filed in the magisterial court, Kolahun District, Lofa County, an action of summary ejectment against the same defendant, Chief Sackallah Pongay.
The magisterial court tried the case again and ruled against defendant Pongay, whose son Kamgba announced an appeal for and on behalf of him, to the Tenth Judicial Circuit Court, Lofa County. The assigned judge presiding over the Tenth Judicial Circuit Court assigned the case, heard it and dismissed the appeal. Petitioner Pongay who did not except to or announce an appeal from the decision later petitioned for a writ of certiorari. The writ was issued, heard and ruled against him; hence, this appeal to the Court en bane.
The main issue before this Court is to determine whether a writ of certiorari would lie when a court of record dismisses a case involving a party present in court and orders execution of the judgment?
Petitioner’s counsel argued that any judgment which has not been finally executed is an interlocutory ruling.
Respondents’ counsel contended that a judgment terminating the points in issue joined by and between the adversary parties is a final judgment of that court; certiorari does not lie for a review of such a judgment or ruling.
Each of the four special proceedings has a limited scope of application. The writ of one special proceeding is not intended by law to be used by any imaginative analogy to perform the functions of the other.
According to petitioner’s contention, every unappealed ruling or judgment is interlocutory until it is finally executed. To so broadly hold would mean that even the opinions of this Court are interlocutory until the mandates are finally executed.
In the case Maritime Transport Operators, GMBH v. Koroma et al.[1976] LRSC 77; , 25 LLR 371 (1976), this Court held that certiorari proceedings can be heard only during the pendency of an action before a court or a judge.
In the case Republic v. Weafuah, [1964] LRSC 47; 16 LLR 122, 129 (1964) this Court held that “the corrective competence of a writ of certiorari ends with the determination of the case out of which it grew”. The efficacy of the writ of certiorari terminates by the adjudication of a case out which it may grow. In the case before us the legal foundation for the petition for certiorari did not exist at the time the petition was filed. The controversy had been finally adjudicated and execution of judgment ordered and issued fourteen (14) days before the filing of the petition.
Every man is entitled to take full advantage of the law in defense of his rights but if he fails to do so, the law gives no protection to him who abuses his own rights. Where a trial court gives a judgment and a command tending to relinquish any further determination of that controversy, the judgment is final and the party affected is entitled to appeal if he is present or applies for a writ of error only if he was absent and the command had not been fully executed. Certiorari cannot lie to do the work of other writs. The right of a party to apply for certiorari terminates as soon as the court gives judgment that ends the right of the parties to litigate before it. Such a judgment puts a stop to the duty of that court to hear the case any longer.
The finality of a judgment may depend on the text of the judgment itself. Where a trial judge decides issues joined gives a command and awaits its execution, it is a final judgment, except the party against whose interest the order operates seeks another appropriate legal remedy to stay the judgment. Cole-Larston v. Thompson, [1971] LRSC 41; 20 LLR 339 (1971).
In the case, Liberian Bank for Development and Investment v. Holder, [1981] LRSC 30; 29 LLR 310 (1981), this Court held: “The finality of a judgment rests on two (2) media of judicial consideration. In any case over which the court has jurisdiction its judgment from which no appeal is announced is final”. In the present suit, the trial judge ruled dismissing the appeal, rendered judgment for respondent and ordered execution, thus terminating the case.
Petitioner’s counsel still strenuously argued that where a judgment rendered by a court has not been finally executed, a party may legally apply for certiorari because, he argued, the judgment becomes interlocutory until it is finally executed. The records indicate that the counsel is apparently unfair to his client and not honestly handling the case but merely filed the petition to delay justice. We have every reason to believe that the counsel involved was fully aware of and thoroughly knew the purposes and limitations of each of the four basic special proceedings but he filed the petition purposely to also mislead this Court. It is the historic duty of courts to exercise punitive measures on a counsel who pursue unmeritorious actions.
In the case OAC v. Sambola and the Board of General Appeals, [1981] LRSC 5; 29 LLR 75 (1981), this Court held: “Where a lawyer has failed to professionally and expertly handle the case of his client, it is only ethical and honest on his part to admit his faults and to advise his client accordingly, and not to induce or encourage him to defend a groundless cause with the hope to blame the judiciary for the outcome.
As no appeal was announced to the dismissal of the case while the adverse parties in interest were present, we hold that the ruling by the trial judge was a final judgment. We therefore affirm the ruling of the Chambers Justice holding that the ruling of the trial judge in dismissing the appeal of appellant, now petitioner in these proceedings, was final and not interlocutory. Under our Civil Procedure Law, Rev. Code 1, the writ of certiorari may lie only where the decision sought to be reviewed is interlocutory. Since the judgment was final, certiorari cannot lie. We therefore affirm the ruling of the Chambers Justice and hereby order the alternative writ to be quashed with costs against the petitioner.
The Clerk of this Court is therefore ordered to send a mandate to the judge presiding in the trial court to resume jurisdiction over this matter and enforce this judgment. And it is so ordered.
Ruling affirmed; certiorari denied