IN RE: THE APPLICATION OF HIS HONOUR HARPER S. BAILEY, Judge, Monthly and Probate Court of Montserrado County, Applicant, for Reconsideration of the Fine Imposed in Contempt Proceedings.
APPLICATION FOR RECONSIDERATION OF FINE IMPOSED BY SUPREME COURT IN CONTEMPT PROCEEDINGS.
Heard: December 4, 1989. Decided: January 9, 1990.
1. Any legislation which violates the Constitution is without legal force from the time of its enactment.
2. The decisions of this Court are binding on all other courts within the Republic.
3. The Supreme Court, pursuant to its supervisory powers over judges, is duty bound to take cognizance and judicial notice of the records certified to it and the conduct of the trial judge exhibited by said records; and on the basis of such records, the Court may impose fine on the trial judge for any illegal and irregular conduct exhibited by the judge in respect to the Supreme Court’s decision and mandate, as revealed by the records certified to the Court.
4. The Supreme Court being a constitutional Court, has general extraordinary powers to enforce its mandates by competent process, and that the only limitation on its powers to punish for contempt are those found in the constitution.
5. This Court has the inherent power not only to punish for contempt of court, but to determine what constitutes contempt.
6. Any act of a judge, which tends to belittle, degrade, obstruct, interrupt and undermine the dignity of this Court or prevent the administration of justice is contemptuous.
7. A judge cannot review the act of his predecessor.
On November 17, 1981 Hannah Harper-Crabbe was issued letters of administration to administer the intestate estate of Alexander R. Harper by the Monthly and Probate Court for Montserrado County, presided over by Her Honour Gladys K. Johnson. On September 29, 1987, Elias G. H. Ricks Ngwayah, purporting to be an administrator of the intestate estate of Alexander R. Harper, filed a petition for revocation of the letters of administration granted to Hannah Harper-Crabbe before the same Monthly and Probate Court of Montserrado County, then presided over by His Honour Harper S. Bailey.
Pleadings containing mixed issues of facts and law were exchanged. The trial judge, His Honour Harper S. Bailey, entertained argument on the law issues raised in the pleadings and, in passing on same, declared the letters of administration issued to Hannah Harper-Crabbe void without taking evidence of the factual issues raised in the pleadings. From this ruling of Judge Bailey, Hannah Harper-Crabbe excepted and announced an appeal. Despite the announcement of appeal, Judge Bailey further ruled revoking the court’s decree entered in the case, Crabbe v. Dean, pending the final determination of the appeal, as announced in the petition for revocation of letters of administration case. This Crabbe v. Dean case had already been decided by the Supreme Court and a mandate sent to the trial court presided over by Judge Harper S. Bailey for enforcement. This latter ruling of Judge Bailey was tantamount to reversing the Supreme Court’s ruling and mandate to which Hannah Harper-Crabbe excepted. Based upon this action of the probate judge, coupled with his nullification of the letters of administration issued to Hannah Harper-Crabbe, the Supreme Court fined him $800.00. It was from this fine that the applicant (Judge Bailey) applied to the Supreme Court for reconsideration.
On the petition for reconsideration of the fine before the Supreme Court, the Court held that the act of Judge Bailey, in refusing to enforce the mandate of the Supreme Court in the manner he was commanded to do, was intentional, deliberate, incorrigible, disrespectful and defiant. The Court also held that Judge Bailey did not show any sign of penitence for his behavior in order to mitigate or reduce the fine, but rather said that he was prepared to pay said fine. The application for reconsideration was, therefore, denied.
His Honor Harper S. Bailey appeared for himself. Philip A. Z. Banks, III, and Jenkins K Z B. Scott appeared as amici curiae.
MR. JUSTICE AZANGO delivered the opinion of the Court.
The facts surrounding this application should be made crystal clear for the benefit of this opinion.
According to the history of the case, on September 29, 1987, one Elias G. H. Ricks Ngwayah, purporting to be administrator of the intestate estate of the late Alexander R. Harper, filed a petition before the Monthly and Probate Court for Montserrado County, presided over by His Honour Harper S. Bailey, praying for the revocation of the letters of administration issued to Hannah Harper-Crabbe on November 17, 1981 by the Monthly and Probate Court for Montserrado County, at the time being presided over by the then probate judge, Her Honour Gladys K. Johnson, in respect of the same intestate estate.
Pleadings were exchanged between the parties, containing both issues of law and issues of fact. Although no evidence was taken in the matter, the trial judge, His Honour Harper S. Bailey, upon hearing of the arguments on the issues of law, proceeded to give a ruling in the matter, adjudging as follows:
(a) That the petition filed by Elias G. N. Ricks Ngwayah for cancellation of the letters of administration granted to Hannah Harper-Crabbe be denied. The trial judge also declared that the letters of administration granted to the petitioner, as not having been done properly and therefore void.
(b) That Her Honor Gladys K. Johnson had acted ultra vires and erroneously in granting letters of administration to Hannah Harper-Crabbe and accordingly that the said letters of administration was void and of no legal effect.
(c) That the only person who had legally and correctly been granted letters of administration was Rose K. Harper Hollywood, who had succeeded Beno R. Harper, the late co-administrator of the intestate estate of the late Alexander R. Harper. As such, said Rose K. Harper was the only one who held valid letters of administration for the estate.
Not being satisfied with the ruling of the court declaring her letters of administration void, and its review of the granting of said letters of administration by the presiding judge’s predecessor judge, Her Honor Gladys K. Johnson, Hannah Harper-Crabbe excepted to the said ruling and announced an appeal therefrom.
The records further reveal that following the announcement of the taking of the appeal, His Honor Harper S. Bailey proceeded to make the following ruling:
“THE COURT. Because of the unmeritorious announcement and praying for the appeal against the decree of this court to the Honourable Supreme Court of Liberia, the court’s decree that was entered in the case Hannah Harper-Crabbe v. Ezzat S. Dean is hereby ordered revoked and the clerk of the court is hereby ordered to communicate with Mr. Ezzat S. Dean not to pay any cent to Miss Hannah Harper- Crabbe pending final determination of the appeal that has been announced by the said Crabbe in this case. The sheriff of this court is ordered not to collect any cent or money affecting the estate of late Alexander R. Harper in favour of Hannah Harper-Crabbe pending final determination of the appeal, which has been announced by her in this instant case. And it is hereby so ordered.”
This latter ruling, quoted immediately above, was in relation to a case already determined by the Honourable the Supreme Court of Liberia and in respect of which a mandate had been sent down to the trial court, presided over by His Honour Harper S. Bailey, for enforcement, and which mandate of the Supreme Court had been ordered read and enforced. So the net effect of this latter ruling of Judge Bailey was tantamount to reversal of the Supreme Court’s ruling and mandate. Thus, Hannah Harper-Crabbe excepted to the latter ruling.
It is from this action of the probate court judge and his declaration of nullity of the letters of administration issued in favour of Hannah Harper-Crabbe by his predecessor, Her Honour Gladys K. Johnson, that the Supreme Court proceeded to make its determination and to impose a fine upon His Honour Harper S. Bailey in the case out of which the instant petition grows. Because of the ineptitude of the probate judge in the conduct of this case, his arbitrariness, insolence, defiance, arrogance, recalcitrance, incorrigibility, disrespectfulness, and unbridle audacity in challenging the lawful mandate and authority of this Court, obviously criticizing its judgment thus offering this Court that open or intentional insult, the reproachful contemptuous act, which incited and justified resentment and indignity to the Court, his immaturity and unripeness in the science and know-ledge of the law exhibited from time to time in the court below, concomitant with impertinence, imprudence and insolent behavior as aforesaid towards citizens and courtiers in the presence of the Court in this particular case, he was reasonably amerced in a fine of eight hundred dollars ($800.00) by this Court to be paid in the treasury of the Republic as specified in the judgment of this Court. The Probate Judge on the 17thday of July, A. D. 1989, applied to this court for the reconsideration of said fine imposed upon him and in the meantime, challenged the court’s authority constitutionally for the imposition of the fine. Here is the judge’s application, quoted below for the benefit of this opinion:
“His Honour Harper S. Bailey, judge of the monthly and probate Court, Temple of Justice Building, City of Monrovia, Montserrado County, applicant, respectfully makes application to the august body of the Honourable Supreme Court of Liberia to reconsider the fines of eight hundred dollars ($800.00) imposed upon him, and showeth the following legal and factual reasons to wit:
1. That he was never a party to the petitioner/appellee’s petition that was filed before the monthly and probate court for “revocation of letters of administration”; nor a party to the appeal case; neither was he cited, or summoned to appear before the Honourable Supreme Court during the hearing of the said appeal case out of which the judgment that was rendered on the 14thday of July, A. D. 1989, also amerced the judge to the exorbitant fines of eight hundred dollars ($800.00) dollars. The judge is honestly calling on each of you, the Honourable Members of the Honourable Supreme Court of Liberia, to apply judicial impartial attention and to take recourse to the case Tubman v. Murdoch, [1934] LRSC 26; 4 LLR 179 (1934 ) on the subject of parties to an action. The judge also prays Your Honours to take cognizance of the subject of a court’s jurisdiction over a party; and in respect of this very subject, this Honourable Supreme Court has already expounded in the case Maurice v. Diggs, [1908] LRSC 2; 2 LLR 3 (1908) relative to jurisdiction of a court in any given case.
2. That your humble applicant further respectfully submits and crave each of your kind attention to Article 21(d)(ii) of the Constitution of Liberia, relative to:
Excessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted. Your humble applicant also cites Your Honours to Article 73 of the Constitution, which unequivocally states inter alia: “no judicial official shall be summoned arrested, detained, prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of a trial in open court or in chambers,. . ..”
Your humble applicant refers Your Honours to the New Judiciary Law of Liberia, which had limited the amount of judicial fines to be imposed by each of the judicial courts, and that the fines of the Honourable Supreme Court of Liberia should not exceed the amount of three hundred ($300.00) dollars against any party or person held in contempt proceedings; but in this particular case, Judge Harper S. Bailey was never a party to the original case nor to the appeal case involving the above mentioned parties, and ought not to suffer such amercement of the excessive fines, as to do so would be to deny him the due process of law. Wolo v. Wolo[1937] LRSC 12; , 5 LLR 423 (1937)
“The judge therefore craved the indulgence of this court to reconsider the amount of the fine, according to him, inadvertently imposed upon him in the spirit of impartial and transparent justice and the constitutional guarantee for the safety of every Liberian citizen.
As a matter of judiciousness and circumspection toward a sound judgment, uninfluenced otherwise, the Court, prior to hearing the application, appointed amici curiae constituting Counsellor Jenkins K. Z. B. Scott, Minister of Justice and Counsellor Philip A Z. Banks, III. They have prepared and submitted their views.
When the case was called for hearing, strangely, His Honor, the Judge cited and sarcastically reminded the Bench of Exodus, chapter 18, verses 19-22, which is under the heading: “The appointment of judges”.
It reads as follows, beginning with verse 13:
“And it came to pass on the morrow, that Moses sat to judge the people and the people stood by Moses from the morning unto the evening. And when Moses’ father-in-law saw all that he did to the people, he said what is this thing that thou doest to the people? Why sittest thou thyself alone, and all the people stand by thee from morning unto evening? And Moses said unto his father-in-law, because the people come unto me to inquire of God. When they have a matter, they come unto me; and I judge between one another, and I do make them know the statutes of God, and his laws. And Moses’ father-in-law said unto him, the thing that thou doest is not good. Thou wilt surely wear away both thou and this people that is with thee; for this thing is too heavy for thee, thou art not able to perform it thyself alone. Hearken now unto my voice, I will give thee counsel, and God will be with thee. Be thou for the people God ward, that thou mayest bring the causes unto God; and thou shalt teach them ordinances and laws, and shall show the way wherein they must walk and the work that they must do. Moreover, thou shalt provide out of all the people, and place such over them, to be rulers of thou-sands, and rulers of hundreds, rulers of fifties, and rulers of tens; and let them judge the people of all seasons, and it shall be, that every great matter they shall bring unto thee, but every small matter, they shall judge so shall it be easier for thyself, and they shall bear the burdens with thee. If thou shalt do this thing, and God commands thee so, then thou shalt be able to endure, and all the people shall along go to place in peace. So Moses hearkened to the voice of his father-in-law and did all that he had said. And Moses chose able men out of all Israel, and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. And they judged the people at all seasons; the hard causes they brought unto Moses, but every small matter, they judged themselves. And Moses let his father-in-law depart and he went away into his own land.”
Whatever the judge meant by this biblical citation is left to the imagination, conjectures and inferences. However, one thing is certain, that our stations here on the bench are in conformity with the Constitution of Liberia and the laws of this country. With us, principles are eternal, and consciences are our guides. Our judgments are based upon sober reflections, and upon the commands of the deity. Our mandate is to hear the causes between brethren and judge righteously between every man and his brother, and the stranger that is with him. We are not here to respect persons in judiciary, but to hear the small as well as the great; and in doing so, we shall not be afraid of the face of man, for the judgment is God’s and the cause that is too hard for us, we shall carry it unto him and he shall hear us.
How is it possible that the judge could be begging for mercy, and asking the Court to consider relieving him of the fine imposed, and in the meantime challenging the constitutional and statutory authority of this Court to impose the said fine? This baffles our minds.
In passing, we wish to comment that we are aware that the general constitutional guarantees are simply a protection to the fundamental or inherent rights, which are common to all citizens. Such constitutional provisions are a guarantee of rights and not a limitation of them. Such constitutional provisions are rights so secured that they may not be made to yield to mere conveniences. If not warranted by any just occasion, the least imposition on any of these fundamental rights is oppressive.
The judge should be aware that the citizens of a free government are justly jealous of their constitutional rights and privileges and this should be attributed to them as a virtue rather than a fault. It keeps them on the alert and inspires them with courage and determination in their efforts to resist the aggression of arbitrary power. It is just as obligatory upon a citizen to resist encroachment upon his right and liberty guaranteed by the constitution as it is for him to uphold and maintain its integrity. We are aware also that a constitutional right is a right guaranteed to every citizen by the organic law, so guaranteed as to prevent legislative interference with that right. This guarantee assures the citizens of the privileges of having such a right judicially declared and respected. Hence, these rights cannot be imposed on or destroyed under the guise or device of being regulated.
Also, individual rights under our constitution are immutable against all hostile judgments. We are also aware that the guarantees in the Bill of Rights or the Declaration of Rights, which provide protection against the exacting of excessive fines or inflicting of cruel and unusual punishment shall forever remain inviolate. We are also aware of the inalienable rights of all persons, the basic rights of citizenship, and the fundamental principles declared in our Constitution as the basis of good government. It must be deemed that while the framers of our Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment and that of the people of Liberia in adopting the said instrument, they also manifested a determination to shield themselves and their properties from the effects of those sudden and strange passions to which men are exposed. Nevertheless, this Court shall sell to no man; we shall not deny any man either justice or right. The judge should remember that causes should not be heard before a prejudicial court. These guarantees or rights should not be destroyed, denied, abridged, or impaired. This court shall continue to safeguard the declaration of rights and remedies guaranteed by the constitutional provision securing remedies for injuries. Judges should be aware that in their conduct of duties, they are not empowered by unrestrained licenses to follow the dictates of unbridled will to do as they feel. They are not laws unto themselves.
In support of his actions, the judge vehemently argued sections 12.5 and 12.6 of the Judiciary Law, Revised Code 17, Article 21(d)(ii) and Articles 73 of the Constitution of Liberia, and sections 102.6 and 107.4, of the Probate Court Procedure Code. However, during the hearing, when he was questioned on whether or not he was aware that sections 12.5 and 12.6 of the Judiciary Law, Revised Code, had been declared unconstitutional, made null and void ab initio in the case In Re: the Constitutionality of Section 12.5 and 12.6 of the Judicial Law[1975] LRSC 3; , 24 LLR 37 (1972), he expressed shock and dismay, vacillated, murmured, and thereafter publicly declared his ignorance there of. Here is the opinion of the Supreme Court on the point:
“We shall now proceed to construe and interpret the sections under consideration and to decide on their constitutionality. Briefly, sections 12.5 and 12.6 of the Judiciary Law empower every court, including the Supreme Court to punish for criminal contempt in five instances, ‘and no other’, and forbid the Supreme Court to fine more than $300.00.
Generally, contempt of court is conduct which tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties and their witnesses during litigation, or otherwise tends to impede, embarrass, or obstruct the court in the discharge of its duties. 17 AM. JUR. 2d., Contempt, § 3. Contempts are punishable because of the necessity of maintaining the dignity of and respect toward the courts and their decrees. Therefore, the power to punish for contempt of court is an essential element of judicial authority. Insofar as they apply to this Court, section 12.5 is so all inclusive that it tends to exclude other acts or conduct that may constitute contempt, while section 12.6 removes from the discretion of the Court the degree of punishment. By discretion, it is not meant that the court must choose between fine and imprisonment; the term of imprisonment is as much in the court’s discretion as is the amount of fine.
“Article 1, Sec. 14th of the Constitution declares that `the powers of this government shall be divided into three distinct departments: Legislative, Executive, and Judiciary; and no person belonging to one of these departments shall exercise any of the powers belonging to either of the others. This section is not to be construed to include justice of the peace.’
The three branches of government being independent and coordinate, it is clear that one branch cannot limit another branch in the performance of its functions except as are provided in the Constitution. See In Re The Constitutionality of the Act of the Legislature of Liberia Approved January 20[1914] LRSC 5; , 1914, 2 LLR 157 (1914).
The question before us is, can the Legislature limit the Supreme Court in its determination of what acts constitute contempt, and what amount it should impose as a penalty? We hold that the Legislature cannot do so without transcending its constitutional limitation.
We have already mentioned in this opinion that the Supreme Court is a constitutional Court, that is to say, it was created by the Constitution, unlike the lower courts which came into being by legislative enactments in accordance with the Constitution. Article IV, section 1St of the Constitution states clearly that ‘The judicial power of this Republic shall be vested in one Supreme Court, and such subordinate courts as the Legislature may from time to time establish.’
With respect to the Supreme Court’s contempt powers, this Court, in In Re John Moore, [1913] LRSC 5; 2 LLR 97 (1913), held clearly and unequivocally that this power cannot be limited by statute. First, the Court pointed out “that there is a radical difference between a constitutional court and a statutory court.’ This Court is established by direct constitutional provision, and the Legislature is limited in its right to make laws concerning it. But the Legislature has full power over the statutory courts, as they are its creation, the exercise of such power being reviewable by this Court as to its constitutionality. It has been settled by many authorities that when the court is created by the Legislature, its powers and duties are dependent upon the act calling it into existence and by that act, or by subsequent acts of the Legislature, what constitutes contempt of it may be defined, and how it may punish therefor, may be prescribed. ‘But this is not the case with a constitutional court. The power to punish for contempt, as well as to determine whether a contempt has been committed is inherent in all constitutional courts, and cannot be limited by statute.’
Unlike Ex Parte Robinson, supra, in which Mr., Justice Field of that Supreme Court expressed doubt as to the federal contempt statute being applicable to the United States Supreme Court, this Court declared positively in the Moore case that its contempt powers cannot be limited by statute. The two cases can be distinguished on the ground that in the former, Supreme Court’s contempt power was not at issue, while in the latter, the first objection of the respondent was that he was guilty of statutory contempt. In this connection, this Court, at page 99 said: ‘we do not have to examine the statute to discover whether or not respondent has committed a contempt of this Court, and the claim that he should not be punished because he was not guilty of statutory contempt falls to the ground.’
This Court, which came into existence by the Constitution without intermediary legislation, has general extra-statutory power to enforce its mandate by contempt process. Courts whose source of existence is by statute can be subject to statutory restrictions of contempt process. The lower courts of this Republic being statutory courts, the Legislature is empowered to restrict them in the exercise of their contempt powers, but the Legislature exceeded its constitutional bounds when it extended these restrictions to the Supreme Court.
Therefore, sections 12.5 and 12.6 of the Judiciary Law are unconstitutional insofar as they apply to the Supreme Court of Liberia. It follows then that since this Court is a constitutional court, the only limitation on its power to punish for contempt are those found in the Constitution. (emphasis ours).
Finally, in answer to the contention that since in prior cases of contempt of this Court, the statute under consideration was not declared unconstitutional, the Court should now comply with the statute, we have this to say: If we had applied it, we would have conceded its validity; and not only would we be aiding in the infringement of this Court’s inherent powers, but we would also be acting in violation of Article I, Section 14th of the Constitution, thus sweeping away all of the independence of the Supreme Court which that constitutional provision seeks to protect and safeguard.’ Of course, courts have been known to give effect to an unconstitutional statute to protect those who have acted in reliance thereon, but this Court has not yet been shown any evidence that those whom it held in contempt had relied upon the contempt statute in the Judiciary Law.” In Re: The Constitutionality of Section 12.5 and 12.6 of the Judiciary Law, Approved May 10[1975] LRSC 3; , 1972, 24 LLR 37 (1972).
A legislative provision, if violative of the Constitution, is without legal force from the time of its enactment. It has been said that “an unconstitutional act is not a law. It confers no rights; it imposes no duty; it affords no protection; it creates no office. It is, in legal contemplation, as inoperative as though it had never been passed. Norton v. Shelby County, 118 U.S. 426 (1886). We find this to be insofar as they relate to the Supreme Court and, therefore, we must declare them void ab initio. See In Re: The Constitutionality of Section 12.5 and 12.6 of the Judiciary Law, Approved May 10[1975] LRSC 3; , 1972, 24 LLR 37 (1972).
In deciding this application, let us take recourse to the opinion and advice of Counsellor Philip A. Z. Banks, amicus curiae for the Supreme Court, as follows:
“In his petition for re-consideration, His Honour Harper S. Bailey has raised three (3) basic issues which are catalogued below:
1. Whether the imposition of a fine of eight hundred dollars upon His Honour Harper S. Bailey by the Honorable Supreme Court of Liberia, without a citation being issued upon him, was a violation of the due process provision of the Constitution of Liberia?
2. Whether the fine of eight hundred dollars imposed upon His Honour Harper S. Bailey was excessive and therefore violative of the Constitution of Liberia?
3. Whether His Honor Harper S. Bailey is immune under the Constitution of Liberia from the imposition of any fines or penalties on account of acts done in violation of the mandate of or in disrespect to the authority of the Supreme Court?
On the first issue presented regarding the trial judge’s assertion that the imposition of the eight hundred dollars fine upon him without a citation having been issued upon him as being a denial of the due process of law, your amici curiae says that whilst at first blush, this contention may seem to hold merits, a careful scrutiny of the contention reveals that as regards the particular circumstances of this case, the contention is not legally tenable.
The reasons for His Honour’s assertion of a denial of his right to due process are put forth by him in the following:
(1) He was not summoned to appear before the Honorable Supreme Court during the hearing of the appeal case;
(a) A judgment concludes only parties to the suit, and those in privity of relation with them;
(b) To every suit, there are two necessary parties viz: the party plaintiff and the party defendant;
(c) Party plaintiffs are those who bring suit and, by their voluntary appearance and their prayer for redress, relief, thereby submit to the jurisdiction of the court. Party defendants are those who have been served with process demanding their appearance or who, having noticed that process has been issued or ordered issued, voluntarily appear and submit to the jurisdiction of the court.
(d) A court has no authority to enter a judgment or decree against anyone over whom it has no jurisdiction either by service of process or by his voluntary appearance and submission to the court’s jurisdiction.
Amicus Curiae submits that the case cited by the applicant is misplaced for it deals with private parties litigant. The instant case deals with a situation where the records clearly on their face, show that a trial court judge has violated the mandate of the Supreme Court and in fact has acted contrary to the mandate and thereby disrespecting the authority of the Supreme Court. The Constitution of Liberia, which became effective on January 6, 1986, clearly sets out the Supreme Court as a constitutional court. Unlike subordinate courts which are creatures of the Legislature, Article 63 of the 1986 Constitution prescribes the following:
`The Supreme Court shall be the final arbiter of constitutional issues and shall exercise final appellate jurisdiction in all cases whether emanating from courts of record, courts not of record, administrative agencies, autonomous agencies or any other authority, both as to law an fact. .
Article 65 of the 1986 Constitution also provides that `Judgment of the Supreme Court shall be final and binding and shall not be the subject of appeal or review by any other branch of government.’ This provision, it can be logically argued, applies equally not only to other branches of the government but also to all subordinate courts operating within the confines of Liberia.
As far back as 1928, the Supreme Court stated: ‘That the decisions of this Court are binding upon all other courts within this Republic.’ Phelps v. Williams, [1928] LRSC 14; 3 LLR 54 (1928). ‘Any judicial or ministerial officer who deliberately and intentionally, directly or indirectly, subordinates the execution of the mandates of the Supreme Court to unauthorized conditions or restrictions not therein embraced will be deemed guilty of contempt of court, and should suffer punishment therefor according to law.’ Amierable v. Cole, 13 LLR 17 (1957).
The question therefore centers only around whether His Honour Harper S. Bailey should have been cited to appear before the Supreme Court before that Court could legally impose a fine upon him. Your Amicus Curiae says no to the question. Certainly, this Court takes notice of its records and of all records certified to it. Unless those records are otherwise disputed, they must be taken as true. In the instant case, the appeal records before the Court clearly show that when the appellant, Hannah Harper-Crabbe, not being satisfied with the ruling made by His Honour Harper S. Bailey, announced an appeal therefrom, the said judge then proceeded to revoke a ruling previously made by him, confirmed and affirmed by this Honourable Court and regarding which mandate had been sent down to the said court for enforcement. The trial judge was without the authority to effectively reverse the ruling of the Supreme Court and overturn its mandate. No matter how the trial judge may have felt about the appeal taken by the appellant, he could not legally halt the mandate of the Supreme Court and he could give no justification for his action. Appeal under our jurisdiction is a matter of right. Article 20 (b) of the Constitution of Liberia states:
`The right of an appeal from a judgment, decree, decision or ruling of any court or administrative board or agency, except the Supreme Court, shall be held inviolable. .
The exercise therefore of that right by the appellant was no justification for the trial judge to disobey the mandate of the Honourable Supreme Court or indulge in acts tantamount to a revocation of the decision and mandate of the Honourable Supreme Court. The Supreme Court, pursuant to its supervisory powers over judges, could legally take cognizance and judicial notice of the records certified to it and of the conduct of the trial court judge exhibited by the said records; and the Supreme Court could, on that basis, impose a fine upon the trial court judge for the illegal and irregular conduct exhibited by him in respect of the Supreme Court’s decision and mandate as revealed by the records certified to the Court. The imposition of a fine under the foregoing circumstances, does not constitute a denial of due process.
Indeed, as in the instant case, where the records show acts tending to cast shame upon the authority of the Supreme Court by a subordinate judge, or show the commission of acts tending to bring into disrepute the authority of the Supreme Court by a subordinate judge, who, as correctly acknowledged by His Honour Harper S. Bailey, is not a private party litigant, but an umpire (administrator of justice) under the watchful eye of the Supreme Court, the Court has the authority to impose a fine or take or recommend such other measures as could be undertaken by it to ensure that the respect and integrity of the judicial system is maintained. This is consistent with the Supreme Court’s power as the ultimate protector of the judiciary and the judicial system of Liberia. The imposition of a fine upon a subordinate judge therefore forms the exception to the rule that a person must be a party to a suit in order for the court to enter a decision which has an affect upon him; and recent decisions of the Supreme Court are replete with instances of imposition of fines upon “subordinate judges,” whose actions show such gross disregard for the administration of transparent justice and disrespect for the Supreme Court as to warrant the imposition of such fines.
It is true that the appellant could have filed information before the Honourable Supreme Court against the trial judge to complain of his acts in violation of the mandate of the Supreme Court. However, this in no way precluded the Supreme Court from sua sponte taking cognizance of the records certified to it and finding that its mandate had been violated, its decision reversed and its authority brought into disgrace, to impose a fine upon the trial judge over whom the Supreme Court has supervisory powers and control.
On the second issue presented, viz, that the fine of eight hundred ($800.00) dollars imposed by the Supreme Court is excessive and therefore a violation of the constitution of Liberia, amicus curiae says that this contention is without merits and the basis for the contention is likewise misplaced. His Honour notes as reliance for assertion that the fine is excessive Article 21 (d) (ii) of the Constitution of Liberia…That provision states:
`Excessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted.’ The applicant further relies upon Section 12.6 of the Judiciary Law, Revised Code 17, which states:
`Punishment for a criminal contempt may be by fine, not exceeding $300.00 in the Supreme Court, $100.00 in the circuit court, $100.00 in the debt court, $30.00 in the probate court, $30.00 in the tax court, $15.00 in the magistrate courts, ($5.00) in the justices of the peace courts, $5.00 in the traffic court and ($10.00) in the juvenile court, or by imprisonment in a jail located in a county where the court is sitting.’
In support of this reliance, the applicant cited the case, Wolo v. Wolo[1937] LRSC 12; , 5 LLR 423 (1937). Amicus curiae says that the applicant’s reliance upon section 12.6 of the Judiciary Law, Revised Code 17, is rather unfortunate because that law has been made subject of judicial review and declared a nullity in so far as it relates to fines imposed by the Supreme Court. In the case In Re: The Constitutionality of Section 12.5 and 12.6 of the Judiciary Law, Approved May 10[1975] LRSC 3; , 1972, 24 LLR 37 (1972), the Supreme Court said:
`That this Court, which came into existence by the constitution without intermediary legislation, has general extraordinary power to enforce its mandates by contempt process. Courts whose source of existence is by statute can be subject to statutory restrictions of contempt process. The lower courts of this Republic being statutory courts, the Legislature is empowered to restrict them in the exercise of their contempt powers; but the Legislature exceeded its constitutional bounds when it extended those restrictions to the Supreme Court. Therefore, sections 12.5 and 12.6 of the Judiciary Law are unconstitutional insofar as they apply to the Supreme Court of Liberia. It follows then that since this Court is a constitutional court, the only limitation on its power to punish for contempt are those found in the Constitution.’
The Honourable Supreme Court has held that when a statute is declared unconstitutional, it is as if the statute never existed as of the date of the declaration and it can never be used or cited in respect of matters as to which it was declared unconstitutional. The applicant cannot therefore rely upon section 12.6 of the Judiciary Law, Rev. Code 17, as these have already been declared to be unconstitutional by the Supreme Court insofar as they relate to the limitation of the amount of fine which the Supreme Court can impose upon a person as punishment for contempt. In the case In Re: The Constitutionality of Section 12.5 and 12.6, referred to above, the Supreme Court, having determined that the statute in question was unconstitutional, it then proceeded to make further determination that it, the Court, had the power to impose reasonable but unlimited fines as may be determined by it in the exercise of its discretion.
Thus, whilst it is true that the new Constitution of Liberia, as well as the old Liberian Constitution provides that the courts shall not impose excessive fines, section 12.6 of the Judiciary Law, Revised Code 17, having been declared unconstitutional, is not applicable. It is true that the new Constitution provides that the courts shall not impose excessive fines, but section 12.6 of the Judiciary Law, Revised Code 17, having been declared unconstitutional, is not applicable. It is also true that the new Constitution does seek to correct the basis upon which the Supreme court had declared section 12.6 of the Judiciary Law, Revised Code 17, unconstitutional. The new Constitution states:
`In all matters of contempt of court, whether in the Supreme court or in other courts, the penalties to be imposed shall be fixed by the Legislature and shall conform to the provisions on fundamental rights laid down in the constitution.’
However, the inclusion of the above provision does not automatically reinstate the provisions of Sections 12.5 and 12.6 of the Judiciary Law, Rev. Code 17, which had been declared unconstitutional insofar as they relate to the Supreme Court. They continue to remain void as they relate to the Supreme Court and will so remain until the Legislature of Liberia has acted to pass a new set of law in pursuance of the cited provision of the new Constitution.
Thus, by the standards used in the case In Re: The Constitutionality of Section 12.5 and 12.6 of the Judiciary Law, Approved May 10, 1972, the fine imposed upon the applicant is reasonable and can not be characterized as excessive. The applicant’s contention that the fine is excessive is therefore without merits and should be dismissed.
The third issue involved in the instant case is whether the applicant is immune on account of him being a judge, from the imposition upon him of a fine by the Supreme Court for acts committed by him in gross violation of the administration of transparent justice and in gross disregard of the mandate of the Supreme Court and disrespect to the authority of the Court? The obvious answer is unequivocally no. The applicant, in asserting that he is immune and that the imposition of a fine on him by the Supreme Court is in violation of the Constitution, relies upon Article 73 of the Constitution. That Article states:
`No judicial official shall be . . . prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of a trial in open court or in chambers, except for treason or other felonies misdemeanor or breach of the peace . . .
The argument of the applicant is that under the foregoing provision, no fines can be imposed upon him by the Supreme Court for acts of disobedience to its mandate or acts done in disrespect to the authority of the Supreme Court. Such contention would have the net effect of giving a trial court judge carte blanche authority to violate any rules of court, disrespect the Supreme Court in any manner, show disobedience to its mandate, and commit gross abuses to the judicial system of the country with no mechanism to account for such disrespect or abuse available to the Supreme Court to ensure the exercise of its supervisory powers over the subordinate courts of this jurisdiction. Such was never the intention of the framers of the Constitution.
The power of a Supreme Court to hold in contempt judges of subordinate courts who show disregard for the Supreme Court’s mandate or otherwise show disrespect towards the Supreme. Court is not disputed. Indeed, such powers are recognized universally and no trial judge can legally claim immunity from accounting to the Supreme Court for acts of disobedience to that Court or a violation of its mandate. Thus in 46 A.M. JUR. 2d., Judges § 85, it is stated:
`Where the conduct of a judge is calculated to destroy the authority, dignity and integrity of another court and to obstruct the proceedings and hinder the administration of justice in that other court in a matter of which it had jurisdiction, the rule of judicial immunity may not be invoked in a contempt proceeding against the offending judge. Similarly, an inferior court judge who violates rules made for the conduct of his office may be held in contempt by the superior court.”
And it is within the prerogative of the Supreme Court to determine what acts constitute contempt of the Court. In re Francis G. Doe, Sr.[1974] LRSC 23; , 23 LLR 38 (1974).
Thus, what is required of the applicant is not a challenge to the authority of the Supreme Court to impose a fine upon or to claim immunity from the imposition of such fine as the Supreme Court has every right so to act, or to claim a denial of due process to him for under the circumstances of the instant case, the Supreme Court could take legal cognizance and judicial notice of the records and determine thereupon that its mandate had been violated. Rather, the applicant being aware that he had acted illegally and in disrespect of the mandate and authority of the Supreme Court was required to pray for the mercy of the court.”
The views and advice of Counsellor Jenkins K. Z. B. Scott, also amicus curiae, are as follows:
“The Honourable Supreme Court declared sections 12.5 and 12.6 of the New Judiciary Law of Liberia which relates to the Supreme Court unconstitutional and void ab initio in the decision, In Re: The Constitutionality of Section 12.5 and 12.6 of the Judiciary Law, Approved May 10[1975] LRSC 3; , 1972, 24 LLR 37 (1972). In that case, the Supreme Court held that:
1. The constitutionally established original jurisdiction of the Supreme Court, including the power to punish for contempt, is independent of legislative action which can neither subtract nor add to it;
2. Contempts are sui generis, neither civil nor criminal in the ordinary sense of the words;
3. Sections 12.5 and 12.6 of the Judiciary Law are un constitutional insofar as they relate to the Supreme Court and are to be regarded as void ab initio;
4. Generally, contempt of court is a conduct which tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during litigation, or obstruct the court in the discharge of its duties;
5. The power to punish for contempt of court is an essential element of judicial authority; and
6. A legislative provision, if violative of the Constitution, is without legal force or effect from the time of its enactment.
Also, Judge Bailey relied upon Article 21(d)(ii) of the Constitution of the Republic of Liberia, which states that:
`Excessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted.’
The constitutional provision quoted, supra, did not define excessive fines nor did it set any higher or lower limit for fines which may be imposed by the Supreme Court.
It is my considered opinion that the framers of the Constitution intentionally left it to the discretion and wisdom of the Honourable Supreme Court to determine fines for contemptuous acts committed against the dignity of the Supreme Court, and which acts also bring public disrepute and disgust to the entire judiciary. This power of the Honourable Supreme Court is inherent and the authority to determine the gravity of the contemptuous act is also inherent and discretionary. The framers of the Constitution did not limit, nor did they have any intention of limiting the independence of any inherent powers of the Supreme Court. The Supreme Court has the authority to determine fines for any and all acts which she may determine as contemptuous.” This authority is embodied in Article 65 and Article 66 of the Constitution, which states:
`The judicial power of the Republic shall be vested in a Supreme Court and such subordinate courts as the Legislature may from time to time establish. The courts shall apply both statutory and customary laws in accordance with standards enacted by the Legislature. Judgments of the Supreme Court shall be final and binding and shall not be subject to appeal or review by any other branch of Government. .
`The Supreme Court shall be the final arbiter of constitutional issues and shall exercise final appellate jurisdiction in all cases whether emanating from courts of record, courts not of records, administrative agencies, autonomous agencies or any other authorities, both as to law and fact except cases involving Ambassadors, Ministers, or cases in which a county is a party. In all such cases, the Supreme Court shall exercise original jurisdiction. The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court of any of the powers granted herein.
My interpretation of Article 21(d)(ii) of the Constitution is that it was intended to secure to parties appearing before the courts of Liberia fundamental constitutional rights against excessive fines and bail, whether imposed by legislative enactment or order of court. That provision of the Constitution was never intended to apply to the Supreme Court in the exercise of both its constitutional and inherent powers and authority, as an appellate court, to regulate subordinate courts and to ensure compliance with its orders and mandates by subordinate courts. The subordinate courts are creatures of legislative enactments, their authority, functions, and procedure are derived from the National Legislature. Statutes have expressly stipulated the bail that may be approved by subordinate courts, fines that may be imposed and punishment to be inflicted by subordinate courts; and any bail, fine or punishment imposed by subordinate courts which exceeded the statutory requirement is excessive and violates the constitutional rights of the party concerned; but this is not the same as where the Supreme Court imposes a fine on a subordinate judge for purposes of regulating the conduct of that subordinate judge and ensuring that the subordinate judge complies with its mandate or order.”
We are in complete agreement with the opinions and advice of the amici curiae and these opinions and advice are so exhaustive that they do not require additional comments from us.
As to the last issue with reference to whether or not the probate judge had legal authority to review or revoke the acts of his predecessors, Her Honour Gladys K. Johnson, His Honour Napoleon B. Thorpe and Her Honour Luvenia Ash-Thompson and his reliance upon section 107.4 of the Probate Court Procedure Code, besides the common knowledge that this could not be done under ordinary and normal circumstances, it is our view that his contention and the law he relied upon are inapplicable to the given facts and circumstances. Hence, we need no laborious research to declare them so.
The issues are, could the judge review or revoke the acts of his predecessors, and has the judge shown penitence for his acts of disobeying the Supreme Court? We have expressed that the act of His Honour Harper S. Bailey, judge of the Monthly and Probate Court, Montserrado County, in refusing to enforce the mandate of this Court in the manner in which he was commanded to do was intentional, deliberate, incorrigible, disrespectful, and defiant. The judge is strongly warned against a repetition of his inept, intentional insulting, incorrigible, arrogant, disrespectful, insolent, reproachful, contemptuous, immature behavior or acts to the courtiers while enforcing the mandate of this Court; he is also warned against repetition of his disregard for constitutional authority and his belligerent attitude toward counsel and party litigants before his court. Should he persist in such abhorrent conduct and attitude, appropriate remedy shall be taken with the executive branch of government to preserve the integrity and dignity of this Court and the judiciary in general.
Finally, the Court notes that the judge has not shown any penitence with respect to his behavior as aforesaid toward mitigating or reducing the fine but, rather, said he is prepared to pay the same.
Wherefore and in view of the foregoing, the application is hereby denied, and the judicial fine imposed upon the applicant and the costs of court are ordered to be paid within twenty-four (24) hours as of this judgment and a revenue receipt indicating that said payment had been made in the revenue of the Republic of Liberia should be presented to the marshal. Upon the applicant’s failure to comply with this judgment within the time ordered, the Clerk of this Court is hereby ordered to issue a commitment for his incarceration in the common jail within the City of Monrovia and to have him remain there until said fine and court costs are paid. And it hereby so ordered.
Application denied.