JOHN SAYON et al. and JESSIE S. PAYNE, Attorney-In-Fact for MRS. VICTORIA JOHNSON-MAXWELL, Appellants, v. HIS HONOUR ELWOOD L. JANGABA, Associate Justice, HIS HONOUR WYNSTON O. HENRIES, Judge, Sixth Judicial Circuit, Montserrado County, and EDGAR MITCHELL, Executor of the Testate Estate of the late THOMAS WOLLSEY, et al., Appellees.
APPEAL FROM THE RULING OF THE CHAMBERS JUSTICE DENYING THE PETITION FOR A WRIT OF PROHIBITION.
Heard: May 31, 2001. Decided: July 5, 2001.
1. Prohibition is not the proper remedy to restrain the improper enforcement of the Supreme Court’s mandate; rather, the proper remedy is a bill of information.
2. The dismissal of an action to remove cloud and quiet title does not give rise to the removal or eviction of the plaintiffs from the premises or other persons who occupy the property.
3. The conclusion of a case to remove cloud and quiet title in favour of the plaintiffs cannot have the result of evicting the defendants from the premises based on such judgment.
4. A Justice of the Supreme Court cannot impede the mandate of the full Supreme Court; nor can the Court encourage measures designed to frustrate its mandate or otherwise render its mandate unenforceable.
5. Although prohibition will not be granted as a matter of right when another complete and adequate remedy is available, the grant or refusal rests within the sound discretion of the Supreme Court, based on the facts and circumstances of the particular case.
6. Although information should have been brought in a proper case, the Court may, in reliance upon the law, and being faithful to the cause of justice, not ignore the facts and circumstances in a particular case.
7. The refusal of a counsellor in a case before the Supreme Court to receive and sign for a notice of assignment, on the ground that counsel for the other party was not counsel of record in the case, is contemptuous, and the counsel committing such act will be adjudged in contempt by the Court.
Appellants action to remove cloud and quiet title, brought in the lower court, was dismissed because of defects in the complaint and action. On appeal to the Supreme Court, the judgment of the trial court was affirmed and the case ordered remanded to the trial court for enforcement of the judgment. The trial court, upon receipt of the mandate from the Supreme Court, ordered a writ of possession issued against the appellants to eject and evict the appellants and their tenants from the subject premises. From this action by the trial court, the appellants filed a petition for the issuance of a writ of prohibition. The Chambers Justice denied the petition on the ground that prohibition was not the proper remedy and that the appellants should have brought a bill of information if they felt that the lower court was improperly enforcing the mandate of the Supreme Court.
The Supreme Court agreed with the Chambers Justice that prohibition was not the proper remedy and that a bill of information should have been brought. But the Court noted that the right to grant or refuse to grant the petition in prohibition rested within the sound discretion of the Court and its faithfulness to the cause of justice, taking into consideration the facts and circumstances in a particular case. The Court therefore reversed the action taken by the trial court, observing that the dismissal of an action to remove cloud and quiet title does not result in the eviction of the plaintiff in such action or any other persons occupying the property, and that if such result is intended, then the proper remedy is an action of ejectment. The Court observed, moreover, that it was the appellees who were in possession of the property, regarding which the appellants had brought the action to remove cloud and quiet title, and that therefore the issuance of a writ of possession against the appellants was improper and could not lie against the appellants.
The Court further ruled that the counsel for the appellants be held in contempt of Court because of his refusal to accept the notice of assignment issued by the Court. The counsel had refused to accept the assignment on ground that the matter had been resolved by the Justice in Chambers and that the lawyer who had signed the papers and assignment for the respondents was not counsel of record in the case. Notwithstanding, the Court granted the petition, declared the action by the trial court void, and ordered a reversal of the said action.
Marcus R. Jones of Jones and Associates Legal Consultants appeared for the appellants. Ishmael Pailay Campbell of Legal Aid Incorporated appeared for the appellees.
MR. JUSTICE WRIGHT delivered the opinion of the Court.
This case is on appeal by the appellants/petitioners from the ruling of the Chambers Justice denying the petition for a writ of prohibition. The appellants were plaintiffs in an action to remove cloud and quiet title, filed on November 15, 1984 in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, against Edgar Mitchell, Executor of the Testate Estate of the late Thomas Wollsey Phillips, John K. Bishop, attorney-in-fact of the said executor, and others. In the complaint, Victoria Johnson-Maxwell, administratrix of the intestate estate of the late Geneva Johnson-Duff, averred that the deceased had died seized of a 50-acre parcel of land, evidenced by a quit claim deed executed on December 12, 1950, and probated and registered on February 3, 1954. The plaintiffs in the action to remove cloud and quiet title further alleged that the defendants in the case had harassed Geneva Johnson-Duff’s tenants, prevented them from paying rent to the intestate plaintiff, obstructed the disposition of said property by slanderous acts, and had claimed the property to be theirs. Therefore, the intestate estate, acting by its administratrix, had sought the aid of the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, presided over by its resident judge, His Honour Frederick K. Tulay, to remove the cloud from over plaintiff’s title and quiet same.
The defendants in the aforementioned action, co-appellees herein, in response to the complaint, filed a ten-count answer in which they identified several defects in the plaintiffs’ suit. Firstly, they said that the plaintiff had not stated a cause of action, in that cloud on title was a common law writ which had been abolished in Liberia. Secondly, that the plaintiffs therein had failed to state the cloud on their title and who and/or what had created said cloud. Thirdly, that the co-plaintiff’s deed was not duly probated and registered according to law, and that it lacked recital of consideration, as well as adequate metes and bounds. Fourth, in count ten of the answer, the defendants admitted preventing the disposition of the subject property by the plaintiffs because it was owned by the Testate Estate of the late Thomas Wollsey Phillips, rather than the Intestate Estate of the late Geneva Johnson-Duff.
The appellants, plaintiffs in the lower court, thereafter filed a reply denying the averments in the defendants’ answer and contending that the defendants could not raise those defenses when they, the defendants, had failed to show any title of their own or that they were part of the instrument of conveyance to the plaintiffs.
On October 13, 1987, His Honour Hall W. Badio, Sr., Resident Circuit Judge, ruled on the law issues and dismissed the appellants/plaintiffs’ complaint without prejudice because of the defectiveness which were alleged in the answer. The plaintiffs excepted to the ruling and announced an appeal therefrom to the Supreme Court. This Court, on December 30, 1988, unanimously affirmed the judgment of the trial court and on January 4, 1989 mandated the judge therein presiding to resume jurisdiction over the case and enforce its judgment.
Upon the reading of the mandate of the Supreme Court, the Civil Law Court, presided over by its resident judge, His Honour Wynston 0. Henries, issued out a writ of possession on December 30, 1998, ordering the eviction and ouster of the appellants and placing the appellees in possession of the subject premises. While the eviction orders were being en-forced, Jessie S. Payne, attorney-in-fact for Victoria Johnson-Maxwell et al., on November 25, 1998, filed a 5-count petition for a writ of prohibition, praying this Court to restrain and prohibit the trial court from ousting them from the subject premises and to repossess them of the said property.
At first, a citation dated November 26, 1998, was issued for a conference on December 8, 1998, but the writ was subsequently ordered issued on November 27, 1998 by Mr. Justice Sackor, then Chambers Justice. However, before he could go into the matter, he went out of jurisdiction, and Mr. Justice Jangaba succeeded him in Chambers
The case was assigned for hearing on March 4, 1999, but when the notice of assignment was issued and served on February 23, 1999, Counsellor Marcus R. Jones, counsel for the petitioners, refused to sign for and receive the assignment on grounds that the case had earlier been resolved in a conference with Mr. Justice Sackor on November 26, 1998; that Justice Sackor did not issue any writ in the case; and that when they appealed for the conference Counsellor Nyenati Tuan was counsel of record for respondents, and as such, he did not have any case involving Counsellor Campbell since he had not been served any notice of change of counsel or additional counsel. When the petition for the writ of prohibition was called for hearing on March 4, 1999, as per the notice of assignment on the respondents’ counsel, Counsellor Campbell appeared. Because of the unexcused absence of Counsellor Marcus Jones, counsel for the petitioners, who was duly notified of the hearing, the Court permitted the respondents to invoke the relevant rule of this Court and to argue their side of the case. Whereupon, ruling was reserved.
Subsequently, the Chambers Justice convened a conference with all the counsels for the parties on March 22, 1999 to discuss and resolve the objection of Counsellor Jones to the participation of Counsellor Campbell in the case. Counsellor Jones’ contention was that Counsellor Campbell’s signing of the returns to the petition for the writ of prohibition and the notice of assignment without a notice of additional counsel or change of counsel from the original counsel, Counsellor Nyenati Tuan, was illegal and void. It does not appear that this contentious issue was resolved at the conference, but on the next day, March 23, 1999, the Chambers Justice ordered the case assigned for ruling on March 26, 1999. This prompted Counsellor Jones to file a bill of information before the Chambers Justice on March 25, 1999, one day before the ruling, recounting what he perceived to have been irregularities and requesting the Justice to defer the ruling and have the case reargued.
When the case was called for ruling on March 26, 1999, as per assignment, the information was brought to the attention of the Justice by the appellants. The information was resisted by the respondents, who prayed that it be ignored for not being properly before the Court, in that it should have been approved by the Justice before its issuance, and also, that the respondents had not been served with a copy. The appellees/ respondents therefore asked that the ruling be proceeded with.
The Justice denied the appellants’ request, sustained the appellees’ resistance, and proceeded to hand down his ruling, in which he denied the petition for the writ of prohibition on the ground that prohibition was not the proper remedy to restrain the improper enforcement of the Supreme Court’s mandate. The Justice noted that the proper remedy was a bill of information.
This Court acknowledges that the principle stated in the Justice’s ruling is the general rule and the prevailing law, and we hereby reaffirm the said rule and note that our laws are replete on the point. This Court has adopted that posture as a means not to cause the frustration or unenforceability of its mandate or judgment. But the question to be answered in such cases is, what is the mandate of the Court and how was that mandate sought to be enforced? The issue has to be put into proper perspective and understood in the right context.
In the instant case, the petitioners filed an action to remove cloud and quiet title. The trial judge dismissed the case without prejudice when he disposed of the law issues raised in the pleadings. The appellants then appealed to the Supreme Court, which affirmed the ruling and sent a mandate to the trial court to resume jurisdiction over the case and enforce its judgment. The question is, what was the judgment rendered by the trial judge, His Honour Hall W. Badio? We note that the case was at the stage of disposition of the law issues and had not yet gone to trial. We must therefore enquire as to what means the trial judge, this time His Honour Wynston 0. Henries, sought to enforce that judgment? The answers are clear in the records. The judgment of Judge Badio was that the action to remove cloud and quiet title was dismissed without prejudice to the appellants while the method of enforcing that judgment employed by Judge Henries was to issue a writ of possession to oust and evict the appellants and their tenants from the subject premises.
The follow up question is, on what legal basis and by what authority did Judge Henries issue the writ of possession, and to achieve what purpose? Still following up our inquiry, we asked, when a complaint is dismissed, even in ejectment, is a writ of possession issued and is the plaintiff to be evicted? In fact, are the parties, especially the defendants, to be adversely affected or evicted? The answer is no, because generally and usually it is the plaintiff who is aggrieved by the perceived illegal occupancy or withholding of the premises in question by the defendant. In other words, it is usually the defendant who is in possession of the property. Hence, if the plaintiff’s complaint is dismissed, how can the plaintiff be evicted when he or she is not in possession of the premises?
During the arguments before this Court, counsel for the appellees confirmed that indeed it was the appellees (and their tenants) who were in actual physical possession of the subject premises. Counsel further confirmed that the only problem the appellees were experiencing was that their tenants had refused to pay rent to the appellees on account of the appellants’ claim to ownership of the subject property. The question then is whether the issuance of a writ of possession against the appellants was the proper remedy to compel the appellees’ tenants, who physically occupied the premises, to pay their rents to the appellees? But to even go one step further is the result from an action to remove cloud and quiet title the removal or eviction of persons who occupy the property, subject of the suit? We say no, and hold that even if the case had been concluded and a judgment entered in favor of the appellants, the direct result would not have been the eviction of the appellees. The proper action to achieve such eviction is an action of ejectment. Moreover, where the case is dismissed, as in the instant case, it certainly cannot be the plaintiffs, whose case has been dismissed, who should be the ones evicted from the premises. We therefore hold that in view of the circumstances outlined above, it was error for the Chambers Justice to deny the petition for the writ of prohibition. We reiterate, however, and uphold the general rule and prevailing law, relied on by the Chambers Justice, that prohibition is not the proper remedy to restrain the improper enforcement of the Supreme Court’s mandate. This is so because a Justice cannot impede the mandate of the full Court, Smith v. Stubblefield and Benson, [1964] LRSC 15; 15 LLR 582 (1964), and also because the Court itself cannot encourage measures designed to frustrate its own mandate or otherwise render its mandate unenforceable. The proper remedy is a bill of information. Raymond International (Liberia) Ltd. v. Dennis, [1976] LRSC 35; 25 LLR 131 (1976).
On the other hand, this Court held in the case Boye v. Nelson, 27 LLR 131 (1978), text at 178-179, that “although prohibition will not be granted as a matter of right when another complete and adequate remedy is available, the grant or refusal rests within the sound discretion of the Court, according to the facts and circumstances of the particular case.” 63 AM JUR 2d, Prohibition, § 7 (1972). Therefore, even though information should have been brought, yet in reliance on the above law, this Court would not be faithful to the cause of justice to ignore the facts and circumstances of this particular case. It is because of this that we are con-strained to disagree with our very distinguished colleague, the Chambers Justice, and grant the relief sought in the petition for the writ of prohibition, and thereby reverse his ruling.
Before closing this opinion, the Court would however like to comment upon one issue, and that relates to the refusal of Counsellor Marcus R. Jones to receive and sign for the notice of assignment issued on February 23, 1999 for hearing of his own petition on March 4, 1999. His stated reasons were that the case had been resolved at the conference level by Mr. Justice Sackor who did not issue any writ, that counsel of record for the respondents was Counsellor Nyanati Tuan, and that he had no case with Counsellor Ishmael P. Campbell who had signed the assignment and the returns. Hence, when the case was called for trial, Counsellor Jones failed to appear. This Court frowns on the conduct of Counsellor Jones in the strongest terms and looks upon it with great disfavor and displeasure. This is a direct affront to the dignity and authority of this Court and as such is grossly contemptuous. Even if the averments stated by Counsellor Jones were true, it was still encumbent upon Counsellor Jones to have acknowledged and received the assignment and to have appeared and raised the issues at the call of the case, and to have the Justice pass on them before proceeding with the hearing. Therefore, those issues were never properly before the Court, and hence, no action was or could have been taken thereon. But even more disturbing is that he made his complaint to the bailiff/deputy marshal who is merely the ministerial officer of the Court.
For this intolerable behavior of a member of the Bar of this Honourable Supreme Court, and one who is the Vice President (currently Acting President) of the Liberia National Bar Association, this Court cannot let it slide with impunity. Therefore, Counsellor Marcus R. Jones is hereby adjudged guilty of contempt and is ordered to pay a fine of L$500.00 (five hundred Liberian dollars) into the Government revenue and an official flag receipt therefor exhibited and presented to the Marshal of this Court for entry into the records of this Honourable Court within 72 hours of the rendition of this opinion. It is further ordered by this Court that in the event Counsellor Jones fails or otherwise refuses to comply with this payment order, then he is hereby ordered confined in the common jail until the amount is paid.
WHEREFORE, and in view of the foregoing laws, facts, and circumstances, and after much thought and careful consideration, it is our ruling, and we so hold, that the ruling of the Chambers Justice denying the petition for the writ of prohibition be, and the same is hereby reversed. The petition is hereby granted and the peremptory writ of prohibition is ordered issued. The order of the trial court issuing the writ of possession is hereby reversed, set aside, and declared void. Further, the ruling of the trial court dismissing the petitioners’ action to remove cloud and quiet title without prejudice, which was earlier affirmed by this Court, is also hereby reaffirmed and ordered enforced. This means that the parties shall remain in status quo ante and that should the parties or any one of them, especially the appellants, so desire, the appropriate legal action can be brought for the court to properly determine the legal ownership of the subject property.
The Clerk of this Court is hereby ordered to send a mandate to the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, commanding the judge presiding therein to resume jurisdiction over the case and to take note of and give effect to this judgment. Costs are ruled against the appellees. And it is hereby do ordered.
Petition granted.