THE ESTATE OF THE LATE JAMES P. GAYE, represented by its Administrator, AMOS W. TARPEH, Petitioner, v. HER HONOUR GLORIA M. SCOTT, Probate Court Judge, Monthly and Probate Court, Montserrado County, and EUROBANK, represented by its General Manager, Respondents.
PETITION FOR A WRIT OF MANDAMUS TO THE MONTHLY AND PROBATE COURT FOR MONTSERRADO COUNTY.
Decided April 15, 1993.
1. The function of mandamus is not to review an exercise of judicial discretion, and it will not be resorted to when there is adequate remedy available at law.
2. Where the writ of mandamus is sought to compel an act on the part of the court, the legal right to the particular action which is sought to be compelled by the writ must be clear, and the legal duty of the court to do the act or thing demanded must also be clear.
3. The writ of mandamus will not issue to require the court to make a particular decision, and may only be issued where the purpose is to require action of a court of competent jurisdiction, where such court refuses to exercise the power of decision with which it is vested by law.
4. Where the performance of an official duty or act involves the exercise of judgment or discretion, the officer cannot ordinarily be controlled with respect to the particular action he will take in the matter.
5. The writ of mandamus will only be issued where there is an arbitrary abuse of discretion and there is no other adequate remedy.
6. While mandamus may be employed to compel an inferior tribunal to act or to exercise its discretion, the particular method of acting or manner in which the discretion shall be exercised will not be controlled
The petitioner filed a writ of mandamus before the Chambers Justice to compel the probate judge to issue a notice of assignment and expeditiously determine the discovery proceedings instituted by him. The respondent filed its returns basically contending that petitioner proceeded by the wrong rule, as the writ applied for is an extraordinary remedy which can only be granted when no other remedy is available.
Respondent further contended that the petition is void of legal merit, and was filed for the purpose of delaying the cause. After hearing argument pro et con, the Chambers Justice denied the writ prayed for on grounds that the writ of mandamus was not the proper remedy to secure, considering the facts and circumstances of the case. Therefore, the petition was denied.
Harper Soe Bailey and T. Edwin Swen appeared for petitioners N. Oswald Tweh of the Brumskine & Associates appeared for respondent
SMALLWOOD, J., presiding in Chambers.
The petitioner in these proceedings filed a seven-count petition contending in counts 1 and 2 that the petitioner is administrator of the intestate estate of the late James P. Gaye and guardian of his minor children; and that after receiving letters of administration from the Monthly and Probate Court of Montserrado County as well as the decree of guardianship, the petitioner, Amos W. Tarpeh, filed a petition in discovery proceedings against Eurobank as respondent claiming a balance of $41,500.00 in the savings account with the said bank: $40,000.00 Liberian dollars and $1 ,500,00 United States dollars.
In count three of the petition, the petitioner contends that the respondent, Eurobank, filed with Court a certain document captioned “Savings Account” in which the petitioner had discovered fraud.
In count four petitioner contends that he applied to the Court for a subpoena duces tecum to be served on the General Manager of Eurobank to produce the original of the document called “Savings Account Instant Statement”. The petitioner also contended in this count of the petition that when the representative of the Eurobank appeared in Court, instead of presenting the document to the judge to be presented to petitioner’s counsel, he was called to the stand and questioned by the respondent’s counsel.
In count five the petitioner contends that after both counsels had examined the witness on the savings account statement and which document had been identified, marked, confirmed, and reaffirmed, petitioner’s counsel offered the document for admission into evidence and respondent’s counsel objected to its admission. The objection was sustained by the judge, to which exception was noted. It is also contended in count five that upon respondent’s counsel failure to appear in court on the 16th day of July, 1992, in keeping with the assignment, petitioner’s counsel invoked Rule 7 of the Circuit Court as revised and asked to be permitted to argue his side of the case. The judge reserved ruling on the invocation of Rule 7 and suspended the matter.
The petitioner contends in count six of the petition that another assignment was made of the matter for hearing and ruling at the hour of 12:00 noon but that on that date neither the judge nor respondent’s counsel appeared in court, even though petitioner and his counsel were present in court from 12 noon until 1:00 p.m. It is also contended in count seven of the petition that the judge is in the habit of adjoining the trial of the case without naming a date when the matter will be resumed, hence another assignment had to be requested, which put the parties through unnecessary expense.
The respondents in these proceedings filed a nineteen-count returns and for the benefit of these mandamus proceedings, we shall give consideration of counts, 2, 3, 10, 11, 12, 13, 14, 15, 16, and 17.
Respondents contend in count 2 that the writ of mandamus is an extraordinary remedy, a special proceedings, to obtain a writ requiring the respondent to perform an official duty, but it shall not issue as a matter of right nor shall it issue in any case in which it appears that the petition is void of legal merit, and made solely for the purpose to cause delay and especially where alternative adequate means of redress are available to the petitioner.
In count 2 the respondents have named five factors which govern the issuance of the writ of mandamus in equitable practice and they are: (1) the party seeking the writ has no other adequate means of relief; (2) the petitioner will be damaged or prejudiced in a way or manner not correctable by appeal (3) the trial court’s order is clearly erroneous as a matter of law; (4) the lower court “often repeats an error”, or manifests persistent disregard of the rule (5) the trial court’s order raises new and important problems or issues of law of first impression.
The respondents contend in count 10 that the petitioner noted his exception to the court’s ruling denying admission of the said document and then rested in toto with production of evidence, therefore, leaving it open to co-respondent Eurobank’s counsel to either proceed with the production of evidence or move the court to dismiss the case.
Respondents’ counsel contended in count 11 of the returns that he was sick on the 1 of July, 1992, and that a written excuse was sent to the court signed by the office messenger of petitioner’s counsel, requesting a postponement. The letter was found in the file and copy was in possession of petitioner’s counsel.
In count 12, the respondents contend that the absence of judge from court on the 28th of July, 1992, cannot be attributed to respondents, nor can the absence of the judge be interpreted as bias, neglect, or prejudice to warrant the issuance of the extraordinary writ of mandamus. The judge must have had a legitimate reason for his absence on that day.
It is contended in count 13 of the returns that count 7 of the petition is frivolous and of no legal basis as a notice of assignment is the proper and required mode to inform a party litigant of a future hearing, particularly when one side, both sides, or the judge happens to be absent on an assigned date. In such a case a notice of assignment is necessary to alert all sides about a subsequent hearing.
It is contended in Count 14 of the returns that had it not been for “this unmeritorious proceedings in mandamus against the trial judge”, there is every possibility that the discovery proceedings would have been concluded long ago.
The respondents contend in count 15 of the returns that the prayer of the petitioner for a writ of mandamus is without legal basis, as the trial below can continue without a writ of mandamus and that the Supreme Court cannot entertain a prayer to order the trial court judge to give a particular ruling desired by an adverse party in a trial.
It is contended in count 16 of the returns that all the relief sought by the petitioner for the extraordinary writ of mandamus can more properly be achieved through the regular process of appeal considering that the discovery proceedings in the Probate Court had progressed regularly, and the petitioner had noted various exceptions to interlocutory rulings by the trial judge. In count 17 of the returns the respondents say the duty of the trial judge to assign cases for trial, to proceed to trial at appointed times, to recess and adjourn from day to day, and rulings to be made by the judge from the hearing are all discretionary and not ministerial duties and therefore cannot be compelled by a writ of mandamus.
The petitioner has asked us to grant the petition for mandamus and order the peremptory writ of mandamus issued; the respondent judge ordered to proceed with the hearing of the arguments on petitioner’s side and enter a ruling thereon adjudging Co-respondent Eurobank liable to the petitioner and cause Eurobank’s General Manager to release unto the petitioner, the aggregate amount of Forty-One Thousand, Five Hundred Dollars in both (LD) and US$ plus interest (Emphasis Ours).
Mandamus is a special proceeding to obtain a writ requiring the respondent to perform an official duty. Revised Code 1: 16.21(2). Our Supreme Court has on several occasions interpreted this statutory definition. Likewise other law writers have also written several books on the subject as well as the courts of the United States of America, including the U. S. Supreme Court, have all interpreted the use of the writ of mandamus.
The issues we are called upon to decide in these mandamus proceedings are:
1. will mandamus lie against a judge who during the course of a trial makes an interlocutory ruling sustaining objection to the admission into evidence of a document to which exceptions have been noted?
2. will mandamus lie against a trial judge who during the course of a trial reserve ruling on an application made by a party to the suit under trial? and
3. will mandamus lie to compel a trial judge to enter an interlocutory ruling, allowing one party to the suit to argue his side of the case in the absence of the other party and to instruct the judge how to rule?
The underlying principles which govern courts in granting or denying mandamus, and which have already been discussed, must be kept in mind in determining the propriety of the remedy when sought to enforce the performance by courts and judicial officers of their official duties. As in other cases of mandamus, great care must be exercised by the higher court in passing upon the merits of the application for the writ, and the legal right to have the particular act performed, as well as the legal duty to perform it; the refusal or neglect to do so must be certain and complete. In application of the rule above stated, the writ will be granted only where the petitioner is without another adequate legal remedy, and will be denied where it appears that such other remedy is available or was available and not used. 35 AM JUR., Mandamus, § 252, pp. 23-24.
We must therefore answer the first issue in the negative because where the judge sustained the objection to the admission into evidence and exception noted, the petitioner had another adequate legal remedy. The ruling, being interlocutory, should have been reserved for appeal. A writ of mandamus will not be granted if the petitioner has another adequate remedy. Davidson v. Worrell, [1932] LRSC 14; 3 LLR 362 (Undated).
The petitioner has also complained against the lower court judge for reserving ruling on his application made during the course of the trial to permit petitioner to argue his side of the case and render judgment in his favour in the absence of the respondent’s counsel. We say here that the judge was exercising her judicial discretion in this case and hence her action in this regard cannot be considered abuse of authority. It is not the function of a writ of mandamus to review an exercise of judicial discretion, and mandamus cannot be resorted to when there is an adequate and complete remedy available at law. Harmon v. Horace, [1948] LRSC 6; 10 LLR 29 (1948).
The petitioner has also sought mandamus to force the judge 343 of the trial court to enter ruling in his favor during the course of the trial and to instruct the judge on how to rule. Where the writ is sought to compel action on the part of the Court, the legal right to the particular action, which is sought to be compelled by the writ, must be clear, and the legal duty to do the act or thing demanded on the part of the Court must be equally clear.
It is elementary that the writ of mandamus will not issue to require the Court to make a particular decision, and may only be issued where the purpose is to require action of a court of competent jurisdiction, where such court refuses to exercise the power of decision with which it is invested by law. 18 R.C.L., § 229 (13 & 14), pp. 295 & 296.
Where the performance of an official duty or act involves the exercise of judgment or discretion, the officer cannot ordinarily be controlled with respect to the particular action he will take in the matter. Mandamus may issue where there is an arbitrary abuse of discretion and there is no other adequate remedy. (Emphasis Ours). King et al. v. Howard and Gibson, [1946] LRSC 1; 9 LLR 135 (1946).
It is also provided that: “Mandamus will not as a general rule issue to review an exercise of judicial discretion; and this is, of course, so although the court may have erred in its conclusions. It is not like a writ of error or appeal, a remedy for erroneous decisions, and must not be permitted to usurp the functions of a writ of error or an appeal or take their place where they offer an adequate remedy to the aggrieved party. While mandamus may be employed to compel an inferior tribunal to act or to exercise its discretion, the particular method of acting or manner in which the discretion shall be exercised will not be controlled. This general principle applies to every case where the duty or performance, which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed.” 38 C.J. Mandamus, § 84.
In view of the facts and circumstances and the records forwarded to our Chambers, and laws controlling and cited, we have no alternative but to quash the alternative writ of mandamus and to deny the issuance of the peremptory writ of mandamus.
The Clerk of this Court is hereby ordered to send a mandate to the judge of the Monthly and Probate Court of Montserrado County ordering her to resume jurisdiction over the above matter and to continue the hearing thereof without delay. Cost to abide final determination of the main suit. And it is hereby so ordered.
Petition denied.