Select Page

REPUBLIC OF LIBERIA, by and thru UNITED STATES TRADING COMPANY (USTC), by and thru its General Manager, Petitioner, v. HER HONOUR FRANCES JOHNSON-MORRIS, Judge, First Judicial Circuit, Criminal Assizes “C”, Montserrado County, et al., Respondent.

APPEAL FROM THE RULING OF THE CHAMBERS JUSTICE DENYING A PETITION FOR A WRIT OF PROHIBITION.

Heard: December 6, 1994. Decided: February 16, 1995.

1. A preliminary examination shall be given a defendant after his first appearance before the Magistrate or Justice of the Peace only if he requests it. If he makes no such request, the Magistrate or Justice of the Peace, after complying with the provisions of § 12.1 of the criminal procedure statute, shall hold him to answer.

 

2. The doctrine of double jeopardy shall be applicable to all criminal prosecutions. Jeopardy attaches when a person has been placed on trial before a court of competent jurisdiction under a valid indictment or complaint upon which he has been arraigned and to which he has pleaded, and a proper jury has been empaneled and sworn to try the issue raised by the plea or, if the case is properly being tried by a court without a jury, after the court has begun to hear evidence thereon.

 

3. Termination of a trial by the court because of manifest necessity shall not bar another prosecution for the offenses set forth in the indictment or complaint.

 

4. The Civil Procedure Law empowers the Magistrate or the Justice of the Peace to hold a defendant to answer to a charge in the Circuit Court if the evidence shows that a crime has been committed and that it was committed by the defendant; or the magistrate or justice of the peace may discharge the defendant.

 

5. A discharge of a defendant by a Magistrate on a preliminary examination is not such an adjudication in his favor as will bar a subsequent prosecution for the offense.

 

6. The writ of prohibition is a process which does not concern itself with, nor can it give or interfere with irregularities and errors committed in the trial of causes. This is the function of appeals, of writs of error, and of certiorari, but not of this high prerogative writ.

 

7. Prohibition preoccupies itself with preventing inferior courts or tribunals from assuming jurisdiction which is not legally vested in them, and it is a purely negative and not an affirmative remedy.

 

8. A Magistrate or Justice of the Peace has limited jurisdiction to conduct preliminary examination upon the request of the defendant above their trial jurisdiction.

 

These prohibition proceedings grow from a petition for summary proceedings filed in the Circuit Court, First Judicial Circuit, Criminal Assizes “C”, Montserrado County. Kekula Ballah Sumo, a chauffeur and sales agent of the United States Trading Company (USTC) was given two truck loads containing 1,085 crates of soft drinks valued at L$151,900.00 (Liberia Dollars One Hundred Fifty-One Thousand Nine Hundred). After selling, he reported to the police that the amount has been stolen from him. It was from this report that the case was carried to the Magistrate, where upon the defendant was charged with criminal facilitation. He requested for preliminary examination in keeping with the statute, which was granted. At the end of the examination, the Magistrate ruled discharging the defendant from further answering to the crime and ordered his liberty restored. The Magistrate also ordered the 1,085 crates that were in the possession and safe-keeping of the Liberia National Police to be returned, to which ruling the State excepted. When the defendant’s request for an order to enforce the judgment was granted, the magistrate, upon application for summary proceedings by the State, was summoned before Her Honour Judge Frances Johnson-Morris. Upon hearing arguments on both sides, the judge affirmed and confirmed the judgment of the magistrate. It is from this ruling that the State applied for a writ of prohibition to restrain the enforcement of the two rulings. The Justice in Chambers heard and denied the petition and quashed the alternative writ of prohibition, from which petitioner appealed to the bench en banc..

 

The Supreme Court identified two issues that it considered dispositive of the petition: whether or not the magistrate was correct after granting the request of the defendant for preliminary investigation to have ordered him discharged from answering to the charge; and whether or not a judgment discharging the defendant under preliminary examination creates the chances of double jeopardy in case an indictment is found? On the first question, the Supreme Court held that The Civil Procedure Law empowers the Magistrate upon a preliminary examination, to hold a defendant to answer to a charge in the Circuit Court if the evidence shows that a crime has been committed and that it was committed by the defendant; or the magistrate or justice of the peace may discharge the defendant. On the second issue, the Supreme Court held that a discharge of a defendant by a magistrate on a preliminary examination is not such an adjudication in his favor as will bar a subsequent prosecution for the offense. Finally the Court, holding that a writ of prohibition is a process which does not concern itself with, nor can it give or interfere with irregularities and errors committed in the trial of causes, affirmed the ruling of the Chambers Justice.

 

Francis Korkpor in association with Felicia Coleman for petitioners; Theophilus C. Gould appeared for respondents.

 

MR. JUSTICE MORRIS delivered the opinion of the court.

 

This case is before us on a writ of prohibition filed against Her Honour Frances Johnson-Morris, Judge, First Judicial Circuit, Criminal Assizes “C”, Montserrado County, November Term, 1992 when Magistrate Frederick A. B. Jayweh of the Monrovia City Court was carried on summary proceedings. The history of the case further reveals that one Kekula Ballah Sumo, a chauffeur and sales agent of the United States Trading Company (USTC) was given two truck loads containing 1,085 crates of soft drinks valued at L$151,900.00 (Liberia Dollars One Hundred Fifty-One Thousand Nine Hundred). After selling, he reported to the police that the amount has been stolen from him. It was from this report that the case was carried to the magistrate, where upon the defendant was charged. He requested for preliminary examination in keeping with the statute, which was granted him. At the end of the preliminary examination, the magistrate ruled as follows:

 

“WHEREFORE and in view of the above and/or foregoing, this court hereby discharges the defendant from further answering to the crime of criminal facilitation; orders his liberty restored; the 1,085 crates, being in the possession and safe-keeping of the Liberia National Police, each and every bottle and/or the 1,085 creates be returned. And it is hereby so ordered.”

 

The records further reveal that the state excepted to the ruling as follows:

 

“To which ruling the State excepts especially to and regard the fruit of crime to be returned to co-defendant Mohammed Barry when indeed that the said drinks or crates represent the fruit of the crime against co-defendant Ballah which matter is still undetermined. The State says that in view of said ruling, it will take advantage of the law controlling. And submits.”

 

The defendant then requested for an order to enforce the judgment of the court which was granted. Subsequently, the magistrate was summoned before Her Honour Judge Frances Johnson-Morris on summary proceedings. Judge Frances Johnson-Morris after hearing arguments on both sides, affirmed and confirmed the judgment of the magistrate because, according to her, the ruling was in compliance with law.

 

The petitioner still not being satisfied, applied for a writ of prohibition against the enforcement of the two rulings. Our colleague, His Honour E. Winfred Smallwood who was then presiding in Chambers, heard and denied the petition and quashed the alternative writ of prohibition.

 

The question now is, was the magistrate correct after granting the request of the defendant for preliminary investigation to have ordered him discharged from answering to the charge? Our statute on preliminary investigation to be given upon the request of the defendant in criminal case provides as follows:

 

“§ 12.2. Preliminary examination given on request only. A preliminary examination shall be given a defendant after his first appearance before the Magistrate or Justice of the Peace only if he requests it. If he makes no such request, the Magistrate or Justice of the Peace, after complying with the provisions of section 12.1 of this title, shall hold him to answer.”

 

“§ 12.3. Examination of the evidence. If the defendant requests a preliminary examination, the magistrate or justice of the peace shall hear the evidence within a reasonable time. The defendant shall not be called upon to plead. If the defendant was not furnished with a copy of the complaint on his first appearance before the magistrate or justice of the peace, he shall be furnished with such a copy within a reasonable time before the hearing. The magistrate or justice of the peace shall issue such process as may be necessary for the summoning of witnesses for the Republic. All witnesses shall be examined in the presence of the defendant and may be cross examined. During the examination of any witness, the magistrate or justice of the peace may, and on the request of the defendant shall, exclude all other witnesses. He may also cause the witnesses to be kept separate and to be prevented from communicating with each other until all are examined. The testimony of witnesses shall either be reduced to writing by the magistrate or justice of the peace, or under his direction, or be taken in shorthand by a stenographer and transcribed. If from the evidence it appears to the court that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the court shall forthwith hold him to answer in the Circuit Court; otherwise the court shall discharge him.” Criminal Procedure Law, Rev. Code 2:12.2 and 12.3

 

The next question is, can a judgment discharging the defendant under preliminary examination create the chances of double jeopardy in case an indictment is found? The statute on this question provides as follows: “The doctrine of double jeopardy shall be applicable to all criminal prosecutions. Jeopardy attaches when a person has been placed on trial before a court of competent jurisdiction under a valid indictment or complaint upon which he has been arraigned and to which he has pleaded, and a proper jury has been empaneled and sworn to try the issue raised by the plea or, if the case is properly being tried by a court without a jury, after the court has begun to hear evidence thereon. Termination of the trial thereafter by the court because of manifest necessity, however, shall not bar another prosecution for the of, fenses set forth in the indictment or complaint.”/d, 2:3.1, Cases in which and time when jeopardy attaches.

 

In the case at bar, the magistrate has limited jurisdiction, in that he had no trial jurisdiction. He would have forwarded the case to the Circuit Court had he found magnitude in it. The law empowers the magistrate to either hold the defendant to answer in the Circuit Court or discharge him. However, this court in the case Gray v. Republic, [1978] LRSC 1; 26 LLR 357, 359 (1978), held that “the discharge of a defendant by a magistrate on a preliminary examination is not such an adjudication in his favor as will bar a subsequent prosecution for the offense.”

 

“The writ of prohibition is a process which does not concern itself with, nor can it give or interfere with irregularities and errors committed in the trial of causes. This is the function of appeals, of writs of error, and of certiorari, but not of this high prerogative writ; for it preoccupies itself with preventing inferior courts or tribunals from assuming jurisdiction which is not legally vested in them, and it is a purely negative and not an affirmative remedy.” Fazzah v. National Economy Committee, [1943] LRSC 2; 8 LLR 85, 89 (1943). According to our statute as quoted supra, a magistrate or justice of the peace has limited jurisdiction to conduct preliminary examination upon the request of the defendant above their trial jurisdiction. The law further empowers the magistrate or the justice of the peace to hold the defendant to answer said charge in the Circuit Court if the evidence shows that a crime has been committed and that it was committed by the defendant; or the magistrate or justice of the peace may discharge the defendant.

 

In view of the above, it is the opinion of this court that the ruling of our colleague in Chambers be and that same is hereby confirmed and affirmed and the alternative writ of prohibition denied. The Clerk of this Court is instructed to send a Mandate to the court below to resume jurisdiction over this matter and enforce its ruling. And it is hereby so ordered.

Ruling affirmed, petition granted

File Type: pdf
Categories: 1995