A. DASH WILSON, SR., Appellant, v. JAMES M. T. KANDAKAI,

Judge presiding by assignment over the March 1972 Term, Sixth Judicial Circuit, Montserrado County, JOHN L. DENNIS and WILMOT L. DENNIS, sons of GABRIEL L. DENNIS, HENRI W. DENNIS, JR., and COLISTA DENNIS-COOPER, children of HENRI W. DENNIS., SR., and LOUISE DENNIS-ALSTON, all heirs of WILMOT E. DENNIS, deceased, Respondents. APPEAL FROM RULING OF THE JUSTICE PRESIDING IN CHAMBERS DENYING A WRIT OF PROHIBITION TO THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued December 11, 1972. Decided February 1, 1973. 1. The petition applying for a writ of prohibition must be verified by the party seeking the relief. 2. The purpose of prohibition is to restrain further judicial action or proceedings specified in the writ obtained, and is not designed to review discretionary decisions on the part of a judicial officer. 3. The right to a continuance in an action lies within the discretion of the trial judge. 4. A movant cannot claim the technicality of failure to be notified of the date of argument of his motion, especially when he has participated in the argument. A motion for continuance was brought by defendant in the lower court, alleging his state of health as a basis for the postponement of the trial. The court denied his application and set a date for trial. The defendant applied for a writ of prohibition, complaining in his petition that the lower court had wrongly denied the relief sought. The matter came up before the Justice presiding in chambers who quashed the alternative writ and denied the issuance of a peremptory writ. An appeal was taken from the ruling of the Justice. The Supreme Court affirmed the Justice’s ruling. 452 LIBERIAN LAW REPORTS D. T. Harris for petitioner. for respondents. 453 Counsellor Williamson MR. JUSTICE WARDSWORTH delivered the opinion of the Court. The defendant in an ejectment action moved for a continuance on the ground of physical disability, and the court denied the application. When the court denied the motion for continuance, the defendant upon petition obtained an alternative writ of prohibition from the Justice presiding in chambers. However, the Justice subsequently quashed the alternative writ and denied the issuance of a permanent writ. An appeal was taken from the ruling. It is our considered opinion that the movent should have noted exceptions for the purpose of appeal when his motion was denied. For the form of relief sought, our Civil Procedure Law is applicable, as quoted by Mr. Justice Henries in his ruling in chambers set forth hereinafter. “Issuance of Writ. An application for a writ of prohibition shall be made in writing, verified by the petitioner, and shall state clearly the grounds on which it is based. If the Court or Justice is satisfied with the sufficiency of the application, it or he shall issue an interlocutory writ of prohibition requiring the respondent (a) to ref rain from further pursuing the action or proceeding specified in the writ until a hearing has been held on the writ, and (b) to show cause, at the date fixed therein, why they should not be restrained absolutely from further pursuing such action or proceeding. If the writ is issued when the court is not in session, it must be made returnable at the session immediately following the issuance of the writ.” 1956 Code 6:1221. It is required that an application for a writ of prohibi- 454 LIBERIAN LAW REPORTS tion shall be made in writing and verified by the petitioner. The affidavit supporting the petition was signed by D. T. Harris, counsellor-at-law, one of the counsel for petitioner. It is obvious that the petitioner failed to verify the petition, therefore, count one of respondents’ returns is hereby sustained. Petitioner has not offered any proof in denying the truthfulness of respondents’ returns with respect to having moved the court for continuance, or even if not having been served with notice of assignment, nonetheless participated in the hearing and disposition of the motion for continuance as filed by him. Counts two and three are hereby sustained. The motion for continuance having been addressed to the discretion of the court, the denial of the motion cannot be considered an abuse of discretion in the absence of any proof that the trial judge abused his discretion. The motion determined by the trial court below was the proper subject of an appeal, rather than prohibition proceedings, for the reason that prohibition seeks to restrain further judicial action or proceedings specified in the writ, hence, it cannot perform the office of any other proceeding. Counts four and five of respondents’ returns are hereby sustained. Upon a careful check of the motion for continuance we find that no mention is made of the unavailability of a material witness ; rather it is based primarily on the illness of the defendant; therefore, the averment of petitioner to the effect “that denying petitioner’s motion aforesaid and ordering the trial . . . (is) contrary to the plain law governing motions for continuance because of illness and absence of a material witness,” is found to be an assumption without foundation. Hence, count six of respondents’ returns is hereby sustained. It is the considered opinion of this Court that the motion for continuance having been regularly heard and denied and notice of assignment having been served on LIBERIAN LAW REPORTS 455 counsel for the petitioner and the respondents for the trial of the ejectment suit on March 28, 1972, the parties should have proceeded with the trial upon the understanding that either party could appeal from a final judgment. Not having done so, count seven of respondents’ returns is hereby sustained. Relevant portions of the ruling entered in chambers in these prohibition proceedings by our colleague, Mr. Justice Henries, are set forth. “At the outset of the hearing for issuance of the writ, the petitioner brought to the attention of the Justice that the petition was not verified by the petitioner himself, but by his counsel; and therefore he sought to correct the defect by relying on the Civil Procedure Law, L. 1963-64, ch. III, � 8ot (b), which states : ‘A defect in form of a paper, if a substantial right of any party is not prejudiced thereby, shall be disregarded by the court, and leave to correct shall be freely granted. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within two days after the receipt thereof, he returns the paper to the party serving it with a statement of particular objections.’ Petitioner also relied upon Kanawaty v. King, [1960] LRSC 66; 14 LLR 241 (196o). In the meantime the respondents had attacked the improperly verified petition in the first count of their returns. “It is our opinion that the quoted section of the Civil Procedure Law is not applicable here, for the defect is not one of form but of substance, in that it tends to prejudice the substantial right of the respondents to have their matter heard without delay. The filing of an unverified or improperly verified petition does tend to delay the proceedings in the lower court. Section 905 ( ), (2) and (5) of the Civil Procedure Law supra are relevant to the issue. ” `I. Verification required. Every written plead- 456 LIBERIAN LAW REPORTS ing except one containing only issues of law shall be verified on oath or affirmation that the averments or denials are true upon the affiant’s personal knowledge or upon his information and belief.’ 2 . Person required to verify. The verification shall be made by: (a) The party serving the pleading, or, if there are two or more parties united in interest and pleading together by at least one of them ; or (b) By the attorney of such party; provided, however, that the complaint in such an action to secure an injunction or in a prohibition proceeding shall in every case be verified by the party himself.’ “5. Effect of improper verification or certification. If a pleading is not properly verified or certified, or it is verified or certified with intent to defeat the purpose of this section, it may be stricken and the action may proceed as though the pleading had not been served.’ “In Kanawaty v. King, [1960] LRSC 66; 14 LLR 241 (196o), the Supreme Court upheld an order in chambers denying an application for a writ of prohibition because the petition was unverified, but directing the court to correct errors arising from the attempted enforcement of a void judgment. In that case, in which the facts were very peculiar and unlike the one at bar, no other remedy was available. It is clear that the improper verification of the petition is a violation of the statute controlling the bringing of prohibition proceeding, and therefore the writ of prohibition requested cannot be granted.” Petitioner appears to have come to this forum only as a matter of further delay. Having failed to verify the petition and not having shown that the respondent judge exceeded his jurisdiction or proceeded by rule not in conformity with the rules that should be observed at all times, or abused his discretion in denying the motion for ( LIBERIAN LAW REPORTS 457 continuance, we feel, under the foregoing circumstances and the law cited, that prohibition does not lie. Therefore, in view of the foregoing, the ruling of the Justice in denying the petition and ordering the altenative writ of prohibition quashed with costs against petitioner is hereby sustained. It is so ordered. Affirmed.