Transcript Document
REMEDIAL WRITS: Civil Procedural Law Chapter 16 – Special Proceedings, Sub-Section B; Revised Rules of the Supreme Court, Part 7 Certiorari Mandamus Prohibition Error and Quo Warranto 07/17/2015 1 PURPOSE: These writs are intended to correct, remove or lessen a wrong, fault or defect; or relating to a means of enforcing an existing substantive right. 07/17/2015 2 CERTIORARI: Is a special proceeding to review and correct decisions of officials, boards, or agencies acting in a judicial capacity, or to review an intermediate order or interlocutory judgment of a court. 07/17/2015 3 APPLICATION OF CERTIORARI: Petitioner is a party to the action or proceeding pending before a court or judge or an administrative board or agency; A statement of the decision that is alleged to be illegal or the intermediate order or the interlocutory judgment of which review is sought; Certification by two members of the bar that in their opinion the contention of the petitioner is sound in law; Opposing party shall be named as respondent and shall be served with a copy of the petition; Petitioner shall make payment of all accrued costs and may be required to file bond; Issuance of writ shall act as a stay of proceedings before the inferior tribunal 07/17/2015 4 CERTIORARI WHERE GRANTED: Corrects an interlocutory ruling; it erases what is erroneous and substitutes in its place what is correct to ensure substantial justice in the cause. Rogers et al. v R.L., 32 LLR 175 (1984) 07/17/2015 5 CERTIORARI WHERE NOT GRANTED: Not ordinarily granted to review an interlocutory ruling on a question of Law; where ruling of court not manifestly prejudicial to the rights of a party and could be obtain through regular appeal. CFAO vs. Cooper, 39 LLR 511 (1999); Abijaoudi vs Richards, 36 LLR 712 (1990); Morris vs Flomo, 26 LLR 314 (1977) 07/17/2015 6 MANDAMUS: Is a special proceeding to obtain a writ requiring the respondent to perform an official duty 07/17/2015 7 MANDAMUS WHERE GRANTED : Should issue whenever a petitioner make a plain that he has the legal right to have the act done; That it is the legal duty of the respondent to perform said act; That if the writ is granted, the petitioner will obtain relief for which no other plain, speedy, and adequate remedy exists. Clarke vs MOF & Minister of Justice RL, 32 LLR 464 (1984); Granting or refusing of an appeal is not left with the discretion of the trial judge, Mandamus shall lie to compel him to perform such duty; Caine, Freeman et al., vs Fahnbulleh et al., 30 LLR 858 (1982); Amierable vs Cole 13 LLR 17 (1957). The writ of mandamus is the appropriate writ for the just compensation of a person whose property has been taken by the government. Clarke vs MOF & Minister of Justice RL, 32 LLR 464 (1984) 07/17/2015 8 MANDAMUS WHERE NOT GRANTED : The office of a writ of mandamus ordinarily is not to review and cannot be resulted to when there is an adequate and complete remedy available at law. Harmon vs Horace, 10 LLR 29 (1948); Mandamus designed to compel the performance of a ministerial function imposed by law which involved public function and not the duty of a lawyer to his client; universally held that writ of mandamus is not an appropriate remedy for redress of private contract rights and that the writ will not generally be granted to compel a public officer, corporation, or other respondent to perform a duty or obligation assumed by contracts as distinguished by one imposed by law, RL vs LNBA, 40 LLR 635 (2001); Park vs HMPC, 38 LLR 505 (1998) Mandamus is not an appropriate remedy where a court of equity has refused to issue an injunction in a controversy concerning the conduct of the Election Commission; Coleman et al., vs True Whig Party, 12 LLR 234 (1955) 07/17/2015 9 PROHIBITION: A special proceeding to obtain a writ ordering the respondent to refrain from further pursuing a judicial action or proceeding specified therein. 07/17/2015 10 PROHIBITION WHERE GRANTED : Prohibition will issue to prevent lower court from enforcing its judgment, where an appeal has been announced therefrom, Prohibition will lie when the lower courts proceed by rules contrary to, or different from those which regularly obtain in the disposition of such cases. Kromah vs Moniba et al., 33 LLR 42 (1985) The writ of prohibition is designed to prevent what remains to be done as well as to undo what has illegally been done. Ayad vs Dennis, Jr., 23 LLR 165 (1974) Prohibition will lie to prevent a court from assuming jurisdiction not legally vested in it and from enforcing its judgment, Writ not only applied to on-going acts, but to threat of future acts as well. Mary Broh vs House of Representative, October Term 2013 (January 2014) Prohibition is granted to prevent some grate outrage upon settled principle of law and procedure, in cases where wrong, damage, and injustice are likely to follow such action. Togba vs Republic of Liberia, 35 LLR 389 (1988) 07/17/2015 11 PROHIBITION WHERE NOT GRANTED : A petition for issuance of the writ of prohibition will be considered to be prematurely filed, and consequently denied, where the petitioner had failed to exhaust all the administrative and procedural remedies before resorting to filing the petition. Garlawolu et al., vs the Elections Commission, 41 LLR 377 (2003) 07/17/2015 12 ERROR: A writ of error is a writ by which the Supreme Court calls up for review a judgment of an inferior court from which an appeal was not announced on rendition of judgment. 07/17/2015 13 APPLICATION OF ERROR: An assignment of error, similar in form and content to a bill of exceptions, which shall be verified by affidavit stating that the application has not been made for the mere purpose of harassment or delay; A statement why an appeal was not taken; An allegation that execution of the judgment has not been completed; A certificate of a counsellor of the Supreme Court, or of any attorney of the Circuit Court if no counsellor resides in the jurisdiction where the trial was held, that in the opinion of such counsellor or attorney real errors are assigned; As a prerequisite to issuance of the writ, the person applying for the writ of error, to be known as the plaintiff in error, shall be required to pay all accrued cost and may be required to file a bond in the manner prescribed in section 51.8 07/17/2015 14 ERROR WHERE GRANTED: A writ of error will issue only to a party who for good reason has failed to take an appeal from a judgment, decree, or order of a trial court or who has lost his right of statutory requirements. Bovericie, A.G. vs Johnnie Lewis, 26 LLR 170 (1977); Pratt vs Valentine, 30 LLR 558 (1983) 07/17/2015 15 ERROR WHERE NOT GRANTED: Request for time to settle a judgment which request is granted is a waiver of any defect in the trial or in the issuance of execution and a writ of error cannot be taken thereafter. Bovericie, A.G. vs Johnnie Lewis, 26 LLR 170 (1977); A writ of error will not be issued for the purpose of performing the proper functions of a writ of certiorari. Campagnie Francaise De L’Afrique Occidentale vs His Honor, Samuel B. Cole, 13 LLR 180 (1958) 07/17/2015 16 QUO WARRANTO: Is a special proceeding which may be instituted on any of the following grounds: Against a person who usurps, intrudes into, or unlawfully holds or exercise within the Republic a franchise or a public office or an office in a domestic corporation; Against a public official or officer of a corporation who has done or permitted an act to be done which by law works a forfeiture of his office; Against one or more person who act as a corporation within the Republic without being duly incorporated, or exercise within the Republic any corporate rights, privileges, or franchises not granted them by law, or Against a foreign corporation which exercise within the Republic any corporate rights, privileges, or franchises not granted to it by law. 07/17/2015 17 APPLICATION OF QUA WARRANTO: Instituted by the filing of a petition by the Attorney General (Minister of Justice), with a Justice of the Supreme Court; Any party to quo warranto proceedings may demand a jury trial in writing at any time after the commencement of the action and not later than ten days after the service of pleadings. Failure to serve and file such demand constitutes a waiver, unless such demand has been served by another party. Williams vs BIBS 30 LLR 788 (1982); 07/17/2015 18 EXERCISE ONE(1) During a trial for theft in the circuit court, a verdict of guilty was brought against the defendant. The evidence presented by the prosecution showed that the defendant had gone to a susu club and borrowed some money but failed to pay back the loan after a protracted period. Counsel for the defendant made a motion to the court two days thereafter, for arrest of judgment alleging that the court was without jurisdiction to hear the case. The judge denied the motion of the defendant’s counsel. ADVISABLE To go up on certiorari To go up on appeal To go up on prohibition 07/17/2015 19 EXERCISE TWO (2) After a jury trial, a guilty verdict was brought against the defendant on January 15, 2012, counsel for the defendant excepted and announced an appeal. While the defendant counsel was preparing his bill of exceptions, he suddenly dropped and died of a heart attack on January 23, 2012. The new defense counsel assigned to handle the matter who had given notice of change of counsel presented to the judge the defendant’s bill of exceptions on February 2, 2012. The judge refused to sign the bill of exceptions stating that it was presented beyond the statutory period. ADVISABLE To go up on certiorari To go up on error To go up on mandamus 07/17/2015 20 EXERCISE THREE (3) A defendant was committed to jail after he was indicted and arrested for commission of an assault. The counsel for the defendant secured a bond on February 5, 2013, and the defendant was released on bail. The bond was served on the Office Assistant at County Attorney’s Office but she refused to receive and accept the bond. On February 10, 2013, the state moved the court for the bond to be set aside alleging imperfection of the bond. The judge granted the state’s motion and ordered the defendant re-arrested and incarcerated. ADVISABLE: To go up on certiorari To go up on prohibition To go up on error 07/17/2015 21 EXERCISE FOUR (4) A defense counsel was served an assignment for final judgment but due to his busy schedule he forgot and did not go to court. When the case was called, the Judge noting that the counsel for defense was absent, ascertained from the sheriff whether the assignment was served on the defense counsel; the sheriff returns showed that service was made. The judge went ahead and gave his final ruling. No appeal was taken from the judgment. ADVISABLE: To go up on certiorari To go up on appeal To go up on prohibition To go up on error 07/17/2015 22 EXERCISE FIVE (5) At the call of a hearing based on an indictment for murder, the defendant filed a motion to dismiss the indictment, the presiding judge heard and denied the motion and order the trial proceeded with. ADVISABLE To go up on certiorari To go up on appeal To go up on a prohibition To go up on error 07/17/2015 23 BILL OF EXCEPTIONS: REVISED RULES OF THE SUPREME COURT V-BILL OF EXCEPTIONS (PART I): CONTENTS OF The appellant shall state in his bill of exceptions the points of law to be especially relied upon in support of his appeal; and the bill of exceptions shall contain only such statements of facts and only such papers as may be necessary to explain the rulings on the issues or question involve, and the appellant shall state distinctly the several matters of law in the charge of the court to which he excepted. While it is true that a bill of exceptions does not necessarily require a special form, practice in this jurisdiction is that a bill of exceptions, no matter how many counts it contains, is usually begun with an opening paragraph, followed by either a one-count exception or multiple counts exceptions, whether alphabetized or enumerated, with a concluding paragraph containing the appellant’s prayer for its approval, Wilson vs Minister of Labor , 34 LLR 134 (1986). The approval by the trial judge of a bill of exceptions without express reservations admits of the correctness of every material statement which precedes his signature. Wilson vs Minister of Labor, 34 LLR 134 (1986 An exception shall be noted by a party at the time the court makes an order, decision, ruling, or comment to which he objects. A failure to note such exception shall prevent a party assigning it as error on review by the appellate court. Page, II, et al., vs Johnson, et al., 39 LLR 626 (1999) 07/17/2015 24 SAMPLE BILL OF EXCEPTIONS ONE (1) Respondent most respectfully submits the following for Your Honour’s approval as his exceptions to the various rulings of Your Honour including Your Honour’s final ruling as follows to wit: 1. That on the 12th day of October A.D. 2009, Plaintiff filed an Action of Ejectment, to which Defendant filed an Answer. 2. That Plaintiff filed her reply along with a motion for Summary Judgment, to which Defendant filed a Resistance requesting His Honour Peter W. Gbeneweleh to deny, said Motion because there were issues of facts to be decided by a trial jury. 3. That on January 16, 2010, Your Honour committed reversible error when you granted motion for Summary Judgment and entered judgment for Plaintiff, and thereby adjudging Defendant liable as oppose to allowing a jury to detain the facts. 4. That Your Honour also committed reversible error when Your Honour usurped the functions of a jury and without a trial held the Defendant liable in an Ejectment case. 07/17/2015 25 SAMPLE BILL OF EXCEPTIONS: TWO (2) And now comes Respondent, in the above entitled cause of action and most respectfully submits this Bill of Exceptions for Your Honour’s approval so as to enable Respondent perfect its Appeal to the Honourable Supreme Court of Liberia and showeth therefore the following to wit: 1. Further to Count Four (4) above, Respondent contends and maintains that the form, manner, and procedure in which these so called Forensic Handwriting documents Experts were requested by the Petitioner, introduced and admitted into our court system fall within the definition of a Deposition, which according to Black’s Law Dictionary, Eight Edition, page 472, states that deposition – “A witness’s out of court testimony that is reduced to writing for later use in court or discovery purposes”. Respondent says that the so called Forensic Handwriting documents Expert from John Brown and John Paul are out of court testimonies which were reduced to writing giving their alleged certain knowledge as to what they purported to know on a particular issue, and said instrument/documents were wrongly marked and admitted into evidence by Your Honour, for use by the Court. During the filing and hearing of the Motion for New Trial, Appellant counsel argued that this was a form of deposition if this court is to give credence to these documents and according to SECTION 13.7 OF 1 LCL REVISED PAGE 131 (2), the charge d’ affairs, or some officials of the Liberian Embassy in the United States of America should have authenticated these instruments. If in case there is no Embassy of Liberia in the United States of America, said so-called Forensic Handwriting Examination should have been certified by at least a Notary Public. This not being the case, warrants a reversal of Your Honour’s Final Ruling and Respondent so prays. Reversal error Your Honour did commit. 07/17/2015 26 SAMPLE BILL OF EXCEPTIONS: THREE (3) And now comes Respondent, in the above entitled cause of action and most respectfully submits this Bill of Exceptions for Your Honour’s approval so as to enable Respondent perfect its Appeal to the Honourable Supreme Court of Liberia and showeth therefore the following to wit: 1. Appellant/Defendant further contends that under our law, in order for one to commit Rape, it must be without the consent of the victim, in the case at Bar, and from the testimonies of the Prosecution and Defendant witnesses, the private prosecutrix wilfully went into the accuser’s room and for the time she was in said room, she was laughing, the room door was opened; even though, they both admitted having sex before, they did not have sex on that day. She was never forced. His Honour again erred after hearing these testimonies, brought the Appellant/Defendant down guilty. 07/17/2015 27 FILING OF THE BILL OF EXCEPTION A bill of exceptions is a specification of the exceptions made to the judgment, decision, order, ruling, or other matter excepted to on the trial and relied upon for the appeal together with a statement of the basis of the exceptions. The appellant shall present a bill of exceptions signed by him to the trial judge within ten days after rendition of the judgment. The judge shall sign the bill of exceptions, noting thereon such reservations as he may wish to make. The signed bill of exceptions shall be filed with the clerk of the trial court. In criminal cases the filing is within sixty day A bill of exceptions must show with particularity the allege errors of the lower court. Bailey vs Sancea 22 LLR 59 (1973); Quai vs Republic, 12 LLR 402 (1957) Only errors attributable to the trial judge should be included in the bill of exceptions. Bailey vs Sancea 22 LLR 59 (1973); Richards vs Coleman, 6 LLR 285 (1938) 07/17/2015 28 THANKS 07/17/2015 29