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
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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.
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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.
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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
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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)
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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)
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MANDAMUS:
Is a special proceeding to
obtain a writ requiring
the
respondent
to
perform an official duty
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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)
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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)
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PROHIBITION:
A special proceeding to obtain
a writ ordering the respondent
to refrain from further
pursuing a judicial action or
proceeding specified therein.
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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)
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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)
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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.
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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
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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)
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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)
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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.
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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);
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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
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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
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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
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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
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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
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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)
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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.
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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.
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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.
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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)
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THANKS
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