IN THE HONORABLE SUPREME COURT OF THE REPUBLIC OF LIBERIA

SITTING IN ITS OCTOBER TERM, A.D. 2023

BEFORE HER HONOR: SIE-A-NYENE G. YUOH ……………...……...CHIEF JUSTICE
BEFORE HER HONOR: JAMESETTA H. WOLOKOLIE.………..ASSOCIATE JUSTICE
BEFORE HIS HONOR: JOSEPH N. NAGBE...…………………...ASSOCIATE JUSTICE
BEFORE HIS HONOR: YUSSIF D. KABA……………….….……..ASSOCIATE JUSTICE
BEFORE HIS HONOR: YAMIE QUIQUI GBEISAY, SR…….…....ASSOCIATE JUSTICE

Amos Clinton and Rufus Wesley………………Appellants)

)
Versus ) APPEAL
)
nd
His Honor Joe S. Barkon, Resident Judge, 2 Judicial )
Circuit Court, Grand Bassa County……………...Appellee)
)
GROWING OUT OF THE CASE: )
)
Amos Clinton and Rufus Wesley………….…..Petitioners )
)
Versus )
) PETITION FOR A WRIT
nd
His Honor, Joe S. Barkon, Resident Judge, 2 Judicial ) OF MANDAMUS
Circuit Court, Grand Bassa County………....Respondent )
)
GROWING OUT OF THE CASE: )
)
st
Amos Clinton and Rufus Wesley……………....1 Movant)
)
And ) MOTION FOR RELIEF FROM
) JUDGMENT
nd
Wahyeahyein Joe……………………………....2 Movant )
)
Versus )
)
Anthony Halaway, by and thru his Attorneys-in-fact )
Mr. Philip Paye & Mr. Patrick B. Zondo……..Respondent)
)
)
GROWING OUT OF THE CASE: )
)
Anthony Halaway, by and thru his Attorneys-in-fact )
Mr. Philip Paye & Mr. Patrick Zondo………..…....Plaintiff )
)
Versus ) ACTION OF EJECTMENT
)
st
Mr. Amos Clinton & Rufus Wesley…..…….1 Defendant )
)
And )
)
nd
Wahyeahyein Joe……………………...……2 Defendant )
HEARD: March 28, 2023 DECIDED:

MR. JUSTICE GBEISAY DELIVERED THE OPINION OF THE COURT

This appeal germinates from a ruling delivered uished Colleague on January 17, 2023, His
Honor Yussif D. Kaba the appellants’ Amos Clinton and Rufus Wesley petition for a writ of
mandamus against His Honor Joe S. Barkon, Resident Circuit Judge of the Second Judicial
Circuit Court, Grand Bassa County. Being dissatisfied with the Justice’s ruling, the
appellants, through this appeal, seek the intervention of this Court en banc to review and
correct the said ruling. We are to decide whether, as alleged by the appellants, the Justice’s
ruling is contrary to our laws and should therefore be reversed.

After a careful review of the records certified to this Court, we need not belabor the point of
law in this case as the Chambers ruling captured the substantive facts of the case and the
relevant laws thereto and we are in complete agreement with the Chambers ruling of our
Distinguished Colleague, Justice Yussuf D. Kaba’s and now therefore adopt it as the ruling
of the Bench en banc.

We reproduce the said Chambers ruling verbatim below:

This petition for a writ of mandamus was filed on October 1, 2021 by Amos Clinton and
Rufus Wesely, petitioners, who are also defendants in the underlying action of ejectment
filed by Anthony Halaway by and thru his attorneys-in-fact, Messrs. Philip Paye and Patrick
B. Zondo, plaintiff. The petitioners alleged that the plaintiff instituted two actions of
ejectment against them, one during the February Term, A.D. 2008 and the other during the
February Term, A.D. 2020; that the petitioners were not served with the writ of summons
either of the actions; that they became aware of a default judgment when His Honor Joe S.
Barkon, Resident Judge of the Second Judicial Circuit for Grand Bassa County, respondent
herein, ordered an enforcement of judgment; that on March 17, the petitioners filed a motion
for relief from judgment which the respondent heard and denied on March 31, 2021; that the
petitioners excepted to the judge’s ruling and announced an appeal, but that they did not
receive copy of the ruling until June 4, 2021; that prior to receiving copy of the ruling, the
petitioners had filed a petition for a writ of prohibition before His Honor Justice Joseph N.
Nagbe then presiding in the Chambers of the Supreme who, on April 1, 2021, ordered a
stay in the proceeding in the court below; that the petitioners presented the respondent
judge a bill of exceptions for his approval, but that he declined to approve same based on
the stay order; that the respondent also declined to approved the petitioners’ bill of
exception on April 12, 2021 and for the third time during the Chambers conference on April
26, 2021, the respondent declined to approve the bill of exceptions for the same reason;
that because the respondent had refused to approve the petitioners’ bill of exceptions, they
filed said bill with the clerk of court on July 20, 2021 at which time the stay order was lifted;
that on September 14, 2021, the petitioners filed their appeal bond and notice of completion
of appeal whilst persuading the respondent to approve their bill of exceptions and appeal
bond; that on September 15, 2021, the respondent required the petitioners to augment their
bond amount from US$20,000.00 to US$55,000.00 with the assurance that he would
approve the petitioners’ bill of exceptions and appeal bond, nunc pro tunc; and that having
exhausted all the remedies available to them, the petition for a writ of mandamus will lie to
compel the respondent to do the needful as a matter of right. The petitioners therefore
prayed this Court to grant their petition for a writ of mandamus for reasons stated.

After a conference had on December 29, 2021, the Chamber Justice ordered the issuance
of the alternative writ and that the respondent filed his returns. In obedience thereto, the
respondent, by and thru the plaintiff in the main suit, filed a fifteen count returns and alleged
therein that the action from which the petition grows was filed on December 19, 2019 for the
February Term, A.D. 2020, but that the clerk of court made an error on the date of issuance
of the writ of summons; that the petitioners were constructively served as evidence by the
sheriff’s returns which shows that the petitioners were constructively served the said writ but
that they refused same; that the motion for relief from judgment filed by the petitioners on
March 17, 2021 was heard and denied on March 31, 2021, from whence the petitioners
noted exceptions and announced an appeal to the Supreme Court of Liberia; that the
petitioners received the ruling denying their motion on March 31, 2021, but that the
petitioners received the ruling denying their motion on March 31, 2021, but that they elected
to filed their bill of exceptions on April 14, 2021, four days outside the statutory period of ten
days; that assuming without admitting that the petitioners presented their bill of exceptions
to the respondent on April 1, 2021 and that he declined to approve same, the said bill of
exceptions would not have been signed by the petitioners’ counsel on April 12, 2021 which
appeared on the self-same document that is said to have been presented to the respondent
judge on April 1, 2021 for his approval; that the petitioners filed a second bill of exceptions,
an appeal bond and notice of completion of appeal on July 20, 2021; that the petitioners
seek to remedy their failure to perfect their appeal announced in open court via a writ of
mandamus having filed their first bill of exceptions on April 14, 2021 outside of the required
statutory time; that the Justice in Chambers having declined to issue the alternative writ of
prohibition, the petitioners filed a petition for a writ of error which was also denied by the
Justice in Chambers; and that while the law requires courts of law to appoint lawyer to take
the ruling of an absent counsel of record, however the law does not favor the party who
neglects his legal interest in defending his right. For reasons stated, the respondent prayed
this Court to deny and dismiss the petitioners’ petition for a writ of mandamus.

We hasten to note that contrary to the allegation made by the petitioners that they received
the ruling denying their motion for relief from judgment on June 4, 2021, the records show
that the said ruling was attached to the petitioners’ petition for a writ of prohibition filed by
them on April 1, 2021. It is therefore implausible that the petitioners could attached a
document to their petition filed on April 1, 2014 which document was received on June 4,
2021, that is, more than two months after the filing of the petitioners’ petition for a writ of
prohibition.

We also note that undisputed facts as culled from the records are that the petitioners
announced an appeal from the ruling of the respondent judge denying their motion for relief
from judgment and almost simultaneously filed a petition for a writ of prohibition. We are at a
loss as to the essence of filing the petition for a writ of prohibition in face of an
announcement of an appeal. What was there to prohibit? Did the respondent lack
jurisdiction over the case, or did respondent exceed his jurisdiction, or did the respondent
proceed by rules other than those which ought to have been observed at all times? We
cannot fathom. However, the records show that after a conference had on that petition on
May 6, 2021, our colleague declined to issue the alternative writ of prohibition on May 7,
2021. The records also show that on July 17, 2021, the Justice in Chambers declined a writ
of error which the petitioners had subsequently prayed for.

This petition for a writ of mandamus filed on October 1, 2021, brings to three the number of
petitions filed by the petitioners in the face of an appeal. We are inclined to believe that the
multitude of petitions filed by the petitioners was designed to baffle the expeditious and fair
administration of justice. The Supreme Court of Liberia has espoused in a plethora of cases
espoused that a remedial writ other than a writ of error cannot substitute for an appeal nor
can the object of one remedial writ substitute of the other.
“This Court has determined that were a party, for good reason, complained of not having
had the opportunity to announce an appeal, the only substitute available for an appeal is the
writ of error. Bah et al v. Henries et al 41LLR 87 (2002). In other instances, the Court has
articulated that a remedial writ, for example a petition for a writ of prohibition, will not lie
where adequate remedy lies in appeal. LIMINCO v. Judge Paye et al, Supreme Court
Opinion; October Term, A.D. 2016, Sawan v. Cooper et al 39, LLR 598 (1999), Chariff
Pharmacy v. Pharmacy Board of Liberia et al, 37LLR 135 (1993).

In further addressing the various remedial processes available to a party litigant for a
temporary relief from an order, ruling or judgment of an inferior tribunal that materially
prejudiced that party’s rights, the Supreme Court has also held that one remedial cannot
obtain the object of or substitute for another. Liberia Fisheries Incorporated v. Badio et al 36
LLR 277 (1989)” Messrs. Varney Lartey Kiadii and Adama Shannon v. His Honor James E.
Jones et al, Supreme Court Opinion, March Term, A.D. 2020.

The records show that notwithstanding the fact that the petitioners secured a stay order
upon the filing of the petition for a writ of prohibition, they also proceeded to file their bill of
exceptions on April 14, 2021, that is four days beyond the statutory period of ten days in
violation of civil procedure Law revised Code: 1:51.7. the petitioners attempt to impress the
mind of this court that the respondent on two occasions, that is April 1, 2021 and April 12,
2021 refused to approve their bill of exceptions on grounds that a stay order was in place
form the Justice in chambers. Granted that a stay order was in place, the petitioners
violated the stay by the filing of this court such a bill of exceptions on April 24, 2021. Several
queries continue to haunt the mind of this court such as why did the petitioners not file their
bill of exceptions within doing so? Why would the petitioners wait until twelve days to
present the bill of excepts to the respondent after he had allegedly refused to approve same
on April 1, 2021, the day petitioners filed their petition for a writ of prohibition, the same day
the stay order was issued? Why did petitioners not make the alleged refusal of the
respondent on April 1, 2021 and April 12, 2021, a matter of information for the attention of
the Justice in chambers, but elected to file the unapproved bill of exceptions on April 14,
2021 in violation of the appeal statute?

The records further show that after the Justice in Chambers declined to issue the alternative
writ of prohibition on May 7, 2021, the petitioners proceeded to file the second petition for a
writ of error which the Justice in chambers declined on July 17, 2021. In spite of the fact that
stay order which was issued by the Justice in chambers on April 1, 2021 and lifted over may
7, 2021, the petitioners proceeded to file another bill of exceptions on July 20, 2021, that is,
more than two months after the stay order was lifted; and subsequently filed their appeal
bond and notice of completion of appeal on September 14, 2021. It is worth nothing that
contrary to Civil Procedure Law Revised Code: 1:51.9 which provides that “after the filing of
the bill of exceptions and the filing of the appeal bond as required by sections 51.7 and
51,8, the clerk of the trial court on application of the appellant shall issue a notice of the
completion of appeal a copy of which shall be served by the appellant on the appellee…..,”
the records show that the petitioners did not serve the plaintiff in the underlying action of
ejectment the notice of the completion of appeal. More than that, the petitioners filed their
appeal bond and the notice of the completion of appeal more than four months after the
Justice in Chambers had declined to issue the alternative writ of prohibition which in effect
lifted the stay order.

The issue dispositive of this case is whether mandamus will lie in the face of the several
violations by the petitioners of the appeal statute, the Supreme Court’s Opinions and the
stay order issued by the Justice in Chambers?
“Mandamus is a special proceeding to obtain a writ requiring the respondent to perform an
official duty. Civil Procedure Law. Rev. Code 1:16.21(2). The essence of the petition for the
writ of mandamus is that the respondents have an official duty to perform legal services and
so they should be ordered and commanded to perform their official duties.
Mandamus has been employed on many occasions to compel a judicial officer to perform
certain duties. It has been successfully and properly employed to (1) compel a judge to
approve an appeal bond (Amierable v. Cole, 13 LLR 17 (1957); (ii) compel judge to endorse
the date of tender of a bill of exceptions (Rottger v. Williams and Summerville, (1937) LRSC
1; 5 LLR 348 (1937); (iii) to compel a judge to enter judgment on a verdict (Republic V.
Shannon-Walser (1978); (iv) to compel the Secretary of State (now Minister of Foreign
Affairs) to issue a passport to a Liberian Citizen (Wiles v. Simpson, 8 LLR 365 (1944); (v) to
compel Commissioner of Immigration to grant an exit visa to a foreigner to leave the country
(Liberia Air Taxi Inc. and jones v. Meissner, LLR 40 (1967); and (vi) to compel the minister
of finance to refund the value of a cash bond posted as security for custom levies ( Bah v.
27 LLR 210 (1978).” R.L v. the leadership of the LNBA, 40 LLR 635 (2001)

But has mandamus been employed for a party to correct his wrong? Our search of the law
fails to reveal an affirmative answer to this query. Quite to the contrary, the law extant is that
a party is forbidden to speak against his own act.

“An estoppel arises when one is concluded and forbidden by law to speak against his own
act or deed. Estoppel is a bar or impediment which precludes allegation or denial of a
certain fact or state of fact in consequence of previous allegations or denial or conduct of
admission or in consequence of a final adjudication of the matter in a court of law. “Black’s
Law Dictionary 648 (4th ed. 1951).

Estoppel is frequently based upon the acceptance and retention, by one having knowledge
or notice of the fact, of benefits form a transaction, contract, instrument, regulation, or
statute which he might have rejected or contested. This doctrine is obviously a branch of the
rule against assuming inconsistent positions, and it has been said that such cases are
referable, when no fraud either actual or constructive is involved, to the principles of election
or ratification, rather than to those of equitable estoppel. The result produced, however, is
clearly the same, and the distinction is not usually made such estoppel operates to prevent
the party thus benefitted from questioning the validity and effectiveness of the matter or
transaction insofar as it imposed a liability or restriction upon him, or, in other words, it
precludes one who accepts the benefits form repudiating the accompanying or resulting
obligation. And the principle of estoppel by the acceptance of benefits may operate to
prevent a party from profiting by his own wrong.” LAMCO J. V. operating co. v. Azzam et al
31 LLR 649 (1983) emphasis is ours.

In the instant case, the petitioners announced an appeal from the ruling denying their
motion for relief form judgement, subsequently filed a petition for a writ of prohibition out of
which the justice in chambers ordered a stay in the proceedings.

It is important to note that the stay order directed both parties as well as the court below
from proceeding further with the matter. Notwithstanding the stay, the petitioners filed their
bill of exceptions on April 14, 2021 which act not only violated the stay order imposed by the
Justice in Chambers, but that the filing was done outside statutory period. To further
compound issues for themselves, the petitioners filed a second bill of exceptions on July 20,
2021, more than two months after the stay order was lifted; filed their appeal bond and
notice of the completion of appeal on September 14, 2021 again more than four months
after the stay order was lifted on July 20, 2021 at the instance of the Justice in Chambers
declining to issue the alternative writ of prohibition. It is also important to note that the filing
of the notice of completion of appeal without service on the plaintiff in the underlying action
of ejectment was contrary to law. The petitioners did not rest there; they filed a petition for a
writ of error which was also declined by the Justice in Chambers on July 17, 2021. In the
face of the numerous violations and wrong committed by the petitioners, this Court is of the
considered opinion that the petition for a writ of mandamus will not lie to have the petitioners
to correct their own wrong.

Before we close this opinion, we find it prudent to mention that the appellants’ counsel knew
or should know that after excepting and announcing an appeal, except something affecting
the completion of the appeal process comes up, a remedial writ cannot serve as a substitute
for the appeal but the counsel deliberately, for the purpose of baffling the case and delaying
justice engaged in the filing of unmeritorious remedial writs before the Justice in Chambers
while he had already excepted and announced an appeal to the Supreme Court. This Court
frowns on bad and unethical lawyering as such as again sends out a warning to all
counsellors of the Supreme Court Bar and all lawyers to desist because we will not hesitate
to levy out the proper punishment against such behavior of lawyers if it continues.

WHEREFORE AND IN VIEW OF THE FOREGOING, the ruling of His Honor Justice Yussif
D. Kaba on the petition for the writ of mandamus is hereby affirmed. The alternative writ
issued is ordered quashed and the peremptory writ denied. The Clerk of this Court is
ordered to send a mandate to the court below to give effect to the Judgment emanating
from this Opinion. Costs ruled against the appellants. IT IS HEREBY SO ORDERED.

WHEN THIS CASE WAS CALLED FOR HEARING COUNSELLOR FINLEY Y. KARNGAR
APPEARED FOR THE APPELLANTS. COUNSELLOR MORRIS MOMO DAVIS OF THE
KEMP AND ASSOCIATES LEGAL CHAMBERS, INC. APPEARED FOR THE APPELLEE