LIBERIA-AMERICAN INSURANCE CORPORATION, by and thru its President ,MR. IMAD HAGE, Plaintiff-In-Error, v. HIS HONOUR M. WILKINS WRIGHT, Resident Circuit Judge, Sixth Judicial Circuit, and A. HEJAZI CORPORATION, by and thru its President, ANIS HEJAZI, Defendants-In-Error.

PETITION FOR A WRIT OF ERROR FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: November 24, 1993. Decided: February 18, 1994.

1. A single Justice cannot determine error proceeding.

2. The function and scope of an answering affidavit are limited by law to the refutation of the factual allegation in the returns, and that it cannot be used for traversing issues of law raised in the returns.

3. Accrued cost is expenses incurred by one of the parties to an action while the action is still pending and one of the parties decides to withdraw and amend his pleading or to file a petition for certiorari or writ of error. A bill of cost is the itemized statement of the total amount of cost in the action after the action is terminated.

4. Personal service of a summons within Liberia on a corporation is made by reading and personally delivering the summons within Liberia to an officer or Manager or general agent, or to any other agent authorized by appointment or by statute to receive summons on behalf of the corporation.

5. Personal service means the actual or direct delivery of the summons or a copy thereof to the person to whom it is directed or to someone who is authorized to receive service of process.

6. Since a corporation is an artificial entity, it cannot be personally served with process, and can only be served through an officer or agent of the company, or someone designated by law to receive service of process in its behalf.

7. Where the officer or agent upon whom service of process in an action against a corporation may be made is specified in the statute or rule of practice, service must be made upon that identical officer or agent.

8. To authorize a judgment against a person who has not appeared and answered or otherwise submitted himself to the jurisdiction of the court, there must not only be service on such person, but also legal returns to such service. It is not the returns to the service of the writ that confers jurisdiction, but rather, it is the service of the writ that confers jurisdiction. The returns is merely evidence by which the court is informed that the defendant has been served.

9. An employee of a firm or company, not having the power of attorney from said firm or company, is not the representative of the firm or company upon whom legal precess can be served with effect.

10. The filing of articles of incorporation in the Ministry of Foreign Affairs makes that document a public document which any one may obtain copy, or make research of.

11. A writ of error may be granted when an inferior court has denied a party litigant his day in court.

12. No court has authority to render judgment against a party who has not been served with process to bring him under its jurisdiction, or who has not voluntarily appeared, and any judgment rendered contrary to this rule is void as to the party against whom it is rendered.

13. A day in court is defined as the time appointed for one where rights are called judicially in question, or liable to be affected by judicial action, to appear in court and be heard in his own behalf.

14. Upon an application for a default judgment, the applicant must file proof of service of the complaint and summons, and give proof of the facts constituting the claim, the default, and the amount due.

N. Oswald Tweh appeared for plaintiff-in-error. Toye C. Barnard appeared for defendants-in-error.

MR. JUSTICE SMALLWOOD delivered the opinion of the Court.

On the 4th day of October, A. D 1993, the plaintiff-in-error filed a ten-count petition for a writ of error before the Chambers Justice, his Honour Boima K. Morris.

A single Justice cannot hear and determine error proceedings under our present civil procedure law. Civil Procedure Law, Rev. Code 1: 16.24(2); Zormelo v. Dennis, [1970] LRSC 54; 20 LLR 117, 118-119 (1970). Justice Morris then forwarded the proceedings to the Supreme Court sitting en banc.

The plaintiff-in-error alleges in count one of the petition that it is an insurance corporation existing and operating under the laws of Liberia with Mr. Imad Hage as its president, and Counsellor N. Oswald Tweh, Esq. of Monrovia Liberia as its registered agent. Copy of the articles of incorporation is attached. It is alleged in count 2 of the petition that neither the writ of summons nor the re-summons in the action of damages for breach of contract was served on the plaintiff-in-error, nor its registered agent, Counsellor N. Oswald Tweh.

The plaintiff-in-error further alleged, in count three of the petition that its registered agent, in person of Counsellor N. Oswald Tweh, was within the Republic of Liberia at the time an attempt was made by co-defendant-in-error to serve the writ of summons on an employee of plaintiff-in-error, Fatu Gittens-White. The plaintiff-in-error also contended, in count four of the petition, that since it had not been served with the writ of summons or notified of the hearing of the action of damages for breach of contract filed by the Co-defendant-in-error Hejazi Corporation, it did not have its day in court, as provided by law; hence it could not defend itself in the action of damages. Also in count 5 of the petition, the plaintiff-in-error contends that it not having been served with the writ of summons in keeping with law, the trial court did not acquire jurisdiction over it, hence the ruling of the respondent judge against the plaintiff-in-error has no effect.

Plaintiff-in-error contends in count 6 of the petition that the ruling and final judgment was rendered on August 20, 1993 in its absence, hence it was not afforded the opportunity to take exceptions to the final judgment and announce an appeal to the Supreme Court of Liberia, and therefore error is the proper remedy available to it.

The defendants-in-error filed a sixteen-count returns and we shall give consideration to counts 1, 3, 4, 5, 7, 8, 9, 10, 11, 12,13 and 14 which we have concluded to be a sufficient traverse to the petition for the writ of error.

The defendants-in-error contend in count 1 of the returns that the plaintiff in error did not comply with the requirement of the statute in that it failed to pay accrued cost which is a prerequisite to the issuance of the writ. A copy of the bill of cost issued by the trial court at the close of the case is attached to the returns in support of the contention in count one hereof. It is contended in count 4 of the returns that there is no evidence that Counsellor N. Oswald Tweh was appointed as resident agent for the corporation because there is no publication either at the office of the corporation or in any news organ, hence there is no notice to policy holders of the corporation of Counsellor Tweh’s appointment as resident agent.

The defendants-in-error contend in count 5 that the trial court acquired jurisdiction over plaintiff in error as provided by the statute because the writ of summons, together with a copy of the complaint, was served on Mrs. Fatu Gittens-White, Marketing and Public Relations Manager of the plaintiff-in-error. It is also stated that the said Fatu Gittens-White, in August 1991, published an announcement on behalf of the Liberian American Insurance Corporation in the New Citizens Media, which announcement she signed as marketing and public relations manager. The defendants-in-error contend that with that publication the whole public was officially placed on notice that Mrs. Fatu Gittens-White is an officer of the corporation upon whom process may be served, especially so when Pan African Plaza had been close down since 1990. It was Fatu Gittens-White who informed the public of the new offices of the corporation located at the West African Enterprises, where she directed all of the corporation’s clients to go if they had questions regarding their policies.

In count 7 the defendants-in-error further contend that if for any reason Mrs. Fatu Gittens White felt that she was not authorized to receive process for the corporation she should have directed the sheriff to the appropriate agent or officer of the corporation but not to refuse to accept the writ and copy of the complaint.

The defendants-in-error contend in count 8 of the returns that Super Cold Service instituted an action of damages for breach of contract against the very plaintiff-in-error, Liberian American Insurance Corporation, and the writ of summons was served on the same Fatu Gittens-White who accepted the summons and signed for it. The corporation answered that complaint without any objection that Fatu Gittens-White had no authority to sign for and receive the summons on behalf of the corporation. This allegation is supported by copies of the writ of summons, complaint and answer. On the face of the summons is the name Fatu Gittens-White and the sheriff’s returns on the back of the summons, indicating that the writ was served on Fatu Gittens-White. It is contended in count 9 of the returns that the allegation that Counsellor N. Oswald Tweh is the resident agent is not supported by the records because there was no publication or notice of the agency of Counsellor Tweh, except that his name appears in the “purported” Articles of Incorporation.

In counts 10, 11, and 12 of the returns, the defendants-in-error contend that the writ of summons together with copy of the complaint was served on the plaintiff-in-error but Mrs. Fatu Gittens-White, Marketing and Public Relations Manager, who was at the offices of the plaintiff-in-error refused to receive the writ and complaint. It is contended that the service upon her of the process brought the corporation under the jurisdiction of the court and therefore the plaintiff-in-error had an opportunity to defend itself in the action of damages filed against it. It is also said that the failure of the plaintiff-in-error to file an answer or its formal appearance in the case does not obligate the trial court to send an assignment to the plaintiff-in-error, since it had not appeared. It is further contended that the court acquired jurisdiction over the plaintiff-in-error when the writ of summons was served on Mrs. Fatu Gittens-White, Marketing and Public Relations Manager. She is authorized to answer questions concerning policies of policy holders and sits in the office of the corporation at the West African Enterprises, Inc. which was designated by the corporation in the publication. There is no other office of the Liberian American Corporation since the closure of the previous office at the Pan African Plaza. It is also alleged that after the rendition of the final judgment in the action of damages, the bill of cost against the defendant, now plaintiffin-error, was served on Mrs. Fatu Gittens-White at the West African Enterprises Office. Again she refused to accept a copy of the bill of cost. This allegation is supported by the sheriff’s returns on the back of the bill of cost.

It is alleged in count 13 of the returns that plaintiff-in- error is a domestic corporation, with office in the city of Monrovia, with a duly authorized officer on whom the writ of summons was served. Therefore it was not necessary to have the summons served by publication.

In count 14 of the returns, it is contended that there were no irregularities in the conduct of the trial of this case and the plaintiff-in-error was in no way deprived of its right to defend itself, but the plaintiff-in-error waived its right by its failure to file an answer or to appear, hence it is guilty of laches which error cannot cure.

The plaintiff-in-error filed an eight-count answering affidavit to constitute a traversal of the returns of the defendant-in-error filed to the petition for a writ of error. The use of answering affidavit was first introduced into our legal practice in the Revised Rules of the Supreme Court of Liberia, January Term, A. D. 1915 under Rule II, part I — Motions. The first act of Rules and Regulations for the Republic of Liberia edited by the late Chief Justice, James A. Toliver in July 1912 did not provide for the use of answering affidavit. In fact, the rules of July 1912 were limited to the circuit courts.

That Rule is today Rule II, Part I, of the Revised Rules of the Supreme Court and it provides today, as it did in 1915, seventy eight years ago, that if the facts in a motion are not admitted the opposite party shall file answering affidavit and there shall also be a replying affidavit if necessary. Revised Rules of the Supreme Court of Liberia, 2 LLR 661, 662 (1915), and as further Amended and Revised in 1972, Supreme Court Rules, pages 36-37.

Mr. Justice Simpson, in delivering the opinion of the Court in the case Kontar v. Mouwaffak, said that “it is a settled law that the function and score of an answering affidavit are limited by law to the refutation of the factual allegations in the returns and that the petition may not use an answering affidavit for traversal of issues of law raised in the returns.” [1966] LRSC 18; 17 LLR 259, 265 (1966). The word “affidavit” itself signifies that its use is restricted to the judicial introduction of matters of fact and not questions of law. Id. We have therefore not given any consideration to the answering affidavit filed by plaintiff-in-error in these error proceedings for two reasons: (1) the proceedings in which it is filed is not a motion but rather a petition and (2) because it raises all issues of law and not facts.

Let us now turn our attention to the petition and returns. There is but one basic issue presented in the case: Whether or not the writ of error should be granted; that issue is, whether or not the writ of summons in the action of damages for breach of contract was served on the plaintiff-in-error as the law provides.? We shall, however, deal with certain of the other issues presented in the case by the parties in passing.

We now address the issue that the plaintiff-in-error did not comply with the statute which requires as a prerequisite to the issuance of the writ of error, the person applying for the writ shall be required to pay all accrued costs. The plaintiff-in-error, in traversing this issue in its argument, contended that the accrued cost in an amount of $55.00 was prepared by the clerk of the civil law court and presented to the sheriff for payment of the amount to counsel for defendant-in-error who refused to accept same. A copy of the accrued cost as prepared by the clerk together with the sheriffs returns thereon is found in the records of the case.

There is a marked difference between accrued costs and a bill of costs. Accrued cast is expenses incurred by one of the parties to an action while the action is still pending, where one of the parties decides to withdraw and amend a pleading or to file a petition for certiorari or writ of error. Whereas a bill of costs is an itemized statement of the total amount of costs in the action after the action is terminated.

The returns of the sheriff is proof of service, even though it has been attacked. Also the returns to the bill of accrued costs in this case has indicated that the accrued costs was tendered to counsel for defendants-in-error who refused to sign for and receive same. We hold that the accrued costs was indeed paid by the plaintiff-in-error to the defendants-in-error and therefore, the requirement of the statute having been met, the proceedings is properly before us.

The caption of the action of damages for breach of contract filed in the court below has as defendants: Liberian American Insurance Corporation by and thru its resident agent, Mr. Imad Hage, and its marketing and public relations manager, Fatu Gittens-White, of Monrovia, Liberia. Therefore, it is clear here that this is a domestic corporation.

Under our Civil Procedure Law, personal service of a summons within Liberia upon a corporation is performed by reading and personally delivering the summons within Liberia to an officer or managing or general agent or to any other agent authorized by appointment or by statute to receive service of process. Civil Procedure Law, Rev. Code 1: 3.38.

According to the facts and the records in the case, the writ of summons was served on Mrs. Fatu Gittens-White, marketing and public relations manager of the plaintiff-in-error and one of the defendants named in the writ. In keeping with the returns of the sheriff, the said co-defendant, Fatu Gittens- White, refused to accept a copy of the writ of summons, as well as copy of the attached complaint. For the benefit of this opinion, we deem it necessary to quote herein the entire returns of the sheriff as follows:

SHERIFF RETURNS
“On the 4th day of January, A. D. 1993 Gbono Mulbah, Bailiff, Civil Law Court, served the within writ of summons on the defendant, Fatu Gittens-White, marketing and public relations manager of the Liberian American Insurance Corporation at the hour of 3:00 p.m. “She refused to accept a copy of the writ of summons and a copy of the attached complaint, stating that “I will not accept it and stop following me around.” I told her it was a writ of summons from the Civil Law Court with attached complaint against LIC. Again she said “I am not taking it”. I now make this my official returns to the clerk of this honourable court as to the form and manner of service.” Dated this 4th day of January A. D. 1993.

Signed:
DEPUTY SHERIFF MO. CO.

Because of these returns of the sheriff, the trial judge decided to, and did order the issuance of the writ of summons for a second service on the plaintiff-in-error. Again co-defendant Fatu Gittens-White was the one located and served with the writ of resummons. She again refused to accept the copy of the resummons with the attached complaint. This second writ was served by two officers of the court. For the benefit of this opinion, we hereunder quote the returns of the sheriff:

SHERIFF RETURNS

On the 13th day of January A. D. 1993, Bailiff Joseph B. Tulay and William M. Varney all of the Civil Law Court, Sixth Judicial Circuit served the writ of summons on defendant Fatu Gittens-White, public relations manager of Liberian American Insurance Corporation, as representative which she refused the said writ of summons and said to us that “next time you people should not bring any paper from your Temple of Justice, because I don’t want to see you people from the Temple of Justice with any paper in my office any more. I have no dealing with anybody at your court”. For which I now submit this to the office of the clerk of this court as my official returns. Dated this 13thday of January A. D 1993.”

Signed :
DEPUTY SHERIFF MO. CO.

Under these returns is a footnote which reads “Also your Honour the defendant Fatu Gittens-White threw away the writ of summons and said again that “never you bring any writ to my office”.

The plaintiff-in-error is contending that it did not have its day in court because Fatu Gittens-White on which the writ was served is not an officer or managing agent of the corporation, but rather she is a mere employee of the corporation who has no authority to accept process on its behalf. The plaintiff-in-error further contends that the writ of summons was not properly served on it to have brought it under the jurisdiction of the court hence the judgment rendered against the corporation is not binding on the said corporation.

The defendants-in-error, on the other hand, are contending that the plaintiff-in-error was properly served with the writ of summons and therefore was legally brought under the jurisdiction of the court. They also contend that Fatu Gittens-White, besides being a party-defendant to the action of damages for breach of contract, is Manager of the Marketing and Public Relations branch of the corporation, and that she made a publication on behalf of the corporation informing the public that the corporation had settled all claims for war and related risks, directed clients to the new location of the corporation, publicly provided information for the corporation’s customers, and directed that customers with questions concerning their policies should forward such questions to her. Further, that in June of 1992 when a similar action was instituted against the very Liberian American Insurance Corporation by another policy holder, Super Cold Service, the very co-defendant Fatu Gittens-White, Marketing and Public Relations Manager of Liberian American Insurance Corporation was the one on whom that writ was served and she accepted the copy of the summons with the attached complaint. At that time the plaintiff-in- error did not contend in the answer nor file a special appearance raising the question of jurisdiction because the writ was served on “a mere employee”

Our Associations Law provides that every Corporation shall have a president, secretary, and a treasurer as officers of the corporation who shall be appointed by a board of directors in the manner directed by the articles of incorporation. Associations Law, Rev. Code 5: 6.15. It is also provides under the common law that generally the officers of a corporation are enumerated in its charter or bylaws, and include the President, Vice President, Secretary, Treasurer and such other officers, agents and factors as the corporation shall authorize for that purpose. 2 Fletcher Cyclopedia of Corporation, Permanent Edition, ch. 11, § 269, page 28.

We have not been able to find any record in this case indicating that officers of this corporation were appointed or elected and their names. It is, however, stated in Article 4 of the Articles of Incorporation that Counsellor N. Oswald Tweh is the registered agent of the corporation.

Personal service of process means the actual or direct delivery of the summons or a copy thereof to the person to whom it is directed or to someone who is authorized to received it in his behalf. 42 AM JUR. Section 48 page 40.

A corporation, since it is an artificial entity, cannot be personally served with process, and can be served only through an officer or agent of the company, or someone designated by law to receive service of process, in his behalf.

Where the officer or agent upon whom service of process in an action against a corporation may be made is specified in the statute or rule of practice, service must be made upon that identical officer or agent, otherwise the service is insufficient. For the purpose of receiving such service and being bound by it, the corporation is identified with such agent or officer. The power to receive and act on such service, so far as to make it known to the corporation, it is thus vested in such officer or agent. 19AM. JUR. 2nd Section 2194 page 105-106.

There are two writs in this case: One a writ of summons and the other a writ of re-summons. According to the records made by the trial judge on Monday, August 9, 1993, sheet five, after the returns of the sheriff to the writ of summons to the effect that Mrs. Fatu Gittens-White, Marketing and Public Relations Manager of the plaintiff-in-error, had refused to accept from the bailiff the said writ of summons, the counsel for plaintiff, now co-defendant-in-error, applied to the court for a writ of resummons. The writ of re-summons was issued and served and again, for the second time, the said Fatu Gittens-White, Marketing and Public Relations Manager, refused to accept a copy of the writ and the attached complaint.

One is left to wonder why did the counsel request the court to issue a writ of re-summons if the summons had been properly served? The only answer we have been able to come up with is that he was not satisfied with the returns of the sheriff to the writ of summons. If his dissatisfaction stems from the refusal of the person on whom the writ is alleged to have been served to accept copies of the writ of summons and the attached complaint, then what is it about the writ or re-summons that gave him satisfaction with the returns, when it too alleged that the Marketing and Public Relations Manager, Fatu Gittens-White, again refused to accept copy of the writ of re-summons with the copy of the complaint attached.

The returns of process is essential to an effectual service thereof. As a general rule, to authorize a judgment against a person who has not appeared and answered or otherwise submitted himself to the jurisdiction of the court, there must be not only service on such person, but also a legal return of such service. It is not the returns however, but the service of the writ that gives jurisdiction. The returns is merely evidence by which the court is informed that defendant has been served. 62 AM JUR 2d, Service of Process, § 164, page 946.

Service of process means the delivery or other communication of a summons or a copy thereof to the opposite party, in such a manner as legally to charge him with notice of receiving it, and is ordinarily indispensable to enable the court to take jurisdiction and proceed to judgment. 62 AM JUR 2d, Service of Process, § 27 page 811.

“When it is stated that a manager or general manager of a Corporation has or has not power to do a certain thing, it is often important to determine just what kind of a manager he was. The officer or agent to whom the management of the business is intrusted may be called the manager, general manager, general agent, etc., or he may be the president, treasurer, secretary, etc, etc. But his title, while it may raise a presumption as to the extent of his authority, does not necessarily determine his authority. The extent of his implied authority depends upon the duty with which he is intrusted A person bearing the title of general manager, and appointed to such position is not necessarily a director or other officer. He may or may not be a corporate officer as distinguished from an Agent.” 2 Fletcher Cyclopedia of Corporation (Per. Ed.), ch. 11, § 670, page 870.

Mr. Justice Barclay, speaking for the Court in the case Holscher v. Townsend, [1941] LRSC 18; 7 LLR 293 (1941), held that “the chief clerk or other employees of a firm or company, not holding the power of attorney from said firm or company, is not the representative of a firm upon whom legal process can be served with effect.” He took his support from 4 Thompson, Corporation,(3rd ed), §3107, pp. 1915-1917, in which it is stated:

“A subordinate agent or a mere clerk or bookkeeper is not a person on whom process can be served as a representative of the corporation in the absence of a statute authorizing such service … So service on a mere bookkeeper … or watchman is insufficient … the corporation may appoint an agent or attorney with power to accept service of process and where this is done, jurisdiction will be confirmed by service on such agent or Attorney.” Holscher v. Townsend, [1941] LRSC 18; 7 LLR 293, 297-298 (1941).

In 1974, Justice Azango speaking for this Court in the case, Jallah v. Parker Paint Company, Inc., said: “To constitute valid service, a corporation must be served with process through an officer or agent empowered to receive service in its behalf.” [1974] LRSC 33; 23 LLR 133 (1974).

Again, in 1977, this Court held in the case Wither v. Sawyer that “a corporation which is a party to an action sues or is sued in its corporate’s name, and its members are not in any legal sense parties to the action. Although service of process must necessarily be upon its officers or agent or upon some person designated by statute to receive process.” [1977] LRSC 47; 26 LLR 247, 252-253 (1977).

The defendants-in-error have contended that Counsellor N. Oswald Tweh’s appointment as registered agent was not published either at the office of the corporation or in any news organ, hence, there is no notice to policy holders of the corporation of Counsellor Tweh’s appointment. An inspection of the Articles of Incorporation of Liberian American Insurance Corporation, which was filed with the Ministry of Foreign Affairs in accordance with Section 1.4 of the Business Corporation Act on March 2, 1990, shows that Counsellor N. Oswald Tweh is named in the said document as registered agent of the Liberian American Insurance Corporation.

The filing of the Articles of Incorporation in the Ministry of Foreign Affairs makes that document a public document and anyone may obtain a copy thereof, or make research of it. It cannot therefore be said that there is no notice to the public of Counsellor Tweh’s appointment as registered agent of the corporation.

The defendants-in-error also contend that Fatu Gittens-White was served with copy of the summons and complaint in another action filed against Liberian American Insurance Corporation by Super Cold Service. She accepted the process and there was no objection made by the corporation raised in its answer stating that she was not authorized to accept process on behalf of the corporation.

In the file of this case are two (2) letters written by counsels of both parties. The letters are marked exhibits 17 and 18 respectively. Exhibits 17 is dated July 21 1992, addressed to the said Fatu Gittens-White by the plaintiff-in-error counsel, Toye C. Barnard, reaffirming his client’s demand for compensation for the loss sustained to its storeroom, and warehouses and apartments. Exhibit 18 is the reply to exhibit 17 signed by plaintiff-in-error’s counsel, Counsellor Pearl Bull, informing the counsel that Fatu Gittens-White does not handle claims and that she heads only one branch of the corporation with separate functions. This letter is dated July 28, 1992 also informing him that Mr. Imad Hage, resident agent of the corporation, who traveled out of the country would be returning to Liberia early August 1992. The action was not filed until December 31, 1992. This was sufficient notice to defendants-in-error that Fatu Gittens-White did not have authority over the entire operation of the corporation and therefore could not accept process on behalf of the corporation in order to bind it.

Let us now see whether error will lie from the facts and circumstances in this case. Error is defined under our statute as follows:

“A party against whom judgment has been taken who has for good reason failed to make a timely announcement of the taking of an appeal from such judgment may within six months after its rendition file with the Clerk of the Supreme Court an application for leave for a review by the Supreme Court by Writ of Error. Rev. Code 1: 16.24 (1).

A writ of error will issue only to 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 appeal without lashes on his part. [1977] LRSC 33; 26 LLR 170 (1977). Also a writ of error may be granted when an inferior tribunal has denied to a party litigant his day in court. [1978] LRSC 27; 27 LLR 91(1978).

No court has authority to render judgment against a party who has not been served with process to bring him under its jurisdiction or who had not voluntarily appeared, and any judgment rendered contrary to this rule is void as to the party against whom it is rendered. Day in court is defined as the time appointed for one whose rights are called judicially in question, or liable to be affected by judicial action to appear in court and be heard in his own behalf. This phrase as generally used, means not so much the time appointed for the hearing as the opportunity to present one’s claim or right in a proper forensic hearing before a competent tribunal. A litigant has his day in court when he has been duly cited to appear and has been afforded an opportunity to appear and be heard. Gooding and A-Z Supermarket v. Wright and the Intestate of the Late Thomas T. Toomey, 37 LLR 15 (1992), Supreme Court Opinions, March Term, 1992.

In keeping with the tendency of the courts to require causes of action to be tried upon the merits, judgments by default are regarded as peculiarly within the rule conferring authority on courts to open, correct, or vacate their own judgments. Although the setting aside of such a judgment is ordinarily within the discretion of the court, in a case of reasonable doubt such discretion is usually exercised in favor of granting the application so as to permit a determination of the controversy upon the merits.

“A motion to vacate a default judgment, and particularly when timely filed, is to be treated to best serve the ends of justice and preserve to a litigant his day in court. It is said that courts must, in a case, upon such a motion, yield the procedural exactitude to the more basic rules of fundamental fairness.” 46 AM JUR 2d, Judgments, § 686, pages 837-838.

Judges are dispensers of justice and, in doing so, we are required to interpret the law so as to permit of a fair determination of the controversy upon the merits to the end of justice. In a developing country as ours foreign investors, and investors in general, look upon the courts to protect their investment. W e give protection by rendering fair decisions and not to render a decision against the rich and wealthy investors simply because they have the money to pay. To do so would undermine the economy of the country.

The jury awarded a total of Seven Hundred Fifty Thousand ($750,000.00) Dollars to the plaintiff in the action of damages. This is a large amount and therefore each party should be given every opportunity to present its side of the case.

The law does not take kindly to default judgments and therefore stringent laws have been enacted requiring proof of service of summons and complaint. Under our civil law it is provided that “On application for judgment by default, the applicant shall file proof of service of the summons and the complaint, and give proof of the facts constituting the claim, the default, and the amount due.” Rev. Code 1: 42.6.

It is also provided;

“In the absence of an appearance in the case, jurisdiction to enter judgment against a defaulting defendant rests upon the fact of service of process, and as a general rule a judgment by default may be taken only where it appears that process has been duly served upon the defendant. It has accordingly been declared that courts, before rendering judgment by default, should inquire whether such service has been made.

Some cases hold that as a foundation for the entry of a judgment by default the record it self must at the time of the entry of the judgment by default, affirmatively show that process has been duly served. Under this rule, even where a constructive service of process is permitted, some process must nevertheless appear on the face of the record to sustain the validity of the judgment”. 47 Am JUR 2nd section 1174 at pages 197-198.

In view of the facts, circumstances, and law controlling as cited in this opinion, we hold that Fatu Gittens-White, not being an officer, manager or general agent or agent appointed by statute to receive process, was not clothed with authority to receive process on behalf of the Liberian American Insurance Corporation. The plaintiff-in-error did not have its day in court and therefore error would lie. The default judgment of the lower court is reversed and the case remanded to the court below with instruction that the parties replead commencing with the complaint. The Clerk of this Court is instructed to send a mandate to the judge presiding over the Sixth Judicial Circuit Court of Montserrado County, commanding him to give effect to this decision. Cost of these proceeding disallowed. And it is so ordered.

Petition granted