LIBERIA ELECTRICITY CORPORATION (LEC), by and thru its Managing Director, SAMUEL N. BURNETT, JR., Appellant, v. JOSIAH TAMBA, Appellee.
APPEAL FORM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: April 18, 1989. Decided: July 14, 1989.
1. At the time of service of a responsive pleading, a party may move for judgment dismissing one or more claims for relief asserted against him in a complaint or counterclaim, on ground that the court has no jurisdiction of the subject matter of the action.
2. Failure to seek remedial process from the Justice presiding in Chambers will be deemed a waiver of objection to a trial court’s jurisdictional irregularity.
3. The statute of limitations is an affirmative defense and a party who relies upon it as a defense must plead same affirmatively and not hypothetically.
4. Documentary evidence, which are material to issues of fact raised in the pleadings and which are received and marked by the court should be presented to the jury.
5. Mere technicalities which do not affect the merits of the cause are not favored by the Supreme Court as a basis for deciding cases on appeal.
Josiah Tamba, the plaintiff/appellee in this proceeding, was employed by the defendant, the Liberia Electricity Corporation (LEC) in March 1980 as a linesman. On February 10, 1982, he was ordered to proceed to Careysburg along with the foreman and other employees of the defendant to replace a broken light pole, which was causing hazard to the inhabitants of Careysburg District, Montserrado County. After the broken pole had been replaced, the transformer installed and the wires had been run, the appellee was ordered by the foreman to climb the pole so as to make the necessary connections before turning on the power. While in the process of making the connections, the power from the Paynesville station was turned on and appellee’s two hands and his left foot were seriously burnt and he was suspended on the line totally unconscious.
Due to the injuries sustained by appellee, his leg was amputated and he was subsequently awarded the sum of $10,000.00 and promised the equivalent of ten (10) years’ salary so as to enable him to readjust his life. Later, the appellant refused, to honor its promise, thereby making life more difficult for appellee.
Based on these facts and circumstances, appellee instituted this action of damages for wrong against the defendant. During the trial, the appellant contended that while the facts as laid in the complaint were true, yet it had done everything humanly possible in order to rehabilitate appellee, including sending him abroad and paying all his medical expenses to the tune of $61,687.00 and that appellee was also paid the sum of $10,000.00 under the group insurance policy. The appellant also contended that appellee was barred by the statute of limitations from instituting the instant cause of action because more than four years had lapsed since the cause of action accrued to appellee. In addition, the appellant asserted that the court lacks jurisdiction over the subject matter because the injuries for which appellee was seeking damages were sustained during the course of appellee’s employment with appellant and, therefore, the said injuries being occupational in nature, the Labor Practices Law provided adequate remedy. Therefore, appellant argued, appellee should have addressed his claim to the Ministry of Labour, which has original jurisdiction over all such matters.
The court overruled and dismissed appellant’s motion and ruled the case to trial by jury which, after listening to all of the facts and the charge of the trial judge, returned a verdict of liable against the defendant and awarded plaintiff the sum of $300,000.00 damages. Upon this verdict, the court entered a final judgment following the denial of a motion for new trial. From said judgment of the trial court, the appellant appealed to the Supreme Court for a final determination of the matter.
While the appeal was pending before the Supreme Court, both appellant and appellee filed separate motions to dismiss the entire action for want of jurisdiction of the trial court over the subject matter and to dismiss the appeal for defective appeal bond, respectively. Both motions were overruled by the Court. The judgment was reversed and case remanded for a new trial, commencing with the disposition of the law issues, because of gross irregularities committed by the trial judge in (1) rescinding his prior ruling, and (2) admitting instruments pleaded, received, marked and confirmed by court and yet refusing for the said instruments to go before the trial jury to determine their credibility.
The Steele, Steele and Morris Law Firm appeared for appellant. J. Emmanuel R. Berry appeared for appellee.
MR. JUSTICE AZANGO delivered the opinion of the Court.
The plaintiff/appellee, Josiah Tamba, who was employed by the Defendant, Liberia Electricity Corporation (LEC) in March, 1980 as a linesman was ordered to proceed to Careysburg on February, 10, 1982 along with Mr. Sunday Speare, Foreman and other employees of the Corporation to replace a broken light pole which was causing hazard to the inhabitants of Careysburg District, Montserrado County. After the broken pole had been replaced, the transformer installed and the wires had been run, the plaintiff, Josiah Tamba was ordered by the Foreman to climb the pole so as to make the necessary connections before turning on the power. While in the process of making the connection, the power from the Paynesville station was turned on. As a consequence, appellee’s two (2) hands and his left foot were seriously burnt, he was suspended on the line and was rendered totally unconscious. Because of the injuries sustained by appellee, his leg was amputated. Appellee was thereafter awarded the sum of Ten Thousand ($10,000.00) Dollars and promised by appellant payment which was the equivalent of ten (10) years salary to enable him to re-adjust his life. However, appellant later refused to honor its promise, thus making life more difficult for appellee.
In view of the foregoing facts and circumstances, appellee instituted an action of damages against Appellant LEC. At the trial, LEC contended that while the facts stated supra were true, it (LEC) had done everything humanly possible to rehabilitate Appellee Josiah Tamba. Among the many things it said it had done to rehabilitate the appellee included sending him abroad and paying all medical expenses in the total sum of Sixty One Thousand, Six Hundred Eighty-Seven ($61,687.00) Dollars and paying him the sum of Ten Thousand ($10,000.00) Dollars under the Group Insurance Policy.
Appellant LEC further contended that appellee was barred by the statute of limitations from instituting the instant cause of action against appellant because the incident had occurred on February 10, 1982 and appellee had filed his action on February 27, 1987, five (5) years and seventeen (17) days following the incident. Appellant argued that the statute of limitations provides that “an action for damages for injuries to the person and all actions for which no period of limitation is specifically provided shall be commenced within three (3) years of the time the right to relief accrued. Therefore, it said, appellee had forfeited his right to commence the current action. The appellant argued further that the Court lacked jurisdiction of the subject matter in that the injuries for which appellee was seeking damages were sustained during the course of appellee’s employment with appellant and that the said injuries, being occupational in nature, the Labor Practices Law of Liberia provided the only appropriate remedy. Accordingly, it said, plaintiff should have addressed his claim to the Ministry of Labour which, under the statute, had original jurisdiction of all such matters.
In his ruling on the jurisdictional issue raised, the trial judge held that “the facts and the circumstances in the cause are analogous to the facts and circumstances of the Keilee Lebbie case as cited herein above, and therefore this court maintains that it has jurisdiction over the subject suit as well as the parties; for the plaintiff in this case has instituted this action praying the court to award him general damages for the personal injury he sustained at the instance of the defendant, and whether or not he recovered industrial or occupational injury from the defendant through the Ministry of Labour that will not bar him from recovery against the defendant in a suit of damages in the Civil Law Court as was done by Keilee Lebbie against LMC.” To this ruling appellant excepted and gave notice that it will take advantage of the statute. The case was later ruled to a jury trial. After the presentation of evidence, the making of legal arguments by counsel for appellee and appellant, and the submission of the case, the jurors returned with a verdict awarding appellee the sum of Three Hundred Thousand Dollars ($300,000.00). To this verdict, the appellant excepted and gave notice that it will take advantage of the statute made and provided. Thereafter, the trial judge adjudged in his final judgment that “the verdict of the empaneled jury being in conformity with the evidence adduced at the trial, is hereby confirmed and affirmed, and the defendant is adjudged liable for the amount of Three Hundred Thousand Dollars ($300,000.00) awarded by the empaneled jury and the defendant is ordered to pay same.” From these rulings, the defendant appealed to the Honourable Supreme Court of Liberia on a seven (7) count bill of exceptions, which we hereby quote for the benefit of this opinion:
“1. That Your Honour erred when you admitted into evidence defendant’s documentary evidence testified to, identified and marked by court “D/1” thru “D/8”, and then rescinded your ruling on November 23, 1987 on the ground that said documents were not confirmed. To this second ruling, defendant then and there excepted as said documents should have gone to the trial jury who alone should give credit and effect to “D/1 thru “D/8”. Defendant submits that Your Honour committed reversible error to the prejudice of defendant.
2. That your Honour also erred when you denied admission into evidence court’s mark “D/3” which is an employee handbook, which was offered by defendant because according to Your Honour, same was not considered as being relevant, thereby invading the province of the jury who are to determine the weight and credibility of the evidence, which ruling was prejudicial to defendant. And to which ruling defendant then and there excepted.
3. That during the trial, the defendant propounded the following questions to witness Josiah Tamba. ‘Mr. witness, are you the same Josiah Tamba who received settlement from the National Social Security & Welfare Corporation?’ Plaintiff objected on the grounds: (1) not the best evidence, the National Social Security would be; (2) the question is irrelevant. Your Honour sustained plaintiffs objection on those grounds without considering the fact that a witness may be cross examined as to interest, motive and prejudice, and as to all matters touching the cause or likely to discredit him. To which ruling, defendant then and there excepted.
4. That Your Honour further erred when you sustained plaintiffs objection to a question put to witness Folokula S. Varpilah on the direct examination as follows: “Mr. Witness, do you know whether Mr. Tamba held a personal or private insurance with the American Life Insurance under which he was covered?” On the grounds: (1) Not the best evidence, Mr. Josiah Tamba or the Insurance Company would be; (2) irrelevant and immaterial, does not prove damages of injuries; and (3) cross-examination of one’s own witness without considering the fact that the party producing a witness has the right to solicit by question the issue which the witness may have omitted in his general testimony, thereby prejudicing defendant’s interest. And to which ruling defendant then and there excepted.
5.That Your Honor also erred when during the trial, the following question was put to witness Abraham Kromah on cross-examination: `A witness is to testify only to matters within his own certain knowledge and not to what was told him by another party or what he allegedly read in some paper. Are you aware of these facts?’ Defendant objected to this question on the grounds: `(1) soliciting an expert opinion, the witness not being an expert; (2) usurping the function of the court.’ But Your Honour overruled defendant’s said objection and allowed the question even though the witness is a layman in law and not expected to know the rules of evidence, which said ruling was prejudicial to defendant. And to which ruling defendant then and there excepted.
6.That Your Honour again erred when you allowed the following question propounded to witness Abraham Kromah on the cross-examination to be answered over the objection of defendant on the grounds: (1) not within the res gestae; (2) irrelevant and immaterial. The question propounded was: “When did payroll verification by the personnel section become effective in LEC?'” The said question was clearly outside the issue of damages at bar and the said ruling was prejudicial to defendant. And to which ruling defendant then and there excepted.
7. That Your Honour also erred when you denied defendant’s motion for a new trial on the 16th day of December, A. D. 1987 and rendered final judgment confirming the verdict of the petty jury to which defendant took exceptions and announced an appeal to the Honourable Supreme Court of Liberia.
The appellee filed a motion praying this Honourable Court to dismiss appellant’s appeal on grounds that appellant’s appeal bond was materially defective in that Mutual Assurance of Africa Inc. which stood as surety for appellant, represented itself to be a freeholder and householder within the Republic of Liberia but failed, as required by law, to attach a revenue certificate indicating that the surety was a freeholder and householder and that said surety owned the property offered as security. Appellee further contended that the affidavit of surety attached to the bond was also materially defective in that it did not meet the requirements of the law.
In resisting the motion to dismiss the appeal, the appellant argued that the motion filed by the appellee should be denied and the case be ordered proceeded with for the promotion of transparent justice to all concerned.
In addition to the resistance, the appellant on the 14t h day of October, A. D. 1988, filed a two (2) count motion praying the Honourable Supreme Court to dismiss the entire proceeding on the following grounds to wit:
“1. Because defendant avers and says that the within named plaintiff, Josiah Tamba, sustained the occupational injuries during his normal course of duty, as a linesman in the employment of Liberia Electricity Corporation (LEC). Consequently, plaintiff should have filed an action of workman’s compensation with the Ministry of Labor which is vested with the authority by the Legislature to hear and determine industrial disputes between employers and employees, as well as workman’s compensation.
2. And also because the plaintiff/appellee has no legal capacity to sue, in that plaintiff failed to bring this cause of action within the statutory period of three (3) years, the period within which damages for injuries to the person should be brought to court. As from the time the right to relief accrues in the instant case, the plaintiff sustained injuries on the job on February 10, 1982, and should have filed this action on or before February 10, 1985, but instead plaintiff elected not to file his complaint until February 27, 1987, almost four years and seventeen (17) days following the incident, in violation of the statute. Defendant/ appellant therefore prays that the action of damages filed by the plaintiff/appellant be dismissed with costs against the appellee.
In counter argument, the appellee contended in count five (5) that the Supreme Court was the wrong forum in which the issues contained in the motion could be raised. Appellee further contended that the said issue should have been raised in the trial court, same being an issue for a pretrial motion before the trial court and not ground to dismiss an action in the Supreme Court. From the contentions of the appellant and appellee, the issue which has claimed the attention of this Honourable Court is whether the Supreme Court of Liberia is the proper forum to raise the issues as contained in the motion to dismiss the complaint?
We are of the opinion that the answer to this question is in the negative. According to our Civil Procedure Law, Rev. Code 1: 11.2, “at the time of service of his responsive pleading, a party may move for judgment dismissing one or more claim for relief asserted against him in a complaint or counter claim on any of the following grounds: That the court has no jurisdiction of the subject matter of the action… ” In the instant case, the issue of jurisdiction, as contained in the motion, should have been raised in the court below but was never raised by the appellant. Instead, the appellant elected to raise the said issue before this Honourable Court, contrary to our statute. Moreover, this Court held in the case Vamply of Liberia, Inc. v. Kandakai et al.[1973] LRSC 55; , 22 LLR 241 (1973), that the “failure to seek remedial process from the Justice presiding in Chambers will be deemed a waiver of objection to a trial court’s jurisdictional irregularity”. This means that even if the issue of jurisdiction was raised by the appellant in the lower court and the trial judge had insisted on exercising jurisdiction in the instant case, the appellant was under the legal duty to have applied for a remedial process from the Justice in Chambers, which he failed to do. This indicates that the issue of jurisdiction as contained in the motion had been waived and therefore cannot be raised before this Honourable Court. In short, the Honourable Supreme Court is not the proper forum to raise the issues contained in the motion to dismiss. Therefore, the count one (1) of the motion to dismiss the action is hereby overruled and count five (5) of appellee’s resistance is sustained.
Turning to count two (2) of the appellant’s motion to dismiss the entire proceedings, the appellant avers that “plaintiff/appellee has no capacity to sue, in that plaintiff failed to bring this cause of action within the statutory period of three (3) years, the period within which damages for injuries to the person should be brought to court . . . .”
In counter argument, the appellee contended that the statute of limitations is an affirmative defense and a party who relies upon it as a defense must plead the same affirmatively, but that in violation of this law, appellant had elected to hypothetically plead the statute of limitations. Appellee therefore prayed that the said contention should be overruled.
It appears to us that the issue raised by both appellant and appellee’s contentions is whether the statute of limitations was correctly pleaded by appellant, and, therefore appellee was barred from instituting this action? From the review of the reply and answer as well as the motion to dismiss filed by appellant, we have observed that the statute of limitations was never pleaded correctly; that is, it was pleaded hypothetically. The statute of limitations, being an affirmative plea, our law requires that in order for one to benefit from the plea of this statute, the party must first admit to the truth of the allegation. Bryant et. al. v. Harmon and Oost Afrikaansche Compagnie, [1956] LRSC 18; 12 LLR 330 (1956).
Contrary to this holding of the Supreme Court, the appellant in the instant case contended in the reply and answer and count one (1) of the motion to dismiss the action that while it is true that the appellee sustained injuries, yet said injuries were sustained during his normal course of duty and that therefore, he could only be compensated under the Workmen’s Compensation Act. The contention of appellant further asserts that only the Ministry of Labour has jurisdiction over the instant case and not the Civil Law Court for the Sixth Judicial Circuit. At this point, one can evidently see that appellant is saying two (2) different things. Therefore, we are of the opinion that appellant did not plead the statute of limitations correctly, and thus cannot benefit from same. Consequently, the motion filed by appellant to dismiss the entire cause of action should be and the same is hereby denied.
Turning to the bill of exceptions, appellant submitted in count one (1) that the trial judge erred when he admitted into evidence appellant’s documentary evidence which were testified to, identified and marked by court “D/1” thru “D/8” and thereafter rescinded his ruling on November 28, 1987 on the ground that said documents were not confirmed. This issue is whether the trial judge committed a reversible error when he refused to admit into evidence documents that were testified to and marked by the court. The answer is yes because, according to the opinion of this Honourable Court, documentary evidence which are material to issues of facts raised in the pleadings, and which are received and marked by the court, should be presented to the jury. Walker v. Morris, [1963] LRSC 42; 15 LLR 424 (1963).
Moreover, this Court held in the case Levin v Juvico Supermarket, [1974] LRSC 46; 23 LLR 201 (1974), that mere technicalities which do not affect the merits of the cause are not favored by the Supreme Court as a basis for deciding cases on appeal. From the above quoted case law, it is clear that the November 28, 1987 ruling of the trial judge was erroneous and hence reversible because the said ruling denying the admission into evidence and submission of the documentary evidence to the jury was contrary to law and was based on mere technicalities.
In his ruling rescinding the earlier ruling admitting the documents, the trial judge said: “We rescind our ruling regarding the admission into evidence documents marked by court D/1, D/2, D/3, D/5, D/6, D/7, and D/8 because in the process of indicating on the face of these documents a mark of admission, we observed that they were not confirmed in keeping with law and practice and even the Holy Bible as found in Matthew 18. Therefore, because of that omission, we cannot order their admission. They are therefore denied admission.” These documents should have been submitted to the jury, which had been empowered legally to determine the weight of the evidence.
After a careful perusal of the entire records of the trial in the instant case, we hereby hold that the two motions to dismiss are hereby denied to all their intents and purposes. The ruling of the trial judge is hereby reversed and the entire cause of action is remanded for a new trial, commencing with the disposition of the law issues. The trial judge is further mandated to submit to the jury those documents which were testified to, marked by the court, and admitted into evidence but were never submitted to jury, merely because the judge rescinded his ruling. And it is hereby so ordered.
Judgment reversed; motions denied.