NYAKWE WUO, Plaintiff-In-Error, v. A. BENJAMIN WARDSWORTH, Assigned Circuit Judge, November Term, A. D. 1978, Eighth Judicial Circuit, Nimba County, and JOSEPH T. WASHINGTON, Defendants-In-Error.

APPEAL FROM THE RULING OF THE CHAMBERS JUSTICE GRANTING THE PETITION FOR A WRIT OF ERROR.

Heard: March 11, 1982. Decided: July 8, 1982.

1. An attorney may not compromise, abandon or withdraw from his representation of the client’s case without the knowledge or consent of that client.
2. The right to withdraw a case once filed is not absolute. It is within the province of the court to determine, considering the general circumstance of the case, whether or not to grant it.
3. A notice of withdrawal of a case filed by an attorney without the consent of the client is illegal and cannot be binding on the client.
4. Speedy trial as required by law means responsible and cautious speed, avoiding deprivation of all protected rights.
5. Speedy trial, when pursued in violation of the rights of any party, is damaging to a fair and just trial as an unusual delay is suppressive of the rights and grievance of a party. Both actions are provocative and incoherent with the concept of justice.
6. In cases involving summary proceedings to recover possession of real property, a defendant must be allowed a ten-day period to prepare and file an answer as well as to put in his appearance.
7. Summary proceedings are any proceedings in which the court determines from the pleadings that there is no real issue of fact for the jury. A court, however, cannot determine that a proceeding is summary in nature, unless it had perused the entire pleadings of the parties.
8. It is the facts in issue as brought to the attention of the court by the litigants that determine whether or not a suit is a summary proceeding and not the parties to the suit.
9. A court cannot proceed with a hearing of a controversy concerning title to real property without a jury and grant default judgment where the defendant has not been given adequate notice and opportunity to appear, plead, and proceed with the trial.
10. A notice of assignment must reasonably allow a party sufficient time to appear at the trial, and where it gives no reasonable time to a party litigant, it constitutes an erosion of justice and a denial of the right to a fair trial.
11. A writing of itself is evidence of nothing, and therefore is not, unless accompanied by proof of some sort, admissible as evidence.

12. The preponderance of evidence may be established by a single witness against a greater number of witnesses who testify to the contrary depending upon the nature of the case.

Growing out of an action of summary ejectment instituted by defendant-in-error, the plaintiff-in error who lived in a distant town from the court was served with a copy of a complaint and a writ of summons demanding his appearance for hearing at 9:00 a.m. the following day. When he failed to appear, the court proceeded with the trial and, upon the lone testimony by co-defend-ant-in-error; the court rendered judgment against him and forthwith issued a writ of possession. Plaintiff-in-error petitioned the Justice in Chambers for a writ of error to stay the execution of the judgment. The Justice in Chambers granted the writ and ordered the trial court to resume jurisdiction and hear the case de novo. From this ruling, defendants-in-error appealed to the Full Bench. Subsequently, counsel for Co-defendant-in-error, Joseph T. Washington, filed a notice of withdrawal of the appeal, without first obtaining the consent of his client. Co-defendant-in-error Washington objected to the withdrawal and insisted that the appeal be heard.

The Supreme Court sustained the objections of the co-defendants-in-error, and denied the withdrawal, holding that the withdrawal of the appeal by the counsel without the consent of his client, the co-defendant-in-error, was not binding on him. Thereafter, the Supreme Court heard the appeal, affirmed the ruling of the Chambers Justice, and granted the writ of error, holding, among other things, that the issuance of the writ of summons demanding that the plaintiff-in-error appear for trial in less than ten days was erroneous, provocative, and incoherent with the concept of justice.

Bona G. Sagbeh appeared for petitioner-in-error. S. Edward Carlor appeared for defendants-in-error.

MR JUSTICE MABANDE delivered the opinion of the Court

In the Eight Judicial Circuit Court, Nimba County, Joseph T. Washington instituted an action of summary ejectment against Nyakwe Wuo. He alleged ownership to a parcel of land by virtue of a warranty deed, and that the defendant entered, occupied and built dwelling houses on the land by virtue of an oral agreement to buy the land but he later refused to pay the purchase price or to lease the premises. On January 4, 1979, a writ of summons with copy of the complaint was served on defendant who lived in a distant town from Sanniquellie, demanding his appearance on the following day, January 5, 1979, for hearing of the case at 9: o’clock a.m. Trial of the case began on January 5th, 1979, when defendant had not yet arrived from Ganta. After the lone testimony of plaintiff, the court awarded him general damages in the amount of Three Thousand ($3,000.00) dollars, and forthwith issued in his favor a writ of possession. Defendant then petitioned the Justice in Chambers for a writ of error to stay the execution of judgment.

Upon hearing the error proceedings, the Chambers Justice ruled granting the writ and ordering the trial court to resume jurisdiction and hear the case de novo. From this ruling, defendants-in-error appealed to this court, but before the appeal could be considered, Co-defendant-in-error Washington’s lawyer filed a notice of withdrawal of the appeal. Subsequently, co-defendant-in-error, Joseph T. Washington, personally filed an objection to his lawyer’s notice of withdrawal alleging that his counsel acted contrary to his knowledge and authority and he insisted that his appeal be heard by the Supreme Court.
We have determined that the objection to the notice of withdrawal as well as the appeal be consolidated as both involve related questions of law and facts. This would entail speedy trial for the protection of the rights of both litigants. Umarco Maritime et Commerciale Corporation (UMARCO) v. Dennis, [1976] LRSC 64; 25 LLR 267 (1976).

The questions for consideration by us and important for a determination of this controversy are whether a counsel may withdraw a case without the consent of his client; whether, in a summary ejectment case, a court of record may dispose with a party’s right to file an answer; whether the doctrine of speedy trial entitles a court to proceed with any speed; and whether the testimony of a single witness may constitute a preponderance of evidence.

Counsel for plaintiff-in-error opened his argument by contending that a notice of withdrawal filed by a counsel of record for a party constitutes a withdrawal of his case from court. He argued further that an objection to a withdrawal of a case filed by a former counsel is in violation of the rule of law that a party may not be allowed to disclaim his own action to the injury of another. Counsel for defendant-in-error contended that a litigant may properly object to any act done by his counsel contrary to his interest and his advice. He contended also that any action by a counsel contrary to the advice of his client violates his professional oath of ethics and does not bind the client who upon notice immediately acts to the contrary with full information to his adversary and court.

On the engagement of the services of a counsel, he begins the representation of the client in so far as an expert exercise of his legal knowledge enables him. In all other acts in connection with a client’s case, he is subject to the constant advice and instructions of his client. During the attorney-client relationship, neither party can do anything damaging to the call of duty. The counsel, in the expert exercise of his duty in handling a case, determines both the law and facts of the case that may support his client’s contention. He may also advise him and recommend the need to defend or withdraw from further pursuit of the case. If the client refuses to pay heed to the lawyer’s advice, the council may advise his client of his withdrawal from further representation of the client, but an attorney may not compromise, abandon or withdraw from his representation of the client’s case without the knowledge or consent of that client. It is, however, unethical and damaging to the morality of the legal profession and the counsel himself to advise his client to pursue a worthless or a groundless suit only to prove that he has done his work for judicial determination.

When a counsel files a notice of withdrawal of a case, it is within the province of the court to determine, considering the general circumstance of the case for which the notice of withdrawal is filed, whether or not to grant it. The right to withdrawal a case once filed is not absolute. The withdrawal notice of the case was filed without the consent and knowledge of the client. It was therefore illegally done and is not binding.

Counsel for plaintiff-in-error argued that the trial court committed reversible error by the issuance of the summons and complaint and having them served on plaintiff-in-error on the 4th day of January 1979, and hearing the case on the next day without waiting for the usual ten days’ period allowed by statute for a defendant in a court of record to file his answer or put in an appearance. The counsel further argued that the limitation of the ten day period to file an answer or appear in court to a single day by a court of record, is a violation of the Civil Procedure Law, and therefore, the trial and judgment be set aside for violating plaintiff-in-error’s right to due process of law.

In the absence of an express law to the contrary, the Civil Procedure Law in its entirety must govern all proceedings of all cases in all civil matters. Summary ejectment, when filed before a court of record, must be heard speedily but a court is not to adopt an unreasonable and irregular speed that violates the rights of litigants. Speedy trial, as required by law, means responsible and cautious speed avoiding deprivation of all protected rights. Speedy trial, when pursued with violation of the rights of any party, is as damaging to a fair and just trial as an unusual delay is suppressive of the rights and grievances of a party. Both act-ions are provocative and incoherent with the concept of justice. Even in cases involving summary proceedings to recover real property when the plaintiff’s complaint and summons are served on the adversary party, he should be allowed a ten-day period to prepare and file his answer as well as to put in his appearance.

Under our law, the service of an answer to a complaint served with a summons on a party, or a reply to an answer, should be made within ten days. This is binding on all courts of record. No court of record has right to limit this period to the detriment of a party. Civil Procedure Law, Rev. Code 1: 9.2.3.
When real property is the subject of any case before a court, the case should deserve the keen attention of the court. All rights of parties interested in a property should always demand the keen attention of the court. Title to land or other property determines the ability of a person to post bail in all judicial cases where bail is required of a party who cannot produce money. We are therefore of the opinion that the Chambers Justice correctly ruled that the trial judge proceeded erroneously with the hearing of the case when the party defendant had not been fully accorded all of his rights.

Counsel for plaintiff-in-error argued that the failure of the trial court to comply with the Civil Procedural Law in failing to notify plaintiff-in-error who had not been legally brought to court caused his absence from the trial and deprived him of his day in court.

Counsel for defendants-in-error, however, argued that a no-tice of assignment is not necessary in a summary ejectment case where the complaint and summons are served on the party de-fendant to appear on the following day. He argued also that the summons constituted notice to the party defendant of the charges levied against him and that it was also an assignment of the case. The counsel further argued that although, a party may reside at a different place from the seat of the court, a court is not required to sua sponte consider and allow any time to that party as a convenient period to prepare and proceed to court for hearing.

Summary proceeding is any proceeding in which the court determines from the pleadings that there is no real issue of fact for the jury. A court cannot determine that a proceeding is sum-mary in nature unless it had perused the entire pleadings of the parties.

It is not a party to a suit who determines it to be a summary proceeding, but the facts in issue brought to the attention of the court by the litigants.

The purpose of the adequacy of notice for a party in a case before a court of record is to enable him also to file a written pleading. This opportunity was not afforded the plaintiff-in-error. A court of record cannot proceed with the hearing of a controversy concerning title to real property without a jury or grant a default judgment to recover the real property where a party has not been given adequate opportunity to appear, plead and proceed with the trial. The Civil procedure states the following on the matter: “In an action to recover real property, a hearing is mandatory, and any question of fact shall be tried by a jury.” Civil Procedure Law, Rev. Code 1: 42.2.

The purpose of a notice of assignment is to inform the parties to a case of the pendency of the suit, and of the time and place of hearing. A notice of assignment must, however, reasonably allow a party sufficient time to appear at the trial. This is in consonant with the concept of speedy and fair trial. A notice of assignment that gives no reasonable time to a party to arrive at the trial in order to confront his adversary constitutes an erosion of justice and a denial of the right to a fair trial. The trial court in the instant case denied the party defendant of his right to due process of law. We therefore hold that the procedures adopted by the trial court were all tainted with gross violations of the procedural law and judicial ethics.

Counsel for plaintiff-in-error contended that the uncorroborated testimony of a single witness is insufficient to support a judgment. Counsel for co-defendant-in-error Washington did not disagree with this contention. He is therefore deemed to have conceded sub silentio.

The numerical system of proof was originally unknown to the English courts. It was the civil law of continental Europe which held that proof of a single witness to a fact was generally insufficient. It required a certain number of witnesses in certain cases. Legal history, however, reveals that during the reign of Emperor Constantine, the numerical system crept into Roman Law. Through the laws of Emperor Justinian, Roman Law adopted the rule that one witness alone was not sufficient to prove any issue. The ecclesiastical courts incorporated with modification the numerical system of proof.

The English system did not, however, hold that in all cases a single witness was not sufficient. It, however, developed the fundamental rule of numerical system by sustaining it with respect especially to criminal cases on basis of biblical rules. The ecclesiastical sanction sufficed in giving the numerical system a powerful and overbearing momentum. This system with all of its attending controversies was imported into this land by religion and our judicial historical past. Liberian Bank For Development and Investment v. Holder, [1981] LRSC 30; 29 LLR 310 (1981).

The oral testimony of a lone witness who is a party litigant may be self-serving; hence, corroboration of a witness has become a more pressing issue even in ex parte cases or when judgment by default is prayed for. Even where demonstrative evidence, real evidence or documentary evidence is relied upon to corroborate proof of authenticity of documents, the numerical system has generally been relied upon in Anglo-American courts.

“A writing of itself is evidence of nothing, and therefore is not, unless accompanied by proof of some sort, admissible as evidence.” 22 Iowa Law Review, 486 (1939).In Wallace v. Wallace, 66 ALR 587 (1979), Justice Matthew relying on the case McQuay v. McQuay, 81 Mont.311, held that “the preponderance of evidence may be established by a single witness against a greater number of witnesses who testify to the contrary.” We hold this view, but in certain cases the rule of the numerical system as generally applied in Anglo-American courts may be applicable.

We also hold that as the allegations of the complainant indicated a series of transactions involving the construction of dwelling houses, and the establishment of businesses on his land by the plaintiff-in-error, the testimony of the lone witness to all of those facts was insufficient evidence to prove his allegations. The testimony of the lone witness also grossly lacked any evidence to have persuaded any reasonable judge to have awarded judgment in the amount of three thousand dollars ($3,000.00). A judgment which is not supported by the facts or the law of the case is unenforceable.

We are therefore of the opinion that as plaintiff-in-error was deprived of his right to a fair and impartial trial, the judgment should be and is hereby reversed; the ruling of the Chambers Justice is hereby affirmed with modification that the parties re-plead. Costs are ruled against defendants-in-error.
The Clerk of this Court is hereby ordered to send a mandate to the judge presiding in the trial court to resume jurisdiction and proceed with the case according to this opinion. And it is so ordered.
Petition granted.