D. TOGAI, Appellant, v. WESLEY JOHNSON, Appellee.

APPEAL FROM THE PROVISIONAL MONTHLY AND PROBATE COURT, TERRITORY OF CAREYSBURG. Argued October 18, 1960. Decided December 16, 1960. 1. A witness must testify to facts within his certain knowledge; and no opportunity should be given him after qualification, and before he takes the stand, to listen to facts which he must advance without prompting. 2. A witness who, after having been qualified to testify on one side, remains in court and listens to the testimony of other witnesses on the same side, is thereby disqualified and his testimony should be excluded. Appellant, plaintiff below, previously appealed to the Supreme Court from a judgment in an action of debt, and the Supreme Court remanded the case for rehearing on a specified issue of fact upon which the lower court returned a judgment in favor of appellee. Appellant again appealed to the Supreme Court which reversed the judgment below and ordered that judgment be entered in favor of appellant, for the entire sum claimed. J. C. N. Howard for appellant. for appellee. Michael M. Johnson MR. JUSTICE PIERRE delivered the opinion of the Court. This case was remanded to the trial court upon a judgment handed down in the October, 1957, term of this Court for only one point to be clarified by the testimony of witnesses. The appellant herein, who was plaintiff in the court below, has alleged that the $290 sued for is a balance due on $30o which he had originally claimed from the defendant and against which amount the defendant had paid only $1o. The appellee, who was the defendant below, has denied that the amount originally claimed was $300, and has alleged that the $io which he 188 LIBERIAN LAW REPORTS , paid completely satisfied the claim of the plaintiff. Judgment was rendered for the defendant on September 2, 1958, and plaintiff has again appealed his case for our review. Upon hearing of this case in the court below in keeping with the order of this Court, the plaintiff was called upon to prove the one point for which the case was remanded : that is to say, whether Wesley Johnson, the defendant in the court below, had obligated himself to pay the $300, and whether the payment of $ io had been made in partial settlement, leaving a balance of $290 to be paid. The plaintiff took the stand and testified to that effect. His testimony was corroborated by witnesses J. Y. Allen and Joe Gbezon, the two persons shown to have been sent by the plaintiff to the defendant for the $300, and to whom defendant is alleged to have made the promise to pay the balance. Another witness who also testified to the same effect, as is shown from the record, was Albert Payne. When the defendant took the stand to testify in his own behalf, he denied promising to pay the $300, as had been testified to by the plaintiff and three other witnesses ; he admitted, however, that he did wrong the plaintiff, and also that he did pay $io for the said wrong. But what is very significant about the defendant’s testimony is that his lawyer religiously objected to every question put to him tending to elicit an answer to the one question the Supreme Court had ordered to be cleared up by witnesses. The following question was put to the defendant by the plaintiff’s counsel : “Please say whether the amount of $io you sent through your wife to plaintiff was in partial settlement of the $300.” When the above-quoted question was objected to, the trial court sustained the objection. Plaintiff’s counsel also put the following question to Momo, one of the defendant’s witnesses : “Tell the court whether the $ro that was paid to plain- LIBERIAN LAW REPORTS 189 tiff as you have already stated was in partial payment against the original amount of $300.” The trial court, sua sponte, disallowed the above-quoted question, although it had a direct bearing on the one point sought to be clarified. Plaintiff’s counsel also put the following question to Sammy, another one of the defendant’s witnesses : “Please say for the benefit of the court whether the $10 was paid in keeping with plaintiff’s demand for the sum of $300, leaving a balance of $290, and that this was made known expressly.” Again the defendant’s counsel objected and the trial court sustained the objection. There is another peculiarity about the defendant’s testimony; this time as it relates to his witnesses. He had testified to the fact that, when the men sent to him by the plaintiff arrived at his home, the discussion he had with them was in the presence of seven of his boys, namely : Momo, Molley, Sammy, Robert Johnson, Varney, A. K. Johnson, and Yarkparo. Yet, when the defendant was cross-examined as to whether these persons were present when the $3oo was discussed, not only did the defendant’s lawyer object to the question, but the court ruled that the question should not be answered; Hence, although each of these seven witnesses testified to knowledge of the $ to paid by defendant Johnson, none of them was allowed to say anything about the $30o which was one of the amounts in issue; and what is more, great effort was made by the defendant’s counsel to keep witnesses on both sides from mentioning anything about the $300. If such an amount had never been mentioned, what objection could anyone have to allowing the witnesses to state that they had no knowledge of it? It seems to us that allowing those seven witnesses to answer the question would have gone a long way to creating a doubt as to this amount ever having been mentioned. Another strange phase of the defendant’s testimony was 190 LIBERIAN LAW REPORTS argued before this bar and is urged in the appellant’s brief. The defendant was asked the following question whilst on the stand : “I presume that some of these witnesses who have sworn to testify on your behalf in this case are now present in this court room; not so?” Defendant’s counsel objected to the question, and the judge sustained the objection. On hearing before this Court, appellant’s counsel stated that although all of the witnesses were qualified together, when the defendant’s side of the case began their testimony, led by the defendant himself, his witnesses were allowed to remain in court and hear his entire testimony and examination. Appellant’s counsel stated that his objection to this procedure was disallowed by the trial court. Under the procedure known in our practice, witnesses qualified to testify on one side in a case are not allowed to remain before they have taken the stand. This separation before testimony is essential in the examination of all witnesses, whether in a criminal or civil trial. A witness must testify to facts within his certain knowledge, and no opportunity should be given him after qualification to listen to facts he might also have to testify to, but which he should advance without prompting. In other words, facts to which he is expected to testify, should not be paraded before him before he has testified as to what he knows or remembers of the facts in the case. A witness who, after having been qualified to testify on one side, remains in court and listens to the testimony of other witnesses on the same side, is thereby disqualified and his testimony should be excluded. This procedure of our practice should have all the more impressed itself upon the trial judge since, in this case, the witnesses concerned were servants of the defendant. It is inconceivable that such a procedure could have been regarded as being fair to both sides. We are not convinced that the quality of the evidence taken for the defendant in the court below carries enough LIBERIAN LAW REPORTS 191 weight to overturn the case made by the plaintiff that $300 was indeed claimed and that the defendant promised to pay it. According to the record this has been established by three witnesses who corroborated the testimony of the plaintiff. On the other hand, not only should the testimony of the defendant’s witnesses be taken with great caution, since they were all his servants, but their having remained in court during his testimony, and over the objection of plaintiff’s counsel, destroys the proper effect their testimony should have had on the case. Then there is the strange behavior of the defendant in seeking to avoid examination on the one point which was ordered to be clarified by testimony. We have not been able to understand why the defendant should not have wanted to answer questions bearing on the point we ordered clarified by witnesses ; that is to say, whether or not the $io paid by defendant was in complete settlement of the amount claimed as damages, or was it only part payment thereof. In view of the foregoing, we are of the considered opinion that it has been shown by sufficient evidence, and we have also come to the conclusion from the peculiar behavior of the defendant at the trial, that promise was made to pay the plaintiff $3oo, and that the Su) was only part payment. The judgment of the court below should therefore be, and the same is hereby reversed ; and we adjudge the appellee, defendant in the court below, to be liable to the appellant in the sum of $290, being the balance due on the $300 originally claimed. And it is so ordered. Reversed.