THE CATHOLIC DIOCESE OF CAPE PALMAS, by and thru its Bishop, B. NYEMA DALIEH, or its Authorized Agent, Plaintiff-In-Error, v. HIS HONOUR JOSEPH S. B. GEDEH, SR., Presiding Judge, February Term, Fourth Judicial Circuit, Maryland County, and THE NATIONAL SOCIAL SECURITY AND WELFARE CORPORATION, represented by its Director-General, S. L. FLEMING, Defendants-In-Error.
PETITION FOR A WRIT OF ERROR AGAINST THE CIRCUIT COURT FOR THE SIXTH
JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: November 5, 2001. Decided: December 20, 2001.
1. A default judgment may be entered against a defendant at the instance of the plaintiff if the defendant has failed to appear, plead, or proceed to trial, or if the court orders a default for any failure to proceed.
2. The fact that counsel for a defendant walks out of court during the trial of a case does not preclude the trial court from notifying the defendant of the date on which the trial is continued, or to afford him the opportunity to cross-examine the witnesses of the plaintiff.
3. Once the trial court adjourns to another date a case in which default judgment has been entered without an examination of the evidence and the determi-nation of the case, the defendant is entitled to additional notices of assignment for the continuation of the hearing of the case.
4. Although a party has failed to appear or plead, the trial court has the duty to have him notified of the trial proceedings, as a last and final chance to appear in the matter.
5. An appeal shall be taken from a judgment at the time of rendition of the said judgment by an oral announcement by the party if he represents himself, or by the attorney representing him, or if the attorney is not present, then by a lawyer deputized or appointed by the court for that purpose.
6. A party against whom judgment has been entered, 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 review by the Supreme Court by writ of error.
7. No party against whom a judgment is rendered can be said to have failed to make a timely announcement of an appeal who has not been duly informed by the inferior court of the date for the rendition of the said judgment.
8. A writ of error will be granted when an inferior tribunal has denied a litigant his day in court.
9. The failure of a trial court to notify a defendant of the date for rendition of its final judgment is good evidence of the denial of the defendant’s day in court and constitutes good reason for the granting of a writ of error.
The plaintiff-in-error was sued by the co-defendant. National Social Security and Welfare Corporation, in the Civil Law Court for the Sixth Judicial Court, Montserrado County, for damages. The co-defendant in error claimed that funds which it had collected from its local branches had been deposited into a club which was established and operated by the plaintiff-in-error, and that the plaintiff-in-error was liable for those funds. The plaintiff-in-error denied establishing or controlling the club in which the co-defendant-in-error had deposited its funds. At the call of the case for trial, the plaintiff-in-error made a motion for the dismissal of the case. The motion was resisted and denied. A second motion, this time for continuation of the case, was also denied by the court.
Whereupon, counsel for plaintiff-in-error is alleged to have abruptly left the court, precipitating a motion for default judgment by the co-defendant-in-error. The motion was granted and the case proceeded with in the absence of the plaintiff-in-error and its counsel. The co-defendant-in-error was allowed to begin deposing of its witnesses but as all of the witnesses were not deposed on the day the default judgment was granted, the case was continued on several occasions thereafter. The trial court subsequently entered final judgment following the conclusion of the co-defendant evidence. No notices of assignment were issued and served on the plaintiff-in-error for the continuation of the case to another date or for the rendition of the final judgment by the court, and no counsel was deputized by the court to take the judgment for the plaintiff-in-error.
The Supreme Court held that the action of the trial court in continuing the case on subsequent dates following the grant-ing of the motion for default judgment, was erroneous, and further, that it deprived the plaintiff-in-error of its day in court. The Court held that in any case where the hearing is continued to another day, the trial court has a duty to notify the parties of the date to which the case is continued. The Court agreed with the defendants-in-error that the action of counsel for the plaintiff-in-error in abruptly departing the court was a disrespect to the court, for which he should have been held in contempt. It, however, rejected their contention that the action was tantamount to an abandonment of the plaintiff-in-error’s case and that it was therefore not entitled to further notice regarding the continuance of the case. The Court held further that the failure to appoint or deputize counsel to take the final judgment of the court for the plaintiff-in-error was error and an appropriate basis for granting a writ of error.
Francis S. Korkpor, Sr. appeared for the plaintiff-in-error. F. Musah Dean, Jr. appeared for the defendants-in-error.
MR. JUSTICE SACKOR delivered the opinion of the Court.
Co-defendant-in-error herein, the National Social Security and Welfare Corporation, instituted an action of damages for wrong on March 30, 2000 against the Catholic Diocese of Cape Palmas in the Fourth Judicial Circuit Court, Maryland County. The co-defendant-in-error corporation, as plaintiff in the lower court, alleged in its complaint that it had collected from its local branches the sums of US$150.00 and 5,682,856 CFA Francs which it had deposited with the Help Yourself Savings Club between August 1998 and May 1999. The co-defendant-in-error also alleged in the complaint that the Help Yourself Savings Club was established by and operated under the auspices, control, patronage, and approval of the Catholic Diocese of Cape Palmas, Maryland County.
The Plaintiff-in-error Diocese, defendant in the lower court, filed an answer in which it denied establishing and operating the Help Yourself Savings Club, disclaimed liability, and refuted the claim of the co-defendant-in-error corporation. A reply was filed and pleadings in this case rested. The trial judge disposed of the law issues and subsequently ruled the case to a jury trial. During the November Term, A. D. 2000 of the court, the plaintiff-in-error filed a motion for continuance of the case to the February Term, A. D. 2001, due to the death of Bishop Sekey of the Catholic Diocese of Liberia. The motion was resisted, heard and granted.
The records in this case show that a notice of assignment was issued on February 26, 2001 for the hearing of the case on February 28, 2001. The notice was served and returned served. Thereafter, when the trial of the case commenced, counsel for the plaintiff-in-error filed an application praying the trial court to dismiss the case, stating as the ground that the empanelled jurors were illegally selected. Counsel for the co-defendant-in-error corporation interposed objections to the application, asserting that the jurors were legally selected. The trial judge denied the plaintiff-in-error’s application. Whereupon, the plaintiff-in-error’s counsel made another application, this time requesting the trial judge for leave of court due to his ill health. This application was also resisted and was denied by the trial judge. Counsel for the plaintiff-in-error alleged that he then left the courtroom to attend to nature, that at the time of his departure the court was in recess, and that he did not return to the court on February 28, 2001 due to abdominal pains. The defendants-in-error, however, denied that counsel for the plaintiff-in-error had left the courtroom because of health reasons.
In any event, following the departure counsel for the plaintiff-in-error, counsel for the co-defendant-in-error corporation prayed the trial court for a default judgment, alleging that counsel for plaintiff-in-error had abandoned the case. The trial judge granted the default judgment and permitted the co-defendant-in-error corporation to establish and prove its case. The records indicate that the co-defendant-in-error’s first witness, in the person of Wle Nyenati, testified on February 28, 2001, after which the trial judge suspended the hearing of the case until March 1, 2001. We also observe from the records that the trial judge did not issue any additional notice(s) of assignment for continuation of the hearing of the case on March 1, and March 5, 2001. On March 9, 2001, the judge rendered a final judgment affirming the verdict of the trial jury in which it awarded the co-defendant-in-error corporation the sum of 5,682,856 CFA Francs and US$150.00 as special damages and US$150,000.00 as general damages. The records are devoid of any evidence that the trial court ever issued and served the plaintiff-in-error with a notice of assignment for the rendition of the final judgment. The records also do not indicate that the trial judge deputized another lawyer to take the final judgment on behalf of the plaintiff-in-error.
It is growing out of the foregoing that the Plaintiff-in-error Diocese filed a seventeen-count petition for a writ of error for appellate review of the final judgment of the trial judge. In count 14 of the petition, the plaintiff-in-error contended that at least a second notice of assignment should have been issued since the plaintiff-in-error was not absent when the case was called for trial but had left the courtroom due to the acute illness of its counsel after the counsel’s request for continuance was denied. In count 15 of the petition, the plaintiff-in-error contended that it did not note exceptions to the judgment or announce an appeal therefrom because there was no notice of assignment issued for the rendition of the said judgment.
In resisting the petition, the defendants-in-error filed a thirty-two count returns. We deem counts 20, 23 and 30 to be relevant for the determination of the case. In count 20 of the returns, the defendants-in-error contended that the trial judge had rightly granted a default judgment since counsel for the plaintiff-in-error was deemed to have abandoned the case when, on February 28, 2001, without any excuse form the court, he abruptly left the courtroom. In count 23 of the returns, the defendants-in-error maintained that counsel for plaintiff-in-error having walked out of court, he was not entitled to any additional notice(s) of assignment. In count 30 of the returns, the defendants-in-error asserted that only a party against whom a judgment has been rendered and who has failed, for good reason, to announce an appeal is entitled to the writ of error. The defendants-in-error argued further that the conduct of counsel for plaintiff-in-error in walking out of the court cannot constitute one of the good reasons provided for by the statute.
The facts and circumstances in the case present two salient issues for the disposition of the case. They are:
1. Whether or not the plaintiff-in-error had its day in court?
2. Whether or not a writ of error can be granted under the facts and circumstances in this case?
Our statute on default judgment states that “if a defendant has failed to appear, plead, or proceed to trial, or if the court orders a default for any failure to proceed, the plaintiff may seek a default judgment against him.” Civil Procedure Law, Rev. Code 1:42.1.
The records before us show that counsel for plaintiff-in-error appeared before the trial court for the hearing of the case on February 28, 2001 and made two (2) separate applications which were denied before he left the courtroom, allegedly due to abdominal pains. We are in full agreement with the contention of the defendants-in-error that the abrupt departure from the court of counsel for the plaintiff-in-error during the trial of the case was a gross disrespect to the trial judge’s order denying his request for leave of court. Thus, it was the duty of the trial judge to have Counselor Greenfield punished for his unprofessional misconduct and the disrespect shown to the court.
However, we observed from the records in the case that the trial court did not notify the plaintiff-in-error to be present for the hearing of the case on March 1 and 5, 2001. The fact that counsel for plaintiff-in-error had walked out of court on February 28, 2001 did not preclude the trial court from notifying the plaintiff-in-error of the trial of the case on March 1, 2001, and March 5, 2001, respectively, provide it with the opportunity to cross-examine the witnesses of the co-defendant-in-error corporation. In other words, once the trial court had adjoined the case on February 28, 2001 without the examination of evidence and the determination of the case, the plaintiff-in-error was entitled to be served with additional notice(s) of assignment for the continuation of the hearing of the case.
In the case Liberia Agricultural Company (LAC) v. Reeves and Tarr, [1990] LRSC 21; 36 LLR 867 (1989), decided on January 9, 1990, during the October Term, A. D. 1989, of the Supreme Court, Mr. Chief Justice Gbalazeh, speaking for the Court, said:
“Despite the fact that a party has failed to appear or plead, the trial court has the duty to have him notified of the trial proceeding, even as a last or final chance of appearing in the matter.”
We therefore disagree with the argument of counsel for the defendants-in-error that the plaintiff-in-error was not entitled to additional notice(s) since its counsel had walked out of the court on February 28, 2001. The plaintiff-in-error should have indeed been duly notified of the trial proceedings, scheduled for March 1 and 5, 2001. Furthermore, our appeal statute expressly provides that “an appeal shall be taken at the time of rendition of judgment by oral announcement in open court. Such announcement may be by the party if he represents himself or by the attorney representing him, or, if such attorney is not present, by a deputy appointed by the court for this purpose.” Civil Procedure Law, Rev. Code 1:51.6.
It is also clear from the certified records in the case that the plaintiff-in-error was not notified to appear for the rendition of the court’s final judgment on March 9, 2000, and that it therefore could not have announced an appeal from the said final judgment rendered by the court. Thus, we hold that the trial court denied the plaintiff-in-error of its day in court and the statutory right of appeal.
We shall now decide the second issue, which is whether a writ of error can be granted under the facts and circumstances in this case? We hold that the writ can indeed be granted, and we find support therefore in our Civil Procedure Law. That law provides:
“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 review by the Supreme Court by writ of error.” Ibid., §16.24.
We hold further that no party against whom a judgment is rendered can be said to have failed to make a timely announcement of an appeal, who has not been duly informed by an inferior court of the rendition of the judgment, ruling, decree, or order. This Court has consistently held that “a writ or error will be granted when an inferior tribunal has denied a litigant his day in court.” Jallah et al. v. Sheriff[1976] LRSC 44; , 25 LLR 226 (1976), Syl. 1, text at 227; Teewia v. Urey, [1978] LRSC 27; 27 LLR 91 (1978), Syl. 2. In the Jallah and Teewia cases this Honorable Court granted the writ of error because of the failure of the trial court to issue and serve notices of assignment on the plaintiffs-in-error for the rendition of the court’s final judgment. This Court held in those cases that the acts of the trial court were tantamount to a denial of the petitioners of their day in court. We therefore hold and reiterate that the failure of the trial court to notify the plaintiff-in-error of the time of the rendition of its final judgment on March 9, 2001 is good evidence of the denial of the plaintiff-in-error’s of its day in court, and therefore constitutes a good reason for granting the writ of error prayed for by the plaintiff-in-error.
Wherefore, and in view of the foregoing, it is the holding of this Court that the petition for the writ of error should be and the same is hereby granted. The final judgment of the trial court is hereby reversed and the case is remanded for a new trial. The Clerk of this Court is hereby ordered to send a mandate to the court below informing the judge presiding therein to resume jurisdiction over the case and hear the same on its merits. Costs of these proceedings are ruled against the defendants-in-error. And it is hereby so ordered.
Petition granted.