YARNKOON COFFAH, Petitioner, v. K. NIMLEY PYNE and R. F. D. SMALLWOOD, Resident Circuit Judge of the Circuit Court of the First Judicial Circuit, Montserrado County, Respondents.

CERTIORARI TO THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Argued November 1, 6, 1944. Decided December 15, 1944.

1. A trial judge did not commit error in refusing a request for a continuance in order that the attorney for the party making the request might attend a meeting of a fraternal organization.

2. In civil cases the defendant is required by law to specially plead in his answer every affirmative matter upon which he desires to rely.

3. If no answer is filed the defendant shall be understood to deny the truth of the allegations of fact and to rest on that defense only.

Plaintiff, now co-respondent, sued defendant, now petitioner, in ejectment. Upon judgment for plaintiff, defendant successfully applied to an Associate Justice of the Supreme Court for a writ of certiorari to the circuit court. Upon review of the case by certiorari, judgment affirmed.

Charles T. O. King for petitioner. B. G. Freeman for respondent.

MR. JUSTICE DAVID delivered the opinion of the Court.

Upon a writ of certiorari issued on February 24, 1941 from the Chambers of one of the Associate Justices of this Court to review the judgment in favor of plaintiff in an action of ejectment wherein said judgment was entered in the court below in the Circuit Court of the First Judicial Circuit, Montserrado County, by one K. Nimley Pyne, plaintiff, now one of the respondents, against Yarnkoon Coffah, defendant, now petitioner, the records in this case were brought up for the attention of this Court. The history of the case briefly stated is as follows:

On October 25, 1940 the plaintiff, K. Nimley Pyne, commenced an action of ejectment against Yarnkoon Coffah, defendant, for the recovery of a certain lot, onequarter of an acre of land, situated, lying, and being in the borough of Krutown on Water Street in the city of Monrovia. It would appear that in settlement of a debt the premises referred to above had by Mr. Pyne been turned over to one Mr. Bar-Rolle to rent out in order that he might recover the sum of eighteen pounds which he owed the said Mr. Bar-Rolle. The house on the premises was then rented out to Mr. Yarnkoon Coffah by Mr. Bar-Rolle who had assumed temporary possession of the premises. When the debt had been liquidated, the said Mr. Bar-Rolle in the presence of Mr. Pyne and of other witnesses duly informed Mr. Coffah that the property was not his but was owned by Mr. K. Nimely Pyne.

Upon being asked to surrender the premises, Mr. Coffah refused to leave and offered to purchase the premises, which request was denied. Having been in adverse possession of said property since May, 1940 and notwithstanding plaintiff’s repeated requests to defendant to vacate therefrom, defendant had refused to vacate and had persisted in unlawfully withholding the said premises, much to plaintiff’s inconvenience and damage. This suit was therefore instituted against defendant Coffah for the purpose of recovering the said property.

The defendant was duly summoned as per returns of the sheriff but from the records submitted to this Court he neither filed an appearance nor made an answer within the time prescribed by law, and when the case was called for trial he appeared in person and submitted to the jurisdiction of the court.

On January 15, 1941 this case among others was assigned for trial on the following day. At the call of the case the clerk of court, not finding the writ among the papers in the case, reported that it apparently had not been returned, whereupon counsel for plaintiff prayed for an order of court to issue a new writ. The case was then suspended until Tuesday, January 21, 1941, pending an investigation regarding the writ. It was at this stage of the action that Counsellor Charles T. O. King announced in open court that he would represent the defendant. When the case was called on January 21 in keeping with its assignment, it was brought to the attention of the court by the clerk that he had found the writ among other documents in his office and the court, upon inspection having found the writ to be in order and duly returned, called the case for trial. Even though Counsellor King had irregularly and at a late stage of the action announced that he would represent the defendant, instead of being present the following letter was received by the trial judge from Attorney Samuel C. M. Watkins:

“MONROVIA, January 21, 1941.
“HIS HONOUR R. F. D. SMALLWOOD,
RESIDENT CIRCUIT JUDGE,
FIRST JUDICIAL CIRCUIT,
MONROVIA.

“YOUR HONOUR,
“Counsellor Chas. T. O. King has directed me to inform you that he left the City on Monday the 20th instant to attend the Grand Lodge of U. B. F. and respectfully to request that you will kindly defer the hearing of any and all matters in which he is interested particularly those filed from this Office, he being the leading lawyer.

“Thanking Your Honour of the consideration and with sentiments of respect,

“Yours very truly,
King & Watkins
[Sgd.] SAM’L C. M. WATKINS
Attorney-at-law.”

Under the circumstances appearing, was Counsellor King regularly retained and authorized to represent defendant? And if so, announcing himself at that stage of the case, was the letter written from his office by his assistant after he had left town couched in the manner and tenor in which it appears sufficient legally for the court compulsorily to accept it and postpone the case?

The records show clearly that Counsellor King knew of the assignment of the case for the twenty-first instant, and that the case was to be taken up, no matter what phase of it, yet, notwithstanding that, he left town on the twentieth instant without first obtaining an excuse from the court or without filing a motion for continuance if he felt there were grounds for same. His act, besides in our opinion being irregular, was unquestionably designed to force the court to postpone the case indefinitely since Counsellor King left not knowing whether his request would be granted or not, especially so when the object of his leaving town was not sickness or an unexpected emergency over which he had no control. This Court will not lend a. hand to or favor such irregular and questionable practices.

In the absence of a regular motion for continuance and particularly since Counsellor Charles T. O. King was not unaware of the assignment of the case yet in furtherance of justice, his honor the trial judge again suspended the case until January 22 to enable the defendant to have his lawyer in court. The case was called on the day assigned and, discovering that the defendant was in court without a lawyer and that no motion for continuance had been filed in the office of the clerk, a jury was empanelled, the case was tried, and a verdict was returned in favor of the plaintiff. Counsel for defendant thereafter appeared in court and filed an application to set aside the verdict and award a new trial. Same was denied and a motion in arrest of judgment was then filed, resistance thereto was made and was sustained, and thereafter final judgment was entered by the court in favor of the plaintiff.

The petitioner seems to hinge his principal argument on the following grounds :

(1) That the writ was not duly served on defendant, now petitioner; and

(2) That, in spite of a request made by him to defer the matter because of his counsel’s temporary absence from the city, the case was tried.

Reviewing the first count of his contention, we have discovered that when the trial judge had observed that no appearance or answer had been filed in the case, the writ was called for and could not be found at the moment. The court therefore entered into a summary investigation of the whereabouts of the writ and upon query being made by the court it was disclosed that the writ had been served by bailiff Padmore during the absence of the sheriff who returned it to the late deputy sheriff to make the necessary returns. After diligent searching in the papers of the said deputy sheriff, the writ was discovered and reported. Hence the writ was duly served on defendant. In the second case, to have granted the request of the learned counsel to defer the trial upon such a flimsy excuse, namely, to attend a Grand Lodge meeting, especially when he did not state that there was any particular duty or function he had to perform, would in our opinion be establishing a precedent of far-reaching effect and would to a great extent hinder the speedy trial of the case. Under the circumstances the trial judge had no alternative but to proceed with the trial of the case.

There are two questions presented by this case. We must first determine when a defendant is summoned. Our law provides that:

“If the defendant, having been returned summoned on a writ of summons, shall not appear within four days after the time therein appointed for his appearance, or if after the return of a writ of re-summons the defendant shall not appear, within four days after the time therein appointed for his appearance, whatever the return may have been, it shall be the right of the plaintiff or plaintiffs, having first filed his or their complaint, unless the complaint be in ejectment to move for a writ of attachment, which shall be granted as herein after provided.” Stat. of Liberia (Old Blue Book) ch. II, § 7, 2 Hub. 1528.

Secondly, in civil cases, as is the one now under consideration, the defendant is required by law to specially plead in his answer every affirmative matter upon which he desires to rely. Hence even when an answer is regularly filed, defendant is not allowed to set up any defense not specially raised in one of the pleas in said answer. Stat. of Liberia (Old Blue Book) ch. V, § 8, 2 Hub. 1540; Rev. Stat. § 290.

Our statutes further provide that “if no answer is filed . . . the defendant shall be understood to deny the truth of the facts, and to rest on that defence only. . . .” Stat. of Liberia (Old Blue Book) ch. V, § 6, 2 Hub. 1540. Solomon v. Sherman, [1897] LRSC 10; 1 L.L.R. 317 (1897). Defendant filed no answer, and a remand of the case as suggested by our dissenting colleagues would only delay justice without any material benefit to petitioner except that of gaining time.

The plaintiff in the court below established legal title to the property, the subject of these proceedings, by exhibiting a deed to said property issued to him by the President of this Republic and, although the original had been misplaced, a certified copy thereof was issued from the State Department over the signature of the Honorable J. Edmund Jones, then Acting Secretary of State of Liberia. The instrument then is an evidence of the action of the Government upon the title of the claimant. The law provides that upon certain conditions citizens shall acquire title to a portion of the public lands, and that a deed thereafter shall issue which shall be probated and shall be registered according to law.

Since we have every reason to believe that the defendant, now petitioner, was given every opportunity to make his defense and as we are further convinced that an attempt was being made to unduly prolong the proceedings of a clear case against him, the Court is therefore of the opinion that the decision of the court below be affirmed with directions to said court to record and take such further proceedings as may be necessary to put plaintiff in the court below, now respondent, in possession of the said lot of land in dispute, with costs against defendant, now petitioner; and it is hereby so ordered.

Affirmed.

MR. JUSTICE SHANNON, dissenting.

This Court has repeatedly both enunciated and upheld the principle that where a trial is regular and the evidence clear the judgment should not be disturbed. Phillips v. Republic, [1934] LRSC 1; 4 L.L.R. 11, 15 (1934). The logical converse of this principle must necessarily and naturally be that where a trial is not regular or the evidence clear the judgment resulting therefrom ought not to stand.

It does not appear to me that the trial of this case in the court below was regular or the evidence unbiased, and the following facts taken from the records certified to us are the basis for my conclusions.

K. Nimley Pyne, plaintiff now co-respondent, instituted an action of ejectment against Yarnkoon Coffah, defendant now petitioner, on October 20, 1940 before the Circuit Court for the First Judicial Circuit, Montserrado County; and upon assignment and call of the case on January 15, 1941 before His Honor R. F. D. Smallwood, Resident Circuit Judge for said Circuit, the clerk of court informed said judge that there was no writ of summons in said matter found among the records and that from all indications said writ was lost. There was an investigation into the question of whether or not there was a writ served and returned in the matter so as to give the court jurisdiction over the defendant and, in the absence of affirmative proof that such service was performed and returns made, whether or not a new summons or subpoena should be issued. Yarnkoon Coffah, defendant, appears to have been then in court and when called upon to make a statement as to whether he was summoned in the matter, Counsellor Charles T. 0. King announced to the court that he was representing the said Yarnkoon Coffah. For some reasons not clearly shown by the records, the investigation was suspended until January 21, 1941, at which time the procedure to be adopted would be decided after the conclusion of the investigation that had been commenced.

On the day to which the case had been posponed, it appears as if Counsellor King did not attend court but requested his then junior partner, Attorney Samuel C. M. Watkins, to write to the court and ask for an excuse for him for a few days as he had to reach Brewerville to attend the session of the State Grand Lodge of the United Brothers of Friendship which was then convened. He was not asking for a continuance for a protracted period. This letter seems to have caused the following record to have been made by the judge as appears in the minutes of January 21, 1941 :

“The court says that it is the tendency of practising lawyers before the court to come to court and ask for assignments of causes and fail to follow them up and as such causes are assigned from time to time and not heard. It is decided that whenever a case is assigned and timely notice given the Counsellor or the parties concerned and they fail to appear, the court, in the case of the plaintiff, will have said case stricken from the docket and bill of costs made out against the plaintiff. And, in case of the defendant, the court will go on with the case as far as it is possible and determine same only with two (2) exceptions; 1) that either the lawyer for the plaintiff or the defendant is engaged in the Supreme Court and said fact is made known to the court. The court will then excuse said lawyer and continue the case. And in the second instance, a regular motion for continuance filed ; and in the absence of either one of the two exceptions referred to, the court will adhere to the ruling here given.”

From this ruling of His Honor Judge Smallwood it is readily deduced that a practice obtained whereby lawyers representing causes before that court would, because of good reasons, write and ask for postponement of their causes and that indulgence would be given and the causes postponed ; so that where it appears that some of the lawyers unduly took advantage of this privilege, it was within the province of the court to discipline them without causing inconvenience and irremediable wrong to the parties whose interest would be at stake.

What is more striking is that in face of this ruling which obviously denied the application of Counsellor King through Attorney Watkins for the postponement of the cause for a few days, the record is wanting in any proof that the petitioner, defendant below, was afforded an opportunity to secure another counsel. The situation became more muddled when on the following day, January 21, 1941, as the record discloses, upon resuming the case :

“Plaintiff was represented by Counsellor B. G. Freeman assisted by Attorney Jos. F. Dennis. Defendant not having filed an appearance was not represented by counsel but was in court in person. The following named persons composed the jury in the case. . . . They were duly qualified. Complaint read to the jury as well as the writ of summons and the returns of the Sheriff.”

It is seen then that the investigation that had been commenced to which reference has already been made was never resumed, so how the writ of summons, with the returns of the sheriff thereon, found its way into the records of the case for it to be read to the jury will forever remain an enigma ; and the statement set out in the opinion of the majority of my colleagues that the clerk informed the court that the writ of summons in question had been found appears not to be supported by the records of the case.

I mention the following as the possible injury to the petitioner, defendant below, in handling the matter in such a loose and careless way: an investigation commences on the point of the absence from the records of the writ of summons, the returns to which alone, barring defendant’s own voluntary submission, would give the court jurisdiction over his person. This investigation was suspended and never appears to have been resumed. Yet, upon the recalling of the case for trial and upon the empanelling of a jury, the clerk read a document purporting to be the writ of summons in the case with returns thereon, the defendant being before court without his counsel to properly and correctly contest the procedure. And the defendant remained in this condition during the entire trial so that after the testimony of each witness on the direct examination when defendant was asked if he had any questions to ask, he would reply that his lawyer was not present and that therefore he had no questions to ask. See record.

Now how this writ was found, if at all, was never explained until Counsellor King for his client filed both an application to set aside the verdict of the jury as well as a motion in arrest of judgment, and the explanation given by the sheriff is to my mind demurrable. Said sheriff said that he did not perform the service in person; but that at the time of the issuance of said writ he was at his home on the Saint Paul River and the writ was handed to the deputy sheriff who handed it to bailiff Padmore for service ; that bailiff Padmore informed the deputy sheriff that he had served the writ, which information was passed on to the sheriff and on the strength of which he, the said sheriff, made the returns in November and dated them for October 25, 1940; and that said writ was, since January 15, 1941, found in the clerk’s office among other papers.

Whilst it is true that the declaration of a ministerial officer of court made in a return is to be taken in most cases in preference to the declaration of others, yet an issue or protest against the correctness of a return is, in my opinion, entertainable where the officer making such return declares afterwards that the actual service of the writ was not performed by him and where the returns to said alleged writ are made about a fortnight after the alleged service of the writ, as the record shows, and are antedated. The defendant, in the deplorable condition of being without the benefit and service of counsel, was not in the position to properly raise issues challenging all these irregularities, nor was he ever squarely given an opportunity to admit or to deny the truthfulness of the returns.

This brings us to the consideration of the issue : Whether or not the trial thus had was in consonance with the provisions of our statutes governing the case as to make same regular, even were the service of the writ of summons upon the petitioner, defendant below, conceded.

First of all, it is my opinion that if the trial judge con-ceded the truthfulness and genuineness of the return of the sheriff as evidence of his service of said writ, in the absence of an appearance of the defendant on record together with an answer filed, it was error on the judge’s part to have afforded either defendant or his counsel a hearing during the trial of the cause. The learned trial judge appears to have confused the statutes in this respect for, in the absence of an appearance and at the call of the case, a judgment by default may be applied for and granted. We quote the relevant portion of the statute :

“If the defendant, having been returned summoned on a writ of summons or upon a writ of re-summons shall not appear within four days after the time therein appointed for his appearance, or if a defendant, who has been summoned by publication, shall fail to appear on the date named in the writ, the plaintiff may take judgment by default, and apply for a writ of execution, attachment, or make such other application as may be necessary to enforce or perfect his judgment.” 1 Rev. Stat. § 282.

However, where an appearance is filed but with no subsequent answer, then the defendant is considered to rest his defense on a bare denial of the facts stated in the complaint.

“Every answer must be filed within twenty days after the appearance of the defendant; provided that the complaint shall have been filed before the expiration of ten days from the said appearance, otherwise it shall be filed within ten days after the defendant shall have received notice of filing of the complaint.

“If no answer is filed as provided in the last section, the defendant shall be understood to deny the truth of the facts, and to rest on that defence only. . . .”‘ Stat. of Liberia (Old Blue Book) ch. V, § 5, 6 at 45, 2 Hub. 1540; 1 Rev. Stat. § 288.

There is, however, some slight difference in procedure between other ordinary actions and an action of ejectment; and the procedure prescribed in actions of ejectment, in the event of the non-appearance of the defendant, appears not to have been followed so as to have brought the trial within the pale of regularity.

“If the defendant, having been returned summoned on a writ of summons, shall not appear within four days after the time therein appointed for his appearance, or if after the return of a writ of re-summons the defendant shall not appear, within four days after the time therein appointed for his appearance, whatever the return may have been, it shall be the right of the plaintiff or plaintiffs, having first filed his or their complaint, unless the complaint be in ejectment to move for a writ of attachment, which shall be granted as herein after provided.” Stat. of Liberia (Old Blue Book), ch. II, § 7, at 33, 2 Hub. 1528. (Emphasis added.)

The following is the procedure in an action of ejectment:

“In ejectment there shall be no writ of attachment or of arrest, nor any bail required, but on a return of a writ of summons, the plaintiff, having filed his complaint, if the defendant do not appear, may cause a copy thereof, together with a copy of the writ of resummons, to be set upon the property claimed, ten days before the return day of the re-summons, and for that purpose may have a writ of re-summons, although the writ of summons may have been returned summoned; and if the defendant do [sic] not appear within four days after the said return day, the plaintiff shall be entitled to a judgment by default.” Stat. of Liberia (Old Blue Book) ch. I, § 36, at 38, 2 Hub. 1533.

If the prescribed procedure as quoted above had been followed in substance and in spirit, of course again conceding that the writ of summons was duly served and returned, the necessity of the investigation commenced by His Honor Judge Smallwood, but never concluded according to the records, would have been obviated; and the doubt and uncertainty surrounding the returns of the sheriff to the said writ of summons, which said writ was apparently lost or mislaid and peculiarly found, would have been removed.

Because of the several irregularities and inconsistencies pointed out herein, I have found myself unable and unwilling to agree with my colleagues in their majority opinion and have therefore withheld my signature from the judgment, being of the opinion that the judgment of the lower court should be reversed and a new trial awarded.

His Honor the Chief Justice concurs in this opinion, except that he does not concede that if defendant has not filed an appearance he may still, at the last moment, appear and defend as a defendant who has filed no answer.