CLARENCE CONNEH et al., Appellants, v. LIBERIA PETROLEUM REFINING COMPANY, Appellee.

APPEAL FROM THE RULING OF THE NATIONAL LABOUR COURT FOR

MONTSERRADO COUNTY.

Heard: December 3, 2001. Decided: December 20, 2001.

1. Pre-trial motions must firstly be disposed of before a court touches the merits of the suit out of which such motions grow.

2. A ruling on a motion to dismiss is generally interlocutory and, hence, not appealable except as to the respondent in the instance where the motion is granted.

The appellants, former employees of the appellee corpora-tion, filed an illegal dismissal and unfair labour practices complaint against the appellee corporation alleging that although their services with the appellee were terminated by the appellee under a scheme of redundancy, wherein the ap-pellee claim that it had financial problems, and were awaiting their redundancy pay, the appellee proceeded to employ a new group of employees to replace them. The appellants also claimed that they were coerced into signing releases acknowledging that they had received benefits which they had actually not received.

The hearing officer, after several failures by the appellee corporation to appear for the hearing of the case, and on motion of the appellants, entered a default judgment against the appellee. The judgment was subsequently perfected following the production of evidence by the appellants. From this judgment, the appellee filed a petition in the National Labour Court for Montserrado County for judicial review, contending that it was denied due process of law and its day in court. In response the appellants filed returns and a motion to dismiss.

The trial judge did not pass on the issues raised in the motion and the resistance thereto, but ruled instead that the hearing officer had erred in not stating the amount certain to which the appellants were entitled and ordered that the case should therefore be remanded for appropriate calculations to be made. From this ruling, the appellants appealed to the Supreme Court.

The Supreme Court denied the appeal, holding that the ruling from which the appeal had been taken was interlocutory and not final, and that under the law no appeal could be taken from an interlocutory ruling. The Court opined that the appellants should have proceeded by certiorari for a review of the interlocutory ruling or await the final disposition of the case by the National Labour Court. However, notwithstanding this acknowledgment, the Court proceeded to hold that the trial judge had erred in not first disposing of the motion to dismiss before proceeding to determine other issues. The trial judge’s ruling was therefore reversed and the lower court ordered to dispose of the motion and the resistance thereto.

Jonathan R. Williams of the Law Offices of Jonathan Williams, Esq., in associations with Cooper W. Kruah, of the

Henries Law Firm, appeared for the appellants. Frederick Doe

Cherue of the Dugbor Law Firm appeared for the appellee.

MR. JUSTICE WRIGHT delivered the opinion of the Court.

The appellants before this Court were all employees of the appellee, Liberia Petroleum Refining Company (LPRC). The appellee, who had employed appellants on various dates bet-ween 1978 and 1996, terminated their services through letters variously dated between March and May 1999, due to what the appellee referred to as a decline in production. In the said termination or severance letters, the appellants were informed that they would be paid one month in lieu of notice and any other benefits they were entitled to under the Labour Laws of Liberia.

In their complaint, the appellants alleged that whilst they were awaiting payment of their redundancy or severance pay and other benefits, they were replaced by new employees. They stated that it was growing out of this action by the appellee that they had filed a letter of complaint dated July 26, 1999, addressed to the Ministry of Labour. Also in their complaint, the appellants alleged that they were coerced into signing documents stating that they had received benefits which they had actually not received, and that they had only later realized that what they had signed for was not all that they were entitled to. They claimed that they were not given their tax waiver, resettlement benefits, and other entitlements. The complaint was signed by twenty-one (21) former employees.

The case was first assigned for hearing on November 9, 1999 at 11:00 ante meridian. However, because neither the appellee nor its representative appeared, the case was re-scheduled for hearing on November 16, 1999. Again, the appellee was absent and no excuse was provided. Whereupon the appellants requested the entry of a default judgment against the appellee. The hearing officer denied the request and instead reassigned the case for December 14,1999. At this new assigned date, the appellee’s counsel appeared and requested a postponement of the hearing to allow him to get back to his client for consultation as well as to enable him to review the appellants’ employment records. The request was granted and the case was ordered reassigned. After several other unsuccessful assignments (December 17, 1999 and January 3, 2000), the case was finally called for hearing on January 6, 2000. Again, however, the appellee was absent and provided no excuse for the absence. Hence, the appellants requested the hearing officer to enter a default judgment. This time the hearing officer granted the appellants’ request, entered a default judgment against the appellee, and permitted appellants to prove their side of the case.

The appellants produced three witnesses, in the persons of Co-appellants Clarence Conneh, Francis Jargbwe Lawson, and John Nuah Dahn, all of whom testified and were examined. In their testimonies, they contended that the appellee’s purported redundancy scheme, which the appellee had said was due to financial constraints and a decline in production, was based on falsehood, bad faith, dubious motives, and a ploy to get rid of them. To back these contention the appellants asserted that although the appellee was complaining of the lack of funds, it was at the same time employing new people to fill the redundant positions. They maintained that it should have been the positions that were declared redundant and not the persons holding the positions. They also alleged that some of them were made to work for long hours over and above their regular working hours without being paid overtime for the additional hours. They further claimed that they were denied food ration and other benefits which they had demanded, with the appel-lee management telling them to wait or hold on until things improved. They asserted moreover that upon being severed from the company’s employ they were made to sign a state-ment which made it seem as if they had received the said benefits when in fact they were never paid such benefits.

When the appellants were asked to produce evidence in regard to the alleged employment of new persons their places, they named one Sahr Kamanda, employment #1789, who they said was employed on June 1, 1999 as an auto mechanic technician to replace Flomo Roberts. They also named Abraham L. Manobah, employment # 1790, who they said was employed on June 1, 1999 as an auto electrician technician to replace John Deputy.

Following the interrogations and the answers given thereto the appellants rested oral evidence and offered for admission into evidence the following instruments:

a. The letters of termination, i.e. severance from manage-ment;

b. The letter of complaint to the Ministry of Labour;

c. A breakdown of pay statement showing the pay due them;

d. A listing of the new employees with their employment numbers, who replaced the appellants.

Also, as part of the records certified to this Court, was a listing of thirty eight (38) persons comprising those affected by the severance exercise undertaken by the appellee.

The hearing officer gave his ruling on February 9, 2000, a copy of which was served on the appellee, by and thru Mr. Daniel D. Zegan, on February 10, 2000. The ruling was sub-sequently delivered on February 14, 2000 to the office of the managing director of the appellee, through the administrative assistant to the managing director, and signed for by the said administrative assistant, on the same date aforesaid.

On February 24, 2000, the appellee filed a five-count petition with the National Labour Court for Montserrado County for a judicial review of the hearing officer’s ruling. In counts two (2) and three (3) of the petition, the appellee contended that it did not have its day in court and that it was therefore denied due process of law, for which it said the ruling of the hearing officer should be reversed.

In count four (4) of the petition, the appellee contended that there was no evidence produced by the appellants to establish that there was any wrongful dismissal or unfair labor practice committed by the appellee.

Finally, in count five (5) of the petition, the appellee contended that the judgment should be declared void because all of the appellants had been duly paid all of their benefits and that each of them had signed a release certifying that each and every one of them had no further claim(s) against the appellee.

On March 1, 2000, the appellants filed a nine-count returns to the petition, raising several legal defenses in support of the ruling of the hearing officer. In counts one (1) and two (2) of the returns, the appellants asserted that the petition for judicial review should be dismissed, denied, and ignored because it was filed out of statutory time, that is to say 14 days after the ruling of the hearing officer, or 4 days after the time allowed by law.

In counts three (3), four (4), five (5), and seven (7) of the returns, the appellants further contended that the appellee was not denied due process; rather, they said, the appellee was accorded due process and afforded its day in court, but that it had deliberately neglected, failed, and refused to appear and answer the complaint even though it had been duly served with the writ of summons, a copy of the letter of complaint and several notices of assignment for the trial. The appellants maintained that the hearing officer had correctly granted the default judgment requested by them and they prayed that the said ruling be enforced as all of them were lawful employees of the appellee and that some of the appellants had even worked up to 15 and 18 years. They alleged that the appellee, by its action, was trying to avoid paying the eligible employees their pensions.

In count eight (8) of the returns, the appellants contended that the plea asserted by the appellee that all of the appellants had been paid their accrued benefits was made in bad faith because the appellee had wrongfully dismissed them and had failed to pay them all of their accrued benefits, even up to the filing of the complaint at the Ministry of Labour.

The appellee filed an eleven-count reply in response to the returns. Essentially, it contended that its petition was properly before the court and was not dismissible because it was filed within the statutory period of ten (10) days after it received the ruling of the hearing officer. It argued that it is a corporate entity and that service of precepts or other court papers on a corporation is void unless the papers are served on a duly authorized agent, official, or manager, and that in the instant case the person who received the ruling from the Ministry of Labour, one Daniel Zegan, was not authorized to receive legal or court papers on behalf of the appellee. It maintained that in the context of the instant case, an authorized agent would be a secretary or special assistant in case the managing director or his/her deputies were not available. Lastly, the appellee reconfirmed its claim in the petition for judicial review that it did not have its day in court and that the appellants did not prove their claims.

The judge of the National Labour Court assigned the case for hearing on the petition, returns and reply on May 10, 2000. At the call of the case on May 10, 2000, the appellants spread a motion on the minutes of the court requesting the court to deny the representation of Counsellor Frederick D. Cherue as one of counsel for the appellee because he was not the original counsel of record and there had been no notice of change of counsel or notice of additional counsel filed with the court and served on the appellants as required by law. Hence, they asserted, the petition for judicial review, signed by Counsellor Cherue, should not be given any credence. In addition, the appellants repeated the contention, already raised in their returns, that the petition was filed after the statutory period of ten (10) days and that it should therefore be dismissed.

In resisting the motion, counsel for the appellee asked the court to the deny said motion because it violated the law that required such motions be in writing, that it be served on the opposing counsel at least twenty four (24) hours prior to the hearing, and that it be verified by an affidavit. The appellee also averred, regarding the issue of Counsellor Cherue not being counsel of record at the time he filed the petition for judicial review, that the appellants were guilty of waiver and must suffer laches, in that such objection and all other defects should have been raised in their responsive pleading, i.e., the written returns or by a written motion filed along with the said responsive pleading.

With regard to the issue of the petition for judicial review being filed late, the appellant contended that the hearing officer’s ruling was received officially by the appellee management on February 14, 2000 when it was signed for by Mrs. Violet Bedell, administrative assistant to the managing director, who executed an affidavit to that effect. Therefore, it said, the ten (10) days allowed by law for filing of a petition for judicial review only began to run from that date, and that as such, the petition having been filed on February 24, 2000, it met the ten days legal requirement.

After oral arguments on the motion by both parties, the judge reserved her ruling until May 16, 2000 at 2 o’clock post meridian. However, the said ruling was not delivered until May 29, 2000. In the ruling, the judge referred to the requests made by both counsel in their arguments that she should take judicial notice of the records in case. The judge observed that the ruling of the hearing officer lacked the legal basis for the enforcement of the said ruling because, for a money judgment to be enforceable it must have a sum certain. She therefore reversed the hearing officer’s ruling and remanded the case with instructions that the hearing officer makes his ruling certain, definite and clear as to what he meant and by the manner in which he made the awards to the appellants. The judge cited and relied on the case Handsford v. Harris and Potter, [1969] LRSC 9; 19 LLR 176 (1968), wherein the Supreme Court held: “It is essential for the enforcement of a judgment that it be valid and not void. An order enforcing a void decree is void ab initio.” She also cited the case Kennedy v. Republic, [1969] LRSC 39; 19 LLR 376 (1969), in which the Supreme Court held that the court had no authority to enforce a void judgment, as well as the Civil Procedure Law provision which states that “a money judgment is an interlocutory or final judgment or any part thereof, for a sum of money or directing the payment of a sum of money.” Civil Procedure Law, Rev. Code 1:41.19(a).

The appellants excepted to and appealed from the ruling of the National Labour Court Judge, and thereafter filed a six-count bill of exceptions, essentially contending that the judge proceeded wrongly when she ruled reversing the hearing officer’s ruling without hearing the petition for judicial review which sought to have the said ruling reviewed. The appellants also complained that what was properly before the judge for disposition was only their motion to dismiss the petition and not the petition itself.

The judge, in approving the appellant’s bill of exceptions, wrote the following: “Approved according to the short ruling that was given as the ruling on the merits is still pending before this court awaiting the directive given to the hearing officer.”

All the necessary steps to complete an appeal were duly completed and the case is now before the Honourable Supreme Court for a review of the ruling of the National Labour Court Judge.

The case presents us with two errors, one allegedly committed by the judge and the other by the appellants. In regard to the first error, the basic contention presented on this appeal is that same relates to the procedure pursued by the judge; that is, that the judge should have ruled or passed firstly upon the motion to dismiss, spread on the minutes of her court by the appellants, instead of delving into the validity or legality of the hearing officer’s ruling which was the subject of the petition for judicial review filed by the appellee.

It is the general rule in this jurisdiction that pre-trial motions must firstly be disposed of before a court touches the merits of the suit out of which such motions grow, as contained in the basic pleadings. We herein reiterate this procedure as the proper manner in which to proceed in all cases in our courts. Thus, because of this error, we are constrained to reverse the ruling of the National Labour Court judge and to order that she properly rehears the motion to dismiss and the resistance thereto, and makes a ruling squarely on the issues raised therein. In the event the motion be denied, the judge should then proceed to hear and pass upon the petition for judicial review.

Having disposed of the first error, we now turn to the second error, this one having been made by the appellants. We observe from the records in the case that the appellants appealed from the National Labour Court judge’s ruling on their motion to dismiss the petition for judicial review. It is common knowledge that a ruling on a motion to dismiss is generally interlocutory, and hence not appealable except as to the respondent in a case where the motion is granted. We are therefore of the opinion that the judge should have denied the appeal since her ruling was merely interlocutory. The proper course of action was for the appellants to either proceed by certiorari or await the final judgment on the petition for judicial review and then appeal therefrom if the petition was granted. It is for this reason that we are constrained to deny this appeal.

Since we have reversed the judgment and at the same time denied the appeal, we hereby remand the case to the lower court with instructions that the judge rehears the motion to dismiss and to thereafter proceed as per the law, practice, and procedure in this jurisdiction.

Wherefore, and in view of the foregoing, it is the considered opinion of this Court that the appeal be and the same is hereby denied. This Court also rules, however, that the ruling appealed from is hereby reversed. The case is hereby remanded to the lower court to rehear the motion to dismiss and to make a clear ruling thereon. The Clerk of this Court is hereby ordered to send a mandate to the National Labor Court for Montserrado County ordering the judge therein presiding to resume jurisdiction over the cause, conduct a rehearing of the appellants’ motion to dismiss, make a determination thereof, and let the law take its course thereafter. Costs of these proceedings are to abide the final determination of the case. And it is hereby so ordered.

Appeal denied; judgment reversed.

GEORGE N. CONSTANCE, Appellant, v. NATHANIEL CONSTANCE, Appellee.

MOTION TO DISMISS APPEAL FROM THE RULING OF THE MONTHLY AND PROBATE COURT FOR MONTSERRADO COUNTY.

Heard: December 3, 2001. Decided: December 20, 2001.

1. If a party fails to appear to oppose a motion, the motion shall be granted on proof of the service of the notice of assignment on that party.

2. In order to complete an appeal, an appealing party must have announced the taking of the appeal, filed a bill of exceptions, filed an approved appeal bond, and served and filed a notice of completion of the appeal. A failure to comply with these requirements within the time allowed by law shall be grounds for the dismissal of the appeal.

3. An appeal may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute, and by the appellate court after filing of the bill of