NATHANIEL CONSTANCE, JOHN CONSTANCE, and CONTINENTAL GENERAL AND LIFE INSURANCE COMPANY, a Corporation Engaged in the Insurance Business in the Republic of Liberia, by and thru its Chief Executive Officer, Appellants, v. SALUXE B. AJAVON, GBAGBA KESSELY, JUNIOR KAMOKAI, PHILIP BINDA, DAVID SACKIE, MARY ELLIOT, Appellees.

APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT, BONG COUNTY.

Heard: October 30, 2000. Decided: December 21, 2000.

1. The law and practice in the Liberian jurisdiction is that if counsel for any of the parties to a case desires to have the judge instruct the jury on any point of law, such counsel must make the request in writing.

2. The trial judge to whom a request is made in writing for instructions to the jury must give such instructions in writing.

3. Any allegation of jury tampering, when made by a party to a case in a circuit court, which is a court of record, must be made a matter of record and not orally to the judge. Where a party fails to make such complaint a matter of record, the same cannot be entertained by the Supreme Court.

4. A party waives his or her right to relief in a matter alleging jury tampering or irregularity where the party fails to squarely raise the issue in the trial court and make it a matter of record for investigation prior to the jury being discharged rather than raising the same in a motion after the discharge of the jury.

5. A proper basis for inclusion in a motion for a new trial and the bill of exceptions of a complaint regarding jury tampering or irregular behaviour is that it first be raised while the jury is still empanelled; and where a party fails to follow this procedure, the issue will be considered to be improperly brought before the Supreme Court for review.

6. Every court is required to take judicial notice of its own records.

7. It is not erroneous or improper for a trial court having jurisdiction over two cases to take judicial notice of the records and judgment in one of the cases in disposing of the other case, and such judgment as is entered in the one case is admissible in the other case.

8. He who should speak but remains silent is deemed to have assented.

9. An exception by a party must be noted at the time the court makes an order, decision, ruling, or comment to which the party objects. A failure to note such exceptions at the appropriate time shall prevent assigning it as error on review by the appellate court.

10. A party who excepts to an order, ruling, decision, or comment by the trial court is entitled to have his exceptions noted in the minutes of the court.

11. The Supreme Court will not review issues unless they were part of objections made at the time of the trial and raised for the trial court’s consideration.

12. The failure of a party to except to the verdict of the empanelled jury when brought in open court, and which would have afforded the opportunity for filing a motion for a new trial, is considered an error which cannot be cured by a bill of exceptions.

13. A bill of exceptions shall consist only of those exceptions announced to adverse rulings, decisions, or comments.

14. Only the jury can examine and review the evidence produced by the parties, determine the weight and credibility to be given to such evidence, and determine the verdict to be given therefrom.

15. It is not for the parties to determine the sufficiency of the evidence, that prerogative being solely with the jury in a jury trial.

16. If the verdict of a jury is not excepted to, it will be deemed to have been accepted or acquiesced in, and will not form a basis for review either by the trial court in a motion for a new trial or by the appellate court on a regular appeal.

17. The appeal statute is mandatory and a failure to comply with any one of the jurisdictional steps is ground for the dismissal of the appeal.

18. The failure to except to a verdict of the jury is not a harmless error.

In an action of damages growing out of the occurrence of an accident, the jury returned a verdict in favor of the appellee and the trial court affirmed the same adjudging the appellants liable for the damages. The appellees had alleged that following the accident the insurance company, co-appellant herein, had assumed responsibility for the accident on behalf of the other co-appellant, but had failed to honour its pledge to repair the damaged vehicle which the appellees were riding at the time of the accident. The trial court found the appellants to be liable for both the injuries suffered by the appellees and for the damage done to the vehicle occupied by them, inclusive of loss of income from the vehicle.

The appellants did not except to the verdict but filed a motion for a new trial, which was resisted, heard and denied, and judgment entered thereafter. The appellants excepted to the judgment and announced an appeal to the Supreme Court.

On review of the appeal, the Supreme Court rejected the several contentions of the appellants and affirmed the verdict of the jury and the judgment of the trial court. The Court held that as to the appellants’ contention that the jury had been tampered with they had waived their right to assert the claim since they had not made the complaint a matter of record in the trial court but had claimed only that they had orally inform the judge thereof. The Court opined that such allegations, being of a serious magnitude the appellants should have raised the issue formally in the trial court before the discharge of the jury, and that the failure of the appellants to do so deprived them of the right to raise the issue either in the motion for a new trial or in the bill of exceptions, noting that in such circumstances the Supreme Court could not review the allegations.

The Court also rejected the appellants claim that the trial judge had erred in failing to charge the jury on points of law requested by the appellants, noting that the records of the trial were devoid of any request made by the appellants to the trial judge for a charge to the jury on any particular points of law. The Court observed that the circuit court was a court of record and that the law required that any request to the judge for instructions to the jury on any particular point must be made in writing, and that the failure by the appellants to comply with the statute deprived them of the right to assert error on the part of the trial court for not giving instructions on the alleged points.

With regard to the appellants’ contention that the verdict of the jury was contrary to the weight of the evidence, the Court held that the jury was the only one with the authority to pass on the credibility of the evidence, and that in any event the failure of the appellants to except to the verdict meant that they had accepted the verdict or acquiesced therein, and hence they could not subsequently question the verdict.

Finally, addressing the issue of the value of lost income from the vehicle, the Court held that the appellees had presented evidence of the estimate of daily earnings from a vehicle of the nature as the one involved in the accident and that therefore a proper basis had been laid for calculating the income lost from the lack of use of the said vehicle due to the failure of the insurance company to have the vehicle repaired. The Court therefore not only confirmed that the co-appellant owner of the vehicle was entitled to the daily compensation calculated by the trial court, but also that the appellees were liable for such daily compensation beyond the date of the trial court’s judgment and up to the rendition of final judgment by the Supreme Court. The Court accordingly affirmed the verdict and judgment of the trial court, with the modification that the award of loss income be increased to take account of the losses up to the date of rendition of the Supreme Court judgment.

James C. R. Flomo of the Henries Law Firm appeared for the appellants. Francis S. Korkpor of the Tiala Law Firm appeared for the appellees.

MR. JUSTICE WRIGHT delivered the opinion of the Court.

This case is on appeal to the Supreme Court from a final judgment of the Circuit Court for the Ninth Judicial Circuit, Bong County, rendered in the trial court, in an action of damages instituted by appellees against appellants, defendants in the trial court, growing out of a motor accident.

In the complaint, the appellees alleged that Co-appellee Saluxe B. Ajavon was the owner of a blue Toyota pick-up bearing license plate number TP-1575, driven by Co-appellee Gbagba Kessely; that Co-defendant John Constance was the owner of a gray Mazda pick-up bearing license plate number TP-1410 and driven by Co-appellant Nathaniel Constance; and that on June 19, 1998, both vehicles were traveling in opposite directions on the Kalila-Zeausue Public Highway, Bong County, when they collided with each other, resulting into death, injury and property damage. The complaint stated that as a result of the accident Susau Sumo, an occupant of vehicle TP-1575, died, while David Sackie, Philip Binda, and Mary Elliot as well as driver Gbagba Kessely, all of whom were also occupants of vehicle no. TP-1575, sustained injuries on various parts of their bodies. Also as a consequence of the accident, the said vehicle was badly damaged. All of the injured victims were treated at medical and health centers, for which each of them incurred the following expenses:

Philip Binda – $ 1,470.00

David Sackie – 965.00

Gbagba Kessely, – 1,175.00

Mary Elliot – 5,200.00

making a total of $8,800.00. Besides the medical bills, Co-plaintiff Saluxe Ajavon also incurred substantial losses due to the damages done to his pick-up which, prior to the accident, reported an average daily income of $3,466.60. The complaint alleged further that after the accident, the Bong County Traffic Police conducted an on-the-spot investigation and found Co-appellant Nathaniel Constance, operator of TP-1410 responsible for the accident, and charged him with reckless driving resulting into death, injury and property damage.

The case was forwarded to the Bong County Traffic Court in Gbarnga City, Bong County, where a trial was held and Operator Nathaniel Constance was found guilty and adjudged responsible for the accident.

The complaint also stated that after the accident, Co-appellant Continental General and Life Insurance Company, being the insurer of TP-1410, accepted responsibility to repair TP-1575 and to pay all expenses of the appellees growing out of or related to the accident; that pursuant thereto, the Gbarnga sub-office of Continental General and Life Insurance Company requested the Management of Confidence Garage in Gbarnga City to take TP-1575 into its workshop for repair; but that after the pick-up of Mr. Ajavon (TP-1575) was taken to the Garage, Continental General and Life Insurance Company failed and neglected to take further action for the repair of vehicle no. TP-1575 and to meet its obligations to Confidence Garage.

The appellees complained further that despite efforts to have the insurance company repair TP-1575 and meet its other obligations to appellees, it had failed to do so. Consequently, the appellees were compelled to turn to the court for relief, and thereby entered an action of damages against the appellants in the Ninth Judicial Circuit Court, Bong County, where a jury trial was regularly conducted, a unanimous verdict of liable against the appellants was returned by the jury, and awards made in amounts of LD$1,170,111.00 (ONE MILLION ONE HUNDRED SEVENTY THOUSAND ONE HUNDRED ELEVEN LIBERIAN DOLLARS) as special damages and $500,000.00 (FIVE HUNDRED THOUSAND LIBERIAN DOLLARS) as general damages in appellees’ favor.

The appellants’ counsel, although present when the jury’s verdict was read in open court, did not except to the said verdict but proceeded instead to file a motion for new trial. The motion was heard and denied by the court, which thereafter affirmed the verdict and handed down its final judgment thereon. Exceptions were noted and an appeal announced to this Honourable Court.

Pursuant to the appeal which was announced, the appellants filed a twenty-one (21) count bill of exceptions stating substantially that the trial judge had committed several reversible errors and that the verdict of the jury was against the weight of the evidence adduced at the trial. In their brief the appellants contended that during the course of the trial the appellees failed to establish with certainty how they arrived at the average daily income of LD$3,466 from pick-up no. TP-1575, and that the judge committed error by admitting same into evidence despite appellants’ objection. The appellants also contended that their counsel had provided the judge with written instructions to be given to the empaneled jury but that the judge had ignored the request for written instructions and had instead orally instructed the jury to return a verdict of liable in favor of the appellees for the amounts sued for.

The appellants further alleged that the judge committed error in admitting into evidence photocopies of letters alleged to have been written to the manager of Continental General and Life Insurance Company, without requiring that the appellees account for the originals. They also alleged that the trial judge had failed to investigate the allegations made in the appellants’ information to the effect that the jury’s verdict was revealed to the appellants’ counsel by one of the court’s officers before the jury returned its verdict in open court.

Based on the above assignment of errors alleged against the trial judge, the appellants presented the following issues in their brief for consideration by this Court:

“1. Whether or not a trial judge can refuse to investigate charges of misconduct by officers of the court?

2. Whether or not a verdict is considered valid if same is revealed to a party litigant by an officer of the court before the jury can deliver same in open court?

3. Whether or not a trial court can extract records from another case pending before it and give the extract to the counsel of a party litigant?

4. Whether or not a court can confirm a verdict for special damages when the basis for such award is not established during the trial?”

In response to the allegations contained in appellants’ bill of exceptions, the appellees contended that the judge’s charge to the jury was consistent with section 22.10 of the Civil Procedure Law, Rev. Code 1, which states that the judge may summarize the evidence to the jury. In the instant case, they said, the judge did just that.

An inspection of the trial court’s records transmitted to this Court revealed that it was counsel for appellees who presented to the trial judge a written request for certain specified instructions to be passed on to the jury. See sheets one and two of the 42nd day’s jury session, Friday, October 1, 1999, August Term of Court, 1999. The records showed further that in excepting to the judge’s charge to the jury, the appellants stated as the reason therefor only that the judge had dealt only on what the appellees had sued for and not also on the appellant’s request for the judge to give instructions to the jury. The records are void of any request made by counsel for appellants to the judge to give specific instructions to the jury. The records revealed only that appellants’ counsel had stated his law citations in support of his argument. The trial judge, in response to the exception noted by the appellants to his charge to the jury, stated that the said exception was baseless because the court had gone to great lengths to summarize the evidence produced by both sides and that it had communicated at the level of the jurors the principles of law controlling, advanced by the appellants.

Under the law and practice in this jurisdiction if a counsel for either of the parties to a case desires that the judge should instruct the jury on any point of law, such counsel is required to make his request in writing. The law also states that upon such request being made the judge shall in turn give his instructions to the jury in writing. Civil Procedure Law, Rev. Code 1:22.9, 1 LCLR 187 (1973). Because the appellants’ counsel failed to specifically request a charge from the judge to the jury on particular points of law, as provided for by our statute, the judge committed no error in his charge to the jury. The contention of appellants on this point is therefore not sustained.

The next issue relates to the alleged misconduct of Mary Barwolor, filing clerk of the Ninth Judicial Circuit Court, Bong County, who was said to have divulged to appellees’ counsel the nature of the jury’s verdict prior to said verdict being delivered in open court.

During the arguments before this Court counsel for appellants explained that the act alleged against Mary Barwolor took place in the yard of the court house, stating that he saw Madam Mary Barwolor come from the direction of the jury room, call the appellees’ counsel, and speak to him. The appel-lants’ counsel told this Court that he privately and verbally informed the trial judge of what had transpired but that he did not make it a matter of record. Our circuit courts are courts of record and something as crucial as jury tampering ought to have been made a matter of record. The appellants having failed to do so, the same cannot be entertained by this Court. Moreover, there was no evidence, eyewitness or otherwise, to establish that Madam Mary Barwolor did enter into the jury’s room of deliberation or as to what was discussed between appellees’ counsel and Madam Barwolor. The appellants’ claim was made worse by appellants’ counsel admission that he privately and verbally informed the judge of the matter. Under the circumstances, the Court views the allegations made by the appellants as nothing more than conjecture, speculation, and hearsay, and the same must therefore be dismissed. Accor-dingly, we hold that the trial judge did not commit an error in not conducting an investigation of the allegations because there was nothing to investigate. As such, the refusal of the trial judge to investigate the claim took away nothing from the verdict of the jury.

Still on the above issue, the appellees also contended that appellants did not raise the contention of jury tampering at the time of the trial and before the jury was discharged; rather, that the issue was raised for the first time in appellants’ motion for a new trial. We hold that it was a fatal blunder and neglect on the part of appellants for which they must suffer laches. They waived their right to relief, if any, by failing to squarely raise the issue and to make it a matter of record for investigation prior to the jury being discharged. A prior investigation into the matter would have formed the basis for its inclusion in the motion for a new trial and subsequently in the bill of except-ions. The issue not having been properly raised in the trial court, we consider it to be improperly raised before this Court to form part of our review.

The next issue is whether or not it was proper for the trial judge to extract and use the records from the trial in the traffic court as part of the evidence to decide the case. In addressing the issue, the appellees argued that the evidence concerning the garaging of the car by Continental General was adduced at the trial to demonstrate that Co-appellant Continental General had accepted responsibility for the accident by taking vehicle no. TP-1575 to Confidence Garage in Gbarnga City for repairs, but that Continental General had failed to ensure that the repairs were carried out. The appellees maintained further that Co-appellant Nathaniel Constance was held responsible for the accident and charged with reckless driving, both by the police and the traffic court. The appellees averred therefore that the verdict of the empanelled jury and the judgment rendered thereon confirming the same, as well as the records in the traffic court, were not based on speculation and uncertainty.

This Court says that every court is required to take judicial notice of its own records. In Bong County, as in all counties other than Montserrado County, appeals from the traffic court lie to the circuit court. In the instant case, the traffic aspect of the case had already been tried and judgment rendered therein. The defendant in the traffic case had appealed to the circuit court to review the said judgment. While the appeal was still pending in the circuit court, sitting in its appellate jurisdiction, the appellees herein, who were private prosecutors in the traffic court case, filed their action of damages in the same circuit court, the court sitting this time in its original jurisdiction.

It is the opinion of this Court that the circuit court, being the same court having jurisdiction over both cases, it was not error for the trial judge to have taken judicial notice of and admit into evidence the records (and judgment) from the traffic court case in the trial of the action of damages. In fact, judgments are admissible in evidence. Civil Procedure Law, Rev. Code 1:25.11, 1 LCLR 202-203.

The last and most important issue presented by appellants for our consideration is whether or not the verdict of the jury was against the weight of the evidence adduced at the trial. We shall discuss this issue at two levels – i.e., on the basis of the law and on the basis of the facts.

The appellees have seriously contended that on the basis of law this Court should not accord the appellants’ claim any magnitude because the appellants’ counsel was present in court when the jury returned their unanimous verdict against the appellants in open court, and were polled and found to be in unanimity. Yet, appellants counsel failed to announce any exception to the verdict. The appellees argued that in the absence of any exception having been taken to the jury verdict, the trial judge did not err in confirming and affirming the said verdict in his final judgment.

This Court has held over many years that he who should speak and remains silent assents. Bent v. Coleman, [1915] LRSC 12; 2 LLR 210 (1915), Syl. 3, text at 214. Moreover, our law is clear when it comes to the noting of exceptions. It states that “an exception shall be noted by a party at the time the court makes any order, decision, ruling, or comment to which he objects. Failure to note an exception to any such action shall prevent assigning it as error on review by the appellate court. The party who excepts is entitled to have his exceptions noted in the minutes of the court. Civil Procedure Law, Rev. Code 1:2.3, 1 LCLR 180-181. This Court has also held that it will not review issues unless they were part of objections made at the time of the trial and raised for the trial court’s consideration. See Wilson v. Dennis, [1974] LRSC 52; 23 LLR 263 (1974), Syl. 7; also Benson v. Johnson, [1974] LRSC 55; 23 LLR 290 (1974), Syl. 7.

The appellees have contended that the appellants’ failure to except to the verdict rendered the bill of exceptions dismissible, and cited in support the case Richards v. Coleman, [1935] LRSC 32; 5 LLR 56 (1935), text at 58, wherein this Court held that “the plaintiff’s failure to except to the verdict of the petty jury when brought in open court, and which would have afforded her the opportunity of filing a motion for a new trial if she was dissatisfied with said verdict, is a flagrant error which in our opinion cannot be cured by a bill of exceptions, as is now attempted to be done in this case before this Court.”

We are in full agreement with the Richards v. Coleman decision, for if no exceptions are taken how can they be included in the bill of exceptions. By its very name, a bill of exceptions speaks for itself. It is called a bill of exceptions. In other words, the document consists only of those exceptions announced to adverse rulings, decisions, acts and comments made. In the instant case, it is the verdict. Section 51.7 Civil Procedure Law, Rev. Code 1:51.7, 1 LCLR 250.

The appellants main contention is that the verdict of the jury was against the weight of the evidence adduced at the trial. It must be remembered that under our system of jurisprudence it is only the jury that must examine and review the evidence produced by the parties, determine in their minds what weight and credibility to accord such evidence, and based thereon determine what their verdict should be. It is not for the parties to a jury trial to deter-mine the sufficiency of the evidence; that function is for the jury.

Therefore, if the verdict of the jury is not excepted to, then it is accepted or acquiesced in because, absent any exception, there is no basis to subject the same to any review, whether in the trial court in a motion for a new trial, or in the appellate court on regular appeal. In that connection, this Court holds that the trial judge did not err when he denied the appellants’ motion for a new trial. All that the judge did was to confirm and affirm what the appellants had by their silence agreed to or acquiesced in.

Following that trend of thought, this Court says that we are incompetent and without any basis in law to subject the jury’s verdict to any degree of appellate scrutiny since it was not made a subject of any exception or objection in the trial court. The appeal statute is mandatory and a failure to comply with any one of the jurisdictional steps shall be ground for dismissal of the appeal. Civil Procedure Law, Rev. Code 1:51.4, 1 LCLR 249 and 51.7, supra. The failure to except to a verdict is not a harmless error as appellants’ counsel tried to impress upon this Court.

Before closing this opinion, we must comment on the extent of the specific damages as well as the liability of the Co-appellant insurance company. The records certified to this Court showed that the appellees pleaded their claim for special damages and at the trial produced evidence which we find sufficient to warrant the finding made by the jury. We concur with the trial judge that the verdict was fair because appellees laid the proper and clear basis as to how they arrived at the claim of special damages.

Regarding the appellants’ challenge to the medical claims of the appellees, this Court says that the records showed that the appellees did produce receipts to established the same. With regard to the question of the lost income alleged by the appellees, the Court says that the appellees demonstrated what was the average daily report of income from vehicles similarly situated. On this point also, it is important to note that the appellants actively participated in the trial and had every opportunity to subject the appellees’ evidence to cross examination and to possible impeachment. That burden not having been fully met and the jury, being satisfied with what it had heard, determined that the proper basis was formed for their verdict. We note again that there was no objection or exception to the said verdict.

Having said all of the above, the fundamental fact still remains that the verdict was unchallenged by way of any objection or exception, and therefore is valid to all intents and purposes, as also is the final judgment of the trial court which merely affirmed and confirmed the unchallenged verdict of the jury, which we herewith further confirm and affirm.

One final but very important issue concerns the liability of the insurance company. The records in the case showed that it was not a subject of contest at the trial that Co-appellant Continental General assumed responsibility for the repair of the damaged vehicle of Co-appellee Saluxe Ajavon, and that as a manifestation of such responsibility, the co-appellant insurance company authorized and caused the vehicle to be taken to the premises of the Confidence Garage of Gbarnga. Thereafter, however, the insurance company failed to pay for the car to be repaired, as a result of which the said vehicle remained in the same or even worse state of disrepair and damage, much to the injury, inconvenience, embarrassment, and detriment of Co-appellee Ajavon. From the day of the accident, and even up to the date of this opinion, which by calculations is about two years and six months or 30 months or 910 days, the co-appellee has been deprived of the use of his vehicle because the co-appellant insurance company has failed to have the said vehicle repaired.

Wherefore, in view of the above, this Court holds that the liability of Co-appellant Continental General extends and attaches from the date of the accident up to and including today’s date. Accordingly, the amount of the special damages as it relates to lost income from the use of pick-up TP-1575 has to be calculated and adjusted to also cover the period inclusive of the date of the final judgment up to the rendition of this opinion. The trial court should proceed to make the increase when preparing the bill of costs. Also, in view of the facts and circumstances stated herein and the relevant laws controlling, it is the ruling of this Court that the final judgment of the trial court confirming and affirming the unanimous verdict of liable returned by the trial jury, which was unchallenged, is hereby confirmed and affirmed as made, except that the final figure of the special damages should be adjusted to cover the period of this appeal. The appeal from the said final judgment of the trial court is accordingly not upheld.

The Clerk of this Court is hereby ordered to send a mandate to the Ninth Judicial Circuit Court, Gbarnga City, Bong County, commanding the judge presiding therein to resume jurisdiction over the case and enforce its judgment, taking into consideration the adjustment in the special damages made herein. Costs of these proceedings are ruled against the appellants. And it is hereby so ordered.

Judgment affirmed.