GABRIEL DOE, Respondent/Appellant, v. LEE D. MITCHELL, Petitioner/Appellee.
APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: July 3, 1986. Decided: July 31, 1986.

1. The Supreme Court determines causes appealed to it based on the records certified to it from the trial court.
2. The trial court should always dispose of issues of law prior to ruling on the factual issues in a case.
3. Rules of Court are laws by which the practice of the Supreme Court is governed, and should be scrupulously adhered to until they are abrogated or annulled.
4. The burden of proof is on the party who complains or otherwise alleges a fact, except that when the subject matter of a negative averment lies peculiarly within the knowledge of the other party, and the averment is taken as true unless disproved by that party.
5. When the material allegations of the complaint or other pleadings are not denied by the defendant, they are deemed admitted and obviates the necessity of the plaintiff producing evidence.

The appellee filed a petition in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, to cancel an agreement of lease entered into between the appellant and himself. After pleadings had rested, the trial court assigned the case for disposition of law issues. The trial court thereafter, without ruling on the issues of law, entered its judgment ordering the cancellation of the lease agreement. From this judgment, an appeal was taken to the Supreme Court. On appeal, the Supreme Court held that the trial judge had erred in proceeding to the merits of the case without first ruling on the issues of law raised in the pleadings. The Court therefore reversed the ruling of the trial court and remanded with instructions that the law issues be disposed of.

The Berry Law Firm appeared for the appellant/respondent. The Tubman Law Firm appeared for the appellee/petitioner.

MR. JUSTICE DENNIS delivered the opinion of the Court.

An agreement of lease was entered into between Mary Benson McClain, now deceased, as lessor, and Kamal A. Wahab, as lessee, for a parcel of land with buildings thereon, situated and lying on Mamba Point, City of Monrovia, Liberia, known as block no. 98.

On May 17, 1977 the within named petitioner/appellee and respondent/appellant entered into an addendum of lease in which they mutually agreed that respondent/appellant Gabriel Doe would pay to the petitioner/appellee, Lee D. Mitchell, for the use and occupancy of the said demised premises a valuable consideration of four thousand dollars, commencing June 1, 1980 and ending May 31, 1985.

The aforenamed petitioner/appellee, being dissatisfied with the acts of respondent/appellant, filed a petition in the March, A.D. 1985 term of the Civil Law Court, Sixth Judicial Circuit, praying for cancellation of the said indenture of lease and addendum thereto. He further prayed for possession of the said demised premises as well as required the within named respondent/appellant to pay to petitioner/appellee the sum of four thousand dollars representing lease money from June 1, 1984 to May 31, 1985.

Pleadings in this case progressed as far as to the filing of a reply by petitioner/appellee. There are mixed issues of law and facts pleaded in the answer and reply.

On the 15th day of August A. D. 1985, the trial judge rendered the following ruling:

“Wherefore and in view of the foregoing, the petition of the petitioner is hereby granted. Counts one to four of the reply are sustained. Counts one to four of the returns are overruled. The lease agreement or the indenture of lease with an addendum entered into by and between the petitioner and respondent are ordered cancelled and declared null and void.”

The Clerk of this Court is hereby ordered to prepare a bill of cost for the collection of the amount of $4,000.00 per annum for the period covered by the lease agreement, which the respondent has failed or defaulted to comply with, and it is so ordered”. To this ruling, appellant, respondent in the lower court, excepted and announced an appeal. In substance, appellant complained against the alleged irregular conduct of the case by the trial judge as follows:

“That arguments on the issues of law raised in the written pleadings were heard on the Pt day of August A. D. 1985, at which time ruling thereon was reserved and further hearing of the case suspended. Nevertheless, the trial judge without previous assignment and a hearing of the case proceeded with and rendered final judgment against respondent.

Further, respondent, now appellant, complained that the trial judge, in proceeding with the case omitted hearing evidence from the petitioner in support of the allegations of his petition, and that notwithstanding this fact, the said judge nevertheless proceeded on the 15 th of August 1985 to enter final judgment in favor of petitioner by ordering the cancellation of the said lease agreement. The respondent also submitted the following error by the trial judge:

“And also because respondent further submits that the non-payment of rent is not a ground for the cancellation of the lease agreement since the rent could be recovered, according to respondent’s bill of information, either by an action of debt or an action of damages.

And also because respondent further submits that the legal basis for the institution of cancellation proceedings is fraud couple with misinformation and misrepresentation.”

This Court in pursuing the just disposition and determination of causes appealed to it does so based upon matters of record only and the bill of exceptions as such cannot depart from this procedure. Vide: Bryant v. African Produce Co., [1940] LRSC 4; 7 LLR 93 (1940).

Regarding counts one and two of the bill of exceptions, we note that the trial judge, without previous assignment being made and a hearing held as required by the Revised Rule of Court, ruled upon the factual issues without a prior disposition of the law issues. This is violative of numerous opinions of this Court which hold that the disposition of the issues of law should always precede the hearing and disposition of factual issues. As such it was erroneous for the trial judge not to have firstly disposed of the issues of law before arriving at a final ruling granting the petition for the cancellation of the agreement of lease. Vide: Thomas v. Dayrell, [1963] LRSC 28; 15 LLR 304 (1963). Rule 7 of the Revised Rules of the Circuit Court, reported in Steinberg v. Greywood, [1916] LRSC 6; 2 LLR 237 (1916), state the following: “Rules of Court are laws by which the practice of this court is governed, and should be scrupulously adhered to until they are abrogated or annulled.”

Reverting to the omission of the trial judge to have heard evidence prior to the rendition of a ruling cancelling the agreement, the burden of proof is usually on the party who complains and raises affirmative matters, the exceptions being in the circumstance of a negative averment. Vide: Civil Procedure Law, Rev. Code 1: 25.5, Burden of Proof

It is a well known principle that mere allegations are not proof, except under the following two circumstances when evidence is required of the plaintiff to substantiate allegations in a complaint: (a) when a negative averment is pleaded the burden of proof shifts to the party so pleading; (b) when the material allegation(s) of the complaint or another pleading is not denied by the defendant it is deemed admitted and obviates the necessity of producing evidence. Vide: Bank of Monrovia v. Enemy Property Liquidation Commission, [1945] LRSC 21; 16 LLR 324 (1945), text at 339; Civil Procedure Law, Rev. Code 1:9.8(3). “Effect offailure to deny”.

We have perused appellant’ s/respondent’s four-count returns as follows: (1) That the non-payment of rental is no ground for cancellation of an agreement of lease; (2) That fraud is indispensable to the institution of cancellation proceedings; (3) That as to counts one, two, three, four, five and six of the petition the same savour of and are suited to an action of debt; (4) Lastly, appellant/respondent denies petitioner’s assertion that respondent’s refusal to meet the annual rental payment for the demised premises as is stipulated in the addendum of lease is sufficient in law to cancel the said agreement of lease.

One can hardly read these four counts and the prayer of respondent’s returns without arriving at an inescapable conclusion that they contain legal issues which should have been disposed of by the trial judge prior to the granting of the petition for the cancellation of the said agreement of lease. There are several opinions of this Court mandatorily requiring that issues of laws must first be disposed of. Nevertheless, there is no indication that the trial judge adhered to prior court rulings or that the respondent waived his rights to a hearing on the law issues.

It is the ruling of this Court that since the trial judge departed from and acted contrary to the statutes as enumerated above, the ruling cancelling the lease agreement is hereby reversed and the case is remanded with instructions to the court below to dispose of the issues of law, and if the case is ruled to trial, to proceed to hear evidence since mere allegation is not proof. This is especially necessary since the respondent has, in count four of his returns, specifically denied count seven of the petition which refers to the alleged failure of the payment of the rent.

This Court holds that it is only when the averments of a pleading, more especially the allegations of a complaint or petition, are not denied that the necessity of the production of evidence is obviated.

In view of this fatal irregularity and omission, the judgment is reversed and the case is hereby remanded with strict instructions that the law issues be disposed of. Cost to abide a final determination of this case. And it is hereby so ordered.

Judgment reversed; case remanded.