FORESTRY DEVELOPMENT AUTHORITY, Appellant, v. BUCHANAN LOGGING CORPORATION, Appellee.
APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: October 14 & 15, 1981. Decided: February 4, 1982.

1. A party ruled to bare denial can produce witnesses to testify in favor of his/her bare denial, but he may not introduce evidence in support of any affirmative matter.

2. In order to be entitled to an appeal, a party is mandatorily required to except to the judgment confirming the jury’s verdict; failure to move for a new trial shall not deprive a party of the right to appeal.

An action of damages for breach of a management contract was filed by the appellee against the appellant. At the disposition of law issues, appellant’s answer was dismissed and it was ruled to a bare denial. At the trial, appellant was precluded from presenting witnesses to testify in its behalf for reason that a bare denial precludes the presentation of affirmative evidence, which a witness for appellant would do. A verdict was returned in favor of the appellee. The appellant excepted to the verdict but did not file a motion for new trial. Judgment was accordingly entered on the verdict. Appellant excepted to the judgment, announced and perfected its appeal to the Supreme Court.

The Supreme Court ruled that it was a reversible error to preclude a party that had been ruled to bare denial from having witnesses testify in support of its bare denial. The Court also ruled that it is not mandatory to file a motion for new trial and that such filing is not a prerequisite to an appeal. The judgment was therefore reversed and the case remanded for a new trial.
B. Mulbah Togba and S. Edward Car/or appeared for the appellant. Peter Amos George appeared for the appellee.

MR. JUSTICE MORRIS delivered the opinion of the Court.

The genesis of this case is that on the 5th day of May, A.D. 1979, the Forestry Development Authority, FDA, a Government corporation, entered into a management contract with the Buchanan Logging Company (BULCO), a private corporation registered and doing business under the laws of the Republic of Liberia. The management contract took effect retroactively as of April 17, 1979. BULCO was fully responsible for the entire management, including all operating costs, payment of all taxes and the salaries of employees. The management contract also required the plaintiff/appellant to make monthly reports of all its operations and production, and quarterly reports of its sales to FDA. On the other hand, FDA was required to provide the necessary capital equipment and machinery for the project, pay equipment and machinery operators, rangers and scalars, provided BULCO had deposited quarterly in advance an amount equivalent to the total amount required for the payment of the salaries and wages of this category of employees.

On September 12, 1979 FDA, being dissatisfied with the services of BULCO, wrote Mr. Joseph Younis, President of the Buchanan Logging Company, the below quoted letter: “0017-/979September 12, 1979 Mr. Joseph Younis President Buchanan Logging Company Monrovia, Liberia Mr. President:
Ref. MANAGEMENT CONTRACT BUTAW PROJECT BETWEEN BUCHANAN LOGGING CORP. & FDA
You have defaulted on the above contract under the following counts:

1. Failure to pay Government taxes as required under Section/Paragraph 5 of the said contract.

2. Failure to deposit quarterly in advance an amount equivalent to the total amount required for the payment of the salaries and wages of FDA employees assigned to the project. ref. section/paragraph 6 of the said contract.

3. Failure to submit monthly reports of all activities and production as per section/paragraph 9′ of the said contract.

In view of the foregoing, I was directed by our Managing Director, John T. Woods, to take over the management of the project while our legal officer looks into the matter for appropriate action. This becomes effective the date he the Managing Director – verbally informed you of the termination of the contract with you.

My copy of your financial report was received and I am preparing my comments on it.
Very truly yours, Sgd. T. Anthony Gorgla MANAGER, TECHNICAL SERVICES FOR “UTILIZATION
cc: MD and Legal Officer, Comptroller Mr. Gorpudolo & Mr. Snogba”

BULCO maintains that FDA breached the contract by unilaterally terminating the contract and FDA contended that by writing BULCO, she has fulfilled the provisions of the contract as found under clause 16 of the contract. FDA also contended that clause 15 of the contract provides that BULCO shall indemnify FDA at all times and hold FDA and its employees or representatives harmless from all claims. BULCO, not being satisfied with the method adopted by FDA, instituted this action of damages for breach of contract in the Sixth Judicial Circuit Court for Montserrado County.

BULCO alleged in its complaint that FDA forcibly entered upon and repossessed the entire project without considering the tremendous financial outlays and other obligations BULCO had incurred. BULCO then claimed that FDA’s conduct has caused BULCO a loss in the amount of $75,845.50. Pleadings progressed to the amended reply.

During the September A.D. 1980 Term of the People’s Sixth Judicial Circuit, law issues were disposed of and FDA’s answer was dismissed and it was placed on bare denial. At the trial of the case during the same term of court, FDA brought witnesses who were qualified, sequestrated but were not allowed to testify. FDA was also precluded from testifying on its own behalf because it was placed on bare denial. BULCO and its witnesses took the stand and deposed after which argument was entertained. The jury, after having been duly charged, returned a verdict for BULCO awarding $73,845.50. It is from the final judgment of this case that FDA has appealed to this Court on a 13-count bill of exceptions.

The pertinent issues raised in the bill of exceptions that warrant our consideration in the determination of this case are contained in counts 1, 2, 3, 5 and 6 inclusive and we shall therefore address ourselves to the issues in these five counts in the reverse order.

Count 6 of the bill of exceptions contained a statement that the judge erred when he failed to pass upon all the law issues raised in the answer and reply as is mandatorily provided by statute; but FDA failed to mention the issues of law which the trial judge had failed to pass upon. This Court in the case, Quai v. Republic, 12 LLR 402 (1957) decided that a bill of exceptions on an appeal must show with particularity the alleged errors of the lower court. FDA failed to state the issues of law in the answer and reply that the judge in the lower court did not pass upon. Consequently, count six cannot be considered by this Court because of its ambiguity and uncertainty and therefore it is not sustained.

In count 5 of the bill of exceptions, FDA contended that the ruling of the judge on the law issues was contrary to law in that the FDA had denied facts averred by BULCO allegedly leading to the breach of contract, out of which these proceedings grew, using documentary evidence to support its denial. Yet, without the production of evidence, FDA contended, the judge ruled FDA on bare denial while disposing of the law issues.

Recourse to the judge’s ruling on the issues of law, we discovered that although the judge admitted that the answer contained factual issues from count one through eleven, yet, he dismissed the answer without indicating any ground or grounds and placed the FDA on a bare denial. From the ruling on the law issues we also observed that only counts one and two of the reply, which raised the questions that (i) FDA should have taken legal action in equity for cancellation of the management contract; and (ii) that FDA was estopped from raising the question of fraud because it had failed to seek remedy in equity, respectively, were ruled upon by sustaining them. The judge made no reference to the remaining six counts of the reply and the eleven counts in the answer neither did he state in his ruling the legal ground or grounds on which he had dismissed the entire answer so as to afford this Court an opportunity to review said ruling. The dismissal of the answer, pregnant with both factual and legal issues, without passing upon them, was error. Count 5 of the bill of exceptions is sustained.

In counts 2 and 3 of the bill of exceptions, FDA complained that the judge erred in preventing FDA and its witnesses from testifying after the witnesses had been qualified without any objections and sequestrated. The records reveal that after BULCO had rested evidence, FDA outlined the theory of its case and had its witnesses qualified and sequestrated. When the first witness took the stand, BULCO objected to the witness testifying in the case because FDA was on bare denial and if the witness was allowed to depose, he would introduce affirmative matters. This application was strongly resisted by FDA on the ground that the witness having been qualified and sequestrated by court in the presence of BULCO without objection from BULCO, BULCO was guilty of laches and therefore the witness should be permitted to testify.

The court then ruled as follows:

“THE COURT: The plaintiff in this case had objected to the witness on the stand testifying in this case on the ground that the said defendant having been ruled to a bare denial of the factual allegations and law laid in the complaint and the reply, to testify or give testimony, will be an attempt to introduce affirmative matters, which by operation of law they are barred from doing. The defendant resisting, has told the court that the plaintiff suffers laches having sat mute until the witnesses were qualified and, therefore, could not now bar them from testifying in this case.

To prevent the qualification of any person to testify in a case, the person so seeking to prevent such qualification must set two reasons therein. First, he must show that the witness has been convicted of infamous crime and therefore cannot be qualified to testify, or that he has listened to the testimony of another witness on the same side. Hence, these would constitute the genuine grounds for disqualification of a witness to testify in a case. In the instant case the plaintiff has not raised these points, but rather, has maintained that the defendant, having been ruled to a bare denial, could not give testimony because by so doing it will be attempting to introduce affirmative matters.

Where a witness has taken the stand to testify, it would be out of the practice for any party, for that matter, to stop such testimony, perhaps on any ground outside those that might disturb the trial proceeding. It is true that since the defendant has been ruled to a bare denial of the allegations, it is barred from introducing any affirmative matter. Neither the court nor any party is able to deter-mine what evidence a witness who has been qualified may produce in a trial and, for this reason, it is the practice and procedure that a party that is ruled to a bare denial of the allegations of facts stated in the complaint and the reply may enjoy the right of cross examining witnesses for the other side, but to introduce evidence, there is a positive likelihood that matters of affirmative nature would certainly be introduced into the trial. No witness will get on the stand and simply say I did not, I was not and I am not; which should be the only plea under the rule of bare denial. To avoid the complication being introduced into a trial, one who is ruled to a bare denial may not testify but can only cross examine the witnesses of the adversary. Hence, it was at the proper time, from the feeling of the court that the plaintiff objected to this witness giving testimony in this case, because by so doing he is likely to introduce affirmative matters which it is barred from doing.

Wherefore, and in view of the foregoing this court hereby denies the defendant the right of testifying in this case, and they will remain resting upon the bare denial. And it is hereby so ordered.” Sheets seven and eight of 37th Day’s Session, Monday October 27, 1980.”

We quote the relevant statute controlling a defendant being placed on a bare denial.

“If a defendant appears within the time prescribed by section 3.62, his failure to interpose an answer shall be deemed a general denial of all the allegations in the complaint. At the trial, such a defendant may cross examine plaintiffs’ witnesses and introduce evidence in support of his denial, but he may not introduce evidence in support of any affirmative matter.” Civil Procedure Law, Rev. Code 1: 9.1(2).

It was error therefore for the trial judge to prevent FDA and its witnesses from testifying in support of FDA’s denial. So counts 2 and 3 of the bill of exceptions are therefore sustained.

FDA argued in count one of its bill of exceptions that the verdict of $73,845.50 is against the weight of the evidence adduced at the trial because BULCO failed to prove said amount complained of. On the other hand, BULCO strongly maintained that as a prerequisite to the taking of an appeal in a jury case the appellant must first file a motion for a new trial and that FDA, having failed to file motion for a new trial, is estopped from appealing from the verdict and final judgment.

Our distinguished colleague has voted with us on all the issues we have decided on above but disagreed with us on this point because he strongly maintained that the word “shall” in a statute is mandatory and therefore FDA’s failure to file a motion for a new trial precludes it from appealing in this case.

Whilst it is true that the word “shall” is a word of command and one which has always, or which must be given a compulsory meaning as denoting obligation and generally imperative or mandatory, it is equally true that the word “shall” may be construed as merely permissive or directory (equivalent to h

“may”) to carry out legislative intention. BLACK’S LAW DICTIONARY 1549 (41 ed.); 30 Cyc. 1160-1161, §VII (8) (b).

Our distinguished colleague has cited the cases Koffa v. Republic, [1939] LRSC 2; 6 LLR 336 (1939); Gardiner, Jr. v. Republic of Liberia, [1944] LRSC 28; 8 LLR 406, 413 (1944); Bryant v. The African Produce Company, U.S.A.[1941] LRSC 9; , 7 LLR 221 (undated) and Bility v. Sirleaf, [1976] LRSC 68; 25 LLR 319 (1976) to buttress his contention.

In the case Minor et al., v. Pearson et al.[1912] LRSC 7; , 2 LLR 82 (1912), this Court held that if no motion is made to set aside a verdict and for a new trial, an appeal can be taken from a final judgment if exceptions are taken to the verdict and judgment. This Court maintained in the above opinion that the statute relating to exceptions to verdicts and the motion for a new trial is not mandatory in the sense that a party can attack a judgment only by pursuing this course. This Court also ruled that an order of the trial court granting or overruling a motion to set aside the verdict of a jury and granting a new trial is not a final judgment or order, for the reversal of such error can be prosecuted before the final disposition of the case. The principle enunciated in this opinion was recalled in the case, Koffa v. Republic, [1939] LRSC 2; 6 LLR 336 (1939) when the Court maintained that:

“From the text of the statute in this respect, it is very plainly obvious that no appeal can be taken or allowed from any verdict of a jury in any question of mere fact, except to the court in which the case was tried; that is to say, all exceptions to a jury’s verdict on questions of mere fact must be first submitted to the court in which the cause is tried; and an exception taken to a verdict on a question of mere fact and not submitted to the consideration of the trial court by a motion for new trial cannot be taken advantage of on appeal in the appellate court. Hence, after careful consideration we are not in accord with the opinion expressed by this Court on this subject in the case Minor et al., v. Pearson et al.[1912] LRSC 7; , 2 LLR 82 (1912), and that point in said case is therefore hereby recalled.”

The same principle of law expounded in the case Minor et al., v. Pearson et al., relating to the non filing of motion for a new trial and recalled by this Court in the case Koffa v. Republic was raised in the Bryant v. African Produce Company case[1940] LRSC 4; , 7 LLR 93, 99 (1940) and this was the position of this Court:

“This Court in an opinion handed down in the year 1912, in the case of Minor et al., v. Pearson et al.[1912] LRSC 7; , 2 LLR 82, held that if no motion is made to set aside a verdict and for a new trial, an appeal can be taken from a final judgment, if exceptions are taken to the verdict and judgment.

In view of the statute just above recited, we have to modify that portion of said opinion and lay down the following instead of the principle therein enunciated:

If no motion is made to set aside a verdict and for a new trial, an appeal can be taken from a final judgment if (a) exceptions are taken to the verdict and final judgment, and if (b) the appeal itself is taken on questions of law or mixed questions of law and fact raised and passed upon during the trial and, if (c) exceptions have been taken to the particular matter on appeal.”

Coincidentally, the opinion recalling the portion of the opinion in the case, Minor et al., v. Pearson et al., regarding the non filing of motion for new trial, and the opinion modifying the same principle in the case Bryant v. African Produce Company, were delivered by the same Justice on the same statute.

Our position with reference to our colleague’s contention is that the present statute on the filing of motion for a new trial is permissive and not mandatory as the former statute because of the phrase “in any case” which is suggestive of an alternative. We quote the two statutes, the former which has been amended, and the present for the benefit of this opinion:

“In order to be entitled to take an appeal, a party shall be required to take all appropriate actions to obtain relief from the trial court; when the verdict is brought in, he shall move for a new trial, and when the judgment is rendered, he shall except to the judgment. He shall give notice that he will appeal to the next term of the appellate court.” Civil Procedure Law, 1:1011.

“Before announcing the taking of an appeal, a party in a jury case shall move for a new trial after a verdict, and, in any case, shall except to the judgment.” Civil Procedure Law, Rev. Code 1:51.5.

The word “any” in the phrase “in any case” as provided in the present statute makes the first “shall” permissive, for “any” may mean one indefinitely out of an indefinite number and when used in statute, it should be construed as to make its meaning comport with the general scheme of the statute in which it is used. It means one out of many and is often synonymous with the word “either”. Either is defined as each of two, the one or the other, one or the other of the alternatives. BLACK’S LAW DICTIONARY 463 (51 ed.).

Since to amend an existing statute is to modify or effect an improvement on it to better carry out the purpose for which it was framed, what evil or mischief did the legislature intend to cure when they amended the former statute, which was absolutely mandatory, if not to make the filing of a motion for a new trial permissive? We therefore hold that under the present statute in force, the filing of a motion for a new trial is not mandatory; however, it is mandatory that before one should appeal from a judgment confirming a jury’s verdict, he must except to the judgment, whether he files a motion for a new trial or not. The present statute on the taking of an appeal in a jury case is in conformity with the opinion of this Court in the case Bryant v. The African Produce Company, U.S.A., [1940] LRSC 4; 7 LLR 93 (1940). The principle therefore, that a waiver of one’s legal right does not bar one from resorting to another is applicable in this case.

We further observe that FDA has not only excepted to the jury verdict but also to the judge’s ruling in dismissing its answer without any legal ground prior to the trial of the case on the facts. Granted that a new trial was prayed for and awarded, the judge presiding over the new trial would be precluded from disposing of the law issues. Instead, he would commence with empanelling of a trial jury. Therefore a motion for a new trial would be unnecessary even if the statute had made it mandatory because the judge’s act was prior to the trial of the facts and the appeal was also taken on questions of law and fact. The weights of authority on this count maintain that:

“A motion for new trial may be unnecessary to preserve the matter for review in some circumstances as where, because of the nature of the question involved, such a motion would be inappropriate; where the alleged errors relate to matters arising prior to the trial, or on a ruling on a motion after judgment, or because the question arose in a trial by the court without a jury or in an equity case. In some jurisdictions the motion is held to be unnecessary where an exception to the court’s ruling on the question was duly taken at the time. In some instances, the motion is unnecessary by virtue of statutory provision,” 5 AM. JUR. 2d. Appeal and Error, §553.

Further in cases where the issues of law were not properly passed upon before trial or dismissal of the cases, the cases were remanded for a new trial with instruction as is in the instant case.

In passing we wish to indicate that we see no conflict in the opinions relied upon by our distinguished colleague and ours, since those opinions were based upon the provision of the statute at the time while ours is predicated upon the provision of our present statute.

In view of the laws cited and the facts aforementioned, it is our opinion that this case be remanded for a new trial beginning with the disposition of the law issues of the pleadings already filed. Costs to abide final determination of this case. And it is so ordered.

Judgment reversed; case remanded.

MR. JUSTICE MABANDE dissents.

This suit arose out of a management contract to which both litigants are parties. The case was heard and verdict brought by the jury in favour of plaintiff, and judgment was rendered accordingly. Without the filing and hearing of any motion for new trial, the defendant, appellant before this Court, filed a thirteen count bill of exceptions and processed its appeal for our consideration. The issue presented by the records of this appeal is whether a party may appeal from a judgment based on a verdict without firstly filing a motion for new trial.

This Court has on too many occasions refused to open case files to determine the merits of causes where parties in conforming with the procedural steps made error in filing even one of the several procedural documents. It gave as its legal support that the procedural steps for the taking of an appeal are mandatory and must be exactly followed. We have dismissed cases where, even though all of the other appeal documents were duly in form and text, the certificate of the clerk of the trial court failed to indicate on the copy of a bond that a 25¢ revenue stamp was affixed on the original. Payne v. Dingwall et al. [1970] LRSC 30; 20 LLR 21, (1970).

In the case Minor et al., v. Pearson et al.[1912] LRSC 7; , 2 LLR 82 (1912) it was held that the then statute relating to the filing of an exception to a verdict and the motion for a new trial was not mandatory for an appeal. The Court held that the filing of such a motion was a better practice but that without a law supporting the practice it was not binding. The Court concluded that if no motion is filed for a new trial, an appeal can be taken if the party against whom the adverse verdict is brought excepts to the judgment. However, in the case Koffah v. Republic, [1939] LRSC 2; 6 LLR 336 (1939), the Court recalled the Minor et al., v. Pearson et al., case and upheld the procedural law which read as follows: “There shall be no appeal from any verdict of a jury, in any question of mere fact, except to the court in which the case was tried, for the purpose of setting aside the verdict in the manner herein before provided for.” A motion for new trial after a verdict is brought against a party, the Court held, is compulsory tinder our law as a procedural prerequisite for announcing an appeal. Without compliance with this statutory requirement, an appeal cannot legally lie before this Court.

On the question of whether a party who does not apply for a new trial after the rendition of an unfavorable verdict may appeal to this Court for a review of the case, the Court also held in the case Gardiner, Jr. v. Republic, [1944] LRSC 28; 8 LLR 406, 413 (1944) that “Appellant in this instance failed to take advantage of the legal safeguard afforded him to seek relief. The genius of our law being that every effort should be made to obtain relief in the trial court and only after that party shall have exhausted the means placed at his disposal by the law should an appeal to this Court of dernier resort can be permitted.”

The statute on appeals prescribed the jurisdictional steps each which must be strictly adhered to as the omission of one step may deprive the appellate court of the power to determine the merits. Bryant v. The African Produce Company, U.S.A., [1941] LRSC 9; 7 LLR 221 (undated); Bility v. Sirleaf, 25 LLR319 (1976).

Because of the contradiction of the majority opinion with the numerous opinions of this Court and the statute, it is imperative for me to dissent. I hold the view that it is mandatory for the courts and every litigant to comply with the law. Those who fail or refuse to comply with the law should not be allowed to take advantage of their disobedience and be profited by the protection of the very law they violate.

The relevant section of the current procedural law in issue reads:

“Prerequisites to appeal.

Before announcing the taking of an appeal, a party in a jury case shall move for a new trial after a verdict, and, in any case, shall except to the judgment.” Civil Procedure Law, Rev. Code 1:51.5.

This is the law on motion for new trial which is pertinent and material to the issue before us. The caption of this law in specific and unambiguous words specified that portion of the procedural step as a prerequisite to appeal. It commands what a litigant should do after a verdict is brought against him before he can announce an appeal after the rendition of judgment. If this statute is not mandatory as the majority now holds then announcing an appeal and processing appeal papers are not also mandatory.

I firmly hold that a party must first move the trial court for a new trial as required by the law before he can legally appeal and be heard by this appellate Court.

The reason for this law is to save the appellate court from the burden of needlessly crowding its docket with cases that will have to be remanded for new trial. The motion for new trial is intended for the aggrieved party to point out to the trial court his objections to the verdict and the irregularities committed at the trial that, in his opinion, rendered the verdict contrary to law and the evidence. By this procedure, the trial court is enabled to review its own acts and ascertain whether or not the verdict should be sustained.

The exercise of this right and duty of the trial court was prevented by the neglect of appellant to follow the procedural prerequisite for the taking of an appeal. This Court cannot and should not therefore aid a violator of mandatory procedural statutes. By its conduct, appellant has deprived the trial court of its right to hear the motion for new trial and by bringing this appeal before us, appellant has in fact called upon this Court to illegally exercise the functions of the trial court. To do so, is ridiculous and judicially unsound.

The procedural steps necessary to effecting an appeal are subject of legislative regulations which this Court should not easily overlook or defective appeals will flood its Chambers.

Because the majority opinion rejects the prevailing procedural law, and the correctness of the previous unreversed opinions, I dissent.