FIRESTONE PLANTATIONS COMPANY, by and thru its General Manager, Appellant, v. JOHN BRABY, Appellee.

APPEAL FROM THE CIRCUIT COURT FOR THE THIRTEENTH JUDICIAL CIRCUIT, MARGIBI COUNTY.

Heard: March 31, 1992. Decided: September 4, 1992.

1. Issues not raised in the court below and not presented in a timely manner on appeal will not be considered by the Supreme Court.

 

2. Pleadings shall consist of a complaint and an answer; and there shall be a reply to an answer which contains an affirmative matter or a counter claim.

 

3. Averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading. Therefore, where no responsive pleading is filed, the averments in the pleading which required such responsive pleading are deemed admitted.

 

4. Where a party seeks to recover special damages, he must first squarely plead such damages and must, at the trial, particularly prove the special damages pleaded.

 

5. The verdict of the jury should be in conformity with the law explained by the court to the jury, as well as the evidence adduced at the trial.

 

6. Whilst it is within the sole province of the jury to try and determine the facts in the case, when its conclusions are against the law, evidence or the instructions of the court, the verdict should be set aside and a new trial ordered so that the ends of justice are fully met.

 

Appellee, John Braby, instituted an action of damages for wrong against the Firestone Plantations Company, appellant herein, alleging that members of the Plant Protection Force, agents of the appellant, had entered his home and “searched, ransacked, and pillaged” it without . a search warrant. Appellee therefore claimed that as a result of the “illegal” search he lost property and cash in the amount of $25,847.50, which he asked the court to give him as special damages. He also prayed the court for general damages “in keeping with law in such cases made and provided”. In its answer, the appellant denied all the allegations in appellee’s complaint and produced a copy of the search warrant, marked exhibit B-1, issued by the Magisterial Court in Bondiway in support of its position.

 

The appellee did not file a reply to the appellant’s answer to rebut the denials and other statement of facts contained in the answer. Notwithstanding, the trial court ruled in favor of the appellee. The appellant then filed a motion for a new trial which was denied by the court. It is from this adverse ruling that the appellant appealed to the Supreme Court.

 

The Supreme Court determined two issues: (1) whether the appellee’ s constitutional rights against illegal search and seizure were violated by the appellant; and (2) if such violation did occur, did the appellee adduce sufficient evidence at the trial to entitle him to special and general damages? In answer to the questions presented, the Court noted that the appellee was legally served with a search warrant prior to the search of his home. The Court also held that the appellee had not proven sufficiently that he had suffered the special damages claimed by him. Therefore, the Court said, the trial court judge should have set aside the jury’s verdict and award a new trial. The judgment of the lower court was therefore reversed.

 

H Varney G. Sherman of the Sherman & Sherman Law Firm appeared for the appellant. No one appeared for the appellee.

 

MR. JUSTICE BULL delivered the opinion of the Court.

 

This civil suit comes up on appeal from the 13 th Judicial Circuit, Margibi County. The appellee filed an action of damages for wrong against the appellant in the lower court. In his four-count complaint, the appellee alleged that the appellant’s employees had violated his constitutional rights when its Plant Protection Force forcibly entered his (appellee’s) home during appellee’ s absence and without a lawful search warrant, searched, ransacked and pillaged appellee’s home. The appellee alleged that in the process of this illegal search, he lost cash in the sum of twenty thousand, eight hundred twenty-three dollars and fifty cents ($20,823.50), together with personal properties to the value of five thousand, eight hundred forty-seven dollars and fifty cents ($5,847.50). The complaint placed the appellee’s total loss at twenty-five thousand, eight hundred forty-seven dollars and fifty cents ($25,847.50). The appellee prayed the court to award him special damages in the sum of twenty-five thousand, eight hundred forty-seven dollars and fifty cents ($25,847.50) and general damages which he stated should be “in keeping with law in such cases made and provided.” To this complaint, the appellant filed an answer containing eleven counts. In its answer, the appellant denied violating appellee’s constitutional rights since, according to appellant, its employees did not forcibly enter appellee’s home, nor ransacked, searched and pillaged same. Further, the appellant averred that it obtained a search warrant, issued out of a court of competent jurisdiction, the Bondiway Magisterial Court, after receiving information that some wooden doors owned by the appellant had been stolen and were believed to be stored in appellee’s home. The appellant exhibited with its answer a copy of said search warrant from the Bondiway Magisterial Court, which was marked exhibit “B- “. The appellant alleged further that the search warrant was issued to the commanding officer of the Bondiway magisterial area and was served on appellee who, after being served, voluntarily led a joint team of officers to his home consisting of officers of the magisterial court, together with some military officers and officers of the National Police Force; that the appellee was present during the search and remained present until all of the persons who conducted the search had left the appellee’s premises after the search was completed. The appellant also denied that its employees took away from the appellee’s home any of the property or cash which the appellee, claimed he had lost as the result of the search.

 

The appellee did not file a reply to appellant’s answer to rebut the denials and other statement of facts made in the said answer. The trial of the suit ended in a verdict in favour of the appellee, the plaintiff below. The appellant excepted to the verdict and filed a motion for new trial. The motion essentially alleged that the special damages claimed by the appellee claimed were not specifically proved at the trial, thereby rendering said verdict contrary to the evidence adduced at the trial. The appellant further contended that appellee’s premises were searched upon the authority of a search warrant which was duly obtained from a court possessing competent jurisdiction to issue a search warrant, and that the said search warrant was properly served and executed.

 

Appellee, in his brief filed before this Court, raised the issue of personal service of the search warrant on his person and failure of any returns to show such personal service. However, this issue was never squarely raised in any pleading of the appellee so that same could be argued and passed upon by the trial judge who sat upon the issues of law that were raised in this case. Neither was this issue contained in the appellee’s resistance to the appellant’s motion for a new trial, nor raised during the trial of the civil suit now on review. This Court has held on numerous occasions that issues not raised in the court below and not presented in a timely manner on appeal will not be considered by the Supreme Court. John v. Republic, 13 LLR 143 (1958) andFlood v. Alpha, [1963] LRSC 31; 15 LLR 331 (1963). The two cases cited explicitly present the general rule in this jurisdiction with respect to issues of law which this Court can adjudicate on appeal. The one exception to the rule is the issue of jurisdiction of the court over the subject matter in an action, which may be raised at any time even though not raised in the trial court.

 

Thus, it is our opinion that the final determination of this case, which we have been called upon to review, must rest principally upon our consideration of the following two issues: Firstly, was appellee’s constitutional rights against illegal search and seizure violated by the appellant? Secondly, if such violation did in fact occur, did the appellee adduce at the trial of this action sufficient evidence under our law which would entitle him to the special and general damages which he prayed for in his complaint?

 

Every person who resides in the Republic of Liberia and is subject to its jurisdiction is guaranteed protection under Article 21(b) of our Constitution against unlawful search and seizure of his person or property. This guarantee is a fundamental right which must at all times be enjoyed and must never be denied. For purposes of this opinion, we quote below the provision of the Constitution:

 

“No person shall be subject to search or seizure of his person or property, whether on a criminal charge or for any other purpose, unless upon warrant lawfully issued upon probable cause supported by a solemn oath or affirmation specifically identifying the person or place to be search and stating the object of the search; provided, however, that a search or seizure shall be permissible without a search warrant where the arresting authorities act during the commission of a crime or in hot pursuit of a person who has committed a crime.” LIB. CONST., Art. 21(c) (1986).

 

Where a warrant must be used to carry out a lawful search, it must therefore rest upon the fact that it was obtained upon probable cause supported by a solemn oath or affirmation, specifically identifying the person or place to be searched and stating the object of the search. Let us examine the search warrant in the case now under review in respect to its issuance and service.

 

Upon a review of the search warrant which appears in the certified records before this Court, it is observed that said warrant is directed to Lawrence Colliegbo, commanding officer, Bondiway magisterial area or his deputy police for said area, commanding him to search Research Camp, D-45 House, 0/S No. 1, the appellee’ s house, and also its attachments and other houses to be identified in Research Camp. The warrant further identified the property to be searched for as white doors, property of Firestone Plantations Company of Harbel City. The warrant was issued out of the Stipendiary Magisterial Court for Bondiway and was shown to have been issued as the result of a complaint filed before the said magisterial court by the Firestone Plantations Company’s agents who alleged that the company’s doors had been stolen and were believed to be in the premises of the appellee.

 

Looking at the testimony touching the service of the search warrant, the appellee testified and we quote: “One time I was at the office when Chief Brown sent for me at the Plant Protection Department. So I left with my pick-up and went down there and asked Mr. Brown what had happened. He told me that he was going to search my house. So I asked him for a copy of the search warrant. He said to me no, the people are here already; let’s go to the house”. From this testimony, it is not certain whether or not appellee was served with the search warrant by Chief Brown or by some other officer. However, no other witness appeared for the appellee and testified that the search warrant was served on the appellee. In other words, no other witness corroborated the appellee’s testimony regarding service of the search warrant. The appellant produced three witnesses who testified that the search warrant was served on the plaintiff/appellee. One of these witnesses, in person of police officer James Toloe, testified that the warrant was served upon appellee in his presence.

 

Apart from this testimony, the defendant/appellant in its answer stated clearly that the search warrant was applied for and obtained when it received information that some of its wooden doors had been stolen and stored in appellee’s house, and that the search warrant was served on the appellee prior to the search of appellee’s premises. The appellee did not file a reply to these affirmative statements made by the appellant in its answer and the testimony of his witnesses touching the application and service of the search warrant failed to impeach in any manner whatsoever the appellant’s assertions.

 

The plaintiff/appellee alleged in his complaint that his privacy was invaded when the defendant/appellant’s agents forcibly entered his home without a search warrant from a court of competent jurisdiction, ransacked, search, and pillaged appellee’s home, thereby violating appellee’s constitutional rights against illegal search and seizure. These allegations of fact, made by the appellee in his complaint, were denied in an answer filed by the appellant. In addition to the said denials, the appellant averred that not only was a valid search warrant obtained from a court having competent jurisdiction to issue such warrant, but that the said warrant was served upon appellee who voluntarily led the officers who conducted the search to appellee’s home; that the appellee himself opened up his home and admitted the officers therein; and that he, the appellee, was present all the time when the search was carried out and remained at the premises until the search was completed. A copy of the search warrant was proferted with the appellant’s answer. The fact of the alleged service of the search warrant upon the appellee and his voluntary act of admitting appellant’s agents and the officers into his home to conduct the search, as well as appellee’s presence during the said search, were all affirmative matters which required a reply or rebuttal.

 

The law on pleadings and practices in this jurisdiction, as found in Rev. Code 1:9.1, states that the required pleading “shall be a complaint and an answer; and there shall be a reply to an answer which contains affirmative matter or a counter claim. No other pleading shall be allowed”. It is our opinion that the appellant’s answer in the matter under review contained affirmative matters and that these affirmative matters required to be replied.

 

In view of the above cited law, we hold that the appellee’s failure to reply to the affirmative matters contained in the answer must be taken as an admission of those affirmative facts that were contained in the appellant’s answer.

 

Our statutes further provide that averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading. It follows therefore that where no such responsive pleading is filed, the averments in the pleading which required such responsive pleading are deemed admitted. Rev. Code 1:9.8; Cavalla River Company v. Pepple, [1933] LRSC 13; 3 LLR 436 (1933).

 

From the statutory and case laws referred to above, together with the testimony adduced at the trial, we have no alternative but to conclude that none of the appellee’s constitutional rights were violated by the search.

 

We shall now give consideration to the evidence which the appellee produced during the trial of the case now on review in support of his claim for special and general damages. The appellee, in his testimony in support of his claim, testified as follows:

 

“I met my door broken and all my things were taken away, video set and all were gone.”

 

After this initial and brief testimony by the appellee, several attempts were made by the appellee’s counsel to solicit from the appellee further testimony on a list of the particular personal property he claimed was missing from his home, their value, and the actual amount of cash that was lost, as alleged in appellee’s complaint. However, all of these questions were objected to by appellant’s counsel, which objections were sustained by the trial judge.

 

Finally, the appellee was permitted by the court, over the objection by the appellant’s counsel, to state the facts in appellee’s complaint that were ruled to trial. The appellee then testified to the actual amount of cash he claimed was lost as well as the value of each of the personal properties which he claimed was missing from his house as a result of the search. This was the extent of the appellee’s testimony in chief relating to the special damages which he claimed. Moreover, during the cross examination of appellee, he gave inconsistent testimonies; that is to say, his testimony in respect to the value of some of the articles claimed to be lost as a result of the search of his home differed substantially from the cost stated in his complaint for the same items. The appellee’s testimony on the cross examination casts serious doubts on the actual value of the property for which he claimed special damages. Such was the testimony on the special damages which the appellee claimed.

 

It was incumbent upon the appellee to prove at the trial the facts which he stated in his complaint. From our review of the records in this case, we have been unable to find such proof. Indeed, it is a well settled principle of law in this jurisdiction, as recorded in a long line of cases decided by this Court, that where a party seeks to recover special damages he must first squarely plead such damages and must, at the trial, particularly prove the special damages pleaded. Where such proof is lacking, a party is not entitled to an award of special damages. United States Trading Company v. King, [1961] LRSC 39; 14 LLR 579 (1961); Vianini v. Cole, [1964] LRSC 42; 16 LLR 95 (1964); and Shamag Corporation v. Turkett, [1965] LRSC 10; 16 LLR 257 (1965).

 

It is important to mention at this junction the relevant portion of the judge’s charge to the jury:

 

“The plaintiff produced witnesses to testify on his behalf but none of these witnesses testified to the fact that the search of the plaintiffs house was illegally done; nor did any of them testes to the loss of goods and the value of each. Our law provides that special damages must be pleaded with particularity and that it must be proven … In the instant case, the plaintiff has not produced a scintilla of evidence to prove his case in special damages.”

 

The judge then explained the relevant Liberian law regarding proof of special damages and then proceeded further:

 

“You have listened carefully to the evidence. If you, in your opinion, have the abiding conviction that the plaintiff has proven the damages he sustained and that the search warrant was illegally obtained and served and the magistrate and court had no part to play in the issuance and returns of the search warrant, then you may bring a verdict in favour of the plaintiff. But if in your opinion the search warrant was obtained legally, issued by the magistrate and served in keeping with law, then you cannot hold the defendant in damages, especially if in your opinion the plaintiffhas not proved the damages claimed, which I have just explained to you.

 

You may go into your room of deliberation and, after deliberation, bring a verdict in keeping with the evidence and the law controlling.”

 

It is our opinion that the judge’s charge to the jury in this case was comprehensive and explicit. This being so, it is difficult to imagine why the jury, in the face of this charge and the evidence produced at the trial, would bring a verdict in favor of the plaintiff.

 

As early as 1897, in the case Birch v. Quinn, [1897] LRSC 8; 1 LLR 309, at 310, the rule was first established in this jurisdiction that the verdict of the jury should be in conformity with the law explained by the court to the jury, as well as the evidence adduced at the trial. This rule exists until now. Whilst it is within the sole province of the jury to try and determine the facts in the case, when its conclusions are against the law, the evidence or the legal instructions of the court, the verdict should be set aside and a new trial ordered so that the ends of justice are fully met. This principle of law still stands today.

 

It is our opinion that, based on the above law and the evidence which was produced in the court below during the trial of the case now under review, the judge should have set aside the verdict of the jury and award a new trial. His failure to do so was an error.

 

In conclusion, we are of the opinion that the judge erred in denying the motion for a new trial as it was evident from the facts presented in this case that the plaintiff had failed to establish that his premises was illegally searched without a valid search warrant properly issued, and that he suffered either special or general damages as a result of such search. Therefore, the verdict being contrary to the evidence produced at the trial and the instructions given by the court, said judgment is hereby reversed with costs against the appellee. And it is hereby so ordered.

Judgment reversed