FORESTRY DEVELOPMENT AUTHORITY (FDA), Appellant, v. STEPHEN NIMLEY et al. and THE BUREAU OF LABOUR STANDARDS, Ministry of Labour, Appellees

APPEAL FROM THE NATIONAL LABOUR COURT, MONTSERRADO COUNTY.

Heard: November 23, 1988. Decided: December 30, 1988.

1. Review by the Supreme Court is confined to the records certified to it.

 

2. A judge shall of his own motion take judicial notice of public historical facts that are so well known as not to be a subject of reasonable dispute.

 

3. Judicial notice is the cognizance of certain facts which a judge under rule of legal procedure or otherwise has properly taken or acted upon without proof because they are already known to him, or because of that knowledge which a judge has, or is assumed to have by virtue of his office.

 

4. The Supreme Court will not entertain an issue raised for the first time on appeal.

 

5. Tort is a private or civil wrong or injury; wrong independent of contract. There must always be a violation of some duty owing to plaintiff, and generally such duty must arise by operation of law and not by mere agreement of parties. Three elements of every tort action are: I. Existence of legal duty from defendant to plaintiff; 2. Breach of duty; and 3. Damage as proximate result.

 

6. The Supreme Court will review an issue on appeal that was raised in the court below but which the trial judge failed to act upon.

 

7. Where want of jurisdiction over a cause appears from the record, a party may make a plea in abatement or object to jurisdiction at any stage of the proceeding.

 

8. Any act of a court that is beyond the jurisdiction conferred by law is null and void.

 

9. The best evidence which a case admits of must always be produced; no evidence is sufficient which supposes the existence of better evidence.

 

10. The burden of proof rests on that party who alleges a fact.

 

11. Where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party.
Appellees, 168 former employees of appellant, filed a complaint with the Ministry of Labour, alleging that they had been declared redundant and had not been compensated as provided for under the Labor Practices Law of Liberia. After taking evidence, the hearing officer ruled in favor of the appellees, ordering their reinstatement or payment in lieu thereof. Following an appeal to the National Labour Court by appellant, the said court confirmed the ruling of the hearing officer. Appellant then appealed to the Supreme Court of Liberia. In its review, the Supreme Court refrained from addressing the issue of judicial notice which had not been raised before the hearing officer. It however held that the hearing officer erred in passing on an issue in tort over which he had no jurisdiction. The Court further found that the hearing officer had failed to gather pertinent facts in support of his decision. The Court therefore remanded the case with instructions to the hearing officer to rehear same and rule consistent with law. Reversed and remanded.

 

Alfred B. Flomo for appellant. Henrietta Koenig for the appellees.

 

MR. JUSTICE BELLEH delivered the opinion of the Court.

 

The appellees in this case, comprising 168 employees of the Forestry Development Authority of Liberia, through their counsel, on March 11, 1986, filed a complaint with the Ministry of Labour alleging, among other things, that “defendant FDA has unscrupulously declared complainants unproductive employees without payment of the necessary accrued benefits, i.e. redundancy pay, annual 1 eave, insurance, salary arrears, and savings bonds certificates.”

 

After hearing evidence on both sides, the hearing officer ruled in favor of appellees and ordered their reinstatement by appellant or payment in lieu thereof. He further ordered that the employees should be compensated for five years and two years respectively, according to the number of years served and, further, that appellant should refund whatever premiums had been paid by appellees for their insurance coverage. Appellant, being dissatisfied with the ruling, filed a petition before the National Labour Court for Montserrado County for judicial review thereof.

 

Accordingly, on the 19th day of January 1988, the National Labor Court for Montserrado County, presided over by His Honour Arthur R. Williams, after hearing argument pro et con on the petition, rendered a decision against appellant, confirming and affirming the ruling of the hearing officer and ordered the appellant to pay the total sum of $1,407.267.81. Appellant excepted and announced an appeal to this Honourable Court for a final review upon a bill of exceptions containing five counts.
In count one of the bill of exceptions, appellant contended that the trial judge committed a “reversible and prejudicial error” when he failed to pass upon an issue of “avowed fiscal policy” of the Government of Liberia, to dismiss all unproductive, inefficient and incapacitated employees following the November 12, 1985 abortive invasion. This issue which was raised in count four of petitioner’s petition, is a historical fact of which this Honourable Court is, by statute, bound to take judicial notice. Our statute on judicial notice provides that: “the judge shall of his own motion take judicial notice of public historical facts that are so well known as not to be a subject of reasonable dispute.” Civil Procedure Law, Rev. Code 1:25.2, Judicial Notice.

 

Judicial notice is defined as “the cognizance of certain facts which a judge under rule of legal procedure or otherwise has properly taken or acted upon without proof because they are already known to him, or because of that knowledge which a judge has, or is assumed to have, by virtue of his office.” BALLENTINE’S LAW DICTIONARY 5 & 6 ( 3′ ed.).

 

The issue presented is whether or not appellant’s contention in respect of “judicial notice” was brought to the attention of the hearing officer when the complaint was heard, since the record is silent on the issue. Under our practice and procedure, judicial review by this Court is confined to the records certified to us for review and, in the absence of any showing that a particular issue was raised in the court below and that the trial judge failed to pass upon same, we cannot entertain such issue when raised for the first time on appeal. Therefore, under these circumstances, count one of the bill of exceptions is not sustained.

 

In count two of the bill of exceptions, appellant contended that the Ministry of Labour is without jurisdiction to award damages for tort and there is no evidence offered at the hearing that the petitioner undertook and obligated itself to refund respondents’ premiums or proceeds in the case of dismissal from the employ of petitioner/appellant. Tort is defined as “a private or civil wrong or injury. A wrong independent of contract. There must always be a violation of some duty owing to plaintiff, and generally such duty must arise by operation of law and not by mere agreement of parties. Three elements of every tort action are:
1. Existence of legal duty from defendant to plaintiff;

 

2. Breach of duty; and

 

3. Damage as proximate result.” BLACK’S LAW DIC-TIONARY 1660 (4th ed).

 

By the act of the Legislature approved December 31, 1971, the Ministry of Labour and Youth was created, replacing the National Labor Affairs Agency, which had the responsibility of administering labor laws under the act of December 20, 1966. The Ministry of Labour and Youth was especially charged with the promotion, development, direction and supervision of all government programs and activities relating to labor and youth.

 

As to the claim for the insurance premium being an action in tort as the result of some breach of duty by appellees’ employer over which the Ministry of Labour has no jurisdiction, we are of the opinion that the hearing officer grossly erred when he included in the computation awards representing refunds of the insurance premium paid by appellees.

 

In the case Hill v. Republic, [1925] LRSC 7; 2 LLR 517 (1924), this Court held that “where want of jurisdiction over the cause appears upon the records, it may be taken advantage of by a plea in abatement or objection made to the jurisdiction at any stage of the proceedings; for any act of a court beyond the jurisdiction conferred upon it by law is null and void.” In view of the law cited, it is our holding that the hearing officer of the Ministry of Labour exceeded his jurisdiction by the inclusion of the insurance premium in the award made in favor of appellees. Count two of the bill of exceptions is therefore sustained.

 

Counts 3, 4 and 5 of the bill of exceptions attacked the judge of the National Labour Court for confirming and affirming what appellant referred to as “erroneous and prejudicial ruling of the hearing officer.” According to appellant, the ruling of the hearing officer is not supported by sufficient evidence in, that the best evidence which the case admits of was never adduced at the hearing in support of the allegations contained in the complaint.

 

For the benefit of this opinion, we hereunder quote the relevant portions of the testimonies of appellees’ three witnesses who appeared before the hearing officer to testify for the appellees.

 

FIRST WITNESS, EDWIN SNOGBEH:

 

Q. Are you a spokesman and/or legal representative of the dismissed employees of FDA, now complainants in this case’?”

 

A. Yes.

 

Q. By your answer, you will please state briefly in support of the complaint filed with this ministry on March 26, 1986, all that you know of or concerning this case? Will you now proceed?
A. Yes, we have a list here containing about 168 men. Some served the system for 10, 12, 15 and up to 24 years. During the tenure of our services, some of us were given certificates of merits awards by the management of Forestry Development Authority in March, 1985. Now, a few months after the receipt of the certificate of merit awards, Forestry Development Authority declared us to be nonproductive, inefficient, etc. We were dismissed without notice, and are therefore claiming the following compensation.

 

We need our insurance deduction from our salaries; we want pay in lieu of notice; we want our severance pay; we want our transportation to come to Monrovia; we want our annual leave pay and our pay gratuity, that is all.

 

The second witness for appellees testified as follows:

 

Q. Mr. Witness, Messrs. Stephen Nimely et al, filed a complaint against the management of Forestry Development Authority. Would you tell the investigation all that you know in your certain knowledge with respect to this complaint filed by Messrs. Stephen Nimely et al?

 

A. Yes, I will. From the 20th of November to December 1, 1985, Messrs. Stephen Nimely, et al. were declared redundant and non-productive. Some of us got our letters from November 10, up to November 18, 1985. During this period, FDA refused to pay us, and up to now we have never been paid. Therefore, we who know our rights and have contacted our legal counsel to claim from the management of FDA our severance pay, bonus from 1980 up to 1985; our leave pay for those who did not go on leave for 1985; the insurance we have been paying from 1976 up to 1985, and the arrears for the months since our termination, as well as the other stipulations made in our claims. Some of the employees declared redundant and non-productive have been awarded certificates of merit for the sacrificial services rendered FDA. This honor was given them on March 1, 1985 at the Monrovia City Hall. After few months, they were declared unproductive, inefficient and so forth, according to the letter written by FDA management. And I submit.

 

The third and last witness for the appellees testified as follows.

 

Q. Your fellow complainants have cited you as a witness to testify on their behalf. Will you please tell the investigation all that you know within your certain knowledge?

 

A. I was employed at the FDA in 1975. In the year 1985, I was given a certificate of award. Within the same year, December 9, 1985, I was given a letter of redundancy without benefits. Usually, when you are declared redundant, you are supposed to get your leave pay, one month in lieu of notice pay, severance or gratuity pay, insurance benefit you’re your arrears, that is your back-pay. From then up and including this day, we have not received such pay. And I submit.

 

We observe from the records that the 168 claimants and/or appellees who are former employees of FDA. The complaint that was written by appellees’ counsel states that the same were written on behalf of Stephen Nimely and et al.; yet, during the trial, Stephen Nimely did not take the stand to testify. Instead, it was the above named witnesses who appeared and testified on behalf of the 168 persons. There was no indication made in their testimonies as to the number of years served by each person while in the employ of FDA, appellant herein. Yet, the hearing officer undertook to have awarded two to five years salaries, respectively, in favor of the appellees.

 

Under the law, “the best evidence which the case admits of must always be produced; that is, no evidence is sufficient which supposes the existence of better evidence.” Civil Procedure Law, Rev. Code 1: 25.6 (1), Best Evidence. Moreover, the ” burden of proof rests on the party who alleges a fact, except that when the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.” Civil Procedure Law, Rev. Code 1:25.5 (1), Burden of Proof.

 

In view of the what we have narrated, and the laws cited, coupled with the circumstances in this case, it is our considered opinion that the case be, and the same is hereby remanded to the hearing officer of the Ministry of Labour with instructions that he proceeds to conduct a re-hearing of the matter and make a ruling thereto in keeping with law. And it is so ordered.

Reversed and remanded.