MUSA KANNEH, Appellant, v. J. WARIEBI & SONS, Appellee.
APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: June 10, 1982. Decided: July 9, 1982.

1. To assign as error the giving or the failure to give instructions to the jury by the judge, the party must object to the instruction before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

2. A motion for new trial shall be granted and the verdict set aside, where it is based on facts not pleaded or ruled to trial.

3. Introducing or testifying to new facts not pleaded or ruled to trial is a violation or breach of the fundamental principles of notice, and a judge acts ultra vires where he permits a party to do so.

Appellant instituted an action of damages for wrong in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County. During the trial, the lower court permitted the appellee to introduce evidence on matters not pleaded in the answer and ruled the case to trial. A verdict of not liable having been returned in favor of the appellee, appellant moved for new a trial on the grounds that the verdict was illegal. The court denied the motion and rendered its final judgment affirming and confirming the verdict. From this final judgment, appellant noted his exceptions and appealed to the Supreme Court.

The Supreme Court, upon review of the records and evidence, concurred with the appellant that the trial judge acted ultra vires when he permitted appellee to introduce facts which were neither pleaded in the appellee’s answer nor ruled to trial. The judgement appealed from was therefore reversed and the case remanded for a new trial.

J. Dossen Richards appeared for appellant. P. Amos George and John Mathies appeared for the appellee.

MR. JUSTICE MORRIS delivered the opinion of the Court

The plaintiff, appellant herein, instituted an action for damages for a wrong against the defendants/appellees in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, during the 1971 December Term of the said Court. Pleadings rested with the reply. Law issues were disposed of, a trial had, a verdict of not liable returned in favor of the appellee, and final judgment rendered thereon affirming and confirming said verdict. Appellant, being dissatisfied, has appealed to this Court for review of the records and a final determination of the case.

Count one of the bill of exceptions states that appellant requested the judge to charge the jury on the principle of law with respect to the effect of failure of the appellee to deny allegations made against it on facts stated in the complaint. Appellee, on the other hand, maintained that appellant had failed to comply with the Civil Procedure Law, Rev. Code 1: 22.9, which states:

“1. Prior to retirement of jury. At the close of the evidence or at any earlier time during the trial, any party may request in writing that the court instruct the jury on the law as set forth in his requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall in such instance instruct the jury in writing after the arguments are completed. The court shall instruct the jury on every issue of law arising out of the facts even though no requests to charge thereon have been submitted by counsel. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

Recourse to the records revealed that appellant made a general exception to the judge’s charge. Hence, he cannot single out a particular portion of the charge in contemplation of the statute. Count one of the bill of exceptions is therefore overruled.

In count two of his bill of exceptions, appellant maintained that he excepted to the verdict. Count three refers to exception taken to court’s ruling on motion for a new trial. We recite the two count motion for a new trial and the resistance:

“MOTION

1. That the verdict is illegal; in that, the jury did not hear and consider evidence on the issue ruled to trial by Judge Alfred B. Flomo who disposed of the issues of law and ruled the case to trial (see the judge’s ruling).

2. And also because plaintiff says that the verdict is so much the more illegal, because the jury heard and considered evidence on matters not pleaded in the Answer of the defendant and ruled to trial by the judge. On the contrary during the trial that, what appears to be defendants’ defense was testified to by these witnesses. Plaintiff submits that under the rule of pleadings and practice as well as the statutes, the defendant should have specifically pleaded whatever defense it might have had to contest the complaint, but not to take plaintiff by surprise at the trial. (See testimony of defendant’s witnesses).

RESISTANCE:

1. Because defendant says that as to count one of the purported motion same is vague and misleading, in that the jurors are judges of the facts and are only to listen to the evidence adduced in court, and as far as the ruling on law issue is concerned, that is left with the judge for interpretation.

2. And also because defendant says that the verdict of the petty jury in the instant case is in conformity with the evidence adduced at the trial and in confirmative with the charge of the presiding judge. The motion therefore should be overruled and dismissed for all intents and purposes.

3. And also because counsel for defendant submits that there was no variance between the testimonies of the defendant and their witnesses, which would have given strength to the motion for a new trial; in other words, that would have found a very strong support for the motion, but that not being the case, counsel for defendant prays that this motion crumbles.”

We also quote the relevant portion of the judge’s ruling on the issues of law relating to the issues that were ruled to trial:

“Since indeed and in fact the defendant has not denied seizing the plaintiff’s pick-up, the only issue now triable is by what rights the defendant did seize the pick-up in question and what amount of damages the plaintiff had suffered as a result of the seizure and detention of the said pick-up.

This case is therefore ruled to trial on counts 6, 7, and 8 of the answer, the reply and the complaint. AND IT SO ORDERED. MATTER SUSPENDED.”

The issues ruled to trial according to the above quotation are (1) that the appellant should prove the damages he has suffered and that the appellee should show by what right they seized the appellant’s pick-up. Since counts 6, 7, and 8 of the answer were also ruled to trial, we shall quote these counts to ascertain if they present other triable issues other than the two stated above:

“6. And also because defendant denies ever refusing plaintiff taking his vehicle, when he does not owe defendants on it. Plaintiff having paid in full for his vehicle, he has every right to remove it from the defendants’ garage.

7. And also because defendant says as to count four which alleges the injury of One Thousand Five Hundred ($1,500.00) dollars without any showing how said amount of One Thousand Five Hundred ($1,500.00) dollars was incurred, is false and fabricated assertion and should be dismissed with cost against plaintiff.

8. And also because defendant denies all and singular the allegation of facts and law relied upon and which have not been made the subject of any special traverse in this answer.”

The four counts of the complaint, (counts 2 through 5) which counts 6, 7, and 8 of the answer as quoted above traversed are recited hereunder for the benefit of this opinion:

“2. And also because plaintiff further says that for reasons best known to the defendant even though plain-tiff had paid all of the money less the nominal amount of Two Hundred Forty Five dollars ($245.00) the defendant seized said pick-up and took it under its own control for the amount without the consent of plaintiff.

And also plaintiff further complains that at the time defendant seized or repossessed said pick-up in April, 1970, it was in a running condition and that plaintiff had already been engaged in the transportation business and had substantially paid over and above the purchase price in an amount of Two Thousand Two Hundred and Forty Four ($2,244.00) dollars, yet the defendant claimed that plaintiff was still owing an amount of Two Hundred Forty-Five ($245.00) dollars, which plaintiff thereafter paid as will more fully appear by copies of receipts hereto attached and marked plaintiff’s exhibits B-1 through B-7.

3. And plaintiff further complains that he has paid the amount of Two Hundred Forty-Five ($245.00) dollars, on February 23, 1971, to defendant’s cashier (Stephen) being final payment, thereby vesting absolute title in plaintiff to the said pick-up; plaintiff therefore demanded the return of the said pick-up but from inspection it was revealed that certain parts on it were damaged or being removed and defendant asserted that they will be re-placed at defendant’s own expense; but up until now, defendants has failed, refused and neglected to repair same and is therefore wrongfully withholding said pick-up thereby injuring plaintiff in his trade or occupation in the amount of One Thousand Five Hundred ($1,500.00) dollars special damage.

And plaintiff further complains that because of defendant’s indifference, wanton, negligent and callous attitude towards the responsibility he is saddled with, plaintiff is strongly inclined to believe that the seizure was merely intended to take away some of the parts of the pick-up to repair other pick-ups since defendant was without spare parts at the time.”

This is the judge’s ruling on the motion for a new trial:

“In keeping with Civil Procedure Law, Rev. Code 1: 26.4, Post-trial motion for new trial, after a trial by a claim or issue, upon the motion of any party, the court may set aside a verdict and award a new trial of a claim or separable issue where the verdict is contrary to the weight of the evidence or in the interest of justice.

When the empanelled jury returned a verdict in favor of the defendant in this case on the 18th day of November 1981, the plaintiff excepted to the said verdict and on the 20th day of November 1981 filed a two-count motion for a new trial. The two-count motion failed to allege that the verdict of the empanelled jury is against the weight of the evidence; rather the motion alleged that the verdict is illegal and is not based on the issues ruled to trial.

In the mind of the court since the witnesses have testified and the jury retired to consider the testimonies on both sides, it was within their competence to say who was right and who was wrong based upon the evidence presented at the trial. In view of the foregoing, it is the considered opinion of the court that the verdict of the empanelled jury should not be disturbed and the same is hereby confirmed and affirmed, and the motion for new trial is not granted. AND IT IS HEREBY SO ORDERED.”

The appellant is not contending that the verdict is against the weight of the evidence adduced at the trial, but rather the jury considered evidence on issues not ruled to trial. There-fore, said verdict is illegal. The appellee has not denied this allegation in its resistance. According to our statute on defense and objections, i.e. the Civil Procedure Law, Rev. Code 1: 9.8.3, averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required shall be taken as denied or avoided. The motion was denied because appellant did not say that the verdict was against the weight of the evidence. What does the word “illegal” import? The word illegal means not authorized by law ‘. . . it means merely that which lacks authority of or support from law; it imports a violation.’ The law implied in “illegal” is not necessarily found expressly in statute. Things are called “illegal” because of their violation of some common law principles. Thus “illegal” implies only a breach of the law. BLACK’S LAW DICTIONARY 882 (4th ed). Justice is the constant and perpetual disposition to render every man his due. It is the conformity of our actions and our will to the law. Ibid., at p. 1002. The trial of a cause is con-trolled by issues ruled to trial and any deviation amounts to a violation of procedure, especially in this case when none of the parties ever excepted to the judge’s ruling on the law issues, which is indicative of both parties conceding the legal soundness of said ruling. One of the reasons for granting a new trial is “in the interest of justice,” and introducing or testifying to new facts not pleaded or ruled to trial is a violation or breach of the fundamental principle of all pleadings which is notice. Black’s Law Dictionary defines an answer in pleading as a formal written statement made by a defendant setting forth the grounds of his defense. It is a pleading by which a defendant in a suit at law, endeavors to resist the plaintiff’s demand by an allegation of facts, either denying allegations of plaintiff’s complaint or confessing and alleging new matter in avoidance which defendant alleges should prevent recovery on facts alleged by plaintiff. A party may once amend any pleading made by him before trial, in so far it does not unreasonably delay trial. Civil Procedure Law, Rev. Code 1: 9.10. If appellee intended to put in the defenses the matters to which its witnesses testified, it would have so amended its answer to include those facts and circumstances, but not to make a surprise attack on its adversary at the trial by introducing strange matters not pleaded in the answer or ruled to trial. We hold that the judge acted ultra vires when he permitted the appellee to introduce facts not pleaded and ruled to trial, thereby misrepresenting the triable issues to the jury which may have consequently influenced their verdict.

Appellee’s counsel contended in count 6 of the answer that the appellee never refused appellant’s taking his vehicle, especially so when he did not owe defendant on it. It did not, however, say anything about the alleged parts that were allegedly damaged or removed by appellee, and which it promised to replace at its own expense after the final payment of two hundred and forty-five ($245.00) dollars as averred in count four of the complaint. Furthermore, there are no other triable issues raised in counts 6, 7 and 8 of the answer. We have exhaustively read the answer of appellee but no where have we found appellee alleging that appellant carried his pick-up to its garage for repairs and because he could not pay for the repairs, he parked the pick-up and carried the key which resulted in the deterioration of said vehicle as testified to by the witnesses for the appellee. The judge erred in permitting the trial to proceed beyond the issues that were ruled to trial by allowing evidence on issues not pleaded or raised in the pleading. The judge should have therefore granted appellant’s motion for a new trial in the interest of justice, since the weight of evidence adduced at the trial was not in issues. Counts 2 and 3 of the bill of exceptions are therefore sustained. The verdict which the final judgment affirmed and confirmed having crumbled, the judgment itself cannot stand. Hence, count four of the bill of exceptions is conceded.

We refrain from passing on any other issue raised in the pleadings since we are remanding this case for new trial.

In view of the circumstances as appeared in the records before us, the judgment of the lower court is hereby reversed and this case remanded for a new trial. And it is so hereby ordered.

Reversed and remanded.