THOMAS M. KESSELLY, and his wife, GERTRUDE T. HIGGINS-KESSELLY, Appellants, v. MULBAH SUMO FOLOMAH, alias JOHN F. HARRIS, and his wife, JASSAH, Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 16, 1968. Decided February 6, 1969. 1. Courts will only decide those issues raised by the parties in their pleadings. 2. When the pleadings of the parties raise issues of law as well as issues of fact, the court must dispose of the issues of law before it proceeds to the disposition of the issues of fact. An agreement was entered into by the parties which, among other things, provided for cancellation of a lease upon nonpayment by the lessees. When such breach of contract occurred, the appellants sued for cancellation, to which procedure no objection was raised by the appellees, but to which the trial court objected, ruling sua sponte that the petitioners had elected an improper course of action, and dismissing the case, from which judgment the petitioners appealed. Judgment reversed, case remanded. The Henries law firm for appellants. No appearance for appellees. MR. JUSTICE court. ROBERTS delivered the opinion of the According to the record certified to us, appellants and appellees concluded an agreement whereby appellees were granted the use of a parcel of land for the purpose of constructing a house. In this agreement appellees were to make rental payment to appellants in regular installments and their failure so to do would subject the 181 182 LIBERIAN LAW REPORTS agreement to cancellation. As agreed upon, appellees erected a house but afterwards began defaulting in payment despite having their attention called to this omission and to the relevant clause of the agreement. Their continued failure to conform to the agreement urged appellants to file cancellation proceedings. At the call of the case the Henries’ law firm appeared for appellants, no one appeared for appellees, neither did they file any brief, though represented by counsellor Matthew D. Wolo in the court below. Although there are other interesting points embodied in the bill of exceptions, counts one and three are of such basic principles that their determination claims our attention most. The cogent portions read : “r. The petitioners, exercising their rights in keeping with the terms and conditions of said contract, instituted these cancellation proceedings, and respondents, realizing the binding effect of the nonpayment of the rent on their part, neglected to raise the issue of wrong form of action; nevertheless, the court, sua sponte, on the loth day of July, 1967, dismissed the action on the ground that petitioners filed the wrong form of action and asserted that petitioners should have filed an action of debt and not cancellation proceedings, which ruling is quoted hereunder : . . . “3. That the court failed to pass upon issues of law raised in the pleadings by the parties, having undertaken to raise and pass on an issue of wrong form of action, not included in the written pleadings. This was not only irregular, but materially prejudicial to the interests of petitioners. To which petitioners then and there duly excepted.” Considering the above, we find it essential to quote the decree of Judge Findley: “In this case the parties entered into agreement and made a relief clause, in case of default by lessee, to meet the failure of consideration by cancellation; it is LIBERIAN LAW REPORTS 183 clear and obvious that the sequence to nonpayment is not cancellation ; upon failure to pay, you are forced and called upon to pay by an action of debt, and even specific performance would do little better. The petition is, therefore, dismissed, without costs and the petitioners have the right to come in any manner for the enforcement of their rights as the law directs. And it is so ordered.” The pleadings in this case progressed as far as the reply, and contained issues of law and fact which the trial judge failed to pass upon. Instead, he dismissed the petition on the ground that appellants had filed the wrong form of action. This is an issue gratuitously raised by the judge and is not contained in the answer. Appellees in their answer have not denied the existence of the agreement nor the default in payment complained of in the petition, but contend that the property they occupy is not owned by appellants. This contention they in no way tried to prove, nor did they seek to raise this issue during several months of occupancy of the property, until the cancellation proceedings. Referring to count one, Clark v. Barbour, [1909] LRSC 1; 2 L.L.R. 15 (1909) is applicable, where the Court held that courts will only decide upon issues joined between the parties specially set forth in their pleadings. It was ruled further that a matter of defense not set up in defendant’s plea shall not be allowed. Count three is governed by our Civil Procedure Law, 1956 Code 6:313. “When the pleadings raise questions both of law and of fact, the court shall determine all issues of law before it tries the questions of fact.” Also see Johns v. Witherspoon, [1944] LRSC 32; 8 L.L.R. 462 (1944), where it was the judgment of the Court that it is a fundamental rule of law as well as of pleading and practice that issue must be joined before a cause can be legally tried, and it is an equally basic rule of law that all issues of law 184 LIBERIAN LAW REPORTS must first be disposed of by the court before considering issues of fact. This Court has no alternative but to reverse the judgment of the court below and remand the case. The costs of the appeal shall be paid by the appellee and all other costs shall abide final determination of the case; and it is hereby so ordered. Reversed and remanded.