MARY KING, Appellant, v. CHARLES D. B. KING, Appellee.

APPEAL FROM THE CIRCUIT COURT, EIGHTH JUDICIAL CIRCUIT, NIMBA COUNTY. Argued November 26, 1975. Decided December 31, 1975. 1. A judge cannot review the judgment of a colleague in a court of concurrent jurisdiction. 2. A lawyer is to avoid testifying as a witness for his client unless his testimony is essential to the ends of justice. 3. The party asserting the affirmative must prove it by a preponderance of the credible evidence. 4. Desertion of a spouse is not proved until it is shown that defendant abandoned the plaintiff without justification and that the plaintiff has without avail endeavored to induce the defendant to return in the year or more since the time of desertion. Appellee brought an action for divorce against his wife on the ground of desertion. At the trial his former attorney testified on his behalf and through his testimony established plaintiff’s case in the opinion of the trial judge. The defendant appealed from the judgment. The Supreme Court held that it was improper under the circumstances for counsel to have testified. Excluding his testimony the Court was of the opinion that the verdict of the jury was against the weight of the evidence and the trial court should have granted the motion for a new trial. The judgment was reversed. J. Dossen Richards for appellant. Peter Amos George for appellee. MR. JUSTICE WARDSWORTH delivered the opinion of the Court. Recourse to the record certified to this Court shows that Charles D. B. King and Mary King were married and 414 LIBERIAN LAW REPORTS 415 lived together as husband and wife until allegedly on January 15, 1971, appellant became unmindful of her marital vows and deserted her husband, the appellee herein, on the date up to and including the time of instituting this action on May 16, 1973. Appellant filed an answer on May 25, 1973, to her husband’s complaint wherein she categorically denied deserting appellee and averred that it was appellee who did not keep inviolate his marital vows, in that he illegally and without just cause evicted her from their home and neglected to provide for her maintenance and support, and that he was living illicitly. Appellee in his reply denied evicting appellant or committing adultery and also attacked appellant’s answer on the ground of filing outside the statutory time allowed. He further alleged that appellant was guilty of adultery. While this case was pending, appellant instituted an action against appellee for alimony pendente lite, counsel fees and expenses. It appears that a similar action was dismissed in 1972 by the late Judge R. N. Lewis, who was then by assignment presiding over the Ninth Judicial Circuit when appellee first filed this action but later withdrew it. The record reveals that while this particular case was pending in the Eighth Judicial Circuit, Nimba County, appellant again instituted an action for alimony pendente lite, counsel fees and expenses, but it was ruled out by Judge Frederick Tulay during the February 1974 Term of said court. Appellant excepted to the judge’s ruling and petitioned this Court for a writ of error but subsequently withdrew the petition. Thereafter appellant applied for a writ of prohibition, which was denied on May 21, 1974, by Justice George E. Henries. On June 5, 1974, when the action for divorce was called for the disposition of the issues of law, the counsel for appellant verbally petitioned the court that unless the court complied with sections 9.3 and 9.4 of the Domestic Relations Law, he would not represent appellant. After 416 LIBERIAN LAW REPORTS hearing the arguments presented by both parties, the judge denied the oral petition on the principle of res judicata; appellant duly excepted. The divorce case was then ruled to trial on its merits after the disposition of the issues of law. During the trial appellee and two of his witnesses testified that appellant had willfully and without just cause deserted appellee in 1971 for a period of more than one year, and that appellee had exerted efforts several times to induce his wife to return home and live with him, but appellant always refused. After both parties rested, argued the issues, and requested their respective charges to the jury, the trial judge instructed the jury to bring in a verdict for plaintiff if the evidence showed that defendant had without just cause deserted plaintiff for one or more years, or to bring in a verdict for defendant if the evidence does not prove it. The judge further admonished the jury that an admission is the first grade of evidence. The jury after due deliberation returned a verdict for appellee, to which verdict appellant excepted and filed a motion for a new trial, which was denied by the trial judge. The verdict being confirmed, the court’s final decree for appellee was rendered on June 29, 1974., to which appellant excepted and prayed for an appeal to the Supreme Court of Liberia during its October 1974 term, which appeal was granted. Appellant having completed the appellate process, the case came before us based upon a bill of exceptions containing seven counts. We shall first consider the first and the last two counts. In the first count appellant contended that the trial judge committed reversible error when he denied appellant’s application for alimony pendente lite, counsel fees and expenses. The statutes relied on by appellant are clear and unequivocal and must be complied with; but the same matter having been previously adjudicated by a court of concurrent jurisdiction, as stated before, the trial judge could not review the judgment of his col- LIBERIAN LAW REPORTS 417 league. Republic of Liberia v. Aggrey, 13 LLR 469 (196o) ; Kanawaty v. King, [1960] LRSC 66; 14 LLR 241 (196o). More over appellant having withdrawn her petition for a writ of error and later petitioning for a writ of prohibition which was denied and from which no appeal was taken, the judgment of the trial court remained undisturbed and thus became final. Therefore, the principle of res judicata barred a subsequent hearing of the same cause. Liberia Trading Corporation v. Abi Jaoudi, [1960] LRSC 38; 14 LLR 43 (196o). Passing on counts six and seven together, it is found that appellant said that it was erroneous for the trial judge to have denied the motion for a new trial and to have rendered judgment against her. The three counts noted in the motion for a new trial, in brief, alleged that the verdict was manifestly against the weight of evidence. Following appellee’s testimony was that of Counsellor Hoggard, who had previously acted as one of counsel for appellee in a similar action instituted against appellant in 1972. During cross-examination counsel for appellant asked Counsellor Hoggard whether it was not against his professional ethics as a lawyer to testify as a witness for his former client. The judge ruled that Counsellor Hoggard was allowed to testify irrespective of his profession. Witness Hoggard testified that appellant deserted appellee in May 1971, and that to his knowledge he saw no justification for the desertion. Appellee’s second witness, Mr. John Buddy, testified that upon the request of appellee he had aided in inducing appellant to return to her home but she had refused to return to her husband. Appellant admitted being away from her husband for more than two years. However, she testified that she had left because her husband brutalized her and threw her things out of the house, but not wanting to leave her husband she had put her personal effects into the kitchen. However, appellee insisted that she leave, otherwise he – 418 LIBERIAN LAW REPORTS would murder her, and she had had no alternative but to leave. Appellant also testified that the matter was once settled in her favor by a committee set up by the late President Tubman, but appellee thereafter neglected to provide for her maintenance and support. In traversing this issue it is found that a lawyer is to avoid testifying as a witness for his client except if his testimony is essential to the ends of justice. Rule 15, Code of Moral and Professional Ethics. According to the record in this case, appellee could have proved his case without the testimony of Counsellor Hoggard, for in the testimony in his own behalf, appellee referred to Alfred Johnson, some Lebanese friends, and many other distinguished persons who have either intervened on his behalf or were present at the occurrance of some incident pertinent to the case. But quite strangely and without justifiable reason he did not call them as witnesses. Therefore, the testimony of Counsellor Hoggard was neither indispensable nor essential to the ends of justice as required by the rule aforementioned, so as to permit such testimony. The judge thus erred in allowing it, and the act of Counsellor Hoggard was unprofessional. This then leaves appellee with only the second witness’s testimony. The said witness, however, did not corroborate appellee’s allegation and testimony that appellant willfully and without justification had deserted appellee. The evidence adduced in court then reached a point of equilibrium when appellee said that appellant had deserted him and appellant denied the charge and claimed that appellee evicted her. Appellee, therefore, failed to prove his case. It is a fundamental principle that the burden of proof in any case rests upon the party who asserts the affirmative of an issue and remains there until the termination of the action. The party asserting the affirmative must prove it by a preponderance or greater weight of the credible evidence; that is, one having the burden of proof must establish the facts al- LIBERIAN LAW REPORTS 419 leged by evidence at least sufficient to destroy the equilibrium. The verdict was, therefore, against the weight of the evidence and the trial judge committed reversible error in denying the motion for a new trial and affirming the verdict. For desertion is not proved until it is shown that defendant had abandoned the plaintiff and that the plaintiff has without avail endeavored to induce the defendant to return. It must also be proved under our Domestic Relations law that the desertion of plaintiff by defendant was willful and without just cause. Rev. Code ro:8.r (b). Wherefore, in view of the foregoing the decree is reversed with costs against appellee. It is so ordered. Reversed.