JOHN M. KOLLIE, Plaintiff-In-Error, v. HIS HONOUR J. BOIMA KONTOE, Assigned Circuit Judge, Sixth Judicial Circuit, Montserrado County, and PETER SOGBE, Defendants-In-Error.

 

PETITION FOR A WRIT OF ERROR AGAINST THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

 

Heard: March 21, 2001. Decided: July 5, 2001.

 

1. The denial of a request by a party for a jury trial is interlocutory and therefore reviewable by a writ of certiorari, and a party who fails to seek such review suffers laches and is precluded from seeking further remedial redress from the Supreme Court.

2. Where a lease agreement under which a party claims the right to occupancy of a parcel of land expires, a claim by the lessor to the property does not involve title, and hence, summary proceeding to recover real property is the appropriate remedy to pursue and will lie.

3. A trial judge is under no obligation to allow or permit a party defendant to produce evidence in a case at the call of the case for rendition of final judgment after a default judgment has been entered and the plaintiff has been allowed to produce and rest evidence.

4. In this jurisdiction, there is a time set by the trial judge for the trial of a case and a time for the rendition of judgment; a trial judge is therefore under no obligation to allow a party to produce evidence at the time of rendition of final judgment.

5. The application for a writ of error on the ground that the plaintiff-in-error has been deprived of his day in court is properly denied when a notice of assignment was duly served upon counsel for the plaintiff-in-error who had failed to appear in court on the trial date for trial.

6. A day in court means not so much the time appointed for hearing, as it does the opportunity to present a claim or right in a proper adversary proceeding before a competent tribunal.

7. A writ of error will issue only to a party who for good cause has failed to take an appeal from a judgment, decree, or order of a trial court or has lost his right to statutory appeal without laches on his part.

8. The term “good reason” means a disability or other cause over which the party had no control and which actually prevented the party from appearing before the trial court at the time of the rendition of the judgment, decree, or order in question.

 

The plaintiff-in-error, John M. Kollie, sought a writ of error against the trial judge and the co-defendant-in-error, Peter B. Sogbe, claiming that the trial court had entered judgment in his absence and that he had therefore been denied his day in court. The plaintiff-in-error, who had been sued by the co-defendant-in-error in summary proceeding to recover real property, asserted ownership to the same property claimed by the co-defendant-in-error. Neither the plaintiff-in-error nor his counsel was present in court at the call of the case for hearing on the merits. On application of the co-defendant-in-error, the trial judge entered a default judgment against the plaintiff-in-error and permitted the co-defendant-in-error to present evidence to substantiate the allegations made in the complaint and reply. Thereafter, when the case was assigned for the rendition of final judgment, the plaintiff-in-error moved the court to allow him to introduce evidence in his defense before a jury. The motion was denied and final judgment was rendered. The plaintiff-in-error contended that the trial judge’s denial of his motion was a violation of his constitutional right to defend his property, and constituted a denial of his day in court, for which error will lie. He also argued that it was error for the judge not to allow him to present evidence to the jury to pass on the issue of fraud raised in his answer, and that summary proceeding to recover real property was not the right action since the parties in litigation had both claimed ownership to the disputed property.

 

The Supreme Court rejected the contention of the plaintiff-in-error that he was denied his day in court, noting that contrary to the assertion of the plaintiff-in-error’s counsel that he was present in court at the time the case was assigned but that the trial judge and the co-defendant-in-error were absent, the records of the trial court clearly showed that on the date of the hearing the judge was in court and the plaintiff-in-error was absent; that the conclusion was buttressed by the records of the Gardnersville Magisterial Court which showed that on the same day the summary proceeding case was assigned for hearing, the counsel for the plaintiff-in-error was appearing in the aforementioned magisterial court, in preference to the superior circuit court; and that this fact was further confirmed by the affidavit executed by opposing counsel in the magisterial court case. The Court therefore concluded that the plaintiff-in-error had failed to show good reason why he was not present in court at the time the default judgment was prayed for and entered by the trial court.

With regard to the plaintiff-in-error’s other claim that he was deprived of his day in court by the trial court’s refusal to allow him to produce evidence at the time of rendition of final judgment, the Court noted that the trial judge was under no obligation to allow the introduction of evidence after it had entered a default judgment, permitted the introduction of evidence by the co-defendant, and assigned the case for the sole purpose of rendering final judgment.

The Court rejected the plaintiff-in-error’s contention that summary proceedings to recover possession of real property was the wrong action, holding that since the lease agreement between the plaintiff-in-error and the co-defendant-in-error had expired, the issue of title was moot, and therefore the proper action was summary proceeding to recover possession of real property. Hence, it said, the trial court had jurisdiction over the matter. Accordingly, the Court denied the application for error and ordered the enforcement of the trial court’s judgment.

 

James W. Zotaa of the Liberty Law Firm appeared for the plaintiff-in-error. Francis S. Korkpor of the Tiala Law Associates, Inc. appeared for the defendant-in-error.

 

MR. JUSTICE SACKOR delivered the opinion of the Court.

 

“A party against whom judgment has been taken, who has for good reason failed to make a timely announcement of the taking of an appeal from such judgment, may within six months after its rendition file with the clerk of the Supreme Court an application for leave for a review by the Supreme Court by writ of error”. Civil Procedure Law, Rev. Code 1:16.24.

 

The co-defendant-in-error herein, Peter B. Sogbe, instituted in the Sixth Judicial Circuit Court, Montserrado County, during its March Term, A. D. 1998, an action of summary proceedings to recover possession of real property against the plaintiff-in-error, John Manady Kollie. Pleadings in the case progressed as far as the filing of an answer and rested upon the filing of the reply. The trial court ruled the case to trial following the disposition of the law issues and several motions filed by the plaintiff-in-error. Several notices of assignments were issued, served, and returned served, but the case was never heard by the trial court.

The case was assigned for hearing on May 13, 2000 at the hour of 10:00 a.m., upon a notice of assignment duly issued by the trial court, served, acknowledged by both parties, and returned served. The records in this case revealed that counsel for co-defendant-in-error prayed the trial court for an imperfect judgment due to the absence of the plaintiff-in-error and his counsel on the date of the hearing of the case. The application was granted by the trial court and the co-defendant-in-error was permitted to produce evidence, thereby making the imperfect judgment perfect. His Honour J. Boima Kontoe, presiding over the trial court by assignment, reserved ruling for the 17th day of May, A. D. 2000.

Thereafter, a notice of assignment was duly issued, served and returned served for the rendition of final judgment in the case on the 17th day of May, A. D. 2000. The records show that the parties appeared before the trial court on the 17th day of May, A. D. 2000, pursuant to the notice of assignment for the rendition of final judgment. At the call of the case for final judgment, counsel for the plaintiff-in-error made a submission praying the trial court to permit and allow his client, plaintiff-in-error herein, to introduce evidence in the case. The submission was resisted, argued, and denied. The plaintiff-in-error excepted to the ruling, which exception was noted by the trial court.

 

The final judgment was subsequently rendered in favor of the plaintiff in the court below, Peter W. Sogbe, now co-defendant-in-error. The clerk of the trial court was ordered to prepare a writ of possession to oust and evict the plaintiff-in-error from the premises and to place the co-defendant-in-error, Peter Sogbe, in possession of the subject property. The counsel for the plaintiff-in-error excepted to the final judgment and gave notice that he would take advantage of the statute. The exception was also noted by the court. The records in this case are devoid of any evidence that the plaintiff-in-error announced an appeal from the final judgment of the trial court, notwithstanding the presence of his legal counsel at the time of the rendition of the said judgment.

Meanwhile also, on the 17th day of May, A. D. 2000, the plaintiff-in-error filed a five-count petition for a writ of prohibition before Mr. Justice Wright, presiding in chambers during the March Term, A. D. 2000 of this Honourable Court. The plaintiff-in-error, petitioner in the prohibition proceed-ings, principally contended that the trial court had denied him his day in court. On the 18th day of May, A. D. 2000, the Chambers Justice issued a citation citing the parties to a conference on Friday, May 26, 2000, and stayed all further proceedings in the case pending the outcome of the conference. The conference was held on Thursday, June 1, 2000, following which the Chambers Justice denied the issuance of the writ. The trial court was mandated on the 1st day of June, A. D. 2000, to resume jurisdiction over the case and enforce its judgment. The trial court received this mandate on the 5th day of June, A. D. 2000, at the hour of 2:30 p.m. The records in this case do not show whether the mandate was read and enforced.

On the 19th day of June, A. D. 2000, the plaintiff-in-error filed a seven-count petition for a writ of error, and the alternative writ was ordered issued on the 20th day of June, A. D. 2000. In counts 2 and 3 of the petition, the plaintiff-in-error contended that he was denied his day in court, in that he and his counsel were present in court on May 13, 2000 from 9:30 a.m. up to 10:45 a.m.; that the case was heard at 11:45 a.m. after their departure; that the trial judge was not physically present for the hearing of the case; and that the counsel for the co-defendant-in-error acted as judge. The plaintiff-in-error annexed affidavits to his petition to prove that the trial judge was absent on the date scheduled for the hearing of this case.

This Court deems count 5 of the petition to be the only count relevant to the determination of this case. We hereunder quote the same verbatim for the benefit of this opinion.

 

“That on May 17, A. D. 2000, at 10:00 a.m. plaintiff-in-error and his counsel appeared and at the called of the case for final judgment, counsel for plaintiff-in-error announced representation and requested the co-defendant-in-error judge to make a submission, which was permitted. The submission in summary prayed the judge that since witnesses, three in number, were present in court, they be given the chance to take the stand in the interest of transparency given the circumstances under which the “trial” was held on May 13, 2000. The trial judge refused to give this chance to plaintiff-in-error, thereby denying the participation of plaintiff-in-error in the trial; and because of this denial plaintiff-in-error never had the opportunity to appeal the final judgment. This is another error which plaintiff-in-error prays to this court.”

The plaintiff-in-error raised and argued three contentions in his brief before this Honourable Court. The first contention raised by the plaintiff-in-error was that the denial of his request by the trial court to produce evidence in support of his claim before the rendition of final judgment on the 17th day of May, A. D. 2000 was a violation of his constitutional rights to defend his property and a denial of his day in court, for which the petition for the writ of error should be granted. The plaintiff-in-error maintained that the trial judge should have granted his request and allow him to participate in the trial, so that the judge could be able to weigh the evidence on both sides before rendering his final judgment.

 

The second contention raised by the plaintiff-in-error was that the denial of his request for a jury to pass on the issue of fraud raised in his answer, constituted an error. The counsel for the plaintiff-in-error argued that one of the parties had committed fraud, in that the probated copy of the lease agreement annexed to his answer stated that at the end of the 10 years of the lease, the ownership of the warehouse would be vested in him and that the house should be surrendered to the co-defendant-in-error, Peter B. Sogbe. On the other hand, he said, the copy of the lease exhibited with the complaint by the co-defendant-in-error indicated that both the warehouse and house should be surrendered to the co-defendant-in-error, plaintiff in the court below, at the end of the lease. In that regard, the counsel for plaintiff-in-error contended that his request for a jury trial should have been granted because of the two opposing statements of the lease, and that the failure of the judge to allow him to present evidence was a denial of the right of participation by plaintiff-in-error in the trial. He maintained that because of that denial, he did not have the opportunity to appeal from the final judgment.

The third and final contention raised by the plaintiff-in-error and argued before this Honourable Court was that summary proceeding to recover possession of real property cannot lie where both parties to the litigation claim ownership to the disputed parcel of land by paper title, and that the proper remedy is an action of ejectment. The plaintiff-in-error asserted that he relied on a squatter’s right instrument, while the defendant-in-error relied on his lease agreement with the plaintiff-in-error and a squatter’s right certificate, all of which were forms of paper title which should had been tried by a jury in an action of ejectment. On the basis of the foregoing, the plaintiff-in-error therefore prayed this Honourable Court to reverse the judgment of the trial judge and to remand the case for a new trial.

 

On the 27th day of June, A. D. 2000, the co-defendant-in-error, Peter B. Sogbe, filed a ten-count returns to the petition for a writ of error. We deem counts, 2, 3, 5, 9, and 10 to be worthy of determination of the case. In count 2 of the returns, the co-defendant-in-error contended that he invoked the rule on default judgment because of the absence of the plaintiff-in-error on the 13th day of May, A. D. 2000, the date assigned for the trial of the case, and that his application for default judgment was granted; and that, as provided by law, he was allowed to produce evidence to substantiate his claim. He maintained that the co-defendant-in-error judge, His Honour Boima Kontoe, was present in court on the 13th day of May, A. D. 2000, as evidenced by exhibit “DE/1” in bulk, being photocopies of minutes from the court for May 13, 2000, indicating the matters handled for that day, including the reading of mandates from this Honourable Supreme Court. This Court hereunder quotes verbatim count 2 of the returns for the benefit of this opinion:

“That to show that the lawyer for plaintiff-in-error was not in court, it is an irrefutable fact that Counsellor James W. Zotaa, lawyer for the plaintiff-in-error was at the Gardnersville Magisterial Court in the case Winston Sandy v. Layee Kromah and Others to be identified on May 13, 2000 at 10:00 a. m., the same date, day and time on which the case, subject of this writ of error was assigned. Instead of attending to the circuit court matter, Counsellor Zotaa elected to subordinate the superior court case to that of the inferior court. In other words, he was present at the Gardnersville Magisterial Court on May 13, 2000, at 10:00 a. m. This is the real reason why he was not in court and therefore his client was adjudged in default and rightly so. DE/2 attached, which consists of a clerk’s certificate and an affidavit from Counsellor Marcus R. Jones, perfectly substantiates this point.

In count 3 of the returns, the defendants-in-error contended that the default judgment was regularly prayed for and granted; that Co-defendant Sogbe had established his cause and rested evidence; that the trial judge had reserved his ruling; and that the only thing that remained to be done was for the co-defendant judge to give his final judgment, rather than permit the plaintiff-in-error to produce evidence in the case. We deem it expedient to hereunder quote verbatim count 5 of the returns for the benefit of this opinion:

“That also further to counts 4, 5 and 6 of the petition, co-defendant-in-error says that when final ruling was being rendered in the case, the lawyer for plaintiff-in-error was in court. He filed motion to be allowed to produce witness and this was resisted and denied. This infuriated him and he walked out of the court. But his associate, in person of Attorney Gbeisaye, was in court and he, instead of announcing an appeal, excepted to the court’s final ruling and gave notice that he will take advantage of the statute made and provided. Your Honours are respectfully requested to take judicial notice of the records in the case, especially the final ruling made on May 17, 2000”.

 

In count 9 of the returns, the defendants-in-error strongly contended that the writ of error could not take the place of an appeal, where a party was in court at the time of rendition of the final judgment but failed to announced an appeal. The defendants-in-error maintained that a writ of error cannot lie where a party excepts to the ruling and announces that he will take advantage of the law, rather than announcing an appeal from the ruling or judgment.

In count 10 of the returns, the defendants-in-error contended that a writ of error will lie where the plaintiff-in-error has failed to announce an appeal from a judgment due to a good cause. The defendants-in-error vehemently maintained in the said count that the plaintiff-in-error in the instant case had failed to state a good cause as to why he did not announce an appeal from the final judgment in this case. By this failure, they said, the plaintiff-in-error had not fulfilled the requirements for the granting of the writ of error.

The defendants-in-error argued three (3) points in their brief filed with this Honourable Court. The first contention was that the default judgment was correctly and regularly granted by the trial court, and that the granting of the said default judgment was due to the failure of plaintiff-in-error to appear for the hearing of this case upon a notice of assignment duly served on the parties and returned served. The defendants-in-error also argued before this Court that the trial judge was under no obligation to permit the plaintiff-in-error to take the stand and produce witnesses at the time of rendi-tion of final judgment when the plaintiff-in-error had failed to appear for the hearing of the case on May 13, 2000. Hence, they said, the trial judge properly dismissed the plaintiff-in-error’s motion to be permitted to produce evidence.

 

The third point raised and argued by the defendants-in-error was that the plaintiff-in-error was present in court at the time of the rendition of the final judgment, but that his counsel failed to announce an appeal. The defendants-in-error also contended that the plaintiff-in-error had failed to state a good cause as to why he did not announce an appeal from the final judgment when he was present in court at the time of the rendition of the said judgment and when he was allowed to make a motion. The defendants-in-error therefore prayed this Honourable Court to deny and dismiss the writ of error and to mandate the trial court to resume jurisdiction over the case and enforce its judgment.

The salient issues for the determination of this case are:

1. Whether or not the plaintiff-in-error was denied his day in court for which a writ of error can be granted?

2. Whether or not the trial judge was under a legal obligation to allow and permit the plaintiff-in-error to produce evidence at the time of rendition of final judgment?

We pause for a moment to decide other issues raised in the brief and argued by the plaintiff-in-error. The plaintiff-in-error contended that one of the parties to this litigation committed fraud by changing the wordings of the lease. He argued that the reported copy of the lease exhibited by him with his answers provided that the warehouse be owned by him and that the house annexed thereto would be surrendered to the co-defendant-in-error at the end of the 10 year period of the lease. On the other hand, he said, the copy of the aforesaid lease, annexed to the complaint by the co-defendant-in-error, stated that both the warehouse and the house should be turned over to the co-defendant-in-error at the end of the lease. The plaintiff-in-error therefore argued that the denial of his demand for a jury trial constituted an error.

We observed from our review of the mentioned lease agreement that there was no provision therein which provided that the warehouse should be owned by the plaintiff-in-error at the end of the lease agreement, as contended and argued by him. But in any event, the denial by the co-defendant-in-error, Judge Kontoe, of the plaintiff-in-error request for a jury trial was interlocutory and therefore reviewable by a writ of certiorari. The plaintiff-in-error therefore suffered laches and waiver by his failure to seek a remedial redress from this Court.

 

The second contention advanced by the plaintiff-in-error before this Court was that summary proceedings to recover possession of real property cannot be granted where title is involved. The plaintiff-in-error relied on the strength of his squatters’ right document, while the co-defendant-in-error relied on his squatter’s right certificate and a lease agreement executed between him and the plaintiff-in-error. We deem it expedient to examine these instruments for the benefit of this opinion.

The squatter’s right instrument issued by the Monrovia City Corporation under the signature of Mayor L. Kwia Johnson, dated April 15, 1980, granted to the plaintiff-in-error a parcel of land in West Point, measuring 35ft wide and 37ft long for the sole purpose of constructing a warehouse and a room (attached). The records in the case are devoid of any evidence indicating the construction of a warehouse and a room by the plaintiff-in-error on said parcel of land. The plaintiff-in-error exhibited an instrument marked “D15”, which was a memorandum of understanding executed between the parties to this litigation and issued from the Office of the Township Commissioner of West Point, Honourable Dominic Jarteh, dated March 20, 1988. We herewith quote plaintiff-in-error exhibit “D/5” for the benefit of this opinion:

“This office, having intervened into the house issue between Mr. Peter B. Sogbe and Mamady Kollie with regards to the renovation and construction works due to the request of Mr. Mamady Kollie, it was agreed upon and understood that:

1. Mr. John Mamady Kollie, the tenant renovates and construct a four (4) room house attached with a warehouse on his own account and said expenses be liquidated by rental deduction partly.

2. Mr. John Mamady Kollie will occupy this house for the period of ten (10) years, and while living on this premises, Mr. Kollie shall pay the amount of ($850.00) eight hundred and fifty dollars annually, for which 50% shall go to the landlord and 50% goes to the tenant as payment against three (3) of the four (4) rooms.

3. After the total completion of the house and the liquidation of the expenses, the tenant, Mr. Mamady Kollie shall pay the full rent of the three (3) rooms and the warehouse and one room shall be given to him as his personal property for constructing the building.

 

4. Any law to the contrary not stipulated within this memorandum of understanding is notwithstanding.”

A careful scrutiny of the above quoted memorandum of understanding clearly showed that the co-defendant-in-error was the owner and landlord of the subject property and that the plaintiff-in-error was his tenant; that the plaintiff-in-error, upon completion of the renovation and construction of the four-room house, which was to be attached to a warehouse, should have been given one room for constructing the premises; and that the period of occupation by the plaintiff-in-error was to be 10 years, for which he was to pay the annual rental of $850.00. The instrument also provided that the tenant was required to renovate and construct the property at his own expense, and that 50% of the due annual rental was to be payable to the landlord while the other 50% was to go against the expenses incurred by the tenant in constructing the buildings. The instrument exhibited by the plaintiff-in-error, as tenant therein, negated his claim of ownership to the subject property.

The facts are clear therefore that the plaintiff-in-error, as lessee, and the co-defendant-in-error, as lessor, made and entered into a lease agreement on November 7, 1987, to take effect on January 1, 1988, for a warehouse and one room in the area known as Power Plant, West Point, for the annual rental of L$850, covering the period of 10 years. We quote verbatim clause 1 (one) of the lease agreement for the benefit of this opinion:

“1. I, Mr. Peter B. Sogbe, do agree to lease my warehouse and one room in Power Plant, West Point, to Mr. Mamady Kollie for the amount of $850.00 (eight hundred and fifty dollars) yearly. This amount will be divided into half for part of his expenses annually in the amount of $425.00 (four hundred and twenty-five dollars) to be given to me.”

 

It is crystal clear from the language of clause I (one) of the lease agreement that Peter B. Sogbe, co-defendant-in-error, was the owner of the warehouse and a room located in Power Plant, West Point, leased by the plaintiff-in-error for the period of 10 years for the annual rental of L$850.00. The lease agreement is not disputed by the plaintiff-in-error. We hold therefore that there was no title in issue following the expiration of the lease agreement. Thus, summary proceeding to recover possession of real property can lie. Civil Procedure Law, Rev. Code 1:62.21.

We shall now decide the two salient issues in this case in the reverse order. The first issue is whether the trial judge was under a legal obligation to allow and permit the plaintiff-in-error to produce evidence at the rendition of the final judgment in this case? The answer to this question is no. The records in this case show that the notice of assignment was duly issued, served and returned served for the rendition of final judgment in the case. We disagree with the contention of the plaintiff-in-error that he should have been permitted and allowed to produce evidence at the time of rendition of final judgment. It is an elementary principle of law, practice and procedure hoary with age in our jurisdiction that there is a time set forth by the trial judge for a trial and a time for rendition of final judgment in a case. The trial judge was therefore under no obligation to have allowed the plaintiff-in-error to produce evidence at the time of rendition of final judgment in this case.

 

The second and final issue for the determination of this case is whether or not the plaintiff-in-error was denied his day in court for which a writ of error can be granted? The plaintiff-in-error contended that he appeared on the 13th day of May, A. D. 2000, for the hearing of the case, but that he left the court at 10:45 a.m. due to the absence of the co-defendant-in-error and the trial judge. However, the records in the case do not support the averments of the plaintiff-in-error. A clerk’s certificate from the Gardnersville Magisterial Court, dated the 28th day of June, A. D. 2000, under the signature of G. Ezekiel U. Koon, Sr., shows that Counsellor James W. Zotaa and Counsellor Marcus Jones were in a case involving Winston Sandy and Layee Kromah et al. on the 13th of May, A. D. 2000, at the hour of 10:00 a.m. This clerk’s certificate is also buttressed by an affidavit executed by Counsellor Marcus R. Jones indicating that he and Counsellor Zotaa were present at 10:00 a.m. at the Gardnersville Magisterial Court on the 13th day of May, A. D. 2000, in an action of summary proceeding to recover possession of real property involving Winston Sandy and Layee Kromah et al. Further, the minutes of the Gardnersville Ministerial Court clearly showed that Counsellor Zotaa was present at the Magisterial Court on the 13th day of May, A. D. 2000, at the hour of 10:00 a.m., for the hearing of the aforesaid case. It is strange that the learned Counsellor could have left the trial court at 10:45 a.m. when in fact he was present at the Gardnersville Magisterial Court at 10:00 a.m. We therefore hold that the plaintiff-in-error was not present on the 13th day of May, A. D. 2000, for the hearing of this case notwithstanding the fact that he acknowledged receipt of the notice of assignment for the said hearing. This Court has held that a “plaintiff-in-error applying for a writ of error on the contention that they have been deprived of their day in court are properly denied the relief sought when a notice of assignment of their case for trial was duly served upon their lawyer, who failed to appear in court on the trial date.” Benson et a!. v. Findley et a!.[1968] LRSC 14; , 18 LLR 285 (1968); Mulbah et al. v. Dennis et al.[1973] LRSC 33; , 22 LLR 46, text at 49 & 50 (1973). We observed from the records in this case that the learned Counsellor gave preference to a case in a subordinate court rather than to the circuit court contrary to our rules of court.

In the case Paterson, Zochonis and Company v. Flomo, [1971] LRSC 52; 20 LLR 404 (1971), text at 412, this Court held “that a day in court means not so much the time appointed for hearing, as it does the opportunity to present a claim or right in a proper adversary proceeding before a competent tribunal.” The plaintiff-in-error was therefore given his day in court, but failed to avail himself of the opportunity afforded him for the hearing of the case. We observed also from the records in the case that the trial judge was present in court on the 13th day of May, A. D. 2000, as evidenced by the minutes of the trial court of the matters he handled, including the reading of the mandates from this Honourable Court.

 

We note that the plaintiff-in-error and his counsel were present in court on the 17th day of May, A. D. 2000, for the rendition of the final judgment in this case, and that counsel for plaintiff-in-error made a submission which was resisted and denied before the rendition of final judgment. We further note from the records in the case that counsel for plaintiff-in-error excepted to the final judgment and gave notice that they would take advantage of the statute, which exception the trial judge noted. The plaintiff-in-error failed to announce an appeal from the final judgment in the case notwithstanding his presence in court.

In the case Brown Boveri v. Lewis, [1977] LRSC 33; 26 LLR 170 (1977), text at 174, this Court held that “a writ of error will issue only to a party who for good reason has failed to take an appeal from a judgment, decree, or order of a trial court or has lost his right of statutory appeal without laches on his part.” In the case at bar, the plaintiff-in-error was present in court at the time of rendition of the final judgment, but failed to take an appeal therefrom without any good cause being shown to this Court or any indicator that the loss of his right of statutory appeal was not due to his fault. This brings us to the question of what is a good reason? In Cole v. Industrial Building Contractors, [1966] LRSC 56; 17 LLR 476 (1966), this Court held that “the writ of error is suitable only to a party who has failed for good reason to take an appeal from a judgment, decree, or order of a trial court. When viewed in the context of a petition for a writ of error, the term ‘good reason’ means a disability or other cause over which the party had no control and which actually prevented the party from appearing before the trial court at the time of the rendition of judgment, decrees, or order in question.”

We have seen no legal justification indicating that the plaintiff-in-error was not afforded the opportunity for a fair and impartial trial in the trial court. We hold that the plaintiff-in-error has failed to show and convince this Court of a disability or other cause beyond his control which actually prevented him from taking an appeal from the final judgment when he was physically present at the time of rendition of said judgment. The plaintiff-in-error therefore failed to meet the legal requirements for the issuance of the writ of error by this Court of last resort.

 

Wherefore, and in view of the foregoing, it is the opinion of this Honourable Court that the petition for the writ of error should be and the same is hereby denied. The alternative writ is quashed and the peremptory writ denied. The Clerk of this Court is hereby ordered to send a mandate to the court below informing the judge presiding therein to resume jurisdiction over the case and enforce its judgment. Costs are ruled against the plaintiff-in-error. And it is hereby so ordered.

Petition denied.