MOMO KORYAN, Appellant, v. KPABA KORVAYAN, Appellee.

APPEAL FRM THE DEBT COURT OF LOFA COUNTY

Heard: June 2, 1982. Decided: July 9, 1982

1. No party can be prohibited from asserting any defense in any case pending before an administrative officer. A failure to assert a right when convincingly contested by an adversary before an administrative tribunal or a judicial court is a waiver.

2. A final judgement obtained after the hearing on the merits of a case before an administrative tribunal or in any court, may extinguish the defense a party may have but failed to assert.

3. Without proof, the mere application and resistance on matters of law and fact cannot warrant a judgement in favor of a party.

4. A judge in deciding issues of facts or mixed questions of law and fact, cannot fairly and justly rule in ignorance of the fact. He must take testimony.

5. Where the statute of limitations is pleaded, and is not supported by facts apparent on the records, the court must take testimony to pass upon the allegation.

6. All hearings by ministries and their officials are investigations by administrative tribunal and may be subject to judicial review.

Appellant instituted an action of debt against appellee in the debt court of Lofa County to which appellee pleaded the statute of limitations. Appellant in resisting, contended that appellee waived the statute of limitations, by his failure to have raised it at the various administrative courts which considered the merits of the case and rendered judgment in favor of appellant. The debt court overruled appellant’s contention, and dismissed the action, to which appellant noted his exceptions and appealed to the Supreme Court.

The Supreme Court held that the resistance filed by the appellant to appellee’s motion to dismiss the action in the debt court, asserted issues of law and facts, and, therefore, that it was incumbent upon the debt court, under the circumstances, to conduct a hearing, since the court could not fairly and justly rule in ignorance of the facts. Accordingly, the ruling dismissing the action was reversed, with the parties being given the right to plead anew.

M Fahnbulleh Jones of the Wakolo Law Firm appeared for appellant. Patrick W. Sanyenne appeared for appellee.

MR. JUSTICE MABANDE delivered the opinion of the Court.

Appellee was indebted to appellant in the sum of $340.00. Appellee signed a promissory note agreeing to make full payment without setting the specific time of maturity of the note. Several years thereafter, appellant demanded payment but appellee neglected to pay. Appellant instituted repeatedly, suits against appellee for payment of the debt.

After several reported suits on the same cause of action between the same parties resulting in judgments in his favor, appellant instituted this action against appellee in the Debt Court for Lofa County.

When the case was called for trial by the People’s Debt Court, Lofa County, appellee by special application to court pleaded the statute of limitations. In his resistance, appellant raised the issue that appellee waived the pleading of the statute of limitations by his failure to have raised it at the levels of the various administrative courts which considered the merits of the case and rendered judgment in favor of him. The court granted appellee’s application and dismissed the case. Appellant excepted to the ruling and appealed to this Court.

The issue for our consideration is whether or not the statute of limitations pleaded by appellee was waived by the previous administrative hearings. There are many other issues necessary for complete review of this case but as the parties themselves did not raise them, we would touch only a few of them in passing.

Counsel for appellant argued that though the statute of limitations may prevent a court from a consideration of a case to which it applies, it may be waived and the right to sue revived in the party against whom it originally operated. The conduct of appellee at all previous hearings of the same case without pleading the statute resulting in judgment in favor of appellant is a waiver, he asserted. He further argued that administrative courts are still legal courts in this land and that when they hear a case a judgment in favor of a party thereto may constitute a waiver of right to re-plead the statute of limitations.

Counsel for appellee contended that there can be no waiver of right to plead the statute of limitations at any time when a party in whose favor the limitation operates is sued.

A right vested in a party whether by statute or otherwise may be maintained and defended at any hearing administrative or judicial as long as that court is recognized by the state and a decision of it may be subject to judicial review. There are many administrative tribunals throughout this country. All hearings by ministries and their officials are investigations by administrative tribunal and may be subject to judicial review.

No party, we are of the opinion, can be prohibited from asserting any defense in any case pending before an administrative officer. A failure to assert a right when knowingly contested by an adversary before an administrative tribunal or a judicial court, is a waiver. A final judgement obtained after the hearing on the merits of a case before an administrative tribunal or in any court may extinguish the defenses a party may have but failed to assert. The Liberian Bank For Development and Investment v. Holder, [1981] LRSC 30; 29 LLR 310 (1981), decided July 30, A. D. 1981.

Appellant argued that the resistance asserted both issues of law and fact which necessitated the taking of testimony by the debt court; hence, its failure to have done so is a reversible error.

Counsel for appellee contended that, as the resistance that was spread on the minutes of the court simply asserted previous hearings and judgments by courts and other agencies of government in favor of appellant without the production of the records of those judgements; appellant failed to have proved the needed facts; hence, hearing was not necessary.

When an application or resistance is spread on the records of court, an exhibit cannot possibly be annexed thereto. It is humanly impossible to do so. Only at the hearing can an evidence be produced to support the alleged facts of either party. There can be no evidence to prove an allegation with-out a hearing. The statute of limitations itself, when pleaded, must be proved by facts unless those facts are apparent on the records. No such issues are in the records to have enabled the trial court to have competently passed upon the allegations of either party. Without proof, the mere application and resistance on matters of law and fact cannot warrant a judgment in favor of a party. Faber v. Republic, [1929] LRSC 1; 3 LLR 69 (1929).

During the argument, counsel for appellee also contended several times that appellee was taken to several administrative courts and that judgments were rendered in favor of appellee and not appellant. We hold that these issues necessitate proof as a statute of limitations may be waived by proof of a previous hearing on the merits.

In the case McLearn v. Hill, 276 Mass. 519, 17NE 617, 77 ALR 1039, it is held that “[t]hat statute is mere restriction upon the remedy. It must be pleaded. If not pleaded, it is deemed to be waived. It may be waived by other conduct amounting to the relinquishment of a known right.” Only by due hearing, it can be judicially determined whether or not appellee waived the statute of limitation.

The dissenting opinion of Chief Justice Gbalazeh holds that a trial judge is not required by law to take testimony on any factual issue when he is ruling on a motion or an application even if it raises factual issues. He further holds that all necessary and relevant papers must be attached to a motion or application papers even when it is only spread on the minutes of the court. With this view we disagree. A motion that is spread on the minutes of court cannot possibly have exhibits attached to it.

We maintain that where a judge is deciding issues of facts or mixed questions of law and facts in a non-jury case, he cannot fairly and justly rule in ignorance of the facts. He must take testimony. To agree with the dissenter that testimony is not required in deciding factual issues would bar trust-worthiness in rulings of judges in nonjury cases.

Both precedents of the judiciary and our Civil Procedure Law have limited the issues which can be decided by the court.

“The court shall decide any issue not required to be tried by a jury unless it is referred to a referee to determine pursuant to chapter 24.” Civil Procedure Law, Rev. Code 1: 23.

This section generally limits the power of a court to decide only issues of law and to refer all factual issues to a jury trial. In nonjury cases, chapter 4 of the same law requires trial by referee in these words:

“In an action pending before a circuit court, the court may appoint, on motion of any party or on its own initiative, a referee to take evidence, make findings, and determine specific issues, to report issues, to perform particular acts, or only to receive and report evidence. The order of reference may fix the time and place for beginning and closing the hearings and for the filing of referee’s report. A reference to a referee shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, a reference shall be made only to determine matters of account or upon a showing that some exceptional condition requires it.” Civil Procedure Law, Rev. Code 1:24.1

The factual pleadings spread on the record rendered the exceptional condition for either the referral of the factual issues to a referee or the taking of full testimony before the rendition of judgment.

We are therefore of the opinion that the trial court’s judgment should be and it is hereby reversed with right of the parties to plead anew. Cost are ruled against appellee. The Clerk of Court is hereby commanded to send a mandate to the trial court instructing the judge presiding therein to resume jurisdiction over the case and dismiss the same without prejudice. And it is hereby so ordered.
Judgment reversed.

MR. CHIEF JUSTICE GBALAZEH dissents.

The facts in this case, as gathered from the records certified to us and the subsequent hearing, are very simple. The defendant, now appellee, Kpaba Korvayan, is said to have been indebted to the plaintiff, Momo Koryan, appellant herein, in the sum of three hundred & forty dollars ($340.00), and that he, the appellee, executed on May 12, 1958 a promissory note in the said sum in favour of the appellant as a means of ensuring the credit extended to him by the appellant.

The facts further show that the appellee failed to meet his obligations despite repeated demands made by the appellant. Hence, the appellant, on the 2nd day of June, A. D. 1980, instituted this action of debt in the magisterial court, Lofa County, against the appellee, to recover the amount of money due him. The appellant’s case was dismissed for want of proof and he, therefore, excepted to the ruling and appealed to the People’s Debt Court for Lofa County, sitting in its July Term, 1980, for appellate review.

When the case was called for hearing, the appellee moved the court to dismiss the entire cause of action because, according to him, appellant had failed and neglected to assert his rights and to commence his action within seven (7) years, during which time the right to relief had accrued and was thus barred by the statute of limitations. The appellant, in resisting the motion, contended that the doctrine of the statute of limitations did not apply, in that when appellee failed to pay the amount due, according to his promissory note, the appellant instituted legal proceedings in the administrative court against the appellee, and that in the said court, judgment had been entered in his favour and against the appellee for the full amount, but that for some strange reasons the appellant had not been successful in collecting the sum from the appellee. The trial judge, on July 30, 1980, sustained the appellee’s motion, overruled the appellant’s resistance and dismissed the entire cause of action on the ground that the action was “time barred”. The trial judge cited the Civil Procedure Law, Rev. Code 1: 2.13, as his authority. The appellant took exceptions to the ruling and announced and perfected his appeal to this Court. Hence, this appeal is before us.

The appellant contended in his three-count bill of except-ions that the trial judge erred when he dismissed his entire cause of action with costs against him, on the strength of appellee’s motion; and that he further erred in rejecting appellant’s resistance without taking into consideration the date, as evidenced by the last judgment rendered in appellant’s favour, so as to ascertain when the last of such judgment against appellee was rendered in order to correctly toll the statute.

I have voted to endorse the judgment of the trial court, contrary to the holding of the majority, because the main issue presented by the appeal, which is “whether or not, in ruling on a motion to dismiss an action, the trial judge is bound to call for extraneous evidence, without an importunity from either party, in order to determine the merits or demerits of the motion” was brushed aside by the majority who, instead, put the issue as “whether or not the statute of limitations pleaded by appellee was waived by the previous administrative hearings as allegedly reported by appellant”; hence, relying on laws not applicable to these circumstances.

I shall now proceed with the issues that have been presented to this Court for the determination of this case.

1. Whether or not in ruling on a motion to dismiss an action, the trial court is bound to call for extraneous evidence in order to determine the merits and demerits of the motion without request from either party?

2. Whether or not the plea of the “statute of limitations” is impaired by mere averments that there were intervening events without specifically stating the date, time and place of such superseding events to prevent the statute from running?

During the arguments of the case before this Bench, counsel for the appellant argued that the resistance filed by him asserted both issues of law and fact and that this necessitated the taking of evidence by the trial court. The failure of the trial court to take such evidence, he said, was a reversible error.

Counsel for appellee, on the other hand, submitted that the basis of appellant’s suit and that of appellee’s motion to dis-miss the action were both founded on the appellant’s authentic evidence, the document of contract itself (the promissory note), and that since he had waited for 22 years before filing said suit in 1980, he was thus guilty of lashes and therefore forever barred. He consequently maintained that the issue of time not being disputed by either party, there was no necessity of proving it. Hence, the judge, the counsel for appellee further argued, committed no error in ruling as he did, particularly so, when the appellant failed to state in which way the appellee’s motion was defective.

The appellant’s claim is predicated upon a promissory note executed by the appellee on May 12, 1958. The case at bar arises out of an action of debt filed by the appellant in Voinjama City Magisterial Court, June 2, 1980, a period of 22 years and 20 days from the time the promissory note was executed.

At this juncture, I find myself compelled to interpose a question: What is the purpose of a motion to dismiss an appeal? The best way to answer this question is to first of all say what a motion is. In practice, a motion is an application to a court by one of the parties in a case to obtain some order or relief of court in a summary manner, and which the movant thinks is necessary at that point in the progress of the cause. It may be written, but is very often made verbally. When it is made on some matter of fact, it must be supported by an affidavit verifying that such facts are true. Davis v. Crow, [1918] LRSC 6; 2 LLR 309 (1918) and the Civil Procedure Law, Rev. Code 1: 10.1. From this definition, it can plainly be seen that the purpose of a motion is to seek from a court summary relief in favour of the applicant so as to forestall legal injustice which the main case may augur during its progress. A motion, therefore, in modern time, is the best mode of correcting trial errors which would otherwise cost the applicant more time and expense if other remedies available were resorted to.

The practice at common law and in this jurisdiction is that in ruling on a motion to dismiss an action, or any other motion, the trial court is only required to see to it that the motion is concise, certain, and above all, that all substantial allegations of facts are supported by an affidavit. 37 AM. JUR., Motions, 壯 3, 5 and 10.

The appellant does not tell us if the facts in dispute were not apparent on the records; he does not raise the issue of supporting affidavit to the appellee’s motion either, assuming it was not there as required by the law; and he does not tell us specifically in which way the appellee’s motion was deficient. Above all, appellant does not tell us what documentary evidence he included and attached to his resistance to defeat the appellee’s motion. The appellant’s resistance is absolutely void of any administrative courts’ records such as writs, judgments, etc.

The Civil Procedure Law, Rev. Code 1: 11.2, states:

“3. Evidence. Upon the hearing of the motion, either party may submit affidavits, depositions, admissions, and documentary evidence to be considered by the court with the pleadings.”

Also, when a motion for summary judgment is made and supported, the adverse party may not rest on mere allegations of his resistance but his resistance must set forth specific facts showing that there is a genuine issue for trial; otherwise, the motion shall be granted without further requirement of proof. Id., 壯 11.2(b) and 11.3(3).

The statute of limitations is a personal and affirmative defense and is one to which, in proper circumstances, all men are entitled as a matter of right. The right of a party after the statute has run to avail himself of the defense it affords is a vested one, which cannot be taken away from him without his consent. Vide: Bryant et al. v. Harmon et al.[1956] LRSC 18; , 12 LLR 330 (1956); Civil Procedure Law, Rev. Code 1: 9.8(4) (affirmative defenses), and 25.1 (judicial notice of law).

The underlying purpose of the statute of limitations is to promote the peace and welfare of society, safeguard against fraud and oppression, and compel the settlement of claims within a reasonable period of time after their origin and while the evidence remains fresh in the memory of the witnesses. Morally and equitably speaking, the various statutes of limitations find their justification in necessity and convenience rather than in logic, and it has been said that they represent expedience rather than principles. These statutes create repose and are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses dis-appeared or died, and evidence has been lost. 51 AM JUR 2d., Limitations of actions, 壯 3, 6, 7, 18 and 19.

It must be remembered that the action of debt filed by appellant in the magisterial court of Voinjama City was not on appeal from administrative courts, but rather an action in its origin, which was dismissed for lack of evidence. However, while it is true that the case was on appeal to the debt court from the magisterial court, it was equally true that it was to be tried de novo within the debt’s court judicial jurisdiction. Thus, the appellee could not be estopped from invoking the statute of limitations in the debt court at the call of the case, even if he had failed to plead the statute of limitations in the magisterial court or had been found guilty of laches as the majority holds.

One wonders why the appellant chose to bring his case to a judicial forum and not an executive tribunal such as the superintendent’s office on appeal, since he claimed to have received judgments from all other inferior administrative courts.

The action before the debt court on appeal from the magisterial court was a fresh one to be tried de novo; hence, the trial judge had no duty to take into account sua sponte the alleged records from the various administrative courts in which appellant had reportedly sued. He should have annexed such records to his resistance to the appellee’s motion to dismiss his action in order to buttress his resistance. In this connection, as far as the debt court was concerned, that was an original case and thus there was nothing in the law to stop the appellee from raising the affirmative defense of the statutory limitations. He could not therefore be defeated and/or im-paired by mere averments that there were administrative hearings and judgments, without the appellant specifically stating the dates, places and names of the courts or officers who conducted such hearings to prevent the statute from tolling.

Additionally, this Court should under no circumstances allow anything to take it from the centuries old doctrine of judicial neutrality which is founded on the principles of impartiality, disinterestedness, and above all, fairness in the administration of legal justice. The doctrine is as old as the history of the courts of justice and it is these three cardinal principles that have given credit and tolerance to the decrees of judicial tribunals. Viewed from another angle, the doctrine can be interpreted to mean that every litigant, and this includes the State, is entitled to nothing less than the cold neutrality of an impartial judge. It is therefore of great importance that our courts of law and all other legal forums, be free from reproach or the suspicion of unfairness, so as to afford the judiciary the age-long enjoyment of an elevated rank in the estimation of mankind.

It is therefore surprising that the majority would want the trial judge to have deviated from this cardinal doctrine and thereby expect the said trial judge to assist the party litigant (appellant in this case) to produce evidence to buttress his case. In making such a suggestion, the majority is defeating our cherished principle that “a court will not do for a party that which the party can do for himself.” Ware v. Republic[1935] LRSC 31; , 5 LLR 50 (1935); Republic v. Harmon and Brownell, [1936] LRSC 30; 5 LLR 300 (1936); and Howard et al. v. Dennis[1937] LRSC 5; , 5 LLR 375(1937).

As I conclude this dissenting opinion, I wish to emphasize that the only issue before this Court for the determination of this appeal is “whether or not, in ruling on a motion to dismiss an action, the trial judge was bound to call for extraneous evidence without a request from either party in order to determine the merits or demerits of the motion?” The answer to this question is obviously “NO.” The practice at common law and in this jurisdiction does not require the judge to do so. The judge is only required to see to it that the motion is concise and certain in its form, and above all, that all allegations and assertions of facts are supported by a duly attested affidavit unless, of course, it would not be possible for the judge to make a proper ruling without having recourse to extraneous facts. 37 AM. JUR., Motions, ? 14.

In view of the legal and factual points of view herein postulated and the moral and prevailing public policy, I fully endorse the stand of the debt court judge in dismissing the action on the application of the appellee. In doing so, the judge committed no reversible error. This appeal should therefore have been dismissed at the expense of the appellant.

The Clerk of this Court shall file this dissenting opinion in the archives of this Court.