NATHANIEL KROMAH, Plaintiff-In-Error, v. HIS HONOUR SEBRON HALL, Assigned Circuit Judge, Sixth Judicial Circuit, September Term, A. D. 1995, and WILLIAM B. THOMAS, Defendants-In-Error.

PETITION FOR A WRIT OF ERROR FROM A FINAL JUDGMENT OF THE SIXTH JUDICIAL CIRCUIT COURT, MONTSERRADO COUNTY.

Heard: September 11, 1996. Decided: September 27, 1996.

1. Since appearance in a case may be made by motion and not only by the filing of an answer, once an appearance has been made, the party is entitled to notice of every action to be taken in that case, including notice of assignment for disposition of law issues and notice of assignment for trial.

2. A party who has made an appearance in a case and is not notified by assignment of the day and time of the trial of the case has been denied his day in court and the writ of error will issue to reverse the judgment obtained and grant a new trial in such case.

3. Where a party has made his appearance, he is entitled to notice of assignment for the rendition of final judgment; and even where he is absent from said final judgment, after being duly notified, he is entitled to the appointment of counsel to take the final judgment on his behalf so as to preserve his right of appeal. Failure of the trial court to either notify such party of the rendition of the final judgment or to appoint counsel to take the final judgment is ground for the issuance of a writ of error, reversing the final judgment and granting a new trial.

Plaintiff-in-error was the defendant in an action of ejectment filed by Co-defendant-in-error William B. Thomas in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County. Plaintiff-in-error did not file an answer but did file a motion to vacate the injunction which defendant-in-error had obtained. Without disposing of that motion or the disposition of the issues of law, the trial court proceeded to try the case. No notice of assignment was served on plaintiff-in-error for the trial. Notwithstanding, his warranty deed for four lots of land from the same persons who were grantors for co-defendant-in-error was admitted into evidence. Also at the trial, instead of co-defendant-in-error bringing in some of his grantors as witnesses, since these same grantors were alleged to be plaintiff-in-error’s grantors, only co-defendant-in-error and another witness testified. The evidence also showed that a board of surveyors was appointed by the court to investigate the metes and bounds of the two deeds and they made their report; yet, in his final judgment, the judge made no reference to that report.

At the time of rendition of final judgment, no notice of assignment was issued for plaintiff-in-error to appear and no lawyer was appointed by the court to take the final judgment on behalf of plaintiff-in-error.

Plaintiff-in-error therefore petitioned the Supreme Court for a the writ of error, claiming that he had been denied his day in court by not being served with a notice of assignment for the trial of the case; that he had been denied the opportunity of an appeal by not being served with notice of assignment for the rendition of the final judgment or the appointment of counsel to take the judgment in his absence; and that several errors and irregularities had occurred at the trial, especially that allegations of facts were not covered by the final judgment.

The Supreme Court sustained the contention of plaintiff-in-error that he was entitled to a notice of assignment for the trial and that the failure of the trial court to serve him with such notice was tantamount to a denial of his day in court. The Supreme Court also sustained the contention of plaintiff-in-error that he had been denied the opportunity of an appeal by not being served with a notice of assignment for rendition of the final judgment and by the court not appointing counsel to take the judgment for him. For these reasons, the writ of error was granted and the final judgment reversed with instructions that the parties replead.

Wynston O. Henries appeared for plaintiff-in-error. J. D. Baryougar Junius appeared for defendants-in-error.

MR. JUSTICE YANCY delivered the opinion of the Court.

This petition for a writ of error grows out of an action of ejectment instituted in the Civil Law Court, Sixth Judicial Circuit, Montserrado County, Republic of Liberia, by William B. Thomas, co-defendant-in-error, against Nathaniel Kromah, plaintiff-in-error in this proceeding. The ejectment suit was instituted on the 11thday of May, A. D. 1995, to recover a parcel of land, which defendant-in-error alleged that he purchased from five (5) owners, namely, Henry Gbah, John Clark, Mary J. Gono, Dewey Dennis, and Flamah Saymelay

Up to May 23rd , 1995 plaintiff-in-error, as defendant in the trial court, had not filed an answer. The records, however, contain a motion filed by him, praying for a modification or vacating of an injunction suit, which had been filed by defendant-in-error as an ancillary action to the ejectment suit. The motion was filed on the 1st day of June, A. D. 1995; but there is no record of its disposition by the trial court.

Both counsels being present in court on the 12th day of October, 1995, the trial judge ordered the assignment of the ejectment suit for a hearing on October 19, 1995 at 2:00 o’clock p.m. On the appointed date and at the designated time, counsel for defendant-in-error was present, but neither plaintiff-in-error or his counsel was present. Counsel for defendant-in-error therefore invoked Rule 28 of the Circuit Court Revised Rules (1972), which provides that where a party fails to appear for disposition of law issues, the trial judge may dispose of the law issues in the absence of such party. Since plaintiff-in-error had failed to file an answer and also failed to appear in court in keeping with the assignment, the application of defendant-in-error was granted and the ejectment suit ruled to trial as there was no contentious issue of law to be disposed of in the absence of an answer. Thereafter, the case was assigned for trial by jury on November 17t h, 1995.

On the 17th day of November, A. D. 1995 when the ejectment case was called for trial, plaintiff-in-error and his counsel were absent; and this time, counsel for defendant-in-error invoked Rule 7 of the Circuit Court Revised Rules (1972) and section 42.1 of the Civil Procedure Law, Rev. Code, and requested the trial judge to enter a default judgment against plaintiff-in-error and allow defendant-in-error to perfect the judgment by presenting his evidence to the jury. The application being consistent with law, the trial judge granted it.

Defendant-in-error thereupon complied with the procedure and perfected the default judgment through the presentation of evidence. On the 2 Pt day of November, 1995 a final judgment was rendered by the trial judge in favor of the defendant-in-error.

The records of the trial court reveal that only the defendant-in-error and his witness, Samuel D. Johnson, were qualified and testified. Not one of the five (5) persons, who allegedly sold the land to defendant-in-error testified. Furthermore, in the records forwarded to this Court, there is a deed in favour of each of the parties to the ejectment suit; and the grantors on both deeds are the identical five owners, namely, Henry Gbah, John Clark, Mary J. Gbono, Dewey Dennis and Flamah Saymanley.

The deed for the defendant-in-error was executed on the 12th day of October, 1982; but it was not probated until the 24t h day of May, 1989. On the other hand, the deed for plaintiff-in-error was executed on the 20t h day of March, 1989 and was probated on the 2′ day of February, 1995. This means that both deeds were probated long after the statutory period of four

(4) months as of the date of execution of each deed.

The deed for defendant-in-error provides for one lot of land; the deed for plaintiff-in-error provides for four lots of land or one acre.

As was mentioned before, both parties obtained warranty deeds from the identical grantors; yet, defendant-in-error in proving his case at the trial court, failed and neglected to call any of the five grantors to testify.

From the descriptions appearing on the face of the deed for defendant-in-error, the metes and bounds start with the following language:

“Commencing from the Southeastern corner of the adjoining parcel of land owned by S. W. Williams then running South 68 degrees 33 minutes and 32 seconds West …”

From the description appearing on the face of the deed for plaintiff-in-error, the metes and bounds start with the following language:

“Commencing at the Northeastern corner of a parcel. of land marked with the initials, M. L., thence running on magnetic bearings North 50 degrees West …”

The Court observes a disparity in the bearings because the lines differ in degrees and are not parallel. The Court also observes that even if defendant-in-error’s one lot of land is entirely situated within plaintiff-in-error’s four lots, based on the metes and bounds stated in both deed, the surveys seem to be defective.

From the record, there is a memorandum, dated August 7, 1995, containing report of a Survey Board of Arbitration, marked “Exhibit PK 3” and apparently offered in evidence by the defendant-in-error; but the trial judge failed to pass upon this report in his final judgment of November 21, 1995.

Plaintiff-in-error submitted that there was no notice of assignment for the rendition of the final judgment on November 21, 1995; and a thorough review of the record does not show any notice of assignment for the rendition of the final judgment. Further, the plaintiff-in-error alleged, and supported by a certificate and an affidavit issued by Counsellor James Jones, that he, Counsellor James Jones, was never appointed by the trial judge to take the final judgment in the absence of plaintiff-in-error and his counsel, as is required by law; hence there was no exception to and announcement of an appeal from the final judgment.

Since the records of the trial court state that Counsellor James Jones was appointed to take the final judgment and that Counsellor James Jones had issued a certificate and an affidavit contrary to the records, it was incumbent on defendant-in-error to rebut the allegations or discredit the certificate and the affidavit of Counsellor Jones; but the defendant-in-error did not do so. This leaves this Court with no alternative but to conclude that the allegation of the plaintiff-in-error that no counsel was appointed by the trial court to take the final judgment for him is well founded.

Before proceeding further, let us review the petition, returns, and briefs submitted by counsel of the parties.

Plaintiff-in-error alleged in his petition for the writ of error, as follows:

1. He did not have his day in court because no notice of assignment was served on him or his counsel for the trial; that he was never present for the trial or at the rendition of final judgment; and that notwithstanding his absence at the rendition of final judgment, no counsel was appointed by the trial judge to take the final judgment on his behalf. A certificate of Counsellor James Jones, disclaiming that he was appointed by the trial judge on November 21, 1995 to take said final judgment, was marked Exhibit “C” and made profert to the petition.

2. That a motion to vacate the injunction, which was ancillary to the main ejectment suit, was filed by plaintiff-in-error at the trial court; but that the said motion has not been heard.

3.That the Surveyors’ Report was received and passed upon by the trial judge without any notice to plaintiff-in-error; and when he finally obtained a copy thereof after the rendition of the final judgment, several irregularities and errors were discovered.

4. That several allegations of facts in the pleadings were not covered by the final judgment; but as the final judgment was rendered in his absence, without prior notice to him and without the trial court’s appointment of counsel to take the final judgment for him, plaintiff-in-error claimed that he was deprived of the opportunity to move the trial court for a retrial in keeping with statutes made and provided.

The defendant-in-error, in his consolidated returns/brief traversing the petition of the plaintiff-in-error, alleged in substance that:

1. He is the bonafide owner of a lot of land, described in count one (1) of the returns/brief which the plaintiff-in-error, defendant in the ejectment action, is illegally and wrongfully occupying;

2. All efforts to have plaintiff-in-error meet with defendant-in-error in connection with said land matter through a conference have failed;

3. After several notices of assignment, plaintiff-in-error failed to appear; hence application for a default judgment against him was prayed for, granted and made perfect. Upon assignment of the matter for final judgment on 21″ November, 1995, plaintiff-in-error again failed to appear.

We will consider the allegations and contentions of the petition and returns in the reverse order. First, there is no notice of assignment in the record before us for the handing down of the final judgment on November 21, 1995. Further, there is an affidavit of service executed by Counsellor Jones on 10thJanuary, 1996, disclaiming ever being in the Civil Law Court on November 21, 1995 and hence he was never designated or appointed by the trial judge, His Honour Sebron Hall, to take that final judgment in the ejectment suit between plaintiff-in-error and defendant-in-error. Defendant-in-error failed to traverse this allegation or deny the validity or truthfulness of the said affidavit of Counsellor Jones in his returns/brief; hence, the Court deems the affidavit to be true.

The Court therefore says that the failure of plaintiff-in-error to have filed a motion for new trial, according to the record, is justified on grounds of lack of notice and the failure and neglect of the trial court to appoint a counsel to take the final judgment on behalf of plaintiff-in-error is a reversible error.

The trial judge, in his final judgment of November 21, 1995, did not pass on the injunction, the bond of the plaintiff-in-error, or the report of the surveyors, all of which seemingly were admitted into evidence as appears from marks of identification (Exhibit “PK/3” in bulk) placed thereon by the clerk of the trial court, confirmed and reconfirmed. Also, the record of the trial court shows two (2) warranty deeds from the identical five (5) grantors, D. Henry Gbah, John Clark, Mary J, Gbono, Dewey Dennis and Flamah Saymanley to each of the parties to this action; and both deeds were identified and confirmed. Yet the record shows that no answer was filed by plaintiff-in-error.

The Court is confused as to how a warranty deed in favor of plaintiff-in-error gained admittance into the records of the trial court and no reference is made to it in the final judgment. More than this, as stated earlier, at the trial, only defendant-in-error and his witness, Samuel D. Johnson, testified. Not a single grantor was brought as a witness to testify even though there were two deeds from the same five grantors to the parties to this suit. (See final judgment, minutes of court, Sixth Judicial Circuit, September Term, A. D. 1995, Thursday, November 21, 1995, sheet eleven, paragraph five).

On the matter of the remedial writ of error, the Civil Procedure Law empowers the Supreme Court to call up for review a judgment of an inferior court of record from which an appeal was not announced on rendition of said judgment. Rev. Code 1: 16.21(4). Section 16.24, subsections 1, 2 and 3 of the Civil Procedure Law also sets forth the requirements for the remedial writ of error and the procedure for obtaining said relief. Civil Procedure Law, Rev. Code 1: 16.24(1)(2)(3). To the mind of this Court, plaintiff-in-error has complied fully with these procedural guidelines.

Moreover, Section 16.24, subsection 4 of the Civil Procedure Law, provides that the Supreme Court, after hearing a matter involving a petition for a writ of error, may grant such judgment as it may grant on an appeal.

Given the errors and irregularities identified above, it is clear that the ejectment suit was not properly tried at the court below. The law is that the writ of error shall be granted when an inferior tribunal has denied a litigant his day in court. Teewia v. Urey and Sokan, [1978] LRSC 27; 27 LLR 91 (1978). There is ample evidence, already referred to above, showing that plaintiff-in-error was denied his day in court. It is also the law that the writ of error will issue to a party who, for good reason, has failed to take an appeal from a judgment, decree, or order of a trial court or who has lost his right of statutory appeal without laches on his part. Brown Boveri Cie, AG. v. Lewis et al.[1977] LRSC 33; , 26 LLR 170 (1977). Again there is ample evidence that plaintiff-in-error did not take an appeal through no fault of his but because the trial court failed to notify him of the date for rendition of the final judgment and to appoint a counsel to take the final judgment on his behalf.

In addition to these errors and irregularities, this Court observed that there was no record of a ruling on the law issues in the case, even though by both statute and procedure hoary with age, law issues must be disposed of first. Civil Procedure Law, Rev. Code 1: 21.1; Cooper, et al. v. Davis, et al.[1978] LRSC 57; , 27 LLR 310 (1978).

Plaintiff-in-error is entitled to have his day in court; but defendant-in-error is also entitled to a remedy in keeping with the due process of law. More than this, our law provides that in the construction of pleadings and the granting of reliefs based thereon, the pleadings should be construed as to do substantial justice and that every final judgment should grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. Civil Procedure Law, Rev. Code 1: 9.12. On the basis of these laws, the only reasonable course of action is to reverse the final judgment and remand this case for a new trial, with the instruction that the parties replead. Indeed this Court has the power to remand and order the parties to replead. Lamco J. V. Operating Co. v. Rogers, [1975] LRSC 26; 24 LLR 314 (1975).

In view of the foregoing, the final judgment is reversed and the case is remanded for a new trial, commencing with the filing of new pleadings. The Clerk or this Court is hereby ordered to send a mandate to the judge of the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, ordering the aforesaid court to resume jurisdiction over the case and allow the parties to replead so that the errors, omissions and other inadvertencies may be corrected in keeping with this opinion. Costs are disallowed. And it is hereby so ordered.

Judgment reversed; case remanded for new trial.