LAMCO J. V. OPERATING COMPANY, represented by and through its General Manager, STEN FORSMARK, Appellant, v. GBEZON TRANSPORT COMPANY, represented by and through its President, ROSA DILLON, Appellee.

APPEAL FROM THE DEBT COURT FOR GRAND BASSA COUNTY.

Heard: March 19, 26. 30, 1981. Decided: July 30. 1981.

1. All persons may be joined in one action as party defendants and jointly tried, even though the plaintiff may have jointly or severally claimed against them if the cause of action arose out of the same events or series of transactions that render a question of law or fact presented by the pleadings common to all of the parties. A judgment may be rendered for or against each of such persons sued according to his right or liability proved at the trial.

2. A debt is a contract. The breach of a promise to pay a sum certain is a default in paying a debt.

3. All issues raised by a party, along with the exhibits annexed to the pleadings ruled to trial, if testified to and marked by court are legally admissible into evidence.

4. A party to a civil action, when duly informed or notified of the pendency of the action against him, by service of summons, may after receipt of the notice of assignment decline to attend the trial. Notwithstanding, where a party duly notified wilfully defaults in attending a trial to defend his rights, the trial may still legally proceed.

5. Determination of the materiality of a document when offered by a party, lies within the sound discretion of the trial judge.

6. A trial judge is not required by law to grant every motion made by a party. He is however, required by law to review the facts of every motion, consider same with the law controlling, and rule upon it.

7. The statutory provisions that the court shall decide an issue not required to be tried by jury, unless it is referred to a referee, is to be construed in a manner to promote the just, speedy and inexpensive determination of every action.

8. The rule in Walker v. Morris, [1963] LRSC 42; 15 LLR 424 (1968) which holds that all documentary evidence which is material to the issues of fact raised in the pleadings should be presented to the jury, presupposes that all such documentary evidence must have previously been pleaded, annexed to the pleadings, exchanged or notice for its production at the trial was given in the pleadings exchanged by the parties, in order that the procedure may conform with the requirement of notice to either party of what is being intended to be proved.

9. A bill of exceptions to be legal and acceptable to this Court, should contain only issues raised in the pleadings, objected to at the trial, and excepted to by the aggrieved party. It is highly repugnant to law and justice as well as to the professional code of ethics for a counsel to place in a bill of exceptions and try to impress upon this Court to pass upon issues that were never legally before the trial court.

10. A corporation can legally be represented only by counsel.

11. The duty of the Supreme Court, as interpreter of the law, is to concur with all conclusions of this Court as the laws in force, but it does not obligate the Court to accept and enforce as stare decisis, decisions that were binding when made, but were later rendered unenforceable by the repeal of the statutes on which they were exclusively based.

12. It is the bounden duty of the Supreme Court to accept and interpret only the statutes in force. To recognize and enforce a repealed statute mainly because previous decisions recognized its validity before the repeal thereof, is to contradict the lawmakers, interfere in their duty and legislate, which the Court is not empowered to undertake.

13. The provisions of the Civil Procedure Law shall be construed to promote the just, speedy and inexpensive determination of every action.

14. The trial court is to decide only issues that it may consider not necessary to be tried by jury. But where according to its own determination, an issue is not purely a matter of law and its determination requires some evidence, it may consider it as a mixed question of law and fact for trial by the jury.

15. Where a party excepts to a ruling and gives notice that he would apply to a Chambers Justice for a remedial process, such notice does not suspend the trial. It is the wordings of the writ or order from the Chambers Justice that may suspend further action at the trial. A trial court is not therefore obligated to delay or suspend trial in anticipation of his receiving an order from a Chamber Justice.

16. A party may file an action in one term of court for the ensuing term of court.

17. A party who, with full knowledge of the facts and circumstances, allows another to confide in him that he will pay for the services rendered for the benefit of the promissor, and the actor in fact renders such service, is estopped from denying the engagement and is bound to pay, under the doctrine of promissory estoppel.

18. Where one person makes a promise to another for the benefit of a third person, that third person may obtain an action upon it.

19. Where the existence of a third party beneficiary contract is shown, it is preferable to allow the third party beneficiary to sue on the ground that “the law operating on the acts of the parties created the essential privity” and implies the obligation between the promissor and the third party beneficiary on which the action is founded. By this, circuitry of actions and multiplicity of suits would be avoided.

Appellee instituted an action of debt against appellants, Lamco J. V. Operating Company and the LAMCO Mines Workers of Liberia, affiliated with and represented by the United Workers Congress of Liberia. Appellants along with the other defendants filed separate answers, but by and through the same counsel.

Upon a regular trial final judgment was rendered in favor of appellee, to which appellant, Lamco J. V. Operating Company, excepted and announced an appeal to the Supreme Court. No exceptions were noted, nor an appeal announced from the judgment by co-defendant LAMCO Mine Workers Union. Appellant contends, among other things, that the trial court lacks jurisdiction over the person and the subject matter; that since appellants filed separate answers, they should have been tried separately; and that in the disposition of law issues, the court should have specified which counts of the pleadings were ruled to trial. Appellant also contended that the trial court lacked jurisdiction over the person and the subject matter and that appellant, not being a party to the contract between appellee and LAMCO Mine Workers Union, cannot be bound by the contract.

The Supreme Court held that the trial court had jurisdiction over the person of appellant by service of the writ of summons and the returns of said writ. Opining that a debt is a contract, and that the breach of a promise to pay a sum certain is a default in paying a debt, the Court also held that the case was properly venued and that the trial court had jurisdiction over the subject matter. The Supreme Court also held that the LAMCO Mine Workers Union was a third party beneficiary contract of the contract between appellant and appellee; and so the said LAMCO Mines Workers Union, although not a party thereto, but a beneficiary thereof, can legally maintain an action on the contract. Finally, the Supreme Court held that appellant, having paid previous bills submitted to it by appellee, is estopped from disclaiming liability to appellee for services rendered to appellant’s employees. In view of the evidence and the law controlling, the Supreme Court affirmed the judgement.

MR. JUSTICE MABANDE delivered the opinion of the Court.

B. Mulbah Togbah and S. Edward Carlor appeared for appellant. M M Perry appeared for appellee.

On May 3, 1979, the Gbezon Transport Company, by and through its President, Rosa Dillon, filed a four (4) count action of debt in the Debt Court of Grand Bassa County against defendants Lamco J. V. Operating Company and Lamco Mine Workers Union of Liberia affiliated with and represented by the United Congress. The complaint alleged (a) a debt of a sum certain; (b) contracts by and between defendants and plaintiff for the transportation of defendant Lamco’s workers daily for pay; (c) that in keeping with the contracts, defendant Lamco had made part payment but it had refused to pay the balance due, and (d) that defendants have in spite of their several promises to pay plaintiff, neglected to do so.

Co-defendant Lamco’s six (6) count answer averred; (a) improper venue of the action; (b) that an action founded upon a contract should be a suit for damages and not debt;(c) that debt does not lie where a sum certain is due or where the amount sued for is predicated upon a contract; (d) that Lamco is no party to the contracts; and (e) that Lamco signed a contract with only codefendants Lamco Mine Workers Union affiliated with and represented by the United Congress. Each of the defendants filed separate pleadings, but by the same counsel. The reply substantially maintained that the suit was properly instituted, and venued, and that co-defendant Lamco is estopped from denying liability to plaintiff by its previous dealings with and part payment to the plaintiff for the transport services, and that during the trial, defendants would be requested to produce the original copies of the contracts.

A regular trial was held on the points on which the parties joined issue. Judgment was rendered in favour of Gbezon Transport Company against Lamco J. V. Operating Company. Lamco J. V. Operating Company excepted to the judgment and has therefore brought this appeal to this Bench on a nine (9) count bill of exceptions. Even though all of the defendants were represented, at all stages of the trial, by the same retained Lamco’s counsel and law firm, the counsel for co-defendant LAMCO Mine Workers Union, for reasons known to themselves and their clients, neither excepted to the judgment nor announced or processed any appeal for co-defendant Lamco Mines Workers Union except for defendant Lamco. Their unappealed contentions are therefore not before this Court. We would have confined ourselves to only the points raised in the bill of exceptions which we consider important for the conclusion of this controversy, as are here summarized for our review, but we shall entertain a review of other unimportant issues raised in appellant Lamco’s brief. The issues are: (1) whether a company may be represented in person; (2) whether where parties are jointly and severally sued for a cause arising out of the same or related transaction, but by their jointly retained counsel, filed separate answers containing the same and similar defenses, are entitled as a matter of right to severance; (3) whether an action of debt may lie for a sum certain; (4) whether in ruling on the issues of law a trial judge should decide issues he considers to be mixed questions of law and fact (5) whether a document identified by witnesses, marked and confirmed by court cannot be admissible into evidence; (6) whether a trial judge is obligated to grant every motion made by a party; and (7) whether a judgment must be rendered against all of the parties sued jointly and severally?

Appellant’s counsel commenced his argument by maintaining that when parties are jointly sued but file separate answers, they should be separately tried; therefore the trial judge, His Honour Nathaniel Hodge, committed reversible error by jointly trying the parties. Appellant’s counsel further contended that as the answers were separate, the ruling on the law issues should have identified the counts of each of the answers and the complaint that were ruled upon.

Under our law, all persons may be joined in one action as party defendants and jointly tried even though the plaintiff may have jointly or severally claimed against them, if the cause of action arose out of the same events or series of transactions that render a question of law or fact presented by the pleadings common to all of the parties. The severance of such causes of actions and parties would establish suing multiplicity of actions contrary to law and public policy. A judgment may be rendered for or against each of such persons sued according to his right or liability proved at the trial. Civil Procedure Law, Rev. Code, 1:5.55 (2,3)

In ruling on the issues of law, His Honour Nathaniel Hodge specifically referred to all of the pleadings; he ruled that the debt court judge had jurisdiction over the cause of action and that the action was properly venued. In concluding his ruling on the issues of law, the trial judge determined that all of the other issues raised in the complaint, answers, and replies were in his opinion, mixed questions of law and fact to be proved at the trial.

Regarding count three of his brief, appellant’s counsel again maintained as he did in count one of his brief, that the trial judge committed reversible error because, as he argued the ruling on the law issues did not specify which counts of the pleadings were ruled to trial. According to the records, the judge’s ruling was distinct and clear; it informed the parties of the issues that were to be proved at the trial. No party was prejudiced even if the trial judge had not specified the counts of the pleadings that were ruled to trial.

In count four of his brief, counsel for appellant argued that the trial judge committed reversible error in ruling on the motion for lack of jurisdiction over the person and subject matter filed jointly by appellant Lamco and co-defendant Lamco Mine Workers Union. The counsel further contended that appellant Lamco still contends that the debt court does not have jurisdiction over the subject matter. We are of the opinion that debt is a contract. The breach of a promise to pay a sum certain is a default in paying a debt. The trial judge therefore committed no error in ruling that he had jurisdiction over the subject matter. Appellant Lamco was served with the summons and complaint in accordance with law. The court obtained personal jurisdiction over it. We hold therefore that where a trial court has jurisdiction over the subject matter and the person as in this case the judgment binds all of the parties thereto. Civil Procedure Law, Rev. Code, 1: 3.38 (6)

In count five of their brief, appellant’s counsel contended that the trial judge committed reversible error by allowing testimony over the objections of the appellant on documents that were not pleaded by the parties or ruled to trial. A resort to the complaint and answer indicates that the contracts testified to and admitted into evidence were specifically referred to by counts two and three of the complaint, counts five and six of defendant Union’s answer, counts five and six of appellant Lamco’s answer and count three of appellee’s reply. All issues raised by a party along with the exhibits annexed to the pleadings that are ruled to trial when testified to and marked by court are legally admissible into evidence. Beysolow v. Coleman, [1946] LRSC 4; 9 LLR 156 (1946).

In count six of his brief appellant’s counsel argued that the court erred, because it admitted into evidence over the objection of appellant, contracts that were not signed by appellant Lamco. The counsel contended that though Co-defendant Lamco Mine Workers Union was party to the action, it did not attend the trial therefore the documents should not have been admitted into evidence because only appellant LAMCO was at the trial. A party to a civil action when duly informed or notified of the pendency of an action against him by the service of summons may after receipt of the notice of assignment decline to attend the trial. Notwithstanding the wilful default of a notified party to attend a trial so as to defend his rights, a trial may still legally proceed. His Honour Nathaniel Hodge therefore legally conducted the trial by admitting into evidence all relevant facts and documents pleaded by the parties. Determination of the materiality of a document when offered by a party lies within the sound discretion of the trial judge. His Honour Nathaniel Hodge, according to the records, did not abuse the use of his discretion. Shaheen v. Compagnie Francaise de L’Afrique Occidentale, 13 LLR 278 (1958).

In count seven of his brief, appellant’s counsel argued that the trial judge committed reversible error by his denying appellant Lamco’s motion for judgment in his favour.

Appellant’s counsel further contended that it is a well settled principle of law that one who is not a signatory to a contract cannot be bound by it; hence, his motion should have been granted. A trial judge is not required by law to grant every motion made by a party. He is required by law to review the facts of a motion; consider the same with the law controlling and rule upon it. There was no arbitrary exercise of discretion or wrong evaluation of the facts and the law by the trial judge. His ruling therefore was not erroneous.

In count eight of his brief, appellant’s counsel argued that the trial judge committed reversible error by refusing to admit into evidence on the objections of appellee’s counsel, documents offered for admission by appellant Lamco. He contended that the documents were material and relevant to the issue that was before the court. The documents objected to, according to the records of the court, were documents that were not pleaded by appellant Lamco. To admit same into evidence would have violated the law of notice, which rule has been strictly adhered to by this Court for a period of more than a century. Resort to appellant’s own pleadings, indicates that no letters from codefendant Lamco Mine Workers’ Union to defendant/appellant Lamco or from the Ministry of Labour to appellant Lamco were ever proferted and annexed to the answer. In support of his argument, appellant Lamco’s counsel cited this court to the case Walker v. Morris, [1963] LRSC 42; 15 LLR 424 (1963) which holds that all documentary evidence which is material to the issues of fact raised in the pleadings should be presented to the jury. The rule in Walker v. Morris presupposes that all such documentary evidence must have previously been pleaded and annexed to the pleadings exchanged, or notice for its production at the trial was given in the pleadings exchanged by the parties in order that the procedure may conform with the requirement of notice to either party of what is being intended to be proved. This appellant Lamco’s counsel failed to do. The Cavalla River Company v. Fredericks, [1920] LRSC 6; 2 LLR 375 (1920).

A bill of exceptions, to be legal and acceptable to this Court, should contain only issues raised in the pleadings, objected to at the trial, and excepted to by the aggrieved party. It is highly repugnant to law and justice as well as to the professional code of ethics for a counsel to place in a bill of exceptions and try to impress upon this Court to pass upon issues that were never legally before the trial court, as appellant Lamco’s counsel has done. Smart et al. v. Daniels and Faulkner,[1937] LRSC 4; 5 LLR 369 (1937); Elliot v. Dent, [1929] LRSC 8; 3 LLR 111 (1929)

Counsel for appellant contended that appellant was not represented at the trial and therefore the judgment cannot be enforced against it. Appellant’s counsel further argued that by its notice of appearance, it indicated that co-defendant Lamco would be represented in person, by counsel or both; therefore the representation of appellant at the trial by his counsel alone, without the company being present in person, denied appellant of its fundamental right to representation in person. Under our law, appellant could have been represented in person if appellant were an adult life in being. Lamco, however, being a corporate entity, can legally be represented only by counsel. Appellant’s counsel who prepared and exchanged all of the pleadings attended every stage of the trial and announced his representation for Lamco. Appellant therefore was adequately accorded the right to representation as our law requires. Civil Procedure Law, Rev. Code 1: 1.8 (la), 3.61.

Concerning the trial judge’s failure to rule on all of the issues of law, when such issues are brought before an appellate court, it should be viewed in the light of the records and not taken for granted merely because it has been excepted to and pleaded in the brief.

On December 6, 1968, Title 6 of the Liberian Code of Laws of 1956, and all supplements through 1961, were repealed, as follows:

“Section 1. Title 6 of the Liberian Code of Laws of 1956, amended by the Cumulative Supplement through Laws of 1957-58, and by the Laws of 1956-59, the Laws of 1959-60, and the Laws of 1960-61, is hereby repealed and there is enacted in lieu thereof a new Title 6, consisting of parts, I, II, III, IV, V and appendices I and II, to be known as the Civil Procedure Law of the Republic of Liberia.”

Our duty as interpreters of the law, is to concur with all conclusions of this Court as the laws in force; but it does not obligate us to accept and enforce as stare decisis, decisions that were binding when made, but were later rendered unenforceable by the repeal of the statutes on which they were exclusively based.

It is our bounden duty to accept and interpret only the statutes in force. To recognize and enforce a repealed statute mainly because previous decisions recognized its validity before the repeal thereof, is to contradict the lawmakers, interfere in their duty and legislate, which we are not empowered to undertake.

Our current law empowering and directing a trial judge to rule on issues to be decided by the court is provided by Volume I of the Liberian Code of Laws Revised. “The court shall decide any issue not required to be tried by jury unless it is referred to a referee to determine pursuant to chapter 24”. Civil Procedure Law, Rev. Code 1: 23.1

This statute is to be construed in a manner so as to prevent denial of justice by unnecessary delay, reversal of cases for new trial on mere points of legal technicalities that operate to the advantage of no party but merely to obstruct consideration of the merits of a controversy. “The provisions of this title shall be construed to promote the just, speedy and inexpensive determination of every action”. Ibid., 1:1.4; Ernest v. McFoy, [1918] LRSC 2; 2 LLR 295, 297 (1918); Page v. Jackson, [1911] LRSC 6; 2 LLR 47, 48 (1911)

Under the current law, the trial court is to decide only issue that it may consider not necessary to be tried by jury. But where according to its own determination, an issue is not purely a matter of law and its determination requires some evidence, it may consider it as a mixed question of law and fact for trial by the jury. This was precisely the issue that was before the judge, and he so determined it.

A court is not bound under any condition to accept the view of one opposing counsel without weighing the law and merit of the contention in arriving at its own independent judgment.

In summing up the issues presented by the pleadings, the trial judge ruled “It is the opinion of this court that the action of debt is the proper remedy for the recovery of the amount due. As to the other contentions raised in the answers and the replies, this court is of the opinion that they are both factual issues mixed with laws”. A litigant has no legal right to compel a judge to rule according to his personal opinion.

Where a party excepts to a ruling and gives notice that he would apply to a Chambers Justice for a remedial process, such notice does not suspend the trial. It is the wordings of the writ or order from the Chambers Justice that may suspend further action at the trial. A trial court is not therefore obligated to delay or suspend trial in anticipation of its receiving an order from a Chambers Justice.

On the question of estoppel raised by appellee which appellant claimed the court did not rule upon, the court correctly regarded estoppel as an issue that requires evidence of the facts and circumstances constituting the estoppel. We are therefore of the opinion that the trial court properly considered it as a mixed question of law and fact. The contention of appellant that it is a legal blunder to file a case in one term for an ensuing term is unsupported by law. A party may legally do so if the opposing party is not deprived of the legal number of days to prepare for the case. A defense is unmeritorious if it would entitle a party to no right or privilege. As appellant was deprived of no right or privilege, there was no harm by granting him additional time of more than 15 days before trial commenced. We hold that a party may file an action in one term of court for the ensuing term of court. Sodjie v. Tartimeh, [1920] LRSC 3; 2 LLR 362, 363 (1919).

A party who with full knowledge of the facts and circumstances, allows another to confide in him that he will pay for the services rendered for the benefit of the promissor, and the actor in fact renders such performance, is estopped from denying the engagement and is bound to pay under the doctrine of promissory estoppel. 16 CYC 679, Estoppel; and Foreign Mission Board of the National Baptist Convention, Inc., v. Horton, [1929] LRSC 12; 3 LLR 133, 141 (undated).

Executives of concessions are entitled, as a matter of company policy, and even as matter of contractual right, in some instances, to transportation in luxurious company cars, furnished housing, free medical care for themselves and their dependants, long term vacations and sick leaves, while other low income employees, who unlike their executives, live off concession areas, walk long distances to work only to be marked half day for lateness.

To remedy some of these economic and labour injustices, government’s policy demanding companies to provide transportation for their employees was enunciated.

Appellant Lamco in count six of its answer, pleaded that according to the agreement signed between Lamco J. V. Operating Company and the Lamco Mines Workers’ Union of Liberia, affiliated with and represented by the United Workers’ Congress of Liberia, dated January 6, 1976, it was agreed that “in the event that the contractor does not give satisfactory service as deemed by the Union and the company together, and no other satisfactory contractor can be found by the Union, the company may itself provide transportation”. This agreement by the Union and the appellant company convincingly intended a third party to have undertaken the transportation of workers for and on behalf of appellant for compensation. Such an agreement is a third party beneficiary contract. Appellee Gbezon became that third party beneficiary by its performance as specified by the agreements and by the recognition of appellee Gbezon as such third party to the agreement.

The right of a third party has been recognized and enforced in both British and American jurisdictions by a long series of adjudged cases. 50 Harv. L. Rev., pp.449, 458. In Hendrick v. Lindsay, [1876] USSC 105; 93 US 143(1876), 23 L.Ed 855, the United States Supreme Court held that “any damage or suspension of a right or possibility of a loss, occasioned to the plaintiff by the promise of another, is a sufficient consideration for such promise and will make it binding although no actual benefit accrues to the party promising.”

In Canal Company v. Weschester County Bank, 4 Denio 97, it was held that where one person makes a promise to another for the benefit of a third person, that third person may obtain an action upon it. Also in Brewer v. Dyer, 7 Cush 337 (1851), the court upheld recovery in a similar situation.

During the arguments, appellant contended that the proper cause should have been brought by appellee Gbezon against the co-defendant Union and after recovering from co-defendant Union, then co-defendant Union would sue appellant Lamco. In Calder v. Richardson, 11 F. Supp. 148 (D.C.), the court held that it is preferable to allow the third party beneficiary to sue on the ground that “the law operating on the acts of the parties created the essential privity,” and implies the obligation between the promissor and the third party beneficiary on which the action is founded. By this, circuitry of actions and multiplicity of suits would be avoided.

Appellant having undertaken with full knowledge of the contracts, past dealings with appellee Gbezon, and payment of previous bills submitted to it by said appellee Gbezon, it is estopped from denying his own past acts and disclaiming liability to and knowledge of the legitimate existence of appellee Gbezon as a party who had previously undertaken and continued the performance of the said transportation services for pay.

Appellant’s negligence and failure to have informed appellee Gbezon of the termination of the contract as required by their agreement, operates as an estoppel against it. Appellant cannot therefore deny the continuation and validity of the said contract. In view of the evidence and the law controlling, as well as the regular manner in which the trial was conducted, we are of the opinion that the judgment should not be disturbed. We therefore affirm it. The Clerk of this Court is hereby instructed to send a mandate to the trial court to resume jurisdiction over this case and enforce its judgment. And it is hereby so ordered. Judgment affirmed.