THE LIBERIA BANK FOR DEVELOPMENT AND INVESTMENT, a Financial Institution organized and existing under the Law of the Republic of Liberia, represented by its Authorized Officers, Petitioner, v. HIS HONOUR HALL W. BADIO, and LIBERIA FISHERIES INDUSTRIES, INC., by and thru its General Manager, DIB KASSABLI, Respondents.

APPEAL FROM THE RULING OF THE JUSTICE IN CHAMBERS GRANTING THE PETITION FOR A WRIT OF CERTIORARI.

Heard: June 29, 1992. Decided: September 4, 1992.

1. Under our practice, the fundamental principle of pleading is that of giving notice, and when notice is given after the time a hearing is scheduled to be held, it cannot be said that the notice was timely given.

2. Rule 28 stipulates that the judge “shall assign a day for passing upon the issues of law and hearing all cases not dismissed on question of law, whether or not the counsels previously notified are present”.

3. Rule 28 cannot be invoked unless it is satisfactorily established that counsel has been notified in sufficient time to allow his attendance.

4. Ruling on issues of law under our jurisdiction is not a final judgment because the case is still pending on its merits and therefore is still pending before the Court.

5. Certiorari is a special proceeding to review and correct decisions of officials, boards, or agencies acting in a judicial capacity, or to review an intermediate or interlocutory judgment of a court.

6. Interlocutory is defined as provisional, temporary, not final; something intervening between the commencement and the end of a suit which decides some point or matter, but it is not a final decision of the whole controversy.

7. Certiorari will lie when the rights of a party are manifestly prejudiced by a ruling of an inferior court during pendency of a case.

8. Certiorari will lie to review an intermediate or interlocutory judgment of a lower court.

Defendant was served with a notice of assignment on December 30, 1985 at 11:45 a.m. to appear in court for the disposition of law issues. The notice required defendant to appear at the hour of 11:00 a.m., December 30, 1985, the same date of the service of the notice. Defendant noted on the back of the assignment that the time of service (11:45 a.m.) was after the time defendant was required to appear in court. Notwithstanding, the judge convened the court, conducted hearing, ruled defendant to a bare denial, and dismissed the defendant’s answer.

Whereupon the defendant petitioned the Chambers Justice for a writ of certiorari, which was issued. Respondents appealed to the full bench contending, among other things, that certiorari will not lie since defendant/petitioner could have sought redress by way of a regular appeal.

The Supreme Court granted the certiorari on the grounds that the remedial writ will issue where the judge’s order complained of is interlocutory.

Moses K Yangbe appeared for respondents/appellants. Henry Reed Cooper of the Cooper and Togbah Law Offices appeared for petitioner/appellee.

MR. JUSTICE SMALLWOOD delivered the opinion of the Court.

This case is before this Court on appeal taken from the ruling delivered on 6th March, A. D. 1986, by Mr. Justice Elwood L. Jangaba, presiding in Chambers, March Term, A. D. 1986.

The petitioner in these proceedings filed a three-count petition for a writ of certiorari. We deem it necessary to give consideration in this opinion to counts 2 and 3 of the said petition.

In counts 2 and 3 of the petition, the petitioner contends that on December 30, 1985, a notice of assignment was served on counsel for petitioner for the disposition of the law issues on the same day at the hour of 11:00 a.m. but that the notice of assignment was not served until 11:45 a.m. on December 30, 1985. Counsel for petitioner made notation on the notice of assignment indicating that the notice of assignment was served on him after the hour of 11:30 a.m., and that he had requested another assignment. Notwithstanding the problem with service of the notice of assignment, the co-respondent judge proceeded to hear argument only from the co-respondents, dismissed the answer of petitioner, and ruled petitioner to a bare denial. Petitioner contends that the reason given by the judge for dismissing petitioner’s answer is that the said answer was served on the respondents on a date other than October 18, 1985, the date on which said answer was filed. Petitioner further contends that the allegation that the answer was served on a day other than October 18, 1985 is a matter of fact which should have been established by evidence, particularly since the purported receipt on which the judge relied shows no connection with petitioner.

The respondents filed a nine-count returns and for the benefit of this opinion we shall consider counts 1, 2, 3, 4, 7, and 8. In count 1 of the returns, the respondents contended that, in keeping with the sheriffs returns on the notice of assignment, counsel for petitioner refused to sign the said notice which shows only the signature of counsel for the plaintiff in the court below. Further, that in keeping with rule 28 of the Circuit Court Rules, where notice of assignment has been served on counsel for a party who fails to appear at the call of the case for the disposition of law issues, the court has the right to proceed to entertain argument from the lawyer who appears.

In count two of the returns, the respondents alleged that the case was not called for the disposition of the issues of law at 11:30 a.m. but rather, that the case was called at 1:30 p.m. on the date for which it was assigned and that had counsel for petitioner obeyed the assignment by attending the hearing, he would have been present to participate in the arguments.

In count three, the respondents contended that under the statute as well as the Rule of Court where the service of pleading is at issue, the best evidence is a receipt of the dispatch book. They averred that in the present case, the petitioner’s counsel having signed a receipt for the answer when it was served on him, same was exhibited to the court as evidence of the service of the answer and of the date on which it was served.

In count four, the respondents contend that petitioner suffered no harm due to his absence because the court appointed a lawyer to take the ruling for the petitioner and that the said lawyer noted exception to the ruling on behalf of counsel for petitioner in keeping with the Civil Procedure Law, Rev. Code 1:51.5. They also contended that had petitioner’s counsel been present in court and participated in the argument on the issues of law, the only thing he could have done after the ruling dismissing his answer was to note his exception, as was done by the lawyer appointed by the court. Respondents further contended that certiorari will not lie from a ruling only on the disposition of issues of law and not the trial of the case on its merits. The Supreme Court, they stated, should not hear cases in piecemeal.

In count seven of the returns, the respondents alleged that in count one of the reply the co-respondent contended that the answer was neither served on it simultaneously on the date it was filed in court nor served within ten days from the date the complaint and summons were served on the petitioner. They further contended that if the petitioner felt that this assertion was untrue, it should have filed in the trial court a motion or an affidavit denying the allegation and requesting the trial court to conduct an investigation. This not having been done, the respondents contended that a court of justice cannot do for a party litigant that which he ought to do for himself.

In count eight it is contended that certiorari will not lie where the petitioner has adequate and complete remedy by way of regular appeal. From the facts presented in the petition and the returns, we find two issues necessary for the determination of this matter. They are:

1. Whether or not a notice of assignment was duly served on the petitioner to give it sufficient notice of the assignment of the case for disposition of law issues?

2. Whether or not certiorari will lie to review an intermediate order or interlocutory judgment?

We shall now consider the issue of whether or not the assignment was duly served, giving the petitioner sufficient notice to appear and argue the law issues in the case. According to the records, the notice of assignment, though dated December 27, 1985, was not served on counsel for petitioner until December 30, 1985, at the hour of 11:45 a.m., even though the case was assigned for hearing at 11:30 a.m. on December 10, 1985. This fact, as to the hour the notice was served, is neither disputed by the respondents nor the sheriff who served the notice of assignment. Co-respondent’s (plaintiff in the lower court) counsel contended that the case was not called for hearing until 1:30 p.m. on December 30, 1985, and had petitioner’s counsel obeyed the notice of assignment by attending court on that day, he definitely would have participated in the argument of the law issues. It is our opinion that the notice of assignment was not properly served since it was served after the hour specified for the hearing and argument on the law issues. Under our practice the fundamental principle of pleading is that of giving notice and when notice is given after the time a hearing is scheduled to be held, it cannot be said that the notice was timely given.

Rule 28 of the Circuit Court rules as revised provides that the judge “shall assign a day for passing upon the issues of law and hearing all cases not dismissed on question of law, whether or not the counsel previously notified are present”. It is our opinion that this portion of rule 28 requires the making of assignment of cases and the service of the notice upon counsel of record or the party. The rule also provides for the judge to proceed with the hearing of such cases whether or not “counsels previously notified are present”. The key words in this portion of the rule are “previously notified”. The rules therefore cannot be invoked unless it is satisfactorily established that counsel has been notified in sufficient time to allow his attendance. When the notice is served on the party after the time specified in the notice of assignment for the hearing of the matter, it cannot be said to have been served. Rules for Governing Procedures in the Court and for Regulating the Moral and Ethical Conducts of Lawyers in Liberia, Amended and Revised July 1972, Rule 28, page 33.

We have not passed on the issue of whether or not the answer of the petitioner was legally dismissed and the defendant placed on a bare denial of the facts contained in the complaints of the plaintiff, because that issue might likely appear in the appeal of the main case.

Next we consider the issue of whether certiorari would lie to review an intermediate order or interlocutory judgment of a judge of a lower court.

Ruling on the issues of law under our jurisdiction is not a final judgment because the case is still pending trial on its merit and therefore is still pending before the court. The ruling, therefore, is an intermediate order or an interlocutory judgment. Certiorari is a special proceeding to review and correct decisions of officials, boards, or agencies acting in a judicial capacity, or to review an intermediate order or interlocutory judgment of a court. Rev Code 1:16.21(1).

Interlocutory is defined as: provisional; temporary; not final, something intervening between the commencement and the end of a suit which decides some point or matter, but it is not a final decision of the whole controversy.” Also intermediate is defined as “intervening; interposed during the process of a suit, proceeding, business, etc., between its beginning and end.” BLACK’S LAW DICTIONARY 952 (Rev. 4th ed.).

Mr. Justice Pierre, speaking for the Court in the case Williams v. Horton and Bull, Stipendiary Magistrate, Monrovia, Liberia, said “certiorari will lie when the rights of a party are manifestly prejudiced by a ruling of an inferior court during the pendency of a case”. Williams v. Horton, 13 LLR 444, 446 (1960). Mr. Justice Henries also speaking for the Court said “certiorari will lie to review an intermediate order or interlocutory judgment of a lower court.” Wright v. Reeves, [1977] LRSC 19; 26 LLR 38 and text on pages 40-41 (1977).

The ruling of our former colleague, Mr. Justice Elwood L. Jangaba, is therefore sustained and the peremptory writ of certiorari is ordered issued. The case is remanded to the court below with instructions that another assignment for the disposition of law issues be made and the hearing and argument of the law issues be conducted. The Clerk of this Court is ordered to send a mandate to the court below informing the judge to enforce this judgment. Cost ruled against respondents. And it is hereby so ordered.

Certiorari granted.