THE MANAGEMENT OF LIBERIA ELECTRICITY CORPORATION, by and thru its authorized representative, Appellant, v. FOLOKULA VARPILAH, Appellee.
APPEAL FROM THE NATIONAL LABOR COURT, MONTSERRADO COUNTY.
Heard: April 13, 1994. Decided: September 23, 1994.
1. A trial court may dismiss an appeal for failure of the appellant to file a bill of exceptions within the time allowed by statute.
2. Appellant’s failure to file an approved bill of exceptions within the period prescribed by statute concludes the judgment against him without reservation.
3. It is not only when notice is personally served on the counsel of record that the party is deemed to have notice of a hearing. Service upon another attorney within the employ of a party may constitute notice of hearing.
4. Judgment by default may be entered on defendant’s failure to appear, after issue has been joined when the case is called for trial.
5. Defendant’s mere failure, after issue has been joined, to attend when the case is called for trial is not by itself sufficient grounds for taking judgment by default, at least where defendant had not been given notice of trial or has some good excuse for his absence.
6. Before plaintiff is entitled to judgment by default, he must establish his cause of action, unless the facts admitted by the answer or other plea makes it aprima facie case in his favour.
7. When an act is required or allowed to be done at or within a specified time, the court for cause shown may, except as otherwise provided by law, at any time in its discretion order the period enlarged if application is made before the expiration of the period originally prescribed or as extended by previous order, or (b) upon motion made after the expiration of the prescribed period permit the act to be done when the failure to act was the result of excusable neglect.
8. An indefinite suspension ripens into a dismissal which is wrongful, under which the employee shall be compensated in an amount of not more than 24 months’ salary computed on the basis of the average rate of salary received six (6) months immediately preceding the dismissal.
9. A court to which an appeal is taken may reverse, affirm, or modify, wholly or in part, any judgment before it, as to any party. The Court shall render a final determination, or where necessary or proper, remand to the lower court for further proceedings.
These proceedings emanate from an appeal announced from the ruling rendered by the National Labour Court in an action of wrongful dismissal filed by appellee against the Management of LEC, appellant. Amidst allegations that appellee was involved in the encashment of pension checks, appellant suspended him for time indefinite. After 39 months in suspension, appellee instituted an action of wrongful dismissal in the Ministry of Labour. From a judgment in favor of appellee, to which no petition for judicial review was filed, appellee petitioned the National Labor Court for enforcement of the ruling of the hearing officer. The petition was granted, from which appellant noted its exceptions and announced an appeal to the Supreme Court .When appellant however failed to file its bill of exceptions, appellee moved the court to dismiss the appeal and to enforce the judgment. The motion to dismiss was granted, but the appeal announced from this ruling was denied and the judgment ordered enforced. This ruling prompted appellant to apply to the Chambers Justice for a writ of prohibition. The Chambers Justice, upon a hearing, granted the writ, reversed the ruling denying the appeal, and ordered the judge presiding to approve appellant’s bill of exceptions nunc pro tunc. No appeal was announced from this ruling. Appellant perfected his appeal on a two-count bill of exceptions, contending that the judgment of the hearing officer was rendered illegally, in that no notice of assignment were served either on the respondent or its counsel of record for the hearing of the case, and that the judge committed reversible error when he denied appellant’s request for additional time within which to file its petition for judicial review.
The Supreme Court, upon review of the records, held that the default judgment was justifiable once the defendant failed to appear and the plaintiff has established the facts constituting his claim. With respect to the filing of a petition for judicial review, the Supreme Court held that while the October 15,1992 “Octopus” crisis was a historical fact to support appellant’s claim of impossibility to file the petition for judicial review, the failure to file for enlargement of time was an inexcusable neglect. With respect to the appeal from the ruling granting the petition for enforcement, the court held that in the face of the failure of appellant to file a bill of exceptions to this ruling, the ruling of the court granting the motion to dismiss was sound in law.
Finally, the Court held that even though the ruling of the hearing officer must be accorded enforcement, the hearing officer having found for wrongful dismissal, it was an error to award more than 24 months consistent with the Labor Law. The Court also held that appellee was not entitled to transportation and back pay.
Accordingly, the Supreme Court affirmed the judgment, but with modification of the hearing officer’s ruling, and remanded the case with instructions to enforce the ruling consistent with the modifications.
David A. B. Jallah appeared for appellant. Joseph P. H. Findley appeared for appellee.
MR. JUSTICE HNE delivered the opinion of the Court.
The appellee, Folokula Varpilah brought an action of wrongful dismissal against the appellant, Liberia Electricity Corporation (L.E.C.). The appellee, employed as personnel director, was alleged to have been involved in an illegal encashment of pensioners’ checks. He was indefinitely suspended on May 23, 1989 and turned over to the Ministry of Justice for prosecution.
On January 13, 1992, the appellee through his counsel, wrote the appellant requiring compensation in an amount of $45,260.00 for the period during which he had been suspended. Not receiving any redress from Management, the appellee filed a complaint with the Ministry of Labour, on August 6, 1992, making a claim of $56,000.30 for salary and other earnings. After an ex parte hearing at the Ministry of Labour, the hearing officer entered a default judgment on 7th October 1992 in favour of the appellee. The appellant received a copy of the hearing officer’s ruling on the 7th October 1992, but did not file a petition for judicial review.
The appellant having failed to file a petition for judicial review within ten (10) days after the receipt of the hearing officer’s ruling on 7thOctober, 1992, the appellee on November 12, 1992, filed a motion before the National Labour Court to enforce the hearing officer’s ruling,
The judge of the National Labour Court heard the petition for enforcement on the 15thday of December, 1992, and on January 8, 1993, delivered his ruling in which he granted the petition and affirmed the ruling of the hearing officer. The respondent/ appellant announced an appeal from this ruling.
Despite the said announcement of appeal, however, the respondent/appellant failed to file an approved bill of exceptions within ten (10) days after the ruling as required by statute. This prompted the petitioner/appellee to file a motion to dismiss the appeal for failure to proceed on January 26, 1993.
The Court heard the motion on February 19, 1993, at which time counsel for respondent/appellant spread its resistance on the record. His main contention was that the motion was not verified. The original copy on the court’s file, according to the judge’s ruling, which was given on 24thFebruary 1993, was verified and it was only the respondent/appellant’s copy which was not verified. The record does not show any certificate from the clerk that the motion was not verified. The judge in his said ruling of February 24, 1993, granted the motion and dismissed the appeal for the respondent/appellant’s failure to proceed. The respondent/appellant again announced an appeal. This time the judge denied the appeal, and ordered a bill of cost prepared against the respondent/appellant. A bill of costs was accordingly issued against the respondent/appellant in the amount of $64,918.60. To stop the enforcement of the judgment, the respondent/appellant sought a writ of prohibition from Mr. Justice Smallwood, then presiding in Chambers.
One of the contentions raised by the petitioner before the Chambers Justice was that the ruling of the trial judge enforcing the hearing officer’s ruling did not have a sum certain and so did not lend itself to enforcement. The Chambers Justice ruled that the hearing officer’s ruling having awarded a definite sum of $57,450, the trial judge’s ruling was enforceable.
After hearing the petition for prohibition, the Chambers Justice in his ruling on the 13thday of July, 1993, held that the denial of the petitioner’s (the appellant herein) appeal was illegal and reversed the ruling of the trial judge. Further, he remanded the case to the court below with instruction that the petitioner (the appellant) perfect his appeal nunc pro tunc. Neither party appealed from this ruling of the Chambers Justice. It is on the basis of this ruling of the Chambers Justice that we now have the present appeal before us from the National Labour Court.
We should bear in mind that the hearing officer rendered a default judgment against the appellant for failure to respond to citations from the Ministry of Labour. The appellant announced an appeal. When the appellant failed to seek a judicial review of the hearing officer’s ruling within the ten (10) days prescribed therefor by statute, the appellee sought an enforcement of the said ruling before the National Labour Court. The Labour Court granted the petition for enforcement. The appellant again appealed, but failed to file an approved bill of exceptions within ten (10) days as allowed by statute. The appellee then filed a motion to dismiss the appeal for failure to proceed. The judge granted this motion and appellant further appealed. The judge, however, denied this latest appeal by the appellant and ordered the ruling of the hearing officer enforced. The appellant fled to the Chambers Justice for a writ of prohibition, which was granted as we have stated above. Now, let us see what the appellant has to say on the present appeal before us.
The appellant filed a two-count bill of exceptions, in which it assigned the following as reversible errors committed by the National Labour Court judge:
“1. Because respondent says that Your Honour committed reversible error when you proceeded to affirm the ruling of the hearing officer, despite the fact that respondent’s counsel brought to your attention that the hearing officer’s default judgment was rendered illegally, in that, no notices of assignments were served on the respondent or its counsel of record for the hearing of the case. Reversible error your honour did commit.
2. Because respondent says that your honour committed reversible error when you disregarded respondent’s contention that on October 15, 1992 Monrovia was attacked by the NPFL thereby, making it impossible for respondent’s counsel to file its petition for judicial review within the statutory time of ten (10) days. Your Honour committed reversible error, when you denied respondent’s counsel’s request for additional time within which to file its petition for judicial review following the reopening of court. Reversible error Your Honour did commit.”
In its brief argued before us by its counsel, the appellant takes the position that the default judgment rendered by the hearing officer is illegal because its counsel of record, Counsellor George S. B. Tulay did not receive any notice of the hearing out of which the default judgment grew, nor did he receive any notice of assignment for the day the default judgment was applied for and the appellee allowed to present its side of the case ex parte.
Further, appellant contends that the National Labour Court judge erred when he denied appellant’s request for time within which to file a petition for judicial review of the ruling of the hearing officer, despite the fact that the appellant’s counsel of record was incapacitated due to the October 15, 1992 attack on Monrovia.
The appellee, in count two (2) of his brief contends that appellant should have filed a motion for enlargement of time if, as its counsel submits in count two (2) of the bill of exceptions that the October 15, 1992 attack on Monrovia made it “impossible for respondent/appellant’ s counsel to file his petition for judicial review.”
In count three (3) of his brief, appellee says the following:
3. Furthermore, counts 1 and 2 of the bill of exceptions are not subject of the appeal denied and referred to in the ruling of the Justice in Chambers. As aforesaid the ruling of the Labour Judge on the motion for enforcement was rendered on January 8, 1993 excepted to and appealed from but appellant did not file a bill of exceptions . Subsequently appellee filed a motion to dismiss for failure to proceed, that is to file a bill of exceptions as the law provides. The Judge ruled granting the motion on February 24, 1993 to which appellant excepted. The appeal was granted but the judge subsequently denied the appeal. See sheets 1 to 3, minutes of court of February 24, 1993. On March 22, 1993 a writ of execution was issued to enforce the judgment of the hearing officer; whereupon appellant moved by prohibition to apparently stop execution and enforcement of the judgment from which he had not appealed to the Labour Court and also failed to file a bill of exceptions although he had appealed from the Labour Court’s ruling on the enforcement, thereby forfeiting its right of appeal. See count 5 of appellant’s petition for a writ of prohibition as well as P/2 thereof.”
The issue then is: Was the Labour Court Judge, His Honour Judge Kpanan, correct in denying appellant’s appeal from the motion to dismiss? And did he commit a reversible error in doing so? Appellee submits that the lower court committed no error. Under the Civil Procedure Law, the trial court may dismiss an appeal “for failure of the appellant to file a bill of exceptions within the time allowed by statute….” And appellant having excepted to the court’s ruling on the petition for enforcement but failed to file a bill of exceptions, Judge Kpanan’s ruling of February 24, 1993 was sound in law and should not be disturbed.
It is interesting to note nonetheless, that appellant’s two count bill of exceptions does not address itself to this issue which is raised in count five (5) of the petition for prohibition. The bill of exceptions is therefore irrelevant and not responsive to the ruling of the Justice in Chambers which clearly indicated “that the trial judge’s act of denying petitioner’s announcement of an appeal was illegal and said judgment or ruling reversed…” The ruling of the Justice in Chambers did not refer to the lower court’s ruling on appellee’s petition for enforcement of judgment, for appellant excepted to and appealed from that ruling which appeal the lower court granted. So a priori appellant’s failure to file a bill of exceptions made the judgment against L.E.C. conclusive, “without reservation.”
The determination of this case therefore rests on the following issue:
1. Whether the default judgment rendered by the hearing officer is legal.
2. Whether the “Octopus” incident of October 15, 1992 excused the appellant from filing a petition for judicial review.
3. Whether the present appeal accords with the records of the case.
Appellant in its brief contends that the counsel of record for appellant at the time the case was being heard at the Ministry of Labour was Counsellor George S. B. Tulay and no notice of assignment was served on Counsellor Tulay by the Ministry of Labour nor the hearing officer for September 16, 1992, the day on which the application for default judgment was made, granted and the appellee allowed to present his side of the case.
A recourse to the records does reveal that a notice of assignment was issued by the Ministry of Labour on the 9t h day of September, 1992 for the hearing of the case on the 16t h day of September, 1992. This notice of assignment was served on and signed for the appellant by Attorney Ploe Doe, Manager, Legal Services of L. E. C. It therefore follows that the appellant had notice of the hearing of September 16,1992, at which a default judgment was prayed for on behalf of the appellee on account of the absence of the appellant and his counsel. We do not think that the appellant is saying that it is only when notice is personally served on Counsellor Tulay that the appellant would be deemed to have notice of a hearing. The notice of assignment issued on the 10th day of August, 1992, for hearing held on August 13, 1992, was also served and signed for by Attorney Ploe Doe for the appellant. Counsellor Tulay attended this hearing, but was late, according to the hearing officer. It was then that he asked for postponement due to an engagement at Criminal Court “A”. The hearing was rescheduled for September 8, 1992, at 2:00 p.m., but appellant was again absent from this hearing. This led to a further assignment of the case for September 16, 1992, at which time the appellee applied for a default judgment because of the absence of the appellant, even though, as aforesaid, the notice of assignment was served on Attorney Ploe Doe for the appellant.
“As a general rule, judgment by default may be entered on defendant’s failure to appear, after issue has been joined when the case is called for trial. However, in some jurisdictions defendant’s mere failure, after issue has been joined, to attend when the case is called for trial is not by itself sufficient grounds for taking judgment by default, at least where defendant had not been given notice of trial or has some good excuse for his absence. Before plaintiff is entitled to judgment in such a case, he must establish his cause of action, unless the facts admitted by the answer or other pleas make out a prima facie case in his favour ” 49 C.J.S., Judgment, § 198.
The appellee took the stand and introduced evidence in support of his complaint. The default judgment therefore meets the above quoted law citation. The default judgment was rendered on the 7th day of October, 1992. Copy was received from the appellant by Attorney Ploe Doe on the same day. This means that a petition for judicial review was to have been filed by October 17, 1992. The October 15, 1992 “Octopus” attack on Monrovia intervened and appellant has claimed impossibility on this account, which it contends should excuse its non-filing for judicial review within the ten (10) days allowed by statute. The appellant raised this contention when the appellee filed a petition for the enforcement of the hearing officer’s ruling.
As stated earlier herein above, the appellee contends that the appellant should have filed for enlargement of time. While the “Octopus” incident is a fit subject for judicial notice by this court, yet we must tend towards the contention of the appellee. The petition for enforcement was not filed by the appellee until November 17, 1992. We therefore feel that with reasonable diligence, the appellant could have petitioned the Labour Court for enlargement of time. Our statute provides the following in such cases:
“Enlargement. When under this title or by a notice given thereunder or by order of court an act is required or allowed to be done within a specified time, the court for cause shown may, except as otherwise provided by law, at any time in its discretion: (a) order the period enlarged if application is made before the expiration of the period originally prescribed or as extended by previous order, or (b) upon motion made after the expiration of the prescribed period permit the act to be done when the failure to act was the result of excusable neglect.”
The “Octopus” incident would have furnished a basis for reasonable neglect to warrant an enlargement of time, in our view. The neglect of the appellant continued to the conclusion of the hearing of the petition for enforcement by the Labour Court.
As mentioned earlier herein above, the Labour Court Judge granted the petition for enforcement on January 8, 1993. The appellant appealed, and the trial judge granted the appeal, but the appellant failed to prosecute the appeal by neglecting to file a bill of exceptions. On January 28, 1993, the appellee moved the Labour Court to dismiss the appeal for failure to proceed and the court, accordingly, entered a ruling on February 24, 1993 granting the motion and ordered the enforcement of the hearing officer’s ruling. This is when the appellant sought a writ of prohibition as stated earlier above.
Let us now revert to the contention of the appellee in his brief, more specifically count three (3) thereof, which we quoted earlier in this opinion. In that count of his brief the appellee says that the bill of exceptions is irrelevant and not responsive to the ruling of the Justice in Chambers which held that “the trial judge’s act of denying petitioner’s announcement of an appeal was illegal and said judgment or ruling reversed….” Further, that the ruling of the Justice in Chambers did not refer to the lower court’s ruling on appellee’s petition for enforcement of judgment, for appellant excepted, appealed from that ruling; and that appellant’s failure to file a bill of exceptions made the ruling conclusive upon L.E.C. without reservation.
The denial of the appellant’s appeal from the ruling granting the motion to dismiss appellant’s appeal against the judgment for enforcement was what gave rise to the writ of prohibition sought by the appellant.
The appellant’s appeal from the judgment of enforcement was really thus left in limbo. Consequently, that ruling was not before the Chambers Justice. What proceeds then was that when the Chambers Justice reversed the lower court’s ruling, it was the latter ruling of that court granting the motion to dismiss appeal for failure to proceed that was the subject of the ruling of the Chambers Justice. So the orders of the Chambers Justice that the petitioner (appellant) be allowed to file its bill of exceptions and perfect its appeal nunc pro tunc cannot but refer to the appeal from the ruling of the lower court granting the motion to dismiss the appeal for failure to proceed and not the appeal from the lower court’s ruling granting the petition for the enforcement of the hearing officer’s ruling. What this means is that the judgment of enforcement still subsists effectively unappealed from.
The thrust of the present appeal seems to be veiled around the judgment of enforcement, and this does not coincide with the record of the case. The appellee’s contention therefore that the ruling of the Justice in Chambers did not refer to the lower court’s ruling on appellee’s petition for the enforcement of judgment (which appellant excepted to and appealed from, but failed to file a bill of exceptions), is supported by the record. The appeal now before us, as presented, does not accord with the record of the case.
The judgment of enforcement not having been appealed from, the ruling of the hearing officer should be accorded enforcement. That ruling, however, has some features that need to be looked into. The hearing officer awarded the appellee the following:
39 months suspension @ $1,210.00 per month …. $47,190.00
39 months transportation @ $250.00 per month 9,750.00
5 months back pay @ $110.00 per month 550.00
$57,490.00
The object of transportation allowance is to enable the employee to travel to and fro his working place. So he is not entitled to it when he does not go to work. The award of 39 months transportation by the hearing officer at $250.00 per month for the period he was not working is thus outside the objective of transportation allowance. The award of the amount of $9,750.00 for transport therefore cannot be sustained.
There is nothing in the record to show what the third item of $550.00 for back pay is all about. The appellee’s salary is established at $1,210.00 per month. To have back pay of $110.00 per month seems to be incongruous with the established pay. This item too must be disallowed.
An indefinite suspension ripens into a dismissal which is wrongful. This does not mean that the employee should be awarded thirty-nine months salary. Under the Labour Law an employee who is dismissed wrongfully shall be compensated in an amount of not more than 24 months’ salary computed on the basis of the average rate of salary received six (6) months immediately preceding the dismissal. Labour Practices Law, Lib. Code, 18A:9(a)(ii). At the hearing at the Ministry of Labour, the appellee is on record as having served the appellant from 1983 to 1989, a period of six (6) years.
The hearing officer having found for wrongful dismissal, he could not under the law award more than twenty-four (24) month’s salary.
“A court to which an appeal is taken may reverse, affirm, or modify, wholly or in part, any judgment before it, as to any party. The court shall render a final determination or, where necessary or proper, remand to the lower court for further proceedings.” Civil Procedure Law, Rev. Code 1:51.17.
It is our view that an award of twelve (12) months salary in the amount of L$14,420.00 would be reasonable against the appellee’s tenure of six (6) years service. This award is given because of the length of time the case remained without prosecution by the appellant.
In view of the facts and circumstances of the case and the law relied on, it is our opinion that the award given by the hearing officer is hereby modified to twelve (12) months salary, that is, L$14,420.00. The case is hereby remanded with instructions that the Labour Court enforces the hearing officer’s ruling as herein modified. The Clerk of this Court is hereby ordered to send a mandate to the court below to the effect of this opinion. Costs are assessed against the appellant. And it is hereby so ordered.
Judgment affirmed with modifications.