THE MIDDLE EAST TRADING COMPANY (METCO), represented by its General Manager, FOUAD MADI, and ALI HYKAL, Appellant, v. CHASE MANHATTAN BANK, N. A., represented by its General Manager, ROBERT J. FAIRALL, Appellee.

APPEAL FROM THE DEBT COURT FOR MONTSERRADO COUNTY.

Heard November 26, 1986. Decided January 23, 1987.

1. The term “due process of law”, when applied to judicial proceedings, means that there must be a competent tribunal to pass on the subject matter, proper notice, actual or constructive, and an opportunity to appear and produce evidence.

2. The essential elements of due process of law are notice, and an opportunity to be heard and defend in an orderly proceeding adapted to the nature of the case.

3.The issuance and service of notices of assignment and the granting of postponements at the request of the losing party satisfy the elements of due process of law as to that party. Consequently, that party is deemed to have had his day in court.

4.Any contention that a particular lawyer should represent a case in court, in preference to other competent counsel, also announced on the same side in a case, is baseless in law, unfair to his adversary, and encourages delay tactics which are frowned upon.

5. The doctrine of estoppel is based upon the ground of public policy, fair dealing, good faith and justice, and its purpose if to forbid one to speak against his own act, representations or commitments to the injury of one to whom they were directed and who reasonably rely thereon.

6. Waiver and estoppel are closely akin, their legal effect is much the same, and the terms “estoppel” and “waiver” are often generally used interchangeably.

7. Where a defendant admits in its answer to an indebtedness to the plaintiff in the amount sued for, and have expressly, irrevocably and unconditionally waived its claim against or in challenge to the said amount, he is legally barred from asserting a counterclaim with respect to the said amount. A trial court does not err therefore in dismissing such counterclaim.

8. The guideline set by statute for the conduct of trials must be strictly adhered to, as any departure therefrom could render the judicial system ineffective.

9. Under the rules of the trial court, when the issues of law are disposed of in civil cases, the trial shall thereafter commence and either of the parties not being ready shall file a motion for continuance, setting forth therein the legal reasons why the case might not be heard at the particular term of court. A failure to file a motion for continuance or to appear for trial after return by the sheriff of a written assignment shall be sufficient indication of the party’s abandonment of a defense in the said case, in which instance the court may proceed to hear the plaintiff’s side of the case and decide thereon.

10. A party who abandons his defense by a failure to comply with the law on continuance cannot benefit from his own negligence under the cloak of a submission or other process.

11. If the plaintiff’s claim in an action in which the defendant has defaulted is for a sum certain or for a sum which by computation can be made certain, the court, upon submission of the proof required by law, shall direct the entry of judgment for the amount demanded in the complaint plus costs and interest.

12. On the application for judgment by default, the applicant shall file proof of service of the summons and complaint, and give proof of the facts constituting the claim, the default, and the amount due.

13. A party who abandons his case and defaults under the law is not entitled to benefit under the provision of the law requiring or allowing an appearing party to produce evidence or witnesses in his own behalf, especially when the appearing party has by order of court presented and concluded its side of the case in a regular trial procedure pursued under the aegis of Rule 7 of the Circuit Court Rules.

14. The requirements for the entry of a default judgment are: (1) failure of a party already brought under the jurisdiction of the court to file a motion for continuance; (2) application by the appearing party to the court for the entry of an imperfect judgment; (3) a court’s order granting such application and requiring the appearing party to prove its side of the case; and (4) the rendition of final judgment thereon according to the evidence adduced.

15. Where the requirements for a default judgment have been met, the mere omission of the words “judgment by default” in the minutes after an application therefor has been made is insufficient to reverse the judgment of the lower court, especially where the defendant has admitted to the indebtedness of the amount sued for.

16. A motion is an application for an order granting a relief incidental to the main relief sought in the action or proceeding in which the motion is brought. A written motion is made when a notice of the motion is served.

17. Unless made during a hearing or trial, a motion shall be in writing and shall state with particularity the grounds therefor and shall set forth the relief or order sought.

18. At any time during trial, the court, on motion of any party, may order a continuance in the interest of justice, on such terms as it may prescribe.

19. A continuance is the adjournment or postponement of an action pending in a court to a subsequent date of the same or another term.

20. The courts are generally liberal in granting continuance where they are necessary to prevent a miscarriage of justice, but continuance are not favored where they are sought merely for the purpose of delay.

21. The parties to an action are entitled to a prompt trial unless a good cause for a postponement is shown, and the court will refuse an application for a continuance where it is sought merely for the purpose of vexation and to delay the administration of justice.

22. For the purpose of classification, continuance may be grouped into those which result by operation of law and those which ensue by virtue of a court order, the former being those which remain undisposed of at the end of a term and are continued as a matter of course until the next term without the entry of any court order, while the latter are those granted with the consent of the parties, on the court’s own motion, or on the application of one of the parties for cause.

Following the institution of an action of debt, the plaintiff and the defendant entered into a stipulation in which the defendant acknowledged its indebtedness to the plaintiff and agreed to pay the acknowledged amount in monthly installment payments and the plaintiff agreed to a waiver of a certain disputed amount. Based on the said agreement, the case was withdrawn. Thereafter, the defendant made various payments, including payments made under an additional agreement for a reduced monthly payment. When the defendant defaulted, the plaintiff again commenced an action of debt against the defendant.

In its answer, the defendant contested the amount of the plaintiff s claim which it had agreed to accept in the stipulation and to also assert a counterclaim which it had agreed not to assert. After several postponement of the trial of the case, the trial court denied the last request of the defendant for postponement of the case on the ground that one of counsel for the defendant had traveled out of the country and had locked the case file in his drawer. Following the denial and on application from the plaintiff, the court proceeded with the trial of the case. Judgment by default was entered and the plaintiff was permitted to produce evidence in support of its claim. However, when the case was again called for the rendition of final judgment, the court’s attention was called to a submission filed by the defendant requesting the court to rescind its ruling. The submission was resisted by the plaintiff, denied by the court, and final judgment rendered. From this denial, an appeal was taken to the Supreme Court.

On appeal, the defendant argued that it was denied due process by the trial court. The Supreme Court disagreed, noting that although the statute and decided cases give the defendant a right to due process, by which is meant service of precept and an opportunity to be heard, it was of the opinion that the defendant had been accorded due process of law by the several assignments which had been issued and served on it. The Court opined that the letter which counsel for defendant had written to the trial judge did not meet the requirements for continuance. Accordingly, it said, when the defendant and its counsel failed to show up for the trial, they were considered to have abandoned the defense. As such, the defendant was precluded from benefitting from their act of abandonment.

On the denial of the submission made by the defendant for the trial court to permit it to present evidence in support of its answer, the Court held that the trial court was correct in that regard. It noted that the statute specifically set out the procedure and guidelines for the trial of cases in order to prevent delays and denial of justice. Those guidelines, it said, should be strictly adhered to. The Court held further that a granting of the submission, especially when that the plaintiff had already concluded it side of the case in a trial regularly had, would have been a departure from the law.

As to the plaintiffs right to a judgment by default, the Court held that the plaintiff had met all of the requirements entitling it to a default judgment, and that the mere omission of the words “judgment by default” was insufficient to reverse the judgment of the trial court.

The Court also held that the defendant had waived any right to a counterclaim when in the agreement concluded with the plaintiff it agreed not to contest the amount claimed by the plaintiff in the event the plaintiff resorted to court action for the payment thereof. The defendant, it said, was therefore estopped from asserting any counterclaim in that respect. The judgment was therefore affirmed.

P. Amos George and Joseph A. Dennis of the P. Amos George Law Firm appeared for the appellant/defendant. H. Varney G. Sherman of The Maxwell and Maxwell Law Offices appeared for the appellee/plaintiff.

MR. JUSTICE BIDDLE delivered the opinion of the Court.

This is an appeal case growing out of an action of debt instituted in the Debt Court for Montserrado County by the Chase Manhattan Bank, N. A., of Monrovia, plaintiff/appellee, against Middle East Trading Company (METCO), also of Monrovia, defendant/appellant. In the debt action, filed in October 1982, the plaintiff/appellee sought to recover an amount of $83,148.43 as principal, plus accrued interest estimated at $18,478.58, and legal fees of $10,212.70, making an aggregate amount of $112,339.71. The defendant/appellant, having appeared and filed an answer, and the plaintiff, having thereafter filed a reply, pleadings were then rested. We shall later dwell on the substance and procedure adopted in this case; but let us first see what transpired, as revealed by the records from the trial court.

Prior to the institution of this suit, the plaintiff/appellee filed an action of debt by attachment against the defendant/ appellant. Defendant’s business establishment was ordered closed by the court because of an apparent failure to file an attachment bond. Thereafter, negotiations were commenced between the parties, an agreement was reached and an addendum thereto was entered into wherein the defendant/appellant acknowledged its indebtedness to plaintiff/appellee.

According to the records in the case, the defendant/ appellant’s indebtedness to the plaintiff, as established in the addendum, was $991,028.75. In order to the pay of this debt, defendant/appellant made and executed a stipulation setting forth a liquidation schedule. For the benefit of this opinion, we hereunder quote counts 1, 2, 4, 6 and 8 of said addendum:

“1. That in consideration of the mutual promises herein made the parties of the second part unreservedly acknowledged their indebtedness of $991,028.75 (Nine Hundred Ninety-One Thousand Twenty-Eight Dollars and Seventy-Five Cents) as of September 18, 1980 (the date of the filing of the action of debt) to the party of the first part, as correct, and that the same is not subject to any counterclaim or set-off as maintained by the parties of the second part in their answer to the complaint in the action of debt and that the amount is due and payable with interest except to the extent herein provided and accepted by the parties of the second part.

2. That for and in consideration of a total deduction of the sum of $54,250.00 (Fifty-Four Thousand Two Hundred Fifty Dollars) from the total indebtedness of $991,028.75 (Nine Hundred Ninety-One Thousand Twenty-Eight Dollars 75/100) due and payable by the parties of the second part to the party if the first part, leaving a balance due and payable of $936,778.75 (Nine Hundred Thirty-Six Thousand Seven Hundred Seventy-Eight Dollars 75/100), the parties of the second part hereby irrevocably and unconditionally forever waive, demand and/or protest and therefore release the party of the first part, their agents, representatives and successors-in-business from ever answering to any claim or actions now contemplated or pending in any court of law or equity in the Republic of Liberia and elsewhere in connection with the amount of $137,091 08 (One Hundred Thirty-Seven Thousand Ninety-One Dollars 08/100) which the parties of the second part claimed in their answer as representing the total of a certain number of checks said to have been forged or unauthorizedly debited to the account of METCO.

“4. That the parties of the second part hereby promise to make monthly repayments of $75,000.00 (Seventy-Five Thousand Dollars) plus accrued interest or an amount equivalent to 25% of their gross sales per month (whichever is greater) against their debt obligation beginning with January 12, 1981, and on the 12th day of each and every month thereafter until final and complete settlement is made.

6. That Middle East Trading Corporation (METCO) shall deposit monies from its sales and revenues earned from all its business operations in Liberia in an account to be opened with the party of the first part and from which the repayments plus interest as herein provided shall be made until such time that all the indebtedness to the party of the first part is completely liquidated. However, the party of the first part as a reciprocal obligation under this clause, agrees to issue from time to time customs bonds in favour of the Middle East Trading Corporation (METCO) provided that applications for each and all of such customs bonds shall be reviewed on its merits consistent with sound banking principles but always taking into consideration the level of the outstanding obligation of the parties of the second part, subject of this addendum.

8. That should the parties of the second part, either jointly or singularly fail to keep their promises and satisfy and meet any of their obligations and other requirements as are contained in this agreement of addendum then and in such case, the party of the first part is hereby authorized without any notice to the parties of the second part to take legal action to which action the parties of the second part hereby waive contest and confess judgment and accept payment of all court costs and 10% attorney’s fees. Further, in the event of default by the parties of the second part in making any one payment, then and in that case the aggregate balance then outstanding plus all accrued interest shall become due and payable.”

The addendum was duly probated and registered in January 1981, according to law. Prior to the execution of the addendum, there arose a controversy between the plaintiff and the defendant over some checks in amounts totaling $137, 091,08. The issue, however, was resolved by the parties, with the understanding that the defendant’s indebtedness to the plaintiff be reduced, and same was so reduced, by $54,250.00. Also, the defendant, in further consideration of the reduction of its indebtedness to the plaintiff, agreed in the addendum, to forever waive its claim of $137,091.08 against the appellee. (See count 2 of the addendum, quoted supra). Thereafter, the defendant, by various payments, reduced its debt obligation considerably. Indeed, by July, 1981, the defendant had paid a total of $103,324.21, leaving an unpaid principal of $186,927.64. The defendant thereupon appealed to its creditor, the plaintiff herein, to reduce the installment payments stipulated in the addendum. This was considered favorably. Thus, by September, 1981, a total amount of $103,324.21 had been paid to the plaintiff, leaving an unpaid principal of $83,688.43.However, because of the defendant/appellant’s alleged failure to abide by the provision of the stipulation or the addendum, this suit was instituted in the Debt Court aforesaid in October,1982.

The defendant/appellant, in counts 2 and 3 of its answer, admitted its indebtedness to the /appellee in the amount of $83,148.43 sued for, but set up a counterclaim of $137,091.08. Regarding the counterclaim however, the plaintiff, in count 1 of its reply, raised the issue of estoppel. We shall deal with this issue later on in this opinion.

Between November 24, 1982 9 and March 10, 1983, there were several postponements before the trial was commenced. But we shall specifically treat only the postponements as of the date the case was assigned for disposition of the law issues.

On December 8, 1982, when the case was assigned for the disposition of law issues, counsel for the plaintiff/appellee called the court’s attention to the sheriffs returns to the notice of assignment to the effect that Counsellor J. K. Burphy of the p. Amos George Law Firm, counsel for defendant/appellant, lad refused to sign the notice of assignment on the ground that Counsellor P. Amos George should sign same. Counsel for plaintiff, having moved the court to permit him to argue the law issues, and the same having been granted, proceeded to cite laws in support of his argument. The court then reserved ruling to a later date. Thereafter, another assignment was duly issued by the court for ruling on the law issues. The assignment was served and returned served. At the assigned time on January 26, 1983, the trial court handed down its ruling on the law issues. Counsellor J. K. Burphy of the P. Amos George Law Firm, being present in court, took the ruling on the defendant’s behalf.

On February 16, 1983, the case was called for trial, at the lour of 2:30 p.m., as per a notice of assignment. Counsel for defendant, not accompanied by defendant, appeared, and having observed the absence of the plaintiff and/or its counsel, moved the court, under Rule 7 of the Circuit Court (also applicable to the Debt Court) for the dismissal of the Complaint. The Rule was invoked between 2:30 and 2:45 p.m. As the court was about to rule on the defendant’s application, the court observed the presence of plaintiffs counsel in court. Consequently, the defendant’s application was denied. Strangely enough, both parties, on the records of the court, agreed to the postponement of the trial to the March, A. D. 1983 Term. We wonder why counsel for defendant, who was so anxiously bent on having the action dismissed when the plaintiff and its counsel had not appeared within fifteen minutes of the as-signed time, was disposed to readily agree to a postponement for another month. Nevertheless, this was done.

The case was reassigned for hearing on March 3, 1983, and upon the call thereof, it was discovered that Counsellor George, one of counsel for the defendant had sent the trial judge a handwritten note requesting the court to excuse him for two days due to an alleged illness of his aunt and the alleged inability of two of his partner lawyers to represent the defendant on the grounds that one of them was ill and the other was engaged. No medical certificate accompanied the letter of excuse. However, the case was again reassigned for hearing on March 10, 1983. When the case was called for trial, it was again observed that Counsellor Joseph Dennis, also of the P. Amos George Law Firm, had written the court to once more postpone the trial for another week on the ground that Counsellor George, who had gone to Lebanon, had locked up the case file and other important documents pertaining to the same. Counsel for the plaintiff thereupon challenged the postponement so strangely requested by counsel for the defendant. The court sustained the objection and proceeded with the trial. We would like to remark here that from the Inception of the case neither party filed a formal motion for continuance. In any event, following the denial of the request if counsel for the defendant, counsel for the plaintiff invoked Rule 7 of the Circuit Court Rules. By order of the court, the defendant was called three times at the door of the courtroom d upon his failure to answer; the court permitted the plaintiff to prove its side of the case. The plaintiff produced two Witnesses, in persons of the vice president and general manager of the plaintiff bank, as well as one David Miller, also an employee of the plaintiff. These witnesses testified and produced corroborating documents which were marked, confirmed and subsequently admitted into evidence. The plaintiff then rested evidence, and argued and submitted its case. The court thereupon reserved its final judgment until March 16, 1983.

On March 16, 1983, when the case was called for final judgment, counsel for both parties appeared and the court’s attention was called to what is referred to as the defendant’s submission, the substance of which in short requested the court to rescind its ruling to render final judgment and to reopen the case for the purpose of allowing the defendant to produce evidence in its behalf. This submission was resisted by counsel for the plaintiff and the court ruled denying the said submission. It thereafter rendered final judgment, fording the defendant liable to the plaintiff for the amount sued for.

From this final judgment, the defendant noted exceptions and announced an appeal to this Court of dernier resort for consideration of the matter. In furtherance of that appeal, a bill of exceptions containing four counts was filed. We shall revert to the said bill of exceptions in a moment.

We have taken the pains to dwell on these strange procedures, if not deliberate dilatory tactics, for the purpose of exposing the lawyers as well as party litigants whose sinister motive it was to defeat the ends of justice and thereby subject our judiciary to public ridicule.

Many a time, cases are delayed in our courts not because the courts are incompetent, but because they are made impotent by dishonest lawyers who believe that by prolonging the litigation they would earn themselves more dollars. In so acting, these lawyers completely lose sight of the Code of Ethics and their obligation to our society to help build a strong and dependable judiciary, and to thereby sustain a functional democracy such as ours. Anything falling short of this ethical expectation is unpatriotic. This Court frowns upon such behavior on the part of lawyers who, for selfish motives, have caused their clients unnecessary expenses and created doubts in the minds of the public as to the credibility of our court system. Our system is not different from other civilized nations who depend on the rule of law for their survival.

We now turn to the bill of exceptions. After carefully perusing the said bill of exceptions, we deem it necessary to pass only on counts 2 and 4 thereof.

Count 2 states, inter alia, that the court below should have honored Counsellor Joseph Dennis’ letter to the court to postpone the trial of the case because Counsellor P. Amos George had allegedly locked up the case file and had gone on a trip to Lebanon. The count states further that plaintiff, having rested evidence, the defendant should have been permitted to present its side of the case, even though it had signed the notice of assignment and had inexcusably absented itself from the trial.

Count 4 of the bill of exceptions contends that the trial judge erred when he denied the defendant the right to produce witnesses on its own behalf, and further that the court’s refusal to reopen the case at that stage, as had been requested by the defendant in its submission, constituted a denial of the defendant’s day in court.

In order to arrive at a just determination, the following issues must be resolved:

1. Did the court commit a reversible error when it refused to honor the letter from Counsellor Joseph Dennis, requesting the court to postpone the trial of the case for another week?

2. Whether or not the trial court erred when it denied the defendant’s submission to allow it to produce witnesses or evidence in its defense, after the plaintiff had rested its side, of the case?

3. Whether or not the defendant’s plea of a counterclaim in its answer was erroneously dismissed by the trial judge?

4. What constitutes a denial of a person’s day in court, within the meaning of the law?

We shall traverse these issues in the reverse order. According to law writers, a “day in court” is defined thus:

‘A phrase meaning nothing less than due process, that is, the Fight to, and opportunity for, a hearing . . . An opportunity to be heard after notice to appear . . . .” See BALLENTINE’S LAW DICTIONARY 307 (3rd ed.).

Our law is also not silent on the issue of due process, which forms a necessary part of the definition of a “day in court”. Indeed, this Court has held that:

“The term ‘due process of law’, when applied to judicial proceedings, means that there must be a competent tribunal to pass on the subject matter; notice, actual or constructive, an opportunity to appear and produce evidence.

The essential elements of due process of law are notice, and an opportunity to be heard and defend in an orderly proceeding adapted to the nature of the case.” Wolo v. Wolo[1937] LRSC 12; , 5 LLR 423, 428 (1937).

From the several notices of assignment, followed by subsequent repeated postponements, especially at the instance f the appellant, as shown by the records, we hold that the element of due process of law were satisfied in the instant case. Consequently, appellant was afforded its day in court. What perhaps counsel for appellant, especially Counsellor P. Amos George, anticipated and most desired was to impress n the trial court, if not the entire Judiciary, that the P. Amos George Law Firm, minus the learned Counsellor P. Amos George, was incapable of pursuing cases represented by that Law Firm, even though there were other able counsellors attached to said Law Firm. The maxim “rex est lex vivens”, meaning, “the king is the living law”, is not applicable here or for that matter, attributable to any particular lawyer or law arm. Such attitude, exhibited in the instance case by counsel for the appellant, has long been frowned upon by this Court. In Nigerian Port Authority v. Brathwaite, this Court said:

“It is our opinion that the contention that a particular lawyer should represent a case in court at a trial, in preference to other competent counsel also announced on the same side in the case is not only baseless in law and unfair to his adversary but it also encourages delay tactics, which all courts frown upon.” [1977] LRSC 55; 26 LLR 338, 348 (1977).

Incidentally, in the case just cited, Counsellor P. Amos George was the leading counsel who wanted the case reversed in an error proceeding on the same grounds he has again advanced in this case. He was also therein chided by this Court. Ibid., at 342.

As we have earlier indicated, the appellant, in counts 2 and 3 of its answer to the complaint, admitted its indebtedness to appellee in the amount sued for but advanced the defense of a counterclaimed stating that the appellee was obligated to it, the appellant, in the amount of $137,091.08, and that therefore, by mathematical calculation, when the appellant’s admitted indebtedness is subtracted from the appellee’s alleged indebtedness to the appellant, the difference showed that the appellee was owed the appellant only $53,843.00. We would have delved further on this allegation or issue of a counterclaim, but or count 2 of the addendum herein above quoted, wherein the appellant, in consideration of the reduction of its indebtedness of appellee by $54,250.00, expressly waived its supposed claim f $137,091.08 against the appellee. We do not believe that we can do so now. (See count 2 of the addendum).

Under the doctrine of “estoppel” and “waiver”, it is provided:

“The doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith and justice, and its purpose is to forbid one to speak against his own act, representations or commitments to the injury of one to whom they were directed and who reasonably rely thereon . . . .

Waiver and estoppel are closely akin, their legal effect is much the same, and the term ‘estoppel’ and ‘waiver’ are often generally interchangeably used . . . .” 28 C.J.S., Estoppel and Waiver, §§ 28 and 30.We therefore hold that the appellant, having admitted in its answer its indebtedness to appellee in the amount sued for and having expressly, irrevocably and unconditionally waived its upposed claim of $137, 091,08 against the appellee as confined in the addendum, was legally barred from counterclaiming the said $137,091.08, and therefore the court did not err in dismissing the counterclaim.

We now turn to the second issue, which is, whether or not the trial court erred when it denied appellant’s “submission” requesting the court to allow appellant to produce witnesses or evidence in its defense, after the appellee had concluded its side of the case?

According to the practice and procedure adopted in this jurisdiction, parties before courts, especially those who are represented by legal counsel, as in the instant case, must employ all diligence and exert all energy to follow up their cases so as to prevent unnecessary delay in the litigation process because justice delayed is justice denied. Against this background, our statute and case laws have also laid down guidelines for the conduct of trials. These guidelines must be strictly adhered to because a departure from this norm will definitely render our judicial system ineffective. Under the rules of our trial courts, it is provided that:

“The issues of law having been disposed of in civil cases, the trial shall thereafter commence and either of the parties not being ready for trial shall file a motion for continuance, setting forth therein the legal reasons why the case might not be heard at the particular term of court . . . A failure to file a motion for continuance or to appear for trial after return by the sheriff of a written assignment, shall be sufficient indication of the party’s abandonment of a defense in the said case, in which instance the court may proceed to hear the plaintiffs side of the case and decide thereon . . . .” See Rule 7 of the Circuit Court Rules as revised, p. 30.

The appellant in the instant case, having abandoned his defense, as shown by his failure to comply with the law, cannot now, as he could not then, benefit from its own negligence, under the cloak of what it terms a submission. The said submission which has no basis in law was only intended to violate, if not subvert, the provision of the statute controlling trials. That statute states:

“If the plaintiffs claim in an action in which the defendant has defaulted is for a sum certain or for a sum which by computation can be made certain, the court, upon submission of the proof required by section 42.6, shall direct entry for the amount demanded in the complaint plus costs and interest . . . .” Civil Procedure Law, Rev. Code 1: 42.2.

Section 42.6, herein above referred to, also provides: “On an application for judgment by default, the applicant shall file proof of service of the summons and complaint, and give proof of the facts constituting the claim, the default, and the amount due.”

We therefore hold that the appellant, having abandoned his cause, and having also defaulted under the law herein cited, is not entitled to benefit under the provision of the law requiring or allowing an appearing party to produce evidence or witness in his own behalf, especially so when the appearing party, such as the appellee in this case, has by order of court presented and concluded its side of the case in a regular trial Procedure pursued under the aegis of Rule 7, quoted supra, and the opinion of this court in Brown v. Cavala River Company, [1954] LRSC 27; 12 LLR 136 (1954).

To permit a defaulting party such as the appellant in these proceedings to benefit from such culpable negligence will not only be unprecedented, but would definitely open a flood gate to a strange phenomenon in our judicature.

During the arguments before this Court, counsel for the appellant strenuously argued that the record of the trial court dehors the entry of an imperfect judgment, and that therefore, even though appellee produced evidence in its behalf as required by law, the said judgment should be reversed and the_case remanded for new trial. As plausible as this argument seems to be, it does not hold water. Let us see what transpired m the trial court. Sheet three of the minutes of the trial court for March 10, 1983, states:

“The court keenly observes from the content of the defendant’s counsel’s letter of the 8th of March, A. D. 1983, for the postponement of this case for reason that Counsellor Peter Amos George inadvertently locked the case file and all important documents in his desk drawer and that he is presently in Lebanon for a period of one week is considered by this court as just intended to baffle and delay justice because same is not in conformity with the statutory provision governing the postponement of cases in this jurisdiction; and it is not even a motion for continuance, but even if it were a motion for continuance, it fails to meet the legal requirements made and provided in such cases.

Therefore, the letter of March 8, 1983, signed by Counsellor Joseph A. Dennis, one of counsel for the defendant, is hereby denied and plaintiffs application as indicated above is hereby granted. AND IT IS HEREBY SO ORDERED.

THE COURT: The sheriff is therefore hereby ordered to call the defendant herein three times at the door. AND IT IS HEREBY SO ORDERED.

THE COURT: The sheriff having reported to court that he has called the defendant three times at the door and he failed to answer, the plaintiff may now proceed to prove its side of the case. AND IT IS HEREBY SO ORDERED.

At this stage, plaintiffs counsel requests qualification and sequestration of his witnesses. And submits.

THE COURT: The application of plaintiffs counsel for the qualification of plaintiffs witnesses is hereby granted and the clerk is hereby ordered to qualify said witnesses. AND IT IS HEREBY SO ORDERED.

THE COURT: The witnesses of the plaintiff are hereby qualified. AND SO ORDERED.” From the above quoted records, it is evident that there requirements for the entry of default judgment as provided for and contemplated by statute were met. These requirements, in the opinion of this Court, are:

1. Failure of a party already brought under the jurisdiction of the court to file a motion for continuance.

2. Application by the appearing party to the court for the entry of an imperfect judgment.

3. Court’s order granting such application and requiring the appearing party to prove its side of the case; and

4. The rendition of final judgment thereon according to the evidence adduced.

While it is true that the minutes of court as quoted herein above do not show the entry of the words “judgment by default” or “imperfect judgment”, as argued by the appellant, yet it is equally true that the procedure followed, as recorded in the aforesaid minutes, met the requirements of the statute. We therefore hold that the mere omission of the words “judgment by default” or “imperfect judgment” after an application therefor has been made, as in the instant case, is insufficient to reverse the judgment of the lower court. This is especially true where the appellant had admitted its indebtedness to the appellee in the amount sued for. To do otherwise would defeat the legal maxim which states: “The letter of the law killeth the spirit.”

We now come to the last issue, and that is, did the trial court commit reversible error when it refused to honor the letter from Counsellor Dennis, one of record for the appellant, requesting the court to postpone the trial again, this time for a week? We hereunder quote the self-same letter for the benefit of this opinion:
“His Honour Francis N. Pupo
Judge
Debt Court, Montserrado County
Temple of Justice
Monrovia, Liberia

Dear Judge Pupo:

We have the honor to respectfully request postponement until Wednesday, March 16,1983, of Chase Manhattan Bank, N. A. v. Middle East Trading Company (METCO), Action of Debt, assigned for hearing on Thursday, March 10, 1983, due to the fact that Counsellor P. Amos George inadvertently locked up the case file and all important documents (evidence) in his desk drawer and is presently in the Lebanon for a period of about one week and consequently will not be returning home before the 14th or 15th instant.

As these documents are very essential to a fair and impartial determination of this case, we respectfully solicit your kind cooperation in the premises.

Kindest regards,
Very truly yours,
THE P. AMOS GEORGE LAW FIRM
/s/ Joseph A. Dennis
/t/ Joseph A. Dennis
COUNSELLOR AT LAW”

Counsel for the appellant has endeavored to impress upon the mind of this Court that the letter quoted hereinabove was sufficient in law to cause the court below to grant the continuance, and that the court’s refusal to honor the said letter, after the court had allegedly assured him that it would favorably consider same, constituted a denial of appellant’s day in court and hence a reversible error. In other words, counsel for appellant has nutured the notion that a letter of this character, emanating from a prestigious law firm such as the P. Amos George Law Firm would suffice as a substitute for a motion for continuance. What does the statute say in this regard:

“1. MOTION DENIED; WHEN AND HOW MADE. A motion is an application for an order granting relief incidental to the main relief sought in the action or proceeding in which the motion is brought. A written motion is made when a notice of the motion is served. Unless made during a hearing or trial, a motion shall be in writing and shall state with particularity the grounds therefor and shall set forth the relief or order . . . .” Civil Procedure Law, Rev. Code 1: 10.1.

Nowhere in the records is there confirmation of the appellant’s contention that the trial judge had given him the assurance that he would continue the case as requested in said letter; nor is there any indication in the records that the appellant, having sent said letter to the court, also duly notified the appellee as to the appellant’s intention to have the cause postponed. To guide against such dilatory tactics, the statute also provides: “Anytime during trial, the court, on motion of any party, May order a continuance . . . in the interest of justice on such terms as may be prescribed.” Civil Procedure Law, Rev. Code 1: 20.3 Also, according to common law writers, we have the following authority on continuance: “A continuance is an adjournment or postponement of an action pending in a court to a subsequent day of the same or another term . . . .

RIGHT TO CONTINUANCE IN GENERAL: The courts are generally liberal in granting continuance where they are necessary to prevent miscarriage of justice, but continuance are not favored where they are sought merely for the purpose of delay . . . .

The parties to an action are entitled to a prompt trial unless a good cause for a postponement is shown and the court will refuse an application for a continuance which is sought merely for the purpose of vexation and to delay the administration of justice. The time for hearing a cause cannot be made to depend on the whim or convenience of a litigant.” 17 C. J. S., Continuance, §§ 1 and 4. Further, our source of authority continues:

“Continuance is the adjournment of a cause from one day to another, which may be in the same or in a later term, although the word ‘postponement’ is preferable where a trial or hearing is delayed only until a later day of the same term or until a later hour of the same day. The words ‘continuance’ and ‘postponement’ are, however, quite generally used interchangeably… For the purpose of classification, continuances may be grouped broadly into those which result by operation of law and those which ensue by virtue of a court order. The former class includes all those cases which remain undisposed of at the end of a term . . . and are continued as a matter of course until the next term without the entry of any court order . . . Under the second ground may be mentioned (1) continuances granted with the consent of both parties, although as to these, it must be remembered, no stipulation or agreement providing therefor is, in default of a statute so providing . . . (2) continuances granted by a court on its motion; and (3) continuances granted for cause by a court on the application, of one of the interested parties. . .12 AM. JUR., Continuance, § 2.The Supreme Court’s opinions are replete with cases in which we have stated that parties desiring continuance or postponement of their cases should first move the court. By this is meant that a motion should be properly filed and served on the opposite party, setting forth therein legal grounds. The moving party must specifically state in the moving papers that such continuance is not sought for the mere purpose of delay. See Appleby v. Freeman, [1916] LRSC 13; 2 LLR 271 (1916); Burney v. C. F. Wilhelm Jantzen, [1935] LRSC 14; 4 LLR 322 (1935);Togba v. Republic, [1955] LRSC 5; 12 LLR 218 (1955); Massaquoi v. Republic, [1961] LRSC 20; 14 LLR 372 (1961).

The records are void of any indication of proof during the entire trial that the appellant at any time availed itself of the law extant or the principles of law herein expatiated. We therefore hold that in the eyes of the law, the alluded to letter of Counsellor Joseph A. Dennis, one of counsel for appellant, cannot be considered a legal document upon which a court of justice may countenance in the determination of a cause and for which a cause may be continued. The trial judge did not err in sustaining the resistance to the request for postponement of the trial made in appellant’s counsel letter.

From the facts, circumstances and laws herein observed and cited, it is our candid opinion that the trial below was regular and that the appellant did have its day in court. The judgment of the lower court should therefore not be disturbed.

Wherefore, and in view of the foregoing, the judgment of the trial court is hereby confirmed and affirmed, with costs against the appellant. And it is hereby so ordered.

Judgment affirmed.