MOMO F. SASAY, Appellant, v. MASIYE SASAY, Appellee.

MOTION FOR RELIEF FROM JUDGMENT OF THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: December 12, 1981. Decided: February 4, 1982.

6. A trial court should not render judgment on presumptions; in all cases, the judgment should be rendered upon facts gathered from the hearing of evidence.

7. Where the motion papers raise contentious issues of fact, the trial court should conduct an investigation or hearing and give each party the opportunity to produce evidence in support of his factual averments.

8. The failure of a party to a motion to furnish with his motion or resistance all the papers on which he relies is not a ground for denial of the motion or for overruling the resistance; to the contrary, supporting papers not filed with the motion or resistance may be furnished at the hearing or investigation.

9. A motion for relief from judgment should be granted where there is evidence that the movant was not served with the writ of summons.

A default judgment was rendered against appellant; and he filed a motion for relief from judgment was filed by the appellant. The basis of his motion was that he was not served with the writ of summons and that he was not in Liberia when the writ of summons was issued and returned served; but the motion was resisted. The trial court denied the motion without investigating the factual allegations of the pleadings. On appeal, the Supreme Court ruled that the non-service of the writ of summons is a proper ground for relief from judgment. The Supreme Court also ruled that the trial court erred when it did not investigate the factual allegations of the motion and the resistance thereto. The Supreme Court therefore reversed the ruling of the trial court, and remanded the case, with instruction that the appellant be given the opportunity to file his answer within ten (10) after the reading of the Supreme Court’s mandate.

McDonald M Perry appeared for the appellant. P. Amos George appeared for the appellee.

MR. JUSTICE YANGBE delivered the opinion of the Court.

Appellant contended in count one of his bill of exceptions that he was in the Republic of Sierra Leone when this case was filed against him, and that he was never served with process. Therefore, he claimed that the returns of the sheriff to the writ of summons are false. Hence, he moved the trial court for relief from judgment. Counsel for the appellant argued that the trial judge should have investigated the allegations contained in the motion for relief from judgment and the resistance filed thereto before denying him the relief.

We quote below the returns of the sheriff endorsed on the writ of summons for the disposition of this case:

“On the 28th day of March, A. D. 1979, Court Bailiff Albert A. Hoggard, reported that the within named defendant stated that the name on the within writ of summons was not his name, he therefore refused to accept his copy of the said writ. I now make this as my Official Returns to the office of the Clerk of Court. Dated this 28th day of March, A.D. 1979 …..”

Whether the person that told the sheriff that the name on the summons was not his was the same person who later filed the motion for relief from judgment is silent in the records now before us, but this fact would have been made clear if the trial court had afforded the parties the opportunity to produce evidence in support of their respective factual averments in the motion and the resistance. Generally speaking, the returns of the sheriff is prima facie evidence of service, unless the contrary is proved.

Counsel for appellee argued that appellant should have proffered his travel documents as notice. There is a denial of the factual nature of averments stated in the motion and the resistance; therefore, there was a dire need for the production of evidence. Here is the statutory procedure at the trial in case of failure to proffer documents in the motion:

“The moving party shall furnish at the hearing all papers not previously filed and necessary to the consideration of the question involved. Where such papers are in the possession of an adverse party, they shall be produced at the hearing by the latter on notice served with the motion papers. Only papers served in accordance with the provision of this section shall be used in support of, or in opposition to the motion unless the court for good cause shall otherwise direct.” Civil Procedure Law, Rev. Code 1:10.4(3).

With the procedure outlined hereinabove, the failure of appellant to proffer the travel documents is, therefore, not valid ground to deny the motion.

Appellant has contended in count two of his brief and argued with emphasis that, according to the affidavit annexed to the motion, the motion should have been granted. That affidavit reads, as follows:

“That during the months of February and March, A. D. 1979, he and his cousin Momo F. Sesay were out of the Republic of Liberia attending the funeral services of their cousin, Marima Sesay, who died at Fairo Town, Sierra Leone, in the month of February, A. D. 1980, and as to those matters of information he verily believes them to be true and correct.”

On the other hand, appellee contended that he had made clear to the trial court that the motion and the affidavit were a fabrication, and that the trial court was, therefore, correct when it denied same.

Courts of justice should not render judgments upon presumptions, but in all cases must base their decisions upon facts gathered from the hearings of evidence. Wolo v. Wolo, 5 LLR, 42(1937); Pelham v. Pelham, [1934] LRSC 6; 4 LLR 54 (1934).

In view of the facts and circumstances stated hereinabove, coupled with the laws cited, the ruling denying the motion for relief from judgment and the final judgment in this case are reversed and the case is remanded with instructions that appellant file an answer within ten (10) days from the date of the reading of the mandate in this case, if he so desires, and that the case be proceeded with anew according to law.

The Clerk of this Court is ordered to inform the trial court as to the effect of this opinion. Costs of these proceedings are to abide final determination of the case. And it is so ordered.

Ruling reversed; case remanded.