G. FLAMMO SHERMAN, Appellant, v. VICTORIA REEVES-CHENOWETH, by and through her husband, GARFIELD CHENOWETH, Appellees.

APPEAL FROM THE CIRCUIT COURT, SECOND JUDICIAL CIRCUIT, GRAND BASSA COUNTY. Argued March 20, 1975. Decided May 2, 1975. I. Whether or not a continuance should be granted because of the absence, from illness, death, or other cause, of applicant’s counsel, must necessarily depend on the facts and circumstances of each case. After protracted legal proceedings in two cases instituted by the appellant, the cases came up for hearing, and notice of assignment was served on September 25, 1974, for trial scheduled for September 27. On September 26, counsel for appellant filed a motion for continuance, on the ground that he and the other principal counsel for defendant were leaving for an international convention as official delegates for Liberia. The motion was denied, and at the call of the cases appellant refused to proceed as his own counsel, and argued that his principal counsel were out of the country. The court dismissed the actions and plaintiff appealed to the Supreme Court. The Supreme Court in its opinion criticized the lower court for abusing its discretionary power and consequently reversed the judgment and remanded the cases to the lower court for trial. J. Dossen Richards for appellant. and Toye C. Barnard for appellee. MR. JUSTICE the Court. WARDSWORTH 196 Moses K. Yanybe delivered the opinion of LIBERIAN LAW REPORTS 197 The circumstances which have persisted from the time of the ruling of the assigned circuit judge, denying the motion to vacate the injunction until determination of the proper accounting and specific performance suits instituted by respondent Sherman, still prevail without determination of the two aforesaid suits. After the denial of the motion to vacate the injunction, an application was made to the Justice presiding in chambers for a writ of certiorari, which was heard and denied on June 21, 1972. Subsequently, on July 2, 1974, counsel for petitioner withdrew his announced appeal and requested Mr. Justice Henries for certain relief in lieu of the appeal. “Counsel for petitioner respectfully withdraws his exceptions and announcement of an appeal to the full bench from Your Honor’s ruling in the above mentioned case handed down on Friday, June 21, 1974, and respectfully requests Your Honor that because of the personal property in the hotel which are deterio- rating as a result of the closing of said hotel . . . that the petitioner be permitted to tender a bond to be approved by the trial judge in an amount to indemnify the respondent against any losses that the respondent might sustain pending the determination of the two suits, proper accounting and specific performance, now pending before the 2nd Judicial Circuit Court, in Lower Buchanan, Grand Bassa County.” Mr. Justice Henries ruled on the application: “The withdrawal is granted and the request for permission to tender a bond to be approved by the trial judge indemnifying the respondent for any losses that he might sustain pending the final determination of the appeal is granted ; also in accordance with the concluding part of my ruling [emphasis ours] as well as the Rules of Court; and this should be included in the mandate to be sent down to the lower court in the Chenoweth case.” 198 LIBERIAN LAW REPORTS We have set forth the concluding part of the ruling referred to. “Since the hotel which was closed by the issuance of the injunction is the main hotel in the County of Grand Bassa, and particularly in the City of Lower Buchanan, and since it caters to many travelers as a place where food and rest can be had and also since its facilities might deteriorate from lack of use, the lower court in its discretion might, upon proper application, give some consideration to the reopening of the hotel or modifying the injunction upon the giving of a bond by petitioner in an amount to be fixed by the court as required by statute.” The mandate ordered sent down to the lower court was duly transmitted and received by Judge Tilman Dunbar. For some reasons the mandate was not effected as commanded. Being dissatisfied with Judge Dunbar’s ruling on the mandate, the petitioner filed an information with Mr. Justice Azango, then presiding in chambers. After perusing the information, Mr. Justice Azango ordered the issuance of a precept for the appearance of respondent to show cause why they should not be attached in contempt for disobeying a mandate of the Supreme Court. Co-respondents George Flammo Sherman and Judge Dunbar made returns to explain why they should not be held in contempt of court. The information was heard by the Justice in chambers on September 9, 1974, and he handed down a ruling, in which he censured and adjudged the respondent judge and counsel for respondent Sherman, Counsellor Joseph Findley, guilty of contempt, fining each the sum of $200.00, to be paid within 24 hours, and upon their failure so to do, to be imprisoned. He also ordered Judge Koroma, then presiding over the Second Judicial Circuit to accept and approve without failure an indemnity bond, so that the Hotel Louiza, LIBERIAN LAW REPORTS 199 which had been closed by the ruling of Judge Baysah in the injunction proceedings and from which ruling no appeal had been taken, could be reopened. Respondents appealed to the full bench, which appeal was heard and disposed of in the Court’s ruling: “In view of what has been stated herein, it is our holding that the ruling of our colleague, Mr. Justice Azango, amercing respondent Judge Tilman Dunbar in a fine of $200.00 and upon failure to pay be imprisoned, he reversed. In the case of Counsellor Findley, that his ruling fining said counsellor be modified in that instead of a fine Counsellor Findley be suspended from the practice of law in any of the courts of the Republic for six calendar months from the date of rendition of judgment in this case. Further, that the order to reopen the Hotel Louiza be and is hereby reversed. That the Hotel Louiza be immediately closed and remain closed in keeping with the ruling of Judge Baysah perpetuating the injunction, until proper application has been made in keeping with Mr. Justice Henries’ ruling and this opinion and disposed of. And the Clerk of this Court is hereby ordered to send a mandate to the court below to the effect of this opinion. And it is so ordered.” In passing, we would like to observe that we have culled the foregoing recital from the various proceedings in this case by the parties concerned, merely to evince the spirit of tenacity of purpose resulting in futility despite the protracted application taxing both mental and material resources. At the sine die adjournment of this Court in its October 1974 Term, the mandate was forwarded to the Second Judicial Circuit Court, Grand Bassa County, for its information and for enforcement thereof. The cause having been remanded to the trial court to be assigned for hearing, the case was accordingly docketed by the trial court for hearing. Realizing that his lawyers 200 LIBERIAN LAW REPORTS would at this term of court be engaged in the services of the Government, having been appointed delegates to represent the Liberian Government at the General Assembly of the United Nations in New York, U.S.A., appellant filed a motion for continuance of the case. As far as we can observe, plaintiff’s counsel moved the court for continuance of the cases instituted by plaintiff in the court below. That this motion for continuance was filed in the Clerk’s office, Second Judicial Circuit, Grand Bassa County, on September 26, 1974. Said motion was signed by Counsellor Joseph Findley, one of counsel for the plantiff. It is obvious from the notice of assignment served on September 25, 1974, for the hearing of the cases on September 27, 1974, that the said motion was filed one c! y prior to the day for the hearing of the cases. The motion under reference assigned reasons for continuance of the hearing of the cases which we consider cogent. The absence of counsel in whose possession the record of the cases had been placed is important, for although there were other lawyers retained by plaintiff to assist in the prosecution of plaintiff’s cases, they were rendered helpless and unable to proceed with the trial of the case in the absence of the records. It is contended by counsel for appellee that “at the call of the case on the date mentioned above, appellant, together with one of his counsel in the person of Samuel W. Payne, was present in court, and having failed to proceed by appellant’s taking the stand to testify, their re- fusal and silence constituted abandonment of the case. It has already been established that Counsellor Joseph Findley was beyond the jurisdiction of the court and had possession of the records of the cases. Hence, it is unreasonable to contend that because Counsellor Payne, one of counsel for plaintiff, was in court when the case was called for hearing and did not say anything, that this constituted abandonment. The Constitution of Liberia pro- LIBERIAN LAW REPORTS 201 vides that one may be represented by counsel or in person or by both. It could not be logically expected that plaintiff would undertake to represent himself when he had elected to retain counsel to represent him in these cases. Moreover, what could have been the rationale for him to have taken the stand to testify in his own behalf in the absence of the records of the case. It is contended by appellant that the trial judge erroneously dismissed plaintiff’s two causes of action because of what the trial judge wrongly styled “abandonment,” even though the plaintiff was present in court, thereby depriving plaintiff of his day in court. Rules governing the Circuit Court make appropriate provisions: “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 the defense.” Rule 7. In this case appellant did file a motion for continuance and did appear in court at the time of assignment of the case in defense of his motion, which was wrongly denied by the trial judge. In Massaquoi v. Republic, [1943] LRSC 8; 8 LLR 155, 158 (1943), this court passed on an application for continuance : “Whether or not a continuance should be granted because of the absence, from illness, death or other cause, of applicant’s counsel must necessarily depend on the facts and circumstances of each particular case.” In the instant case the circumstances should have appealed to the discretion of the trial judge and should have dictated the granting of the motion for continuance, not only because of the absence of plaintiff’s counsel, but primarily because the records in the case were not available at the time of the assignment of the causes for hearing. The trial judge abused his discretionary power in denying the motion. With respect to the question of abandonment authority can be cited : 202 LIBERIAN LAW REPORTS “In order to establish an abandonment . . . actual acts of relinquishment accompanied by intention to abandon must be shown. The primary elements are the intention to abandon and the external acts by which that intention is carried into effect. While an abandonment may arise from a single act or from a series of acts, the intent to abandon and the act of abandonment must conjoin and operate together, or in the very nature of things there can be no abandonment. The intent to abandon is considered the first and paramount inquiry.” Am. JuR., 2d, zlbandonment, � 15. One of the most disturbing features in this case is that the trial judge not only denied the motion for continuance, but simultaneously dismissed plaintiff’s case and ruled him to all costs. This may have been reasonable and sustainable if there had been no motion filed for continuance, but where a motion was filed, action that should have been taken by the trial judge was to deny the motion and assign the causes for hearing at a subsequent time. In view of the foregoing, the ruling of the trial judge is hereby reversed and the causes remanded for trial with costs against appellee. And it is so ordered. Reversed and remanded.