AMANDA I. STUBBLEFIELD, et al., Appellants, v. ANTOINE A. NASSAH, Appellee.

APPEAL FROM THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued May 4, 10, 1976. Decided June 17, 1976. 1. Copies of documents may be admitted at a trial only when the original is not available. 2. The Supreme Court cannot take original jurisdiction over any issues, except those stated in the Constitution. 3. Mistake, inadvertence, and other grounds for relief from judgment will be formally considered by the Court only when it can be shown by movent that he was without fault in not having brought the issues up for appellate review. 4. The movent for relief from judgment must also show that he had exercised every degree of diligence in his own interest. 5. On a motion for relief from judgment, newly discovered evidence is such evidence as would have resulted in a different judgment had it been produced on trial, and which was not known to the movent or was unavailable to him before trial. The appellants did not announce an appeal from a judgment against them in cancellation proceedings. Instead, they made a motion for relief from judgment, alleging fraud and inadvertence as grounds. They also contended that an original document found by them and which they offered in evidence at the end of the case constituted new evidence. The trial judge had permitted a copy to be introduced in evidence and he declined accepting the original. The motion for relief from judgment was denied. The Court held that an appeal should have been taken in the regular manner to consider the points proffered in the motion. The Court also said that appellants were neglectful. Moreover, the Court held that the original document offered did not constitute new evidence. Denial of the motion was affirmed. 152 LIBERIAN LAW REPORTS 153 Nete Sie Brownell, Moses Yangbe, and Toye Barnard for appellants. Samuel E. H. Pelham for appellee. MR. CHIEF JUSTICE PIERRE delivered the opinion of the Court. After final judgment had been rendered in this case by Judge John A. Dennis, in the Civil Law Court, on October 20, 5975, the respondents excepted and gave notice that they would file a motion for a new trial, instead of announcing appeal as should have been done in a nonjury case. Rev. Code i :51.6. They filed their motion for a new trial on October 22, and then filed a motion for relief from judgment on October 29, 1975. Because of the failure to orally announce an appeal from the final judgment as commanded by statute, Rev. Code 5 :51.6, and also because of the late filing of the bill of exceptions, a motion to dismiss the appeal was filed before us and has already been disposed of. But the trial judge’s ruling denying the motion for relief from judgment, which was appealed from and completed, has not been passed upon by this Court, so we proceed to do so now. The motion for relief from judgment found in the record reads in its relevant parts as follows : I. Because the movents say that at the time the case was being tried, the said movents could not locate the whereabouts of the original agreement of 1969 entered into between the late Wilmot D. Stubblefield and Amanda I. Stubblefield and lessors, and Abdul Farhat as lessee, and therefore the said movents were unable to offer in evidence the said original agree ment. “2. And also because movents say that it was only after evidence had been admitted by said movents that the co-movent, Abdul Farhat, discovered among his papers at his home the original of the lease agreement referred to above, dated December 16, 1969, which ,( 154 LIBERIAN LAW REPORTS has been duly probated and registered according to law and which has the necessary revenue stamp. A copy of said agreement is hereto annexed and marked exhibit ‘A’ to form a part of this motion. “3. And also because movents say further that the discovery of the original of the lease agreement which is the subject of these proceedings, constitutes newly discovered evidence which in the interest of justice necessitates a new trial in this case, so as to permit the movents to introduce into evidence this substantial evidence relating to the case. “4. And also because Your Honor in your final judgment inadvertently did not pass upon the questions as to whether the said 1969 agreement was fraudulent or genuine, and whether co-movent Amanda Stubblefield was clothed with authority from her late husband to sign the 1970 agreement. “5. And also because movents say that Your Honor overlooked the facts with respect to the evidence of Mr. Nassah regarding the $mo which was conclusively proven not to be any payment against the agreement of 1970, but a payment for that part of the Stubblefield property facing Gurley Street which was leased to petitioner Nassah and which lease did not expire until after the commencement of this suit. The record shows that if the $ioo was part of the second agreement, then Counsellor Cole would not have taken $5oo to petition, but $600.” In this motion for relief from the final judgment, the movents have made it clear that the grounds for relief are as follows: ( ) newly discovered evidence ; (2) failure to pass on Mrs. Stubblefield’s authority from her late husband for her to sign the 1970 agreement, and (3) that the court overlooked the question of the payment of $1oo not being part of the amount due against the 1970 agreement. In case of the latter two grounds relied upon, these were issues raised in the case before the court, and had been LIBERIAN LAW REPORTS 155 made the subject of the testimony and examination by both sides. The exceptions taken to the judge’s rulings on them saved these points for review by the appellate Court. All that was needed, therefore, to bring the issues before the Supreme Court, was to include them in the bill of exceptions, and they would have then come before us for review, had an appeal been announced at the rendition of final judgment. Unfortunately, no appeal was announced. In the case of the purported newly discovered evidence, the original of the lease agreement of 1969, an attempt made by the movents to have it introduced at the trial had been refused by the judge, and exception had been taken to his ruling. So here again, this point had also been saved by exception taken to the adverse ruling regarding it, and this was enough to have brought it up on appeal, had an appeal been announced. But could the original of a copy of a document made profert with the pleading constitute newly discovered evidence? We shall say more about this later. The statute provides that the only grounds upon which relief from judgment will be allowed are the following: “(a) Mistake, inadvertence, surprise, or excusable neglect ; “(b) Newly discovered evidence. . . “(c) Fraud . . . misrepresentation, or other misconduct of an adverse party; “(d) Voidness of the judgment; or “(e) Satisfaction, release, or discharge of the judgment or reversal or vacating of a prior judgment or order on which it is based.” Rev. Code i :41.7(2). We have said over the years that all issues intended to be brought up on appeal should be saved for appellate review on the strength of exceptions taken in the trial court. In Coleman v. Beysolow, [1955] LRSC 8; 12 LLR 234, 236 (1955), this Court said : “An exception to a ruling of an inferior court is the correct preliminary step to confer 156 LIBERIAN LAW REPORTS jurisdiction on this Court to pass upon the same.” And there are numerous cases in which this principle has been upheld. In the circumstances, was it necessary to bring the matter before us on appeal taken from denial of the motion for relief from judgment, when appeal could have easily been taken earlier, from the final judgment itself? We do not intend to complicate our appellate procedure by burdening it with unnecessary extension, when and where this can be avoided. Had an appeal been announced from the final judgment rendered on October 20, 1975, and the other jurisdictional steps taken within statutory time, there would have been no necessity for a motion for relief from judgment. No motion can take the place of announcement of appeal. A copy of the document mentioned in the motion for relief had been made profert and annexed to a pleading of the party, and had been offered in evidence and marked by the trial court “D/i.” Being a photocopy of the original, its contents were the same as the original. Therefore, its evidentiary value could not have been improved by insisting upon introduction of the original. However true that might be, our practice still requires that copies may only be used at a trial when the original is not available, and this applies to all copies. It is also our practice in this jurisdiction that copies of documents relied upon in litigation should be annexed to the pleadings and introduced in evidence at the trial. When and where the original can be found, that is always preferred. But where the court had allowed the copies, and refused to allow the original to be introduced at the trial, could the party who might have timely made an effort to produce it be held responsible for the judge’s denial of the production of the said original? In Walker v. Morris, 15 LLR 4 24, 42 9 (1963), this Court said : “It is a rule of modern practice that when a pleading is founded on a written instrument a copy thereof may LIBERIAN LAW REPORTS 157 be annexed and made a part of the pleading by reference as an exhibit, and by statute or rule of court, it is sometimes made obligatory on the pleader in such a case to annex a copy of the instrument to the pleading.” We are not convinced that the copy of the document annexed to the pleading might not have served the purpose for which it was made part of the pleading before the court. So while we do agree that the original was better evidence than the copy, in considering its evidentiary value insofar as the contents of the document were concerned, the copy was evidence of good grade. At least the trial court seemed satisfied with it. Under the best-evidence rule, it is universally accepted that the superior grade of evidence is always preferred, and when this can be obtained, courts should always allow its admission at the proper time at the trial. 1956 Code 6:685. Copies should only be used when and where the original is not available as we have said before, and this must be shown conclusively. 1956 Code 6 :686. There is no end to opinions of this Court in support of this principle. Common law authorities abound which agree on this point, and we will now quote a few in support of the position we have taken in this opinion. “By many commentators this is regarded as the first, and by some as the only fundamental exclusionary rule of evidence. However this may be, few rules are more frequently invoked in the trial of cases involving writings, and none is more strongly supported by the adjudicated cases. Underlying the rule are the presumptions that impugn the motive of a party who withholds primary evidence and attempts to substitute therefor evidence of an inferior grade, the innocent, sometimes sinister, fallibility and inaccuracy of human understanding and memory–particularly that of persons interested in the result–and the possibility, often strong probability, of error in copies of documents 158 LIBERIAN LAW REPORTS which may be of the highest importance in the litigation. Enforcement of the rule serves the double purpose of providing the most satisfactory evidence which is available and of preventing the frauds which would frequently attend the proof of the contents of writings by oral testimony.” Jones, EVIDENCE, � 71 (6th ed., 1972) . “Loss or destruction is frequently invoked to justify the use of secondary evidence to prove the contents of a document. Though provable by direct evidence, these facts are more often established by a circumstantial inference based upon the showing of an unsuccessful search that has encompassed all reasonable efforts to discover the writing. In some instances this may require the production as a witness of the person last known to have had possession of the document, or the introduction of his deposition if he is outside the jurisdiction.” Fisch, NEW YORK EVIDENCE, � 89 (2d ed., 1977). The rule on the production of documentary evidence in the former British colonies of Kenya, Tanganyika, Uganda, and Zanzibar, is as follows: “When the original is in the power or possession of the person against whom the document is sought to be proved, or of a person out of the reach of, or not subject to the process of the court, or of any person legally bound to produce it, any secondary evidence of the contents of the document is admissible.” Morris, EVIDENCE IN EAST AFRICA, 2 I 2. In this case, the document was in the possession of the movents themselves. We have no quarrel with the contention that the original of a document should be allowed to be introduced ; but could that original be considered newly discovered evidence in the case? We hold that this was not newly discovered evidence; it was better evidence, we agree; but the statute on relief from judgment LIBERIAN LAW REPORTS 159 specifically provides that only newly discovered evidence is one of the bases for such motion. Both sides had offered at the trial photo copies of the document which was the subject of the cancellation proceedings, and these copies had to be made from the original. In the case of the petitioner he gave no notice in his petition that the respondents, being in possession of the original, should produce it at the trial, as is required in our practice. In the case of the respondents/movents, although they had possession of the original, yet they elected to offer in evidence at the trial a photo copy of that original instead of the original itself, contrary to our statute. 1956 Code 6:685. “The mere fact that one’s adversary is in possession or control of a writing containing facts relevant to the issues in the case does not warrant the introduction of secondary evidence of its contents, but rather, to lay the foundation for the introduction of secondary evidence, the proponent must show that he has done all in his power to secure the best evidence by giving his adversary notice to produce the desired writing. If the party having possession or control of primary evidence, upon proper notice to produce such evidence, neglects or fails to do so, secondary evidence becomes available to his adversary. Under such circumstances, the adverse party is in no position to complain of the quality of the proof offered of the contents of the writing. “Where the party who seeks to introduce secondary evidence of a writing establishes that he does not have the writing and the party who would ordinarily have possession of it denies that he has it or denies its existence, secondary evidence of its contents is admissible.” 29 Am. JuR. 2d, Evidence, � 456 (1967) . In the face of this situation, movents’ counsel contended in argument at the hearing before us that the judgment 160 LIBERIAN LAW REPORTS was void because it cancelled a document which was not before the court, that is, the original agreement. It is true that he did seek to introduce that original later in the trial; and it is also true that the judge refused to admit the document; but what prevented the movents from introducing the original at the proper time? Perhaps had they done so, the judge might not have been able to deny the document’s admission. Written evidence must be introduced at the trial before evidence of the particular side rests. So, could the judge’s refusal to admit the original, after evidence had rested on both sides in the case, be regarded as reversible error, as movents now contend? Speaking of the alleged voidness of the judgment, appellee’s counsel argued that the issues which were made the subject of the motion for relief from judgment did not specifically mention voidness of judgment, as can be seen f rom an inspection of the motion quoted earlier in this opinion. Movents’ counsel contended that voidness of the judgment had been implied in the text of the motion. In such a case, could this appellate court pass on this issue being brought into the case for the first time on appeal, without assuming original jurisdiction over the issue? What prevented this point from being included among the points laid in the motion, and made the basis thereof in the trial court? The Supreme Court cannot take original jurisdiction over any issues, except those specifically mentioned in the Constitution, and this is not one of those specified issues mentioned in the Constitution. Aside from the shown neglect of the movents to have offered in evidence the original of the document or writing which was the subject of the litigation, and which both sides pleaded by attaching photo copies to their pleadings, could the judgment rendered on the copies which they had so pleaded be regarded as void? The subject matter before the court was the contents or writ- LIBERIAN LAW REPORTS 161 ing contained in that document. The court had ample jurisdiction over the said subject matter, over the case, and over the parties; the court was competent to hear and determine any issues arising out of the litigation growing out of this document and its contents; the parties had notice of what was required to be proved on both sides, and they were respectively represented and defended their interests. In such circumstances could the judgment be said to be void? It is our opinion that where these requirements are shown to have been met, the judgment is valid. “Requisites of a Valid Judgment “A judgment, even though it is subject to reversal or to attack in equity, is valid if “(a) the State in which it is rendered has jurisdiction to subject the parties and the subject matter to its control ; and “(b) a reasonable method of notification is employed and a reasonable opportunity to be heard is afforded to persons affected; and “(c) it is rendered by a court with competency to render it; and “(d) there is compliance with such requirements as are necessary for the valid exercise of power by the court.” A.L.I., RESTATEMENT OF THE LAW, Judgments, 19 (1942). “Whether the court is one of general or limited jurisdiction it is essential to the proper rendition of a judgment that it be given by a court of competent jurisdiction. The rendition of a judgment without jurisdiction is a usurpation of power, and makes the judgment itself coram non judice and ipso facto void.” 46 Am. JUR., 2d, Judgments, � 22 (1969). The court must by statute have jurisdiction over the particular matter involved in litigation. Id., � 23. The court must have jurisdiction over the subject matter, or else judgment rendered thereon is void. Id., � 24. The 162 LIBERIAN LAW REPORTS court must have jurisdiction over the parties. Any judgment rendered against a party not under the jurisdiction of the court is void ; and in order to give the court jurisdiction over the party, process must have issued and been served and returned served. The party’s presence in court without service of process affects the court’s jurisdiction. Id., � 25. Another issue argued by the movents’ counsel, and which they claimed gave them a right to relief from the judgment, is mistake ; and they wrote in their motion that the judge had “overlooked the facts with respect to the evidence of Mr. Nassah regarding the $roo which was conclusively proven.” Mistake, inadvertence, and other grounds for relief from judgment will warrant favorable court attention, only when it can be shown by the movent that he was without fault in not having brought the issues up for appellate review. He must be able to say that he did not have the opportunity to present the mistake or inadvertence before final judgment was rendered. “The court has discretion to grant a review when the petitioner has a substantial defense to the action on the merits which, by accident and mistake, and without fault on his part, he has had no opportunity of presenting to the court and jury. Where this is the situation, a review may be granted without passing in advance on the questions of law or fact which may be involved in the trial of the case. For example, review has been granted where a default judgment was rendered during the defendant’s illness, and where a party, by mistake, failed to perfect his appeal. But review will be allowed only to prevent substantial injustice and not for the purpose of granting further opportunity to raise technical objections or grounds of defense not really affecting the merits. “A contention which could have been made at the original trial is not ground for review, and a petition LIBERIAN LAW REPORTS 163 which alleges only error of fact or law in the trial of the original action as to which the proper remedy, if any, would be exceptions, or possibly motion for new trial, states no grounds for a writ of review. It seems that review will not be granted where there is an adequate remedy by appeal or writ of error. “A party seeking review on petition must satisfy the court that he was not guilty of laches.” 46 AM. JUR. ad, Judgments, � 675 (1969) . Was it lack of diligence on the movents’ part not to have found and produced the original at the trial ; or was it inadvertence that the photo copy had been offered in evidence instead of the original? Did the petitioner know that the original of his agreement was in the possession of his adversaries, and negligently failed to notify its production at the trial in his pleading as he should have done? These are questions which were not answered by the parties, even though movents now contend that the judge erred in not admitting the original when it was belatedly offered by them after evidence had rested. If under these circumstances error could be imputed to the judge for admitting a copy instead of the original, hadn’t the parties themselves contributed to such error; and having been parties to the error, could either of them in equity benefit by asking for correction in their favor and against their adversary’s interest? “In order to introduce secondary evidence of a writing which is claimed to have been lost or destroyed, the proponent of such secondary evidence must show that he has in good faith exhausted, in a reasonable degree, all sources of information and means of discovery which the nature of the case would naturally suggest and which were accessible to him. A general statement to the effect that diligence has been used in searching for the writing, or a mere perfunctory showing of some diligence in such search, will not 164 LIBERIAN LAW REPORTS suffice, but rather the court should be fully informed of the facts showing the diligence used in making the search.” 29 AM. JUR. 2d, Evidence, � 462 (1967) . We think that the errors complained of as having been committed by the judge, might have been properly brought up for appellate review had an appeal been announced at rendition of the final judgment in the court below. At this point two issues are presented to be resolved : (1) Did the judge err in denying the motion for relief from judgment? and (2) What is newly discovered evidence in contemplation of the statute requiring such evidence to form the basis for motions for relief from judgment? We will discuss the latter question first. Common law authorities agree that newly discovered evidence is such evidence which, had it been produced, would have resulted in a different judgment from that which was entered at the trial. It is evidence which presents new facts of the case. “A judgment may be vacated or set aside where new evidence is discovered or new facts occur, after the judgment, or too late to have been presented at the trial, which show that a different judgment should have been rendered, or that the judgment as it stands should not be enforced, provided the party also shows that he was ignorant of such evidence and could not have discovered it in time to adduce it at the trial, by the exercise of due diligence, and that it is material and such as to affect the decision of the issue and not merely cumulative or additional to that which was introduced at the trial.” 23 CYC., 929 (1906). “There are cases in which equitable relief against a judgment may be obtained on the ground of newly discovered evidence. This rule prevails where the newly discovered evidence is material, where it is such as to make it appear with reasonable certainty that with its aid an opposite result would have been reached upon the trial, and where the unsuccessful party at the LIBERIAN LAW REPORTS 165 trial had no knowledge of the newly discovered evidence and could not have discovered it by the exercise of reasonable diligence.” 31 AM. JUR., Judgments, � 647 (1940) . In this case, the original document which one of the movents claims to be newly discovered evidence was in his possession all the time, according to his own admission contained in count 2 of his motion for relief, quoted earlier on in this opinion. It is, therefore, clear that had he searched diligently among his papers in his home, he would certainly have discovered the document, as he did do later. Why then didn’t he seek for and find this original before answering the suit, since its use at the trial was to be so important to him? In Harmon v. Republic, [1938] LRSC 4; 6 LLR 186 (1938), this Court said that a judgment must be vacated or set aside where new evidence is discovered or new facts occur after the judgment or too late to be presented on the trial, but the party must show that he was ignorant of such evidence and could not have discovered it in time to adduce it at the trial. It is, therefore, quite clear that the document which is the subject of the motion, and regarded as newly discovered evidence, cannot be so regarded, in view of the circumstances appearing on the face of the record. The next question to be resolved is : Did the judge err in denying the motion for relief from judgment? To entitle a party to relief from judgment it must be shown that he had exercised every degree of diligence in his own interest, and that there was sufficient reason why he could not have in a regular manner challenged the correctness of the judgment by appeal. He must also be able to show that his own conduct throughout had been free from fraud or questionable behavior. Otherwise, the judge would be justified in denying the motion for relief. “Right to Relief. A motion to vacate or open a judgment should not be granted unless it is shown that the 166 LIBERIAN LAW REPORTS judgment is unjust, as to the moving party, as it stands, or that he is actually or prospectively injured or prejudiced by it, that he will be benefited by the granting of the relief asked, and that the motion can be granted without material injustice or injury to the opposing party or prejudice to the intervening rights of third persons. Further, to entitle himself to this relief, the moving party must show a sufficient reason why he did not assert and enforce his rights at the proper time and in the regular manner, and that his own conduct throughout has been free from fraud or any turpitude, and he must free himself from all imputation of negligence or laches, for the judgment will not be disturbed if it appears to have been entered as a result of his own heedlessness, sloth, or lack of diligence in protecting his own interests.” 23 CYC., 594 (1906). “A motion to vacate or set aside a judgment will not be entertained when the proper remedy of the party aggrieved is by appeal, error, or certiorari.” Id., 89o. A motion for, relief from judgment is in the nature of a motion to vacate a judgment, so under the circumstances this citation will also apply in matters of relief from judgment. One of the fundamental principles upon which relief from judgment will be permitted is freedom from fault. “The general rule is that the party seeking equitable relief from the enforcement of a judgment must be without fault generally, or negligence in particular, and that such relief will not be granted where the matter complained of arose in any way from the negligence or carelessness of the complainant and could have been prevented by the use of reasonable diligence on his part. .. . This conclusion is not affected by the fact that the judgment is inequitable and relief therefrom in equity would be granted had the applicant not been guilty of negligence. It has been held to be negligence within the meaning of this rule for a party LIBERIAN LAW REPORTS 167 not to employ an attorney, not to ascertain when his case will be called for trial, not to be present thereat if necessary, or not to produce evidence which has been a matter of public record for a long period of time.” 31 Am. JUR., Judgments, � 685 (1940). We do not think that we need belabor this question any further ; it is our opinion that the judge did not err in denying the motion for relief from the judgment which could have been appealed, which appeal would have afforded the same relief sought by the motion. We repeat that had an appeal been announced at rendition of the final judgment, there would have been no necessity for the motion. In view of the fact that a previous motion to dismiss the appeal was found to be meritorious, and has already been granted; and since this motion for relief filed after final judgment has been found to be without merit, the ruling of the trial judge denying it is hereby upheld. The Clerk of this Court is ordered to send a mandate to the court below commanding the judge to resume jurisdiction and enforce the judgment in the case of cancellation. Affirmed.