ANTHONY TOGBA, Appellant, v. MOMBO SLEHWERRON, Appellee.

APPEAL FROM THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 12, 1973. Decided November 23, 1973. 1. In an action of ejectment, where the trial court proceeds with the trial of the action in the absence of defendant and his counsel who have walked out after counsel’s dispute with the trial judge during jury selection, a judgment against defendant will be reversed and the case ordered retried. 2. Where it appears to the Supreme Court that a trial was not conductd according to law, the Court will order a new trial. An action of ejectment was instituted against appellant. During the selection of a jury an altercation arose between the trial judge and defendant’s counsel. Defendant and defendant’s counsel thereafter walked out of court. Thereupon, the judge announced the case would be resumed next day. It appears that the trial was conducted before a jury in the absence of defendant and counsel. A judgment was rendered for plaintiff, and defendant appealed therefrom. The Supreme Court emphasized the incorrect procedure of the trial judge, noting his failure to have a notice of assignment served. The substantial impairment of defendant’s rights was also pointed out, and in consequence judgment was reversed and the case remanded for retrial. 0. Natty B. Davis for appellant. for appellee. Moses K. Yangbe MR. JUSTICE WARDSWORTH delivered the opinion of the Court. The above entitled cause of action of ejectment was entered in the Sixth Judicial Circuit Court, Montserrado 334 LIBERIAN LAW REPORTS 335 County, in the August 1971 Term. It would appear that the complaint was withdrawn and an amended complaint filed during the December 1971 Term of court. Defendant appeared and filed an answer, asking that the action of ejectment be dismissed for reasons set forth in said answer. Plaintiff filed his reply, concluding the pleadings. The court ruled the issues of fact to trial by jury and observed that where a suit in the nature of ejectment is joined with an action for the cancellation of a deed for the same property, the issues of facts involved are properly triable by a jury, and also noted therein that equitable defenses are admissible in actions in ejectment though no authority was cited. Appellant’s counsel, in argument, alluded to an altercation between the trial judge and appellant’s trial counsel, which does not appear in the record, as a result of which counsel and his client walked out of court, after which the court proceeded with the trial of the case in the absence of defendant and his counsel. The trial judge should not have proceeded with the trial of the case in the absence of the appellant�and his counsel, especially since written pleadings had been exchanged. The trial judge should have disciplined counsel, suspended the trial of the case, and granted appellant an opportunity to secure other counsel to protect his legal interest. By the action of the trial judge in this case the interests of the appellant have been made to suffer, for the appellant was not given an opportunity to exercise his right of challenge in the selection of the jury, and the witnesses who testified for the appellee could not be cross-examined, a right granted a party for the purpose of testing the motives, inclinations, and other attitudes of the witnesses who testify against him. In actions of ejectment where the title to real property 336 LIBERIAN LAW REPORTS is contested, the rights of a party should be especially safeguarded so as not to deprive him of his property without legal justification. Counsel for appellee contends that appellant’s bill of exceptions should not be considered because there was no exception noted by appellant against the verdict of the jury. Appellant’s counsel explained that the reason why no exceptions were taken is that he took no part in the case and at the time the verdict was returned by the jury he was not counsel. Be that as it may, we are of the considered opinion that appellant was not given a fair opportunity to prosecute his interests in this case in the lower court, for the reason that when the case was suspended on April 1o, after appellant and counsel walked out of court, the judge announced the case would be resumed the following day. A regular notice of assignment should have been issued for the appellant to appear and protect his legal interests in person, or to give him an opportunity to retain the services of another lawyer. The trial judge erred in proceeding with the case as he did. In Bey-Solow v. Gordon, [1913] LRSC 4; 2 LLR 95 (1913) , the Supreme Court held that when a cause comes to an appellate court for review, and it is discovered upon the face of the records that such cause was not conducted according to law, the appellate court will grant a new trial. Therefore, in view of the foregoing, it is hereby adjudged that the final judgment in this case should be and is reversed and the case remanded to the trial court for a new trial, with costs against appellee. It is so ordered. Reversed and remanded.