LIBERIA TRADING AND DEVELOPMENT BANK (TRADEVCO), represented by its President, STEFANO ELLEGRINO, Petitioner, v. HIS HONOUR JOHN H. MATHIES, Judge, Debt Court and BRASILIA TRAVEL AGENCY, represented by its General Manager, REDA T. SAAD, Respondent.
PETITION FOR A WRIT OF PROHIBITION TO THE DEBT COURT FOR MONTSERRADO COUNTY.
Heard: October 28, 1998. Decided December 4, 1998.
1. Ordinarily, law issues are to be disposed of first, to be followed by trial of the facts, and thereafter, a court is authorized to enter final judgment. However, in the case of a declaratory judgment proceeding, which usually considers issues of law, unless there is disputed fact, the necessity for trial of the facts do not exist, and the trial court may enter judgment at the time of disposing of the issues of law without taking evidence regarding the facts.
2. The legal standard in a declaratory judgment proceeding is that declaratory judgment should not be entered if it will not terminate the controversy in dispute.
3. The law prescribes no particular formula for the contract involved in making a special deposit. But where a party opens two accounts the special nature of the deposit is inferred from the two accounts.
4. The obligation of contract shall be guaranteed by the Republic and no law shall be passed which might impair that right.
5. Under the laws of the Republic, courts cannot enforce a contract in a manner otherwise than expressed therein; nor can the Legislature make laws impairing the litigation of a contract.
6. Courts of records, within their respective jurisdictions, have power to declare rights, status, and other legal relations of parties, and such declaration may be either affirmative or negative, and shall have the force and effect of a final judgment.
7. A bank is not discharged from liability as a bank because of frustration of purpose or contract without changed conditions supervening during the terms of the contract or subsequent developments that excuse performance.
8. Changed conditions supervening during the terms of a contract may operate as a defense excusing further performance on the ground that there was an implied condition in a contract that such subsequent development should excuse performance.
9. The office of prohibition is to prevent an inferior court from assuming jurisdiction which is not legally vested in it, or to restrain the enforcement of a void judgment where no other remedy is available, or to prevent execution of a judicial order in the absence of or in excess of jurisdiction, or to prevent an inferior court proceeding by irregular means.
10. Prohibition will not lie where the petitioner has an adequate remedy of appeal, and prohibition cannot be used as a substitute for appeal.
11. Prohibition will not lie where the trial court has jurisdiction over both the subject matter and the parties, and has not proceeded by any irregular means.
12. The power of a trial court to grant declaratory judgment is discretionary and prohibition cannot be used to review the discretionary decision of the trial court in such proceedings.
13. INA decree no. 12 was promulgated as a safeguard against party litigants and their counsel who might want to delay the execution of a money judgment regularly rendered in keeping with due process of law, i.e. that where a debtor admits to the amount sued for and had his day in court, the judgment therefrom should be enforced notwithstanding an appeal.
14. INA decree no. 12 does not deprive a party of the right of an appeal but guarantees and appeal, except that two conditions are laid for an appeal serving as a stay: (a) that there is a dispute as to the debt, and (b) that a party was deprived of due process of law.
15. INA decree no. 12 does not violate the constitutional right of appeal; rather its prescription if in fulfilment of the constitutional responsibility given to the Legislature to prescribe rules and procedures for the easy, expeditious and inexpensive filing and hearing of appeals.
16. The failure of a party to take advantage of the statutory provision requiring that a party desiring a jury trial makes a demand therefor not later than ten days after the service of pleading or amended pleading shall be deemed as a waiver of the right, and the trial court commits no reversible error in proceeding to trial without a jury in the absence of such demand. Accordingly, prohibition will not lie where no reversible error is shown inn this regard.
17. Every money judgment shall bear interest from the date of its entry, and interest is recoverable upon every sum awarded because of a breach of performance of a contract because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of property.
Petitioner filed a petition for a writ of prohibition to prevent the debt court from executing on a declaratory judgment secured by Co-respondent Brasilia Travel Agency against petitioner. The co-respondent, which had opened two deposits accounts with the petitioner bank, one as a United States dollar account and the other as a Liberian dollar account, filed a petition for a declaratory judgment as to the currencies of the accounts which it held with the petitioner bank. The petition was filed after the petitioner had informed it that both of its accounts were in Liberian dollars and that all payment to it would be made in Liberian dollars, notwithstanding that the petitioner had prior to such information treated the two accounts as United States dollar and Liberian dollar accounts and had made payments to the co-respondent in United States dollars from the United States dollar account.
Following the exchange of pleadings and arguments on the petition, the debt court judge entered judgment in favour of the petitioner, holding that the accounts maintained by the corespondent with the petitioner bank were in United States dollars and Liberian dollars, and that the petitioner should payment in such currencies in the respective accounts along with the statutory interests. The petitioner excepted to the judgment but did not appeal therefrom. When the petitioner’s counsel refused to sign the bill of costs prepared by the clerk of court, same was approved by the trial judge and execution was thereafter issued against the petitioner for collection of the amount. It was the attempt to execute upon this judgment that petitioner sought a writ of prohibition.
The petitioner contended (a) that it had converted the corespondent United States dollar account into Liberian dollars because the National Bank of Liberia had done a similar thing with respect to its United States dollar reserve account held with that regulatory institution; (b) that the trial judge had disposed of issues of fact and entered final judgment thereon when disposing of the law issues in the case, and had thereby deprived petitioner of the right to a jury trial; (c) that INA decree no. 12 which allows enforcement of a judgment of the debt court notwithstanding the announcement of an appeal was unconstitutional; (d) and that the trial judge erred in adding interest to the amount of the judgment declaring that the co-respondent accounts were held in both united States and Liberian dollars.
The Supreme Court held that prohibition would not lie and therefore denied the petition. The Court held that prohibition would only lie to prevent an inferior court from assuming jurisdiction which is not legally vested in it, or to restrain the enforcement of a void judgment, or to prevent the execution of a judicial order in the absence or in excess of jurisdiction, or to prevent an inferior court from proceeding by irregular means. In the instance case, the Court, none of these conditions were present. The trial court, it said, not only had the power to entertain a petition for declaratory judgment, but that the exercise of that power in granting or denying the petition for declaratory judgment was discretionary, and that prohibition could not lie to review the exercise of that discretion.
Further, the Court said, the trial judge had not proceeded by any irregular means since, because declaratory judgment proceedings were concerned with law and could be entered where the facts are not in dispute, and also because the parties had not disagreed as to the facts, the trial court could enter final judgment on those facts in disposing of the issues of law. The Supreme Court opined that entry of such judgment by the trial court did not therefore infringe upon the prerogatives of the jury or violate the petitioner’s right to a trial by jury. In any event, the Court observed, the petitioner had not made a demand for a jury trial, as required by the statute; and, therefore, its failure must be treated as a waiver by it of the right to a trial by jury. Moreover, the Court said, the petitioner had failed to appeal from the judgment of the trial court. Prohibition, it said, would not lie where the remedy of appeal was available to the petitioner and that the remedial writ could not be used as a substitute for an appeal.
With regard to the justification given by the petitioner for converting the co-respondent from a United States dollar account to a Liberian dollar account, the Court noted that the petitioner had itself challenged the legality of the act of the National Bank of Liberia in converting its United States dollar reserves account to a Liberian dollar account and that the matter was still awaiting determination in the Civil Law Court for the Sixth Judicial Circuit. It therefore could not proceed to do the same act which it had challenged as illegal. Moreover, the Court opined, the fact that the National bank had done the act did not vest in the petitioner the right to do the same thing to the co-respondent. The Court added that in order for the petitioner to be excused from liability or performance under the contract in such a case, under the theory of frustration of the purpose of the deposit contract, it must have been shown that there were “changed conditions supervening” and that these had occurred subsequent to the contract. In the instant case, it said, the act of the National Bank of Liberia had occurred prior to the deposit contract and not subsequent thereto, and therefore could not have the effect of rendering impossible the performance of the deposit contract.
With regard to the contention of the petitioner that INA decree no. 12 which permitted the enforcement of a judgment on a debt notwithstanding the taking of an appeal from such judgment, the Court opined that the said decree was in furtherance of the power vested in the Legislature by the Liberian Constitution and not in violation of constitutional provision guaranteeing the right to an appeal, since the provision vested in the Legislature the power to prescribed rules and regulations for ensuring the expeditious and inexpensive pursuit of appeals. The decree, it said, guaranteed rather than violated the Constitution, setting two conditions for such appeal: (a) that the party was deprived of his day in court, and (b) that the debt was denied. In the absence of these factors, the Court said, an appeal could not serve as a stay to the execution of the judgment.
Hence, as the conditions for prohibition were not present to warrant the issuance of the writ, the Court denied the petition and ordered the enforcement of the judgment by the trial court.
Stephen B. Dunbar and J. Emmanuel Wureh of the Dunbar & Dunbar Law Offices appeared for petitioner. Pei Edwin Gausi of the Law Chambers of Gausi and Partners, in association with Frances T Johnson-Morrisof the Chambers of Frances Johnson-Morris & Associates, appeared for respondents.
MR. JUSTICE MORRIS delivered the opinion of the Court.
This case has traveled to this Court by means of the remedial process of prohibition intended to halt the execution of a judgment rendered by the Judge of the Debt Court for Montserrado County on April 27, 1998. The petition for the writ of prohibition was filed on April 3, 1998 by the Liberia Trading and Development Bank (TRADEVCO), petitioner herein, against His Honour John H. Mathies, Debt Court Judge, Montserrado County, and Brasilia Travel Agency, the respondents in this case.
The facts in the case, according to records before us, revealed that Co-respondent the Brasilia Travel Agency, through its General Manger, Reda T. Saad, instituted a petition for declaratory judgment against Liberia Trading and Development Bank (TRADEVCO) on October 22, 1997 in the Debt Court for Montserrado County.
Co-respondent Brasilia Travel Agency averred that in June 1989, it opened two separate accounts with the petitioner’s bank. One of the accounts was exclusively opened in United States dollars, and the other was opened in Liberian dollars. The two accounts were established to enable Co-respondent Brasilia Travel Agency to deposit income from the sale of air tickets into the said account; that is, all income generated in United States dollars was deposited in the United States dollar account exclusively, and income earned in Liberian dollars was deposits only into the Liberian dollar account. The records further show that subsequent to the establishment of the two separate accounts, the co-respondent started to withdraw in United States dollars currency beginning June 15, 1992, at which time a bank draft number 095929 in the amount of US$25,000.00 was transmitted in favor of Co-respondent Brasilia Travel Agency by the petitioner directly to France. The said amount was withdrawn from the United States dollar account of Co-respondent Brasilia Travel Agency. This was subsequently followed by five other withdrawals by the said co-respondent from its United States dollars account as follows:
August 31, 1992 -US$50,000.00
January 25, 1993 -US$70,000.00
October 6, 1993 -US$35,000.00
November 23, 1993 – US$49,427.00
May 20, 1994 -US$15,000.00
The above payments were made by the petitioner directly from the United States dollar account to co-respondent, either by bank draft based upon co-respondent’s instruction to petitioner, or by cash (in the case of the payment of US$10,000.00 in November 1994, a part of the total of US$15,000.00 paid in the same year, 1994, to co-respondent by the petitioner). However, petitioner’s contends that the payments made to Co-respondent Brasilia Travel Agency from the United States dollar account, were “ex-gratis payments”.
The controversy between the parties started with a letter dated August 3, 1997, in response to the co-respondent’s demand for payment of the balance being held in its United States dollar account by the petitioner. This letter was annexed to the petition for declaratory judgment in the court below as exhibit “I”. Paragraphs 3 and 4 of the said letter advised the co-respondent that the bank records show that the two accounts were both Liberian dollars accounts. For the benefit of this opinion, paragraphs 3 and 4 are hereunder quoted verbatim.
“Please be advised that according to bank records, Account No. 5122125 and account No. 5129785 are both Liberian dollar accounts.
Please be further advised that according to said bank records, the balance in account No. 5122125 as of July 31, 1997 is L$538,425.36; the balance in account No. 5129785 also as of July 31, 1997, is L$332,970.07”.
This letter was signed by Luigi Ciocca, Vice President of the petitioner’s bank, and it was addressed to Mr. Reda T. Saad, general manager of Co-respondent Brasilia Travel Agency.
The petition for declaratory judgment in the debt court was filed to declare the rights of the co-respondent respecting the currency in which petitioner should pay said co-respondent.
Petitioner then a filed a thirty-two count returns to the petition for declaratory judgment in the debt court. The relevant counts which claimed the attention of this Court are considered in this opinion. In count 4 of its returns, petitioner admitted that indeed Co-respondent Brasilia Travel Agency did open, in 1989, a Unite States dollar account and a Liberian dollar account with the petitioner bank. However, petitioner contends that in August 1995 when the National Bank of Liberia formally advised petitioner that its statutory and excess reserves accounts at the National Bank were payable in Liberian dollar, said petitioner could no longer continue to recognize co-respondent’s United States dollar account; instead, petitioner had to recognize corespondent’s United States dollar account as a Liberian dollar account also.
A motion for joinder of party was filed in the court below to join the National Bank of Liberia as the second respondent to the petition for declaratory judgment. The motion was resisted by Co-respondent Brasilia Travel Agency and thereafter argued before the debt court judge. On December 5, 1997, the debt court judge, Her Honour Amymusu K. Jones ruled on the motion for joinder of party denying the same.
Subsequently, the succeeding judge, His Honour John H. Mathies heard arguments on the petition. On April 27, 1998, Judge Mathies while ruling on the law issues, entered final judgment against the petitioner holding the petitioner liable for the amount of US$538.425.36, together with interest of 6%. The counsels for both the petitioner and Co-Respondent Brasilia Travel Agency were present in the debt court; yet, after the judge entered final judgment, petitioner’s counsel did not announce an appeal. Instead, petitioner’s counsel made the following exception on the record:
“To which ruling of Your Honour respondent excepts and hereby serve notice that it shall take vantage of the statute made and provided. And respectfully submits”
Following the entry of final judgment by the debt court, counsel for Co-respondent Brasilia Travel Agency applied for a bill of costs, which, on the same day, April 27, 1998, was prepared by the clerk of court for the total amount for US$646,210.41 and L$525.00. The bill of costs was taken to the counsels for petitioner for taxation on April 27, 1998, which was returned by the sheriff of the court on May 1, 1998 to the effect that the counsel for petitioner refused to tax bill of costs. The judge on May 1, 1998 approved the bill of costs for satisfaction. Subsequently, execution was prayed for by counsel of Corespondent, which was granted by the court and the execution was prepared. It was during the process of enforcing the satisfaction of the court’s judgment that petitioner fled to this Honourable Court with a petition for a writ of prohibition. The Chambers Justice ordered the alternative writ issued because the petition for writ of prohibition contained a constitutional question concerning INA decree No. 12. The petitioner contended that INA decree No. 12 violated the Constitution of Liberia in that said decree denied a party-litigant the right of appeal as enshrined in the Constitution of Liberia.
Perusing the petition, the Court finds that several issues were raised therein. However, for the purpose of this opinion, the Court will concern itself with only those issues that are material and germane to the determination of the case. Petitioner averred that the debt court erred in entering a declaratory judgment because said declaration does not terminate the controversy giving rise to the petition filed and for this reason, petitioner contended that the controversial issue is whether National Bank acted legally in unilaterally converting petitioner’s United States dollar reserves account to Liberian dollars. Petitioner also raised the issue of special and general deposits, and maintained that the nature of the deposit between it and Co-respondent Brasilia Travel Agency is a general deposit which presents a factual issue to be determined at trial. Also, petitioner contended that the relationship between petitioner and the co-respondent being one of debtor-creditor, a demand for payment was a necessary precondition for co-respondent before instituting the petition for declaratory judgment.
The petitioner further contended that it was denied the right to a trial by jury; that the trial judge proceeded by wrong rules when it failed and neglected to rule on all the issues of law; and that the trial judge invaded the province of the jury by passing on issues of facts. The petition for prohibition, according to the petitioner, was intended to enjoin, prohibit, and restrain the inferior court from assuming jurisdiction in a matter over which it lacked jurisdiction, from exceeding its jurisdiction in a matter over which it had jurisdiction, or from proceeding by wrong rules.
To this petition, the respondents filed a thirty-counts returns traversing the issues raised therein. The respondents contended that the petition for declaratory judgment was properly granted by the debt court judge because the issue which gave rise to the controversy was whether co-respondent should be paid in United States dollar currency or Liberian dollar currency from its United States dollar account, and that this issue was proper for declaratory judgment. On the question of the nature of the deposit (be it general or special), respondents contended that this was an issue of law which the court properly passed upon when it declared that the United States dollar account was a special deposit account.
Respondents further contended that INA decree No. 12 was constitutional. Regarding the issue of a jury trial, respondents contended that petitioner did not request for a jury trial. Concerning the payment of interest and the doctrine of frustration of contract, respondents contended that, as a matter of law, interest is assessed on every money judgment. Also, respondents contended that the action of the National Bank of Liberia occurred in 1988 against petitioner, and one year later, 1989, Co-Respondent Brasilia Travel Agency established two separate accounts with petitioner. Therefore, the doctrine of frustration of contract does not obtain in this case.
From the foregoing, the Court considers the following issues material to a determination of the case:
1. Whether the trial judge erred in entering final judgment during the disposition of the law issues in a proceeding for declaratory judgment, where the parties were in agreement with the germane issue giving rise to the controversy?
2. Whether or not, the action of the National Bank of Liberia against petitioner in 1988, in converting said petitioner’s statutory and excess reserve account into Liberian dollars may be used as a defense to deny co-respondent receiving United States dollars from its account established in 1989?
3. May prohibition be employed to halt the enforcement of a final judgment where the losing party had an adequate remedy of appeal?
4. Whether or not a demand by co-respondent to petitioner was legally required before instituting the action of declaratory judgment in the court below?
5. Whether or not INA decree No. 12 is constitutional?
6. When may a jury trial be requested by a party in a case?
7. Whether or not the trial judge erred in awarding interest when he entered final judgment in favor of the co-respondent?
In its petition for a writ of prohibition and its brief, the petitioner contended that the trial judge erred in have entering final judgment during the disposition of the law issues. This was also argued by counsel for petitioner during oral arguments before this Court.
The Court says that ordinarily law issues are to be disposed of first, to be followed by trial of the facts, and thereafter, a court is legally authorized enter final judgment. However, in the instant case, the situation is different because this is a declaratory judgment proceeding which usually considers issues of law. Unless there is a disputed fact, the necessity for trial of facts does not exist. The legal standard in a declaratory judgment proceeding is that declaratory judgment should not be entered if, it will not terminate the controversy in dispute. For reliance, Civil Procedure Law, Rev. Code 1: 43.5. In the case at bar, the issue in controversy between the parties was the currency of payment. It is a fact that the co-respondent opened two accounts in 1989 with the petitioner’ bank in two separate currencies; one exclusively in United States dollars, and the other in Liberian dollars. It is also a fact that beginning in June 1992 up to November 1994, co-respondent withdrew only United States dollars from its United States dollar account. These facts are agreed to by both parties; and this is buttressed in count 4 of the petitioner’s returns in the court below.
Given the above confirmed facts, was there any material issue of fact in dispute to have warranted a trial of facts? It is petitioner’s contention that the nature of the deposit (general or special), was a germane factual issue in dispute warranting the production of evidence. The Court disagrees with this contention, because the purpose and terms of the deposit made by the corespondent in 1989 was inferred from the declarations together with the conduct of both petitioner and co-respondent respecting said account. It is this that determined the nature of the deposit. The law prescribes no particular formula for the contract involved in making a special deposit. 10 AM JUR. 2d, Contracts, § 363. Therefore, when co-respondent opened two accounts with petitioner bank as stated supra, the special nature of the deposit was then inferred. It even became clearer from the conduct of the parties subsequent to the deposit, i.e., the corespondent received United States dollars beginning June 1992 from its United States dollar account, and that petitioner paid to the co-respondent only United States dollar currency from said United States dollar account up to 1994. The circumstances surrounding this account, coupled with the conduct of the parties fall within the legal characteristic of a special deposit, and does not require a trial of fact.
Considering that the currency of payment to Co-respondent Brasilia Travel Agency was a material issue for determination, we hold that the declaratory judgment entered by the court below was legal, especially since petitioner acknowledged on record that co-respondent’s United States dollar account was unilaterally changed by said petitioner after the National Bank of Liberia had committed a similar action against it.
The Court must observe that the reliance of petitioner on an act of the National Bank as a defense is inconceivable because the petitioner decried the action of the National Bank and referred to it as an illegal act. This illegal action is now being challenged by petitioner in the Civil Law Court for the Sixth Judicial Circuit Court. In addition, this Court holds that obligation of contract shall be guaranteed by the Republic and that no law shall be passed which might impair this right. Under our laws, courts cannot enforce a contract in a manner otherwise than expressed therein, nor can even the Legislature make a law impairing the ligation of a contract, much less the National Bank of Liberia or the petitioner in this case. For reliance, see Sherman v. Republic, [1881] LRSC 4; 1 LLR 145 (1881), text at 151 – 153; LIB. CONST., Art. 25 (1986).
Courts of records within their respective jurisdictions, have power to declare rights, status, and other legal relations of parties. Such declaration may be either affirmative or negative, and it shall have the force and effect of a final judgment. Civil Procedure Law, Rev. Code 1: 43.1.
Consequently, this Court holds that the judge did not err in entering final judgment during the disposition of the law issues because the judgment terminated the controversy over the currency of payment.
The second issue has been partially discussed above. As to that issue, i.e., whether petitioner may rely on the action of the National Bank, taken in 1988, to deny co-respondent from receiving United States dollar currency, the Court answers this question in the negative. Firstly, the co-respondent opened its two accounts in 1989, one year after the National Bank had converted petitioner’s statutory and excess reserves account from United States dollars to Liberian dollars. At the time the corespondent opened its accounts in 1989 the action of the National Bank of Liberia in 1988 was not made a part of the deposit contract between the petitioner and the co-respondent. We hold this view because there is no evidence in the records to prove otherwise. The second point to make is that if indeed petitioner considered the action of the National Bank of Liberia to be illegal, and for which said petitioner has instituted legal proceeding in the Sixth Judicial Circuit Court, then it was erroneous for the same petitioner to commit similar wrong against another party.
We hold that the action of the National Bank, as complained of by petitioner, does not affect the deposit contract relationship between said petitioner and the co-respondent. Also, the Court disagrees with petitioner’s contention that it was discharged from liability as a bank because of frustration of purpose or contract. The law on this subject states: “Changed conditions supervening during the terms of a contract sometimes operate as a defense excusing further performance on the ground that there was an implied condition in a contract that such a subsequent development should excuse performance or be a defense, and this kind of defense has prevailed in some instances even though the subsequent condition that developed was not one rendering performance impossible, some of the cases not referring in any way to impossibility. In such instances, where performance had not become impossible, but achievement of the object or purpose of the contract was frustrated, the defensive doctrine applied has been variously designated as that of ” frustration” of the purpose or object of the contract or “commercial frustration.” 17AM JUR. 2d., § 401, p. 847.
The Court takes cognizance of the key words used in the foregoing authority. Firstly, there must be a changed condition supervening; secondly, there should exist a subsequent development to excuse performance. Thus, the action taken by the National Bank of Liberia in 1988 against petitioner cannot be considered in 1989 to be a changed condition, supervening; nor can it be considered a subsequent development. In other words, since the deposit contract was executed in 1989 between petitioner and co-respondent, there has been no changed conditions supervening or any subsequent development. So, we hold that petitioner is not excused from performance.
The third issue is whether prohibition will lie in this case. The Court has consistently held that the office of prohibition is to prevent inferior court from assuming jurisdiction which is not legally vested in it. Lamco J. V. Operating Company v. Flomo et. el. [1978] LRSC 24; 27 LLR 52 (1978); Fazzah v. National Economy Committee et al.[1943] LRSC 2; , 8 LLR 85 (1943); to restrain the enforcement of a void judgment where no remedy is available. Kanawaty et al. v. King[1960] LRSC 66; , 14 LLR 241 (1960), to prevent execution of a judicial order in the absence or in excess of jurisdiction: Holt et al. v. Nimely[1965] LRSC 41; , 17 LLR 128 (1965); to prevent inferior court where it proceeds by irregular means. Dweh v. Findley et al.[1964] LRSC 23; , 15 LLR 638(1964).
Recourse to the petitioner’s petition and the brief shows that it contends that the trial judge proceeded by wrong rules when he entered final judgment during the disposition of the law issues and when it denied said petitioner the right to a jury trial, among other reasons. As already stated supra, the trial judge did not err in entering final judgment as he did. Besides, the petitioner had adequate remedy to appeal once final judgment was entered; therefore, prohibition will not lie as a substitute for appeal. Secondly, the trial judge had jurisdiction over the case both as to the subject matter and parties involved.
Also, the power of a court to grant declaratory judgment is discretionary. Civil Procedure Law, Rev. Code 1: 43.1. And prohibition cannot review a discretionary decision. Wilson v. Kandakai, [1973] LRSC 8; 21 LLR 452 (1973).
The fourth issue is whether a demand was legally required before the institution of the action of declaratory judgment in the court below. The Court says that recourse to the letter dated August 3, 1997, under the signature of petitioner’s vice president, the relevant paragraphs of which are quoted supra, reveal that a demand was not required because petitioner had stated in said letter that the two accounts of the co-respondent were Liberian dollar accounts.
The fifth issue presented is whether INA decree #12 is unconstitutional as contended by the petitioner INA decree #12 was promulgated in 1985 by the Interim National Assembly as a safeguard against party-litigants and their counsels who might want to delay the execution of a money judgment regularly rendered in keeping with due process of law. That is, where a debtor admits to the amount sued for, as in the instant case, and has had his day in court, the judgment therefrom should be enforced notwithstanding an appeal. Petitioner contended that said decree #12 is unconstitutional because, by prescribing that an appeal from a judgment of the debt court shall not serve as a stay to the enforcement thereof, it deprives a party of its right to an appeal, as in this case. To this contention, the Court says same is without merit because said Decree #12 guarantees appeal, except that two conditions are laid for an appeal serving as a stay. Secondly, a denial of an appeal imports that the decree per se does not permit a party to appeal. But, this is not what decree #12 prescribes. Hence, the decree is not unconstitutional. Let us see what Article 20(b) of the Constitution provides, so as to determine whether the decree conflicts with the Constitution.
“The right of an appeal from judgment, decree, decision, or ruling of any court or administrative board or agency, except the Supreme Court, shall be held inviolable. The legislature shall prescribe rules and procedures for the easy, expeditious, and inexpensive filing and hearing of an appeal.”
We hold that the requirements of an appeal as contained in decree #12, are in harmony with the Constitution of Liberia, the rationale being that the Constitution gives the Legislature expressed authority to prescribe rules and procedures for the easy, expeditious and inexpensive filing and hearing of appeal. So, to require that announcement of an appeal from a judgment of debt court shall not serve as a stay in the enforcement of said judgment except where a party was denied his day in court or where the amount of indebtedness is in dispute, is a fulfillment of a constitutional responsibility given to the Legislature. And since the INA at the time exercised legislative authority, it could farsightedly prescribe said rules and procedures for the easy and expeditious hearing of appeals from money judgments, as in the case at bar.
The sixth issue presented has to do with the contention of petitioner that it was denied a jury trial. Let us peruse the records to find out if said contention has merit. The records from the court below reveal that pleadings in the case rested with the filing of a returns to the petition for declaratory judgment. Subsequently, a motion for joinder of party was filed and resisted. Thereafter, the motion was denied. Then on April 8, 1998, the counsels for the parties appeared in the debt court to argue the law issues and they submitted to the court memoranda of law. On April27, 1998, the debt court gave its ruling on law issues during which final judgment was entered. There is no evidence in the records to show that petitioner requested for a jury trial, and that the request was denied by the court. It is only in the petition for a writ of prohibition that petitioner raised this issue for the first time.
The Court reiterates that declaratory judgment proceedings are usually issues of law, and a trial of factual issue is made when such issue is disputed. In that case, the judge has authority to hear and pass on such issue of fact in dispute, without a jury trial; except a request is specifically made for a jury trial. Civil Procedure Law, Rev. Code 1: 43.9, and Judiciary Law, Rev. Code 17: 4.11.
As already noted supra, there was no fact in dispute between the parties. There is also no evidence in the records to show the petitioner specifically requested a jury trial. The Court is therefore bewildered by the contention of petitioner on this issue.
Our Civil Procedure Law, at 22.1, provides that any party may demand a trial by jury of any issue triable by serving upon the other party a demand thereof not later than ten (10) days after the service of pleading or amended pleading. We hold that the failure of petitioner to take advantage of this statutory provision amounted to a waiver. Civil Procedure Law, Rev. Code 1: 22.1(4). Prohibition will not therefore lie because the court committed no reversible error.
The last issue is based on the contention of petitioner that the debt court judge erred in awarding interest on the amount of US$538,425.36, being the balance held by said petitioner for the co-respondent. The Court says every money judgment shall bear interest from the date of its entry. Civil Procedure Law, Rev. Code 1: 45.62. Since the Court below entered the final judgment on April 27, 1998, the interest commenced to run from said date. Furthermore, under our law, interest shall be recovered upon a sum awarded because of breach of performance of a contract, as in the instant case, or because of an act or omission depriving or otherwise interfering with title to, or possession, or enjoyment of, property. For reliance, see Civil Procedure Law, Rev. Code 1: 45.61(1). Besides, the bill of costs, dated April 27, 1998, approved by the debt court judge, included the interest of six percent (6%). Given that petitioner never appealed from this judgment, this Court is reluctant to sustain this contention because, as already stated, prohibition cannot be substituted for appeal.
WHEREFORE, and in view of the foregoing, it is the considered opinion of this Court that the petition for the writ of prohibition is hereby denied, the alternative writ should be and same is hereby quashed, the peremptory writ of prohibition is denied, and the judgment of the trial court is affirmed and confirmed with costs against the petitioner. The Clerk of this Court is hereby ordered to send a mandate to the court below ordering the judge presiding therein to resume jurisdiction over the case and to enforce its judgment against petitioner. And it is hereby so ordered.
Petition denied; judgment affirmed.
