GLADYS M. VINCENT-HARDING, Appellant, v. PROFESSOR C. J. E. HARDING, Appellee.

APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: December 11, 1984. Decided: January 11, 1985.

1. Where a present case and a previous case are distinguishable, the principle of res judicata is inapplicable.
2. Where judgment is handed down in an ancillary action between the same parties and involves the same points in the main suit, the law stated in the ancillary suit becomes the law of the case and bars re-litigation of the identical contentions that were previously settled in the prior or ancillary case.
3. Where there is another action pending between the same parties for the same cause in a court in the Republic of Liberia, the subsequent suit between the same parties for the identical cause must be abated for want of jurisdiction.
4. Although the same action pending in a Liberian court is also pending in a foreign court between the same parties, this does not make section 11.2 of the Liberia Civil Procedure Law applicable since the foreign court is not a Liberian court. As such, the suit pending in the Liberia court will not be abated.
5. The Supreme Court only decides issues raised in the bill of exceptions and supported by the trial records.
6. Where there is no complaint against the lower court in connection with the evidence, the Supreme Court is precluded from passing upon such evidence adduced at the trial.

In an action of divorce for incompatibility of temper brought by the appellee against the appellant, the appellant, in her answer, pleaded the doctrine of lis pendens, contending that the same action involving the same parties, was pending in the High Court in Sierra Leone, a foreign jurisdiction. Following the rest-ing of pleadings, and the disposition of the law issues, several assignments were made for hearing of the case. When, after a number of postponements at the request of the defendant, and the failure of defendant’s counsel to appear for the hearing of the case even though served with a notice of assignment, the trial

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court, upon application of the plaintiff, entered a judgment by default and proceeded to trial of the case.

However, prior to the rendition of final judgment, the defendant, appellant herein, applied to the Supreme Court for a writ of prohibition. The petition was heard and denied, and issuance of the writ refused. Thereafter a mandate was sent to the trial court to resume jurisdiction of the case and to proceed to enter a final decree. A decree having been entered in favor of the plaintiff, appellee herein, an appeal was taken therefrom to the Supreme Court.
On appeal, the appellee argued that the appellant was estopped from raising in her bill of exceptions and brief the same contentions raised in the petition for a writ of prohibition, which had already been heard and determined by the Supreme Court. The appellee contended also that under the principle of res judicata, the appeal should be dismissed.
The Supreme Court, while admitting that the contentions raised in the divorce action on appeal were similar to those raised in the prohibition proceedings, held nevertheless that the two cases were distinguishable, and that as such, the traditional doctrine of res judicata was not applicable. Instead, the Court said that the doctrine which was applicable was the “law of the case”, under which issues of law decided in a case become the law of the case, and hence would not be re-examined at a subse-quent stage of the case. The Court thus opined that as the points decided in the prohibition proceedings and the judgment on those points had became the law of the case, they were precluded from re-litigation. The Court therefore dismissed the contentions in the bill of exceptions and the appellant’s brief which had already been decided in the prohibition proceedings.

The Court, however, proceeded to review and discuss the issue of lis pendens, which it considered to be a new issue. The Court acknowledged that under section 11.2(d) of the Civil Procedure Law of Liberia, where there is another action pending between the same parties for the same cause in a court in Liberia, any subsequent suit between the same parties for the identical cause must be abated for want of jurisdiction. It maintained, however that the quoted provision of the Liberian Civil Procedure Law was not applicable to the instant case since the law applied only to suits in Liberian courts and not suits in foreign courts. The High Court of Sierra Leone– in which the earlier suit remained pending at the time the later suit was commenced in Liberia–was not a Liberian court. Hence, the pendency of the action in that court did not preclude the Liberia courts from entertaining the same action involving the same parties, the same issues and the same principles. The Court therefore dismissed the contention, disallowed the appeal and ordered the trial court to resume jurisdiction of the case and enforce its final decree.

The Gibson and Gibson Law Firm appeared for the defend-ant/appellant. The Tubman Law Firm appeared for the plaintiff/ appellee.

MR. JUSTICE YANGBE delivered the opinion of the Court

This is an action of divorce for incompatibility of temper brought by the plaintiff/appellee against the defendant/appellant in the Sixth Judicial Circuit, Montserrado County, Republic of Liberia. An answer was filed by the defendant/appellant in which the rights of the plaintiff/appellee to recover against her were denied. Among the issues raised in the answer was the contention of lis pendens. In putting forth this issue for deter-mination, the defendant/appellant proferted sundry documents in a prior action of divorce for adultery brought against the plaintiff/appellee in the High Court of Sierra Leone involving the same parties. To this answer, a reply was filed wherein the defense of lis pendens was denied. On the 25th of January 1982, the issues of law tendered in the pleadings by both sides were decided and the factual contentions ruled to trial, with exceptions from the defendant/appellant being noted.

During the June 1983 Term of the court below, a motion for continuance, predicated upon the absence from the Republic of Liberia of defendant/appellant, was filed by defendant, request-ing the court to defer the case until the September 1983 Term. The motion was opposed, but the resistance was overruled and the case continued until the September 1983 Term. When the court opened for the September 1983 Term, the case was again assigned for evidentiary hearing, and the lawyers on each side acknowledged the notice of assignment. Again counsel for appellant obtained a writ of subpoena for the defendant/ appellant to testify on her own behalf at the scheduled trial. The subpoena was again returned not served because the defendant/ appellant was not within the bailiwick of the Republic of Liberia. Whereupon, another motion for continuance was filed by the defendant/appellant, based upon the absence of the defendant/appellant, as evidenced by return to the subpoena. The motion was again resisted, and at this time the resistance was sustained. Although counsel for defendant/appellant was served with the notice of assignment for trial of the case on the 2nd of November 1983, at 8:30 a.m. he failed to appear, as per the notice. The plaintiff/appellee therefore moved the trial court to consider the absence of the counsel for the defendant/appellant as an abandonment pursuant to Rule 7 of the Revised Rules of the Circuit Court. The application was granted and the court ordered the case proceeded with. The case culminated in a verdict against the defendant/appellant. However, prior to the rendition of a final decree, defendant/appellant fled to our Chambers with a petition for a writ of prohibition. Consequently, the rendition of the final decree was halted. After due hearing, the petition was denied and an appeal was announced to this Court en banc.
This Court reviewed the ruling of the Justice in Chambers in
the prohibition and confirmed same during our March 1984 Term. The Court ordered the court below to resume jurisdiction in the main case of divorce and to render a final decree in accordance with the evidence. The mandate was obeyed and a decree was entered in favor of the plaintiff/appellee. From that final decree, the defendant/appellant again appealed to this Court for a final review and determination of the case.

The defendant/appellant has submitted an eight-count bill of exceptions which was simplified in an eight-count brief which was vigorously argued before this Bench. In countering the argument of the defendant/appellant, plaintiff/appellee argued that the contentions of the defendant/appellant, as contained in the bill of exceptions and her brief, are identical to the points of argument already decided by this Court in the prohibition proceedings during its March 1984 Term. Therefore, plaintiff/ appellee states, defendant/appellant is estopped from raising and arguing those same points in this appeal.

Recourse to the opinion and judgment of this Court rendered April 10, 1984 in the prohibition proceedings between the same parties herein clearly show that the argument of plaintiff/ appellee is well supported by the records in both cases, except in counts 4 & 5 of the bill of exceptions and defendant/ appellant’s brief in the instant case, in which the issue of lis pendens is asserted and argued before this Court. The two causes of action, that is, the prohibition and the action of divorce for incom-patibility of temper are distinguishable; the former concerns the procedure adopted by the court below during the pendency of the parent case before it and the latter relates to the main case of divorce for incompatibility of temper. Consequently, the traditional doctrine of res judicata will not apply. Phelps v. Williams, [1928] LRSC 14; 3 LLR 54 (1928). However, related to but distinct from the rules of res judicata is the “law of the case” doctrine, which is that a determination of an issue of law at one stage of the case becomes the “law of the case” and will not be re-examined at a subsequent stage of the case. The most common application of this rule is where the issue in a case has once been considered on an appeal, and on remand of the case and further proceedings in the lower court, the case comes up again in a subsequent appeal. Bray v. Cox, 38 NY 2d 350, 379 NY 2d 803, 342 NY 275 (1976). The opinion and judgment of this Court handed down between the same parties herein that we have cited earlier, having discussed and decided the same points of arguments involving the same parties in this divorce suit and the prohibition proceeding, our opinion and judgment in the prohibition proceeding has become the ”law of the case”. Hence, the single suit preclusion principle bars re-litigation of the identical contentions that were previously settled in the prohibition between the same parties herein. We will, nevertheless, address ourselves to the only strange contention of lis pendens, raised in count 4 of the bill of exceptions and count 5 of the brief of the defendant/appellant. However, before discussing the merits of the lis pendens contention, we shall reiterate the peculiar circum-stances surrounding the trial of the divorce case in the court below which we deem significant.
On the date the main case of divorce was called for jury trial, same being November 2, 1983, the plaintiff/appellee charged defendant/appellant with abandonment, and, pursuant to Rule 7 of the Revised Rules of Circuit Court, applied to the court to proceed with the hearing of the case. The application was granted and the case proceeded with, culminating in a final judgment in favor of the plaintiff/appellee. As a consequence of proceeding with the trial of the case in the absence of the defendant, the defense raised in the answer by the defendant was not probed into. The ruling of the lower court was upheld in the prohibition, mentioned supra.
Assuming for the purpose of this case that there is another action pending between the same parties for the same cause in the High Court of Sierra Leone, our law, as recorded in the Rev. Code 1 :11.2(d), is that where “there is another action pending between the same parties for the same cause in a court in the Republic of Liberia”, the subsequent suit between the same parties for the identical cause must be abated for want of jurisdiction. The prior action of divorce for adultery, allegedly pending in the Higher Court of Sierra Leone between the same parties herein, is not pending in any court within the Republic of Liberia. Therefore, count 4 of the bill of exceptions and count 5 of the brief of the defendant/appellant are not sustained. Hence, the ruling of the court below in this respect is upheld by this Court.

The bill of exceptions in this case contains only dilatory pleas, which, at this level, we cannot entertain since we must confine ourselves to the bill of exceptions. Civil Procedure Law, Rev. Code I :51.7. This Court has held on numerous occasions that it can only decide issues that are raised in the bill of exceptions and supported by the trial records. Urey v. Republic, [1936] LRSC 7; 5 LLR 120 (1936) and Clark v. Barbour, [1909] LRSC 1; 2 LLR 15 (1909). Hence, we are precluded from passing upon the evidence adduced at the trial, there being no complaint against the lower court in connection therewith. Moreover, we have already dealt with all of the procedural issues raised in this appeal.
Accordingly, the judgment of the trial court is affirmed and the appeal is disallowed. The Clerk of this Court is ordered to send a mandate to the court below ordering the tribunal therein to resume jurisdiction and enforce its final decree. Costs are disallowed. And it is so ordered.

Judgment affirmed; appeal disallowed.