SHEIK KAFUMBA KONNEH, Attorney-In-Fact for ANSUMANA DUKULY, Petitioner, v. HIS HONOUR HALL W. BADIO, Assigned Circuit Judge, presiding over the September Term, A. D. 1992, of the Civil Law Court, Sixth Judicial Circuit and MORRIS JACKSON, Respondents.
APPEAL FROM RULING OF THE CHAMBERS JUSTICE GRANTING THE PETITION FOR THE ISSUANCE OF A WRIT OF PROHIBITION.
Heard: April 30, 1994. Decided: September 22, 1994.
1. The principle governing summary proceedings to recover possession of real property is slightly different from ejectment action. So long as neither or only one of the parties has legal or paper title, summary proceedings is not destroyed.
2. The term or phrase “title is involved” means that both plaintiff and defendant have and exhibit paper or fee simple title and therefore if only one of the parties exhibit legal title, and the other exhibits no paper, but pleads possessory right, the principle governing the term title involved cannot be applied,
3. Prohibition is a special proceeding to obtain a writ ordering the respondent to refrain from further pursuing a judicial action or proceeding as specified therein. It is principally directed against a tribunal rather than against the party to the parent case.
4. Prohibition is the proper remedial process to restrain an inferior court from taking action in a case beyond its jurisdiction or having jurisdiction the court has attempted to proceed by rule different from those which ought to be observed at all times.
5. Whenever an action of summary proceedings to recover possession of real property is instituted, and the question of title is put in issue, the case is taken from the category of summary proceedings to that of an action of ejectment which, in most cases, contains both issues of law and fact triable by a jury under the direction of the court.
6. A judge sitting alone lacks jurisdiction to hear and decide the issue of title without the aid of jury, except he was so expressly requested by the parties who must expressly waive jury trial. He can only hear and decide the right of possession and not title.
7. In an action to recover possession of real property, a hearing is mandatory and any question of fact shall be tried by jury.
8. Where there is no statute or precedence to support an act of an inferior court, prohibition will lie if it can be shown that such an act adversely affects the rights of the petitioning party.
9. Although prohibition is usually used as a remedy where a tribunal has unwarrantedly assumed or exceeded its jurisdiction, it will also lie where a tribunal has proceeded by rule contrary to, or different from those which regularly obtain in the disposition of such cases.
Co-respondent, Morris Jackson, filed an action of summary proceedings in the Monrovia City Court, against one Larsanah Kennedy, to recover possession of a piece of property located in the City of Monrovia. The defendant, Larsanah Kennedy, who then was a tenant of Ansumana Dukuly, the title owner, moved the court to join Sheik Kafumba Konneh, the attorney-in-fact for Ansumana Dukuly. The motion to join was granted. When Sheik Kafumba Konneh appeared, he challenged the jurisdiction of the Magistrate Court to hear and determine the matter in that title was involved. The Magistrate conceded the argument and dismissed the proceedings, from which ruling respondent/ plaintiff, Morris Jackson, announced an appeal. While the appeal was pending undetermined, respondent Morris Jackson instituted another summary proceedings action, but this time, in the Civil Law Court, Sixth Judicial Circuit, against petitioner Sheik Kafumba Konneh, attorney-in-fact for Ansumana Dukuly, to recover possession of the same property subject of the action on appeal. Petitioner appeared and moved the court to dismiss the summary proceedings on grounds that: (1) another action was pending undetermined in the said court concerning the same subject matter and between the same parties; (2) that title was at issue which could not be decided by summary proceedings; and (3) that Morris Jackson, the plaintiff, had no capacity to maintain the action since he had no title to the subject property. The court denied the motion to dismiss, entertained argument on the issues of law raised in the pleadings, and in ruling thereon, dismissed the defendant’s answer, entered final ruling in favor of plaintiff, and ordered the issuance of a writ of possession to evict and oust the defendant and put plaintiff in possession of the subject property. Petitioner excepted to this ruling and subsequently applied to the Justice in Chambers of the Supreme Court for a writ of prohibition. The Chambers Justice granted the peremptory writ from which respondent Morris Jackson appealed to the full bench.
The Supreme Court, upon review of the records, opined that the rule which obtains in our jurisdiction in real property actions is that whenever an action of summary proceedings to recover possession of real property is instituted, and the question of title is put in issue, the case is taken from the category of summary proceedings to that of an action of ejectment, which, in most cases, contains both issues of law and fact triable by a jury under the direction of the court; and that a judge, sitting alone, lacks jurisdiction to hear and decide the issue of title without the aid of jury, except where he is so expressly requested by the parties who must expressly waive jury trial In the instant case, the Supreme Court found that the judgment in favor of plaintiff was entered even though plaintiff did not profert any kind of evidence of title to his complaint as a proof; even though the defendant’s fee simple title to the subject property was proferted to his answer; and without taking evidence, all of which were contrary to rules which ought to be observed at all times. Hence the court held that prohibition will lie. Accordingly, the Full Benchaffirmed the ruling of the Chambers Justice granting the petition.
Eugene D. M Freeman appeared for petitioner. McDonald Krakue appeared for respondents.
MR. JUSTICE SMITH delivered the opinion of the Court.
These proceedings grew out of an action of summary proceedings to recover possession of real property sued out by Morris Jackson against Sheik Kafumba Konneh, attorney-in-fact for Ansumana Dukuly, in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County.
The records reviewed by us in the proceeding disclosed that Morris Jackson originally filed summary proceedings against one Larsanah Kennedy, to recover possession of the property, subject of this prohibition proceedings in the Monrovia City Court where the defendant moved to join Sheik Kafumba Konneh who is the attorney-in-fact for Ansumana Dukuly, the title owner of the property, as he was only a tenant of the said Ansumana Dukuly. The motion to join was granted without objection and Sheik Kafumba Konneh, the attorney-in-fact, was made a party-defendant. Co-defendant Sheik Kafumba Konneh appeared and raised the issue of title and moved for the dismissal of the proceedings on jurisdictional grounds. The Magistrate granted the motion and dismissed the action. Plaintiff Morris Jackson excepted to the ruling and announced an appeal which was granted. There is no showing in the records that the appeal was heard or withdrawn; hence, it must be accepted that the appeal is still pending undetermined.
While this appeal was pending, undetermined, the said Morris Jackson instituted an action of summary proceedings to recover possession of the same real property, this time against the codefendant Sheik Kafumba Konneh in the Civil Law Court for the Oh Judicial Circuit, Montserrado County. The defendant moved the court to dismiss the summary proceedings on grounds that: (1) another action was pending in the said court concerning the subject matter and between the same parties, undetermined; (2) that title was in issue which could not be decided by summary proceedings, and (3) that Morris Jackson, the plaintiff, had no capacity to maintain the action he not having any title to the subject property.
For the benefit of this opinion, we quote a relevant portion of the respondent judge’s ruling on the defendant’s motion to dismiss the proceedings:
“We observed, of course, from the magisterial court’s records before us that the case was instituted by Morris Jackson against Ansumana Dukuly; and Kafumba Konneh was joined by the magistrate as party defendant. Furthermore, we observed that the magistrate dismissed that case and ordered it transferred to the Civil Law Court since the defendant contended that title was involved.
Because the defendant herein continues to contend or in fact advance the legal issue that title is involved and since the issues concern individual’s rights and property, we consider it constitutionally, and in fact legally, right that the contention be thoroughly investigated to determine each party’s legal right.
It is our ruling therefore that the motion be set aside and the case ordered heard to determine the rights of such party. In other words, at the trial we will be able to determine truly whether or not the parties have rights to advance the issues of title. Motion is therefore ordered set aside. AND IT IS HEREBY SO ORDERED.”
After the denial of petitioner’s motion to dismiss, the co-respondent judge heard the issues of law raised in the pleadings, dismissed the petitioner’s answer and at the same time entered final ruling, finding for the plaintiff and ordered the issuance of a writ of possession to evict and oust the defendant and put plaintiff in possession of the subject property without hearing evidence. We shall say more on this ruling later in this opinion. It is interesting to note here, however, that as the co-respondent judge himself observed in his ruling on the law issues, Ansumana Dukuly had, previous to the institution of the action of summary proceedings, filed an action of ejectment in the said Civil Law Court on March 26, 1986 against Morris Jackson concerning the same subject matter which action was still pending in the court undetermined, yet in his ruling in the action of summary proceedings, the said co-respondent judge attempted to evict and oust Ansumana. Dukuly, the plaintiff in the ejectment action, still pending, and put the defendant in ejectment in possession of said property, which was the subject of the summary proceedings, without taking evidence. For the benefit of this opinion, we quote hereunder relevant portions of the respondent judge’s ruling on the legal issues raised in the pleadings:
“Undoubtedly the issues of law raised or outlined in the respective pleadings, especially the answer, were repeated in the defendant’s motion to dismiss. Some of those issues we discussed briefly and determined in accordance with records available; and others, we left opened for future and more detail discussion and legal determination.
Now, prominent among the issues raised and left open, is the issue which concerns the parties individual rights to the property in question. Paragraph four of our ruling on the motion to dismiss mentioned constitutional and statutory rights of the parties to be investigated thoroughly. In essence, summary proceedings to recover possession of real property embraces all property rights of the party, it involves all matters that occurred in the judicial prognosis. The principle governing summary proceedings to recover possession of real property is slightly different from ejectment action. In other words, so long as neither or only one of the party has legal or paper title, summary proceedings is not destroyed. The term or phrase “title is involved” means that both plaintiff and defendant have and exhibit paper or fee simple title and therefore if only one of the parties exhibit legal title, and the other exhibits no paper, but pleads possessory right, the principle governing the term title involved can not be applied. Stubblefield v. Smith, [1963] LRSC 32; 15 LLR 338(1963). Now, we mention about the parties’ constitutional rights because a protection of property rights finds it warrant in the expressed policies of our Constitution and that provision forbids an individual depriving another of property without due process of law…”
Now on November 27, 1987 Minister G. Alvin Jones informed Morris Jackson thru written communication that the President has directed Ansumana Dukuly to take possession of the house thus attempting to oust Morris Jackson. We share Assistant Minister Martin’s comments that President Doe had in 1987 lost his marshal law authority on January 6, 1986 when the Constitution of Liberia came into effect and therefore he nor any official of government could legally evict any citizen or resident from any premises or property; that of course was the responsibility of this court. These issues we are now discussing in detail were raised and argued extensively and persuasively by defendant’s counsel.
Now since indeed these issues respecting the right of Morris Jackson, the representative of Susannah E. Williams and Ansumana Dukuly, Kafumba Kormeh’ s principle in the property on block 23 had been decided in 1983, we would be violating that portion of the Constitution which provides in Article 97 that “no Executive, Legislative, Judicial or Administrative action taken by the People’s Redemption Council or by any person, whether military or civilian, in the name of the Council pursuant to any of its decree shall be questioned in any proceeding whatsoever; and accordingly, it shall be unlawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such action.
In view of these citations and the legal consequences and implication, also the law controlling and cited especially Article 97 of the Constitution, it is our ruling that the answer filed by the defendant be and the same is hereby dismissed.
Since indeed this matter had been heard and the physical position of the property investigated by official agents of the People’s Redemption Council and the decision made by the Head of State of that Council in August 1983, and also confirmed in 1986, thus necessitating the cancellation by orders of Chief Justice Nagbe, the action of ejectment filed by Ansumana Dukuly against Morris Jackson in 1986 thus again, placing Mr. Jackson in absolute possession of subject property on block 23, we hereby rule further that Morris Jackson is the rightful owner of subject property and must enjoy that right and also the mandate of the Supreme Court of Liberia dated June 20, 1986 must be obeyed by us and the relevant ruling of this Court repeated to the letter.
AND IT IS HEREBY SO ORDERED.
GIVEN UNDER MY HAND AND SEAL
OF COURT IN OPEN COURT, THIS 5TH
DAY OF FEBRUARY, A.D. 1993.
t/Hall W. Badio, Sr.
s/Hall W. Badio, Sr.
ASSIGNED CIRCUIT JUDGE PRESIDING.
This ruling does not address the pertinent issues of lis pendens and the issue of the capacity of the plaintiff to maintain the action not having title of any kind. The answer and the motion in which these legal issues were raised were dismissed and according to the ruling, the co-respondent judge was of the opinion that the defendant having shown title in his principal, Ansumana Dukuly, and the plaintiff not having shown title, there was not sufficient ground to take the case from the category of summary proceedings to an action of ejectment. He therefore, without the production of evidence by the parties, entered final judgment in favour of the plaintiff, Morris Jackson, who did not show title of any kind to the property against the title of the defendant, citing for reliance Article 97 of the Constitution as basis of his holding. During the administration of the PRC Government, the then Head of State and Chairman of the PRC had given possession of the property to Morris Jackson on August 10, 1983, which decision, under Article 97 of the Constitution according to the co-respondent judge, could not be reviewed by the courts. The co-respondent judge, although he referred to the President’s instruction revoking his said previous decision and dispossessing Morris Jackson of the property, and repossessing Ansumana Dukuly, with the advice that the question of title and ownership of the property was a proper subject for a determination by a court of law, yet the corespondent judge by-passed the later instruction as contained in the two letters which are part of the record of his court in the case, dated November 27 and December 1, 1987, under the signature of the Minister of State for Presidential Affairs, by directives of the President, and addressed to the said Morris Jackson and the Minister of Justice respectively. However, our concern being whether or not prohibition would lie to restrain and prohibit the enforcement of the final judgment and not to review an appeal on the merits, we proceed from here to determine whether prohibition will lie or not.
Prohibition is a special proceeding to obtain a writ ordering the respondent to refrain from further pursuing a judicial action or proceeding specified therein. It is principally directed against a tribunal rather than against the party to the parent case. Civil Procedure Law, Rev. Code1:16.21; and Dweh v. Findley, [1964] LRSC 23; 15 LLR 638 (1964). Prohibition is the proper remedial process to restrain an inferior Court from taking action in a case beyond its jurisdiction or having jurisdiction the court has attempted to proceed by rule different from those which ought to be observed at all times. It affords a remedy or makes good a defect. Packer v. Worrell, [1925] LRSC 9; 2 LLR 525 (1924).
The question for our determination is whether or not from the circumstances attending this case as outlined herein above, the court has jurisdiction over the case; or, having jurisdiction, whether it exceeded its jurisdiction by attempting to proceed by rule different from those which ought to be observed at all times. The rule which obtains in our jurisdiction in real property actions is that whenever an action of summary proceedings to recover possession of real property is instituted, and the question of title is put in issue, the case is taken from the category of summary proceedings to that of an action of ejectment which, in most cases, contains both issues of law and fact triable by a jury under the direction of the court; but a judge sitting alone lacks jurisdiction to hear and decide the issue of title without the aid of jury, except he was so expressly requested by the parties who must expressly waive jury trial. He can only hear and decide the right of possession and not title. Prohibition will therefore lie to restrain such attempt. Wulah v. Wright and The Church of the Living God, [1993] LRSC 20; 37 LLR 271 (1993), Opinions of the Supreme Court, March Term, 1993. The co-respondent judge, in disposing of the issues of law in this case, dismissed the defendant’s answer, and instead of ruling the case to trial on the complaint of the plaintiff, in which case the defendant would be entitled to cross-examine the plaintiff’s witnesses and produce evidence, proceeded to enter final judgment in favour of the plaintiff. The judgment in favor of plaintiff was entered even though plaintiff did not profert any kind of evidence of title to his complaint as proof and despite the defendant’s fee simple title to the subject property, proferted to his answer, and without taking evidence, all of which were contrary to the rule which ought to be observed at all times. The action of summary proceeding to recover possession of real property is a possessory action, and where the plaintiff is claiming possessory rights, and the defendant is claiming under fee simple title as in this case, justice and fair-play dictate that a hearing be had and each party be allowed to present evidence to establish his claim to the property. But where a judge assumes the function of both court and jury to decide the issue of title, he has indeed proceeded contrary to the rule which ought to be observed at all times and, therefore, prohibition will lie. In an action of ejectment or where title is put in issue in an action of summary proceedings to recover possession of real property, the question of title, which is a question of fact, must be tried by a jury. As the law requires, in an action to recover possession of real property, a hearing is mandatory and any question of fact shall be tried by jury. Larsannah v. Passawe, [1961] LRSC 42; 14 LLR 599 (1961); Civil procedure Law, Rev. Code1:22.1(1) and 42.2.
When the co-respondent judge ruled on the law issues, dismissing the defendant’s answer and failed to pass on all the legal issues raised in the answer and the motion to dismiss, defendant excepted and gave notice that he would take advantage of the statute. The plaintiff, in the meantime, moved the Court for the issuance of a writ of possession which was granted. We cannot bring ourselves to agree with the co-respondent judge entering final judgment in his ruling on the issues of law without trial of the facts which is normally the rule obtained in this jurisdiction, especially in a real property action where title was put in issue; and for him to order the issuance of a writ of possession to dispossess a fee simple title owner and put the plaintiff in possession upon his claim of possessory rights which was not established by the production of evidence. The aforesaid was an action contrary to the rule which ought to be obtained in this jurisdiction; therefore, prohibition will lie. Where there is no statute or precedence to support an act of an inferior court, prohibition will lie if it can be shown that such an act adversely affects the rights of the petitioning party. Dweh v. Findley, [1964] LRSC 23; 15 LLR 638 (1964). In this case, it is clearly shown that the petitioner who had presented his fee simple title with his answer, was ordered dispossessed of his property to be given to the plaintiff, whose claim was based on the right of possession without taking the stand to present evidence as to his possessory rights. Although prohibition is usually used as a remedy where a tribunal has unwarrantedly assumed or exceeded its jurisdiction, it will also lie where a tribunal has proceeded by rule contrary to, or different from those which regularly obtain in the disposition of such cases. Id.. The unnecessary and illegal issuance of a writ of possession which would affect the property rights of the petitioner is sufficient legal ground for the application for a writ of prohibition. Davis-Johnson v. Morris, 13 LLR 573, 584. (1960).
WHEREFORE, and in view of all that we have narrated herein above, and the citations of law in support, it is our considered opinion that the ruling of the Chambers Justice be, and the same is hereby confirmed and affirmed with costs against the respondents.
The Clerk of this Court is hereby ordered to send a mandate to the court below commanding the judge therein presiding to resume jurisdiction over this case, set aside the ruling of Judge Badio dismissing defendant’s answer and motion to dismiss and proceed to hear and dispose of the issues of law raised in the answer and motion to dismiss and rule thereon. And it is hereby so ordered.
Petition granted; ruling affirmed.