HAFEZ M. JAWHARY, Appellant, v. GHASSAN HASSOUN, Appellee.

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

Heard: March 22, 2001. Decided: July 5, 2001.

1. In the disposition of a motion to dismiss a cause of action a trial judge is limited to disposing only of the law issues which relate to the statutory grounds for dismissal of the action, and not to pass on all of the issues raised in the pleadings which are not statutory grounds for the dismissal of the action.

2. In a motion to dismiss, a judge is limited to the motion and is required to search only for the existence of the statutory grounds for dismissal. He is under no obligation to pass upon issues raised in the pleadings which are repeated in the motion and which are not among the statutory grounds for the dismissal of an action.

3. Under the Decedents Estates Law an administrator or administratrix may be authorized by the court to dispose of the estate of the decedent. However, the administrator/administratrix cannot dispose of property of the estate without first obtaining the court’s permission.

4. A person who is not a fiduciary of a decedent’s estate duly appointed by the court has no power or authority to dispose of the decedent’s estate, whether such person be an heir of the decedent or not.

5. Where a lease agreement is signed by persons who are administrators/ administratrixes of a decedent estate, but not in their capacity as such, the signatures of such persons do not bind the estate.

6. A lease agreement which is signed by administrators/administratrixes of a decedent estate but which fails to state that they signed in that capacity does not vest in the lessee the power, authority, or capacity to sue for any portion of the estate.

7. It has always been the practice of the Supreme Court to pass only upon those issues it deems to be meritorious, worthy of notice, and germane to the legal determination of the case; the Court does not have to pass on every issue raised in the bill of exceptions or in the briefs filed.

The appellant, Hafez M. Jawhary, sued out an action of ejectment against the appellee, Ghassan Hassoun, to oust, evict and eject the appellee from a parcel of land which the appellant claimed he was legally entitled to by virtue of a lease agreement entered into with the heirs of the late Sensee Carew. The trial court judge sustained the contention of the appellee, contained in a motion to dismiss, that the appellant lacked the capacity to sue out the action of ejectment since the persons who signed the lease under which the appellant claimed the right of possession to the premises did not do so in their capacity as administrator and administratrix of the Intestate Estate of the late Sensee Carew, and accordingly dismissed the action. From this ruling, the appellant appealed to the Supreme Court for review.

On appeal, the appellant contended that the trial judge had erred when in ruling on the motion to dismiss, he passed upon factual issues which should have been submitted to the jury for trial; and that the judge had further erred in ruling that the appellant lacked the capacity to sue.

The Supreme Court rejected the appellant’s contentions, holding, firstly that the trial judge had correctly and adequately passed upon the legal issues raised in the motion, and that he was limited by statute to pass only upon those issues which related to the dismissal of the case. The Court observed that once those issues had been determined by the court and found to be sufficient to dismiss the case, the judge was under no obligation to pass upon the other issues raised but which did not relate to the dismissal of the case. The Court opined that the lack of capacity to sue was a statutory ground upon which a case could be dismissed. It noted that in the instant case, the trial court judge had found that the persons who signed the lease agreement relied upon by the appellant to claim the right of possession to the premises, although being administrators of the Intestate Estate in question, did not sign in the capacity as administrators of the estate. The Court pointed out that because the persons who signed the lease agreement exhibited by the appellant, even if they were heirs of the late Sensee Carew, did not have the authority to commit the estate, which could only be done in their capacity as administrators of the said estate, the lease conveyed no power, right, authority, or capacity to the appellant to sue for any portion of the estate. Accordingly, the Court said, the appellant lacked the capacity to sue and, hence, the trial judge was correct in dismissing the action. The Court therefore affirmed the ruling of the trial court.

Pei Edwin Gausi of the Law Chambers of Gausi and Partners, Inc. appeared for the appellant. Roger K. Martin, Sr. of the Martin Law Offices appeared for the appellee.

MR. JUSTICE MORRIS delivered the opinion of the Court.

During his lifetime, the late Oldman A. Sensee Carew was possessed of several parcels of land around the City of Monrovia, among which was the portion situated on Randall Street, adjacent to Marconi Business House, opposite DITCO Store. Following the death of Oldman A. Sensee Carew, one Boima Gray, without any letters of administration from the Monthly and Probate Court for Montserrado County, situated at the Temple of Justice in Monrovia, on May 1, A. D. 1995, leased the above described premises to Mr. and Mrs. Archie F. Bernard for a period of twenty (20) years. The children and cousins of the deceased, in persons of Randolph A. Carew, Rashied P. Carew, Lansana Golafale, and Clement V. Kimber, respectively, not being satisfied with what Boima Gray had done regarding the transaction with Mr. & Mrs. Archie F. Bernard, petitioned the Monthly and Probate Court for Montserrado County for letters of administration to administer the Intestate Estate of the late A. Sensee Carew, named supra. On the 8th day of August, A. D. 1997, the within named persons, including the said Boima Gray, were appointed by the Monthly and Probate Court for Montserrado County as administrators of the Intestate Estate of the late A. Sensee Carew.

Subsequently, the administrators of the said Intestate Estate of the late Sensee Carew instituted cancellation proceedings in the Civil Law Court, Sixth Judicial Circuit, Montserrado County, to cancel the lease agreement executed between Boima Gray and Mr. & Mrs. Archie F. Bernard on the ground that the agreement was illegal. Mr. and Mrs. Archie F. Bernard conceded and instructed their counsel, Counsellor Pei Edwin Gausi, of the Gausi & Partners Law Chambers, to voluntarily discontinue the cancellation proceedings, after having effected a mutual cancellation of said lease agreement with Boima Gray. Counsellor Roger K. Martin, Sr., for the Intestate Estate of the late Sensee Carew, prepared a notice of voluntary discontinuance as prescribed under chapter 11, section 11.6 (1)(b) of the Civil Procedure Law, 1 LCLR 117 and 121. The notice was duly signed by both counsels of records and approved by the presiding judge, His Honour J. Boima Kontoe, on February 18, A. D. 2000. The notice of voluntary discontinuance, as well as the mutual cancellation agreement entered into between Mr. Boima Gray and Mr. & Mrs. Archie F. Bernard, formed part of the certified records before this Honourable Court. Also, the notice of voluntary discontinuance and the instrument of mutual cancellation of the lease agreement between the Bernards and Boima Gray were filed and concluded before His Honour J. Boima Kontoe on February 18, A. D. 2000.

On the 19th day of February, A. D. 2000, the administrators of the Intestate Estate of the late Sensee Carew, acting in that capacity, and as lessors, then entered into and executed an agreement of lease with the appellee herein, Ghassan Hassoun, as lessee. The said lease agreement was probated and registered according to law, without any objection. Thereafter, Counsellor P. Edwin Gausi began communicating with the appellee on behalf of the appellant, alleging that the appellee was illegally occupying the property in question, and claiming that the said premises belonged to his client, Hafez M. Jawhary, the appellant herein. The appellee, being lessee of the within named Intestate Estate, brought said matter to the attention of the administrators and the Martin Law Offices. Whereupon, the administrators requested the authority or document under which the appellant was claiming the premises against the appellee. Counsellor P. Edwin Gausi, now counsel for the appellant, refused to furnish the document, but instead proceeded to court in an action of ejectment to eject and evict the appellee from the premises the appellee had leased from the administrators of the aforesaid Intestate. The action of ejectment was commenced on the 24th day of June, A. D. 2000, in the Civil Law Court, Sixth Judicial Circuit, Montserrado County, during its September Term, A. D. 2000, with the appellant, Mr. Hafez M. Jawhary, named as plaintiff, and Mr. Ghassan Hassoun, the appellee, named as defendant. The appellee was brought under the jurisdiction of the court after being duly served with a writ of summons. However, before an answer could be filed by the appellee, the appellant sua sponte withdrew his complaint. Thereafter, on June 30, 2000, the appellant filed an amended complaint, consisting of six (6) counts. The appellant averred in his amended complaint that he had the right to institute the action of ejectment under or in reliance upon chapter 62, section 62.1 of the Civil Procedure Law, as contained in volume 1 of the Liberian Code of Laws Revised, and by virtue of the lease agreement which he had executed on April 8, 1998 with the Carews, for the period commencing from July 1, 1998 and ending on June 30, 2018, for a one storey building situated and located on Randall Street. The lease agreement was pleaded as Exhibit “PLA”, and carried the signatures of Messrs. Randolph A. Carew, Gabriel B. Carew, and Rashied P. Carew, as lessors, and Mr. Hafez M. Jahwary, as lessee.

On July 4, 2000, having been summoned, the appellee filed an amended answer simultaneous with a motion to dismiss the action of ejectment, stating several grounds, principal among which were the following: (a) that the document relied upon by the appellant to claim the said premises did not relate to the Intestate Estate of the Late Sensee Carew, in that the said document was not signed by the administrators of said Estate, and that as such, the appellant lacked the capacity to sue for any portion of the said Intestate Estate; (b) that the appellant’s document, marked “PLA”, and annexed to the amended complaint, was further void and illegal because it was probated on the same day it was issued, same being April 8, A. D. 1998; (c) that the said document was made for the same period originally granted to Mr. & Mrs. Archie F. Bernard for the identical premises, when legally the premises could not be covered by two (2) lease agreements involving separate lessees for the same period; and (d) that the appellant had failed and neglected to pay all accrued costs prior to and during the filing of the appellant’s amended complaint. The motion was resisted and pleadings rested with the reply.

His Honour, Judge Varney D. Cooper Sr., presiding over the September Term, A. D. 2000 of the Civil Law Court, Sixth Judicial Circuit, Montserrado County, heard the motion to dismiss and the resistance. He sustained the contentions advanced in the motion, granted the motion, and dismissed the appellant’s action of ejectment on September 20, 2000. The appellant excepted to the ruling and announced an appeal therefrom to this Honourable Court for review.

Reviewing thoroughly the briefs filed, and after listening to the legal arguments made by counsels for both parties before this Honourable Court, we gathered the appellant’s contention and consistent argument to be as follows, to wit:

1. That the trial judge committed a reversible error when he passed on factual issues during the hearing of the motion to dismiss without taking any evidence, thereby concluding that the appellant had no capacity to sue;

2. That the appellant had the capacity to sue for said premises because he had a lease agreement covering the said premises; and

3. That the appellant was under no legal obligation to pay accrued costs because at the time of filing of the amended complaint the appellee had not filed any papers in court.

The appellee, on the other hand, strenuously contended in his brief and arguments before this Honourable Court as follows, to wit:

(a) That the document relied upon by the appellant to claim the premises did not relate to the Intestate Estate of the late A. Sensee Carew, in that the said document was not signed by the lessors in their capacities as administrators of the said Estate, and that as such the appellant lacked the capacity to sue for any portion of the said Intestate Estate;

(b) That the appellant’s document, marked “PLA” and annexed to the amended complaint, was further void and illegal because it was probated on the same day it was issued, same being April 8, A. D. 1998;

(c) That the document referred to, supra, marked “PLA”, was made and executed for a period identical to that originally granted to Mr. and Mrs. Archie F. Bernard in the lease agreement with them when legally the said premises could not be covered by two (2) lease agreements, involving separate and distinct lessees, for the same period which had been cancelled by the notice of voluntary discontinuance executed pursuant to chapter 11, sections 11 .6 (1) (b), duly signed by Counsellor Pei Edwin Gausi of the Gausi and Partners Law Chambers and Counsellor Roger K. Martin, Sr., and approved by His Honour Judge J. Boima Kontoe on February 18, 2000, as well as the mutual cancellation of the lease agreement entered into between Boimah Gray and Mr. & Mrs. Archie F. Bernard; and,

(d) That the appellant had failed and neglected to pay all accrued costs prior to and during the filing of the appellant’s amended complaint.

After a careful perusal of the certified records forwarded to this Honourable Court, we view the below listed points as the germane issues for the determination of this matter:

(1) Whether or not the trial judge committed a reversible error when he granted the appellee’s motion to dismiss, and dismissed, the appellant’s amended complaint on the ground that the appellant lacked the capacity to sue, without submitting the case to a jury trial?

(2) Whether or not an individual or person other than the administrators or administratrixes can dispose of any portion of an intestate estate?

Traversing issue one, which is whether or not the trial judge committed a reversible error when he granted the appellee’s motion to dismiss and dismissed the appellant’s amended complaint on the ground that the appellant lacked the capacity to sue, without submitting the case to a jury trial, the answer is no. From the certified records in this case, we observed that the trial judge, in his ruling on the motion to dismiss, adequately passed upon the issue of privity of contract or capacity to sue, contrary to the allegation of the appellant that the judge committed a reversible error. We are also in agreement with the contention of the appellee that the trial judge was limited to passing on only the law issues relative to the statutory grounds for dismissal of the action, and not to pass on all of the issues raised in the pleadings which are not statutory grounds for dismissal of an action, especially the factual issues which require the aid of a jury. In a motion to dismiss, the judge is limited to the motion and is required to search only for the existence of the statutory grounds for dismissal. He is under no obligation to pass upon issues raised in the pleadings which are repeated in the motion and which are not among the statutory grounds for dismissal of an action. We therefore hold that the trial judge committed no reversible error when he dismissed the action of ejectment on the statutory ground of the capacity to sue. For reliance, see Civil Procedure Law, Rev. Code 1:11.2(1), chapter 12, Pretrial Motions, 1 LCLR 117, 118; J. J. Roberts Foundation v. Kaba and Meridien Properties Incorporated, Inc. (MPI), [2000] LRSC 32; 40 LLR 309 (2000).

With respect to the second issue, which is whether or not individuals or persons other than the administrators or administratrixes can dispose of any portion of an intestate estate, a thorough perusal of the certified records transmitted to this Honourable Court revealed that both the appellee and the appellant agreed that the lease premises situated on Randall Street, opposite DITCO, Monrovia, was owned by Decedent A. Sensee Carew. This being so, the only question that exists is: Who is authorized under the law to dispose of any portion of a decedent’s estate?

During the arguments in the lower court and before this Honourable Court, the appellant repeatedly contended that the lease agreement marked as exhibit “PLA”, attached to the amended complaint, and which the appellant relied upon to institute the ejectment against the appellee, having been signed by the heirs of the decedent, is sufficient and binding. On the other hand, the appellee contended and held the view that the contention of the appellant could not be sustained by the Decedents Estates Law of the Republic of Liberia with respect to who is legally authorized to dispose of any portion of the Intestate Estate, i.e. the heirs, or the administrators or administratrixes.

To effectively and legally dispose of the contentions of the parties with respect to who is authorized to dispose of the property of the estate of an intestate estate, we quote section 117.1 of chapter 117 of the Decedents Estates Law, which provides as follows, to wit:

“Section 117.1. Disposition of Real Property for Particular Purposes Authorized; Disposition and Fiduciary as Defined in this chapter.

(F) Purposes for which real property is subject to disposition. The court may authorize or direct the disposition of a decedent’s real property or any interest therein for any of the following purposes, subject to the limitations set forth in section 117.2.

For the payment of funeral expenses;

(b) For the payment of expenses of administration;

(c) For the payment of any taxes;

(d) For the payment of the debts of the decedent, including judgments or other liens, excepting mortgage liens existing thereon at the time of his death;

(e) For the payment of any debt or legacy charged thereupon;

(f) For the payment and distribution of their respective shares to the persons entitled thereto; and,

(g) For any other purpose the court deems necessary for the best interests of the estate.

(2) “Disposition” defined. Disposition of the real property of a decedent within the meaning of this chapter includes:

(a) Sale;

(b) Mortgage;

(c) Exchange;

(d) Lease;

(e) Confirmation of a prior lease made without court’s approval;

(f) Release of the right to an award for the taking of real property by eminent domain; and,

(g) Transfer to a spouse or other beneficiary in full or partial satisfaction of the interest or share of such person in the decedent’s estate.” Decedents Estates Law, Rev. Code 8:117.1(1), (2).

It is our interpretation and construction of the foregoing quoted provisions of the Decedents Estates Law of Liberia that an administrator or administratrix of a decedent’s estate may be authorized by court to dispose of the estate of a decedent. Moreover, that even an administrator/administratrix cannot dispose of any property of a decedent’s estate without first obtaining the court’s permission/order to do so. On the strength of the above quoted provisions, it is the holding of this Honourable Court and in keeping with the legislative intent that a person who is not a fiduciary of a decedent’s estate duly appointed by court, has no power or authority to dispose of a decedent’s estate, whether such person is an heir of a decedent or not, as contended by the appellant in this case under review.

Further to the above, we observed that on page two (2) of his bill of exceptions, the appellant quoted a significant aspect of the ruling of the lower court dismissing appellant’s amended complaint, but conveniently left out of quote the controlling portion of the judge’s findings leading to the dismissal of said amended complaint. We therefore hereby quote below the complete statement made by the judge so as to include the portion left out of quote by the appellant on page 2 of his bill of exceptions:

Page 3 of the ruling of the trial judge. “Plaintiff/ respondent’s exhibit ‘PLA”, which is the lease agreement, is signed by the following persons: (1) Randolph A. Carew, co-lessor; (2) Gabriel D. Carew, co-lessor; and (3) Rashied P. Carew, co-lessor. From a careful perusal of the aforesaid document, the names of the following administrators were not listed on plaintiff/respondent’s exhibit “PLA”, which is the lease agreement filed with the complaint (amended complaint). They are: Boima Gray, Clement V. Kimber, and Lansanah Golafale. The court observes that one Gabriel D. Carew’s name appeared on exhibit “PLA”. The court does not know how his name appeared on the said document since he was not listed on the letters of administration issued from the Monthly and Probate Court of Montserrado County, Republic of Liberia. Furthermore, those who signed PLA” did not indicate that they signed in their capacities as administrators.”

The underlined portion of the above quoted excerpts of the judge’s findings was the portion that was left out by the appellant on page 2 of his bill of exceptions. This underlined portion of the judge’s observations is crucial because it reveals that whoever signed appellant’s exhibit “PLA” did not sign in the capacity of administrators of the Intestate Estate of the late

A. Sensee Carew. It legally follows, therefore, that such unauthorized signatories cannot bind the said Intestate Estate, according to the provisions of the Decedents’ Estates Law of Liberia, quoted supra. As such, the said lease agreement, exhibit “PLA”, could not have conferred any power, right, authority, or capacity on the appellant to sue for any portion of the said Intestate Estate of the late A. Sensee Carew. Hence, rendering appellant’s amended complaint was rendered dismissible and was therefore dismissed according to law. The appeal will not therefore lie, and the same is hereby denied.

As to the contention that several issues were raised in the case but may not have been passed upon, it has always been the practice of this Court to pass only upon those issues it deems meritorious, worthy of notice and germane to the legal determination of the case; the Court need not pass on every issue raised in the bill of exceptions or in the briefs filed. In the instant case, the court acted in keeping with practice and precedence by only addressing itself to the germane issues and/or questions. For reliance, see Lamco J. V. Operating Company v. Verdier, [1978] LRSC 9; 26 LLR 445 (1978).

Wherefore and in view of the foregoing facts and circumstances, and the laws controlling in this case, it is the considered opinion of this Honourable Court that the appeal should be and same is hereby denied and the ruling of the trial judge is ordered confirmed. The Clerk of this Court is ordered to send a mandate to the court below ordering the judge presiding therein to resume jurisdiction over this case and to give effect to this judgment. Costs are ruled against the appellant. And it is hereby so ordered.

Judgment affirmed.