SHEIK KAFUMBA KONNEH, K & K TRADING COMPANY, by and through its Manager, CHAWKI KADOUH, and JOHN A. MARSHALL, Appellant, v. THE INTESTATE ESTATE OF THE LATE J. W. MARSHALL, by and thru its Administratrix, CECELIA MAYSON, Appellee.
MOTION FOR RELIEF FROM JUDGMENT OF THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: May 17, 2001. Decided: July 5, 2001.
1. The rules and procedures of the Supreme Court have no provisions for the determination of fraud and issues of fact raised for the first time at the Supreme Court level.
2. The statutes and decisional laws of Liberia mandate that allegations of fraud and issues of fact be triable and determined by a jury in the trial court and not by the Supreme Court.
3. The appellate court cannot consider points of law not raised in the court below and argued in the brief, except that it may in any case, in the interest of justice, base its decision on a plain error apparent in the records.
4. The appellate court can examine a case only upon the records and can hear no additional evidence.
5. Writs of coram nobis, coram vobis, querela and bills of review are abolished in civil proceedings, and the procedure for obtaining any relief from a judgment is by motion, as prescribed in section 51.5 or by an independent action.
6. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment for reasons of (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which, if introduced at the trial, would probably have produced a different result and which by due diligence could not have been discovered in time to move for a new trial; (c) fraud, misrepresentation, or other misconduct of an adverse party; (d) voidness of the judgment; or (e) satisfaction, release, or discharge of the judgment, or reversal or vacating of a prior judgment or the order on which it is based, or inequitableness in allowing prospective application of the judgment.
7. A motion for relief from judgment shall be made within a reasonable time after the judgment is entered.
8. A motion for relief from judgment does not affect the finality of the judgment or suspend its operation.
9. The statute allowing the filing of a motion for relief from judgment does not limit the power of the court to entertain an independent action to relieve a party from a judgment or to grant relief to a defendant under section 3.44.
10. Where a judgment is set aside on motion or independent action for relief from judgment, the court may direct and enforce restitution in like manner and subject to the same conditions, as where a judgment is reversed or modified on appeal.
11. While the section of the statute governing motions for relief from judgment does not say in clear and concise terms that the court referred to therein is the trial court, yet, it is inferred from the provision of the statute.
12. The Supreme Court is appellate in nature, and its original jurisdiction is limited. As such, where the statute specifies that a court shall have the power to entertain an independent action, the provision refers to and can only refer to a trial court and not an appellate court.
13. All actions are commenced in the trial court and not in the appellate court.
14. The Supreme Court, as an appellate court, cannot for the first time hear and determine the veracity and genuineness of newly discovered evidence and fraud.
15. The “court” referred to by the relief from judgment statute is the trial court, not the Supreme Court.
16. The Supreme Court will review and thereafter, as may be necessary, remand, modify, confirm and affirm, or reverse, and dismiss final judgments entered by trial courts only on regular appeal or on appeal from the ruling of a Chambers Justice on a petition for a remedial writ and not on a motion for relief from judgment.
The appellants, who had appealed from a judgment of liable entered against them by the judge of the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, confirming a verdict returned by the trial jury, filed a motion in the Supreme Court for relief from the trial court’s judgment, while the appeal before the Court remained undetermined. The appellee had challenged the authority of the Supreme Court to entertain a motion for relief from judgment, to take evidence, or to decide fraud and other issues raised for the first time at the level of the Supreme Court.
The Supreme Court agreed with the appellee that a motion for relief from judgment is cognizable in a trial court and not the Supreme Court. The Court observed that its powers of original jurisdiction were circumscribed by the Constitution and statutes, and that while the statute governing motions for relief from judgment did not specifically state that it was cognizable in the circuit court, the statute did infer that its reference was to the circuit court, and not the Supreme Court.
As such, the Court said, the appellant should have filed its motion for relief from judgment in the circuit court.
In addition, the Court opined that as it was an appellate court, it did not have the authority to hear matters involving fraud and other issues of fact raised for the first time by the appellant at the Supreme Court level. Those issues, the Court observed, must first be raised in and passed upon by the lower court. The Court further reasoned that issues of fraud and other factual matters are triable by a jury in a trial court, noting that the Supreme Court does not hold jury trials and that such functions are vested in and authorized by statute to be performed only by intermediate courts, such as the circuit courts and certain specialized courts. Hence, the Court adjudged that, because the motion filed by the appellants raised issues of fraud and other factual matters which were not raised in the lower court, it could not rule on the issues raised in the motion. Further, the Court acknowledged that it could not review, reverse, modify, affirm, or dismiss the final judgment of a trial court by a motion for relief from judgment, which, by inference of the controlling statute, it had no jurisdiction over. The Court noted that even if the issues had been previously raised in the trial court, the appellate court could only undertake a review thereof on a regular appeal taken by the appellant or by an appeal from a ruling of a Justice in Chambers on a petition for a remedial writ. Accordingly, the motion for relief from judgment was denied.
Monoely T. B. Jawonda of Sherman and Sherman, Inc. appeared for the appellant. Jerome G. Korkoya of Dunbar and Dunbar Law firm appeared for the appellees.
MADAM CHIEF JUSTICE SCOTT delivered the opinion of the Court.
This is a motion for relief from judgment filed by the movants, who are also the appellants, seeking review by this Court of a final judgment of liable rendered by the judge of the Civil Law Court, Sixth Judicial Circuit, Montserrado County.
The records of this Court revealed that the final judgment appealed from by the appellants herein was rendered against the appellants in an action of ejectment tried by a jury in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, during its September, A. D. 1999 term of court. While the said appeal remained pending and undetermined, the appellants filed a motion for relief from judgment. We hereunder quote counts 4, 5, and 6 of the appellants’ motion which we believe are germane to the determination of this matter.
“Count 4. Movants herein respectfully crave your Honours’ indulgence for the information that access to recent credible and concrete evidence after the conclusion of the ejectment suit instituted by the respondent herein reveals that the procedure adopted by her in securing the purported letters of administration as an administratrix of the Intestate Estate of the late J. W. Marshall, as well as the strategies pursued in obtaining judgment in her favor in the Civil Law Court for the Sixth Judicial Circuit, are totally tainted with fraud. For firstly, her claim as a collateral heir to have petitioned and secured from the Honourable Monthly and Probate Court, Montserrado County, Republic of Liberia, letters of administration, without the knowledge and against the will of co-movant and co-appellant, John A. Marshall, the only lineal heir of the late J. W. Marshall, who is still alive and has attained legal maturity, is in bad faith and therefore constitutes miscarriage of justice. Certainly, such conduct on the part of the respondent herein and plaintiff/ appellee, is in flagrant and wanton violation of the Decedents Estates Law of the Republic of Liberia which therefore affects her capacity to legally sue for and on behalf of the said Intestate Estate, thus rendering the entire ejectment suit a legal nullity; and, therefore, the judgment entered therefrom is reviewable, reversible and dismissible, and the movants so pray:
Count 5. And also that movants moving Your Honours beg leave to inform you that a careful perusal of the original lease agreement concluded on the 8th day of December, A. D. 1967, and which became effective from the 2nd day of January, A. D. 1968, reveals that same was fraudulently and illegally altered by the respondent herein and plaintiff/ appellee; for the said respondent, under the pretext that she had lost the said original lease agreement, applied for and was subsequently issued a purported certified copy which dates she illegally and fraudulently altered from January 2nd 1968-December 31st 1988 to March 2nd 1968- March 31, 1988. Photocopies of the said original lease agreement and its falsified copy manifesting the fraud perpetrated by the respondent herein are hereto attached in bulk and marked “Exhibit 1” with the visible alterations to form a cogent part of this motion.
Count 6: And also that on November 21, 1995, respondent herein petitioned the Honourable Monthly and Probate Court, Montserrado County, Republic of Liberia, for the issuance of letters of administration to administer the Intestate Estate of the late J. W. Marshall, and, on December 8, 1995, same was granted and issued. That on June 30th 1997 the said respondent herein again petitioned the said Honourable Monthly and Probate Court for the closure of the said Intestate Estate of the late J. W. Marshall. Surprisingly, in her petition, respondent herein deliberately and with fraud aforethought, refused to mention the name of the Co-movant, John A. Marshall-the only surviving lineal heir of the late J. W. Marshall—as a beneficiary. Instead, she elected to mention only her name as a purported collateral heir. This conduct on the part of the respondent herein was deliberately intended and perpetrated to cheat and deprive the bona fide heir of his right and entitlement to the said piece of property and/or other properties owned by the said late J. W. Marshall, a conduct which is flagrant and an absolute violation of the Decedents Estates Law of the Republic of Liberia, thus rendering the entire petition a legal nullity and totally devoid of any legal efficacy.”
The appellees filed resistance to the said motion, counts 1 to 5 of which we hereunder quote, as they are decisive of the issues at bar.
Count 1: Because, as to the entire motion, respondent says that same is grossly contrary to law, for reason that under the Revised Civil Procedure Law, motion for relief from judgment is a post trial motion cognizable before the trial court and not the Supreme Court, since the said motion involves the taking of evidence, a situation not within the appellate jurisdiction of the Supreme Court.
Count 2. Because, further to the entire motion, respondent says that same presents issues which necessitate the taking of evidence, specifically the issue of fraud; but regrettably, it is not within the jurisdictional competence of the Supreme Court to take evidence, for the Supreme Court exercises only appellate jurisdiction except in the few cases prescribed by the Constitution, none of which is related to the issues raised in the motion.
Count 3: Because, still as to the entire motion, respondent says that the purported errors allegedly made by the Probate Court cannot be a subject of review by this Honourable Court for reason that they are not legally before the Court, in that the only two ways by which this court reviews errors committed by or in a trial court are either by a regular appeal or remedial process. So even if movants say that they were not present in the probate court to announce an appeal, the movant ought to have filed their motion for relief from judgment before the probate court and thereafter appeal from any adverse ruling or come by a writ of error so as to confer appellate jurisdiction upon this Court over the alleged errors.
Count 4. Still as to the entire motion, respondent says as to those purported errors allegedly committed during the trial in the Civil Law Court, they ought to have been embodied in the bill of exceptions as to have this Court review same; otherwise, they are proper subjects for dismissal, and respondent so prays.
Count 5: Because, still to the entire motion, respondent says that the movants are strangely and without any precedent in our law, practice and procedures, attempting to have two appeals growing out of one trial decided by this Court, in that a recourse to the motion seeks a reversal of the judgment entered by the Civil Law Court, while the appeal now pending undetermined seeks the same objectives. To pursue this motion, the movant must withdraw their appeal.
The single issue this Court has to determine is whether or not a motion for relief from judgment is cognizable before the Supreme Court of Liberia? To determine this issue we need to examine the said motion as duly filed in this Court. The motion contained the following species of documentary evidence in support of the averments therein:
1) Exhibits 1/1 – The final judgment which adjudged movant liable in the action of ejectment
2) Exhibit ½ – Agreement of lease entered into on the 8th day of December, A. D. 1967 between Annette J. Marshall and Amer H. Eid.
3) Exhibit 1/3 – Set of documents from the Monthly and Probate Court for Montserrado County.
4) Exhibit 1/4 – Death Certificate for Cecelia Mason Floyd issued by the Ministry of Health and Social Welfare.
5) Exhibit 1/5 – Agreement of Lease between Dulles Holding Limited and the Intestate Estate of the late J. W. Marshall.
The attachment to the motion for relief from judgment of the aforementioned documents as exhibits raises the question as to what procedure does the Supreme Court employ to determine the truth or falsity of these documents and the allegations of fraud? In addition to the species of evidence presented to this Court by the appellants for the first time, the said motion also raises for the first time issues of fact. The rules and procedures of the Supreme Court have no provisions for the determination of fraud and issues of fact being raised for the first time at the Supreme Court level. The statutes and decisional law of this jurisdiction mandate that allegations of fraud and issues of fact be determined by a jury. The Supreme Court, as the Court of general final review, does not hold jury trials; only intermediate courts such as the circuit courts and certain specialized courts are authorized by statutes to conduct jury trials. The statute limits the scope of review of the appellate court. The relevant provisions of the said statute are hereunder quoted:
“Section 51.15. Scope of Review.
1. Points of law first raised in appellate court. The appellate court shall not consider points of law not raised in the court below and argued in the briefs, except that it may in any case, in the interest of justice, base its decision on a plain error apparent in the record.
2. No additional evidence. An appellate court shall examine a case upon the record only and shall hear no additional evidence. Civil Procedure Law, Rev. Code 1:51.15,1 LCLR253 (1973).The Civil Procedure Law provides:
Section 41.7. Relief from Judgment.
1. Common law writs to secure relief from judgment abolished. Writs of coram nobis, coram vobis, querela, and bills of review and bills in the nature of a bill of review are abolished for use in civil proceedings, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in this section or by an independent action.
2. Grounds. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment for the following reasons:
a) Mistake, inadvertence, surprise, or excusable neglect;
b) Newly discovered evidence which, if introduced at the trial would probably have produced a different result and which by due diligence could not have been discovered in time to move for a new trial under the provision of section 26.4 of this title;
c) Fraud (whether intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
d) Voidness of the judgment; or
e) Satisfaction, release, or discharge of the judgment or reversal or vacating of a prior judgment or order on which it is based, or inequitableness in allowing prospective application to the judgment.
3. Time of motion. A motion under this section shall be made within a reasonable time after judgment is entered.
4. Effect of motion. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment or to grant relief to a defendant under section 3.44.
5. Restitution. Where a judgment is set aside, the court may direct and enforce restitution in like manner and subject to the same conditions, as where a judgment is reversed or modified on appeal.” Civil Procedure Law, Rev. Code 1:41.7, 1 LCLR212-213 (1973).
The foregoing provisions of law gives the aggrieved party two options, either by way of a motion or an independent action. Movants herein have elected to file a motion for relief from judgment on the grounds of newly discovered evidence and fraud. This provision also states that the motion or action may be filed in the court. (Emphasis ours). The question is, which court has the authority to hear the aggrieved party’s motion for relief from judgment or an independent action as provided for under section 41.7 of the Civil Procedure Law? This Court has answered the jurisdictional question for a motion for relief from judgment in its previous opinion, handed down at the close of the March, A. D 1995 Term of this Honourable Court in the case Kamara and Kollie v. Kindi et at.[1996] LRSC 10; , 38 LLR 235 (1995). In that case, Mr. Justice Wright, speaking for this Court, said:
“The section providing for motions for relief from judgment does not say in clear and concise terms that the ‘court’ referred to therein is the trial court, but same is inferred from the provisions.” Civil Procedure Law, Rev. Code 1: 41 .7(2-5), I LCLR 212-2 13.
For example, sub-section 4 in its latter part, states: “[T]his section does not limit the power of a court to entertain an independent action to relieve a party from a judgment or to grant relief to a defendant under section 3.44. It is common knowledge in our jurisdiction that the general jurisdiction of the Supreme Court is appellate in nature; that its original jurisdiction is very limited. And so, where the statute gives the Court the power to entertain an independent action, that certainly refers to and can only refer to a trial court and not an appellate court.
Further, a review of section 3.44, referred to in subsection 4 above, reveals that said section relates to and deals with defendants who are served with summons other than by personal delivery, and are therefore allowed to appear and defend an action at any time before final judgment or within five years thereafter. Civil Procedure Law, Rev. Code 1:3.44. Note that only a trial court issues summons and renders judgment. Further, this provision falls under chapter 3, subchapter B “form, issuance and service of process”. In fact, the entire chapter 3 is captioned “Commencement of Action” 1 LCLR 46, 48 (1973). We know that all actions are commenced in the trial court and not at the appellate level.
Going further in our examination of section 41.7, we observe at subsection 5 that where a judgment is set aside, the court may direct and enforce restitution “in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal”. (Emphasis ours). Civil Procedure Law, Rev. Code 1:41.7, 1 LCLR 232 (1973). This shows clearly that the provision relates to the trial court, in view of the distinction between the trial court level and the appellate level, as shown in the language of the emphasized portion of the quoted section.
We therefore confirm the view expressed in the Kindi case and further hold that the Supreme Court, as an appellate court, cannot for the first time hear and determine the veracity and genuineness of newly discovered evidence and fraud. Fraud and issues of fact are triable by jury in the trial court and not the Supreme Court. Clearly, the court (emphasis ours) referred to in section 41.7 of the Civil Procedure Law is the trial court. Hence, we concur with the appellees herein in counts 1-3 and overrule and dismiss the appellant’s entire motion.
The appellants, in counts 4, 5 and 6 of their motion, quoted above, along with entire motion for relief from judgment, seeks to have the Supreme Court review, reverse, and dismiss the final judgment in the said action of ejectment and the proceedings in the Intestate Estate of J. W. Marshall held in the Monthly and Probate Court of Montserrado County. Can the Supreme Court review errors committed during trials and proceedings of courts of records under the office of a motion for relief from judgment? Although we have discussed the jurisdictional issue of a motion for relief from judgment, we think it is necessary, however, to declare and affirm that this Court will review and thereafter, as it may become necessary, remand, modify, confirm and affirm, or reverse and dismiss final judgments entered by trial courts only on regular appeal or on appeal from an assigned Chambers Justice’s ruling on a petition for a remedial writ and not on a motion for relief for judgment. Should this Court uphold the request of the appellants and proceed to review trials and proceedings in trial courts under the office of motions for relief from judgment, this Court would have created a novel procedure of appeal, thus rendering the statutes on appeal useless and of no legal efficacy. Therefore, we uphold counts 4 and 5 of the appellee’s resistance and reconfirm and reaffirm the dismissal of the appellants’ entire motion for relief from judgment.
Wherefore and in view of the foregoing, the appellants’ motion for relief from judgment is hereby ordered dismissed for lack of jurisdiction. The Clerk of this Court is hereby ordered to strike this motion accordingly, and re-docket the appeal for determination before the Court sitting en banc. Costs are to abide the final determination of this action. And it is hereby so ordered.
Motion denied.