Jarba v Fagans-Freeman [2013] LRSC 21 (20 February 2013)
Jarba v. Fagans-Freeman [2013] LRSC 21 (20 February 2013)
Mr. Jarba and Mrs. Elizabeth Jarba, and all also of the Paynesville City, Montserrado County, Liberia, APPELLANTS, VERSUS Maude Fagans-Freeman, of the USA by thru Her Attorney-In-Fact, Leticia S. Reeves, of Paynesville City, Montserrado County, Liberia, APPELLEE
APPEAL
Heard: November 20, 2012 Decided: February 20, 2013
Mr. Justice Ja’neh delivered the Opinion of the Court
Maude Fagans-Freeman, appellee/plaintiff in these appeal proceedings, by and through her attorney-In-Fact, Mrs. Leticia Reeves of Paynesville, Montserrado County, on October 26, 2010, instituted an action of ejectment in the Civil Law Court, Sixth Judicial Circuit for Montserrado County, sitting in its December Term, A.D. 2012.
The three-count complaint averred:
1. That the plaintiff is a citizen of Liberia and presently residing in the United States of America and transacting in Liberia by and through her attorney-In-fact Mrs. Leticia Reeves, who hereto attaches a copy of the power of attorney, marked as p/1 to form a cogent part of this proceeding.
2. That the plaintiff honorably purchased, owned and possessed in fee simple a parcel of land consisting of two (2) lots situated near James Spriggs Payne Airfield in Sinkor, Monrovia, out of which she sold one (1) lot as shown and described by the metes and bounds on a Quit Claim Deed attached to the complaint as exhibit p12.
3. That the defendants named in the complaint have wrongfully and illegally entered on said property and have displayed violent means to prevent the plaintiff from utilizing her property for more than fifteen (15) years.
Wherefore, and in view of the foregoing, plaintiff most respectfully prays court to evict, elect and oust the defendants from her property and to award her twenty five thousand United States dollars (US$25,000.00) for the wrongful withholding of her property and to further grant unto plaintiff any further relief that the court will deem fair, lust and equitable under the circumstances of this case.
The appellants/defendants filed a six (6)-count answer to the complaint denying the truthfulness of the complaint. They submitted that careful examination of the Quit Claim Deed pleaded by appellee shows that the land which they (appellees) occupy is “clearly outside of the two (2) lots of land being claimed by the appellee. Appellants therefore prayed the Civil Law Court to take judicial notice of the appellants’ deed as same supports this material point. The appellants further contended that the land in question is one not only they have occupied for over thirty seven (37) years but also acquired through honorable purchase evidenced by a bonafide deed executed on September 25, 1972, by Joseph J. Mendscole, Maude Fagans-Freeman, the very appellee/plaintiff in these proceedings, and Mabel Fagans-Hill and Chaver’s heirs. The deed, according to appellant, was also probated and registered in accordance with law.
Appellants therefore requested the trial court to deny and dismiss the complaint in its entirety, assess all costs of these proceedings against the appellee and further grant unto the appellants all other and any further relief deem legal, just and equitable in the premises.
Appellee filed a four-count reply along with a three-count motion for an investigative survey. In the reply, appellee did not deny the sale of one (1) lot by her and her siblings to the appellants in 1972. But the appellee reiterated her contention that the appellant has elected to illegally take portion of one (1) other lot owned by Appellee outside what was purchased and deeded to the appellee.
In the accompanying three-count motion for investigative survey, appellee/movant emphasized that while the sale of one (1) lot to the appellant in 1972 is admitted as true, the appellant/respondent “took possession of his one (1) lot and later illegally decided to encroach upon plaintiff’s one remaining lot.
Due to these circumstances, movant/plaintiff prayed the trial court “to order an investigative survey to be conducted so as to establish the truth of the matter; for by that this court will be in the position to pass on the issue of encroachment as complained by the movant/plaintiff since the Respondent derived their title from the movant.
Counsel for appellant appeared and interposed no objection to the motion for investigative survey.
By a ruling dated 24th November, 2010, His Honor, Yussif D. Raba, Resident presiding Circuit Judge, Sixth Judicial Circuit, granting the motion for the investigative survey, said:
“The motion for investigative survey filed by movant/plaintiff, having not been interposed by counsel for defendants/respondents, same is hereby granted. The clerk of this court is hereby ordered to communicate with the Ministry of Lands, Mines and Energy to submit the name of a qualified licensed [surveyor] to serve as chairman of the Board of Investigative Survey, and the parties herein are also ordered to submit the names of their respective surveyors, and thereafter, a notice of assignment will be issued out of this court for the qualification and instruction of the Board of investigative Surveyors.”
On the strength of a recommendation written by the Ministry of Lands, Mines and Energy, Licensed Surveyor Edward K. Brown was appointed by the trial court to conduct an investigative survey. While the records indicate that appellee/movant filed a communication with the trial court dated November 24, 2010, submitting the name of Surveyor George Kaibiar as its representative surveyor, the appellant/respondent failed to forward the name of its surveyor until after the court qualified the court’s appointed surveyor and ordered the survey proceeded with.
The minutes of court, 25th Day’s Jury sitting, January 19, 2011, reveals as follows:
The court: The representation of the movant/plaintiff by its counsel is hereby noted with thanks of court. This court notes the absence of counsel of the respondent/defendant, even though, according to the Sheriff’s returns on the case file, coupled with a perusal of the said file, counsel for respondent/defendant was duly served and given a copy of the notice of assignment for today’s sitting. Time being far spent and both the counsel for respondent/defendant and/or his client being absent from today’s sitting without [any] written excuse to this court, the clerk of this court is hereby instructed to duly administer oath to the Government nominated surveyor, who will duly execute the investigative survey/exercise in this case. AND IT IS HEREBY SO ORDERED.
On March 23, 2011, three days after the qualification of the surveyor by the court, Counselor Sylvester D. Rennie, representing appellant/respondent filed a communication with the court naming Jimmy K. Davis as its representative surveyor.
We note from the certified records before us the subsequent departure of Surveyor E. K. Brown from Monrovia to Sinoe County thereby necessitating his replacement and the qualification by the court of Surveyor Eastman Quaqua who was ordered to conduct the survey instead.
Following the conduct of the survey as directed, Surveyor Eastman K. Quaqua, on October 28, 2011, filed his report with the court along with a map of the area in dispute. For the benefit of this Opinion, the report, setting forth its findings and recommendations, has been reproduced hereunder:
Investigative Survey Report involving Maude Fagans-Freeman through Leticia A. Reeves and Willie Jaba.
Introduction
This survey
Findings:
The findings of the Survey investigation are as follows:
A. Maude Fagans-Freeman through Mrs. Leticia A. Reeves
1. That the grantors of Maude Fagans-Freeman are Joseph K. Mendscoie and Mabel Fagans-Hill;
2. That according to the deed presented, lots No. 12 and 16 an owned by Maude Fagans-Freeman and commence from the south eastern corner of two (2) lots owned by Mabel Fagans-Hill which are lots No. 4 and 6. See map.
3. The points identified on the ground by Leticia A. Reeves an in accordance with lots No. 12 and 16,
4. That lots No. 4, 6 and 12 are fenced in by the Fagans leaving out lot No. 16 which is the area of contention. See map.
B. Willie Jarba
1. That the grantors of Willie Jarba are Joseph J. Mendscole, Maude Fagans-Freeman and Mabel Fagans-Hill Chaver’s Heirs.
2. That lot No. 20 Is owned by Willie Jarba in keeping with the deed presented.
3. That the deed presented by Willie Jarba commenced from the south western corner of lot No. 16 and as such, Mr. Jarba cannot own any land within lot No. 16 as shown on the Cadastral Map prepared for this investigation. Lot No. 20 is the rightful land for Mr. Jarba in keeping with the deed presented for this investigation and not lot No. 16.
4. That Mr. Jarba occupies lot No. 16 instead of lot No. 20 which is the root cause of this land dispute. Lot No. 16 belongs to the Fagans and not the Jarbas. See map.
Recommendations
It appears from this survey investigation that the deeds for the disputed parcels of land in favor of the contesting parties have misclosure. The metes and bound of both deeds when plotted are not in conformity with the boundary identified, even though the lands are rightfully placed according to the survey. See map.
In view of the above, the survey investigator hereby recommends:
a. That in keeping with the ground location, the Jarbas be made to occupy lot No. 20 instead of lot No. 16 which they presently occupy. The Jarbas are in error for occupying lot No. 16 which belongs to the Fagans.
b. That both deeds in favor of the Jarbas and the Pagans be corrected to conform to the ground location in keeping with the identified boundaries.
Signed: Eastman K. Quaqua
Chairman
As Chairman Quaqua indicated in his findings, even though the metes and bound of both deeds when plotted were not in conformity with the boundary identified, nevertheless, the respective lands were rightfully placed according to the survey. It would therefore be appropriate that both deeds in favor of the parties be corrected to conform to the exact ground location of the respective properties.
The investigative survey also found that lot no. 16 belongs to the appellee and that said lot has been partly occupied by the appellants. The surveyor therefore recommended that the appellant be made to occupy lot No. 20 instead.
Jimmy K. Davis, representing the appellants, filed what he termed as Exceptions relevant to the findings and recommendations of investigative survey report. He essentially submitted: (1). That the fact that four corners of a field can be found, and that the distances between them agree with the calls on ground, does not necessarily mean they are in the proper place. Title or ownership is complete only when the land covered by a deed is positively identified and polygon closed according to deed description (metes and bounds) and ground location; and, (2.) That the deeds presented to the court, therefore, in authentication of the parties’ claims to the disputed parcel of land realistically do not have the technical relevance to grant possession or repossession to any party.
Counsel for appellee, however, filed a motion to confirm the findings of the surveyor. Appellants then filed a three (3)-count motion to vacate the survey report. A counter motion for arbitration was filed by the appellee. Appellants filed their resistance to the motion for arbitration essentially contending that the motion to vacate was not disposed of by the court and that appellee be made to file her resistance to the motion to vacate. Therefore, Plaintiff/Appellee withdrew her motion for arbitration and filed her resistance to the motion to vacate, requesting the court to rule in favor of the investigative survey report.
On May 10, 2012, the presiding judge ruled affirming the investigative report. The relevant part is quoted hereunder:
The court notes that from the report both parties acquired possession to their respective properties from the same grantor and there is no dispute with respect to the grantor of the property. Then is no allegation of fraud in the case. Therefore, to the mind of the court, the only method that can be used to resolve this matter is an investigative survey. Fortunately, the area of dispute is an adjudicated area and by that the area is separated by lots and all of the lots are given numbers. The investigative report indicated that the numbers attached to the respective parties’ title can be identified on the ground. According to the report, lot number 12 and lot number 16 cover the area of the dispute and lot number 20 lies in an area separate and distinct from the area of the dispute. This information given is not disputed either by the technical representative of the Movant/Defendant nor is there any challenge to this information by the Movant/Defendant in his motion to vacate the arbitration report. If this court therefore is to make any determination that is of any legal significance, to the mind of the court, the best way to proceed is to use the evidence that can establish by its preponderance among the parties the person that is entitled to this property. And in the mind of the court, the only evidence that may be used or that is useful in making this determination [are] the lot numbers that are attached to the respective titles of the parties. If there be [an] agreement by the parties that the property in dispute Iles in lot number 16 and lot number 16 being the lot called for by the deed of the Respondent/Plaintiff and lot number 20 being separate and distinct from the property dispute and that lot number 20 being the one called for by the Defendant title, the court says that it is only logical to conclude that the property in dispute squarely lies within the ambit of the deed proffered by the Respondent/Plaintiff. In this connection, the court does not see any legal or factual Justification to set aside the report as submitted by the board of investigative surveyor and by that this court hereby confirms and affirms the same.
That being the case, and this matter being purely technical in nature, and given further consideration to the report as submitted by members of the investigative survey team, it is the Judgment of this court that the Defendant is liable in the main suit and that title and possession to this property is rightly vested in the Plaintiff. The Clerk of this court is hereby ordered to issue out a Writ of Possession [and] have same placed in the hands of the Sheriff of this court to have the Defendant ousted and evicted from the properly and the Plaintiff placed in complete and unrestricted possession thereof. Cost of these proceedings [are] ruled against the Defendant AND IT IS HEREBY SO ORDERED. [Our Emphasis].
It is to this final judgment counsel for appellant excepted and announced an appeal to the Honorable Supreme Court. The appeal is predicated on a three count bill of exceptions stating:
The bill of exceptions contains the following:
(1) Because defendants say that Your Honor erred when you failed to acknowledge the recommendation in the investigative survey report which reads:
It appears from this survey investigation that the deeds for the disputed parcels of land in favor of the contesting parties have misclosure. The metes and bounds of both deeds when plotted are not in conformity with the boundary identified, even though the lands are rightfully placed according to the survey.
This statement means that both metes and bounds represent an undisclosed polygon. Title or ownership is complete only when the land covered by a deed is positively identified and polygon closed according to deed description (metes and bounds) and ground location. Reversible error your honor did commit
(2) Your Honor erred when you recognized that the Jarbas are in error by occupying lot No. 16 which according to the investigative report should not be occupied by the plaintiff and the defendants be made to occupy lot No. 20. Defendants say that Your Honor’s ruling was erroneous since the very investigative survey report mentioned that both deeds should be corrected to conform to the ground location in keeping with the identified boundaries. This part of the report from the surveyors clearly shows that the description of both deeds points (metes and bounds) were inaccurate in the measurement which show incompatible description and plots of common lines for lost or obliterated cornets and reference marks. Reversible error Your Honor did commit.
(3) Your Honor erred and the ruling was erroneous when Your Honor failed to realize that ownership to property lies in the strength of the individual title and not the weakness of the adverse party title. Moreover, both deeds according to the report of the investigative survey, do not meet the requirements of ownership to the land in dispute, since the metes and bounds of the aforementioned deeds of both parties were completely different from the actual ground location of the disputed property. This contradicts the law, which warrants a reversal of Your [Honors] ruling. Reversible error Your Honor did commit.
The lone question dispositive of the controversy presented by these proceedings is whether the trial judge committed reversible error when he affirmed the recommendations made by the investigative surveyor, thereby awarding the disputed property to the appellee. We hold that the judge made no error in awarding the disputed property to the appellee.
To begin with, there are clearly stipulated legal grounds for vacating an award. Those grounds are provided under section 64.11, I LCLR, title I, [Civil Procedure Law]. They are:
(a) The award was procured by corruption, fraud, or other undue means;
(b) There was partiality in an arbitrator appointed as a neutral, except where the award was by confession; or there was corruption or misconduct in any of the arbitrators; or
(c) An arbitrator or the agency or person making the award exceed his powers or rendered an award contrary to public policy; or
(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown then for or refused to hear evidence material to the controversy, or otherwise conducted the hearing contrary to the provisions of section 645 or 646. The fact that the relief granted in the award was such that it could not or would not be granted by a court of law or equity is not a ground for vacating or refusing to confirm an award.
In the three count bill of exceptions, aforementioned, appellant has not contended that the findings made by the surveyor, or the recommendations therein contained were the product of fraud or swindle, or that the surveyor’s findings and the conclusions thereon reached recommending to the court that the disputed property be awarded to the appellee were procured through undue influence exerted on the surveyor. Nor has appellant contended that the court was impartial in its handling of this matter. Furthermore, the bill of exceptions is void of any allegation made by the appellant that the investigative surveyor exceeded the authority granted to him in the conduct of the investigative survey.
As indicated in the judge’s ruling, and we are in agreement, that the object of an investigative survey is to assist the court by providing the court the technical assistance necessary to reaching a legally fair and equitable disposition of a matter before the court. This is done, as in the case of a land dispute, when the technicians, under the direction of the court, conduct a survey identifying the metes and bounds and exact location of a parcel of land that may be a subject of controversy. Freeman et al v. Webster[1961] LRSC 29; , 14 LLR 493 (1961). Such a process has been endorsed in numerous decisions by the Supreme Court and further elaborated articulated in Josephus Surmie, Norwah Garkpor et al. v. Calvary Baptist Church, delivered during the March Term, 2007.
In Josephus, this Court said that the proper process in respect of a dispute of ownership where the land in dispute is the same parcel or portion of the same land is to conduct a survey using the title deeds relied upon by the parties where the land in dispute is the same parcel or portion of the same land.
As the records before us reveal, the disputing parties acquired possession of their respective parcels of land from the same grantor. It is also not in dispute lots number 12 and 16 cover the area of the dispute. Also, none of the parties has disputed that lot number 20 is situated in an area clearly separate from the area of the dispute where lots 12 and 16 are located. The report submitted by the surveyor simply identified the location demarcating the respective properties. This is clearly indicated by the investigative survey stating that the deed presented by the appellant/defendant commenced from the south western corner of lot No. 16 and as such, Mr. Jarba cannot own any land within lot No. 16 as he now occupies. It is further disclosed In the report that lot No. 20 is the rightful land for Mr. Jarba in keeping with the deed presented for this investigation and not lot No. 16.
There is no dispute also that the grantors are the appellee/plaintiff. To therefore insist, as the appellant has sought to do, that the findings and recommendation made by the Board of Surveyors were erroneous even in the face of the fact that the parcel of land in dispute is in fact part of adjudicated land where every lot is clearly demarcated and marked, is unacceptable.
At the same time, it is worth remembering an important observation contained in the investigative report. It is indicated in that report that the lot numbers reflected in the respective parties’ title deeds were clearly identified on the ground. This being the case, and to the extent that the parties do not disagree that the piece of property in dispute lies in lot number 16 which is called for by the deed of the Respondent/Plaintiff, it naturally follows that lot number 20 has to be separate and distinct from the property in controversy. Given these facts and circumstances, the inescapable conclusion to be reached is that the property in question exactly lies within the domain and territorial confines of the deed proffered by the Respondent/Plaintiff.
The technical report is emphatic in this regard. It says: In keeping with the ground location, the Jarbas be made to occupy lot No. 20 instead of lot No. 16 which they presently occupy. The Jarbas are in error for occupying lot No. 16 which belongs to the Fagans.
The law in this jurisdiction is that the report of the surveyor is in the nature of evidence. Pratt v. Philips and Summerville9 LLR 446, 451 (1947),In the instant case, the surveyor’s report and the recommendation therein contained is further supported by the fact that the area in dispute forms part of a large track of land identified, plotted and numbered under a national adjudication program of the Liberian Government. Structural development over the years may have changed the outlook on the grounds. Yet it is simply an absurdity too unpolished to insist on, as counsel for appellant seems to suggest, that the lot numbering undertaken by the adjudication commission, buttressing the surveyor’s reliance, should be treated as irrelevant and immaterial reference in a survey exercise seeking to identify and demarcate a piece of disputed land one from the other.
The survey exercise incorporating the adjudication record is not inconsistent with conventional metes defined as ‘the territorial limits of the disputed property as measured by distances and angles from designated landmarks and in relation to adjoining properties’ since the lot numbers were already given. See Metes and Bounds defined; 7th Edition Black’s Law Dictionary (2010).The conclusion reached by the surveyor in this respect and confirmed by the trial judge, which settles the issue of encroachment by appellant on appellee’s land, same being a portion of lot number 16, a plot identified also by National Adjudication Scheme, was therefore no error.
We are also in agreement with the substance of the other part of the recommendations regarding correction of the deeds to reflect the current development on the grounds. But this correction exercise shall be carried out subsequent to the eviction and ousting of the appellant from the encroached lot belonging to appellee, subject of these proceedings.
Wherefore, and following due consideration and reflection, and also having most diligently examined the records of the proceedings, this Court has arrived at the inescapable conclusion that the judgment of the trial court must be, and same is hereby sustained. IT IS SO ORDERED.
Appeal dismissed.
Counsellor Sylvester D. Rennie appeared for the appellants. Counsellor Yamie Quiqui Gbessay, Sr., appeared for the appellee.