MARIE DAVIES-JOHNSON, Appellant, v. ISAAC ALPHA, His Honor, D. W. B. MORRIS,

Judge of the Circuit Court of the Sixth Judicial Circuit, Montserrado County, and URIAS N. DIXON, Sheriff, Montserrado County, Appellees. APPEAL FROM RULING IN CHAMBERS ON PETITION FOR WRIT OF PROHIBITION TO THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 23, 1959. Decided January 15, 1960. 1. In presenting cases before the Supreme Court, counsel are admonished against attempting to mislead the court by omission of material facts. 2. In an ejectment action where defendant has alleged and proved facts conclusively rebutting the essential allegations of the complaint, the action should be dismissed. 3. Prohibition will lie to prevent the execution of a judgment in ejectment by writ of possession directed to property held by a person who was not a party to the ejectment action where, although the parties to the action have taken appeals from the judgment, no proceeding has been instituted to correct errors of the trial court, and no other remedy is available to the affected property holder. 4. A petitioner for a writ of prohibition need not be a party to the proceedings with respect to which the writ is applied for. On appeal from a ruling in Chambers denying issuance of a writ of prohibition against the execution of a judgment on an ejectment action by writ of possession directed to property held by appellant, who was not a party to the ejectment action, the judgment in the ejectment action was set aside, the ruling appealed from was reversed, and the writ of prohibition granted. 0. Natty B. Davis for petitioner. R. F. D. Smallwood for respondents. MR. JUSTICE PIERRE delivered the opinion of the Court. 574 LIBERIAN LAW REPORTS For reasons which will be mentioned later herein, we think it necessary to preface this opinion with these words : Judges in courts of last resort should always seek to probe into the issues raised before them, either in the record or in the argument of counsel, so as to satisfy themselves that transparent justice is meted out to the parties concerned, according to the facts of the law as it relates to those facts. For us to be able to act fairly and intelligently, and in order to assist us to do justice to the parties bringing cases before the Supreme Court, counsel should be honest enough to present all phases of their respective sides in the cases, in order not to mislead the Court, and especially the Justice who presides in Chambers. We expect that counsellors who practice here would so regard the ethics of the profession, that they would think it dishonorable to conceal facts for the sake of expediency, or to advance their side of the case at the expense of fair play. We have made this special comment because we have noticed for some time–and in this case it became most pronounced–that some counsellors who represent parties before this bar, and especially before the Justices in Chambers, are in the habit of representing issues in a manner which has led the Justices into taking positions not legally compatible with the facts later shown in the records of the cases in which remedial processes have been applied for. Such was our discovery during the arguments here, at the hearing of the application for prohibition before the bench, en banc. Mr. Justice Harris, who had presided in our Chambers, and before whom the issues as to prohibition had been raised, and from whose ruling an appeal was taken to the full bench, was not only presented with an argument different from that which had been made in his Chambers, but was also confronted with a document introduced during the argument by the respondents’ counsel, which was never brought into the case before him, and of the existence of which he therefore had LIBERIAN LAW REPORTS 575 no previous knowledge. The said document placed an entirely different light on the case. We do not regard this as ethical practice, and we shall refer to the circumstances in detail later in this opinion. In order to get a proper picture, it is necessary that we go back to the case out of which these prohibition proceedings have grown, and review the record in an effort to ascertain whether normal, regular and accepted procedure was followed in the conduct and determination of the case of ejectment in the court below. One Isaac Alpha entered an action of ejectment in the Circuit Court of the Sixth judicial Circuit, Montserrado County, against one Aaron Tucker, for a lot of land, a portion of Block Number 8o in the Halfway Farm area of the City of Monrovia. He claimed in his complaint that he is the owner of the said tract of land, and that the defendant unlawfully and wrongfully withholds and detains the same from him. The defendant appeared and filed an answer, in Count “3” of which he denied occupying or withholding any portion of Block Number 8o, and contended that he had acquired fee simple title from the Republic of Liberia for property in Block Number 79, and that his said property is separate and distinct from the plaintiff’s land in Block Number 80. He made profert of a title deed in support of his answer, and the pleadings were continued in this strain, and rested with the defendant’s rejoinder. The Judge, feeling it necessary, appointed a board of three surveyors–one to represent the court and two to represent the respective parties–who were instructed to proceed to the area, and on the spot designate. Block Number 8o the subject of the ejectment suit. These surveyors, constituted as a Board of Arbitrators, submitted a report on their work, with an attached map of the area, showing Block Numbers 79 and 80. It is interesting that, although Block Number 8o was the subject of the ejectment , 576 LIBERIAN LAW REPORTS suit, and of the report of the Board of Arbitrators, and although a map was made of Block Number 8o and submitted with the report, the said map does not show any other owner of property therein except the Center of Hope Building, and Isaac Alpha, the plaintiff in ejectment. The significance of this fact was to come later, both in a subsequent map filed by government surveyors, and in the arguments before this bar when the bench sat in hearing of the prohibition. For the benefit of this opinion we have quoted the Report of the Board of Arbitrators in full. It reads as follows : “The Board of Arbitrators in the above entitled cause, constituted and qualified by court to determine the locality of the plaintiff’s land in keeping with his title deeds, and also defendant’s land in keeping with his title deed respectively, in respect of the block numbers of the Halfway Farm area, as stipulated in the title deeds of the respective parties, beg most respectfully to submit the report of their investigation and findings of the issue joined in the above entitled cause : ” i. The plaintiff’s title emanates from J. Koon Sherman who obtained title from the Republic of Liberia for one-quarter acre in Block Number 8o, Halfway Farm Monrovia, in the year 1948. “2. The plaintiff purchased from J. Koon Sherman in 1953 the said parcel of land (see title deeds submitted by plaintiff to court). “3. The defendant’s title emanates from the Republic of Liberia for one-quarter acre in Block Number 79, Halfway Farm Area; Monrovia, in the year 1 953. “The location of the respective] Blocks 79 and 8o was determined from the intersection of Benson and Newport Streets, and the properties of the respective parties were located according to the block numbers in their respective deeds contiguous to the western limits of Newport Street. LIBERIAN LAW REPORTS 577 ” “Findings. r. Defendant’s land was discovered to lie within Block Number 79 near its southeastern limits and adjoining the northeastern limits of Block Number 8o, which portion of Block Number 8o is owned by S. D. George and houses the Center of Hope premises. gI 2. The plaintiff’s land was located accordingly in Block Number 8o, commencing from the southeastern corner of said Block Number 8o, a distance of 132 feet from the commencement of defendant’s land. “3. Both parcels are unoccupied, so far as any evidence of improvement could be seen. “4. This Board does not discover any encroachment by defendant upon plaintiff’s land in view of the respective deeds, the locations of the blocks in question, and the locations of the respective properties of the parties in this action.” As can be seen from the Report of the Board of Arbitrators, the parties in ejectment held titles in two different blocks; so the question of encroachment as alleged in the complaint, did not arise at all. Respondents’ counsel was fair enough to admit this in his argument before this bar. In other words, the position taken by the defendant in his answer had been completely vindicated and upheld by the said report; and one would think that this should have brought the action of ejectment to a close by dismissal of the complaint, which would have averted further litigation, and would have been legally correct and fair to both sides. But instead of following this legally and procedurally correct course, the learned Judge proceeded to issue a writ of possession for the parties to be repossessed of lands in their respective blocks, even though the Report of the Board of Arbitrators had stated so very pointedly that there was no encroachment by the defendant on the plaintiff’s land. A very strange and novel procedure! 578 LIBERIAN LAW REPORTS It has not been explained why, at this stage, the court seems to have needed to consult the Division of Surveys of the Department of Public Works and Utilities in respect to land owned in the area by the petitioner, Mrs. Marie Davies-Johnson ; but on January 27, 1959, that is to say, a day before the Judge terminated the ejectment suit, the Department of Public Works addressed the following letter to Mr. Kennedy, the clerk of the Circuit Court of the Sixth Judicial Circuit, Montserrado County : “DEAR SIR: “On May 17, 1956, the Department of Public Works and Utilities located a piece of land in Block Number 8o, belonging to Mrs. C. W. Davies-Johnson. Mrs. C. W. Davies-Johnson produced a deed dated December 18, 1946. “The land was originally surveyed by Hon. H. B. D. Duncan. Mrs. Johnson showed us two existing corners, the N.W. corner and the S.W. corner. The adjacent owners recognized these corners as belonging to Mrs. Johnson. The corners were established in 1946 by Mr. H. B. Duncan. “From 1946 up to 1956, and later, nobody claimed or made any objections to the existing boundaries of Mrs. C. W. Davies-Johnson’s land. “If the description in a deed is such that a surveyor by applying the rules of surveying can locate the same, such description is sufficient. “Where a deed contains a wrong description, but the land can be precisely identified by inquiry based on the landmarks referred to, the title held by the owner is not merely equitable but legal. “Where, by omitting one part of a false description in a deed, a perfect description remains, the false part should be repected and the instrument upheld. “In the deed of Mrs. C. W. Davies-Johnson the surveyor, Mr. H. B. Duncan, described a piece of land LIBERIAN LAW REPORTS 579 and mentioned landmarks, which landmarks were still existing in 1956. “That in the deed the wrong number is mentioned does not make the deed void or change the location of the land. Following this universal rule made us decide that Mrs. C. W. Davies-Johnson’s land is situated at the place where it has been recognized since 1946. “Respectfully submitted, [ Sgd.] G. SLAGMOLEN Director Division of Surveys, Dept. of Public Works & Utilities, R.L.” As we have said before, the record does not show why this official report, backed by an official map from the Department of Public Works, entered the case as it has done, or why it placed such special emphasis on Mrs. Marie Johnson’s land in Block Number 8o, when she was not a party to the ejectment suit. The official map submitted with the official report of Mrs. Johnson’s property, issued by the Division of Municipal Engineering of the Department of Public Works, shows that Mrs. Johnson, the petitioner, owns almost half of Block Number 8o, the subject of the ejectment suit. Remember, the Judge had issued a writ of possession for the sheriff to put Alpha in possession, based upon a private map submitted by the Board of Arbitrators. At the time when the Judge issued his writ of possession in favor of Alpha for Block Number 8o, he had the official report and the official map of the Government before him, showing a large portion of that block to be the officially recognized property of Mrs. Johnson. We therefore questioned counsel, during his argument, as to whether the Judge had informed the landowners holding deeds for contiguous property of the intended court survey, especially since he has been officially informed by Government agents that the block in question was legally owned in part by someone who was not a party to the ejectment suit before him. We also wondered why 580 LIBERIAN LAW REPORTS the Judge preferred to base his decision on the private map of the Board of Arbitrators, when he= had an official Government map of the area. But then, for that matter, and we also asked, why was it necessary for the Judge to issue a writ of possession at all, when the Report of the Board of Arbitrators had so clearly shown that there was no encroachment by the defendant on plaintiff’s land? These were some of the questions, not raised before Justice Harris in Chambers, but introduced before this Court, en banc, by the presentation of the arbitrators’ map ; and in our effort to get clarification on them, the respondents’ counsel for no known or apparent reason, undertook to start hurling insinuations, and to punctuate his argument with insulting and disrespectful suggestions. We would like to warn that counsel who practice here should learn to comport themselves as should become honorable members of the bar. There are men whose names grace our honor roll today, and whose past practices before this bar are proudly remembered for the clean, dignified and respectful conduct they exemplified before this Court of highest resort. Do not expect the Supreme Court to condone the concealment of certain parts of cases to suit the convenience of certain parties. As confused as the proceedings in the ejectment case seem to have been at this point, the confusion became much worse later. All of the documents we have referred to and quoted so far herein are taken from the file in the ejectment case, which we had to order sent up from the court below, since neither of the parties in prohibition filed any records which could have cleared the confusion in the contentions on both sides. In the absence of such records there was no way of telling whether the Judge had acted in accordance with procedure or not. We will now read the Judge’s ruling, the attempt to execute which has given birth to these prohibition proceedings. It reads : “Before this case was set for trial by jury, counsel for both sides agreed and moved the court that the issues LIBERIAN LAW REPORTS 581 thus joined be submitted to arbitration. Whereupon surveyors P. Tarr Grimes for plaintiff, B. J. K. Anderson for defendant, and Adolph N. Adjavon for the court were appointed, and constituted the Board of Arbitrators who were given terms of reference and the necessary title deeds to put in full operation surveys and make diagrams with a view to satisfy all parties concerned as to the rights and wrongs. “After completing their work, the Board of Arbitrators submitted a unanimous report, with maps supporting, which shows that the defendant, according to the metes, bounds and numbers of the respective deeds, was not encroaching upon plaintiff’s land. “The said report establishes that there are two separate and distinct lots not encroaching one upon the other. In view of the foregoing, the court hereby constitutes this award to be as valid as a verdict, thereby confirming same, and because of the peculiar nature in which the report was made, the court hereby adjudges Lot Number 8o to be that of the plaintiff and Lot Number 79 to be that of the defendant. “This judgment is also supported by a map submitted from the Department of Public Works & Utilities, Survey Division, which is in harmony with the report of the Board of Arbitrators appointed by this court. “The clerk of this court is hereby ordered to issue a writ of possession and place same in the hands of the sheriff, who will proceed to the spot, associated with the Board of Arbitrators, and put the parties in possession of their respective lots, thereby designating the monument made thereon in keeping with the map of this survey. And it is so ordered.” According to this ruling, which was based upon the report of the Board of Arbitrators, Alpha was to be placed in possession of a portion of Block Number 80. According to the Board of Arbitrators’ map, only Alpha and the Center of Hope premises are shown to belong to Block 582 LIBERIAN LAW REPORTS Number 80. So looking at the picture at first blush, everything seems well and in order. The official map of the area, prepared and submitted by the Department of Public Works, however, which official map the Judge referred to in his ruling, shows only two occupants of Block Number 8o–Marie Davies-Johnson, the petitioner, and Sarah Simpson George. Alpha, the plaintiff in ejectment, is not shown at all on this official map; and Marie Davies-Johnson is not shown on the arbitrators’ map ; yet the Judge’s ruling sought to put Alpha in possession of a portion of the said block, and this said ruling claims to be in harmony with the Government map. It is not hard to see, therefore, what chaos and confusion would have been created, if the writ of possession to Alpha had been allowed to be executed by the sheriff. It was at this stage that Mrs. Marie Davies-Johnson, although not a party in the ejectment suit, but fearing the results of the execution of the writ of possession, fled to the Chambers of Mr. Justice Harris for the issuance of a writ of prohibition to stay the hand of the sheriff. In clarification of the situation we will quote the two counts her petition contains. They read as follows : “I. That she is seized in fee simple with a certain parcel of land, namely one town lot, as will appear more specifically from copy of a title deed hereto attached, marked Exhibit ‘A’ and forming a part of this petition. And that she has enjoyed undisturbed occupancy of said piece of land for about more than twenty years, and that her title, as can be seen from inspection of her deed, is derived from the Sovereign. 2. And your humble petitioner, further petitioning, shows that one Isaac Alpha instituted an action of ejectment against one Aaron Tucker for a lot adjacent to, or in the proximity of petitioner’s lot, which proceeding petitioner had no interest in, nor was she made a party to same. And although not a party to said ejectment proceedings between LIBERIAN LAW REPORTS 583 Alpha and Tucker, and not having been brought into court in any controversy over her said lot, yet petitioner understands, and has come to know that His Honor, Judge D. W. B. Morris, in deciding the ejectment case between Isaac Alpha and Aaron Tucker, has made a ruling and judgment that Isaac Alpha should be placed in possession of petitioner’s lot, and not the lot over which he and Tucker were contending. And that said respondent Judge has also given instructions for a writ of possession to be issued in favor of the said Isaac Alpha to place him in possession of petitioner’s lot, even though petitioner has never been in court in the controversy between Alpha and Tucker over any property. Petitioner respectfully avers that the court has no jurisdiction over her to have warranted or authorized the said court to pass judgment affecting and seeking to deprive her of her property. Besides this, in ordering the issuance of the writ of possession against petitioner’s property when she has not been given an opportunity to defend same, the court has proceeded by rule different from those which ought to be observed at all times; and therefore prohibition will lie, not only to prevent whatever remains to be done, but also to undo what has been illegally done. . . .” Against this petition respondents filed returns wherein they contended that the number of petitioner’s deed not being 8o but 8 t, and since the block in dispute was Number 8o, she was a stranger to the proceedings. The significance of the official report submitted by the Department of Public Works with reference to the wrong number of petitioner’s deed, and the length of years of her occupancy, immediately becomes apparent. But we are of the opinion that such a situation should be handled by a different proceeding and before a different forum ; so we will not comment on that phase of the problem. The returns in prohibition also allege that appeal was 584 � LIBERIAN LAW REPORTS taken from the ruling of the Judge by the defendant in ejectment, and therefore a writ of prohibition should not be granted during the pendency of the said appeal. Recourse to the record shows, however, that although plaintiff and defendant both took exceptions to and announced appeals from the Judge’s ruling on January z8, 1959, not a single jurisdictional step had been taken up to the moment of argument before this Court, en banc, quite eleven months from the date of judgment in the court below. So that, unless these prohibition proceedings, or some other had been instituted, there might never have been any means of reviewing the novelties in procedure appearing in the record of the ejectment suit, and the chances of ever correcting the many errors committed by the Judge would have been remote. Prohibition will issue to correct any procedure of an inferior court unknown or foreign to the practice in a jurisdiction. Our rules of practice in all cases of ejectment, provide that writs of possession will issue where it can be proved that one party has unlawfully detained or withheld the property of another, which property must have been the subject of dispute. In such a case, in order to replace the proved and rightful owner in legal possession, such a writ is issued by order of court and served by the sheriff. In the instant case, however, not only are the parties proved to be holding titles to pieces of property in different blocks, without any encroachment upon or interference with each other, but the Board of Arbitrators appointed by the court submitted a written report with a map to that effect, and the court has, by its ruling upheld that report. Under what rule of law was the writ of possession ordered issued? Was it only to place the parties in possession of property which had never been detained, but which they had always peacefully occupied? But why was it necessary for the court to resort to such irregularity? Was it to justify the filing of an unmeritorious complaint in ejectment? It is our opinion that the un- LIBERIAN LAW REPORTS 585 necessary and illegal issuing of the writ of possession, which might have affected the property rights of the petitioner, was sufficient legal ground for the application for the writ of prohibition. It is also our opinion that, in cases where the enforcement or execution of a writ of possession, can be shown by competent and authorized official survey to be likely to affect and disturb the ownership or property rights of persons over whom the court has no jurisdiction, as in this case, and where said property is not the subject of litigation, as also in this case, prohibition will lie to restrain the execution of such a writ of possession where no other remedy is available to the affected party. Prohibition will also lie, in the discretion of the issuing court, to protect the status quo and prevent the service of a writ of possession, the illegal and unnecessary execution of which is likely to defeat the rights of a party, even though the party be a stranger to the ejectment out of which the writ was issued, unless such a party can be shown to have other adequate legal remedy against the court’s enforcement of the writ. The following authorities support this position : “As a general rule any person who will be affected or injured by the proceeding which he seeks to prevent is entitled to apply for the writ, but a person who has no interest therein and whose right will not be affected or injured cannot. At common law it is not necessary that applicant for a writ of prohibition be a party to the suit or proceeding sought to be prohibited ; the writ could issue upon the application of a party or a garnishee, or a stranger.” so C.J. 693 Prohibition � 88. “In England, under the common law, it is not essential that the applicant for the writ be a party to the proceedings against which it is sought, or that he have any interest in the matter other than or different from that of every other citizen.” 42 Am. JUR. 174. Prohibition See also BOUVIER, LAW DICTIONARY 2739-40 Prohibi� 586 LIBERIAN LAW REPORTS 22 tion (Rawle’s 3rd rev. 1914) ; R.C.L. 7-8 Prohibition � 6. No judgment can conclude a person not a party to the suit, nor can it affect the property of such a person unless he has been brought under the jurisdiction of the court. In the instant case, there is no question of the Judge not knowing that his judgment sought to conclude the petitioner, who was not a party in ejectment. Both the official map and official report from the Department of Public Works established that the petitioner, and not the plaintiff in ejectment is part owner of Block Number 80. It was argued that the petitioner should have allowed the writ to be served, and if her property were affected thereby, to take legal steps to correct any errors which might have been committed. We cannot bring ourselves to agree with such a strange doctrine; for it is an old maxim that he who stands by and allows his property to pass into the possession of another, is thereafter estopped from raising contentions to the contrary. In view of the foregoing, and of what we have been able to find by sifting through and probing into the much confused and tangled mass of facts found in the record, we are of the considered opinion, that the Judge erred by not dismissing the complaint in ejectment, and terminating the unmeritorious suit brought by Alpha, especially after he found the plaintiff’s allegations to be untrue and unsupported by the report of the Board of Arbitrators which the Judge had commissioned. We are of the further opinion that the Judge also erred by issuing a useless and ineffective writ of possession to repossess parties who were already in possession of their respective lots, after the Board of Arbitrators had reported that there was no encroachment by the defendant on plaintiff’s land. In order to correct the aforesaid errors committed by the Judge, the writ of possession which was ordered issued in the ejectment suit, to repossess Alpha and Tucker of LIBERIAN LAW REPORTS 587 their already possessed property, is hereby cancelled and rendered a nullity. The parties in ejectment are commanded to return to and remain in the original position in which the unmeritorious suit of ejectment found them. The clerk of this Court will issue the necessary orders which will perpetuate the alternative writ of prohibition already issued. Costs of these proceedings are ruled against the respondent. And it is so ordered. Prohibition granted.