A. K. AIDOO, Appellant, v. CHARLIE D. JACKSON, Appellee.

APPEAL FROM THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued May 19, 1975. Decided June 26, 1975. I. Where evidence of title in an ejectment action is insufficient to support a finding, the Court will order the case remanded for an accurate survey by a board of arbitrators. Appellant instituted an action in ejectment against appellee. At the trial the plaintiff was able to show a chain of title going back 40 years, but no further. The defendant produced a public land sale deed from the Republic, acquired after the start of the action. A jury trial was held and a verdict returned for the defendant. The plaintiff appealed from the judgment. The Supreme Court closely examined the evidence and found such grave inconsistencies that it declared itself unable to determine the issue of title. Therefore, the Court remanded the case and ordered the appointment of a board of arbitrators to conduct a survey of the land at issue. The judgment was vacated and the case remanded. J. Dossen Richards for appellant. Samuel Pelham for appellee. MR. JUSTICE HENRIES delivered the opinion of the Court. The appellant brought an action of ejectment against the appellee in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, alleging that the appellee had unlawfully entered upon and commenced operations 306 LIBERIAN LAW REPORTS 307 on a parcel of land, No. 19-B, located on Clay Street in the city of Monrovia, which appellant had acquired in 1953. After calling appellee’s attention to this encroachment, and upon his refusal to vacate, appellant instituted ejectment proceedings against the appellee who allegedly was successful in evading the service of process. Later, this action at bar was brought, and appellee appeared and answered by simply denying the facts. He subsequently withdrew his answer and filed an amended answer together with a public land sale deed from the Republic of Liberia. A trial was held which resulted in a verdict and judgment for the defendant, now the appellee. It is from this judgment that appellant has appealed to this Court. The appellant filed a bill of exceptions containing four counts, but only one issue was argued before us. That issue was whether a plaintiff in ejectment who possesses a forty – year – old title to the property in dispute, but who is unable to trace his title to the sovereign, can recover against a defendant who obtained title from the Republic after the inception of the action. In order to resolve this question, it was necessary that we delve into the record certified to us, and cull therefrom the relevant evidence which would put the issue in its proper perspective. We found that the appellant acquired a half-lot, No. 19-B, situated on Clay Street, Monrovia, from A. N. Pearson on November 26, 1953, and his deed was probated on December 8, 1953. The description of the deed follows : “Commencing at concrete monument 66 feet South 38 degrees West from the North West corner of the adjoining lot No. 19 “b” owned by Lewis Benson and running South 38 degrees West 66 feet thence running South 52 degrees East 82 – 1/2 feet to the place of beginning and contains the Southern half of said lot and no more, and containing one-eighth (1/8) acre of land and no more.” 308 LIBERIAN LAW REPORTS Appellant’s grantor, A. N. Pearson, purchased this property from J. N. Roland and Anna Roland on August 22, 1945, and probated the deed containing the same description on August 27, 1945. Six years earlier, in 1939, Anna Roland had bought this property from M. Nemle Russell and Williette V. Russell. This deed containing the above description was probated on August 22, 1945. It, too, contained the above quoted description. The Russells acquired the same property from F. G. Sirleaf and Caroline L. Sirleaf on December 12, 1933 ; and their deed was probated on December 13, 1933. Thus far the appellant’s title can be traced back to 1933, almost forty years prior to the filing of this action. In the lower court, the appellant testified, both in his statement-in-chief and while under cross-examination, that the appellee had approached him several times to leave the property, but he had refused. The last approach was six months before appellant was served with a notice of survey. Also, on cross-examination appellant testified that he had earlier filed an action of ejectment against appellee, but the writ was never served on him. However, after the second suit was filed, the appellee filed with his amended answer a public land sale deed signed by President W. R. Tolbert, Jr., dated March 12, 1973. The deed, which was probated on March 13, 1973, calls for a parcel of land situated in the City of Monrovia, Montserrado County, bearing the number N/N, and describes as follows : “At a point marked ‘A’ and running thence on Magnetic bearing South 38 degrees 32 feet West 133.5 feet to a point, thence running North 53 degrees West 66.5 feet to a point, thence running North 43 degrees 32 feet East 56 feet to a point, thence running North 43 degrees East 93 feet to a point, thence running South 44 degrees 37 minutes East 111.5 feet to the place of LIBERIAN LAW REPORTS 309 commencement and containing 17565.5 sq. feet or 1-1/a lots of land and no more.” It appeared to us that the description in the appellee’s deed differs considerably from that contained in the several deeds prof erted by the appellant. We also observed that the appellee’s deed calls for 1-1/2 lots, while appellant’s deeds provide for a half-lot. Moreover, the Land Commissioner’s certificate, which was filed with appellee’s amended answer, refers to a half-lot. It is difficult to understand why the parties never detected these inconsistencies in the lower court or on appeal. Going still further in the record we found the following significant cross-examination of the Land Commissioner of Montserrado County by appellant’s counsel : “Q. Mr. Witness, please tell the court and jury how or by what means you determined the piece of property as being public land? “A. I know this because it was determined by the Surveyor of the Ministry of Public Works and Utilities that the lot in question was part of the public domain. “Q. What official of the Department of Public Utilities determined that this particular land was public land and did he give you that in writing? “A. Not being an encyclopedia I cannot remember everything done in my office during my incumbency as Land Commissioner for Montserrado County. “Q. That may be quite true Mr. Witness, but do not forget that you are a witness for the defendant and as such are subject to cross-examination. To test the veracity of your testimony. Now do you mind giving a better answer? “A. I am indeed sorry that my answer being otherwise that I have to go and search my records. “Q. You have certified to the President as Land 310 LIBERIAN LAW REPORTS Commissioner that the land in question forms no part of any reserve or private property. The statute controlling your office provides that you as Land Commissioner must satisfy yourself that the land is unencumbered and not privately owned before you certify to the President. Did you as Commissioner satisfy yourself that the land in question was unencumbered and not privately owned before you certified that fact to the President and if so, by what means did you satisfy yourself? “A. I am not a grammarian, m satisfaction comes from a certified survey by the President. “Q. What commissioned survey by the President satisfied you that this land is public land? “A. I cannot say off-handedly except I search the whole records. “Q. Mr. Witness, have you ever been in the area where the land is located? “A. No. “Q. All you know about the land being public land is what TomTom told you? “A. One writer says have the courage, acknowledge your ignorance than to seek for credit under false pretense. I do not know the meaning of TomTom. “Q. I simply mean, Mr. Witness, that no surveyor gave you any certificate that the land is public land? “A. Yes, the man who surveyed the land gave me the certificate. “Q. Did I understand you to say that you honorably retired in 1971, as Land Commissioner? “A. I have the letter in my file but I cannot remember now whether it was 1971 or 1972. “Q. But can you remember whether you were Land Commissioner in 1973? LIBERIAN LAW REPORTS 311 “A. I cannot remember that except the letter that the President wrote me. “Q. I assume that you were not a Land Commissioner in Montserrado County,in March, 1973, and if my assumption is correct, say by what authority you signed the deed as Land Commissioner issued by President Tolbert on the 3rd day of March, 1 973? “A. I cannot remember unless I got my records. “Q. Since you are conveniently forgetful this morning, tell the court and jury what you meant when you said ‘I was employed by President and the Government of Liberia from 1955 to 1971 ?’ “A. In my school days, my professor used to tell me the very best professor makes mistakes. So I made mistake in the day. “Q. And you could have also made a mistake in other parts of your testimony, not so? “A. No I No I No I” We quoted this excerpt from the record of the trial because it brings into issue whether or not the parcel of land the appellee is claiming is in fact public land. The Public Lands Law, 1956 Code 32 :3, provides as follows. “Sec. 2. Duties of Land Commissioners. Each Land Commissioner if satisfied that public land about to be sold is not privately owned and is unencumbered shall issue a certificate to a prospective purchaser to that effect.” See also Section 3o of the same title. This section has been interpreted by this Court in Harmon v. Republic, decided May 6, 1975, as requiring that “before any public land can be sold or before anyone claiming a certain parcel of land to be public land can buy same, the Land Commissioner must have conducted some investigation to ascertain the exact status of same and to determine whether the land involved is encum- 312 LIBERIAN LAW REPORTS bered or not.” It is obvious from the testimony of the Land Commissioner that he did not conduct such an investigation before issuing the certificate for the survey or the execution of the deed by the President. Such neglect to carry out his duties by the Land Commissioner does tend to cast doubt on the declaration contained in his certificate for the survey, and does appear to lend support to the appellant’s contention that the parcel of land in dispute, located in the metropolitan area of Monrovia, could not have been public land in 1973, not only because the appellant had title to it, but because of the apparent difficulty in finding unencumbered land in the city. As a result of the disharmony between the Land Commissioner’s certificate and the deed, there is an uncertainty as to whether only a half-lot or one-and-a-half lots were public land. If we follow the Land Commissioner’s certificate, then only a half-lot was public land and, therefore, the President inadvertently issued a deed for more than a half-lot in favor of the appellee, because the execution of the deed must be based on the finding of the Land Commissioner. Since appellee’s public land sale deed calls for 1-1/z lots, it is possible, indeed probable, that either appellant’s half lot is within, or is adjoining, the appellee’s 1-1/2 lots. If the former is true, then the question arises as to which of the three half-lots is public land, and if the latter is the case, then the appellant’s title still stands. Because of the grave inconsistencies that we have discovered from the evidence contained in the certified record of the trial court, we find it unpropitious to determine at this moment the main issue argued before us with respect to which of the parties has a better title. Instead, in keeping with Freeman v. Webster, [1961] LRSC 29; 14 LLR 493 (1961), we deem it to be fair and proper that the case be remanded to the lower court with instructions that an impartial survey be made of the lands described in both LIBERIAN LAW REPORTS 313 deeds, starting first at the same point and following the same course as the original survey in appellant’s deed, which is older ; and afterwards following the same procedure with respect to the description in appellee’s deed, assuming that there is no difficulty in following the original lines of the previous surveys. See also Salami v. Wahaab, Is LLR 32 (1962) ; Karpeh Wreh v. Bakerflzango, [1968] LRSC 16; 18 LLR 293 (1968). This survey must be conducted by a board of arbitrators composed of a chairman and two additional surveyors to be appointed and sworn to determine the metes and bounds of the land in dispute and tender its report to the court for further action. Each party must be given the right to nominate one arbitrator and the court must appoint the third. The resurvey must be done in the presence of the interested parties, on whom notice must be served. Costs to abide final determination of this matter. And it is hereby so ordered. – Judgment vacated, case remanded.