THE BASSA BROTHERHOOD AND INDUSTRIAL BENEFIT SOCIETY, Informant v. A. ROMEO HORTON, personal representative of the late D. R. HORTON, et al., Respondents.

INFORMATION PROCEEDINGS FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT COURT, MONTSERRADO COUNTY.

Heard November 11 & 12, 1981 Decided February 5, 1982

1. By-laws are created for the governance of a corporation or organization; they may be created and made binding on the members by custom; and where not in violation of the Constitution or law of the State, by-laws shall be enforced for the governance of the members.

2. A by-law, which has been acquiesced in for a long period of time, is presumed to have been regularly adopted and is therefore enforceable according to its terms.

3. One who obstructs the enforcement of the judgment of the Supreme Court is in contempt of the Supreme Court.

4. The change in the membership composition and the nomenclature of the Supreme Court, as was done in 1980, does not affect the supremacy and the finality of the decisions of the former Bench or the current Bench.

5. As long as the judgment of the Supreme Court is not fully enforced and legally satisfied, the Supreme Court retains jurisdiction, and upon information given to it to that effect, the Supreme Court shall grant appropriate relief for the full enforcement of its judgment.

Informant filed a bill of information with the Supreme Court, complaining that the judgment of the Supreme Court evicting A. Romeo Horton, one of the respondents, and placing informant in possession of the property, had not been enforced and fully satisfied, and that Corespondent Horton had obstructed the enforcement of said judgment. The Supreme Court ruled that even though its membership had changed since its most recent decision in the case, not only was it duty bound to grant appropriate relief for the full enforcement of its judgment, but it will hold in contempt any person who may have obstructed the enforcement of said judgment. The information was granted.

J. Emmanuel R. Berry appeared for the informants. S.Raymond Horace appeared for the respondents.

MR. JUSTICE YANGBE delivered the opinion of the Court.

Even though several opinions and judgments of this Court have been reported on this case, yet, each party in this information proceeding has only relied upon and cited in support of his argument the last opinion and judgment of this Court. The Bassa Brotherhood Industrial and Benefit Society v. Dennis et al.[1971] LRSC 60; , 20 LLR 443 (1971).

A careful look at that opinion reveals that although the judgment of the circuit court was objectionable in part, yet, the plaintiffs in the lower court did not announce an appeal; and that the defendant did appeal but subsequently withdrew the appeal. Despite this fact, the plaintiffs, for some unknown reasons, later applied to the Supreme Court for a writ of certiorari as a form of relief from the judgment. The Supreme Court expressed its regrets that the form of relief sought precluded a full treatment of the cardinal issues raised as it would otherwise have been had an appeal from the judgment been formally taken. The Supreme Court further opined that the extraordinary remedial writ of certiorari was not available where ordinary appellate procedure could have been taken, and that certiorari would not be used in a manner that it usurps or replaces the functions of an appeal. Therefore, although the Court en bane denied the issuance of the peremptory writ of certiorari, it modified the judgment of the circuit court and ordered that the informant be put in possession of the land awarded by the judgment of the circuit court without any regard to the internal bickering over its membership.

A further perusal of the opinion reveals that when the case was called before the Supreme Court, the Supreme Court inquired of counsel on both sides as to whom judgment could be rendered against should the Court decide in favour of the plaintiffs/informants, as the defendant, D. R. Horton, had died in 1964, during the pendency of the action. The counsel on both sides thereafter agreed that A. Romeo Horton, the oldest son of the deceased defendant, be substituted for his father. However, the legal significance of this requirement was only for the purpose of enforcing judgment; hence, basically procedural.

It is necessary to note here, as dictum, that according to the judicial history of this country, the simultaneous denial of an application for the remedial process and the modification of the judgment of the trial court, now as part of our court procedure, has its roots in the case Helou Brothers v. Kiazolu-Wahab et al.[1966] LRSC 60; , 17 LLR 520 (1966). But five years later, this Court, in the case B. F. Goodridge, Inc. et al., v. Bsaibes et al.[1971] LRSC 12; , 20 LLR 228, (1971), recalled that portion of the opinion recorded in the Helou Brothers case, insofar as it related to the simultaneous dismissal of an application for a writ of error and the modification of the lower court’s judgment.

It appears that the concept that the Supreme Court may simultaneously modify the judgment of the lower court and also refuse to grant the issuance of the peremptory writ of certiorari is still riveted onto the mind of this Court. For some reasons which dehors the records, five years later (1971), the Supreme Court adopted the same procedure; in that, although it denied the issuance of the peremptory writ of certiorari, yet, it modified at the same time the judgment of the trial court, thereby completely losing sight of its holding in the B. F. Goodridge et al. Case already cited hereinabove. It is vitally important to observe again here that the Helou Brothers et al., case no longer falls under the doctrine of stare decisis in this jurisdiction in consequence of its recall by this Court in 1971.

In answer to an inquiry from the Bench during argument before this Court, counsel for respondents frankly admitted that it was the inherent right of the Supreme Court to recall its former holdings in subsequent decisions, but contended that the recall did not take retroactive effect. In other words, he contended that the rights that were vested by those recalled decisions remained intact.

We are in complete agreement with this theory; therefore, the crucial issue that presents itself for a final determination of this outstanding and intricate land dispute is: what were the rights vested in the party litigants by the former Court in its holding of 1971 in the light of the facts of this case?

It is obvious from the opinion and judgment of this Court handed down in 1971 that the land in dispute was awarded to the informant, a fact conceded and not pursued in this information proceeding; hence, it is not an issue of controversy in the proceeding at bar.

In count three of the bill of information, Article 9, page 11 of informant’s constitution and by-laws, is quoted, as follows:

“Ninety days after burial of a deceased member, who has erected a dwelling house on the Society’s land, the bereaved family may recommend his or her heir or nearest blood relative to substitute such deceased member in the Society. But failing to make such recommendation, the Society shall have the ultimate right to evict the tenant so occupying the deceased member’s house.”

It is alleged, and not denied in the returns, that A. Romeo Horton, the oldest son of D. R. Horton, has never been recommended nor has he ever applied for membership to substitute his late father, D. R. Horton, in the Society as required by the provisions of the constitution and by-laws of the Society hereinabove quoted.

By-laws are rules and ordinances made by a corporation for its own government. The office of a by-law is to regulate the conduct and define the duties of the members towards the corporation and among themselves. The power to make by­ laws is usually conferred by expressed terms of the charter (constitution) creating the corporation. When not expressly granted, it is given by implication, and it is incident to the very · existence of a corporation. The power of making by-laws, if the charter is silent, resides in the members of the corporation.

By-laws, when contrary to the constitution or laws of the State, are void, whether the charter authorizes the making of such by-laws or not; because no legislature can grant power than that which it possesses. By-laws must not be inconsistent with the charter or constitution. All by-laws, if reasonable, bind all the members who are presumed to have notice of them. A by-law may be created and made binding upon the members by custom.

A by-law which is acquiesced in for eleven years, must be presumed to be regularly adopted; and by-laws adopted by stockholders, but not by an expressed vote of the directors, will be considered as adopted by the directors, where their conduct indicate that they have regarded them as the by-laws of the corporation.

In England, the term “bylaws” includes any order, rule or regulation made by any local authority or statutory corporation subordinate to parliament. Under some circumstances an action may be brought upon by-laws against members who may do acts in derogation of the by-laws. BLACK’S LAW DICTIONARY 182 (5th ed.).

Although A. Romeo Horton is not a member or officer of the Informant Society, he is privy to it, in that, he claims under his father, D. R. Horton, who was a founder and officer of the corporate body. Therefore, informant’s constitution and by laws are binding upon him as far as they relate to the rights of the late D. R. Horton on the property at issue.

Counsel for respondents in concluding his argument, emphasized that we read carefully the last opinion of this Court as found in this same case (The Bassa Brotherhood Industrial and Benefit Society v. Dennis et al.[1971] LRSC 60; , 20 LLR 443 (1971)), as our guide in reaching our decision in this case. We will quote the pertinent portions thereof with reference to A. Romeo Horton as substitute for the deceased defendant, D. R, Horton, coupled with his continuous occupation of the land that was awarded to the Informant Society in the judgment of the trial court, as modified by this Court:

“For some unknown reason which is not apparent, there has been no motion filed for substitution of party defendant, although defendant Horton has died since the commencement of the suit in 1964. So, when the case was called at this Bar, we inquired of counsel on both sides as to whom judgment would be rendered against should the Court decide in plaintiff/petitioner’s favour. The parties, thereafter, agreed that A. Romeo Horton, oldest son of the deceased defendant, was to be substituted for his father. The significance of this requirement is dealt with later in this opinion… ‘

We reproduce below the clarification together with the legal significance of the substitution of A. Romeo Horton in place of his late father, D. R. Horton, as ordered by the Supreme Court: “It is our opinion that the judgment and the writ of possession quoted from herein, seek to accomplish their purpose without regard to the split in the membership of the organization. It is not our opinion that property belonging to the Bassa Brotherhood Industrial and Benefit Society could be inherited by or descend to, the heirs of the late D. R. Horton, as petitioners in certiorari have interpreted the judgment. We do not feel that the text of the judgment justifies any such interpretation. The ten acres of land purchased by the Society from B. J. K. Anderson, and the thousand acres purchased from the Government is property of the Society as a corporate body holding to it and its successors in perpetuity.”

Again, this Court held in the same opinion that:

“It was also necessary to redocket this case and hear it again, because defendant Horton died before the case was terminated and enforcement of the judgment against him was impossible. For how could the Court enforce a judgment against a dead man?”

Furthermore, judging from the opinion cited supra and the argument of the counsel for respondents, the question as to who are the legitimate members or officers of the Informant­ Society is not clear, and procedurally, such issue cannot be legally adjudicated in ejectment or information proceedings. We therefore suggest the writ of quo warranto as a better form of action.

Consequently, in our opinion, whether Harris T. Williams and Abraham Mayson, corespondents herein, on the one hand, and the informant, on the other, are the legitimate successors of the deceased trustees of the Society whose names appear in the deed, is not the subject of this information proceeding or the parent action of ejectment.

Apart from the procedural reason stated hereinabove, which precludes us from passing upon internal matters, the last opinion of the former Bench in this case shows that there was a dispute which had arisen over the illegal expulsion of several members of the Informant Society by the late D. R. Horton, which, in keeping with the Informant Society’s constituent documents, was referred to arbitration; but it is also observed that the expulsion of members of the Church, not the informant Society, was declared irregular and hence no appeal was taken from the decision. Consequently, what membership of the Informant Society bears on membership of the Church is not clear from the records.

From all indications, there are two obvious reasons why this case has found its way again on our docket by way of information, namely: 1) The last opinion of this Court is still being misconstrued to mean that A. Romeo Horton, the substitute for his late father, D. R. Horton, is to inherit the improve ments made by his late father on the land owned by and awarded to the Informant Society by the Court, and 2) the issue of who are the legitimate members and officers of the Society entitled to be put in possession as custodians of the property, remained undecided hitherto and it is expected that the same will be decided in these proceedings. We hold a negative view.

It was argued with emphasis that these points had been raised in the trial court; but the fact remains that the same can only be decided in appropriate proceedings and not information or ejectment proceeding.

Counsel for respondents also contended that respondents have not committed contempt of this Court. It would be superfluous to over-emphasize the fact that we inherited all the functions and powers of the former Bench which finally decided this case, confirming the judgment of the trial court and ordering that the Informant Society be repossessed of the real property in question.

We observe in that opinion that Co-respondent A. Romeo Horton obstructed the enforcement of the judgment of this Court, and his acts were therefore contemptuous to this Court; notwithstanding, the judgment has not yet been enforced, which is the basis of these proceedings.

We are of the firm conviction that all of the questions raised by this bill of information are fully discussed and settled in the opinion of this Court cited supra.

According to Article IV, Section 3rd of the suspended Constitution of Liberia, which was in vogue when this case was decided on November 26, 1971, the judgment of the Supreme Court is final to all intents and purposes. Similar provisions are contained in PRC Decree No.3, which reconstituted this Court and other subordinate courts of this country. Hence, the change in the membership composition and the nomenclature of this Court does not affect the supremacy and the finality of the decisions of the former Bench or the present Bench. This Court may only review its decisions upon petition filed for re­ argument, according to law; otherwise, its decisions are final in any given case. Hence, any attempt made by litigants before us, or lawyers for that matter, to castigate or impugn upon the former Supreme Court for whatever that Bench might have done in a matter before it, is highly contemptuous, and this Bench will not tolerate it. We therefore sound this as a strong warning to all litigants, especially lawyers, against repetition of this act.

According to our Code of Moral Ethics, Rule 1, we are warned that:

“It is the duty of every lawyer to maintain towards the courts a respectful attitude, not only towards the judge temporarily presiding, but for the purpose of maintaining the supreme importance of his judicial office. Whenever there is proper ground for complaint against a judicial officer, it is the right and duty of the lawyer to submit his grievances promptly and fairly.”

No petition was filed for re-argument in this case and the judgment rendered against informant for contempt of court was fully complied with. Therefore, it was final and it is obvious that we have no legal authority to interfere with the contempt committed by informant against the former Bench of this Court. However, as long as the judgment of the former and the present Bench of this Court is not fully enforced and legally satisfied, this Court still retains jurisdiction in any given case, and upon information given to this Court to that effect, appropriate relief will be granted for the full enforcement of the judgment.

In view of the revelations above, it is our opinion that A. Romeo Horton, the oldest son of and the substitute for D. R.Horton, co-respondents, Harris T. Williams and Abraham Mayson, be evicted from the ten acres of land and the one thousand acres of land, respectively, which were awarded to the Informant Society by the judgment of the trial court, and the Informant Society be immediately placed in possession thereof as its property in keeping with the metes and bounds of the deeds of the land in issue.

During the execution of the judgment, the sheriff is instructed to employ the technical aid of a competent and licensed surveyor from the Ministry of Lands, Mines & Energy of the Republic of Liberia to survey the respective parcels of land in keeping with the deeds of the Informant Society. The deeds for the property should be turned over by the sheriff to the Informant Society in these proceedings as custodian thereof on behalf of the Informant Society.

Costs of this proceeding to be charged against the respondents. And it is so ordered.

Information granted.