Children Assistance Program v Tamba et al [2006] LRSC 24 (21 December 2006)
IN RE: Children Assistance Program, (CAP), by and Thru its Coordinator, Mrs. Defore Weeks of Sinkor, Old Road Monrovia, Liberia PETITIONER/APPELLANT VERSUS His Honour B. S. Tamba, Justice of the Peace, Mont. Co. Montserrado County, and Haywood Mission Institute Represented by its Administrator, Leo Simpson also of Sinkor Old Road, Monrovia Liberia RESPONDENT/APPELLEE
SUMMARY PROCEEDING TO RECOVER POSSESSION OF REAL PROPERTY
Heard: October 31, 2006 Decided: December 21, 2006
MRS. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT
The certified records in this case reveal that Haywood Mission an educational institution, located on the Old Road, Sinkor, instituted an action of Summary Proceeding to Recover Possession of Real property against Children Assistance Program (CAP) a nongovernmental organization).The property to be recovered is a portion of a 5.1 acres of land that was occupied by the American Cooperative School (ACS) located near Haywood Mission. Haywood Mission claims original ownership to a portion of said ACS premises.
The Summary Proceeding to Recover Possession of Real Property was filed in the Justice of the Peace Court, before His Honour, B. S. Tamba, located in the former Institute of Public Administration Building (IPA). The case was twice assigned for hearing but on each occasion neither the Respondent nor their lawyer(s) appeared even though they were served with the Notice of Assignment, which failure to appear led to a default judgment entered according to law, against them. The Justice of the Peace issued a Writ of eviction ordering that C. A. P, be evicted and Haywood Mission be possessed of the claimed portion of the premises. Upon receiving notice from his clients who were about to be evicted , Counsel for Defendant/Appellant proceeded to the Chambers of the Judge of the Sixth Judicial Circuit for a Stay Order and that the Justice of the Peace be cited for a conference. From this point on, Counsel of the Defendant, CAP, made several efforts to find a way out of the spider web that had been created by the failure of Defendant or Counsel to appear when cited for the hearing. The Counsel for Defendant applied for various hearings in the Civil Law Court: information, then another information, and Summary Proceeding, but failed each time to have the default judgment vacated or its enforcement prohibited.
Finally, Counsel for Defendant/Appellant filed another Summary Proceeding against the Justice of the Peace complaining this time that the said Justice of the Peace had refused to approve his appeal bond. After hearing arguments pro et con, Judge Kaba of the Sixth Judicial Circuit Court, ruled against the Defendant/Appellant again. He announced an appeal to the Supreme Court which appeal he perfected and has filed a 7-count Bill of Exceptions, quoted as follows:
1. Because, Petitioner says issue that is not required to be decided by a jury shall be decided by a Court, and longlines of opinions of the Honourable Supreme Court makes it mandatory that the Court shall pass upon all the issues raised.
2. Petitioners raised the issues of belated filing of the Returns to the Petition which Returns was filed and serves as the Petition after the case was called and after commencement of argument by the Petitioner. The Court merely mentioned the belated filing and service of the Returns but without passing upon the legal consequence of such a belated filing, but the Returns which should have been filed before the date on which the Petition was noted for hearing. This act of the Trial Judge by not ruling out the Returns is prejudicial and reversible. (See sheet seven of the Ruling).
3. That series of information filed by the Petitioner complained that the Respondents had continuously violated and disobeyed the Mandate of this Honourable Court. Example, on the 3 rd day of December 2004, predicated upon the Bill of Information filed by the Petitioner on the day of December 2004, this Court mandate the Respondents Justice of the Peace to resume jurisdiction; set aside His Order of November 30, 2004, and proceed by affording the Petitioner due process of law. Again, the Respondent Justice of the Peace refused to abide by the order as a result, Co-Respondent, Haywood Mission remained in possession, filed to vacate the premises, and the Petitioner was never allowed to be afforded the opportunity of participating in any hearing as per the mandate of His Honour Circuit Judge. Your Honour Yussif D. Kaba, Failed to see to it that, the prior order given by the Justice of the Peace on 30th November 2004 was set aside. This act of the Respondent Justice of the Peace is reversible and prejudicial but Your Honour did absolutely nothing about it.
4. That Your Honour finally ruled that, the Respondent Justice of the Peace rendered alleged Default Judgment due to this alleged absent of Counsel for Petitioner, and that Counsel for Petitioner made notations on Notices of Assignments that was in the Supreme Court without any evidence or Notices of Assignment from the Honourable Supreme Court. According to the writ of Summons upon which the alleged Default Judge was entered by the Respondent Justice of the Peace, is dated 9 th and 15th December 2004, and alleged Judgment recorded at the back thereof is dated 8THday of December 2004, quiet contrary to the dates of the Notice of Assignments that the case should be heard on the 9 th day December at 9:p.m. and 15 th December 3:p.m. The date of the alleged Default Judgment recorded on the back of the summons is 18th day of December 2004, therefore, it is crystal clear that Counsel for Petitioner was notified of assignments, acknowledged by him but he was in the Supreme Court as an excuse.
5. That Your Honour Final Ruling denying the Petition is prejudicial and erroneous, in that, in the entire Returns of the Respondents as well as your own Ruling, no mention is made as to the date of the Default Judgment of the Justice of the Peace on which date Petitioner was notified and failed to appear. The two Notices of Assignments for hearing of the case on the 9 th and 15th December, 2004 on these dates, no Default Judgment was rendered by the Court until December 18, 2004, therefore, the alleged Default Judgment on December 18, 2004 is not in existence we according to the Writ of Summons and the recording thereon.
6. That Your Honour Ruling that Petitioner had appealed from the Default Judgment is not support by record in that, on the 4 th day of January, 2005, Petitioner appeared before the Justice of the Peace with the notices that the Principle of the Mission had entered the premises sued for while the case was still pending in Court which information was denied by the Respondent Justice of the Peace and Petitioner noted exception and announced appeal to the Circuit Court. Therefore, on the 5 th day of January, 2005, Petitioner filed a Petition for the Court to order the Justice of the Peace to approve its Appeal Bond non pro tunc, but not appeal for review of an alleged Default Judgment. The petition together with the Appeal Bond is in the case file.
7. In the four counts Petition, Petitioner raised Constitutional issue and cited Article 20 a) and b) of the Constitution of Liberia but Your Honour failed to pass on the issue fully in order to enable the appellate Court to review same and make a definite decision.
Wherefore and in view of the foregoing, Petitioner presents this document for Your Honour’s approval for the case to be reviewed by the appellate Court.
Subsequent to the perfection of the appeal process, Appellant sprank a surprise. He filed a Motion to dismiss his own appeal on the following grounds that:
(1) Justice of the Peace B. S. Tamba who heard and decided the Summary Proceeding to Recover Possession of Real Property had no territorial jurisdiction to hear the case involving Property located in Sinkor which according to him falls within the Magisterial district of the City of Monrovia.
(2) That B. S. Tamba’s Court in the old IPA Building was one of the JP Courts shut down by the Gyude Bryant Government after a Supreme Court Quo warranto case decided 16 t September 2005.
(3) That Justice of the Peace B. S. Tamba was not appointed according to the constitutional requirement. “With the advice and consent of the senate.”
(4) That because the Justice of the Peace had no authority as prescribed by law, the default judgment he rendered, which was upheld by the Circuit Court is void at initio. Same should therefore be vacated.
(5) That the issue of territorial and/or subject matter jurisdiction can be raised at any stage in a trial before final judgment.
Counsel for Respondents filed returns to the Motion contending in essence as follows’:
1. That Justice of the Peace B. S. Tamba operated his Court in the township of Congo Town outside of the City limits of Monrovia.
2. That Movant’s averment that JP. B. S. Tamba was not appointed “with the advice and consent of the Senate” was a speculation with no evidence to support the allegation, and that B. S. Tamba was duly commissioned as Justice of the Peace to operate within the township of Congo Town
3. That the Supreme Court judgment in the Quo Warranto case that was rendered on 16 th September, 2005, was never meant to be retroactive so as to render void the judgment in this case dated December 15, 2004.
The issue that is determinative of this Motion to vacate the default judgment of Justice of the Peace B. S. Tamba is: whether at the time B. S. Tamba heard and decided the Summary Proceeding to Recover Possession of Real Property, he had the legal authority to do so and if he did, whether he had jurisdiction over the territory, and the subject matter. Those are factual issues, answers to which must be found on the face of the certified records, and not beyond.
We are in full agreement with the Appellant that the issue of territorial jurisdiction can be raised at any time during a proceeding before final judgment. It can even be raised for the first time on the appellate level as was done in this case. However, we wish the Appellant had raised the jurisdictional issue earlier which might have put this matter to rest in the Court(s) below. And by so doing save both parties and the Courts the troubles that are associated with prolonged and multiple litigations or time consuming legal processes. The Appellant instead, chose to jug to the Civil Law Court filing as many processes as he could think of e.g. Summary Proceeding to cite the Justice of the Peace who was about to execute a “wrong judgment”, information that the said Justice of the Peace was not desisting from enforcing his judgment, and Summary Proceeding to order the Justice of the Peace to approve an appeal bond, announcing an appeal after the reading of a mandate from the Civil Law Court to the JP Court to enforce judgment, and then finally completing an appeal to the Supreme Court to review all of the above. We all could have been speared the tedious legal procedures that can sometimes be frustrating and time consuming We will be relieved, however, to know that Appellant did not deliberately postpone raising the jurisdictional issue. We hope it was a last minute awakening, a divine revelation perhaps to save the day or prevent appellate review of his case, the outcome of which he was perhaps not too sure would be gratifying to him and his client. Whatever Counsel’s reason must have been, it is only he who knows and we cannot now ask him to tell.
The law controlling the issue of territorial jurisdiction states that the issue may be raised at any time prior to final judgment, and that it is conferred by law and not by consent of parties. Hill VS. Republic of Liberia 2LLR 517 (1925); 11LLR 264. This is the law and we have no intention or authority to deviate from it. But there is also the other law that forbids the Supreme Court from taking evidence. So since that is the law, it follows then that any counselor who raises an issue of fact on the appellate level must do so relying on substantiating proof ascertainable on the face of the records.
Now, Counsel for Appellant has stated in the Motion to Vacate the Default Judgment that was rendered in the Justice of the Peace Court and confirmed by Judge Kaba of the Civil Law Court on an allegation that Justice of the Peace B. S. Tamba was not commissioned in conformity with the constitutional provision which says that the appointment should be, “with the advice and consent of the Senate,” but without providing any document or proof to substantiate the veracity of the statement. So, where do we go from here? Should the Supreme Court send to the Senate or Executive Mansion for verification? Of course not. For it is the rule that the Supreme Court will not decide a case on evidence extrinsic to the record. In order that we may accept it as a fact and therefore render judgment accordingly that JP B. S. Tamba was not commissioned pursuant to law at the time he rendered the judgment we are called upon to nullify, Appellant had a duty to convince the Court by directing the Court’s attention to some point of fact on the records for the Court to take judicial notice of. Where this is not done, a mere allegation that B. S. Tamba was not appointed to operate a JP Court consistent with the constitution is insufficient to serve the intended purpose which is to overturn the default judgment. It is an elementary principle of law in both civil and criminal procedure that one who alleges a fact has the burden of proof. Momo Insurance Corporation Vs. Picasso Cafeteria, 38LLR 37 same volume. The case First United American Bank Vs. All Saksouk pane 327.
Counsel for Movant in furtherance of his contention cited the case Republic of Liberia Vs. B. S. Tamba, Quo Warranto, decided 16 th September 2005. The issue in that case was that B. S Tamba, along with others, was operating as a Justice of the Peace in Montserrado County without a valid commission, his commission having expired March 29, 2005. But the records reveal that the president of Liberia, Charles Taylor, had given B. S. Tamba a commission dated March 28, 2003, to operate as a JP in Montserrado County and that said commission had expired by operation of law on March 29, 2005, but that the said JP was still operating on the expired commission. The said B. S. Tamba was therefore found guilty of the offense of usurpation of office. As a consequence of that Supreme Court decision, the government of Liberia shut down the Courts of B. S. Tamba and the other JPs in the same category and prohibited them from operating within the Republic of Liberia.
Counsel for Appellee argued however, and rightly so that the judgment cited was not intended to be retroactive. The judgment in the case under review out of which the appeal and subsequent motion to vacate grew was rendered when B. S. Tamba had a valid commission conferred on him by the President of Liberia, to operate as a justice of the peace in Montserrado County. So to say now that because a subsequent decision in a Quo Warranto case resulted in the discharge of B. S. Tamba as a JP on September 16, 2005, and that said Supreme Court decision should be applied to the December 15, 2004 judgment rendered by B. S. Tamba will be in violation of the constitutional provision that forbids even the Legislature from making retroactive laws. And if the Legislature is forbidden from making them, the Supreme Court or any Court is forbidden to apply them. Art. 21 (a) constitution of Liberia states: “no person shall be made subject to any law or punishment which was not in effect at the time of commission of a n offense, nor shall the Legislature enact any “bill of attainder” or “ex post facto law.” The expression ex post facto law has several definitions and application. For purposes of the case herein, the definition to the point is thus stated, “the deprivation of a right which when done was lawful” Black’s Law Dictionary Sixth Edition Ex Post Facto Law page 580.
The other issue however is whether the JP had territorial jurisdiction. Counsel for B. S. Tamba stated that B. S. Tamba was operating from Congo Town and that Haywood Mission and ACS fell under his jurisdiction. The record herein shows the office address of B. S. Tamba to be in Oldest Congo Town. This information is part of the record before this Court dated November 30, 2004, from an order emanating from JP Tamba’s Court. This piece of information was not dispelled by proof on the records, but only a mere allegation that B. S. Tamba was operating within the city limits of Monrovia and that Haywood Mission and ACS are within the Magisterial jurisdiction of the city Court of Monrovia. This Court, nor should any Court accept as proof mere assertions or allegations to form an opinion and render a decision that may proof to be wrong or fail the test of time, or the existence of proof to the contrary. We are therefore inclined to reject Appellants mere assertion without proof that the old IPA Building where B. S. Tamba held Court, that Haywood Mission, and the American Cooperative School are all within the city limit of Monrovia and that therefore JP B. S. Tamba was operating in the Magisterial area in violation of law.
We shall proceed further to state that the fact that B. S. Tamba had a commission as impliedly admitted to by Counsel for Defendant issued to him by Charles Taylor, the then President of Liberia, a presumption of the validity of said commission is in order, and a conclusion drawn that the prerequisites were met before the commission was issued by the then President of Liberia whose duty it was to perform in conformity with the constitutional provision in such cases. In order that said presumption of the validity of JP B. S. Tamba commission can be overcome or successfully challenged, Appellant should have produced an overpowering proof to destroy or offset the presumption.
Assuming that B. S. Tamba’s Court was in Oldest Congo Town and therefore outside the city limits of Monrovia, would he have had jurisdiction over Haywood Mission and ACS? According to the record certified to us, there is no evidence on the face of the record to refute B. S. Tamba’s business address or that he was operating from a Congo Town Office. What both parties failed to establish on the records was whether Haywood Mission and ACS are within the City limits of Monrovia. Both Counsels only made declaration of facts but no record to substantiate them. Appellant informed the Court during his argument that B. S. Tamba was operating within the Magisterial limits of the City of Monrovia, from the old IPA without submitting any record to prove that the IPA Building is within the City limit of Monrovia.
Counsel for Respondent also without providing any proof on the records argued that ACS as well as Haywood Mission are not within the Magisterial jurisdiction of the City Court of Monrovia, but that they are in the Township of Congo Town. But as much as he failed to establish the truthfulness of his averment, the burden was not on the Respondent to convince this Court to grant Appellant/Movant’s Motion. It was Appellant/Movant’s burden and having failed to hear that burden his contention in that regard must crumble
In view of the foregoing, (1) that at the time JP B. S. Tamba heard and decided the case on 13 December, 2002, his presumed valid commission issued by President Taylor dated March 28, 2002, for a period of 2 years, was still valid. (2) That his Court house was in Oldest Congo Town and not proven to be located within the magisterial jurisdiction of the Monrovia City Court. (3) That Appellant/Movant showed no proof that Haywood Mission and the American Corporative School ACS are located within the city limits of Monrovia and that therefore JP B. S. Tamba or any JP had jurisdiction over those properties. And (4) finally that the Supreme Quo Warranto decision which disbarred B. S. Tamba from operating as JP cannot be retroactively applied to a judgment before it, when in fact the JP’s commission was still valid at the time he rendered the judgment.
It is our considered opinion, therefore, that Appellant having failed to convince this Court as to the validity of the contentions contained in his Motion to vacate the default judgment, said Motion should be and same is hereby denied and dismissed. The Clerk of this Court is hereby ordered to send a mandate to the Court below informing the Judge therein of the judgment in this matter. Costs against Appellant/Movant. AND IT IS HEREBY SO ORDERED.