Coleman et al v Foster et al (2020)
Corinthian Coleman, Lucy Grant, Evelyn Grant Cecelia Grant, Momo Freeman, Sam A. Logan, Alfred Mator, Annie Nayou, James Morris, Munah F. Kromah, Uncle Wonder, Thomas, Maima Grigsby, Hon. John S. Cee, Jerry Togbah, Mr. Daniel Debah, Erasmas Gonwoe, Konneh, Boakai Sambola, James P. Sandy, Evangeline Jallah, Albertha Clark, Rev. Augustine F. Zau, Mr. Eric Kann, Sis. Babral, Mr. John Oribibri, Mrs. Mamah Grigsby, Sis. Bendu Allison, Sis. Sarah John, Mr. Musa David, Mr. Abenio Johnson, Mr. Jallo Fallah, Peter Nyebel and Sawah Anderson all of the Township of Paynesville INFORMANTS VERSUS John Foster and the Intestate Estate of the late Daniel Foster by & thru Samuel Raily, Dunn Foster David Foster, Moses J. E. D. Mapleh, Sr. & Lazzie G. Foster, Administrators & Administratrix of MonroviaRESPONDENTS
BILL OF INFORMATION
ACTION OF EJECTMENT
HEARD: October 27, 2016 DECIDED: JUNE 25, 2020
MADAME JUSTICE WOLOKOLIE DELIVERED THE OPINION OF THE COURT
When this case was called for hearing, the Chief Justice, Francis S. Kporkpor, Sr., having handled an aspect of the case while on the Supreme Court Bench decided, to recuse himself. Of the four Justices that sat on the case, Mr.
Justice Kabineh M. Janeh and Mr. Justice Philip A. Z. Banks, Ill left the
Bench before the case was decided. The remaining two Justices, Madam Justice Jamesetta Howard Wolokolie and Madam Justice Sie-A-Nyene G. Yuoh could not form a quorum. Subsequently Mr. Justice Joseph N. Nagbe and Mr. Justice Yussif D. Kaba were appointed to the Supreme Court Bench. However, Mr. Justice Yussif D. Kaba having presided over the case having presided over the case while serving as the Resident Circuit Judge of the Civil Law Court, Sixth Judicial Circuit, Montserrado County, could not sit on the case. On the other hand, Mr. Justice Joseph N. Nagbe, the lone Justice to form a quorum for the hearing and determination of the case had not heard the case. This Court invoked Rule 4, Part 6 (b) of the Revised Rules of the Supreme Court to allow Mr. Justice Nagbe enter upon the records, form the quorum and make a determination thereon.
The fact as reveal from the records are that this case is a derivative of an ejectment action filed before the Sixth Judicial Circuit, Civil Law Court, Montserrado County in May 1995, involving Bindu Kindii as plaintiff and John Foster and the Intestate Estate of Daniel Foster as defendants. The trial court handed down a judgment on January 26, 2005, in favor of the Fosters, the respondents herein. Since the trial court’s judgment, the courts have been punctuated by a litany of litigations, with different parties contesting the Fosters’ attempts to remove them from their properties based on the judgment rendered in the Bindu Kindii case with the Fosters.
In view of the multiple controversies that have occasioned the title contests of the subject properties herein, this Court has examined the matter from its inception, leading to the appeal, bill of information and motion to dismiss that are currently before us in an attempt to set the proper legal procedure to be pursued by the Fosters in their claims to the properties.
The genesis of this matter began with Bindu Kindii who laid claim to over sixty eight (68) acres of land, lying and situated on the Robertsfield Highway, Montserrado County and had sold several parcels thereof to various individuals.
On May 11, 1995, Bindu Kindii commenced an action of ejectment against
John Foster and the Intestate Estate of Daniel Foster in the Civil Law Court,
Sixth Judicial Circuit, Montserrado County, alleging in substance that John Foster and the Intestate Estate of Daniel Foster whose property are adjacent her property were encroaching/overlapping on her sixty eight (68) acres of land. In support thereof, she proffered a Public Land Sale Deed dated May 12, 1956. On the strength of the said instrument, Bindu Kindii prayed the court below to have the Fosterss ejected from her property.
The Fosters, in response thereto, asserting their rights to the property in question, presented two deeds – a Public Land Sale Deed for thirty (30) acres of land dated January 15, 1902, and a Government grant from the Republic to Daniel Foster for thirty acres of land dated February 25, 1913.
On request made by the parties to the lower court the matter was submitted to a board of arbitration, comprising licensed surveyors. The board was duly constituted on January 18, 2000, in accordance with court’s practice hoary with age; that is, each of the two parties selected a member to represent it, and the court appointed a third member who chaired the board of arbitration.
The arbitration board having investigated the matter, presented its findings to the court on September 30, 2004, reporting that it was in fact the plaintiff, Bindu Kindii, who was encroaching on the thirty acres of land owned by the Fosters and that the Fosters had a better root title to the land in dispute as compared to that of Bindu Kindii, the plaintiff. The report also stated that predicated on the ages of the deeds presented by the parties, it was technically impossible for Bindu Kindii to own any portion of the land described by the Fosters’ deeds which the arbitration board stated were fiftyfour and twenty three years older than the deed presented by Bindu Kindii. The arbitration report was read in open court and copies were distributed to counsels for the parties. None of the counsels for the parties interposed objection to the report.
Thereafter, counsel for the Fosters filed a motion for final judgment to confirm the arbitration report, and again, no objection was interposed thereto. On January 26, 2005, nearly four months after the board of arbitration had submitted its report, Judge Yussif D. Kaba, presiding, rendered final ruling, confirming the arbitration award and adjudging the Fosters non-liable to Bindu Kindi. In the said ruling, Judge Kaba ordered the issuance of a writ of possession describing the property and mandated the services of surveyors, including the ones who served on the arbitration board, to aid in placing the Fosters in possession of their properties.
Notwithstanding evidence of service of a notice of assignment on the counsels of the parties for final ruling on the arbitration report, the counsel for plaintiff, Bindu Kindii, was absent during the ruling. The court-appointed lawyer who received the ruling on behalf of Bindu Kindii noted exceptions to the final ruling and announced an appeal to the Supreme Court.
Upon the failure of Bindu Kindii to file a bill of exceptions to the lower court’s ruling within statutory time, the Fosters made an application to the lower court for enforcement of the judgment which was granted by the court. The court ordered that the writ of possession be served on Bindu Kindii.
Opting to elude the enforcement by the lower court’s judgment, Bindu Kindii fled to the Justice in Chambers with a petition for a writ of prohibition. In her petition, she contended that the report of the board of arbitration was not unanimously signed by all three surveyors who constituted the board; that the trial court denied her request to cite the surveyor who did not sign the report to show cause why he did not sign; that the bill of cost was not served on her counsel and he only became aware that a bill of cost had been issued when the ministerial officer went to serve the writ of possession on her; that the lawyer appointed by the court to take the ruling for her absent counsel failed to furnish a copy of said ruling to her counsel which prevented him from filing a bill of exceptions in pursuance of the appeal announced by the court appointed counsel.
The Ad Hoc Chambers Justice, His Honor James Zotaa, issued the alternative writ, ordering the respondents/Fosters to file their returns to the petition. The Fosters filed their returns denying Kindii’s contention that her counsel was not served with the lower court’s judgment and therefore her counsel had no opportunity to file her bill of exceptions and perfect an appeal to the Supreme Court. The Fosters argued inter alia that both counsel of the parties were served with a copy of the court’s judgment, and in substance, a majority of the board of arbitration’s decision was binding.
The Ad Hoc Chambers Justice had a hearing on the matter and thereafter quashed the alternative writ, and declined to issue the peremptory writ. Bindu Kindii excepted to the ruling and announced an appeal to the Full Bench of the Supreme Court.
On December 22, 2006, the Full Bench of the Supreme Court confirmed the Justice in Chambers’ ruling, denying the issuance of the peremptory writ of prohibition, stating inter alia that an alleged non-service of a bill of cost amounts to a complaint against the sheriff and not the judge. The Court then ordered the trial court to resume jurisdiction and enforce the judgment.
On January 18, 2007, Judge Emery S. Paye, presiding by assignment in the
Sixth Judicial Circuit Court, ordered the reading of the mandate of the Supreme Court of December 22, 2006. Thereafter, Judge Paye ordered the clerk of court to proceed to enforce the Judgment of the Supreme Court with costs assessed against the petitioner, Bindu Kindii.
This would seem to have closed the Bindu Kindii chapter of the property case against the Fosters, but that was not to be. She resurfaced as a party of interest, as will be discussed later in this Opinion.
The records further reveal that when Judge Paye was at the verge of enforcing the judgment as mandated by the Supreme Court, a new group of litigants, James G. Mooney, Ignatius N. Clay, Comfort H. Mooney and Florence K. Mooney, all grantees of Bindu Kindii, appeared in court as informants against the Fosters who attempted to oust them from their properties under the judgment of the ejectment case between Bindu Kindii against the Fosters. The informants contended that though they were grantees of Bindu Kindii, that they could not be bound by the judgment against Bindu Kindii in the ejectment suit since they were not parties to the proceedings. They also claimed adverse possession, citing their alleged open and notorious occupancy of their respective properties for over twenty-nine
(29) years without molestation or hindrance from anyone including the Fosters.
On January 23, 2007, Judge Emery S. Paye granted the bill of information, holding that the Supreme Court Opinion of December 22, 2006, did not include the informants who were not parties to the ejectment action. The Fosters announced an appeal from Judge Paye’s ruling and perfected same for appellate review by the Supreme Court.
While the Fosters appeal against the informants, George G. Mooney et al. was pending before the Supreme Court, Bindu Kindii, unrelentingly, came again with a bill of information before the Civil Law Court on November 13, 2007. The said bill of information principally averred that the sheriff disobeyed the court’s order by putting the Fosters in possession of land not supported by the Fosters’ deeds. She vehemently contended that the Fosters’ deeds described land situated in King Gray, and not Sugar Hill, where the sheriff had placed the Fosters in possession. In resistance thereto, the Fosters denied being put in possession of the wrong property; they also contended that the remedy sought by Bindu Kindii was not tenable under a bill of information.
On January 14, 2008, that is, nearly thirteen years after the ejectment action was filed by Bindu Kindii against the Fosters, Judge Yussif D. Kaba
entered a final ruling in which he denied and dismissed the said bill of information filed by Bindu Kindii. She took an appeal from said ruling, thus, presenting the Supreme Court with two appeals in the matter.
The Supreme Court consolidated for final determination both the appeals taken by the Fosters from the ruling of Judge Emery S. Paye’s on January 23, 2007, granting the bill of information filed by James G. Mooney, Ignatius
- Clay, Comfort H. Mooney and Florence K. Mooney, and the appeal taken by Bindu Kindii from Judge Yussif D. Kaba’s ruling of January 14, 2018, denying her bill of information.
In an Opinion delivered on June 29, 2010, the Supreme Court reversed Judge Emery S. Paye’s ruling, holding that Judge Paye erred when he granted the bill of information filed by James G. Mooney, Ignatius N. Clay, Comfort H. Mooney and Florence K. Mooney against the Fosters on the ground that a bill of information is not the proper legal course available to one who alleges that he did not have his day in court. The Supreme Court also reversed Judge Yussif D. Kaba’s ruling dismissing the bill of information filed by Bindu Kindii, holding that Judge Kaba should have investigated allegations of improper execution of the Court’s mandate by the sheriff. The Supreme Court, then, ordered that the Fosters be placed in possession on the strength of a survey based on the metes and bounds of their deeds attached to their responsive pleadings in the original ejectment suit of 1995.
On July 23, 2010, Judge Yussif D. Kaba proceeded to give effect to the Supreme Court’s mandate as contained in its June 29, 2010 Judgment, and in addition thereto ordered the preparation of a bill of costs. Counsellor Joseph H. Constance was appointed to receive the court’s ruling on behalf of Bindu Kindii, since her counsel was again absent.
Again, on July 28, 2010, Bindu Kindii’s counsel filed a seven count bill of information before Judge Yussif Kaba, stating that the Judge improperly read the mandate of the Supreme Court handed down on June 29, 2010. Judge Yussif Kaba entertained the bill of information and modified his prior interpretation of the Supreme Court’s mandate, emphasizing that the Fosters be placed in possession of their properties by the conduct of a survey and in keeping with the metes and bounds depicted in their deeds.
On September 6, 2010, the Chairman of the appointed board of surveyors wrote the trial court and reported obstruction posed to the work of the board by Mr. Matthew B. Tarr, the surveyor representing Bindu Kindii. Surveyor Matthew B. Tarr also wrote a letter to the trial court on November 2, 2010, outlining various reasons for obstructing the work of the arbitration board. Upon the conduct of an investigation by the trial court as to why the work of the survey was obstructed, the court again entered a similar ruling ordering the use of the deeds pleaded by the Fosters in the original ejectment suit of 1995 to place the Fosters in possession of the property, and Matthew Tarr was fined for the disruptive behavior he exhibited during the conduct of the survey.
On April 26, 2011, the survey report presented to the court indicated that the surveyors had established the four corners of the Fosters’ 1902 deed in keeping with the metes and bounds of the said deed, and which property adjoining Bindu Kindii remained the subject of contention. The report recommended the installation of concrete monuments at the borders of the contesting parties’ properties.
On July 4, 2011, after due service of notice of assignment on the parties, the trial court read the possession survey report. Again, counsel for Bindu Kindii, Counsellor J. D. Baryogar Junius, was not in attendance despite acknowledging receipt of the notice of assignment for the reading of the possession survey report.
On July 6, 2011, Bindu Kindii filed objections to the possession survey report, alleging that the surveyors had ignored the instructions of Judge Yussif Kaba and the Supreme Court, and prayed that the alleged problematic survey report be set aside and a new board of surveyors be set up to conduct a new survey. His Honor Judge Peter Gbeneweleh presiding by assignment while this Kindij’s objection was pending, on August 17, 2011, denied the objections and ordered that the Fosters be put in possession of the disputed property in keeping with the Supreme Court mandate.
On September 8, 2011, the Sheriff of the Sixth Judicial Circuit, in accordance with the court’s ruling of August 17, 2011, filed returns to the court indicating that the Fosters had been placed in complete possession of the subject property. But, again, the Fosters’ property tale was yet to be over.
Next came another group of informants, this time, the Intestate Estate of
Bowoe Norflee and other co-informants. On September 12, 2011, Counsellor James N. Kumeh, on behalf of Frank Kerkula Freeman, administrator of the Intestate Estate of Bowoe Norflee, et al., filed an eight count bill of information before the Civil Law Court. The bill of information averred that the intestate estate of Bowoe Norflee owned sixty acres of land in Thinkers Village, Paynesville, Montserrado County; that the Fosters’ deed of 1902 shows that the Foster Estate owned 30 acres of land located near King Gray and not Thinkers Village and the surveyors assisting the sheriff and bailiff in identifying the exact metes and bounds of said deed had misled the court officers; that the surveyors had gone to Thinkers Village on a separate and distinct property not jn any way owned by the Foster Estate, but rather owned by the Intestate Estate of Bowoe Norflee and administered by Frank Kerkula Freeman; that the said estate was never a party to the case between Bindu Kindii and the Fosters’ Estate, and as such, judgment arising from that case could not properly bind the Bowee Norflee Estate as a matter of law; that notwithstanding this fact, the Fosters’ Estate was attempting to claim property outside of the perimeter of the Fosters’ deed. The Norflee Estate prayed the Civil Law Court to order a neutral surveyor to assist the bailiff and the sheriff to correctly establish the metes and bounds of the Foster’s Estate as the current team of surveyors had been compromised by the Fosters.
On October 26, 2011, after hearing arguments on the bill of information filed by the Bowee Norflee Estate, Judge Gbeneweleh entered ruling thereupon, denying the bill of information on grounds that the issues raised therein were rooted in the execution of a Supreme Court’s mandate; hence, the Supreme Court was the appropriate forum for determination of the said bill of information. Counsel for informants noted exceptions to Judge Gbeneweleh’s ruling and indicated intent to take advantage of the laws controlling.
On October 28, 2011, Counsellor J.D. Baryogai Junius, for and on behalf of
Bindu Kindii again filed an eight count bill of information before the Supreme Court alleging improper execution of the Supreme Court’s mandate of June
29, 2010, but the said bill of information landed on arid soil, as the Supreme Court denied and dismissed same on January 3, 2013, opining that the Civil Law Court’s ruling on January 26, 2005 which awarded the disputed property to the Intestate Estate of Daniel Foster and from which no appeal was announced effectively terminated the ejectment suit filed in 1995; that the award of the thirty (30) acres of land, subject of the ejectment suit, to Daniel Foster Intestate Estate was no more in dispute. The Court also levied a fine of Two Hundred Unites States Dollars (US$200.OO) on Counsellor J. D. Baryogar Junius for his recurrent and regular filing of bills of information in the case, and his failure on many occasions to appear for the hearings. The trial court was instructed again to resume jurisdiction for the enforcement of the Supreme Court’s Judgment. Judge Yussif D. Kaba read said mandate on February 7, 2013, with Counsels for the parties being present in court.
The bill of information, subject of this Opinion, was filed on January 15, 2014, before the Supreme Court. This time, it was by a group of residents of the Musa Beach community, Robertsfield Highway, Montserrado County. The informants, Corinthian Coleman, Lucy Grant, Evelyn Grant, Cecelia Grant, Momo Freeman, Sam A. Logan, Alfred Mator, Annie Nayou, James Morris, Muna F. Kromah, Uncle Wonder, Thomas, Maima Grisby, Hon. John S. Cee, Jerry Togbah, Mr. Daniel Debah, Erasmus Gonwoe, Konneh, Boakai Sambolah, James P. Sando, et al., against the Intestate Estate of Daniel Foster. The informant alleged that the mandate of the Supreme Court was again being improperly executed by the sheriff of the Civil Law Court in that the said sheriff was placing the Fosters’ Estate in possession of land not belonging to it. The informants also asserted that their properties are located behind the Bonjal Ice Cream Shop, Robertsfield Highway, Montserrado County, while the property of the Fosters Estate is located in King Gray which lies opposite the Golden Key Hotel. The informants also narrated that they were not a party to the suit involving Bindu Kindii and the Fosters Estate and therefore could not be bound by the judgment rendered therefrom. The informants prayed for an investigation by licensed surveyors, to include technical representatives of all parties of interest before the execution of the writ of possession.
Thereafter, that is, on February 7, 2014, the Intestate Estate of Daniel Foster came with an application before the Civil Law Court, praying the court for continuation of enforcement of the final Judgment of the Supreme Court. This motion for continuation of the enforcement of the writ of possession, prayed for by the intestate estate of Daniel Foster was directed at the following party respondents: Mylah Zangla, Eden Flahn, et al., and, Daniel Debah, Erasmus Gonwoe, Boakai James, et al. The motion alleged in substance that the said respondents, in flagrant disregard of many writs of possession issued in favor of the Foster Estate, had repeatedly returned and repossessed themselves of the property, and as such, was denying the Foster Estate complete possession of its property.
Ruling on the motion for continuation of enforcement of the Judgment, Judge Peter Gbeneweleh, the assigned circuit judge, ruled that the respondents in their resistance had insisted that they were not part of the ejectment action by and between Bindu Kindii and the Fosters and from which case the Supreme Court’s mandate grew and therefore they could not be affected by the execution of the Supreme Court mandate; that the bill of information filed by them before the Supreme Court was the proper course for the enforcement of the Supreme Court’s mandate. The Judge therefore held that the intestate estate of Daniel Foster pursue the bill of information filled by the respondents before the Supreme pending determination. The Fosters excepted to the ruling and took an appeal to the Supreme Court
In response to the bill of information filed by the informants herein, the Fosters filed a motion before the Supreme Court praying the Court to dismiss the bill of information for want of jurisdiction, occasioned by alleged procedural defects in the filing and service of the said bill of information. In essence, the movants/appellants allege that contrary to the mandatory provision of the law, the bill of information was filed and served by the informants without an order from the Chief Justice or any Associate Justice to the clerk to issue a citation for the parties to appear. The Fosters further argued that some of the informants, namely, Musa David, Musa K. David, Jr. and Momo David are all children and grandchildren of Bindu Kindii, and none of them has vested title to land in the disputed area; yet, they issued warranty deeds to many of the co-informants in the instant case, and are basing their titles verbally on the deed of their mother and grandmother, Bindu Kindii. Moreover, the Fosters contend that the many rulings and judgments amount to res judicata and preclude re-litigation of the case before the Supreme Court; that the informants/respondents are privies to the final judgment rendered against their grantor, Bindu Kindii; therefore, the judgments are binding on them as grantees of Bindu Kindii.
Having outlined chronologically the factual background attending the case of Bindu Kindii and the Fosters from its inception, beginning with the ejectment suit filed by Bindu Kindii against the Fosters in 1995, we deemed it necessary to consolidate the appeal, bill of information, and motion to dismiss the bill of information pending before the Court, owing to the fact that all relate to the same subject matter involving the Daniel Foster Intestate Estate, on one hand, and parties who are contesting their removal from their properties based on the judgment from the ejectment action to which they were never parties nor brought under the jurisdiction of the court.
The Court notes that this matter has been outstanding for about twenty five years, running back and forth between the Civil Law Court, Sixth Judicial Circuit and the Supreme Court with several parties asserting violation of their due process rights. We must now seek to put in place once and for all the proper legal mechanism for the resolution of the various disputes involving parties said to be occupying the disputed property of the Fosters after demarcation of their properties in the ejectment case filed against them by Bindu Kindii. The respondent having filed their brief and appeared for the hearing, and the issues raised by the informants been grounded on fundamental rights to ownership of property and the issue of due process right of the bill of information, the Court decided to deny the motion to dismiss the bill of information and entertain a hearing into the determination of the matter.
The informants herein do not contest that the Daniel Foster Estate obtained a judgment from an ejectment suit filed against it by Bindu Kindii. Their contentions are in two-fold: (1) the parcels of land that some of the informants presently occupy do not form part of the land subject to the eviction order granted in favor of the Foster Estate; and (2) they were not parties to the ejectment suit decided in favor of the Fosters; hence, the judgment therefrom is not binding on them because they did not have their day in court.
The Fosters/respondents on the other hand contend that they had won an ejectment action filed by Bindu Kindii against them in the Sixth Judicial Circuit and the Supreme Court had confirmed the lower court’s ruling ordering the Fosters to be put in possession of their property demarcated by the board of arbitration; that the informants herein occupying portion of the property are in privity with Bindu Kindii, Further, the Fosters assert that the principle of res judicata would lie in this case and preclude a re-litigation of the case.
The Foster Estate, respondent to the bill of information, substantially attempts to impress upon this Court that because the Supreme Court had decided the Kindii’s original ejectment against it, to now entertain a new matter in relation thereto, as is the case herein with the appellees/informants, would amount to reopening a settled matter since the appellees/informants are mostly heirs and grantees of Bindu Kindii whose title has since been quieted by the Supreme Court’s final determination of the ejectment suit against the Foster Estate on January 3, 2013.
In addressing the issue of the Fosters’ claim that res judicata will lie to evict the informants based on the several rulings of the Supreme Court confirming the judgment of the ejectment action, our query is whether res judicata will lie where the informants were never a party to the ejectment suit and were never brought under the court’s jurisdiction, nor afforded the opportunity to be heard?
To resolve this question, we must be guided by the relevant laws in this jurisdiction – the Liberian Constitution, statutes and decisions of this Court involving similar questions.
The Fosters/respondents’ contention regarding the informants being in privity with Bindu Kindii refer to the Supreme Court’s Opinions regarding grantees or tenants being in privy with their grantors or landlords and where such grantors and landlords when found liable in an ejectment or summary proceeding action to recover possession of property, their grantees and tenants who are in privy with them are also dispossessed of the contested property based on the universal principle that one cannot give what he does not have.
Our review of Opinions of this Court regarding privity in property cases have always been where the plaintiffs brought grantors and landlords to court along with their grantees and tenants in actions of ejectment or summary proceeding to recover possession of property, and the lower court, after a hearing found that the plaintiffs had superior title or right to the properties claimed. The grantees and tenants in such cases were held in privy with their grantors and landlords and ordered dispossessed unless said grantees or tenants had some alternative legal defense for remaining on the properties. In cases where the privies came to court and raised the issue that they were not made parties to the ejectment actions nor brought under the jurisdiction of the court and their due process rights duly accorded them, the Supreme Court has held that said persons could not be concluded by the judgments in these cases on the theory that as a grantees they were in privity with the defendants. : Boye v. Nelson, Sheriff Montserrado County et al., 27 LLR 174 (1978). Property rights, the Court has held, are fundamental rights under our Constitution (1986). Article 20(a) states inter alia, that no one shall be deprived of his property except as the outcome of a hearing judgment consistent with provisions laid down in our Constitution (1986); that is, allowing said persons the exercise of their due process right. Res judicata applies where the court has passed judgment on the same claim involving the same parties over the same cause.
In this case, it was Bindu Kindi who brought an ejectment action against the
Fosters. The Fosters were the defendants in the ejectment action. Bindu Kindii’s grantees and other informants were never part of the action or brought under the jurisdiction of the court. The court therefore could not have concluded the judgment from the ejectment action between Bindu Kindii and the Fosters, against the informants or any other party who were not a party to the action and who did not have the opportunity to defend their property rights in court.
This Court realizes that some missteps occurred in the procedure regarding the judgment from the Bindu Kindii and Fosters ejectment action. Bindu Kindii was the one who filed an action of ejectment against the Fosters, in 1995, claiming that they were encroaching on her property, and the board of arbitration to whom they submitted the case found that in fact it was Bindu Kindii instead that had extended onto the Fosters property as per the survey conducted. The judgment then was that the Fosters were non-liable as Bindu Kindii had claimed. This judgment then should have ended Bindu Kindii’s claim against the Fosters. It was a fundamental legal error for the Fosters, from the findings and judgment of their case with Bindu Kindii case to have gone on to eject occupants from the land demarcated in the survey of the ejectment action, when these occupants were never parties to the ejectment action.
The Fosters, having become enlightened as to the extent of their property by the survey conducted in the ejectment action, they should have filed an independent action of ejectment against occupants on the land to take possession if they so desired. The non-liable judgment entered by the court in the ejectment action with Bindu Kindii was not a judgment to be used by the Fosters to automatically move on to evict the informants or other occupants from the land since they were not brought under the jurisdiction of the court. Besides, Bindu Kindii and the Fosters chose to submit their case to a board of arbitration to be handled, and the ruling therefrom can only bind the parties which submit themselves to arbitration and not the informants.
We do agree with the informants’ contention is that the Supreme Court mandate is being improperly executed as they were never a party to the ejectment action and were never brought under the jurisdiction of the court and given due process.
It is the law in our jurisdiction that a judgment is not binding upon a party who has neither been duly cited to appear before the court nor afforded an opportunity to be heard. It is also a settled rule that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard. Gbae v. Geeby 14 LLR 147, 150 (1960); Barbor-Tarpeh et al. v.
Dennis et al. 25 LLR 468, 471 (1977); Schilling & Company v. Tirait and Dennis 16 LLR 164, 176 (1965); Kiazolu v. Peaerson at al. 35 LLR 550,562 (1988). Furthermore, no court has authority to render judgment against a party who has not been served with process to bring him under its jurisdiction, or who has not voluntarily appeared, and any judgment rendered contrary to this rule is void as to the party against whom it is rendered. Gabbidon v. Flomo et al. 26 LLR 214, 218 (1977); Gooding et al.
- Wright et al. 37 1-I-R 14, 24-25 (1992).
This means that only where the informants are brought under the jurisdiction of the court and accorded their due process rights of asserting any and all legal defenses in support of their titles can they be divested of their properties, especially where some of the informants claim that their titles come from another source, the Intestate Estate of Bowoe Norflee, and where the Daniel Foster Intestate Estate has not shown superior title to these informants’ grantors or overcome other alternative defenses that could be made in defense of their titles.
This Court therefore holds that it would be an error for the trial court to enforce the judgment in the Kindii v. Foster case against the informants who were never parties to the said case nor brought under the jurisdiction of the court. The Fosters are however at liberty to institute the appropriate action if they believe that the informants are indeed occupying properties, subject of the Court’s decision in the Kindii v. Fosters case.
WHEREFORE AND IN VIEW OF THE FOREGOING, the Clerk of this Court is ordered to send a mandate to the Civil Law Court to resume jurisdiction of this case and give effect to this judgment. AND IT IS HEREBY SO ORDERD.
WHEN THIS CASE WAS CALLED FOR HEARING COUNSELLOR COOPER W. KRAUH OF THE HENRIES LAW FIRM APPEARED FOR THE INFORMANTS. COUNSELLOR KRON YANGBE, SR. APPEARED FOR THE RESPONDENTS.