SATURDAY GBASSAGE, Appellant, v. WALTER HOLT, Appellee.

APPEAL FROM THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued May 26, 1975. Decided June 26, 1975. 1. A court is bound to take judicial notice of its own record. 2. Ejectment proceedings involve mixed questions of law and fact and are always to be tried by a jury under the direction of the court. 3. It is error for a court to dismiss a defendant’s answer and thereafter receive in evidence a document which had been annexed to the answer. In an action in ejectment, the defendant alleged in his answer not only ownership but that the plaintiff’s deed was forged. Nevertheless, the judge dismissed the answer. Thereafter, judgment was rendered against defendant who appealed therefrom. The Supreme Court held primarily that it was error to have dismissed the answer in a suit in ejectment since ejectment involves mixed questions of law and fact. The judgment was reversed and the case remanded for a new trial. M. M. Perry for appellant. Stephen Dunbar for appellee. MR. CHIEF the Court. JUSTICE PIERRE delivered the opinion of The plaintiff, the appellant herein, brought this action of ejectment in the Sixth Judicial Circuit, claiming that defendant was in illegal possession of and unlawfully occupying one lot out of a five-acre block of land owned by him in Oldest Congo Town, Montserrado County. He annexed to his complaint a title deed for the five acres he claimed. An acre of land in Montserrado County 293 294 LIBERIAN LAW REPORTS contains four town lots ; hence, the five acres in question was made up of twenty lots, one of which the plaintiff claimed defendant was occupying illegally. Except to allege that the one lot in question is “situated in the South [sic] portion of said premises,” there is no other indication of how to correctly locate among the zo lots this parcel of property in dispute. The defendant appeared and filed an answer of only two counts. . . . because Saturday Gbassage says that she is occupying one town lot of land situated and lying in the area known as Oldest Congo Town, being part of Block 5, which has come to her by lawful purchase from Elizabeth Padmore Yancy, Christine B. Philips, Elizabeth Brown Doxxen and Lawrence S. W. Philips as will more fully appear from an inspection of the hereto attached warranty deed marked exhibit `A’ to form part of this answer. “2. And also because defendant says that the purported warranty deed attached to plaintiff’s complaint is a forgery; in that the alleged signers thereof did never execute the same as falsely alleged thereon. Defendant submits that it is a fact that because of the forged instrument, Christine Brown, Elizabeth Brown and Lawrence Philips, representing themselves and the other heirs of the late C. A. Brown have instituted cancellation proceedings in the Civil Law Court for the cancellation of the forged deed on which the plaintiff relies as exhibit ‘A’ in his complaint.” The plaintiff filed a reply, also containing two counts, which called attention to his deed being older by seventeen years than that of the defendant; and, further, that since the two deeds were from the same grantors, the older should take precedence. He also denied that any cancellation proceedings had been filed against his title deed. Elizabeth Brown, one of the grantors of the defendant’s deed, filed a motion and was granted permission to inter- LIBERIAN LAW REPORTS 295 vene; she joined the defendant in questioning the plaintiff’s right to sue. Thus matters stood when the case came on for hearing before Judge Tilman Dunbar, in the September 1974 Term. On September 3, 1974., the judge passed on the pleadings, and in spite of the factual basis of the pleadings on both sides, the judge dismissed the defendant’s answer. For the benefit of this opinion we will quote a relevant portion of the judge’s ruling. “Further, the reply in challenging the justness or truthfulness of the allegation in the answer, to the effect that cancellation proceedings had been instituted in the Civil Law Court to cancel the title deed of the plaintiff . . . it was incumbent upon the defendant to either invite the court to take judicial notice of its own record in the cancellation proceeding case, or the defendant should have made profert of a certificate from the clerk of court showing that cancellation proceedings had been instituted in his office. “Under the law plaintiff was entitled to be notified of allegations laid in the pleadings of all grounds of defense upon which defendant relied in defense of this action. The law confirms this position when it states that it is an elementary principle of our practice and is found in our statute, that the fundamental principle of all pleading is giving notice of what a party intends to prove at the trial. Shaheen v. C.F./1.0., 13 LLR 278, 290 (1958). In keeping with this provision of the law count two of the answer is not sustained and the entire answer is therefore dismissed for want of legal merit, defendant being ruled to a bare denial of the facts stated in plaintiff’s complaint and the reply.” In Shaheen v. C.F.11.0., cited by the judge, the defendant testified at the trial and in argument before the Supreme Court that certain written instructions of the company forbade the agent to accept money for deposit 296 LIBERIAN LAW REPORTS except from their employees or from customers who desired to have them purchase goods abroad. These written instructions were not pleaded, although the company relied upon them both at the trial and before the Supreme Court. In this case an entirely different situation ekists, because the answer in very definite and in certain terms states that “Christine Brown, Elizabeth Brown and Lawrence Philips, representing themselves and the other heirs of the late C. A. Brown have instituted cancellation proceedings in the Civil Law Court for the cancellation of the forged deed on which the plaintiff relies.” It is our opinion that this alleged fact having been pleaded, the court was bound to take judicial notice of its own record. What further invitation did the resident judge of the circuit need to take judicial notice of its own record? The Supreme Court said in Phelps v. Williams [1928] LRSC 14; 3 LLR 54, 57 (1928), that “every court is bound to take judicial cognizance of its own records ; and no evidence of a fact of which the court will take such notice need be given by the party alleging its existence.” The judge could not claim, therefore, that he had no invitation to take notice of a pleading in a case filed in his court in the Sixth Judicial Circuit. This Court has over the years taken the position that in ejectment, such as this case is, only the jury decides the issues joined. In Karnga v. Williams, ro LLR 10, 1I– r2 (1948), Mr. Justice Shannon, speaking for the Court said that “ejectment proceedings involve mixed questions of law and fact and hence under our statutes are always to be tried by a jury under the direction of the court.” To the same effect: Pratt v. Phillips, [1949] LRSC 13; 10 LLR 147 (1949) ; Pratt v. Phillips ro LLR 325 (1950). Therefore, it was gross error for the judge to have dismissed the defendant’s answer which contained issues of fact, and LIBERIAN LAW REPORTS 297 thereby deprive the jury of an opportunity to pass upon those facts. Moreover, it was also gross error for the judge to have dismissed the answer of the defendant and at the same time receive in evidence and mark defendant’s title deed which had been annexed to and formed a part of the said answer. How could the judge consistently dismiss the pleading and retain in the case a part of the same pleading? How was the jury to determine the relevance of the defendant’s deed, when the pleading which had introduced it was withheld from the jury? In Walker v. Morris, is LLR 4 24, 429 ( 1 96 3), which the judge relied on in admitting the deed after dismissing the answer, the Supreme Court took the view that exhibits to pleadings were part of the said pleadings. ” ‘It is a rule of modern practice that when a pleading is founded on a written instrument a copy thereof may be annexed and made a part of the pleading by reference as an exhibit, and by statute or rule of court, it is sometimes made obligatory on the pleader in such a case to annex a copy of the instrument to the pleading.’ 21 R.C.L., 475, Pleading, � 39.” The judge therefore, erred when he dismissed the defendant’s answer in ejectment; and he erred again when he received and marked the deed, which was part of the answer, after dismissing the answer. In view of the foregoing, we have no alternative but to reverse the judgment and remand the case to the trial court for the issues of law to be properly passed upon and for trial by jury thereafter, costs to abide final determination. And it is so ordered. Reversed and remanded.