NEW YORK KARPEH, Governor of Krootown, Monrovia, Appellant, v. JAMES T. MANNING, Appellee.
APPEAL ON APPLICATION FOR HABEAS CORPUS.
Argued April 13, 14, 15, 1936. Decided April 24, 1936.
1. The lex non scripta of the country includes not only general customs, but also particular customs of different sections of the country and particular laws that are by custom observed only in certain courts and jurisdictions.
2. All such particular customs must be specially pleaded, and the matter in dispute shown to be within the custom relied on.
3. In case of dispute as to what the custom is, the court shall call upon the chief, or other disinterested member of the tribe who may be competent to testify what the custom is.
4. Nevertheless, a custom or usage repugnant to the express provisions of a statute is void.
5. So also, a statutory regulation must control whenever there is a conflict between such statutory regulation and a custom or usage.
6. No judgment can legally be rendered against one who has not been summoned or who, having knowledge that process has been ordered issued against him, has not voluntarily appeared and submitted to the jurisdiction of the court
7. A warrant of commitment may not issue in lieu of a writ of execution, or in advance of a writ of execution, in a civil case.
8. Nor may a writ of execution issue against the head of a corporation for a liability of such corporation.
In the course of a suit to recover death benefits brought before appellant, the Governor of Krootown, the appellee herein, who was not a party to that proceeding, was summarily committed to prison by the appellant. Appellee thereupon instituted habeas corpus proceedings, and the Circuit Court held his imprisonment to be unlawful. On appeal to this Court, judgment affirmed.
P. Gbe Wolo for appellant. James T. Manning for appellee.
MR. CHIEF JUSTICE GRIMES delivered the opinion of the Court.
The Monrovia Silk Company of Krootown, Monrovia is a mutual relief society, organized by sundry Kroo people of Monrovia, and having as one of its objects that of contributing to the expenses of burying its deceased members.
According to a notation found on the third to the fifth pages of the published Acts of the Legislature of Liberia for the session of 1906 to 1907, said Company was one of twenty-four companies incorporated by Joint Resolutions of our National Legislators, the one now specifically under consideration having been approved by the President on the 15th of January, 1907.
This Company, it appears, was empowered to make bylaws for its government, a printed copy of which marked “C” was admitted in evidence without objection during the trial in the court below of the case now under review, and has by that means, been made available to us in the records of the trial sent up to this Court. According to the 13th and 15th sections of said by-laws the officers of the Company shall be a manager who shall also be director general, a manageress, two vice-managers, one of whom shall be male and the other female, and sundry other officers not relevant to the case under consideration ; and, in the absence of the director general, they shall “function” according to the following order of precedence; viz., the manageress, the vice-manager, and the vice-manageress.
It would appear that sometime in June, 1931, one Jorh Wrokpoh had died, and that on the 17th of January, 1935, one Fanior Gbyonah Myer, claiming to have been a cousin of the deceased’s, made complaint to the Governor of Krootown, appellant in this cause, that the Company had refused or neglected to pay the “death benefit” which she estimated at twenty-one pounds twelve shillings and six pence sterling and for the recovery of which she commenced a suit before the said appellant, based upon sections 1, 3, and 22 of the by-laws aforesaid. The Governor thereupon sent one Nynor Weah Doe, a constable of his, with the “Socobar” (ox-tail) to summon one Toe Barrow, the vice-manager of the Company, to appear and answer the said complaint. A trial was had according to the native customary laws of the Kroos, and the Governor awarded a judgment against the said Toe Barrow in a sum of eight pounds for the death benefit, and sundry costs totalling two pounds six shillings and seven pence. From this judgment the said Toe Barrow appealed to the Native Court of Appeal presided over by Mr. John Francis Marshall, and it would appear that said functionary, after having heard the appeal, sent the case back with oral instructions communicated through one Jim Doe, an officer of said Native Court of Appeal, to the Governor, instructing him to give the said Toe Barrow, the vice-manager, the privilege of calling the manager of the Company, or in his absence, the manageress, and requesting one of them to assemble the Company, and adjust the matter either in or out of court. Evidence of Jim Doe on record pp. i and 2 of the records of April 3o, 1935, of the Circuit Court,
The Governor of Krootown, appellant, thereupon sent for James T. Manning, appellee in these proceedings, without the “,Socobar,” informed him of the ruling of the Native Court of Appeal, and asked him to pay the amount of the former judgment, as it had been shown that he was the manager of the said Company. Manning, the appellee, admitted that he was the manager, but filed demurrers to the Governor’s procedure, requesting that the case be dismissed and the plaintiff ruled to pay the costs, and that if the plaintiff so desired, she might thereafter bring suit against him as manager. Testimony of James T. Manning, appellee, on record pp. 2 to 4 of April 25, pp. 1 to 4 of April 26; testimony of witness J. E. Manning, Speaker of the Governor’s Court, record pp. 4 to 6 of the minutes of April 26, 1935.
He also demurred to the procedure upon the grounds :
(1) That the amount claimed was beyond his jurisdiction sitting as a justice of the peace, and that as Governor his jurisdiction was limited to matters purely native (aboriginal), and that as the deceased had removed out of the borough of Krootown uptown before his death, the Governor as such had no jurisdiction in the matter ;
(2) That the claim had been barred by the statute of limitations having, according to the allegations of the plaintiff, accrued more than three years before suit was commenced. Testimony of the witnesses cited above.
The Governor, according to the testimony of all witnesses, became enraged, especially because the said Manning later on appeared with a basket of law books, and the Governor said inter alia, “If you are a lawyer, go up town with your law. I know no law.” Manning prayed an appeal, and the matter hung for a few days, the Governor eventually issuing a commitment upon which the said James T. Manning, appellee, was summarily put into prison, and hence the genesis of the writ of habeas corpus, the subject of the appeal.
Examining the questions presented to us from this record, and at the bar of this Court, it seems to us clear that the whole proceedings before the Governor of Krootown were pregnant with irregularities, for first of all Manning, the appellee, was never made a defendant before the Governor of Krootown. Even the constable of the Governor himself testified that Manning was not summoned by the “Socobar,” and that When he went to call him (Manning), he, the said Manning, inquired, “For what does the Governor call me in court?” Reply: “I suggested to Mr. Manning that we should go to the Governor”; and thus it appears from all the other testimony that until his arrival in court he had no knowledge, or at all events no legal knowledge, of the reason why he had been sent for. Testimony of the constable Nynor Weah Doe, record pp. 4 and 5 of the records of April 29. Testimony of George D. N. Morris, record p.7 of the minutes of April 26.
A second glaring irregularity is that when the case was remanded by the Court of Native Appeals for the Governor to proceed against the manager or manageress and Mr. Manning was sent for, the Governor having overruled the demurrers that had been made, he never had a retrial of the case as was contemplated, but merely shunted the judgment rendered against Toe Barrow upon the said Manning, appellee, without allowing him This day in court.” Testimony of J. E. Manning, and of Gber Toamsy.
The last of the many irregularities we shall specifically mention in this matter is that the said appellee was committed to prison upon such an irregular judgment upon a warrant of commitment without the Governor’s having previously had a writ of execution regularly served upon him, and properly returned before a court of competent jurisdiction; and this illegal procedure, as Judge Brownell very correctly pointed out in his opinion given at the trial, was the more reprehensible as the responsibility to pay the “death benefit” was one incurred, if at all, by Manning as manager of the Company, and not by Manning as an individual.
Counsellor Wolo, arguing the case at this bar in behalf of appellant, contended that all the parties interested were members of the Kroo tribe, and that as such the Kroo customs should be allowed to control ; that according to said customs (1) The “Socobar” having been sent for the vice-manager, and he found to have been the wrong person, it was not necessary to send the “Socobar” for any other defendant, provided he was also a member of the Company; (2) That the vice-manager was correctly sued in the absence of the manager, as according to the customs of the Kroos the manageress, being a woman, could not preside over a body of men, and this in spite of the plain provision of the printed by-laws; (3) That upon the appearance in court of Manning, the manager of the Company, whether summoned or not, and in view of his first submission, he “swallowed” the vice-manager and all his liabilities, and, therefore, it was not necessary that the case should have been retried with the manager as substituted defendant as had been implied in the orders of the judge of the Native Court of Appeal, and had been contended by Manning when he was first apprised of the fact that he had been sent for by the “Court” to assume the obligations of the judgment that had been rendered against Toe Barrow, the vice-manager ; (4) That the Governor did not act contrary to law in imprisoning Manning for the obligations of the corporation of which he was representative, as, according to the customs of the Kroos, he was the “big man,” and in every matter tried according to the customs of the Kroos, and other aboriginal tribes, the head of a corporation should be held in detention, confinement and custody for the obligations of the society, as it is the most expeditious manner of stimulating the organization to raise the money to discharge the obligation incurred.
Mr. Manning, in the very interesting argument which he made at this bar in his own behalf, conceded that in “book” knowledge Counsellor Wolo was by far his superior, but that, when it came to the knowledge of the laws and customs of the Kroo people, Counsellor Wolo was infinitely his inferior, as all the time that Mr. Wolo had been studying in the colleges at Monrovia and in the United States, he, Manning, had been living among and studying the laws and customs of his own people (the Kroos). He then advanced sundry reasons why he contended that Counsellor Wolo’s exposition of the native customary law was erroneous, and that even when correctly stated, his exposition was inapplicable, submitting inter alia that: (1) The fact that the Company had been incorporated by joint resolution of the Legislature, and had had their by-laws reduced to writing and printed, was evidence of their intention no longer to adhere strictly to the original customs of the Kroos; (2) That the whole trend of the Constitution and laws of the Republic was to gradually eradicate tribal differences, and bring the entire population under one single system of law and practice.
Commenting upon these submissions, this Court desires first of all to observe that going back to Blackstone’s Commentaries, the first written authority from which has sprung the common law of most, if not all, English speaking countries, he states that the lex non scripta, or unwritten law, “includes not only general customs, or the common law properly so called ; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.” i Blackstone’s Commentaries *67.
He then pointed out that with the exception of the customs of gavelkind and borough-English, “All other private customs must be particularly pleaded, and as well the existence of such customs must be shown, as that the thing in dispute is within the custom alleged.” Blackstone’s Commentaries, *76; I Stephen’s Commentaries 58-61.
Our own Legislature, in providing for the government of aboriginal districts, prescribed that the court shall take notice of and administer the customary native law of the particular tribe or tribes interested in the dispute; but realizing that such customary law had not been embodied in any written treatise, proceeded to prescribe that :
“. . the Court shall have the power to call in any Chief or prominent member of the tribe not interested in the thing in dispute, who, having been sworn in the native manner if not a christian [sic], shall give evidence of what the law is.” L. 1904.-5 (for the Government of Aboriginal Districts), p. 28, latter part of section 5.
As has been shown, here was a case in which two persons on opposite sides, each claiming to be a member of the Kroo tribe and to have expert knowledge of the particular customs thereof, differed radically as to what the custom was upon certain points ; and yet the statute was not complied with for obtaining an authoritative exposition what the custom was in each such instance for the guidance of the court. A splendid opportunity was thereby lost for this Court to have obtained the desired information upon each of the points upon which differences had arisen, and of making record thereof for the guidance of the courts in the future. Nevertheless, even had that been done, the court would not have been bound to give effect to a custom which is in express violation of the law either common or statutory. For, although according to the best authority available, long established customs in opposition to the general rules of law are not always void, the same authorities most unequivocally declare that:
“A custom or usage repugnant to the express provisions of a statute is void, and whenever there is a conflict between a custom or usage and a statutory regulation the statutory regulation must control.”
The particular customs of the Kroos having by the reasons above given been eliminated from our consideration, it now becomes pertinent to inquire whether according to the rules of the written laws of the Republic, the imprisonment of the appellee was illegal.
First, as has been shown, appellee was not summoned, nor did he, having knowledge that process had been issued or ordered issued against him, voluntarily submit to the jurisdiction of the court. On the contrary, at the time of his appearance he protested against the mode of procedure, and contended that the proceedings then pending should be vacated and new process issued and the trial had de novo. In view of that fact he, the said appellee, was in the same position as that of Tubman in the matter of Tubman v. Murdoch, decided by this Court on December 7[1934] LRSC 26; , 1934 4 L.L.R. 179, 2 New Ann. Ser. et seq., esp. p. 184, which reads :
‘It is a rule of universal application that the rights of no one shall be concluded by a judgment rendered in a suit to which he is not a party, and that a party cannot be bound by a judgment without being allowed a day in court. He must be cited or have made himself a party in order to authorize a personal judgment against him. A judgment rendered against a party who is brought in by motion as a defendant after the trial is concluded is erroneous as to such party.
” ‘A court cannot render a valid judgment in favor of a party who is not before the court and is not represented in any manner in the action. . . “
But suppose he had been legally summoned and the trial had been regularly conducted, would his imprisonment under the circumstances have been legal?
Ignoring for the present the illegal arrest and imprisonment of the appellee upon a warrant of commitment without the previous service and return of a writ of execution, as is necessary in all civil cases, we must bear in mind that the person obligated to pay “death benefits” to the plaintiff in the suit before the Governor of Krootown, if at all, was the Monrovia Silk Company of Krootown, a duly chartered corporation, and not Mr. Manning personally as has already been pointed out; and that, as His Honor Judge Brownell very correctly decided in his judgment on the authority of i Blackstone’s Commentaries, page 477, “it” (a corporation) “cannot be committed to prison.” The principle thus cited by the trial judge has been more explicitly stated by this Court in the case Wilks v. Page and Hill, [1913] LRSC 12; 2 L.L.R. 126, 2 Lib. Semi-Ann. Ser. 24, decided by this Court on the r3th of June, 1913, when this Court said inter alia:
“But even where a writ of execution can be issued against a corporate body, such as a township, it does not run against the body of its chairman. (2 Waite’s Actions and Defenses 305.) This authority is based upon the principle that at common law officers of a corporation are not personally liable for its debts. Such liability arises only when created by statute and exists only as provided by such statute when they make provision for that purpose. (21 Amer. & Eng. Enc. Law, 882[21.) “
In view of the principles herein enunciated if the trial judge committed an error in the judgment he rendered discharging the appellee and ruling the appellant to pay all costs, such error has escaped our most careful scrutiny. It follows, therefore, that in our opinion the judgment of the court below should be affirmed, and the appellant ruled to pay all costs; and it is hereby so ordered.
Affirmed.