MARY KING, Appellant, v. CHARLES D. B. KING, Appellee.

I. MOTION TO DISMISS APPEAL. 2. MOTION TO VACATE JUDGMENT. Argued April 2, 1973. Decided April 26, 1973. 1. An action for divorce is in be brought to the Circuit Court of the judicial circuit in which either plaintiff or defendant resides at the time of commencement of the action. 2. When an action for divorce is commenced in a judicial circuit in which neither party resides, the Circuit Court lacks territorial jurisdiction and any decree rendered by it is void. Appellee commenced a divorce action, alleging desertion. Both parties resided in the Eighth Judicial Circuit at the time, but the action was brought in the Circuit Court for the Ninth Judicial Circuit. The issues of law were disposed of, including the contention of lack of the court’s territorial jurisdiction raised by the defendant in her answer, and the case was ruled to trial on the complaint alone, the answer having been dismissed and defendant placed on a general denial. A verdict was returned for plaintiff and a decree terminating the marriage was rendered, from which an appeal was taken. Two motions were thereafter made, one by the appellee to dismiss the appeal for failure to serve a notice of completion of appeal, and by the appellant to vacate the judgment for lack of territorial jurisdiction in the court which had rendered it. The Supreme Court denied the motion to dismiss the appeal, proof of service of the notice of completion of appeal appearing in the file, and granted the motion to vacate the judgment or decree. J. Dossen Richards for appellant. Raymond Hoggard for appellee. 106 LIBERIAN LAW REPORTS MR. JUSTICE HORACE 107 delivered the opinion of the Court. According to the record certified to us from the trial court, Mr. Charles D. B. King, plaintiff in the court below, now appellee, filed an action of divorce, alleging desertion by his wife, Mary King, defendant below, now appellant, in the Circuit Court for the Ninth Judicial Circuit, Bong County, on February 4, 1972. The complaint alleged that plaintiff and defendant were married in 1966, and thereafter lived in tolerable peace until January 15, 1971, when contrary to her marital vows and covenants the defendant left his bed and board. Plaintiff further alleged that he had made several appeals to defendant to return to their home but without avail. He also averred that despite this desertion by his wife he had “kept inviolate his marital vows, covenants and obligations.” Although the record shows that attorney for defendant prepared an answer in the case on February 14., 1972, and an affidavit was sworn to the allegations made in the answer on the same day, for some unknown reason the clerk of the Circuit Court made a notation on the answer that it was filed on February 21, 1972. The answer, aside from denying that defendant had deserted plaintiff, alleged that to the contrary plaintiff had put her out of his home, and averred that the Circuit Court in which the case was filed had no territorial jurisdiction over the persons or the subject matter because both plaintiff and defendant were residents of Nimba County and the action should have been filed in the Circuit Court of Nimba County and not in Bong County, as had been done by plaintiff. Plaintiff in his reply filed February 22, 1972, alleged that the answer was filed seventeen days after defendant was returned summoned, instead of within the ten days allowed by statute. He averred further that an action of divorce is a transitory action and can be determined in 108 LIBERIAN LAW REPORTS any court of Liberia, apparently meaning regardless of where the parties to the action reside. Where he got this rather novel principle of law we have been unable to discover. He also averred that the entire answer was defective and dismissible because neither the answer nor the affidavit to the answer carried the twenty-five cent revenue stamp required by law. There are many interesting aspects in the handling and disposition of this case in the court below as shown in the record before us. For example, although the plaintiff filed his reply on February 22, 1972, on that very day an assignment was sent out for disposition of the issues of law. The court in passing on the issues of law on February 25, 1972, had to admit that the notice of assignment was prematurely issued. The court disposed of the issues of law on February 25, 1972, dismissing defendant’s answer and placing her on a bare denial, ruling the case to trial on the plaintiff’s complaint. Another interesting feature of this case is how it obtained precedence in trial over all the other cases which had obviously been docketed, for although pleadings were rested on February 22, 1972, issues of law were disposed of on February 25, 1972, and trial began March 3, 1972. We wonder why the haste in disposing of this particular case. We also wonder if there were no criminal cases docketed for that term of court to take precedence in trial. However, this is just mentioned in passing. The case was tried, a verdict returned in favor of plaintiff, and after denial of the motion for a new trial, a final decree terminating the marriage was given on March 27, 1972. It is from this final decree, as well as other adverse rulings of the trial judge, that this appeal has been taken. The record certified to us in this case, aside from what has already been stated, reveals many interesting features, LIBERIAN LAW REPORTS 109 but because of what will be hereinafter stated we cannot go into the trial record. When this case was called for hearing, we were faced with two motions, one filed by appellee to dismiss the appeal for lack of returns by the ministerial officer to the notice of completion of appeal, and one by the appellant to vacate the judgment for lack of territorial jurisdiction in the trial court. Although jurisdictional issues are usually disposed of first, we thought best to dispose of the motion to dismiss inasmuch as it had been filed on September 5, 1972, and the motion to vacate on December II, 1972. In checking the record to find out whether the averments in the motion to dismiss were true, because they were supported by a certificate issued by the clerk of court for the Ninth Judicial Circuit, to our surprise we saw that the sheriff had made returns to the notice of completion of appeal within the statutory time, as certified in the record by the very clerk of court who had given appellee a certificate to the effect that no returns had been made. That such contradictory positions taken by the clerk of court is perplexing cannot be gainsaid. Faced with this situation, appellee’s counsel could not support his contention and so the motion was denied. We then proceeded to consider the motion to vacate because of lack of territorial jurisdiction in the trial court. Here, again, the record revealed that both plaintiff and defendant were residents of Ganta, Nimba County. Despite this fact plaintiff had, in contravention of the plain language in our Domestic Relations Law, instituted his action in Bong County where neither of the parties lived or resided. “Action for divorce: jurisdiction of Circuit Court. An action for divorce shall be brought in the Circuit Court of the judicial circuit in which either the plaintiff or the defendant resides at the time of the com- 110 LIBERIAN LAW REPORTS mencement of the action. If such action is brought in Montserrado County. . . . the county shall have jurisdiction.” 1956 Code io:71. During argument before us, counsel for appellee was asked whether, as the motion to vacate alleged, it was true that both plaintiff and defendant lived in Nimba County and also whether it was true that the action of divorce had been instituted and determined in Bong County. To both of these questions from the bench, counsel for appellee answered in the affirmative. Apparently the trial judge must have concluded that having ruled out the answer which had raised the question of lack of territorial jurisdiction in the court, there was no question of jurisdiction before him. At first blush this might sound plausible, but an examination of the law on the point does not support this position. “Test of jurisdiction : Every court of general jurisdiction has power to determine whether the conditions essential to its exercise exist. In fact it must, of its own motion (emphasis supplied), always consider the question of its jurisdiction over any matter brought before it, although not raised by the parties, since it is bound to take notice of the limits of its authority. In the absence of jurisdiction the court cannot proceed at all, but must announce the fact and dismiss the cause. “The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry, not whether its conclusion in the course of it is right or wrong.” 14 Am. JUR., Courts, � 168. Jurisdiction has been defined generally: “The jurisdiction of a court is in a broad sense its power to hear and determine controversies, and in a more restricted sense its power to adjudicate a particular case. . . . It has been briefly defined as the LIBERIAN LAW REPORTS 111 authority to hear and determine causes or controversies. . . . Jurisdiction includes power of the court to determine the controversy. “Jurisdiction can never depend on the merits of the case brought before the court, but depends on its right to hear and decide it at all.” 21 C.J.S., Courts, � 15. As to territorial jurisdiction specifically, authority is quite clear. “The jurisdiction of certain courts within the state may be limited as to territory within the state, as for example, to a certain county or district. In such a case the rules governing jurisdiction are much the same as arise over the broader question of the limits of the state. In other words, a court, the jurisdiction of which is limited to a county or district cannot exercise jurisdiction beyond the county or district. “Territorial jurisdiction is the power of the tribunal considered with reference to the territory within which it is to be exercised. “The tract of land or district within which a court, judge or magistrate has jurisdiction is called his ‘territory’ and his power in relation to his territory is called his ‘territorial jurisdiction.'” 14. AM. JUR., Courts, � 223. “The proper test of jurisdiction is whether the court had power to enter on the inquiry.” II CYC. 661. “Territorial jurisdiction is the power of a court with reference to the territory within which it is to be exercised. Territorial jurisdiction has been defined as the power of the tribunal considered with reference to the territory within which it is to be exercised, connotes power over property and persons within the territory, and has been distinguished from jurisdiction over the subject matter. The territorial jurisdiction of a court is a matter of substance and not of form, a 112 LIBERIAN LAW REPORTS limitation which is fundamental and not merely theoretical.” 21 C.J.S., Courts, � 20. In addition to the authority quoted, we must mention that our own Supreme Court has been both vocal and clear with respect to this question of territorial jurisdiction. In Hill v. Republic, [1925] LRSC 7; 2 LLR 517 (1925), this Court held that territorial jurisdiction is given by law, and cannot be conferred by consent of the parties. The Supreme Court held in Phillips v. Nelson, I� LLR 134 (i949), that where a judge acts without jurisdiction, his judgments are a nullity and cannot be enforced. And in Morris v. Monah, alias Phillips[1961] LRSC 40; , 14 LLR 588 (1961), this Court ruled that where a court lacks territorial jurisdiction, its judgment is void. For the reasons hereinabove stated, it is our holding that the acts of the trial judge in this case are a legal nullity, for not having had territorial jurisdiction therein, and the judgment rendered by him therein is hereby unconditionally vacated, with costs against appellee. It is so ordered. Motion to dismiss appeal denied; motion to vacate judgment granted.