MAMADEE KROMAH, Informant, v. HIS HONOUR J. HENRIC PEARSON, Assigned Circuit Judge, Sixth Judicial Circuit, Montserrado County, September Term, A. D. 1984, the Sheriff of Montserrado County and all those serving under his authority, and BRITISH PETROLEUM MED WEST AFRICA (LIBERIA) LTD., Respondents.
INFORMATION PROCEEDINGS.
Heard: November 5, 1986. Decided: January 22, 1987.
1. The relationship of licensor and licensee or the license accruing thereunder is no defense to an action of summary ejectment and hence cannot justify a judgment for the defendant in such summary ejectment proceedings.
2. Where the Supreme Court reverses a judgment of the lower court without ordering a retrial of the case, a remand of the case is solely for the purpose of satisfying the conditions stated in the opinion, and not for a retrial.
3. It would be an injustice to evict a licensee holding property under a summary ejectment proceeding, without compensating him for improvements made on the property.
4. A license is not a legal defense to an action of summary ejectment, because a failure to evict the licensee will create a permanent interest in the property, contrary to the basic elements of a license.
5. Where a judge still has jurisdiction over a matter decided by him, he remains clothed with the authority to modify, correct or rescind his decision or judgment in the identical case decided by him. However, he must do so upon proper notice to all the parties concerned.
6. It is a reversible error for a trial judge to rescind an order previously given in the absence of and without notice to the parties concerned.
7. Where the writ in information proceeding remanded by the appellate court fails to specify that the property in question be placed in possession of the informant, it is error for the trial judge to place such informant in possession of the property from which he had been previously evicted, and such action is a legal nullity.
8. Where a licensee has been compensated for losses he might have sustained growing out of improvements made upon the property from which he has been evicted, he cannot occupy the identical property without the expressed consent of the owner/licensor.
In an action of summary ejectment instituted by the correspondent, BP Med West Africa (Liberia) Ltd., against the informant, Mamadee Kromah, a licensee of the co-respondent, the trial court entered judgment in favor of the informant. On appeal, the Supreme Court reversed the judgment, holding that the mere fact that the informant held a license granted by the co-respondent was no defense to an action for summary ejectment. The appellate Court therefore remanded the case to the trial court. However, prior to the reading and enforcement of the mandate, the informant instituted an action of damages against the co-respondent for breach of contract. In this latter case, judgment was entered in favour of the informant for $45,000.00, from which no appeal was taken. Instead, the judgment was fully satisfied by the co-respondent.
Thereafter, following the reading of the Supreme Court’s mandate, the trial court judge, in enforcing the said mandate, ordered the informant evicted from the premises. Whereupon, informant filed a bill of information with the Supreme Court, alleging that the Supreme Court’s mandate had been violated by the trial court since the Supreme Court, in remanding the case, intended that a new trial would be conducted by the trial court and not that the informant should be ejected from the premises. Growing out of the bill of information, a writ was issued and served on the trial court judge. The trial judge, upon receipt of the writ, reversed his previous ruling and ordered that the informant again be placed in possession of the premises.
In disposing of the information, the Supreme Court ordered that the co-respondent be placed in possession of the premises. The Court held that the trial court judge, in evicting the informant from the subject premises, had not violated the Court’s mandate, noting that in remanding the case, it had not intended that a new trial be conducted in the summary ejectment proceedings. The Court observed that the informant had not requested that he be granted repossession of the premises, and that neither the bill of information nor the writ issued and served on the trial judge instructed that the corespondent be dispossessed of the premises or that possession thereof be given to the informant.
The Court expressed its agreement with the judgment in the damages case, stating that it was fair that the co-respondent compensate the informant, its licensee, for losses sustained by virtue of improvements made to the premises from which he had been ejected. The Court opined, however, that it would be an injustice to the co-respondent to place the informant in possession of the premises or to permit him to occupy the said premises, after he had been compensated by the co-respondent for the losses he had sustained. The Court therefore dismissed the information.
No one appeared for informant. The Maxwell & Maxwell Law Offices appeared for respondents.
MR. JUSTICE BIDDLE delivered the opinion of the Court.
The co-respondent in these information proceedings, British Petroleum Med West Africa (Liberia) Ltd., instituted an action of summary ejectment against the informant, Mamadee Kromah, in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, during its March Term, A. D. 1983. In keeping with the statute governing summary ejectment cases, the hearing of this case was conducted without a jury. Following the conclusion of the evidence, the trial judge rendered final judgment in favor of the defendant, now informant. The plaintiff/co-respondent excepted to this final judgment and perfected an appeal to this Court.
During its March Term, A. D. 1984, this Court, upon hearing the appeal, reversed the lower court’s judgment. For the benefit of this opinion, we hereunder quote the relevant portion of the opinion. It reads thus: “In many jurisdictions where a licensee has entered under a parole license and has expended money or itsequivalent in labor, it becomes irrevocable and thelicensee acquires a right of entry on the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under the license, and the license will continue for so long a time as the nature of it calls for. This rule is particularly applicable where the licensee is engaged in the business of serving the public and could otherwise have used its rights to acquire property by condemnation.
The cases holding to this rule as to irrevocability of certain licenses proceed on two distinct theories, one theory being that when the licensee expends large sums of money in making the improvement, and such expenditure is made without opposition by the licensor, the license becomes executed and, as such irrevocable; and that, in fact, what was at its inception a license becomes in reality a grant. The other theory and the reason most frequently given is that after the execution of the license, it would be a fraud on the licensee to permit a revocation; and the principle of equitable estoppel is invoked to prevent what would work a great hardship in many in-stances. This is especially true where a licensor not only grants the right to the licensee to go on his land but joins in the enterprise and accepts the benefits of the licensee’s labor and expense.” 33 AM. JUR., Licensee, § 103.
The exposition made above clearly explains the law of license in real property where expenditures are made by licensee. Then they become irrevocable and special means have to be resorted to for terminating them. The licensee who makes such expenditures under the license is entitled to compensation for said expenditures. 33 AM. JUR., Licensee, § 106.
From these legal and factual circumstances, it can be gathered that a license is not a legal defense to an action of summary ejectment, because failure to evict appellee will create a permanent interest in the property, subject of this litigation, contrary to the basic elements of a license, even though great injustice will be done to appellee if he were to be evicted from the premises without notice as well as just compensation. Therefore, the judgment in this case is hereby reversed and the case remanded. Costs to abide final determination. IT IS SO ORDERED.”
It is from the above quoted opinion and judgment that the parties have come back to this Court for redress, each endeavoring to interpret the opinion and judgment to suit their respective views. The mandate from this Court in the action of summary ejectment commanded and authorized the judge presiding in the court below to “execute the foregoing judgment immediately” and file returns as to how said mandate was executed.
Appellee/defendant, now informant, filed an eight-count bill of information before the Court en banc, substantially alleging that this Court, in reversing judgment of the trial court, remanded the case for a new trial. Counts 3, 4 and 5 of the bill of information, which we consider relevant to the determination of this case, are summarized thus:
(3) That the Honourable the Supreme Court, during its March A. D. 1984 Term, heard the appeal and in reversing the judgment of the court below, “remanded the case to the court below”.
(4) That the court below, after reading the mandate of this Court, issued a notice of assignment for a hearing of the case, meaning retrial.
(5) That instead of conducting a new trial as understood and argued by informant, the respondent judge proceeded to read and enforce a mandate of the Supreme Court in said case, informant contending that there was no mandate to be read let alone to be enforced, and according to informant only a retrial was ordered by this Court.
On the other hand, and countering the bill of information, respondents filed 19-count returns. However, for the benefit of this opinion, we shall consider only counts 2, 3, 11, 14, 17 and 19 thereof. They are summarized as follows:
(2) That by reversing the judgment of the lower court in the said ejectment case, the court, as a matter of law and by implication, did hold that respondent British Petroleum Med West Africa (Liberia) Ltd. be put in possession of the disputed premises.
(3) That the only purpose for remanding the case after reversing the judgment of the lower court was for the latter to determine what compensation could be recovered by informant for improvement made on the premises.
(11) That had the Supreme Court intended to have the case retried, it would have so stated in the opinion as is traditionally done when a case is remanded for new trial. And that even though the Supreme Court decided that “great injustice will be done to appellee (informant herein) if he were to be evicted without notice as well as just compensation”, yet the very court did opine that the legal relationship between the informant and respondent British Petroleum Med West Africa (Liberia) Ltd. was that of a licensor-licensee and that such relationship was not a valid defense in an action of summary ejectment, because, according to the court, failure to evict informant/appellee will create a permanent interest in the property, contrary to the basic elements of a license.
(14) That no claim of compensation was raised in informant’s pleading (answer) in the court below, and that only during the trial did the informant/defendant mention or testify to the effect that he was retaining possession of said premises because he had not been compensated for some alleged damages sustained by him as a result of a wrongful entry of, and damage done by, respondent British Petroleum Med West Africa (Liberia) Ltd., as well as compensation for improvements carried out by informant. And informant, having been compensated for improvement made on the co-respondent’s aforesaid premises in an amount of $45,000.00, through an action of damages, a condition laid down by the Supreme Court, informant can no longer retain said premises when the condition has been satisfied.
(17) That the writ of possession was served and returned served and informant ousted and evicted from the premises, and co-respondent placed in possession of its said premises.
(19) That the trial judge’s act of rescinding the writ possession and returning said premises to informant, in other words ousting co-respondent BP without notice to the parties on account of a bill of information before the bench en banc, while said bill of information was still undecided, was a reversible error.
Lest we forget, the bill of information, subject of these proceedings, in its prayer, does not contain any request to this Court to have the lower court put the informant in possession of the premises in dispute pending disposition of the information proceedings; nor did the citation from the office of the Clerk of this Court contain any provision to put the informant in possession of the premises from which he had already evicted, pending the disposition of the information.
From the records certified to this Court, the summary ejectment case was finally decided by this Court during its March A. D. 1984 Term. In that opinion, the judgment of the trial court, dismissing the complaint in the ejectment suit instituted by the co-respondent, British Petroleum Med West Africa (Liberia) Ltd., was reversed. But in reversing said judgment, this Court did not specifically order a new trial.
However, in the last concluding sentences of the opinion, it was stated: “Therefore, the judgment in this case is hereby reversed and the case remanded. Costs to abide final determination. IT IS SO ORDERED.”
Before the enforcement of the Supreme Court’s mandate by the lower court, the informant instituted an action of damages for breach of contract against co-respondent BP growing out of the trial-dealership relationship between the informant and the respondent, BP. In an exhaustive 18 page findings, the trial court, although having observed that plaintiff Mamadee Kromah had failed to prove any breach of contract on the part of defendant BP, nevertheless ruled that:
“The defendant BP’s manager having admitted cutting the hose of the pump cannot escape liability completely because the act complained of did not only violate our criminal statute but did impose some damage on the plaintiff, however minimal. And while the plaintiff has been unable to determine the extent and quantum of damages, this court is of the opinion that a reasonable amount as compensation to the plaintiff is warranted, if for no other reason than to serve as a deterrent to others.
“It is therefore the judgment of this Honourable Court that the defendant BP pay to plaintiff Kromah the amount of $45,000.00 (forty-five thousand dollars) as damages.”
This finding or judgment was apparently entered in contemplation of the Supreme Court’s opinion, reversing and remanding the summary ejectment case, to the effect that the defendant ought to be compensated for improvements done on plaintiffs (BP) premises. It is interesting to note that BP did not except to this judgment awarding plaintiff Kromah the amount of $45,000.00 (forty-five thousand dollars) as damages. Instead, it satisfied the judgment of the trial court, as evidenced by the bill of costs taxed by both parties, and exhibited by the respondents as exhibit R/10. The said judgment was satisfied on August 2, 1984.
Subsequently, on August 23, 1984, the mandate of the Supreme Court was ordered read but it was not enforced until October 22, 1984, after several delays by informant. The lower court, in enforcing the mandate, placed the co-respondent in possession of the premises. (See Respondents’ exhibit D/11).
Thereafter, on October 23, 1984, informant Kromah filed the instant bill of information before the full Bench. Upon receipt of the bill of information, the co-respondent Judge, His Honour J. Henric Pearson, had this to say:
“THE COURT: In re the case BP Med West Africa, plaintiff versus Mamadee Kromah, defendant, action of summary ejectment. The court received a writ from the Honourable Supreme Court of Liberia on an information filed against the writ of possession ordered issued from this court in favor of the plaintiff, commanding the sheriff of the county to dispossess Defendant Mamadee Kromah of the further use of the gas station in question and to place same in possession of the plaintiff. This writ of possession was served and returned served, and in view of the writ served against this court’s order, the court hereby rescinds its orders of possession in favor of the plaintiff pending determination of the information filed with the Honourable Court en bane. It is the order of this court, therefore, that the sheriff of this court will repossess the property, BP Gas Station, Jamaica Road, Bushrod Island, unto defendant Mamadee Kromah to take full possession thereof until the final determination of the information proceeding by the Honourable Supreme Court of Liberia. This rescinding order takes effect immediately and the sheriff will proceed to place defendant in possession of said gas station. Copies of this rescinding order is hereby ordered dispatched to all parties concerned for their information. AND IT IS SO ORDERED.”
“Given under our hand in open court this 26th day of October, A. D. 1984, at the hour of 11:55 a.m.
/s/ J. Henric Pearson
/t/ J. Henric Pearson
ASSIGNED CIRCUIT JUDGE PRESIDING”
In other words, the trial judge, upon receipt of the citation in the bill of information, sua sponte rescinded his previous decision, dispossessing the co-respondent BP, rightful owner of the premises in question, of the possession of said premises, thereby nullifying his own act or judgment.
Three issues are presented in this case for our determination, all of which are centered around whether or not the trial judge acted correctly. They are:
(1) Whether or not the co-respondent judge was legally correct to rescind his decision as he did after the filing of the bill of information by informant?
(2) What is the office or function of a bill of information and when does it lie?
(3) Whether or not the remand of the case by this Court after reversing the judgment, but without specific instruction, was intended to have the summary ejectment suit retried?
We shall traverse the issues in the reverse order.
The Supreme Court, in reversing the trial court’s judgment in the ejectment proceedings, emphatically stated that there existed a licensor-licensee relationship between the informant, defendant in the summary ejectment suit, and co-respondent BP Med West Africa (Liberia) Ltd., plaintiff in the said ejectment suit. This Court also held in that opinion that the relationship of licensor and licensee, or license accruing thereunder, was no defense to an action of summary ejectment and hence could not justify confirming the lower court’s judgment. We now hold that by that reversal, without ordering a retrial, this Court intended to put BP, co-respondent herein, in possession of its rightful property, and that the remand of the case was intended solely to satisfy the condition of compensation mentioned in the opinion, even though the issue of compensation was not raised in the informant/defendant’s answer to the summary ejectment complaint. This was based on the Court’s conclusion that it would be an injustice to evict informant from the premises without justly compensating him for the improvements made on the premises. That compensation was paid as directed.
Coming now to the second issue, we note that this Court has since laid down the rule governing information. In Raymond International (Liberia) Ltd. v. Dennis, [1976] LRSC 35; 25 LLR 131(1976), then Assigned Circuit Judge, Sixth Judicial Circuit, Montserrado County (now Mr. Justice Dennis), this Court, speaking through Mr. Justice Horace, said:
“when an issue had reached the point of executing a mandate of the Supreme Court, a remedial writ was out of the question. If anything went wrong at that stage, it was the duty of the party who felt he was being wronged to in some way bring the action of wrong against whoever was committing the wrong to the attention of the Court en banc.
. . . From time immemorial, it has been tile practice to come by bill of information to this Court in cases like these, and therefore if a judge or any judicial officer attempts to execute the mandate of the Supreme Court in an improper manner, the correct remedy is by bill of information to the court.” [1976] LRSC 35; 25 LLR 131,140 (1976).
Hence, the informant was not without legal authority in instituting the information proceedings.
We now come to the first issue since we are treating the issues in reverse order, and that is, whether or not the corespondent judge was legally correct in rescinding his decision as he did, upon receipt of the citation in the information proceedings?
As we have stated earlier in this opinion, the co-respondent judge, upon receipt of the citation in the information proceedings, immediately rescinded his decision in these words:
“ . . . The court received a writ from the Honourable Supreme Court of Liberia on an information filed against the writ of possession ordered issued from this court in favor of the plaintiff, commanding the sheriff of the county to dispossess defendant Mamadee Kromah of the further use of the gas station in question . . . and in view of the writ served against this court’s order, the court hereby rescinds its orders of possession in favor of plaintiff pending the determination of the information. This rescinding order takes effect immediately. . . Copies of this rescinding order are hereby ordered dispatched to all parties concerned for their information. . . .”
Because of the wording of the judgment of the Supreme Court, as contained in its opinion in the summary ejectment proceedings, which simply used the phrase “reversed and remanded” without giving specific instructions, we strongly believe that the co-respondent judge was under the impression that portion of the opinion which stated that “a license is not a legal defense to an action of summary ejectment, because failure to evict appellee will create a permanent interest in the property . . . contrary to the basic elements of a license. . . .” was intended to put co-respondent BP in possession of the property. This probably led to the issuance of the writ of possession in favor of co-respondent BP, which we believe was proper. This conclusion is supported by law. In Ballentine’s Law Dictionary, 3rd ed., at p. 1088, we have the following: “Remand: The return of a case by an appellate court to the trial court for entry of a proper judgment.”
We therefore hold that the proper judgment, within the meaning of the law cited as regards remand, especially when the Court reversed the judgment of the lower court without specific instructions, was to put the plaintiff, BP Med West Africa (Liberia) Ltd., now co-respondent, in possession of its rightful property, subject of the summary ejectment suit.
What is the legal effect of the co-respondent judge’s recission of the judgment?
The records reveal that the judge was still in jurisdiction when the bill of information was filed. Hence he was still clothed with the authority to modify, correct or rescind his decision or judgment in the identical case decided by him. However, under the law, he must do so upon proper notice to the parties concerned. (See Raymond International (Liberia) Ltd. v. Dennis, cited supra, text at 142). It was therefore a reversible error for the co-respondent judge to rescind his order in the absence of the parties or without notice to the parties concerned. And since the instructions in the information proceedings did not contain an order to the co-respondent judge to place informant Mamadee Kromah in possession of the premises in question pending the disposition thereof, the co-respondent judge’s act in placing the informant in possession of the premises from which he had already been evicted was a legal nullity.
Furthermore, informant Mamadee Kromah, having already instituted an action of damages against the co-respondent BP and received an amount of $45,000.00 as compensation for losses he might have sustained by improving the said premises, the condition precedent laid down by this Court for his eviction in the ejectment action, he cannot now be permitted to occupy the identical premises without the expressed will and consent of co-respondent BP, the rightful owner of the premises.
Wherefore, and in view of the foregoing facts, circumstances and laws cited, the bill of information is hereby dismissed, with costs against the informant. And it is hereby so ordered.
Information dismissed