Morris Kiazolu, Ahaikam Halle, A. S. Kadara Golefale (Buyer), Prince Oramadike and surveyor to be identified, all of the City of Monrovia, Montserrado County, Republic Liberia, Appellant Versus Republic of Liberia, by and thru Precious M. Doe, of the City Of Monrovia, Montserrado County, Republic of Liberia, Appellee
APPEAL
CRIMINAL CONVEYANCE OF LAND & CRIMINAL CONSPIRACY of the City of Monrovia, Montserrado County,
Heard: June 15, 2022 Decided: February 7, 2024
MADAM CHIEF JUSTICE SIE-A-NYENE G. YUOH
MADAM CHIEF JUSTICE YUOH DELIVERED THE OPINION OF THE COURT
The records certified to this Court show that this appeal emanates from the First Judicial Circuit, Criminal Assizes “A” when the Grand Jury for Montserrado County presented an indictment charging the appellants, defendants in the court below, with the commission of the crimes of criminal conveyance of land and criminal conspiracy.
In commencing our review of the merits of this appeal, we take judicial notice of historical facts, recalling the alarming rate of disputes involving real property that not only flooded the dockets of courts of this Republic, but also incited the increase in other violent crimes in society as a result of land dispute. The Legislature taking cognizance that land-based disputes throughout Liberia, particularly in urban areas, had escalated to a crisis point thereby making it difficult for institutions and courts established to deal with civil issues to adequately resolve these disputes as civil matters; and further noting that the illegal conveyance of real property had the propensity to undermine the peace, stability and harmony of Liberia, and adversely impact economic growth and development, the Legislature passed the Criminal Conveyance Act which was approved on August 26, 2014, and became effective as of September 2, 2014. The said Act amended Chapter 15, Subchapter B, Section 15.21(4) of the Penal Law, and created a new
Subchapter AB, Section 15.23 captioned the “Criminal Conveyance of Land”. We shall quote this amended provision of the Penal Law which defines the crime of Criminal Conveyance of Land later in this Opinion.
The indictment charged Morris Kiazolu, Ahaikam Halle, A. S. Kadara Golefale (Buyer), Prince Oranmadike et al., the appellants herein, with the commission of the crimes of Criminal Conveyance of Land and Criminal Conspiracy. The sixteen (16) count indictment alleged inter alia, that the private prosecutrix is the legitimate owner of a onehalf (0.5) lot of land situated at Oldest Congo Town; that sometime in May, 2020, coappellants Morris Kiazolu and Ahaikam Halle illegally entered upon the private prosecutrix’s property with the criminal intent of illegally selling same, and did sell said property to co-appellants A. S. Kadara and Prince Ormadike; that co-appellants Kiazolu and Halle being fully aware of the private prosecutrix title to the said property, because she had notified them on several occasions about her title to the subject property, they nonetheless illegally sold the subject property to co-appellants Golefale and Oramadike; that co-appellants Golefale and Oramadike having been duly notified by the private prosecutrix that the subject property belonged to her and not co-appellants Kiazolu and Halle, their decision to proceed with and consummate the purchase of the private prosecutrix’s property constitutes the commission of the crime of Criminal Conveyance of Land. The indictment further charged the appellants with the crime of Criminal Conspiracy on ground that although the appellants knew or had reason to know that the subject property belonged to the private prosecutrix, they connived and conspired to deprive the said private prosecutrix of her legitimate property, thus committing the crime of Criminal Conspiracy.
On November 23, 2020, the appellants were arraigned before the First Judicial Circuit,
Criminal Assizes “C”, at which time they pleaded not guilty to the charges of Criminal Conveyance of Land and Criminal Conspiracy as alleged in the indictment, and thereafter waived their right to trial by jury. Hence, the case was proceeded with as a bench trial which is in consonance with the law that “in all cases except where a sentence of death may be imposed, trial by a jury may be waived by a defendant who has the advice of counsel or who is himself an attorney…” Constitution of Liberia, Article 21(h) (1986); Criminal Procedure Law, Rev. Code, 2:20.2.
The case proceeded to trial, and at the conclusion thereof, the trial judge rendered final ruling adjudging the appellants guilty of the commission of the crimes of Criminal Conveyance of Land and Criminal Conspiracy, respectively. We quote below excerpt of the trial court’s final ruling, to wit:
“…WHEREFORE AND IN VIEW OF THE FOREGOING, and the laws controlling, it is the considered final verdict/judgment of the First Judicial Circuit, Criminal Assizes “C” for Montserrado County, Republic of Liberia, that defendants Mmorris Kiazolu, alias Augustine Boimah Kiazolu, Ahaikam Halle, A. S. Kadara Golefale, and Prince Oramadike are hereby adjudged guilty of the alleged crimes of Criminal Conveyance of Land and Conspiracy. The said four (4) defendants hereinabove named are hereby ordered to restitute the half lot of land of the private prosecutrix “as is” and “where is” with immediate effect. They are hereby fined the amount of US$300.00 each to be deposited into government revenue. Sentencing to abide final determination of the case. AND IT IS HEREBY
SO ORDERED.”
We note with grave concern the failure of the trial court to order the Division of Probation Services, First Judicial Circuit, Montserrado County, to conduct a presentence investigation and submit its report to the court for sentencing; we further observe that the trial judge failed to sentence the appellants after adjudging them guilty of the crimes charged against them. However, we shall say more on our observations also later in this Opinion.
On January 27, 2021, the appellants filed a motion for newly discovered evidence averring therein that they had just discovered an Act by the Legislature wherein the present Calbral Housing Estate was previously known and referred to as Sinkor Housing Estate, indicating that Sinkor extended beyond Vamoma as denied by the appellee’s witness.
On January 27, 2021, following rendition of the trial court’s final ruling, the appellants filed a motion for new trial contending therein that the judgment was contrary to the weight of the evidence adduced by the appellee; that the appellant had discovered new and material evidence which would most likely have changed the outcome of the case had it been discovered earlier and introduced into evidence, as said specie of evidence utterly refutes the oral evidence presented by one of the appellee’s rebuttal witnesses to the effect that the location of the disputed property was never a part of Sinkor; that the said specie of evidence marked as Exhibit “M/1” and annexed to the appellants’ motion is an Act of the Legislature which purportedly referred to the Government Housing Estate which is now known as Cabral Estate, as “Sinkor Housing Estate”, indicating that Sinkor extended beyond Vamoma House.
On February 22, 2021, the appellee filed its resistance to the motion for new trial contending therein that the motion did not satisfy the statutory condition for the granting thereof; that the weight of evidence adduced by the appellee supports the judgement rendered by the trial court; that the Exhibit M/1 purporting to indicate that the Cabral Housing Estate was once a part of Sinkor does not disprove that the Catholic Community is not situated in Oldest Congo Town because the two communities are separate and distinct. The appellee therefore prayed the trial court to deny the motion for new trial.
Following arguments on the motion, pro et con, the trial court ruled on the motion for new trial and held that the Act of the Legislature marked as Exhibit “M/1” and annexed to the appellants’ motion had no bearing on the merits of the case; that said specie of evidence does not fall within the scope of newly discovered evidence; that the entire procedure adopted by the appellants was contrary to the rules and proceedings applicable in criminal cases. Therefore, the trial court denied the motion for new trial and ordered the appellants to file their bill of exceptions.
On February 24, 2021, the appellants filed a twenty (20) count bill of exceptions for review and determination by this Court of last resort, hence the present appeal.
It is the law that notwithstanding the number of errors purported to have been committed by the trial judge, as contained in an appellant’s bill of exceptions, it is the prerogative of the Supreme Court to determine which errors are germane to the determination of the appeal. Sensee Kowo v. RL, Supreme Court Opinion, March Term, 2023; Olivia Newton v. Augustus D. Kormah, Supreme Court Opinion, October Term, A. D. 2022. Hence, having reviewed the records, we are of the considered view that the disposition of this appeal hinges on a single issue, viz.: Whether or not the evidence adduced by the appellee proved the crimes of Criminal Conveyance of Land and Criminal Conspiracy.
We shall now review the oral and documentary species of evidence presented by the State to determine whether the crime of Criminal Conveyance of Land and Criminal Conspiracy was proved beyond a reasonable doubt; we shall also review the appellant’s defenses as to his innocence.
The appellee presented four (4) regular witnesses and one subpoenaed witness. The first witness, private prosecutrix Precious Doe, testified inter alia that she is a resident of the Catholic Community, and she is familiar with all of the appellants; that she came to know co-appellant Morris Kiazolu when she was nine (9) years old; that at the time, he instituted court action against her father, claiming that her father was occupying his land; that co-appellant Kiazolu later came on the property along with sheriffs carrying paper from the court, police officers, and one “yellow machine” [earth moving equipment] which was used to demolish her father’s house. The witness further testified that she got to know co-appellant Ahaikam Alle through her father; that it was her father who gave the said co-appellant a place to stay along with his wife; that while staying at the place her father gave him, co-appellant Alle met her and requested her permission for his brother to build a booth at the front view of property, and she did permit him to do so; that he later requested to buy the property, but she refused; that he then threatened to sell the land if she didn’t sell it first or build on it; that while she was away from the property, her sister, Martha Doe, called to inform her that co-appellant Morris Kiazolu had taken people to the said property with the intent of selling the place; that upon her return to her property, she saw co-appellant A. S. Kadara Golefale and four other men clearing grass from on the property; that upon inquiry, the co-appellant Golefale informed her that he had purchased the property from co-appellant Morris Kiazolu; that few days later, her father received precepts from the court to the effect that co-appellant Golefale had sued her father for occupying his property; that although she is the owner of the property and not her father, she was not made a party to the suit.
As to co-appellant Prince Oramadike, the private prosecutrix testified that she came to know him after co-appellant Alle sold her property to him; that upon meeting co-appellant Oramadike regarding his alleged ownership of the subject property, he informed her that he bought the property from a man whose name he refused to call; that she informed him that she is the legitimate owner of the property and had her title deed as proof thereof. The witness thereafter testified to her deed which was marked as “P/1”, bearing her name as grantee and the name of Joseph V. Gaye as grantor; that the date of execution indicated on the deed is January 6, 1995. The witness further testified to several photographs which she claimed showed her foundation upon which co-appellant Golefale had built his house, and another portion with fruit trees which she claimed her father had planted thereon prior to the sale of that portion of her property to co-appellant Prince Oramadike.
On cross examination, the witness testified that both co-appellants Golefale and Oramadike are occupying her one-half lot of land; that it was co-appellant Alle who sold her property to co-appellant Oramadike because he had once threatened to sell the land if she refused to sell it.
When questioned as to whether or not she intervened in the case when co-appellant Golefale sued her father, the appellant testified that she did intervene but the case was never concluded.
The appellee’s second witness in person of Mac During testified that he is a resident of the Catholic Community and had been a resident of said community since 1999; that he knew the private prosecutrix’s father, Mr. Massaquoi Doe, because at the time he was the community chairman; that Mr. Doe was unlettered, hence he (During) was always called upon to read communications that came to Mr. Doe; that Mr. Doe once showed him a “land paper” which he had processed to have the private prosecutrix personally own the parcel of land; that the subject parcel of land had breadfruit trees and coconut trees planted thereon by Mr. Doe, and the produce therefrom was only sold by the said Mr. Doe or one of his children he designated at the time to carry out the sale. The witness further testified that a three (3) bedroom foundation was constructed on the land prior to the dispute; that at the time of the case, the parcel of land had a “flattop building” constructed on a portion of it, while another person had erected a structure on the foundation that the private prosecutrix had on the property; that a fellow informed him that he had bought a portion of the subject property from co-appellant Kiazolu. The witness further testified that although the private prosecutrix informed him that the owner of the “flattop building” was a Nigerian national named Prince, it was her father who informed him that the structure constructed on the foundation was done by co-appellant Golefale; that he, witness During, did not know the said Mr. Golefale.
On cross examination, the witness was asked the following question and to which he responded as follows:
“Q. Mr. witness, in your testimony you said that you got to know Mr. Doe in 1999; the deed that bears your signature, verifying the signature of the grantor, was in 1995. How do you reconcile?
- First of all, I am not a surveyor and I have no idea of Probate, what year and what after…what I do know is that the paper was brought to me within the time frame that I [moved] in the community to seek residence.”
Also on cross examination, when asked whether the witness was aware of the breaking down of Mr. Doe house by co-appellant Kiazolu, the witness responded that he witnessed the demolition process, but the house was not entirely demolished; he further testified that the house that was demolished was a concrete structure.
On redirect examination, the witness confirmed that the house allegedly demolished by co-appellant Kiazolu’s action was a concrete structure.
The appellee’s third witness in person of Martha Doe testified that she lives in the
Catholic Community, and has been in said area since 1981; that she is the daughter of Mr. Massaquoi Doe and an older sister to the private prosecutrix; that she was familiar with co-appellant Kiazolu from the time he demolished her father’s house; that she was aware that her father gave the private prosecutrix a parcel of land on which she began some construction work but had to halt due to financial problems; that after a while, she observed some workers carrying on construction works on the same property, and upon inquiry, she was informed that the workers were employed by co-appellant Golefale; that she immediately informed the private prosecutrix who later came on the site along with their father and put a halt to the work; that upon inquiry from co-appellant Golefale as to his grantor, the said co-appellant informed them that he bought the land from co-appellant Kiazolu. The witness further testified that her father’s house which was demolished by co-appellant Kiazolu was situated on her father’s land which is separate and distinct from the private prosecutrix’s land.
On cross examination, the witness confirmed her testimony given on the direct.
The appellee’s fourth witness, Stanley Doe, testified inter alia, that he is a brother of the private prosecutrix; that the subject property was bought by their father from one Mr. Gaye; that after the purchase of the land, they resided thereon for about ten years prior to the civil war, after which time they fled the area; that upon returning, they resided there for about eight (8) additional years following which their father conveyed the property to the private prosecutrix; that thereafter, the private prosecutrix requested him to build a three bedroom house foundation on the subject property; that after he had concluded the construction of the foundation, during which time the private prosecutirx was trying to raise money to continue the construction of the house, he observed the presence of coappellants Kiazolu and Golefale on the property; that upon inquiring from them their purpose on the land, the co-appellant Golefale informed him that he had purchased the property from Kiazolu; that upon receiving this information from the co-appellants, he relayed the said information to the private prosecutrix, and which prompted her to come on the site and put a halt to the work that was being carried out by co-appellant Golefale. On cross examination, the witness confirmed his testimony presented on the direct.
The appellee’s fifth witness, Jeny Mitchell, was subpoenaed to testify in her capacity as Assistant Registrar of Deeds at the Liberia Land Authority (LLA). The witness testified that the following a research of the volume number and page number of the private prosecutrix deed, same was discovered in the records of the Archives.
Following the testimony of its subpoenaed witness, the appellee rested with the production of oral and documentary evidence.
The appellant’s witnesses to include the appellant Morris Kiazulu, Kadara Golefale, and Morri Ambulah testified that Mr. Morris Kiazulu and other administrators of the Intestate Estate of Moleba Zina, Siafa Boney and Mariama Gboya obtained valid Letters of Administration and Court’s Decree of Sale from the Monthly and Probate Court of Montserrado County before executing the sale of the said property; that before the purchase of the said property all of the relevant documents including the mother deed, Letters of Administration and Court’s Decree of Sale were requested for review and same were provided by the administrators of the Estate; that documents obtained from the estate were proven to be genuine; and that the sale of the property was within the pale of the law as co-appellant Kiazolu and his co-administrators being the lawful administrators of the Estate could not have conspired to criminally convey property owned by the estate; hence, Criminal Conveyance and Criminal Conspiracy will not lie.
The laws governing criminal proceedings in our jurisdiction mandates that in all criminal trials, in order to obtain a conviction, the State must prove the guilt of the accused with such legal certainty as to exclude every reasonable hypothesis of his innocence; that material facts essential to constitute the crime charged must be proven beyond a reasonable doubt; and that the burden to prove the guilt of the defendant in criminal cases remains with the State throughout the trial. Yates et al. v. RL, Supreme Court Opinion, October Term, 2015; Massaquoi v. Republic, Supreme Court Opinion, October Term A.D 2013; Davies v. Republic, 40 LLR, 659, 676 (2001).
The appellants were indicted and subsequently tried and convicted for the commission of the crimes of Criminal Conveyance of Land and Criminal Conspiracy. The Penal Law defines the afore-stated crimes as follows, to wit:
“Offense:
- A person is guilty of criminal conveyance of land, a felony of the second degree, if he/she conveys to another through sale, gift or mortgage or lease, a parcel of land that he/she has no title to by purchase, gift or inheritance evidenced by a deed traceable to the Republic of Liberia, from the lawful owner or by any other lawful means.
- A person is guilty of third degree felony if he knowingly purchases a parcel of land which he knows or has reason to know does not belong to the seller or is being criminally conveyed.
- A surveyor who encourages, persuades, surveys, uses his influence or in any other way participates or conspires with anyone in the sale or purchase of a parcel of land, knowing or being in the position to know that the seller of such land has no lawful title is guilty of a first degree felony punishable by both a fine to be determined by a court of competent jurisdiction, and a prison term of not less than ten years…” Criminal Conveyance of Land, Penal Law, Section AB, subsection 15.23.
“Criminal Conspiracy
A person is guilty of conspiracy to commit a crime if, with the purpose of promoting or facilitating its commission, he agrees with one or more persons to engage in or cause the performance of conduct which constitutes the crime, and any one or more of such persons does an act to effect the object of the conspiracy…” Penal Law, Rev. Code 26:10.4(1)
The key elements to establish the crime of Criminal Conveyance of Land are a). in the case of a seller: the seller lack title to the real property at the time of conveying title to a third party buyer or beneficiary; b). in the case of a buyer: the buyer knew or had reason to know the seller is not the lawful owner of the property at the time of purchase; c). in the case of a surveyor, although the surveyor knows or has reason to know the seller is not the legitimate owner of the real property, still proceeds to encourage the sale or participates in the sale of the real property.
In the instant case, the records show that co-appellant Morris Kiazolu, alias Augustine Boimah Kiazolu, who the indictment and the appellee’s witnesses identified as the seller of the subject property, testified that the subject property was a portion of 176 acres of land owned by the Intestate Estate of Moleba Zina, Siafa Bonky, and Mariama Gboya; that the said acres of land was acquired from the Republic of Liberia that he, co-appellant Kiazolu is one of the administrators of the said Intestate Estate; and that he and his coadministrators were authorized by the Probate Court for Montserrado County to sell a portion of the estate’s property. As proof of these assertions, co-appellant Kiazolu presented into evidence the following instruments viz.: a certified public land sale deed from the Republic of Liberia to Moleba Zina, Siafa Bonky, and Mariama Gboya; letters of administration and extended letters of administration issued by the Probate Court for Montserrado County to Augustine B. Kiazolu,II., Morris A. Kiazolu, Akin Paasewe, William Mator, and Mohammed M. Kiawii; real estate tax payment receipts for the said Intestate Estate; and court’s decree of sale for one (1) acre of land.
By virtue of the Public Land Sale Deed, the letters of administration, and the court’s decree of sale presented into evidence by the co-appellant Kiazolu, which tended to substantiate his authority to sell the subject property to the other co-appellants, this Court says that while same does not ipso facto prove that the Intestate Estate of Moleba Zina et al. is the legitimate owner of the subject property, thus granting the administrators of said estate, to include co-appellant Kiazolu, authority to sell portion of the estate’s property by permission of court, it however negates the plausibility of criminal conveyance until the superiority of title to the subject property is determined against the said estate. However, the authentication of said information to determine its veracity is squarely within the nature of an action of ejectment.
The records clearly show that the subject property is in dispute as to who the true and legitimate owner is because both the private prosecutrix and co-appellant Kiazolu presented their respective title instruments which they relied upon to claim ownership of the property. Howbeit, it is the law that mere possession of a deed does not automatically vest title. Sloan v. Administrators of the Intestate Estate of Parbai, March Term of Court, A. D. (2007). This Court says that where there is a dispute regarding ownership of the same real property, where the plaintiff claims right to a real property and the defendant also asserts ownership to the very same property, ejectment is the proper action. Ducan et al. v Cornomia, 42 LLR 309, (2004). The Supreme Court has further opined that the primary objective in suits of ejectment is to test the strength of the titles of the parties, and to award possession of the property in dispute to that party whose chain of title is so strong as to effectively negate his adversary’s right of recovery. Teahjay v. Dweh et al., Supreme Court Opinion, October Term, 2013.
In the absence of evidence to prove the superiority of the private prosecutrix deed over that of co-appellant Kiazolu’s and the other co-appellants who are his grantees, and which superiority can only be determined by an action of ejectment, we are yet to determine how the trial court found that the crime of Criminal Conveyance of Land was sufficiently proved by the appellee. More interestingly, we take judicial cognizance that the most essential element of the crime of Criminal Conveyance of Land is that the Seller lacks title to a subject property at the time he/she conveys same.
As the records show and as we have emphasized, the seller of the subject property, co-appellant Kiazolu, presented evidence to show that he had legal interest in the subject property, and was authorized by law to sell a portion thereof.
In the case of co-appellants Ahaikam Halle, A. S. Kadara Golefale, and Prince Oramadike, assuming arguendo that co-appellant Kiazolu’s title was subordinate to that of the private prosecutrix, they would still have an affirmative defense because the records show that the co-appellants who bought portion of the subject property relied on the Public Land Deed, the letters of administration, and the court’s decree of sale which was in the possession of their grantor, co-appellant Kiazolu; that by virtue of these instruments, the said co-appellants could only be classified as good faith purchasers except where proven otherwise. We therefore hold that the trial judge erred when he failed to give due consideration to the title instrument proffered by co-appellant Kiazolu indicating that he had legal authority to sell the subject property to the other co-appellants, because given the facts and circumstances, Criminal Conveyance of Land could not lie. Furthermore, we deem it expedient to opine herein that it is without the juridical purview of the crime of Criminal Conveyance of Land to determine the superiority of one title instrument over another with respect to a subject property, and this we so hold.
Notwithstanding, as we stated earlier, this holding by no means infer that the co-appellant is the legitimate owner of the subject property, as such determination can only be made in an action of ejectment.
Similarly, the records having established the appellee’s failure to prove the commission of the crime of Criminal Conveyance for the reasons opined supra, the crime of Criminal Conspiracy, which finds its basis in the latter crime, can also not lie because in the absence of proof authenticating the commission of a crime, as we have opined in the instant case, there can be no conspiracy to commit thereof, and this we also hold.
Before concluding, and as we stated supra in this Opinion, the trial court failed to sentence the appellants. In fact, prior to the appellants noting exceptions to the court’s final ruling, the trial judge who had found the appellants guilty of the crimes charged against them and ordered them to restitute the subject property, predetermined that the appellants would appeal. In the closing section of his final ruling the trial judge states thus: “…Sentencing to abide final determination of the case…” (emphasis ours)
The records show no order for a pre-sentence investigation to be conducted on the appellants; nowhere in the records are the appellants sentenced in accordance with law. According to the trial court’s final ruling, after the Supreme Court determines whether or not to grant the appeal, thereafter sentences will be imposed on the appellants by the trial court. Not only is this practice a grave departure from the laws and practice extant in our jurisdiction, same finds no basis in law. However, as we having determined that the crimes of Criminal Conveyance of Land and Criminal Conspiracy will not lie for reasons stated herein, the need for a pre-sentence investigation is moot, and we so hold.
WHEREFORE AND IN VIEW OF THE FOREGOING, the final ruling of the First
Judicial Circuit, Criminal Assizes “C”, holding the appellants guilty of the crimes of Criminal Conveyance of Land and Criminal Conspiracy is hereby reversed. The Clerk of this Court is ordered to send a Mandate to the court below, commanding the judge presiding therein to resume jurisdiction over this case and give effect to this Judgment. Costs are disallowed. IT IS HEREBY SO ORDERED.
Appeal granted
When this case was called for hearing, Counsellor Eugene L. Massaquoi appeared for the appellant. Counsellors Bobby L. W. Livingstone and Jerry D. W. Garlawolo of the Ministry of Justice appeared for the appellee.