KPAFOR REAWHE, Appellant, v. MARTHA JOHNSON, Appellee.

APPEAL FROM THE MONTHLY AND PROBATE COURT OF MONTSERRADO COUNTY. Argued March 16, 1966. Decided June 30, 1966. 1. 2. A person may be disqualified from testifying as a witness by proof of conviction of the crime of petit larceny. 1956 Code 6:753. Under customary law, a child whose mother was a duly dowried wife is considered the legitimate child of the mother’s husband notwithstanding the mother’s acknowledgment that the husband was not the child’s natural father and notwithstanding proof that the child’s natural father redeemed the mother by ceremony of redemption and payment of the required sum of money to the husband. The probate court’s ruling denying the appellant’s petition for letters of administration of the intestate estate of the appellant’s nephew and granting letters of administration to the appellee was reversed. J. Everett Bull for appellant. Richard A. Diggs for appellee. Momolu S. Cooper and MR. CHIEF the Court. JUSTICE WILSON delivered the opinion of This case takes its origin from a petition filed by the present appellee in the Monthly and Probate Court of Montserrado County praying for letters of administration with respect to the intestate estate of one Lawrence Johnson. The petition alleged that the said Lawrence Johnson was the legitimate son and the appellee the legitimate daughter of one William T. Johnson, deceased, who whilst serving as tax collector in the Sanniquelli District of the Liberian Hinterland, had born unto him two children–a male child who was named Lawrence Johnson and a female child who was named Martha Johnson. 361 362 LIBERIAN LAW REPORTS It was established at the trial that the mother of Martha Johnson was the lawful dowried wife of one Farngalo, a resident of Sanniquelli District. Although under tribal law Martha Johnson was the daughter of her mother’s lawful husband, the mother allegedly made a confession of her infidelity to her husband and disclosed to him that William T. Johnson was the natural or putative father. Johnson was sent for by the husband, whom he referred to as his dear friend, and was told of the wife’s confession, whereupon Johnson admitted the relationship with his friend’s wife. The ceremony of redemption was performed as is the custom of the Gio tribe, and the child Martha was turned over to her putative father who maintained custody of her until the time of his death. At that time his brother J. B. Johnson went to Sanniquelli and brought down to Monrovia the girl Martha Johnson and her alleged brother Lawrence Johnson together with the personal effects of W. T. Johnson. W. T. Johnson having died intestate, his estate came under the administration of the Monthly and Probate Court of Montserrado County. By decree of then probate commissioner, Nugent H. Gibson, the guardianship and custody of the two minor children was awarded to J. B. Johnson, which guardianship continued to September 1961 when upon reaching their majority, Martha and Lawrence applied to the court for proper accounting by their appointed guardian. Their application was granted and the property of W. T. Johnson was turned over to them. In February 1964 Lawrence died leaving no heirs. On March 9, 1964, Counsellor J. Everett Bull applied to the probate court as attorney for the present appellant, praying for her appointment as administratrix of the intestate estate of Lawrence Johnson on the ground that she was his next of kin, being his only maternal aunt. Objections to this petition were filed by Martha Johnson who alleged that she was the surviving sister of Lawrence Johnson and hence was the next of kin and entitled to ad- LIBERIAN LAW REPORTS 363 minister the intestate estate. This claim was contested by the appellant on the ground that Martha was not a legal heir of W. T. Johnson. Pleadings in the case progressed up to and including the surrejoinder. Issue having thus been joined, the case came for trial before His Honor J. Gbaflen Davies, the probate commissioner for Montserrado County. Count 7 of the bill of exceptions charges the judge with having failed to establish by record that one Kpaque Gbae, a proposed witness, had been convicted of the infamous crime of petty larceny. The record shows that a justice of the peace, T. V. Bracewell, testified that he had tried, convicted, and sentenced the said proposed witness for the crime of larceny and that the proposed witness had been given 25 lashes on his bare back for the commission of the crime. The private prosecutor in the larceny case, one Newport Stephnye, testified that he had made the complaint to the justice of the peace and that he was the owner of the stolen property; he also testified that the proposed witness was tried, convicted, sentenced, and given 25 lashes. Notwithstanding these recorded statements, unimpeached on the record, appellant insisted on asserting the “record of conviction” theory without producing any substantial proof in refutation of the facts testified to by these two witnesses. The disqualification of the proposed witness by the trial court was therefore legally justified under Section 753 of the Civil Procedure Law (1956 CODE 6 :753) , hence the ruling of the trial court on this point is hereby sustained. The other issues raised in the bill of exceptions relate almost exclusively to questions propounded by appellant to witnesses. The court sustained objection to these questions on the ground that they were irrelevant. We fully agree with the position of the trial court since the answers of these witnesses could neither substantiate nor disprove the claim of right to inherit the estate of the late W. T. Johnson. 364 LIBERIAN LAW REPORTS We come now to the question of whether Martha Johnson is a legitimate child of the late W. T. Johnson. Under customary law recognized by our courts, proof of a wife’s adulterous intercourse entitles the husband to damages in the sum of $100 if it be his head or principal wife and $io if she be a secondary wife. The husband’s waiver of damages does not entitle the paramour to ownership of the wife except upon refund to the husband of the customary dowry by the wife’s parents and subsequent payment of the dowry by the paramour to the parents. And even if a child born to a wife during her coverture or marriage is rejected by the husband, it is not regarded as the legal child of the putative father until after the severance of the marital relationship between the husband and the wife and the legitimation of the child either by regular process in the probate court or by approved custom under the regulations of the Department of the Interior. In the present case, the only evidentary basis for the probate commissioner’s judgment that Martha was the legitimate daughter of W. T. Johnson was testimony that he had gone through the customary process of redeeming her by paying to her mother’s husband a redemption fee of three pounds sterling after the husband had exacted a confession of infidelity from his wife; and testimony to the effect that Martha did not physically resemble the husband’s other children by the same wife. Such evidence is insufficient as proof of legitimization either under the customary law of the tribes of Liberia as recognized by our courts or under our statutory or common-law governing the legitimation of children. Nor is there anything of record to show that the ruling of probate commissioner Nugent H. Gibson rendered on January To, 1946, was based on any inquiry into the circumstances leading to the birth of Martha Johnson ; nor could petitioner have objected to the brother of W. T. Johnson being appointed guardian of the two children, LIBERIAN LAW REPORTS 365 which did not make Martha a legitimate child of W. T. Johnson. This Court has held that: “When the question of dowry is involved, no man shall be permitted under Interior Regulation of 1931 to refund to the husband the dowry paid by such a husband for his wife. All dowry shall be paid only to the parents of the woman or the person standing in loco parentis.” Teah v. Teetee, [1933] LRSC 9; 3 L.L.R. 407 (1933) Syllabus 1. It follows that if the mother of a child has not been separated from her husband by regular tribal divorce, a child born in this union could not be made the legal child of another man merely by the giving of a token called redemption money as a peacemaking ceremony between the legally recognized father and the putative father growing out of an exacted confession by husband from the wife. Section 65 of the Domestic Relations Law (1956 CODE io :65) , cited by appellee, is not applicable to the case under review, this being one affecting the status of a child born in wedlock and not the legitimation of a child born out of wedlock through marriage of the natural parents or legal proceedings. The ruling of President William V. S. Tubman which appellee cited was evidently not produced since it is not contained in the record before us. Moreover, appellee admitted that this ruling was made in 1945 after the redemption ceremony took place; hence it must be regarded as ex post facto in relation to the present case, if truly it bears out the contention of appellee. For the benefit of this opinion and to reflect a clearer light on the customary law relied on by appellee, we quote the following from the cross-examination of Martha Johnson. “Q. Oh then, Miss Witness, so it is the custom of the Gio tribe that when a woman is not a dowry wife of a man and happens to have a child for him, 366 LIBERIAN LAW REPORTS that child must be redeemed with an amount of three pounds to make that child a legal child of the man, no so? “A. Yes. This does not apply to the Gio tribe alone, but to all tribes as well. “Q. You have placed on record that it is the custom of some tribes to perform such an act, would you please say what tribe you referred to and how you come by such knowledge? “A. My mother gave me this information and made me to understand that where no dowry is paid for a woman and a child is had by her by another man, then you got to redeem that child. My mother is Gio tribe and my father was of the Dey tribe.” The custom referred to is irrelevant in the present case since the mother of Martha Johnson was concededly the dowried wife of Farngalo at the time when Martha was born. In the present case the controlling rule of customary law is that a child born by a woman on whom dowry has been paid is regarded as the legitimate child of the mother’s husband. We must therefore reverse the ruling of the probate commissioner denying the petition of appellant, who was the only surviving heir and next of kin to William T. Johnson. And it is hereby so ordered. Ruling reversed.