MADAM LORPU SIBLEY, Appellant, v. MUSA BILITY, Appellee.

APPEAL FROM THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT, GRAND BASSA COUNTY.

Heard December 9, 1985. Decided: December 18, 1985.

1. In an action involving a dispute for real property, the oldest deed is determined from the date of probation and registration.
2. Where a person who fails to have an instrument affecting or relating to real property probated and registered within four months after its execution, his title to such real property shall be void as against any party holding a subsequent instrument affecting or relating to such property which is duly probated and registered. 1956 Code 29:1014 (6).
3. A court to which an appeal is taken may reverse, affirm, modify, in whole or in part, any judgment before it, as to any party.
4. An appellate court has the power to examine upon its merits, both as to law and facts, every proceeding or decision of an inferior tribunal.
5. The appellate court or the Supreme Court is authorized, under the law and upon examination of the records, to render what-ever judgment as the court below should have rendered, and which in its opinion will best conduce to the ends of law, justice and equity.

Plaintiff/appellant instituted an action of ejectment against the defendant/appellee, claiming that the defendant had constructed his kitchen upon land owned by the plaintiff. After two trials in which a verdict was returned for plaintiff but which the trial judge had set aside, the case was transferred to a new venue where, after the trial, a verdict was returned in favor of the defendant. From a judgment rendered confirming the said ver-dict, plaintiff appealed to the Supreme Court for a final determi-nation.

The Supreme Court reversed, holding that not only had the plaintiff established title to the land in question, but also that her deed carried an older probation and registration date than that of the defendant, and that as such, the plaintiff’s deed had pre-ference over that of the defendant. The Court opined that the jury’s verdict being contrary to the evidence, the trial court should have set the verdict aside and award a new trial.
The Court observed, however, that as the law vested it with the authority to reversed, affirm or modify any judgment of the lower court, and to render such judgment as the lower court should have rendered, if upon examination of the records it felt justified in doing so, in the best interest of law, justice, and equity. Acting upon this authority, the Court, convinced that the evidence favored the plaintiff, reversed the judgment of the trial court, declared the same to be null and void to all intents and purposes, entered judgment in favor of the plaintiff, and ordered that she be placed in possession of the disputed property.

Francis Garlawulo and Richard Flomo appeared for the appellant. Francis Torpor appeared for the appellee.

MR. JUSTICE MORRIS delivered the opinion of the Court.

The history of this case reveals that the plaintiff and the defendant are contesting ownership to a piece of land situated and lying in Gbarnga City, Bong County. The plaintiff has alleged that she bought one quarter of a lot upon which the defendant commenced building a kitchen and that although she had called defendant’s attention to this fact, he had paid her no heed. We shall quote the testimonies of the plaintiff, the defendant, and some of the witnesses who testified at the trial. It was argued before us that this case was tried twice in Gbarnga at the Ninth Judicial Circuit Court, and that in each case a verdict was brought in favor of plaintiff. However, after each verdict, a new trial was awarded. The defendant then moved the court for a change of venue and the case was sent to the Second Judicial Circuit Court, Grand Bassa County, where, after a trial, final judgment was entered in favor of the defendant.
This is the testimony of the plaintiff, as per record:

“In 1976, I got a quarter lot from one Mr. T. T. Harris which was surveyed for me. At the time of the survey, the surveyor informed the defendant that his kitchen was on my piece of land and he should remove it. The defendant refused to remove his kitchen. I said to him ‘you have two lots here, why must you not remove your kitchen from my quarter lot?’ He told me that if he removed his kitchen, then I have seen Kpelle people occupying frontage in all Gbarnga City. I asked him to show me what he was depending on for saying that and he told me that if he got off that place then he is not a Mandingo man. So I said, I will carry the matter to court. The defendant then gave his counsel four hundred dollars to give me in order to give him the place, but I told the lawyer that I will not give up the place even if they give me one thousand dollars. The lawyer then told me that if I fail to accept the money, he will make a run after my case until I die. So every time the case comes up for trial, verdict is brought in for me but the case is always redocketed. The defendant is not evicted from my land while he collects money from the tenants who live in the house he built on my land, which money he uses to fight me. This case is therefore brought to you people to hear and determine it for me, I rest. As I tried to state and which statement was not recorded, when this case was assigned for trial, I received message that my daughter had an operation at JFK Medical Center and on my way to visit her I was involved in a motor vehicle accident, for which I spent two months in the hospital. Since the accident, I have not recovered my valise in which I had my deed for this piece of land. I am however glad that my counsel have a photo copy of said deed.”
These are few of the questions put to the plaintiff by the defendant and the court:

“Q. Madam witness, according to your testimony in chief, you got a quarter lot in 1976 from T. T. Harris. Please state the reason why the name of Josiah Page is written on the photo copy of the deed presented to court?

1. A. The deed carries Josiah Page’s name because he was land commissioner. When the defendant continued troubling me for the same plot of land, I saw the Land commissioner, Mr. Page, and he sent a surveyor to resurvey the place, at which time the defendant was told that he was on my land.
17. Q. Madam witness, can you tell the court and jury, if you can, when the defendant built the house which is on your land?
1. A. In 1976, I got this track of land and the defendant immediately started fighting me for it. He built up a kitchen on the premises and even though he was told to remove the kitchen, he did not. Every time we put our corners, he will move them because he said I was in front of him.
17. Q. Do you have any house on your own land now in dispute?
1. A. No because the defendant has nearly occupied all the land.”

This is the testimony of witness Isaac Gbarbea with questions and answers put to him:

“Q. Madam Sibley is complainant before this court in an ejectment suit against the defendant for a track of land situated in Gbarnga, Bong County allegedly trespassed upon by the defendant. In support to her allegation, she has cited you as one of her witnesses to tell this court and jury what facts you know touch-ing the cause upon your oath?

1. A. It was sometime in 1976 when I was employed with the Ministry of Lands and Mines, Bureau of Lands and Survey, Gbarnga. At this time, I saw an order from the land commissioner of Bong County, the then Honourable Josiah K. Page, to my chief, the resident surveyor, James B. Flomo, ordering him to go and resurvey one-half lot in favor of Madam Lorpu Sibley according to the metes and bound of her deed and the laid out map of the area. Mr. Flomo then asked me to go and associate with him. Notices were served to the adjacent parties, including Mr. Bility, for the survey. At the date and time of the survey, the parties concerned were all present and we conducted the survey. In the surveying we found out that Mr. Bility had erected a newly stick building house which he had just started. My chief, then the resident surveyor, made his report to the land commissioner of all that were seen on the land. It was at this time that the land commissioner ordered Mr. Bility in writing to desist all improvements on the land at that time. This is all I know.
17. Q. Mr. witness, refresh your memory and say if you remember seeing plaintiff deed prior to the resurvey?
1. A. Yes, I saw the deed and it was the deed that we went by.
17. Q. Were you to see a photo copy of the said deed would you recognize it?
1. A. Yes. I will.
17. Q. Mr. witness, I hand you instrument identified, confirmed and marked by this court LS/MB-1, take it and tell this court what you recognize it to be?
1. A. Yes, this is the deed.
17. Q. Mr witness, I hand you instrument marks by court LS/MB-1 which you have identified, take it and tell this court and jury if you know in whose favor it was executed?
1. A. It was executed in favor of Madam Lorpu Sibley.”

Having taken the stand, the defendant deposed as follows:

“At one time, I approached Mr. T. T. Harris to give me a place on the road to build my tailor shop and he carried me to a place and showed me an area which he told me was a public land. I told him that I wanted the place but he told me that the area contained only half lot. I accepted it and paid him the $75.00 he asked me to pay. He surveyed the place and put my corners up. Six months thereafter, Mr. Joseph Wennah came to me to say that he was the owner of the area and he rooted up my blocks. I carried the matter before Mr. T. T. Harris, who sent me to call Mr. Wennah and when we appeared before Mr. T. T. Harris, Mr. Wennah said the area was for him, but he was not able to show any paper title to Mr. Harris. He said the place was for him because they are the people of Gbarnga and the land is their own. Because I did not want any further trouble, I asked Mr. Wennah to tell me how much money he will take for the place and he charged me $200.00. I paid him the $200.00 in the presence of Mr. T. T. Harris. From that day Mr. Wennah had never disturbed me again for that spot of land. Then Mr. Harris surveyed a public land sale Deed and gave it to me for the land. The deed was sent for the signature of the President of Liberia. This was in President Tubman’s time. He did not sign it until he took sick and died. Mr. Harris told me that another deed had to be prepared which he did and I sent it to President Tolbert who signed it. While my deed was at the Mansion awaiting the signature of the President, I built one house on the spot but before I finished it, the President signed my deed. I therefore decided to complete the building I had started and said to myself that I will build a small concrete house on the remaining land in front of the first house.

Since I procured my deed, I have been living on the premises and I have been paying taxes for the property for which I got receipts. The deed and receipts I referred to are all here to prove to the court that the spot belongs to me. Long after that, Mr. Josiah Page who was land commission-er came to me and asked that I give him the frontage of my house on which I have planned to put my concrete building, for him to build a booth for his sister who is plaintiff in this case, but I refused. Mr. Josiah Page was land commissioner and James Flomo was the surveyor and plaintiff in this case is his sister. I took all my deeds and gave them to my old father to keep. While I was away, Mr. Josiah Page went to my father as land commissioner and demanded the deed from him. My father gave him the deed and he took the number of my deed. When I returned my father told me what had happened and I said to him that Mr. Josiah Page had taken the particulars on my deed to prepare another deed in favor of his sister. Since that time, plaintiff and her people have carried me to the circuit court for my own track of land. The two lawyers in the case are Kpelle people, the plaintiff is a Kpelle, and the people in Gbarnga are Kpelle, so I have not been able to get my right for my track of land. This is why I said the case should come to different area where the people before whom we will appear will not know any of us and we are before you now. Every time the case comes for trial, plaintiff will bring different witnesses. Mr. Wennah who has received $200.00 from me for the same place has now appeared as witness for the plaintiff, and the other man who has been in Monrovia all the time has also appeared to be witness for the plaintiff. I am now swimming on the ocean and nobody but God can save me for my truth. All what I have said, if I lie, motor car should kill me before I get back home. I rest.”
This is what the one and only witness for the defendant said:

“Q. As stated on the record earlier that you are cited to explain to the court and jury the acquisition by the defendant of the land in question and the delay in the signing of the public land deed. You may explain for the benefit of the court and jury?

1. A. As to the acquisition of the land and the prolonging, of the signing of the deed, I cannot say that I knew of such transaction. If at all there is a deed and other relevant documents touching said land, they will speak for themselves. And this is all I know.”

Counsel for defendant gives notice that they rest with the witness with usual reservation.
Having quoted the pertinent testimonies of the witnesses as well as the testimonies of the plaintiff and the defendant, we shall now look at the two deeds. Plaintiff’s deed was signed by the late President William R. Tolbert on the 23rd day of September 1975 for ¼ of a lot and was duly probated and registered on the 8th day of April, 1976. The defendant’s deed was signed by the late President William R. Tolbert on the 15th day of September 1975 for ½ lot, probated and registered on the 10th day of December 1976. According to our statute the oldest deed is determined from the date of probation and registration. This is the relevant statute on the issue:

“Failure to probate and register. If any person shall fail to have any instrument affecting or relating to real property probated and registered as provided in this chapter within four months after its execution, his title to such real proper-ty shall be void as against any party holding a subsequent instrument affecting or relating to such property, which is duly probated and registered.” 1956 Code 29:6.
According to the testimonies of the parties and their witnesses (plaintiff and defendant with their witnesses), plaintiff did establish title to the land in question. In addition, the plaintiff has the oldest deed, according to the statute as provided in title 1956 Code, 29:1014, supra. We are therefore amazed at the conclusion reached by the jury’s verdict and affirmed by the court. The court should have awarded a new trial and should not have affirmed such a verdict which was against the weight of the evidence. Our statute provides that, “a court to which an appeal is taken may reverse, affirm or modify wholly or in part, any judgment before it as to any party. The court shall render a final determination or where necessary or proper remand to the lower court for further proceedings.” Civil Procedure Law, Rev. Code 1:51.17, Disposition of appeal.
In White v. Russell and Ware, this Court held that “an appeals court has power to examine upon its merits, both as to law and facts, every proceeding or decision of an inferior tribunal.” White v. Russell and Ware, [1930] LRSC 9; 3 LLR 198, (1930). This Court has since thereafter consistently held that in keeping with law, an appellate court or the Supreme Court is authorized to render whatever judgment the court below should have rendered. Townsend v. Cooper, [1951] LRSC 16; 11 LLR 52, 61-62 (1951), John v. Republic, 13 LLR 143, Syl 3 (1958); and Williams and Williams v. Tubman, [1960] LRSC 47; 14 LLR 109, (1960), 114 – 115.

During the arguments, the appellant’s counsel vehemently contended that the jury’s verdict, which the trial judge affirmed, was against the weight of the evidence, and that since this case has been pending too long, this Court should reverse the judg-ment of the lower court and render such judgment as the lower court should have rendered. Applying the request of appellant to the facts of the case, we are of the opinion that it warrants our favorable consideration, especially since the law confers on this Court the right, upon the examination of the records in any given case, to render such other judgment as in its opinion will best conduce the ends of law, justice and equity.
It is therefore our candid opinion, and we so hold, that the judgment of the court below be and the same is hereby reversed, set aside and made null and void to all intent and purpose. It is also our further judgment that considering the facts of the case, as well as the evidence, both oral and documentary, the plaintiff in the court below, appellant in this Court, is entitled to the land, subject of this appeal case. Costs are ruled against the appellee. The judge of the trial court is instructed to resume jurisdiction over said case and execute this judgment by placing plaintiff Lorpu Sibley in possession of the said property in dispute. And it is hereby so ordered.

Judgment reversed.