St. Stephen v Gbedze [2013] LRSC 52 (2 August 2013)
St. Stephen v Gbeze [2013] LRSC 52 (2 August 2013)
St. Stephen Episcopal Church, by and thru Rev. Fr. A. Too Williams, of the City of Monrovia, Republic of Liberia Appellant Versus John Gbedze, by and thru his Attorney-In-fact, Clarence Tay, also of the City of Monrovia, Liberia AppeIIee
APPEAL
Heard: April 15, 2013 Decided: August 2, 2013
MR. JUSTICE BANKS delivered the Opinion of the Court.
The precipitating events of this case originated with the death of the late John Francis Marshall, whose Intestate Estate forms the focal of the instant dispute. The facts in the case reveal that following the demise of John Francis Marshall, one Edmund D. Coleman, claiming to have acquired power from the Monthly and Probate Court of Montserrado County to administer the Intestate Estate of the decedent, conveyed two lots of the Estate’s land, located in Sinkor, to the appellant, St. Stephen Episcopal Church. The administrator’s deed evincing the transaction was duly probated on January 25, 1988 and subsequently recorded and registered in the Records for Montserrado County.
Six years thereafter, in 1994, Robert S. Marshall, Godwin Marshall and the aforementioned Edmund D. Coleman, were granted letters of administration by the Probate Court of Montserrado County to jointly co-administer the Intestate Estates of Mary S. H. Marshall, Francis Marshall, Willette Marshall, Sarah A. C. Marshall and John F. W. Marshall. In the same year, the co-administrators petitioned the Monthly and Probate Court of Montserrado County for an order granting permission to them to sell of 2.5 acres of the Intestate Estates land. The petition having been granted by the Court, the land, whose sale was authorized by the court, was sold to the plaintiff/appellee, John Gbedze.
However, it turned out that the land sold to the appellee encompassed the two lots earlier sold to the appellant by Edmund D. Coleman. The appellant, insisting that it held bonafide ownership to the land, refused to relinquish the property and in fact commenced construction of a fence to enclose the two lots. Since the Civil Procedure law of Liberia, at Section 62.1, grants to any person who feels rightfully entitled to the possession of real property the right to bring an action against any other person deemed to be in wrongful possession of the claimed property, the appellee, acting under the right granted by the said law instituted an action of ejectment against the appellant for the recovery of the two lots to which he claimed title. The complaint reads as follows:
1. That plaintiff is the owner of a parcel of land situated and located on Ninth Street, Sinkor, by virtue of a title deed issued in his favor by administrators of the Intestate Estate of the late John Francis Marshall and that plaintiff will make available his mother deed during trial. Hereto attached is a copy of plaintiff’s title deed issued in his favor by the administrator of the Intestate Estate of the late John Francis Marshall, marked exhibit P/1.
2. That without any color of right, defendant herein has encroached on said property by constructing a fence on plaintiffs’ property in defiance of repeated demands to desist from his illegal act.
3. That as to count two above, defendant is illegally withholding plaintiff parcel of land which is preventing plaintiff from carrying out any development on his property.
Wherefore and in view of the foregoing, plaintiff most respectfully prays court to grant general damages of USD50,000.00 (Fifty Thousand United States Dollars) for defendant’s illegal withholding of plaintiffs property and grant unto plaintiff all that is deemed just and equitable in the premises.
In response to the complaint, the appellant filed a five-count answer wherein it rejected the plaintiffs claim of title to the two lots and set forth a number of defenses in support of its claim of title to the subject property. We quote herewith the appellant’s/defendant’s answer, as follows:
1. That as to counts one (1), two (2) and three (3) of the complaint, defendant says that it acquired, through purchase from the Intestate Estate of John Francis Marshall, Sr., through its administrator, Edmund D. Coleman, two lots of land lying and situated in Sinkor, Monrovia, Liberia, with the following meets and bounds:
Commencing at the Northeastern corner of the adjoining lot No.4 in block C-8 owned by Wesley Toe Socio, 54 degrees East, 165 feet parallel with Payne Avenue to a point, thence running South 36 degrees West, 132 feet parallel with 9th Street to a point, thence running North 54 degrees West, 165 feet parallel with a 16-foot alley to a point, thence running North 36 degrees East, 132 feet to the place of commencement and containing (2) two lots or (1/2) half acre of land and no more.
The deed covering the property described herein above was probated January 25, 1988 and registered according to law in volume 28-88, pages 39-54-1 of the records of Montserrado County. Attached hereto and marked as defendant’s Exhibit D/1 is a copy of defendant’s title deed, to form a cogent and integral part of defendant’s answer.
2. That also as to count one (1) above, defendant says that the Intestate Estate of John Francis Marshall having sold and parted with title over the land, subject of this action of ejectment, in 1988, [it] could not have sold same or any portion thereof to the plaintiff. Accordingly, the deed issued by the Intestate Estate of John Francis Marshall to the plaintiff in 1995, is void and of no legal effect.
3. Further, as to counts one (1) and two (2) above, defendant says that where two parties are claiming title from the same grantor, as in the instant case, the party having the oldest deed duly probated and registered according to law will prevail. Defendant submits that consistent with the law controlling defendant is entitled to judgment as a matter of law.
4. That based upon the averments contained in counts one (1) through three (3) above, defendant denies the averments contained in counts two (2) and three (3) of the complaint and prays Your Honour to deny said counts and along with them the entire complaint.
5. Defendant denies all and singular the allegations of both facts and law as are contain in the complaint that were not specifically traversed in the answer.
The appellee/plaintiff, upon being served the appellant/defendant’s answer, filed the following reply:
1. That plaintiff confirms and affirmed counts one (1), two (2) and three (3) of his complaint.
2. That as to counts one (1), two (2) and three (3) of defendant’s answer, plaintiff says the Intestate Estate of the late John Francis Marshall was issued letters of administration by the Monthly and Probate Court of Montserrado County to three (3) petitioners as administrators; therefore, the defendant’s deed having been issued by only one of the administrators of said Estate is a fit subject for dismissal. Hereto attached is a copy of the letters of administration, decree of sale, and a survey notice, marked Exhibit R/1in bulk.
3. Plaintiff denies all and singular all issues of law and fact raised in the defendant’s answer not specifically traversed herein.
Pleadings having rested, the court, sitting in its December Term, A. D. 2009, assigned the case for disposition of the law issues, scheduled for January 8, 2010. Hearing was held on that day but no ruling was made by the Court. Hence, the court, sitting in its March Term, A. D. 2010, assigned the case, again for the disposition of the law issues, scheduled to be held on June 23, 2010, at the June Term of the court. The matter was heard, and counsel for the parties referenced and reiterated the arguments advanced by them at the January 8, 2010 hearing on the law issues. But again no ruling was made on the law issues.
Instead, the court, on September 15, 2010, assigned the matter for ruling on the law issues, scheduled for September 22, 2010. When no ruling was given, the court, on September 24, 2010 re-assigned the case for September 27, 2010. This new assignment, however, was not for ruling on the law issues but for a new hearing of arguments on the law issues. Apparently, no hearing was held on September 27, 2010. This seemed to have prompted the court, on September 28, 2010, to again reassign the case for hearing on October 1, 2010. At this new hearing on the law issues, the court, presided over by Judge Yussif Kaba, Resident Circuit Judge for the Sixth Judicial Circuit Court, Montserrado County, gave counsel for the parties less than three minutes each to make their argument, which, according to the judge was being done only to fulfill the requirement of our rules and procedure since argument in the case had already been had in the previous terms of the court.
At this new hearing on the disposition of the law issues, counsel for appellee/plaintiff was allowed to argue and to place on the minutes of the court the following points of contention: (a) that the prior transaction between Edmund Coleman and the appellant was legally invalid because when an estate has multiple administrators, the laws of Liberia require all of the co administrators to agree and subscribe to any proposed sale or other dealings pertaining to the estate’s property, but which did not occur in the instant case; (b) that Mr. Coleman, purporting to be the administrator of the Intestate Estate, proceeded to sell the land without a decree of sale from the Monthly and Probate Court for Montserrado County permitting title to part from the estate, and that the act was in contravention of the process demanded by law; and (c) that for the reasons stated, the appellant’s transaction with Mr. Coleman was bereft of any legal consequence.
For their part, counsel for the appellant/defendant argued: (a) that the appellant/defendant had legally purchased the land from Edmund Coleman, the then administrator of the Intestate Estate, in the 1980s, which predated the appellee’s purchase, and (b) that as such, the appellant should retain title because the laws of Liberia have consistently awarded property to the grantee with the older title, as in the instant case, where two grantees of one piece of land share the same grantor.
In his ruling on the disposition of law issues, handed down on October 11, 2010, Judge Yussif Kaba declared that no factual issues were present in the case to necessitate a trial, and hence, that he deemed himself free to enter a final judgment in the case, which he then proceeded to give in favor of the appellee. In the said ruling, Judge Kaba declared that Edmund Coleman’s action, with regard to his transfer to and the appellant’s acquisition of the two lots, was void ab initio, for reason [t]here being no authority vested in the single administrator to part with title to this property and the probate court not having empowered the said single administrator to part with title of this property, his action is outside the [pale] of law.
Because we believe that the ruling of the trial judge is fraught and laden with errors, and worthy of critical analysis, we quote in its entirety the said ruling verbatim, as follows:
This is an action of ejectment that was instituted by John Gbedze, by and through his attorney in fact, Clarence Tay, of the City of Monrovia, against St. Stephen Episcopal Church, by and through Rev. Fr. A. Too Williams, on the 9th day of July, 2008. Substantially, the plaintiff herein alleged that he is the owner of a parcel of land, same being and lying on the 9th Street, in the Sinker area, City of Monrovia, County of Montserrado, which parcel of land he claims he purchased from the administrators of the Intestate Estate of the late John Francis Marshall. Attached to his complaint is a copy of the administrator’s deed issued by the administrators of the Intestate Estate, a decree of sale issued by the Monthly and Probate Court empowering the administrators to dispose of the said property, and the copy of the letters of administration which empowered the administrators to· administer the property, the subject of this dispute. The plaintiff alleged that without the color of right or law, the defendant herein, the St Stephen Episcopal Church entered upon the said parcel of land purchased by the plaintiff and thereby deprived the plaintiff of the use and enjoyment of the said property, and that every attempt to have the said defendant surrendered this property to the plaintiff has proven futile. The plaintiff therefore is urging this court to have the said defendant surrender the property to the plaintiff and that this court holds the said defendant liable in damages in the tone of 50,000 United States dollars.
The defendant appeared and filed a five count answer. The defendant also claimed this property to be its bona fide property which they acquired, again from the Intestate Estate of the late John Francis Marshall. The defendant claimed that from a perusal of the title of the parties the defendant acquired this property long before the said property was conveyed to the plaintiff. The defendant exhibited with its answer a copy of the deed issued him by the administrator of the Intestate Estate of John Marshall.
In reply, the plaintiff attacked the legality of the defendant’s title, claiming that the Intestate Estate of the late John Marshall is administered by several administrators, in persons of Edmund Coleman, Robert Marshall, and Reuben Marshall, and that the defendant’s deed was signed by only a lone administrator; and therefore, it is the position of the plaintiff that this lone administrator, without a decree of sale, lacks the legal competence to convey this property for and on behalf of the Intestate Estate of the late John Marshall. The court says that the perusal of the parties’ pleadings in this matter raises one very cardinal issue. That issue is whether or not, an estate that is being administered by several administrators may be conveyed by one of those administrators in the absence of an authority from the court. This court, in answering this question, says no. The court says that an administrator is an agent of the court, appointed to administer the estate of a deceased. The court further says that in order for the act of the administrator to be legal and binding, the administrator must act within the confines of the law. The law provides that for an administrator to convey the property of a decedent estate, the said administrator must first acquire the consent of the probate court by obtaining a decree of sale from that court.
Additionally, if several administrators are appointed to administer an intestate estate, one member of such administration cannot act in the absence of the other administrators legally. The court says that in the instant case, the lone administrator who conveyed this property to then defendant did not have the authority to act as such. More besides, the said lone administrator did not obtain a decree of sale from the monthly and probate court, authorizing and empowering him to part with this property and convey same to these defendants. It is a maxim of law in this jurisdiction that what is not done legally, certainly is considered as not having been done at all. There being no authority vested in the single administrator to part with title to this property and the probate court not having empowered the said single administrator to part with title of this property, his action in the eyes of the law is void ab initio and does not carry any weight of the law. In this regard, this court says that the act of the administrator, acting outside the pale of the law, is of no legal substance. There being no other issues of law raised in the pleadings other than this singular issue, and there being no factual issue to be ruled to trial, this court is left with no alternative but to adjudge the defendant liable. In this connection the court hereby orders the clerk to issue out a writ of possession, have the same placed in the hands of the sheriff of this court, thereby hereby empowering the said Sheriff to proceed to the property in dispute and have the defendant ousted, ejected and evicted therefrom and the plaintiff placed in complete and unrestricted possession thereof. Cost of these proceedings rule against the defendant and it is so ordered.
To the above quoted ruling, counsel appointed by the court to take the ruling for the appellant, whose counsel was absent from the court, excepted to the same and gave notice to the court that the appellant will make full application of the law provided in these proceedings. Although counsel appointed to take the ruling did not specifically announce an appeal, as mandatorily required by section 54.1 of the Civil Procedure Law, the judge interpreted the statement of the appointed counsel as an announcement of an appeal and therefore, without any exceptions being taken thereto by counsel for the appellee, recorded the following on the minutes of the court: Exception noted, appeal granted as a matter of right and law.
The foregoing forms the background for the review requested of this Court by the appellant and the prayer by the appellant that we reverse the ruling of the lower court. That request and prayer, predicated upon the errors attributed to the trial court judge, are captured in a five-count bill of exceptions filed by the appellant/defendant, which we quote herewith:
1. That under our law, where two parties are claiming title from the same grantor, the party having the oldest deed, duly probated and registered according to law, will prevail. In the instant case, defendant acquired title from the Intestate Estate of the late John Francis Marshall in 1988, probated its deed on January 25, 1988, and had the same registered according to law in Volume 2B-88, Pages 39-51-1of the records of Montserrado County, while the plaintiff acquired title to the same land in 1995. Accordingly, and consistent with the law controlling and cited herein, the defendant is entitled to said land. Notwithstanding, Your Honor adjudged defendant liable to plaintiff and ordered that defendant be ejected, ousted and evicted, and that plaintiff be placed in possession of the herein mentioned land, to which erroneous and prejudicial ruling of Your Honor defendant excepts.
2. That at the time of the sale transaction between defendant and the Intestate Estate of the late John Francis Marshall, Edmund B. Coleman was the sole administrator of said Estate, and that all the heirs of said Estate, who are also members of defendant Church, consented and agreed to the sale of the herein-mentioned property to the defendant. The law in this jurisdiction is that an administrator, based upon the consent and agreement of all the heirs, can sell property without court approval. So, assuming Edmund B. Coleman did not obtain court’s decree of sale when he sold the property to defendant, but the fact that all of the heirs of the late John Francis Marshall agreed and consented to the sale, makes said sale valid under our law. Notwithstanding, Your Honor, without taking evidence to determine who was, or were the administrators of the Intestate Estate of the late John Francis Marshall at the time of the sale of the property, subject of the action of ejectment, to the defendant, ruled that the Intestate Estate of the late John Francis Marshall had three administrators and only one administrator sold the herein-mentioned property to the defendant; for this erroneous and prejudicial conclusion of Your Honor, defendant excepts.
3. That the letters of administration issued to Edmund Coleman, Robert S. Marshall and Godwin Marshall, on the strength of which said administrators sold the land, subject of this action of ejectment, is dated 9th day of September 1994, was for a period of one year and for the Estates of Mary S. H. Marshall, Francis Marshall, Willette Marshall, John F. W. Marshall and Sarah A. C. Marshall. The deed issued by the herein mentioned administrators is dated January 31, 1996, for the conduct of a survey of land at the intersection of 9th Street and Payne Avenue in Sinkor for Wednesday, February 7, 1996, at 10:00 a. m. Notwithstanding these discrepancies in plaintiffs title document, Your Honor entered final judgment, while disposing of law issues, in favor of plaintiff, adjudging defendant liable in an action of ejectment and ordered that defendant be ousted, evicted and ejected from its premises; for which erroneous and prejudicial error of Your Honor, defendant excepts.
4. That the court’s decree of sale, on the strength of which Edmund Coleman, Robert Marshall and Godwin Marshall are said to have sold the herein-mentioned property to plaintiff, is captioned The Intestate Estate of the Mary S. H. Marshall, Francis Marshall, Willette Marshall, John F.W. Marshall and Sarah A. C. Marshall, and the decree authorizing the sale of the two and half acres of fifteen acres of land belonging to said Estate without stating the metes and bounds of the two acres of land to be sold. Accordingly, the said court’s decree of sale is vague, ambiguous and indistinct, and therefore void. Notwithstanding, Your Honor entered final judgment, while disposing of law issues, in favor of plaintiff, adjudging defendant liable in an action of ejectment and ordered that defendant be ousted, evicted and ejected from its premises; for which erroneous and prejudicial error of Your Honor, defendant excepts.
5. That based upon the averments of counts three and four above, defendant says that the letters of administration and decree of sale issued in favor of Edmund Coleman, Robert Marshall, and Godwin Marshall, were for the Intestate Estates of the late Mary S. H. Marshall, Francis Marshall, Willette Marshall, John F. W. Marshall, and Sarah A. C. Marshall, and not the Intestate Estate of the late John Francis Marshall. Defendant submits that the property constituting the corpus of the joint Estates of Mary S. H. Marshall, Francis Marshall, Willette Marshall, John F. W. Marshall, and Sarah A. C. Marshall are separate and distinct from those of the Intestate Estate of the late John Francis Marshall. Notwithstanding the averment contained herein, Your Honor adjudged defendant liable in an action of ejectment filed by plaintiff and ordered that defendant be ousted, evicted and ejected from the herein-mentioned property, and the plaintiff be placed in possession of same. This ruling of Your Honor being erroneous and prejudicial, defendant excepts.
Wherefore and in view of the foregoing, defendant submits this bill of exceptions for Your Honor’s approval, in fulfillment of the second jurisdictional step in perfecting its appeal.
Our review of the entire facts narrated above, including the averments contained in all of the pleadings, the ruling of the trial judge, and the appellant’s bill of exceptions, reveal a sole dispositive question: Did Judge Kaba commit a prejudicial error when, in disposing of the law issues, he decided that the circumstances of this ejectment action did not compel a trial, and which, as a result of his positive response to the query, proceeded to enter judgment against the defendant?
Before addressing the core of the issue presented we believe that it is important, for the edification of our trial courts and our practicing lawyers, to make a few comments on how they proceeded, both in regard to the conduct of the case and the appeal process. We note firstly our concern on how counsel deputized or appointed by the court to take the court’s ruling on behalf of the absent counsel for the appellant viewed the requirement of the appeal statute. That statute, being the Civil Procedure Law, title 1, Liberian Code of Laws, states at section 54.1, under the caption requirement for completion of an appeal that the following acts shall be necessary for the completion of an appeal: (a) Announcement of the taking of the appeal;(b) Filing of the bill of exceptions;(c) Filing of an appeal bond; and (d) Service and filing of notice of completion of the appeal.
With regard to sub-section (a) of the quoted provision, section 51.6 elaborates on what has to be done. The section states that: An appeal shall be taken at the time of rendition of the judgment by oral announcement in open court. Such announcement may be made by the party if he represents himself or by the attorney representing him, or, if such attorney is not present, by a deputy appointed by the court for this purpose. Civil Procedure Law, Rev. Code 1:51.6.
The records in the case reveal that at the time of rendition of the judgment by the court, done when the court was supposed to be disposing of the law issues, counsel for the appellant was not present in the court. The court therefore designated Counselor T. B. Jawandoh to take the ruling of the court for and on behalf of the appellant. The court then proceeded to rule against the appellant/defendant and to hold the said appellant/defendant liable to the appellee/plaintiff, and to order the former’s ejectment, eviction and ousting from the land which the appellee/plaintiff had claimed title to and regarding which the plaintiff had instituted the action of ejectment. This is how the counsel deputized by the court to take the ruling of the court responded to what was a final judgment by the court: “To which ruling of Your Honour, appointed counsel for the defendant excepts and gives notice to the effect that he will make full application of the law provided in these proceedings.
This Court says that at the very least, it is disappointed and bewildered by the callous response of counsel deputized by the court to announce an appeal from the judgment of the court. The Court does not believe that the statement made by the deputized counsel that he will make full application of the law provided in these proceedings” met the standard required by the statute; the statement was certainly not tantamount to the announcement of an appeal contemplated by the statute and demonstrated indifference for the law and the interest of the party for whom the court had him to take the ruling. The statute is very clear that one must specifically announce an appeal and not play with the kinds of words which the counsel deputized by the trial court played with in the instant case. See Liberia Petroleum Refining Company v. Natt and Conneh, [2004] LRSC 5; 42 LLR 54 {2004). And while the Supreme Court has in a number of cases loosely said that a counsel deputized by the lower court to take the judgment of the court for the absent counsel is only obligated to except to the ruling, leaving the impression that the counsel so deputized does not owe the absent counsel the obligation to announce an appeal, in other opinions the Court has said, and we believe correctly and with greater rationale, that a deputized counsel must and is required to note exceptions and announce an appeal from a final judgment for and on behalf of the party for which he is designated to take the court’s ruling. Mangos v. Massoud, [1982] LRSC 85; 30 LLR 797 (1982); The Augustus W. Coopers Heirs v. Swope and the Heirs of the late Jessie R. Cooper[1998] LRSC 34; , 39 LLR 220 (1998). In the Augustus W. Cooper Heirs case, this Court was very clear in stating what is expected of a deputized counsel, observing that the designated counsel should have excepted to the ruling and appeal therefrom since it had the effect of a final judgment as to the intervenors because the judge ordered that the case be proceeded with, without any further participation of the intervenors. Id., at 237. Indeed, on that account, this Court declared that the court’s appointment was therefore inadequate, adding that the carelessness of lawyers who are appointed by the court to take rulings for absent colleagues is costly to the parties and renders meaningless the preservation of the right of the absent counsel to appeal and have the adverse judgment reviewed. ld. The Court then added: “This Court sends out the warning to all lawyers to be more careful and conscientious when deputized to take rulings for their colleagues as any neglect to fully perform the duty associated with such appointment will be severely punished”. Id
In the instant case, the counsel deputized by the court gave the impression that although a counsellor of the Supreme Court, he still did not know how to announce an appeal from a final judgment or ruling of a lower court of record. Our subordinate courts have a duty to be cognizant and conscious of the opinions of the Supreme Court. We note that if the judge had been aware of the case of Goffa et al., v Goffa, decided by this Court at its March Term, 2011, he would have known that this Court held that where a court, subject to Section 51.6, appoints or deputizes a counsel to take the ruling of the court for and on behalf of the absent counsel for the appellant, the court is under an obligation to ensure that the announcement of appeal is made in accordance with the law. We do not believe that when a deputized counsel make a blunder, such as was made in the instant case, that the trial judge should shy away from informing counsel of the blunder and directing that he makes the correction.
Fortunately, the judge seems to have interpreted the phrase make full application of the law provided in these proceedings to mean or to be tantamount to announcing an appeal, and hence, he noted on the records of the court exceptions noted, appeal granted as a matter of right and law.” We do not believe that noting_ exceptions with the intention to “make full application of the law provided in these proceedings, as was done by counsel in the instant case, satisfied the mandatory requirement of Section 51.6 which required specifically that an appeal be announced. In any event, counsel for the plaintiff/appellee interposed no comments in respect of the act of counsel deputized by the court to take the ruling.
Thus, we make the point only to alert counsel, whether directly representing a party litigant or designated by the court to take a final ruling or final judgment on behalf of an absent counsel for one of the parties, to adhere to the requirements of the statute so that the rights and interest of the party on whose behalf he is acting or has been asked by the court to act is not put in jeopardy.
We believe also, that before proceeding to address the core issue set out before in this opinion, we should, for the edification of the lower court, set out how the law views actions of ejectment vis-a-vis trials, for we have difficulty appreciating how the trial judge, when disposing of the law issues, could have proceeded to adjudicate the facts of the case and to render judgment in a matter involving a dispute as to the ownership of real property, not on procedural grounds, but on the substantive factual issues raised by the parties.
From the earliest days of this Court to the present, this Court has held that an action of ejectment inherently comprises mixed questions of law and fact. This principle was stated as far back as 1875 when the Supreme Court, in the case Harris v. Locket, [1875] LRSC 1; 1 LLR 79 (1875), held that ejectment, being an action involving a mixture of questions of law and fact, must be tried by a jury. Id., at 81. And since that first recorded opinion of the Supreme Court, this Court has repeatedly and consistently noted that in all matters of ejectment, it is not for the trial judge to enter a judgment without the aid of a jury. Johns v. Witherspoon, [1947] LRSC 15; 9 LLR 376 (1947), Pratt v. Summerville, [1949] LRSC 13; 10 LLR 147 (1949), Sherman v. Nimely, [2002] LRSC 24; 41 LLR 215 (2002). In Wuo v. Wordsworth and Washington, [1982] LRSC 41; 30 LLR 106 (1982), Mr. Justice Mabande, speaking for the Supreme Court said: A court of record cannot proceed with the hearing of a controversy concerning title to real property without a jury….. Id , at 111. See also The Testate Estate of Charles Dunbar Sherman v. Nimely, [2002] LRSC 24; 41, LLR 215 (2002), wherein this Court held that where issues are joined by and between the parties in an action of ejectment, the trial by a jury is mandatory to determine the weight and genuineness of titles and/or claims of all the parties to the litigation. ld., at 220.
There is therefore no dispute that this principle is core to and enshrined in our jurisprudence that “an action of ejectment invariably involves mixed issues of law and fact, and as such, it is an action which, in our jurisdiction, should be tried by a jury to determine the weight and the credibility or evidence or the validity of any title deed……” Momolu v. Cummings, [1996] LRSC 19; 38 LLR 307 (1996). Indeed, at a point in Liberia’s history, it was even statutorily mandated for juries to try hybrid issues of this sort: “The trial of all mixed questions of law and fact shall be by jury, with the assistance, and under the direction of the court, unless where the court could try question, if one of mere fact.” Stat. of Liberia (Old Blue Book),ch. VII, §3, 2 Hub. 1542. A review of the history of our jurisprudence reveals even further that the principle pre-dates the independence of the Republic. In an Act passed by the Governor and Council in 1841, during the Commonwealth Period, a period of more than six years prior to the Declaration of Independence of the Republic of Liberia, the following was outlined as the position of the Commonwealth on the issue:
“Be it enacted by the Governor and Council in Legislature assembled, and it is hereby enacted by the authority of the same: That the following principles and rules shall have the force of law in the Commonwealth of Liberia.
The principle stated above remains core to the jurisprudential thoughts of the nation and has been subscribed to and remains a cardinal procedural subscription of the Supreme Court. The United Methodist Church and Consolidated African Trading Corporation v. Cooper et al.[2001] LRSC 11; , 40 LLR 449 (2001). In the United Methodist Church case, this is how this Court explained and reasoned its position on the issue:
“A jury is so vital in the procedure to determine title that this Honourable Court, in the case Larsannah v. Passawe, made the following remarks, speaking through Mr. Justice Harris: The question now arises, can a court, that is, a judge alone, without the aid of the jury, try an action of ejectment when the issues raised in ejectment are mixed issues of law and facts.’ [1961] LRSC 42; 14 LLR 599 (1961). Continuing, Mr. Justice Harris said: As this Court said many years ago, nothing tends greater to disturb tranquility, to hinder industry and improvement in communities than the insecurity of property, personal or real, to prevent which courts of justice are established. Further, this Honourable Court recognized that ejectment is among the peculiar trials wherein the court may not only assist but may direct the jury in ·coming to the conclusions warranted by the law and the facts in the case. Larsannah v. Passawe, [1961] LRSC 42; 14 LLR 599 (1961), text at 600. Also, this Honourable Court has held that ejectment proceedings involve mixed questions of law and fact and are to be tried by a jury, under the direction of the court. Gbassage v. Holt, [1975] LRSC 23; 24 LLR 293 (1975). The consistency of the holdings of the Court on this issue points out clearly that only a jury can decide the issues joined by the parties to the ejectment suit and anything contrary to this, as was done in the instant case, constitutes a gross error on the part of the judge, and this Honourable Court so holds. ld., at 461-462.
It follows logically therefore that since the Supreme Court has determined, in the absence of any legislation to the contrary, that actions of ejectment contained mixed issues of law and facts, and further, that where a case contains mixed issues of law and fact, the case must be submitted to a jury trial, the trial judge in the instant case was without the authority to determine the facts of the case while disposing of the law issues. We note that this Court, in expounding on the role of a trial judge where mixed issues of law and facts are presented, has been very vocal in stating that a trial judge acts without the province of his authority if, when disposing of the law issues, he proceeds further to dispose of issues that contain a mixture of law and facts. Abi Jaoudi and Azar Trading Corporation v. Monrovia Tobacco Company, [1989] LRSC 5; 36 LLR 156 (1989). And this Court has said further that where the issues presented in a case relates to property, especially real property, the issues must be handles with every available care of by the courts. Accordingly, judges are required to afford all parties who stand to lose life and/or property every chance and patience to appear and to defend their cause according to the means afforded them by law. Kennedy et al. v. Goodridge and Hilton, [1985] LRSC 41; 33 LLR 398(1985). In the instant case, the phrase means afforded them by law refers to the law that requires that cases involving real property, which by law essentially contain mixed issues if law and fact, be referred to a jury trial for disposition.
We note that in ejectment actions, the fusion of law and fact occurs because every action of ejectment imports the principle of adverse possession, an issue of mixed law and fact. Karnga v. Williams, [1948] LRSC 3; 10 LLR 10, 12 (1948).
A question of fact means the parties have conflicting versions of events. There are two kinds of facts: ultimate facts and evidentiary facts. Ultimate facts are the final facts required to establish the plaintiffs cause of action or the defendant’s defense and evidentiary facts are those subsidiary facts required to prove the ultimate facts. Woodward v. Mordecai, 234 N.C. 463, 470, 67 S.E.2d 639, 644 (1951). It is inconsequential whether the facts are deemed to be ultimate or evidentiary when determining if a question of fact exist. What is important is that the judge recognizes, as we believe he should be capable of doing, that facts exist and that by virtue of the existence of those facts, the matter should be for a trial by jury, unless the parties determine to waive a jury trial.
In any event, the law in this jurisdiction is that a trial judge must first dispose of the law issues before proceeding to dispose of the factual issues. Wilson v. Firestone Plantations Company and the Board of General Appeals, [1986] LRSC 18; 34 LLR 134 (1986); The Heirs of the Intestate Estate of the late 5. B. Nagbe, Jr. v. The Testate Estate of the late S. B. Nagbe, Sr.[2001] LRSC 1; , 40 LLR 337 (2001). It is therefore a reversible error for a judge, while disposing of the law issues to also, in the ruling on the law issues, dispose of issues of facts presented by or in the pleadings. Swissair v. Kalaban, 35 LLR (1988); Lamco J. V. Operating Company v. Kojo and the Board of General Appeals, [1988] LRSC 57; 35 LLR 290 (1988);Lamco J. V. Operating Company v. Gailor, [1989] LRSC 22; 36 LLR 351(1989). And in any case, the disposition of factual issues is the prerogative of the jury for determination. Super Cold Service v. Liberian American Insurance Corporation, [2000] LRSC 21; 40 LLR 189.
Having laid the premise, we now proceed to determine whether the trial judge acted in error in entering judgment for the plaintiff, when there were clearly factual issues laid in the complaint, the answer and the reply.
Although it is settled law that ejectment actions inescapably contain questions of fact, Judge Kaba declared that there was no factual issue to be ruled to trial. Therefore, he said, he had no alternative but to adjudge the defendant liable. We are tempted to ask how the trial judge could be so blind that he could not see the several factual issues raised by the parties.
As explained in its bill of exceptions and brief, the appellant alleges that several triable issues of fact existed which should have precluded the trial judge rendering of a final judgment at the disposition of law phase of this matter. The appellant pointed to the issue of who had the power to administer the Intestate Estate when it acquired the land as an example of such a factual issue that needs to be resolved by a fact finder; it alleged that Edmund Coleman was the sole administrator of the Estate when the land was acquired in 1988, which the plaintiff/appellee, perhaps by a mistake of fact as to the year disputed; and it argued that the estate for which the co-administrators held letters of administration was different from that of the Intestate Estate of John Francis Marshall, such being allegations which the person making the allegation had the burden to prove. Could the trial court, as a matter of law, determine whether the document exhibited by the appellee was the one and same property held by the defendant? We recognize that this Court has stated in a number of cases that generally oral testimony cannot set aside a written document. Yet, we are also aware that oral testimonies can certainly provide an explanation of the circumstances under which the document is issued or whether in fact they are for the same parcel of land. These were clearly issues of fact that warranted a trial.
But more than that, the appellee, on the other hand, made the assertion that Edmund Coleman was not the Estate’s only administrator in 1988, one of the pillars of his claim to title to the land. The appellee presented in his brief to this Court a sole issue for determination. He framed the issue in this manner: Whether or not a single administrator of an estate with several administrators has the authority to execute an instrument of conveyance without authority from the probate court?
The appellee’s contention, both in the trial court and before us, is that in addition to Edmund Coleman, the administrators at the time were Robert S. Marshall and Godwin Marshall. He argued that when an estate has several administrators, the law does not authorize one to part with the estate’s property without the express consent of the other administrators. Therefore, he asserts, the conveyance made by Edmund Coleman, merely a co-administrator, to the appellant, without authorization from the probate court, was invalid. With such diametrically opposed version of events, this issue posed by the appellee clearly exhibits the quintessential characteristic of a question of fact, namely the conflicting views of a salient fact that the law charges a jury to resolve.
Yet, Judge Kaba overlooked these as facts which needed resolution by a jury, stating to the contrary that there were no issues of fact in the case. How was the judge able to determine, as a matter of law, which version of events was true and believable and which lacked credibility, such that he concluded that the Edmund Coleman was co-administrator and therefore did not have the authority under the law to alone part with title of the Estate’s land to the appellant and that such parting was invalid? In fact, the documentary records are quite to the contrary. They reveal that the transfer or conveyance was made by Edmund Coleman several years prior to the joint letters of administration issued to him and others of the plaintiffs/appellee’s grantors and that there was no challenge to the letters of administration issued to Edmund Coleman prior to the subsequent issuance of letters of administration to the other co administrators to administrator property belonging to John Francis Marshall and others. Clearly, in our opinion, any conclusion of law in that regard was dependent on the establishment of facts to rebut the documents pleaded and exhibited. Those rebutting evidence could not have been made or entertained in the absence of a trial a trial by jury, as required in cases of ejectment, unless waived by the parties. Hence, for the many reasons alluded to herein, we hold that it was error for the trial judge to make the conclusions which he did and to rule thereon holding the defendant/appellant liable to the plaintiff/appellee. The ruling lacked any factual and legal basis and premise and should be reversed.
Another question of fact overlooked by Judge Kaba is whether the appellee’s grantor indeed had the legal capacity to convey the property in dispute? The parties to the case did not disagree that the property in question belonged to the late John Francis Marshall. But the letters of administration and the decree of sale presented by the appellee indicated that Edmund Coleman, Robert S. Marshall and Godwin Marshall were awarded the power to administer the Intestate Estate of Mary S. H. Marshall, Francis Marshall, Willette Marshall, John F. W. Marshall and Sarah A. C. Marshall, and it was on the basis of this empowerment by the Probate Court that the co-administrators conveyed to the appellee two and one-half acres, which included the appellants two lots. The appellant, however, alleged that the two lots it acquired were solely owned by the Intestate Estate of the late John Marshall, and not the collective Intestate Estate. Therefore, the appellant concluded, the three co-administrators did not possess the legal authority to part with the two lots as that parcel of land was not within the purview of the shared Intestate of Mary S. H. Marshall et al.
Under the circumstances narrated above, this Court determines that same involved an issue of fact for the determination of the jury, not the trial judge; and that the trial judge was in error in making a determination that the joint co administrators properly had the authority to convey the property, a conclusion that effectively conveyed the notion that either the joint co-administrators were administrators of the Intestate Estate of the late John Francis Marshall or that the property in dispute was part of the joint estate of Mary S. H. Marshall, Francis Marshall, Willette Marshall, John F. W. Marshall and Sarah A. C. Marshall, neither of which scenarios is revealed by the records, and which in any case, being a mixed issue of law and fact, should have been for the determination of the jury. The jury should have been allowed to determine whether to give credence to the letters of administration as authority for the administration of the intestate of the late John Francis Marshall, for if the property in question belonged to the Intestate Estate of the late John Francis Marshall, was it within the authority of the administrators, under the letters of administration exhibited, to convey same to the appellee. This was not for the trial judge, while ruling of the issues of law, to determine, especially absent a jury. The judge therefore committed an error in making the factual determination which he made when disposing of the law issues.
But there is a further implication from the judge’s ruling. The ruling conveyed the impression that the Monthly and Probate Court consolidated the estates of the various decedents and issues a single letters of administration to all of the co-administrators to administer the separate estates under the consolidation made by the Monthly and Probate Court. We do not believe that the letters of administration was intended to convey that impression. For one thing, the Monthly and Probate is without the authority to consolidate the estates of several decedents for the purpose of administration of the estates. That Court would have and is authorized by law to issue separate and distinct letters of administration to each of the estates. To do otherwise would have had the effect of comingling the several intestate estates of the decedents, an act which could not only generate confusion amongst the beneficiaries of the several estates but also. serve as a recipe for illegal activities and an utter lack of accountability as to each estate. It was error therefore for the trial judge to rely upon the letters of administration issued for what was intended to be common property or joint property of the decedents and apply the letters to the separate and independent property of any one of the decedents, secured independent of the other decedents and which did not form part of the joint estate. And in any event, if the judge was doubtful as to whether the single letters of administration applied to each of the separate estates of the decedent, it was a matter which he should have referred to the jury for the purpose of evidence being produced to clarify the issue. We therefore hold that his action warrants reversal of his ruling.
Additionally, the plaintiff had argued and had exhibited in support of the argument letters of administration issued by the Monthly and Probate Court for Montserrado County in favor of Edmund Coleman, Robert S. Marshall and Reuben Marshall, granting them authority to administer the Intestate Estate of the late Mary S. H. Marshall, Francis Marshall, Willette Marshall, John F. W. Marshall and Sarah A. C. Marshall. The letters of administration was dated September 19, 1994. The administrator’s deed executed in favor of the appellant was dated 1988, six years prior to the date letters of administration was issued to Edmund Coleman, Robert S. Marshall and Reuben Marshall. Yet, the court ruled that deed issued by Edmund Coleman to the appellant should have been issued by an of the court appointed administrators and that because it was signed by a single administrator as opposed to all of the administrators, the deed was invalid. We note,firstly, that the burden was on the plaintiff to explain the many discrepancies easily discoverable with the letters of administration, especially as they related to the deed issued to the defendant/ appellant by Edmund Coleman (and witnessed by the other co-administrators even though they held no such position at the time) and the deed issued to the appellee by the several co-administrators of the joint estate of the several decedents. These were not issues for the reconciliation by the judge. They were issues for the determination of the jury, particularly a decision on the credibility of the several instruments and of the witnesses who would have been produced to testify for the parties. It was therefore error for the judge to rule on such issues as he did, and his action was tantamount to usurping the powers and functions of the jury. A suit in ejectment, this Court has said, involves both mixed issues of law and facts and as such must be tried by jury under the direction of the judge unless a party thereto expressly waives a jury trial. In such instance, the judge shall then have the right to determine the factual issues therein raised after he shall have firstly passed on the law issues. It is not within the power of this Court to determine whether the factual issues raised in an ejectment suit are sufficient or not, for to do so would be usurping the function of the jury. Nyumah v. Kemokai, [1986] LRSC 28; 34 LLR 226,234 (1986).
This point was further articulated by this Court in the case Ketter v. Jones et al.[2002] LRSC 8; , 41 LLR 81 (2002), wherein Mr. Justice Jangaba, speaking for the Court said: It is an elementary principle of law, practice and procedure in this jurisdiction that all documentary evidence which is material to the issues of fact raised in the pleadings, as in the instant case, should be submitted to the jury. Walker v. Morris, [1963] LRSC 42; 15 LLR 424 (1963). We perceive of no legal reasons upon which the trial judge ignored, failed and neglected to adhere to the well settled principle in this jurisdiction that all issues of law must be decided before any questions of fact can properly go to a jury for trial. Watson v. Oost Ajrikaansche Compagnie, 13, LLR 94(1957). The Court added further: An action of ejectment involves mixed issues of law and fact. As such, the trial judge was legally bound to hear. evidence in the case to enable him to decide with certainty this matter in dispute. Pelham v. Pelham, 4 LLR 56 (1934). We hold that the trial judge invaded the province and usurped the functions of the trial jury when he determined the factual issues in this case during disposition of the law issues without presenting the questions of fact to the jury for its determination. It was also erroneous for the trial judge to base his ruling on law issues upon documents which had not been formally admitted into evidence by the trial court to form a cogent part of the records in the case. Ketter v. Jones et al., 41LLR 81(2002), text at 85.
In light of the aforementioned unresolved factual issue regarding the co administrators’, Edmund Coleman, Robert Marshall and Godwin Marshall, legal ability to convey property belonging to the Intestate Estate of late Francis Marshall, it was for the jury to determine if the plaintiff, by a preponderance of the evidence, could sufficiently establish title in the land that would nullify the defendant’s claim.
The Judge’s error is particularly egregious because it is an elementary concept in this jurisdiction that when title is at issue, which means both plaintiff and defendant possess title documents, the plaintiff must rely on the strength of his title and not the deficiencies of the defendant’s title in order to prevail. Until the plaintiff has made a prima facie case by showing title sufficient upon which to base a right of recovery the defendant is not required to offer evidence of his title, and if the plaintiff fails in his proof of title, he cannot recover, however weak and defective the defendant’s title may be. Cooper v. Gissie et al.[1979] LRSC 35; , 28 LLR 202, 210 (1979), quoting 25 AM. JUR., Ejectment §26.
As noted before, the battle of titles between the plaintiff and the defendant in this ejectment action was to be refereed by a jury. Indeed, given that this Court has said that ejectment suits contain mixed issues of law and facts, such a case is determinable and should be determined by a jury under the direction of the court. Abi Jaoudi and Azar Trading Corporation v. Monrovia Tobacco Corporation, [1989] LRSC 5; 36 LLR 156, 166-67 (1989). Indeed, in the Abi Jaoudi and Azar Trading Corporation case, this Court, finding that the pleadings contained issues of law and fact and that the case should therefore have been referred to a jury for determination, held as follows: “…there being mixed issues of law and facts in the pleadings, it is our considered opinion that the ruling of His Honour, Judge Pearson, dismissing the case be and the same is hereby reversed and the case remanded with instructions to the court below to proceed with the hearing of the case before a jury under the direction of the trial judge on the mixed issues of law and facts raised and contained in the complaint, the answer and the amended reply ld. at 169.
Therefore, a judge sitting alone lacks jurisdiction to hear and decide the issue of title without the aid of the jury, except he was so expressly requested by the parties who must expressly waive jury trial. He can only hear and decide the right of possession· and not title. Konneh v. Badio et al.[1994] LRSC 29; , 37 LLR 576, 584 (1994).
Notwithstanding these bedrock principles of ejectment case law, Judge Kaba circumvented the jury’s established role when he erroneously rendered final judgment without a jury trial. The maintenance of the jury as a fact finding body is of such historical importance that the curtailment of the right to a jury trial should be scrutinized with the utmost care. 5 AM JUR 20, Appellate Review, §685.
But there is also a further matter of concern to this Court. The letters of administration issued in favor of Robert S. Marshall, Godwin Marshall and Edmund Coleman for the administration of the estate of the late Mary S. H. Marshall, Francis Marshall, Willette Marshall, Sarah A. C. Marshall and John F. W. Marshall, on the face, do not convey the impression that the letters relate to the Intestate Estate of the late John Francis Marshall, and if the letters do not relate to the said estate of the late John Francis Marshall, that would render the estate separate and independent from any joint or common intestate estate(s) of the decedents named in the letters of administration issued to the three co administrators. If that is concluded to be the case, then the said letters would not vest in the said administrators authority or power to convey any part of the separate and independent Intestate Estate of the late John Francis Marshall, and any such conveyance of property belonging distinctly and separately to the Intestate Estate of the late John Francis Marshall by the co-administrators under the letters of administration held by them would be null and void ab initio and therefore cannot serve as a basis for this ejectment suit. But this is an issue of fact which must be determined by a jury under the direction of the trial court, with specific guidance of the jury by the court to ensure that there is strict adherence to the guidelines set forth herein.
Equally important and of concern to us is that the trial judge violated another cardinal principle that has served as an important part of the jurisprudence of this jurisdiction. Not only did the judge allow counsel for plaintiff to argue a matter which was not part of the pleadings, thereby introducing a new issue not forming a part of the exchanges by the parties, but the trial judge proceeded to rule on the matter, not pleaded by the parties, as if it was pleaded and to rely upon such argument to reached the conclusion which he did, and upon which he entered final judgment against the appellant.
The Court notes from the certified records that nowhere in the plaintiffs/ appellee’s complaint or reply did he raise the issue that the deed executed in favour by Edmund Coleman was invalid by virtue of the fact that no authorization of sale of the property of the Intestate Estate of the late John Francis Marshall had been obtained by the administrator before he proceeded to sell the two lots in dispute to the appellant. Yet, this point was strenuously argued by the appellee’s counsel during arguments on the law issues and was used as one of the grounds by the trial judge for declaring the appellant’s deed as being invalid and therefore holding the appellee liable to the appellee and ordering the appellant evicted, ejected and ousted from the property.
This Court has said in many of its opinions that issues not properly raised in the pleadings cannot properly be adjudicated by the court. Outland and Weaver v. Pearson and Weaver, [1983] LRSC 54; 31 LLR 97 (1983); Liberia Industrial Development Corporation v. Thorpe and El Nasr Export-Import Company, 31 LLR
714 (1984). In National Port Authority v. Kpanyor[1981] LRSC 17; , 29 LLR 196 (1981), this Court, speaking through Mr. Justice Mabande, said of such situation: Where an issue is not raised in the pleading by either party, it can neither be proved at the trial nor permitted to be pleaded in the brief or orally before this Court. Id., at 198. And in the earlier case of Gallina Blanca, S.A., et al. v. Nestle Products, Ltd.[1976] LRSC 33; , 25 LLR 116 (1976), this Court said: Courts cannot raise issue, but are bound to decide them only when raised in the pleadings. See also: The Original African Hebrew Israelite Foundation of Liberia v. Lewis, [1984] LRSC 29; 32 LLR 184 (1984)(Courts of justice will only decide questions of law when properly raised in the answer and pleadings); Jawhary v. The Intestate Estate and Heirs of the late Rosetta Watts Johnson et al.[2005] LRSC 10; , 42 LLR 474, Rebecca Watts Pierre and J. N. Lewis, [2005] LRSC 10; 42 LLR 474 (2005) (Any matter not laid down in the written pleadings of a case cannot be expected to receive the legal consideration of the court, and courts of justice will only decide questions of law when properly raised in the pleadings.); and in the Liberia Industrial Development Corporation case, Mr. Justice Smith, speaking for the Court, said the following: it is very elementary that issues not raised in the pleadings cannot be successfully argued. The contention of the informant in his argument therefore has no foundation for the consideration of the Court. Id., at 721.
With the decisions of this Court, enumerated and quoted above, being in the annals of the jurisprudence of this jurisdiction, we wonder how the lower court could have allowed counsel for the appellee to argue before the court, and allowed itself to accept the argument and make it a basis for its decision, a matter or issue that was never raised in the pleadings by the appellee. The defendant/appellee had averred in its answer that it was the legitimate owner of the property because it had been issued an administrator’s deed by Edmund Coleman, the sole administrator of the Intestate Estate of the late John Francis Marshall. The plaintiff/appellee was served with copy of the answer and had the opportunity to address the issue in his reply. A reply was accordingly filed in response to the answer. But nowhere in the reply filed by the plaintiff/appellee do we find any issue raised that Edmund Coleman had not secured the requisite authorization from the Monthly and Probate Court empowering him to sell any property belonging to the Intestate Estate of the late John Francis Marshall and that hence the sale of the two lots by Edmund Coleman to the appellant was illegal and null and void.
Yet, on the sole basis of the argument by counsel for the appellee, made at the hearing on the law issues, of an issue not raised in the pleadings, and which therefore the appellant had no opportunity to address, either by amending the answer or interjecting other legally allowable defense, which interjection by the plaintiff/appellee was a complete violation of the principle of notice and of the law, the trial court proceeded to rule that the administrator’s deed executed by Edmund Coleman in favor of the appellant was invalid as the sale was not authorized by the Monthly and Probate Court. We wonder how the judge, in addition to accepting the violation of the law by the plaintiff/appellee, reached the conclusion that no authorization was given by the Monthly and probate Court for the sale of the land. It is true that the defendant/appellant did not attached to its answer as an exhibit any instrument from the Monthly and Probate Court evidencing that authorization was granted to Edmund Coleman for the sale of the two lots sold to the defendant/appellant. However, that failure did not warrant the conclusion by the trial judge that no authorization was granted for the sale. The more appropriate conclusion which should have been reached, if the issue had been raised in the pleadings, was that the failure by the defendant/appellant to attach a copy of the authorization from the Monthly and Probate Court authorizing the sale of the two lots worked against the defendant/appellant, as such exhibit was required, rather than a conclusion that no authorization was granted by the Monthly and Probate Court. But no such issue was raised in the pleadings. Hence, the conclusion drawn by the judge was unmistakably an error and his ruling adjudging the defendant/ appellant liable, on that account, was clearly a reversible error, rendering the said ruling faulty and subject to reversal.
We wonder further why the trial judge, if he was going to proceed to dispose of the case on the basis of issues not raised by the parties in their pleadings, did not take cognizance of the fact that although letters of administration were issued to Edmund Coleman, Roberts S. Marshall, and Goodwin Marshall on September 9, 1994, and by law should only have lasted for one year, the deed which was issued to the plaintiff/appellee was done on June 31, 1996, a period of one year and five months after the letters of administration was supposed to have expired, thereby rendering the deed issued by the said administrators without the sanctity of the law. Yet the judge chose to ignore this fact. We do not herein make any determination as to the validity or invalidity of the administrator’s deed issued to the plaintiff/appellee. We make the point only that the trial judge should not have interjected himself into the matter as he did when the parties had not seen fit to raise such issue in the pleadings the issues upon the judge chose to rule and on that basis to hold the defendant/appellant liable to the plaintiff/appellee.
There is a further error committed by the lower court judge which we believe is deserving of our attention. The plaintiff/appellee, in his complaint, asserted that he was the owner of the property in question and that the defendant/appellant was not only encroaching on the said property, but was also withholding the said property from the plaintiff/appellee and thereby preventing him from carrying out any development. Yet, although the action is captioned ejectment, the only prayer of the plaintiff made in the complaint was that the defendant/appellant should be made to pay general damages in the amount of US$50,000.00 (Fifty Thousand United States Dollars) for illegally withholding of plaintiff’s property and grant unto plaintiff for all that is deemed just and equitable in the premises.
While one may conclude that the trial court could order the ejectment, eviction and ousting of the defendant under the guise of granting unto the plaintiff/appellee that which the court deemed to be “just and equitable in the premise, in the absence of any specific prayer by the plaintiff to have the court eject, evict and oust the defendant from the property, assuming that the proper process is employed, such as ensuring that the case is tried by a jury, it is difficult to understand why the judge did not pass unto a jury the opportunity to determine whether the plaintiff was entitled to damages. Clearly this was an issue of fact and the jury should have been allowed to pass on said issue. The trial judge, in ruling on the law issues and usurping the functions of the jury by also passing on issues of fact, completely ignored this critical factual issue; for when the complaint is examined, it is revealed that the plaintiff’s complaint specifically seeks damages as opposed to requesting the ejectment of the defendant from the subject premises.
This presents a further reason why the trial judge should have ruled the case to trial by a jury. We hold accordingly that it was error for the trial judge, in holding the defendant/appellant liable to completely ignore the plaintiff’s request for damages. This does not go to whether the plaintiff was entitled to damages or not, for any claim to damages would be dependent on proof, firstly that the subject property legally belonged to the plaintiff, and secondly, establishing that damages were in fact inflicted on the plaintiff as a result of the defendant’s withholding of the property. For example, the plaintiff alleged that as a result of the defendant’s withholding of the property, plaintiff had been deprived of undertaking development of the property. This allegation was clearly subject to proof. The trial judge, in ruling as he did, deprived the plaintiff of the opportunity to prove the allegation, deprived the defendant of the opportunity of refuting or rebutting the allegation, and deprived the jury of the right granted by law to make a determination of the weight, the credibility and the genuineness of the proof of title presented by the parties. The Testate Estate of Charles Dunbar Sherman v. Nimely, 41LLR 215, 220 (2002); Gbassage v. Holt[1975] LRSC 23; , 24 LLR 293 (1975); Scot v. Sawyerr, [1976] LRSC 9; 24 LLR 500 (1976). We hold that in light of this error by the trial judge, the judgment should be reversed.
Wherefore, after careful perusal of the records and a meticulous consideration of the arguments made by the parties, and due examination of the laws controlling, this Court holds that the judgment of the lower court should be and the same is hereby reversed. The case is remanded to the lower court with instruction that it resumes jurisdiction over the same, conduct a re hearing of the law issues, properly rule thereon, and have the case submitted for trial on the several mixed issues of law and facts stated in this opinion. Costs are to abide final determination of the case. AND IT IS HEREBY SO ORDERED.
Counsellor J.Johnny Momoh of Sherman and Sherman,Inc. appeared for the appellant. Counsellor Peter W. Howard of Legal Consultants, Inc. appeared for the appellee.