Suah-Belleh v Oniyama [2015] LRSC 4 (8 January 2015)
Suah-Belleh v Oniyama [LRSC] 4 (8 January 2015)
Subah-Belleh & Associates represented by its Partners, Pewu Subah and Willie Belleh of the City of Monrovia, Liberia, APPELLANT VERSUS Dr. C. Nelson Oniyama, also of the City of Monrovia, Liberia, APPELLEE
APPEAL
Heard: April 2, 2014 Decided: January 8, 2015
MR. JUSTICE BANKS delivered the Opinion of the Court.
This case is on appeal to the Honourable Supreme Court from a verdict of not liable brought by the trial jury in the lower court in favor of the appellee and the judgment entered thereon by the trial judge. In the trial court, the plaintiff, Subah-Belleh and Associates, now appellant sought to establish in support of allegations laid in its complaint that the defendant, C. Nelson Oniyama, the appellee herein had encroached on property which the appellant claimed ownership to by virtue of a deed alleged to have been issued in its favor by one John G.T. Nagbe, purported administrator of the Intestate Estate of the late G. Koffa Nagbe. The jury selected for the trial of the case apparently not believing that the plaintiff/appellant had sufficiently met the required burden of proof by a preponderance of the evidence or not convinced by the evidence presented by the plaintiff/appellant, entered a verdict of not liable in favor of the defendant/appellee. The trial judge, seemingly equally convinced that the plaintiff/appellant had failed to meet the requisite burden of proof standard governing such ejectment case, denied the plaintiff’s motion for a new trial and refused to reverse the jury’s verdict. Instead, the judge proceeded to enter final judgment against the plaintiff/appellant, confirming and affirming the jury’s verdict and declaring that as the property in dispute belonged to the defendant, the request of the plaintiff for the defendant’s ejectment from the property could not be honored.
While this jurisdiction adheres to the principle that the jurors are the determinants and triers of the facts in a case and has the power to determine the credence and credibility to be given to the evidence adduced at the trial, especially by the witnesses and that therefore the court will ordinarily respect the verdict returned by the jury, this Court has also expressed the view in a number of opinions that a verdict returned by the jury must always conform to the evidence adduced at the trial and that where the verdict is not in harmony with the evidence produced at the trial by the parties, this Court has the authority to review the evidence and enter such judgment as is consistent with both the law and the facts. This is the approach we take in the instant case, being within the purview of the appeal process.
Consistent with the foregoing, and believing that to arrive at a legal conclusion in the matter both to determine whether to confirm the verdict and judgment and for the benefit of this Opinion in reaching the desired conclusion, it is important that we recap all of the facts in the case, commencing with the pleadings exchanged by the parties and extending to an examination of the evidence produced. This, in our view, will provide us with adequate basis to determine whether the allegations made in the pleadings were proved by the plaintiff or lacking in proof, as concluded by the jury and trial judge to warrant reversal of the verdict of the jury and the judgment entered by the trial court confirming the said verdict.
The first pleading, a ten-count complaint filed on the 9th Day of May, A. D. 2011, with the clerk of the Circuit Court for the Sixth Judicial Circuit, Montserrado County Sitting in its June Term, A. D. 2011, against the defendant, set forth the following allegations against the defendant as the basis for accusing him of encroaching upon the plaintiff’s property and for the prayer to the lower court to enter judgment adjudging the defendant liable and ordering his ejectment, eviction and ouster from the property to which plaintiff claimed ownership and title:
1. Plaintiff is a partnership of Liberia professionals, namely, Pewu Subah and Willie Belleh, which has been in existence in Liberia for more than thirty (30) years and providing management consultancy and research services to the Liberian Government, international non-governmental organizations, and private enterprises. If necessary, Plaintiff shall present its constituent documents and other evidence of its bona fide existence as averred herein.
2. That In 1985, the Monthly & Probate Court for Montserrado County, upon the petition of John G. T. Nagbe, Administrator of the Intestate Estate of the Late Koffa Nagbe, issued a Court’s Decree of Sale of Real Property, which authorized the aforesaid John G.T. Nagbe to sell 6.5 acres of land situated at Bushrod Island, of which the Late Koffa Nagbe died seized. And on the authority of the aforesaid Court’s Decree of Sale of Real Property, on the 14th day of November, A. D. 1986, the aforesaid John G. T. Nagbe, in his capacity as the administrator of the Intestate Estate of the late Koffa Nagbe, sold to plaintiff a certain parcel of land containing approximately 2.9422 acres. Copy of the administrator’s deed is attached hereto as Exhibit “P/1”; and if necessary, plaintiff shall proffer at trial the Court’s Decree of Sale of Real Property referred to herein.
3. That a portion of the property described in the administrator’s deed (Exhibit “P/1”) was under lease to Lemminkainen O.Y., a Finnish construction company, which was then doing business in Liberia, and as said Lemminkainen O.Y. was not paying its rents to plaintiff. Plaintiff wrote a letter dated March 6, 1989, to Lemminkainen O. Y., which demanded that rents for the portion of the property occupied by Lemminkainen O. Y. be paid to plaintiff. Lemminkainen O. Y. had its legal counsel, Christian D. Maxwell of Maxwell & Maxwell respond to Plaintiff’s by a letter dated March 10, 1989, is attached hereto as Exhibit “P/2”.
4. Plaintiff says that the herein letter of March 20, 1989, averred to part and asks the Court to take judicial notice thereof. That the lease from G. Koffa Nagbe Estate to Lemminkainen O.Y., which had been assigned to BAO Construction Company, another foreign-owned construction company, was scheduled to expire, on December 31, 1989. On its expiration, the Liberian civil war had commenced. So it was not until September 1991 that plaintiff wrote a letter dated September 16, 1991, to the aforesaid BAO Construction demanding that the property be released to plaintiff as successor in title to the late G. Koffa Nagbe. Copy of that letter of September 16, 1991, is attached hereto as Exhibit “P/3”.
5. Plaintiff gives further notice that another transaction relating to the property covered by Exhibit “P/1” is a lease agreement dated February 8, 1994 by and between plaintiff and Forestry Management Corporation for a portion of said property. Copy of said lease agreement, together with its attachment (enclosure), which demarcates from the total property covered by Exhibit “P/1″, that portion covered by the lease agreement is attached hereto as Exhibit P/4”.
6. That in July 2008, the Monthly & Probate Court issued letters of administration to Agnes B. Nagbe, one of the heirs of the late G. Koffa Nagbe, John G. T. Nagbe, having died by then. On the strength of those letters of administration, Agnes B. Nagbe sold to defendant a parcel of land under an administrator’s deed, which consists of the entire parcel of land covered by Exhibit “P/1”. The administrator’s deed for the land sold by Agnes B. Nagbe is attached hereto as Exhibit “P/5”.
7. Shortly after obtaining the administrator’s deed (Exhibit “P/5”), defendant began to assert title to and authority over the land covered by Exhibit “P/1”. Whereupon plaintiff protested directly to defendant and later to Sherman & Sherman. Because of the relationship that Sherman & Sherman had with both plaintiff and defendant, Sherman & Sherman offered to serve as mediator to settle the dispute; both sides agreed. After a full investigation, Sherman & Sherman issued an Advisory Opinion, in which Sherman & Sherman stated, without any hesitation or equivocation that both as a matter of the documentary evidence and the law, plaintiff had primary title to the land in dispute. Copy of the Advisory Opinion is attached hereto as Exhibit “P /6”.
8. Plaintiff requests Your Honour to take judicial notice of paragraph 3.2 of the )
Advisory Opinion (Exhibit “P/6” and observe that they offered defendant at the time, to purchase their property at its fair market value, they having taken into consideration that defendant had made some expenses in removing persons who had wrongfully settled on the property during the course of the Liberian civil crisis when plaintiff was indisposed and could not protect and secure the property to themselves. However, defendant refused to negotiate a reasonable settlement with plaintiff, but instead defendant arrogantly proceeded to place a concrete fence around the property and to develop it much to the damages and inconvenience of plaintiff.
9. Based on the facts and circumstances and the law controlling, plaintiff says that it has superior title to the land described in the administrator’s deed (Exhibit ” /1″ ), that it has the right to the peaceful and quiet enjoyment of said property and that accordingly defendant should be ousted, evicted and ejected from said property.
10. That also based on the facts and circumstances and the law controlling, plaintiff says that they are entitled to damages for the wrongful use and enjoyment of their property and for the wrongful deprivation of their property by plaintiff. And for such wrong, plaintiff prays for general damages in an amount to be determined by the jury, which will compensate plaintiff for such wrong.
WHEREFORE AND IN VIEW OF THE FOREGOING, plaintiff prays Your Honour for judgment against defendant, which confirms that plaintiff has superior title to the aforesaid property covered by Exhibit “P/1”; that plaintiff is entitled to the immediate use and enjoyment of said property; that defendant should be ousted an d evicted from said property without delay, and that defendant compensates plaintiff in an amount to be determined by the jury, but in no case less than US$100,000.00 (One Hundred Thousand United States Dollars) for the more than two (2) years that defendant has stubbornly and arrogantly deprived plaintiff of its property.
This was the complaint which the plaintiff/appellant put before the lower court and which it hoped to prove to the jury at the point where a jury was selected, if the parties did not opt for a bench trial. A writ of summons was duly issued and served along with a copy of the complaint on the defendant thereby providing him the opportunity as required both by the Constitution of Liberia and the Civil Procedure Law to traverse the allegations mad e by the plaintiff and to show either that, instead; it was he, the defendant, that held title to the property claimed by the plaintiff or that a basis existed in law that rendered the plaintiff no longer entitled to the property; and hence, that the court should reject the plaintiff’s claim to ownership and title to the property. We quote below the response of the defendant to the plaintiffs complaint, couched in a twenty-one count answer filed with the clerk of the trial court on the 27th day of May, A. D. 2011.
And now comes defendant in the above entitled cause of action and most respectfully prays your Honour and this Honourable Court as follows to wit:
(1) That as to the entire complaint, same is a fit subject for dismissal in that the defendant on the 11th day of July 2008, acquired through a genuine purchase a parcel of land from the Intestate Estate of the late G. Koffa Nagbe comprising of 3.13 acres of land which is the subject matter of the ejectment suit prior to said purchase, notices for the survey of the land were published on several occasions in the Inquirer Newspaper and also announced on radio thereby giving notice to other interested parties, if any, that defendant was about to purchase the said parcel of land. The re survey was then conducted on the 6th day of June 2008, and even though many persons appeared including one Jones, surveyor of plaintiff, Subah-Belleh Associates, nobody objected to the said re-survey. Photo copies of newspaper publications of the notice of survey are hereto annexed as Exhibit “D/1” to form cogent part of this answer.
(2) And also because, defendant further answering the herein named plaintiff’s complaint avers and says that after the re-survey, defendant purchased the property subsequent to which purchase a deed was executed by the administratrix in his favour thereby giving notice to all and sundry including the plaintiff that the said property is now his. A photo copy of the letters of administration of his grantor, the court’s decree of sale, and the deed are hereto annexed as Exhibit “D/2”, in bulk, to form an integral part of this answer.
(3) Also because defendant submits and says that having purchased the said parcel of land, the defendant, In fulfillment of his desire to develop same, attempted to enter upon it. It was at that juncture that one Isaac Wleh Tugbeh and other squatters asserted their claim to the property. Defendant Instituted an action of ejectment in the Civil Law Court which was determined in his favour. An appeal was then taken to the Supreme Court of the Republic of Liberia. A photo copy of the circuit court’s ruling hereto annexed as Exhibit “D/3” to form an integral part of this answer. Defendant requests Your Honour to take judicial notice of the Supreme Court Opinion rendered during its October Term 2009. (Dr. C. Nelson Oniyama vs. Isaac Wleh Tugbeh).
(4) And that further to count three (3) herein above, while the case was pending in the Supreme Court for determination, the residents of the Borough of New Kru Town petitioned the Government of Liberia to help them construct a market and when the Government asked them to provide the land, they illegally claimed the land , subject matter of this suit, and recommended same to the President of Liberia. When the President went on the land for the earth/ground breaking ceremony, she was then informed that the parcel of land which had been recommended to her is the bonafide property of the defendant, Dr. C. Nelson Oniyama, and subject of a litigation then pending before the Supreme Court. It was predicated upon this information that the President suspended the exercise pending the outcome of the Supreme Court Opinion. These activities were all reported in newspapers, and on radio and television throughout the Republic to the knowledge of the plaintiff. Photocopy of the photos of the President at the earth/ground breaking ceremony is also hereto attached as Exhibit “D/4” to also form a part of this answer.
(5) And also because, further to count four (4) herein above, defendant submits and says that he shudders and recoils at the very thought the plaintiff should at t his time claim the property, subject matter of this suit, when prior to the purchase of the land the Defendant published in the newspaper his desire to survey the land, and notified all interested parties. Subsequent to which notice he purchased the land and had to 1nstitute an ejectment suit against the intruders which suit was later determined by the Supreme Court in his favour. The earth/ground breaking ceremony was performed by the President prior to the commencement of the construction work on the premises, to the knowledge of the plaintiff and the plaintiff failed to join in the suit to protect its interest, if any. These were all events that were published in newspapers and the plaintiff had full knowledge of them as its offices and residence of the manager is in the same vicinity.
(6) Also that, defendant avers and says that the Honourable Supreme Court of the Republic of Liberia has in numerous opinions frowned on similar conduct exhibited by the plaintiff herein enumerated in this answer. In the case Alhajl Momoh vs. His Hon. Henric Pearson et al., the Court held that “every person is entitled to take full advantage of the law in defense of his right but the law gives no protection to him who abuses his own right. Therefore, without admitting that the plaintiff bought the property in 1987 as it has alleged but failed to enter upon it and in 1994 Isaac Wleh Tugbeh illegally entered upon same even though the plaintiff lives in the same vicinity but did not raise any claim as to its ownership of the land, the plaintiff suffers laches. The defendant came upon the land through a genuine purchase after a survey which was widely published in newspapers upon entry he immediately sued Reverend Tugbeh and the case travelled to the Supreme Court and was determined in his favour. Based on that Judgment/Opinion, Dr. C. Nelson Oniyama was placed in possession of the property (3.13 acres of land) pursuant to a writ of possession issued on February 3, 2010; Copy of which is annexed hereto as Exhibit “D/5”. Prior to this, during its March Term, A. D. 2003, the Supreme Court in an Opinion regarding the administration of the G. Koffa Nagbe Estate concluded that all actions taken by the previous “administrators” which had been reversed/revoked, including the sale or otherwise in possession of properties of the estate are all declared null and void. The court concluded by saying that all properties disposed of by these “administrators” if any are declared ordered returned to the Estate for proper distribution in keeping with law. There is a fundamental principle of law which states that “every person is entitled to take full advantage of the law in defense of his right, but the law gives no protection to him who abuses his own right”. For reliance see Alhaji Momo Sheriff vs. His Honor J. Henric Pearson et al., 35 LLR, text at page 355, Syllabus 4. Also, in that case, Syllabus 5 provides that “He who is silent when he should speak assents” and Syllabus 6 states that “The unreasonable delay by a party in seeking redress in a cause amounts to laches and a judgment resulting therefrom will not be disturbed, especially where the status quo cannot be restored.” Subah-Belleh Associates are estopped from raising any issues relating to their alleged ownership to the property, subject of this suit, as the Honourable Supreme Court of the Republic of Liberia in the case Eliza Jackson et al. vs. J. Benedict Mason et al., 24 LLR, text at page 97, Syllabus 4, said that “a person who, being under no legal disability at the time, stands by and permits property which he claims, to pass into the possession of another without objecting thereto is presumed to have assented to the act and is therefore estopped from afterward raising claims thereto.” “Besides, under the same breath, the court opined that courts will refuse to interfere when antiquated demands are presented where gross laches in prosecuting rights or long acquiescence in assertion of adverse rights is shown.” 24 LLR, text at page 97, Syllabus 12. In the case Annis Hejazi vs. His Honour Alexander Zoe, 36 LLR, text at page 61, the Honourable Supreme Court held t hat “a party who fails to take advantage of rights to which he is entitled gets no protection from the law for abusing his own rights”. It is also a principle of law that ”he who is silent when he should speak, assents”. Furthermore, the Honourable Supreme Court in numerous cases has opined that “where by failure to diligently act, an antiquated demand is raised, the Supreme Court will invoke the doctrine of laches and refuse to interfere in a matter so as to preserve the peace and dignity of society”.
(7) Furthermore, defendant says that further to count six (6) herein the plaintiff does not only suffer laches but equally so from waiver. For waiver is the intentional or voluntary relinquishment of such right or when one dispenses with the performance of something he is entitled to exert or when one in possession of any right whether conferred by law or contract with full knowledge of the material facts does or forebears to do something the doing of which or the forbearance to do which is inconsistent with the right of his intention to rely on it. Defendant says that the facts herein enumerated in this answer being absolute support of the averments for immediate dismissal of the said complaint, same should be granted and defendant so prays.
(8) As to count one (1) of the said complaint, defendant says that he lacks both information and knowledge sufficient to form a belief as to the truthfulness or falsity of the content of said count. However, since same raises no triable issue, it should be dismissed including the entire complaint and defendant so prays.
(9) And that as to count two (2) of the complaint, the plaintiff is totally incompetent to own real property in Liberia in fee simple. For the 1986 Constitution of the Republic of Liberia states that only citizens who are natural persons may own real property; the only exception been non-citizen missionary, educational, not-for-profit and other benevolent institutions as long as that property is used for the purpose for which it is acquired. 1986 Constitution of Liberia, Article 22 (a) and (c).
To allow “for-profit” corporations, partnerships and other like business enterprises to acquire real estate in fee simple could very well defeat the restriction imposed by the laws of Liberia on the ownership of land to citizens, as a corporation at its formation may be owned One Hundred (100%) percent by Liberians but its shares could be transferred to individuals who are non-Liberians. Consequently, the deed issued by Mr. John G. Nagbe as Administrator of the Intestate Estate of the Late G. Koffa Nagbe to Subah-Belleh Associates is invalid and of no legal effective. The plaintiff does not belong to any of the groups herein above mentioned. Its alleged acquisition of the property therefore in fee simple is illegal. As a consequence of this, the deed that was executed by John G. T. Nagbe in its favour is invalid and of no legal effect.
( 10) Besides, defendant submits and says that the procedure adopted in our jurisdiction for the administration of a decedent’s estate is first filing an application for and the issuance of letters of administration to the petitioner. Subsequent to said issuance of the letters of administration is the execution of court’s decree of sale by the Monthly and Probate Court authorizing the sale of a portion of the estate so as to underwrite liabilities that may arise during the period of the administration of the estate, if the necessity to sell arises. A close inspection of the documents pleaded and attached to the complaint reveals that there is no letters of administration but only a court’s decree of sale annexed to the complaint. A court’s decree of sale is only executed after the court has issued the letters of administration. That not being the case herein, the purchase of the land is again illegal. Further inspection of the plaintiff’s documents in support of its claims reveals that the administrator’s deed, that is “P/1”, which was allegedly executed in favour of the plaintiff, Subah-Belleh Associates, is the product of an alleged Letter of Authority instead of a letters of administration. To convey intestate estate by the use of letter of authority not only is a legal novelty in our jurisdiction but also a legal nullity for which the entire action should be dismissed and denied and defendant so prays.
(11) And also because, further to count eight (8) herein, defendant avers and says that a close inspection of the exhibits attached to the plaintiff’s complaint reveals that the Court’s Decree of Sale was issued on the 11th day of July, A. D. 1985, and the administrator’s deed was probated on the 11th day of December 1987. This fact shows that the allege purchase of the property by Subah–Belleh Associates was done illegally in that it was conducted outside the statutory period of twelve (12) months within which an estate is to be closed. The property therefore still remained part of the Nagbe estate during its purchase by the defendant; a review of the documents relating to this matter reveals that Subah-Belleh Associates allegedly acquired title to the property in 1987 while Dr. C. Nelson Oniyama acquired title to the property in 2008.
(12) And also because, ordinarily, where two parties claiming ownership to a parcel of land acquired their titles from the same grantor the first purchaser has priority over the subsequent purchaser where he probates and registers his deed prior to the expiration of four (4) months, or if thereafter prior to the probation and registration by the subsequent purchaser of his deed. This is the general rule. However, in order for this rule to apply there are other legal requirements which must be complied with and these serve as a litmus test as to the genuineness and legitimacy of the prior deed. First and foremost, in the case of an administrator’s deed, as in the instant case, there must be in effect at the time the deed is executed a valid letters of administration accompanied by a decree of sale issued by the probate court authorizing the sale of a specific parcel of land. In the instant case, there is no letters of administration available to us upon which the sale to Subah-Belleh Associates was based and the Decree of Sale issued in favour of Mr. John G. Nagbe was issued on July 11, 1985 and the administrator’s deed from the said John G. Nagbe to Subah-Belleh Associates was issued on November 14, 1986 and Probated on December 11, 1987. Assuming that the decree of Sale was indeed issued on July 11, 1985, this presupposes that the letters of administration out of which the Decree grows was issued prior thereto. Still assuming that the Decree of Sale is accurate (July 11, 1985), the Letters of Administration and the Decree of Sale had expired when Mr. John G. Nagbe executed the Deed to Subah-Belleh Associates in 1987.
(13) Furthermore, letters of administration are issued for a period of twelve (12) calendar months with the express instruction that the Estate to be administered pursuant thereto should be closed within twelve (12) months. In the case William T. Knowlden vs. Williette R. Johnson, 39 LLR, page 346, Syllabus 23, the Supreme Court held that the statutory period for keeping open an intestate estate is one year. In strict adherence to the law, all letters of administration issued by the probate court clearly state that the administrator should administer and close the said estate within twelve (12) months or one (1) calendar year from the date of its issuance. Should the need however arise for an extension of the time provided by the statute, then and in that case, an extension will be granted by the court for an additional period. Any action taken by an administrator after the twelve (12) months covered by the letters of administration is considered NULL and VOID and of no legal effect. There is a legal maxim that “what is not done legally is not done at all.”
(14) And that defendant says that his claim to the property derives from title he also acquired from the Intestate Estate of the late G. Koffa Nagbe, except that at the time he purchased the property there was a new Administratrix, Ms. Agnes B. Nagbe. Ms. Agnes B. Nagbe was granted an Extended Letters of Administration on July 3, 2008 by the Monthly & Probate Court to continue administering the Intestate Estate of the Late G. Koffa Nagbe. Within the period granted, Ms. Agnes B. Nagbe applied for and was issued a Decree of Sale on the 10th day of July, 2008, by the Monthly & Probate Court authorizing her to sell eight (8) acres of land on Bushrod Island belonging to the Intestate Estate of the Late G. Koffa Nagbe. In compliance with the letters of administration and the Decree of Sale, Ms. Agnes B. Nagbe, on the 11th day of July 2008, executed an Administrator’s Deed for 3.13 acres of that land in favour of Dr. C. Nelson Oniyama which was Probated on the 14th day of July, A. D. 2008, and registered according to law in Volume 13A-08, on pages 372-373 of the National Archives of the Republic c of Liberia. That which is not done according to law is not done at all.
(15) And also because as to count six (6) of the complaint, defendant submits and says that he is in total agreement that the portion of the said count which confirms the issuance of letters of administration by the Probate Court of Montserrado County to Agnes B. Nagbe, the grantor of the defendant, and the issuance of the administrator’s deed in favour of defendant by said administratrix, Agnes B. Nagbe.
(16) And also because further as to count six (6) of the said complaint, defendant avers and says that he confirms and affirms the averments contained therein but stilt they raise no triable issue.
(17) That as to count seven (7) of the complaint, defendant says that if he did assert his right after the purchase of land, he feels that was the best way to tell the world, including the plaintiff, that he is the owner as of the time of the purchase. He did so by instituting the ejectment action against Isaac Wleh Tugbeh on the 11th day of December 2005 who h ad entered upon the property on March 8, 1994 and sold portion of it. A photo copy of Rev. Tugbeh deed is hereto attached as Exhibit “D/6” to form a part of this answer. The opinion referred to is a superbly written legal opinion but since it is not a judgment from a court, is of no legal effect. Although the defendant purchased and asserted his right to the property in 2008, the plaintiff did not obtain a legal Opinion from Sherman & Sherman on the matter until July 21, 2010 after the Supreme Court had on January 22, 2010 rendered a judgment in favour of defendant.
(18) As to count eight (8) of the complaint, defendant avers and says that the averments contained therein are false and misleading and Intended to mislead this Honourable Court. For even though defendant knew very well that the plaintiff is not the owner of the property in order to avoid cumbersome and unnecessary litigation, he entertained the idea of a settlement out-of-court. The lawyers who initiated the possible negotiated settlement are legal counsel for both the plaintiff and the defendant. Counsel for defendant in these proceedings laud the efforts made by these lawyers by attempting to amicably resolve the matter. However, because plaintiff wanted to be unreasonable, its representative at the negotiations have opted for United States Dollars One Hundred and Fifty Thousand (150,000.00), claiming same to be the fair market value of the property. To say that the defendant arrogantly proceed to fence the parcel of land is not true. He only decided not to continue with the negotiation because the amount requested by the plaintiff was a non-starter. Further, the defendant, unlike the plaintiff, had genuine interest in the property and fenced same in to prevent further encroachment thereon by intruders and squatters. Therefore, since the averments in the said count are false and misleading, same should be denied and dismissed and defendant so prays.
(19) As to count (9) of the complaint, plaintiff says that there are no facts, circumstances and law controlling that will give the plaintiff “superior title” to the land, subject matter of these proceedings. If the clause “superior title” is derived from t he opinion from Sherman and Sherman Law Firm, the plaintiff also respectfully request your Hon. to take Judicial Notice of the Legal Opinion prepared by Counsellor David A.B. Jallah of The David A.B. Jallah Law Firm and Cllr. Momodu F. Babah Jawandoh of Musidal Chambers Lib. Inc., attached as Exhibit “D/7”. In that opinion, the lawyers having fully exhausted the necessary legal citations concluded by saying that “to allow Subah-Belleh Associates to now come and claim this property to the detriment of Dr. C. Nelson Oniyama would be tantamount to unjust enrichment; equity will not permit this to happen.” For these divergent legal opinions count nine (9) of the complaint should be dismissed and defendant so prays.
(20) And also because defendant says that as to count ten (10) of the complaint, same should be denied and dismissed; for there is no law to support the plaintiff’s claim which would warrant it being compensated for a wrong that it has itself committed, that is, instituting an action of ejectment against the defendant when it does not own the property, subject matter of the suit, and has therefore not been wrongfully deprived of the said property by the defendant as alleged. The said count ten (10) and the entire complaint being baseless and unmeritorious should be dismissed and defendant so prays.
(21) Defendant denies all allegations both law and facts as contained in the plaintiff’s complaint not made a subject of special traverse herein.
Wherefore and in view of the foregoing facts and circumstances, Defendant prays Your Honour and this Honourable Court to deny and dismiss the bogus and unmeritorious complaint/action filed against the defendant and rule the cost of these proceedings against it and to grant unto defendant any other relief that Your Honour and this Honourable Court may deem just, fair, legal and equitable in the circumstance.”
As noted from the above quoted answer, the defendant/appellee raised a number of defenses that challenged the right of the plaintiff/appellant to recover against him, and predicated thereupon, prayed the trial court to dismiss the plaintiff/appellant’s action. The plaintiff/appellant, for its part, believing that the allegations made in the answer warranted a response, availed itself of the opportunity provided by law to respond to the allegations made by the defendant. Hence, the plaintiff/appellant, on June 7, 2011, filed a twenty-six count reply, wherein it set forth the following:
“Subah-Belleh Associates, plaintiff in the above entitled cause of action, denies the legal and factual sufficiency of the defendant’s answer and for reasons showeth the following to wit:
1. That as to counts one (1) through six (6) of the answer, plaintiff says that by the probation and registration of the administrator’s deed (Exhibit “P/1”) notice had been given to all persons, including defendant, that plaintiff had acquired title to the property covered by said administrator’s deed. The legal effect of probation and registration of a document relating to real property, as required by law, is to give such legal notice to the public in general. There is nothing under Liberian law which says that a subsequent notice in a newspaper relating to the same property is superior to the legal notice which the previous probation and registration has given. Counts one (1) through three (3) should therefore be overruled as a matter of law; and plaintiff so prays.
2. That specifically as to the first (1st) and second (2nd) paragraphs of count six (6) of the answer (the citation of the opinion of the Supreme Court in the case Sheriff v. Pearson et al.[1988] LRSC 65; , 35 LLR 355, is relied on herein); plaintiff submits that the citation is irrelevant and immaterial to the issues raised in the complaint. In the Sheriff case, a writ of possession for execution of the judgment of the Supreme Court in an ejectment case was effected; the successful plaintiff took possession of the property; and more than one year and two months thereafter, the unsuccessful defendant in the ejectment case came back as informant and claimed that error was committed in the execution of the judgment. The error allegedly made was that property not included in the ejectment suit was covered by the writ of possession. The Supreme Court held that the unsuccessful defendant should have raised that issue when the writ of possession was first served, not one year and two months later, especially after the successful plaintiff had changed his position by disposing of some of the property through leases to third parties, etc.
3. That further to count two (2) above, this case is not analogous to the Sheriff case, in that it is not about an alleged erroneous execution of a judgment of the Supreme Court in favor of defendant against plaintiffs. This is a case where plaintiff has clear an d unencumbered title to the land, used the land in the past, and defendant had legal notice (through probation and registration of the Administrator’s Deed) that plaintiff had such title. Plaintiff became aware that defendant had subsequently acquired title to the land only after defendant began to clear the land; and as soon as plaintiff became aware of this situation, they immediately protested to defendant. Despite this protest, defendant arrogantly started to develop the property. No change of position or circumstances had been done by defendant. Then certainly, defendant did not divest himself of the property or otherwise encumber it as Carew, the successful plaintiff in the Sheriff case had done, as to set the basis for laches. That is, evicting defendant from the property in question will not harm, injure or prejudice the rights of any third party, who may have acquired such rights while plaintiff delayed in bringing this law suit.
4. That as to the third (3rd) paragraph of count six (6) of the answer, which refers to a n other case decided by the Supreme Court in Its March 2003 Term, allegedly regarding the actions taken by previous administrators of an estate, plaintiff says that n o such case was ever determined by the Supreme Court. The Supreme Court decided only nine (9) cases during its March 2003 Term; and only one (1), Duobo et al. v. Davies, decided May 9, 2003, involved the law of decedents estates or the authority of t he administrator of an estate. In that case, letters of administration issued on the basis of false and misleading information were revoked and the sale of property pursuant to previous letters of administration was held to be superior to the sale of the same property under the latter letters of administration. And as to the citation of the Sheriff case, which is repeated in this third (3rd) paragraph of count six (6) of the answer, the immateriality and irrelevance thereof has already been addressed in counts two (3) and three (3) above and therefore require no repetition. So, plaintiff prays that the third (3rd) paragraph of count six (6) should be overruled as the averments therein contained are false and misleading.
5. As to the fourth (4th) paragraph of count six (6) in which defendant contends that plaintiff should be estopped from claiming ownership of the property, plaintiff says that defendant has relied on the syllabus of a decision of the Supreme Court without showing any analogy between the case of that decision and the case at bar. In the Jackson et al., v. Mason et al. case, the property involved was covered by a 1836 deed by Jacob Warner to Daniel B. Warner and was a subject of a 1928 case before the Supreme Court. Two heirs of Daniel B. Warner ‘lived in open and notorious possession of D. B. Warner’s property up to the time of their deaths in 1935 and 1943; that at their deaths their wills disposing of their properties, including Lot No. 13, were probated without any objection from any one. In the absence of any traversal of this evidence, the Supreme Court held that a party who being, under no legal disability at the time, stands by and permits property which he claims to pass into the possession of another without objecting thereto at the time, such party is presumed to have assented to the transaction and is estopped from afterward raising claims. The previous Supreme Court’s decision on which this holding is based is McAuley v. Madison and Madison, [1896] LRSC 2; 1 LLR 287. And in this previous case, the Supreme Court invoked estoppel and said the claimants “are guilty of laches by allowing four subsequent conveyances of the said quarter of lot of land No. 13 to be made without enforcing their rights, to which in law the presumption is that that they either assented or that they had no legal claims on said parcel of land; and for which, the law under the circumstances will not lend Its aid for the recovery”.
6. That further to count five (5) above, in this case, there has been no open and notorious possession of the property uninterruptedly by the defendant for more 20 continuous years as was in the Jackson et al. case; there has been no subsequent conveyances of the property (not even a single one) as was in the McAuley case. In essence, laches would not lie where there is no change of position of the defendant after acquiring the property; and it would seem that defendant appears to want to change his position by hurriedly developing the property after protestations from plaintiff. But such conduct constitute total disregard for the law and a seeming arrogance. For these reasons, plaintiff prays that the fourth (4th) paragraph of count six (6) should be overruled.
7. That as to the fifth (5th) and sixth (6th) paragraphs of count six (6) of the answer, again defendant has the Jackson et al. v. Mason et al. case, which defendant has shown in count five (5) above to be totally irrelevant and immaterial to this case. More than that, defendant has cited a case Hejazi v. Zoe, said to be reported in 36 LLR, at page 61, but no such case is reported in 36 LLR, which makes the averment a fit subject for dismissal as sufficient notice has not been given to plaintiff to enable them to traverse that alleged legal citation as they have done for other legal reliance.
8. As to count 7 of the answer, plaintiff says that the evidence does not support defendant’s claim of laches or waiver, as plaintiff protested defendant’s occupancy of their property immediately after defendant became to show any open possession and use of said property. This was the only time that plaintiff became aware that defendant had acquired any interest in that property.
9. That as to count eight (8) of the answer, plaintiff reiterates count one (1) of their complaint.
10. As to count nine (9) of the answer, plaintiff says that it is not true that only natural persons may own land in Liberia; the Constitution provides that only Liberians may own real property in fee simple in Liberia. The statute reserves the power and right to a corporation “To purchase, receive, take by grant, gift, devise, bequest, or otherwise, lease or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with real and personal property, or any interest therein wherever situated. Associations Law, Section 2.2(d). As a corporation can own real property in its own name, the averments of count nine (9) have no legal basis.
11. Also as to count nine (9) above, plaintiff is a partnership; which means that the name is only a trade name and that the two (2) partners, directly and personally, exercise the rights and authority and carry the obligations and liabilities personally. Unlike defendant who is a naturalized citizen of Liberia (originally a Nigerian), and can anytime return to Nigeria, each of the partners of plaintiff is a natural born citizen of Liberia, entitled as a matter of constitutional right to own real property in fee simple. The fact that they, as natural born citizens of Liberia, choose to exercise their right to own property through a partnership, which under the law is not separate and distinct from them, does not vitiate that constitutional right to own property. And for these reasons, plaintiff prays Your Honor to overrule count nine (9) of the answer.
12. That as to count ten (10) of the answer, plaintiff says that they did not think it was necessary to proffer the letters of Administration when they had proffered the court’s decree of sale, which fully describes the Letters of Administration. Plaintiff gives notice that since the full description of the letters of Administration is described in the Court’s Decree of Sal e, if need be at trial it will request for a subpoena to be served on the clerk of court to produce proof of the existence of the said letters of Administration. Plaintiff contends that it is a principle In law that when an act is done, presupposing the existence of a prior lawful act, the law presumes the validity of that prior lawful act.
13. That as to count eleven (11) of the answer, plaintiff admits that the Court’s Decree of Sale was issued on 11th July 1985 and the administrator’s deed was issued to plaintiff in December 1987, outside of the statutory period for which the G. Koffa Nagbe Estate should have been closed. However, as said G. Koffa Nagbe Estate was not closed, only the Probate Court which issued the Letters of Administration could question the authority to John G.T. Nagbe to issue an administrator’s deed. But it is that every probate court, which accepted the Administrator’s Deed, pursuant to the Court’s Decree of Sale of December 1987, and had said Administrator’s Deed entered for probate, probated and ordered registered according to law. Whatever deficiency might have existed because John G. T. Nagbe’s authority to administer the estate had expired was cured by the Probate Court’s probation and registration of the administrator’s deed.
14. That also as to count eleven (11) of the answer, plaintiff says that defendant acquired its own Administrator’s Deed under an “Extended letters of Administration’ The only letters of Administration which had been issued before this “Extended Letters of Administration” is the letters of Administration to John G. T. Nagbe. Technically, if the letters of Administration to John G. T. Nagbe had no legal effect in 1987 when the Administrator’s Deed was issued to plaintiff, then that same Letters of Administration cannot be extended in 2008. Simply stated, to question the legality and efficacy of the letters of Administration in 1987 is to similarly question the legality and efficacy of the extension of that same letters of Administration in 2008. So, assuming without admitting that the Letters of Administration was void in 1987, its 2008 extension is also void. But with the entry of the Administrator’s Deed of 1987 in favor of plaintiff into probate, the Probate Court, by that conduct, had validated the Letters of Administration and the Court’s Decree of Sale on which John G.T. Nagbe relied to issue the Administrator’s Deed to plaintiffs.
15. That as to count twelve (12) of the answer, plaintiff says that most of the averments are a repetition of count eleven (11) of the answer, which have been adequately traversed by count thirteen (13) and fourteen (14) above. As to the time that the administrator’s deed was probated and registered, plaintiff says that the purpose of probation and registration is to record the transaction and thereby give legal notice to the public of the existence of the instrument which covers the transaction. Which means that even if a party fails to probate and register within four (4) months the instrument which vests in him an interest in real property but he does probate and register that instrument subsequent to said four-month period but before another person acquired an interest in that same property, the notice had been effectively given. That is, plaintiff probated and registered their administrator’s deed in December 1987, while Defendant acquired title to the same land in July 2008- a full 20years later. So the purpose for probation and registration was more than adequately complied with.
16. That as to count thirteen (13) of the answer, plaintiff acknowledges the existence of the case Knowlden v. Johnson et al., 39 LLR 345. Plaintiff also acknowledges Syllabus 23, which reads: “The statutory period for keeping open an estate is one year.” What this decision does not address is the effect of actions taken by an administrator pursuant to the letters of Administration after the one-year period, which actions are confirmed by the Probate Court by, for example, through the probation and registration of an administrator’s deed issued after the one-year period. As it is the probate court which has jurisdiction over all estates, said probate court may validate the action of an administrator after the twelve-month period when the administrator has conducted himself within the intent and spirit of his mandate. And this is exactly what happened in respect of the administrator’s deed issued by John G. T. Koffa to plaintiffs.
17. That also as to count thirteen (13) of the answer, plaintiff says that it cannot be expected that upon the expiration of the twelve-month period an administrator would abandon his office or do nothing until a new administrator is appointed or until his mandate is renewed. What is expected is that the administrator would continue to perform until his replacement is named or until his mandate is renewed; he may perform those function for which he has already obtained authorization from the Probate Court which appointed him. And the sale of the property to plaintiff had already been authorized and so John G. T. Nagbe was performing within the scope of his authority when he issued the administrator’s deed. There is no statute or court decision, as erroneously alluded to by defendant, which says that unfinished business, which had already been authorized by the Probate Court, may not be completed on the expiration of the 12-month period, and when completed, such action is null and void.
18. That further to count thirteen (13) of the answer, an administrator is an agent of the Probate Court which appointed him. When he acts and his actions are approved by the court; even when such action is outside of the 12-month period of his administration, once the action is confirmed by the Probate Court, it is deemed to be legal and valid action. When the Probate Court probated and registered the Administrator’s Deed issued by John G. T. Koffa, pursuant to the authority of the letters of administration and the Court’s Decree of Sale, the Probate Court confirmed the validity of the action of issuing that administrator’s deed. This is a basic principle of the law of agency.
19. That as to count fourteen (14) and seventeen (17) of the answer, plaintiff prays Your Honor to take judicial notice that the Survey Notice (defendant’s Exhibit “D/1”) which is dated 2nd June 2008, and the newspaper publications in the Inquirer newspaper of June 3, 2008 provide only that there would be a re-survey of land consisting of 42.5 acres in favor of the administrators of Koffa Nagbe. There was nothing in this notice to the effect that any portion of this land was intended to be deeded out to defendant or any other person. Defendant cannot therefore rely on these notices as sufficient notice to plaintiff that the land already deeded out to plaintiff by John G. T. Nagbe was under threat of being deeded out to defendant or anybody else.
20. That also as to counts fourteen (14) and seventeen (17), plaintiff says that that the Extended Letters of Administration was issued to Agnes B. Nagbe on the 3rd day of July 2008, and without submitting any inventory, as required by law, said Agnes B. Nagbe immediately thereafter applied for a decree of sale, which was issued on the 3rd day of July 2008. Obviously, the survey notices of June 3, 2008 and June 5, 2008, could not be said to relate to the sale of the parcel of land covered by the administrator’s deed to plaintiff because by that time Agnes B. Nagbe did not even have any right or authority to sell any portion of the property of which the late Koffa Nagbe died seized.
21. That also as to counts fourteen (14) and seventeen (17), plaintiff prays Your Honor to take judicial notice that the Court’s Decree of Sale was issued on the 10th day of July 2008, and barely one day thereafter (11th day of July 2008), the survey of the land was done and on that same 11th July, Agnes B. Nagbe issued the administrator’s deed to defendant. The Probate Court Rules provide that all instruments, documents and other papers other than wills, necessary to be probated, shall be offered in open court and recorded by the clerk in the minutes for the days sitting; after which it shall be bulletined for at least three days before being cried by the sheriff. Bulletin of these matters shall be placarded on the door of the court house for the required three days to give public notice of the profferer’s intention.
22. Clearly, defendant did not comply with the procedure for probation of a deed. Defendant never offered in the minutes of the Probate Court for the period, 11 July to 14 July, 2008, the administrator’s deed that may have been offered for probate; no notice was placed on the bulletin of the Probate Court for Montserrado County; and the full three-day notice was not given. That is, the same day that the administrator’s deed was presented for probate (14 July 2008), that is the same day on which it was probated. This rush with the probation of defendant’s administrator’s deed shows that defendant knew that the land in question was already owned by somebody else and he wanted to perfect his title hurriedly.
23. That as to counts fifteen (15) and sixteen (16) of the answer, plaintiff notes that the defendant has admitted t o the averments therein contained.
24. That as to count eighteen (18) of the answer, plaintiff affirms and confirms count eight (8) of its complaint.
25. Similarly, as to count nineteen (19) of the answer, plaintiff prays Your Honor to take judicial notice that the contents of the Legal Opinion of Counsellor Momodu Jawandoh and Counsellor David Jallah were repeated throughout the answer and have been traversed by the reply in various counts thereof of importance however is that plaintiff has a legal right to the property, which cannot be overridden by the meritless claim of equity. That is timely protests were made by plaintiff to defendant that the land had been sold by the Koffa Nagbe Estate to plaintiff as far back as 1986, and that plaintiff would enforce their rights to the property.
26. Plaintiff denies all and singular every averment of fact and statement of law contained in the answer and not made a subject of special traverse in this reply.
WHEREFORE, and in view of the foregoing law, facts and circumstances, plaintiff prays the dismissal of defendant’s answer thereby confirming all of the allegation and representations made in plaintiff’s complaint and reply, together with the recovery sought in the said complaint; with the costs of these proceedings ruled against the defendant, and to grant unto plaintiff such other and further relief which this Court in its judgment would seem just and fit.”
The foregoing were the allegations exchanged between the parties, and upon which the trial court was expected to proceed, firstly, to dispose of the law issues. After a hearing on the law issues, and the disposition thereof, the trial judge determined that the case be submitted to trial before a jury to hear and decide on the evidence which the parties were expected to produce and which was the outgrowth of the allegations set forth by the parties in their respective pleadings. The jury spent a total of six days listening to the evidence presented by the parties. Three of those days were utilized by the plaintiff/ appellant in presenting its side which it hoped would have persuaded the jury in determining that the defendant/appellee was liable to the plaintiff, thereby providing the basis for a judgment by the trial court that the plaintiff/appellant did hold a superior title to that of the defendant/appellee; that the defendant/ appellee was indeed encroaching upon the plaintiffs/appellant’s property; that the defendant/appellee should be evicted and ousted from the property and the plaintiff/appellant should be placed in possession thereof; and finally that the defendant/appellee should be held in damages as prayed by the plaintiff/ appellant.
The defendant/appellee for his part, also utilized three days of the trial period before the jury, hoping also that the jury would accept his evidence over that of t h e plaintiff/appellant and would find him not liable to the plaintiff/ appellant, thus setting the basis for the court to confirm his title and ownership to the property claimed by the plaintiff, and to thereby deny the plaintiff the damages prayed for.
At the close of the evidence, both oral and written, and which we shall examine in the course of this Opinion, the trial judge, on the written request of the parties, charged the jury, summarizing the facts and setting out the law governing such matter as was before the jury. The jury, having deliberated in their room of deliberation for a period, returned a verdict of not liable in favour of the defendant/appellee. The net effect of the verdict was that the defendant/appellee had title and the right of possession to the property in dispute, that the plaintiff/appellant had no right thereto, and that therefore the plaintiff/appellant was not entitled to possession of the property or to damages as prayed for. The plaintiff/appellant, not being satisfied with the verdict, and believing that the verdict was not in conformity with the evidence adduced by it, took exceptions to the same, and within the time allowed by law filed what we believe is one of the most extensive and elaborate motions for new trial. We believe that given the extensiveness and significance of the issues raised and the arguments and contentions advanced in the motion, and the fact that the plaintiff/appellant placed a premium on them as core to its case, manifested in its subsequent bill of exceptions, it is imperative that we recite the motion in its entirety so that we capture the full essence of the grounds and the bases set out by the plaintiff/appellant for requesting a new trial. The motion stated the following:
Subah-Belleh & Associates, Inc., movant/plaintiff in the aforesaid entitled cause of action most respectfully requests Your Honor and this Honorable Court to set aside the unanimous verdict of the petit jury and order a new trial for the following legal and factual reasons to wit:
1. Movant/plaintiff submits that Chapter 26, Section 26.4 “Post Trial Motion for New trial ” as found on page 209 of the Civil Procedure Law of Liberia states: “After a trial by jury of claim or issue, upon the motion of any party, the court may set aside a verdict and order new trial of a claim or separable issue where the verdict is contrary to the weight of the evidence or in the interest of justice.”
2. Further to count one (1) above, movant/plaintiff says that the unanimous verdict of the petit jury, which finds the defendant/respondent not liable in the aforesaid entitled ca use of action ought to be set aside and a new trial ordered because the said verdict is clearly contrary to the weight of the evidence adduced at the trial by movant/plaintiff and grossly inconsistent with the oral and documentary evidence adduced a t the trial by the def end ant/respondent.
3. Movant/plaintiff says that the evidence adduced by both movant/plaintiff and the respondent/defendant clearly and consistently established that both parties had a common grantor and that movant/plaintiff bought the land from the common grantor, obtained the requisite administrator deed therefor and had same probated and registered according to law for over twenty ( 20) years before the subsequent invalid sale made by the common grantor to the respondent/defendant. Movant/plaintiff says that the fact that both movant/plaintiff and respondent/defendant traced their title to a common grantor squarely puts the case within the well established rule that where both sides to a land dispute trace their titles to the same piece of property to the same grantor, “and have exhibited deeds in support of their respective claims, the more recent deed is the proper subject for cancellation.” Cooper v. Gissie et al., 28 LLR, p 202; Syl. 3; text at page 203.
4. Movant/plaintiff says that not only is this a typical case of a common grantor where a land earlier sold is purportedly resold by the dishonest landowner, the corroborated evidence consisting of oral and documentary evidence as well as admission of the respondent/defendant produced during the trial and comprising the records of the case abundantly and clearly establish the following facts:
A. That the piece of land in question was owned by one person, namely the Intestate Estate of the Late G. Koffa Nagbe.
B. That the first court appointed administrator of the Estate was John G. T. Nagbe who was succeeded by his wife and lately his son, Samuel Nagbe.
C. That the Estate by and that its first administrator, John G. T. Nagbe, sold the subject piece of land in question to movant/plaintiff in 1986 upon petitioning the Monthly and Probate Court for Montserrado County for requisite Decree of Sale, which the court granted; The Decree of sale was duly admitted into evidence during the trial and is part and parcel of the records of this case.
D. That upon the authority of the Decree of Sale obtained from the Probate Court, the administrator of the Estate executed an administrator deed in favor of movant/plaintiff, which deed was subsequently probated by the same Monthly and Probate Court and then registered according to law in 1987 the probated and registered administrator deed obtained by movant/plaintiff from the Intestate Estate of the late G. Koffa Nagbe was duly admitted into evidence during, trial and constitutes part of the records of this case.
E. That despite the completed sale and transferred of the subject property by the Estate to movant/plaintiff, the Estate through a successor administrator (who was the wife of the first administrator and did benefit from the consideration paid by movant/plaintiff to the Estate chose to sell to the respondent/defendant the same piece of land in 2008, more than 20 years after the sale to movant/plaintiff and although all parties including the respondent/defendant had notice of the plaintiff’s title by virtue of its due probate and registration with the requisite government agency. Movant/plaintiff submits that the foregoing facts clearly establish the superior title of movant/plaintiff to the subject property and that the verdict of the petit jury in finding the respondent/defendant non-liable in light of such facts is clearly contrary to the weight of evidence and therefore ought to be set aside and a new trial ordered.
5. Movant/plaintiff further says that while it was unable to locate and produce a copy of the Letters of Administration of John G. T. Nagbe, the administrator of the Intestate Estate of the late G. Koff a Nagbe, due to the effect of the Liberian Civil War and passage of more than twenty-five (25) years since the purchase of the land, the respondent/defendant’s claim that non-production of the letters of administration was fatal to movant/plaintiff’s title is false and not supported by the facts of this case and the laws in this jurisdiction.
First, no one denies that John G. T. Nagbe obtained letters of administration from the Monthly and Probate Court for Montserrado County and/or that he served as the first Administrator of the Estate. The respondent/defendant’ s own witnesses admitted in their testimony during the trial that John G.T. Nagbe was the first administrator of the state and that he was serving in that capacity until his death when his wife subsequently succeeded him upon due appointment. Further, the Decree of Sale issued by the Honorable Court under the authority of her Honor, Luvenia Ash-Thompson expressly acknowledged that John G. T. Nagbe was the administrator of the subject estate at the time in question and that the Decree of Sale was issued based on a petition he filed in his capacity as administrator of the Intestate Estate of the late G. Kofa Nagbe. Movant/plaintiff submits that where the fact of John G. T. Nagbe being the administrator of the Intestate Estate of the late G. Koffa Nagbe is not in dispute out in fact acknowledged and admitted by the respondent/defendant, its existence at the time of the issuance of the Court Decree of Sale is conclusively presumed and its production was therefore never at any time necessary under the circumstances to establish the validity of the title of movant/plaintiff.
6. Further to counts two (2) through five (5) of this motion, movant/plaintiff says that both (i) the Intestate Estate of the late G. Koffa Nagbe and (ii) the respondent/ defendant are estopped from questioning the valid, legal title of movant/plaintiff to the subject property in light of the facts of this case and the law controlling. In the specific case of the Estate, movant/plaintiff says the said estate has not denied and cannot deny that it sold the land to movant/plaintiff through its then acknowledged administrator whose signature and other acts the estate has not repudiated. The longstanding rule of the common law which is the la w in this jurisdiction is that a subsequent sale of a land earlier sold by the same person is invalid since by the first sale the seller no longer owns the land to be able to sell it. With respect to the respondent/defendant, movant/plaintiff says that the said respondent/defendant is estopped from challenging the title of the movant/plaintiff when the so-called purchase by the respondent/defendant was made with notice of the title of movant/ plaintiff by virtue of the probate and registration of movant/plaintiff’s administrator deed to the subject property; respondent/defendant cannot plead notice of its title or its survey of the subject land when it in fact and in law had notice of movant/ plaintiff’s pre-existing title to the land which it never heeded or used as a basis to name movant/plaintiff as one of the specific persons to be mentioned in the survey notice purportedly published by the said respondent/defendant.
7. Further to counts two (2) thru six (6) of this motion, movant/plaintiff says it produced five (5) general witnesses in persons of Willie Belleh, Pewu Subah, Cllr. Micah Wilkins Wright, Papa Kamara and Forkpa D. Karmon. Movant/plaintiff says further that Willie Belleh, Pewu Subah and Forkpa D. Karmon testified to its purchase of the subject property from the first administrator of the Intestate Estate of the late G. Koffa Nagbe, the late John G. T. Nagbe, as evidenced by (i) the Court’s Decree of Sale ordered issue and issued by the Monthly and Probate Court for Montserrado County in favor the late administrator, John G. T. Nagbe, authorizing the sale of the subject property, and (ii) the administrator’s deed duly executed by the said estate in favor of movant/plaintiff on the 14th day of November, A. D. 1986 and probated and registered on the 11th day of December, A. D. 1987 in Volume 460-85, page 391-392. movant/plaintiff’s three (3) witnesses also testified to the manner and form in which movant/plaintiff occupied the premises subsequent to the purchase transaction and these testimonies were corroborated by Cllr. Micah Wilkins Wright and Mr. Papa Kamara without any rebuttal evidence from respondent/defendant. Movant/plaintiff contends that the jurors ignored and disregarded the overwhelming pieces of oral and documentary evidence produced by it at the trial which speak volume of the superiority of its title to the subject property since its purchase is dated 14th November, 1986 and the respondent/defendant purchase is dated 22 years later (11th day of July, 2008) from the same grantor.
8. Further to count seven (7) hereinabove, movant/plaintiff says further that Cllr. Micah Wilkins Wright and Mr. Papa Kamara testified to movant/plaintiff’s actual and constructive possession of the subject property subsequent to its lawful purchase as follows:
Cllr. Micah Wilkins Wright:” In 1987, I was employed as staff counsel with the Maxwell Law Offices in Monrovia and during that time our law firm, the Maxwell Law Offices were legal counsel for the Lemminkainen Construction Company, this a company that engaged in the construction of roads under contract with the government of Liberia. At that time, Lemminkainen was renting or leasing properties for its headquarters or work site at the St. Paul Bridge Community on Bushrod Island going towards Brewerville. My interaction specifically with the plaintiff, Subah-Belleh was that somewhere during the course of that year 1987,the Nagbe family, John G.T. Nagbe family, who are lessors to our client, Lemminkainen wrote our client to say that they were jammed for money and they needed additional money to carry on some family matters. In exchanged for that Lemminkainen demanded that their lease agreement be extended and the Nagbe Family agreed and extended the lease of Lemminkainen. Also during that same period, John G.T. Nagbe family sold the same piece of land to Subah-Belleh and Associates. Subah-Belleh wanted to evict Lemminkainen from the property and Maxwell and Maxwell stepped into protect Lemminkainen and I was the lawyer of the firm assigned to handle that case. I convened several meetings with the Nagbe family and Subah-Belleh in the interest of Lemminkainen with a view to have Lemminkainen remain on the property because they had paid additional money to the Nagbe family but nevertheless, the Nagbe family had gone ahead and sold the property to Subah-Belleh and Subah-Belleh wanted to evict our client. As a result of the discussion and the negotiation between and among the three parties at our law office, it was agreed finally that Subah-Belleh would pay the money to the Nagbe family and the Nagbe family would reimburse Lemrninkainen of the money we paid up front as additional lease money so that Lemminkainen would move from the property and Subah-Belleh will take over the property in keeping with their purchase from the Nagbe family. The sticky point was the company had a lot of heavy equipment on the property. Subah-Belleh became unreasonable and wanted us to move immediately and we indicated that we would need time to find a new site. We finally came to a gentlemen’s agreement to an understanding that based on the payment b y Subah-Belleh to the Nagbe family and when they pay Lemminkainen the money, then we, would be given nine months to relocate, Subah-Belleh said nine months was too long, so the conference broke down at that point and we said alright.” (See sheets 10-14, 39th Day Jury’s Sitting, Thursday, May 2, 2013).
Papa Kamara also testified as follows:
In 1994, I was working with a company called FORMANCO, a logging company and we entered into an agreement with the Subah-Belleh to lease a property in St. Paul Bridge which I remember very well because I witness on the document where my Boss signed.” (See sheet 19, 39th Day Jury’s Sitting, May 2, 2013.)
9. Movant/plaintiff says that these compelling pieces of evidence do not only speak volumes to movant/plaintiff’s title to the subject property but also its actual possession of the premises subsequent to the consummation of the sales transactions. Movant/plaintiff says that it is a well settled principle of law In our jurisdiction that where two parties traced their title to the same grantor for the same property; the older deed/title controls and prevails, as evidenced by the following opinions of the Honorable Supreme Court of Liberia:
(a) “Where both sides trace their titles to the State for the same piece of property, and have exhibited deeds in support of their respective claims, the more recent deed is the proper subject for cancellation.” Cooper v Gissie et al.[1979] LRSC 35; , 28 LLR 202, Syl. 3: text at page 203.
(b) “Title, older title, and superior title have always been the controlling principles in cases of Ejectment.” Cooper v Gissie et al.[1979] LRSC 35; , 28 LLR 202; Syl. 6, text at page 210.
(c) “The establishment of a priority of a claim to title is a material element in an action of ejectment. Hence, a plaintiff in an ejectment action is required to furnish clear and convincing proof of title. “United Methodist Church v. Cooper et al.[2001] LRSC 11; , 40 LLR 449; Syl. 1, text at page 458.
(d) “There should be some title of interest, in law or in equity in the grantor to enable him to convey, and a deed from a person not in possession, or not shown to be the owner, establishes no title. “Mary F. Kpoto v. Percy Williams, Supreme Court Opinion, March Term, 2012.
(e) “Priority of claim to title is a material element in an action of ejectment.” Duncan v. Perry, 13 LLR 510, syl. 1.
10. Movant/plaintiff submits that while it was unable to exhibit or produce a copy of the letters of administration ordered issued and issued to its grantor by the Monthly and Probate Court for Montserrado County and based on which the administrator of t he Estate acted to convey title to it, the non-production of the letters of administration was neither indispensable nor of any legal significance given that the status of the administrator was never denied and also the fact the Decree of Sale issued by the Probate Court clearly expressed therein an acknowledgement of the valid legal capacity and status of Mr. John G. T. Nagbe as Administrator of the Estate then and that the said Decree of Sale was issued him based on his requisite petition for authority to sell the subject property. The laws simply require that a sale of an estate land by an administrator must first be authorized by the court through a Decree of Sale. This requirement of due authorization was met and evidenced during trial.
11. Further to count ten (10), movant/plaintiff says that there are adequate, competent and compelling pieces of evidence in the records to show that the late John G. T. Nagbe, the first administrator of the Intestate Estate of the late Koffa Nagbe was duly issued and did obtain letters of Administration from the court named herein to administer the above mentioned estate. Firstly, Prof. Willie Belleh testified in response to a question on the cross examination as follows:
Q. “Mr. Witness, according to your deed you purchased said property on November 14, 1986 and had same probated 1987, almost a year thereafter the purchase; Mr. Witness, please tell this court whether or not you were presented a letter of administration from your grantor and a decree of sale prior to the purchase of this land by you?”
A. “I can’t recall the facts but I know there was a letter of administration we saw, there was a decree of sale that in fact authorized the sale, without these two instruments, there would have been no sale and if we had not seen those two instruments, we could not have purchased the land from them.” (Emphasis added.) (See sheets 13 and 14, 36th Day Jury’s Sitting, Tuesday, April 30, 2013.) Secondly, Pewu Subah also testified as follows:
Q. “Mr. Witness, though on your deed instead of letter of administrator, it is letter of authority; but prior to buying a property, as reputable and educated as you are, did you have an opportunity to see the mother deed, the letter of administration and t he decree of sale?”
A. “Prior to and in the process of buying the property, we bought based upon the instruments what were exhibited to us. Mr. Nagbe showed us his letters of administration; Mr. Nagbe showed us his decree of sale.”
Q. ” Mr. Witness, you told this court and jury that like any other person you were shown a deed, a letter of administration and a decree of sale; but in your complaint, the documents you referred are totally absent. For the benefit of the trial, could you say why?”
A. “Well, we’ve gone through a long and difficult time in this country, where things have been looted, mislaid, and it is even lamentable that in many circumstance we have gone to clients, individuals to retrieve documents, which normally should be with state institutions. In our own sitting, all of the documents we exhibited were documents; and there are good as possible. We lost a number of documents, but unfortunately some were mislaid; either they were looted or got destroyed.” (Emphasis added.) (See sheets 22 and 23, 37th Day Jury’s Sitting, May 1, 2013)
Thirdly, witness Forkpa D. Karmon took the stand and testified in response to a question on the cross examination to the following:
Q. “Mr. Witness, you told this court that Mr. John T, Nagbe presented to you certain documents to convince Subah-Belleh to purchase this land and among those documents were letters of administration, decree of sale; were you privileged to see those documents?
A. “I was privileged to have seen them.”
Q. “Can you tell this court if you know the where about of those documents now if you know?”
A. “The three documents that I mentioned; the deed, the letter of administration and the decree of sale; the decree of sale he gave us a copy. Like I said, the letter of administration right now I don’t know where I placed the letter of administration and the deeds he give us, we have those deeds.” (See sheet 26, 39th Day Jury’s Sitting, Tuesday, May 2, 2013.)
Fourthly and more importantly, the current administrator of the Intestate Estate of the late Koffa Nagbe, Mr. Samuel Nagbe, took the stand for and on behalf of the respondent/defendant and testified on the cross examination as follows:
Q. “Mr. Witness, you just told this court that Agnes B. Nagbe is your mother and former administrator of the Koffa Nagbe Intestate Estate. Is that correct? Q. ”You also indicated that John G.T. Nagbe the late is your father?
A. Yes.
Q. “Mr. Witness, am I correct to say the late John G. T. Nagbe was the first administrator of the Koffa Nagbe Intestate Estate?”
A. “Yes.”
12. Further to count eleven (11) above, movant/plaintiff says that all of these pieces of evidence clearly speak to the authenticity that the late John G. T. Nagbe did obtain letters of administration for the administration of the Intestate Estate of the late Koffa Nagbe and this is further buttressed by the fact movant/plaintiff pleaded and exhibited the Court’s Decree of Sales ordered issued and issued in favor of the late John G. T. Nagbe, authorizing the sale of the subject property. Movant/plaintiff further avers that its grantor could not have obtained a Court’s Decree of Sales if he did not have letters of Administration issued by the Monthly and Probate Court for Montserrado County, Liberia.
13. Further to counts eleven (11) and twelve (12) hereinabove, movant/plaintiff submits that the admission of the current administrator of the Intestate Estate of the late Koffa Nagbe, Mr. Samuel Nagbe, that the late John G. T. Nagbe was the first administrator of the said estate is evidence in itself to prove that the late John G. T. Nagbe had the authority in act for and on behalf of the estate and he was further authorized by the Probate Court to dispose of the subject property by the issuance of the Court Decree of Sale.
14. Furthermore, movant/plaintiff contends that the absence of the letters of administration issued to its grantor does not create presumption that the letters of administration was never prayed for and obtained by its grantor prior to the purchase of the subject property; rather, the issuance of the Court’s Decree of Sale by the Monthly and Probate Court for Montserrado County creates an un–rebuttable presumption that the letters of administration was issued by the same court prior to the issuance of the Court’s Decree of Sales or better still the court ratified the previous act by the issuance of the Court’s Decree of Sale. The Supreme Court of Liberia has held that “When an official act has been done which can only be lawful and valid by the doing of certain preliminary acts it will be presumed that said preliminary acts have been done.” S. G. Saleeby v. Eli G. Haikal, 14 LLR, p. 537, text 543.
RATIFICATION: “Confirmation and acceptance of a previous act, thereby making the act valid from the moment it was done. A person’s binding adoption of an act already completed but either not done in a way that originally produced a legal obligation or done by a third party having at the time no authority to act as the person’s agent.” “Ratification may take place by express words indicating an intention to confirm the contract.” Black’s Law Dictionary, Seventh Edition, pages 1268-1269.
15. Movant/plaintiff says that the probation and registration of its title deed on the 11th day of December gave sufficient notice to the respondent/defendant and the world over that the subject property belongs to it without any strings attached but the respondent/defendant and all other persons involved in the 2008 sales transaction of the property failed and/ or neglected to conduct due diligence to inform themselves as to movant/plaintiff’s ownership of the property in question. The Honorable Supreme Court has also held that “By the probation and registration of its deed, the plaintiff had given notice to the whole world that it had acquired the property. This is against even the owner. Therefore, the subsequent sale by the same Estate to the defendant is invalid .” Kruah v. Neok, , [2004] LRSC 13; 42 LLR 148, Syl. 4.
The Court also defined NOTICE: “Notice is defined as information, advice or written warning, in more or Less formal shape, intended to apprise a person of some proceeding in which his interests are involved, or informing him of some fact which it as his right to know and the duty of the notifying party to communicate.” Kruah v. Neok, [2004] LRSC 13; 42 LLR 148; syl. 4.
16. Movant/plaintiff submits that the petit jury disregarded and ignored all the above mentioned pieces of oral and documentary evidence adduced during the trial as well as the admissions of the defendant and erroneously found the respondent/defendant not liable; thus, rendering gross injustice to movant/plaintiff and depriving it of the right to its property.
17. Further to Counts 1-16 hereinabove, movant/plaintiff says that respondent/defendant did not claim adverse possession but rather proffered a title deed which showed that he purchased the subject property in the year 2008; more than 22 consecutive years after movant/plaintiff’s purchased and possession of the property. Movant/plaintiff submit s that the Supreme Court has held that only statutory period of hostile possession may oust a title holder:
“To bar a plaintiff in ejectment who has title, by possession in defendant, strictly hostile to proof, is necessary not only that possession was taken under a claim that of the real owner, but that it continue for the period of limitation provided by the statute.” Dasusea et al. v. Coleman[1989] LRSC 3; , 36 LLR 102: Syl. 7, text at page 131.
Adverse possession: “To recover real property. An action to recover real property or its possession shall be barred lithe defendant or his privy has held the property adversely for a period of not less than twenty years. “Chapter 2, Section 2.12 of the Civil Procedure Law of Liberia.
18. Movant/plaintiff says that during the course of this trial, respondent /defendant tried to impress upon this court and the jury that movant/plaintiff did not have the authority to administer the Intestate Estate of the late Koffa Nagbe for the inclusion of the word “Letter of Authority” instead of “Letters of Administration. ” The first paragraph of the administrator’s deed reads: “KNOW ALL MEN BY THESE PRESENTS: That by virtue of the authority of will conferred on John G. T. Nagbe Administrator of the Estate of G. Koffa Nagbe deceased of Montserrado County, be Letter of Authority granted by the Monthly and Probate Court, County of Montserrado in its term, A. D. 1985”.
Movant/plaintiff maintains that the inclusion of the word “Authority” over the word “Administration” does not in any way, shape and form bring into question the authority of the late John G. T. Nagbe to administrator the Intestate Estate of “the late Koffa Nagbe nor does it question his authority t o sell the subject property t o movant/plaintiff for (i) the current administrator of t he Intestate Estate of the Late G. Koffa Nagbe, respondent/defendant’s own witness admitted that the late John G. T. Nagbe was the first administrator of the said estate and for him to have been t he first administrator; he must have obtained letters of administration from the Monthly an d Probate Court for Montserrado County (ii) no one including the defendant challenged and questioned the legality and/or validated of the Court’s Decree of Sale ordered issued and issued to the late John G. T. Nagbe authorizing him to sell the subject property, which he sold to movant/plaintiff and (iii) no one including respondent/ defendant challenged and/or question the signature of the late John G . T. Nagbe or claimed that he perpetrated fraud under the circumstances.
19. Movant/plaintiff submits that respondent/defendant also tried to impress upon the court and the jurors that he publicized the re-survey of the subject property and that the survey notice was sufficient notice to movant/plaintiff as they should have known or had reasons to know about the re-survey. Movant/plaintiff says that the respondent/defendant argument is untenable for the re-survey notice is very, very clear on its face. The notice called for the re–survey of 42.5 acres of land and requested and/or claimed the attention and presence of adjoining property owners to the said 42.5 acres of land. The property subject of this litigation is 2.9422 acres of land as opposed to 42.5 acres of land. In fact, the notice was specific as to the attention to be claimed; the last paragraph reads:
“This notice should claim the attention of the following persons: 1. J. Jones 2. MCSS -School System 3. Musa Keita 4. Wilmot L. Dennis; and 5. Isaac N. Tugbeh Wleh.”
Movant/plaintiff contends that it was not named in the notice. Moreover, the notice led for the re–survey of 42.5 acres of land and there was no way it would have known or had reasons to know that a re-survey of the subject property was been conducted by the respondent/defendant. Therefore, the verdict should set aside an d a new trial ordered.
20. Movant/plaintiff says that during the course of the trial of this case, it adduced evidence sufficient to show that it is the legitimate owner of the subject property and on acquiring knowledge of respondent/defendant’s claiming the property; it protested within statutory time and displayed its title documents to the respondent/defendant. Movant/plaintiff maintains, that it is the respondent/defendant w h o hurriedly attempted to change the position of the property and that of himself by investing on the property with the notion that he who invests on one’s property has better standing in the eyes of the law. The Supreme Court has spoken against such notion and opined the following:
“We cannot conclude this opinion without mentioning a matter because it is of increasing grave concern to this Court. There is this popular but totally wrong and completely mistaken notion that once a person builds on a land for which no legal title has been conveyed to him, said individual stands to enjoy the sympathy of a court of law; hence, title to said land will ultimately be transferred to the person by virtue of the construction and improvement made by the person on said land. What a monstrously mistaken notion!”
“In this jurisdiction, unless one holds a legitimate title to a piece of land, the quality of investment made thereon makes little or no difference whatsoever in the eye of the law. The size of one’s investment on land for which you hold no title does not and could not, as a matter of law, divest the legitimate owner of his/her title or deprive him/her of the right to hold and enjoy same, nor would construction or development confer legal title to the developer . Only by proper means of conveyance shall title be transferred from one person to another. Building on a land is not one of those means recognized by law in our jurisdiction.” Mrs. Joko Marwolo, Appellant, v. Mrs. Letitia Reeves, Appellee, Decided January 14, 2010.
21. Movant/plaintiff further says that respondent/defendant avers that he instituted an action in ejectment and obtained a favorable judgment from the Civil Law Court which was confirmed by the Supreme Court of Liberia and as a consequence thereof; he succeeded in evicting some squatters from the subject property. Movant/plaintiff neither confirms nor denies these averments but insists that it is the legitimate owner of the property and it was not a party of the said ejectment action; hence, it cannot be concluded by any judgment therefrom. “The rights of no one shall be concluded by a judgment rendered in a suit to which he is not a party.” William A. Johns v. William N. Witherspoon, 9 LLR, p. 153, Syl. 2, text at pages 154-155.
“It is a rule of universal application that the rights of no one shall be concluded by a judgment rendered in a suit to which he is not a party, and that a party cannot be bound by a judgment without being allowed a day in court. He must be cited or have made himself a party in order to authorize a personal judgment against him. A judgment rendered against a party who is brought in by motion as a defendant after trier trial is concluded is erroneous as to such party. “A court cannot render a valid judgment in favor of a party who is not before the court and is not represented in any manner in the action.” Same case, text at pages 154-155.
22. Movant/plaintiff says that the verdict of the petit jury is totally against the weight of the evidence adduced at the trial by it and that the said verdict is unjust and same should therefore be set aside and a new trial ordered so that the ends of justice is served.
WHEREFORE AND IN VIEW OF THE FOREGOING LEGAL CITATIONS, movant/plaintiff prays Your Honour and this Honourable Court to set aside the verdict of the petit jury and order a new trial so that the ends of justice will be served and grant unto movant/plaintiff that Your Honor will deem just and equitable under the circumstances”.
Having recited the motion for a new trial in its entirety and noted the grounds set out therein for the request by the plaintiff/appellant to the trial court o overturn the verdict of the jury, we believe that it is equally critical that we also recite the response of the defendant/appellee so that a full appreciation is accorded the ruling of the trial judge for his denial of the motion. Accordingly, the resistance to the motion, filed on May 16, 2013, and containing 31counts, is quoted herein below in its entirety, as follows:
Respondent in the above captioned cause of action prays Your Honor and this Honorable Court to ignore, deny, and set aside movant’s motion for new trial for the following factual and legal reasons to wit:
1. That as to the entire movant’s motion, respondent says that same should be denied in that said motion is filed in bad faith, and a misrepresentation of the statute controlling, and contrary to the intent and purpose of the framers of the statute with respect to Chapter 26, Section 26.4 “Post Trial Motion for New Trial”.
2. That the intent and purpose of the statute is that the court may set aside a verdict and order a new trial of a claim or separable issue where the verdict is contrary to the weight of the evidence or in the interest of justice. In the instant case, the evidence (documentary and oral) adduced during trial by respondent was in agreement to the verdict handed by the trial Jury.
3. Further to count two (2) above, respondent says that the jury’s verdict is a clear manifestation of the honest and critical evaluation carded on the evidence presented by the parties with respect to the ownership and purchase of land in this jurisdiction considering the attending requirements thereto.
4. That as to count one (1) of movant’s motion, respondent says that said motion is filed in mere fulfillment of trial requirement and same is of no legal merit as all issues germane to the determination of this matter in all documentary and oral evidence were taken into consideration by the triers ff acts.
5. That as to count two (2) of movant’s motion, respondent says and avers that said count is a misrepresentation of the evidence presented by the defendant/respondent as same was in complete agreement with the requirements established by law for the purchase of property in this jurisdiction.
6. Further, respondent submits that Chapter 25.6, Best Evidence, text at page 198 states that the best evidence which the case admits of must always be produced; that is no evidence is sufficient which supposes the existence of better evidence. In the instant, the plaintiff/movant failed to produce the best evidence which alone enables court to decide with certainty the matter in dispute. Morgan versus Barclay[2004] LRSC 22; , 42 LLR 259 (2004), syl. 11, text at page 272.
7. Respondent says that as to count three (3) of movant’s motion, same is an inadequate interpretation of the law in that the evidence produced by the plaintiff/ movant should be based on the strength of plaintiff’s title, especially in an ejectment action, as it has always been propounded in a long line of Supreme Court’s Opinions.
In the case Donzo versus Tate, Syl. 1, text at page 80[1998] LRSC 23; , 39 LLR 72, the Supreme Court held that a plaintiff in an ejectment suit must always prove and recover the property on the strength of his title and not on the weakness of the defendant’s title.
8. Further to count seven (7) above, respondent avers that while it is true that both plaintiff and defendant might have obtained their titles from the same Grantor, the G. Koffa Nagbe Estate, plaintiff recovery is not automatic. It is well settled in this jurisdiction that for one to recover in an ejectment suit, his title must be clear and convincing. That is, a clear and convincing title in the eye of the law means a title that is obtained through a genuine and valid conveyance short of any legal defect (s).
9. Further, respondent says that ejectment action involves contest over title where plaintiff claims the right to real property and the defendant also asserts ownership to the very same property. Consequently under such circumstance, the party with clear conveyance of land renders said conveyance invalid and a legal nullity. That the allegation by movant/plaintiff to the effect that its grantor had Letters of Administration without pleading and exhibiting said letters of administration leaves much to be desired as to whether movant/plaintiff’s grantor was ever issued Letters of administration by the Monthly and Probate Court. Respondent says that in an ejectment suit as in the instant case, movant/plaintiff was under a legal duty to have pleaded and exhibited in his complaint all documentary evidence giving him title to the disputed property but failure on the part of movant/plaintiff not to plead and attach all such documents is an incurable defect which renders the alleged conveyance invalid.
10. That as to count four (4) of movant’s motion, respondent says that plaintiff/ movant has continuously misrepresented the facts in this case by denying and justifying as it relates to the requirements with respect to conveyance of title by anyone claiming to be an administrator of an intestate estate. And the failure to adhere to these requirements renders any transaction carried out by said estate a legal nullity. Documentary evidence produced during trial confirmed that the parties had an agreement with respect to the following:
a) That the parcel of land in dispute was owned by the Late G. Koffa Nagbe Estate.
b) That G. Koffa Nagbe may have had several administrators, which can only be established by the preponderance of evidence with the production of valid letters of administration issued by the Monthly and Probate Court and said Letters may be extended upon request of the estate, if said estate is not closed within the period required by law.
c) That a lawful administrator may request court for a decree of sale if the aforesaid estate decides to dispose of or sell any portion of the property of said Intestate Estate.
d) Consequently, the administrator is authorized by law to execute a valid deed to a buyer who is required by law to probate and register said deed within the statutory period of four months as of the date of its execution.
Respondent says that failure on the part of any estate to observe the basic rules as indicated herein above, any deed executed by that estate to a would be buyer is a legal nullity in that said conveyance was not done and any deed issued thereto, even if probated and registered same is defective and cannot successfully be a winner in the contest of title in any ejectment action. In the instant case, plaintiff/movant miserably failed to attach and plead his grantor’s letters of administration, which is sine qua non to the issuance of Decree of Sale and which failure is an incurable defect which makes plaintiff’s motion a fit subject for denial and respondent so prays.
11. That as to count five (5) of movant’s motion, respondent says and avers that same should be set aside in that there is no showing that at the time of the alleged purchase by the plaintiff/movant, Mr. John G. T. Nagbe was a bona fide administrator of the Nagbe Estate to have given him the legal capacity to administer the aforesaid estate; and it is only with that authority coupled with a Decree of Sale issued by the Monthly and Probate Court that the alleged conveyance of title by the Administrator could have been considered legal and proper. The issue of capacity in law is germane to any litigation being adjudicated in this jurisdiction and the lack of capacity to make a conveyance of land renders said conveyance invalid and a legal nullity. That the allegation by movant/plaintiff to the effect that its grantor had Letters of Administration without pleading and exhibiting said letters of administration leaves much to be desired as to whether movant/plaintiff’s grantor was ever issued Letters of Administration by the Monthly and Probate Court. Respondent says that in an ejectment suit as in the instant case, movant/plaintiff was under a legal duty to have pleaded and exhibited in his complaint all documentary evidence giving him title to the disputed property but failure on the part of movant/plaintiff not to plead and attach all such documents is an incurable defect which renders the alleged conveyance invalid.
12. Further, respondent says that the present Administrator of the Nagbe Estate stated that he could not confirm with certainty that John G. T. Nagbe had letters of administration from the Probate Court to serve as administrator of the Koffa Nagbe Estate at the time he allegedly sold the property to movant/plaintiff. Further, under our practice and procedure in the jurisdiction, oral testimony must be confirmed by written proof, especially when it is required that there is a condition precedent to the performance of a particular act which will confirm legally the existence of such act and movant/plaintiff has failed to produce any evidence to substantiate the allegation that its grantor, John G. T. Nagbe had Letters of Administration issued by the Probate Court to manage the Intestate Estate of the late J. Koffa Nagbe. Respondent says further that the Supreme Court in the case Williams v. Steel & Steel, [1909] LRSC 4; 2 LLR 22, Sly 1., held that “oral evidence can in no case be received as equivalent to, or as substitute for a written instrument, for by so doing oral testimony would be admitted to usurp the place of evidence decidedly superior in degree”. Respondent says that movant’s attempt to produce letters of administration through oral testimony should not and cannot be received as a substitute for a written instrument (Letters of Administration).
13. That as to count six (6) of movant’s motion, respondent says and avers that the plaintiff is the one who is alleging that it is the owner of the subject property of this litigation as the consequence of which it instituted this action of ejectment to oust, evict eject the defendant from the said property. Under our law, the plaintiff in an ejectment suit should rely on the strength of his own title and not on the weakness of the defendant’s title. Further the Supreme Court held in Garnett et al. versus Allison[1994] LRSC 33; , 37 LLR 611, Syl. 2 & 9, that “In an ejectment action, the parties must necessarily rely on title, and when a pleading refers to a written instrument, a copy of the instrument may be annexed to, and made a part of the pleading”. The plaintiff was under an obligation in this action which involves competition of title to annex its grantor’s letters of administration convince the court that indeed Mr. John G. T. Nagbe was at the time a bona fide administrator to allegedly convey title to plaintiff/movant and convincing title will be entitled to judgment in his favour. In the instant case, defendant/respondent in the subject proceedings presented a clear and convincing title as compared to that of the plaintiff/movant.
14. That as to count seven (7) of movant’s motion, respondent says that all of plaintiffs witnesses alleged that plaintiff purchased 2.9422 acres of land from the Intestate Estate of the late J. Koffa Nagbe. In their testimonies they all made mention of purported letters of administration, Decree of Sale, and deed allegedly issued in favor of the plaintiff. However, the plaintiff, in its pleadings failed to annex its grantor’s letters of administration in its complaint and reply even though the issue was raised in defendant’s answer. Instead, movant/plaintiff vehemently tried to prove by oral testimony that John G. T. Nagbe had letters of administration at the time of the alleged conveyance of the disputed property to movant/plaintiff.
15. That as to count eight (8) of movant’s motion, respondent says that same is a misrepresentation and hearsay in that the testimonies of movant’s/plaintiff’s witnesses were never corroborated. Further, one of movant’s witnesses in person of Cllr: Wright when asked on the cross “what type of deed was issued by the Nagbe’s Family to movant/plaintiff? He answered: “I am not too sure, I do not remember now because it has been a long time but since it was an Intestate Estate, it would have had to be an administrator/s deed”. Another question posed to Cllr. Wright on the cross was whether he also saw any Letters of Administration or Court Decree, he answered “Honestly, I do not remember but again I come back to my answer to the effect that these are prerequisites for conveyance of property of an Intestate Estate. First the grantor must have letters of administration, second there must be a decree of sale to have an authority to execute a deed disposing of real property of an Intestate Estate. Further, the testimony of Mr. Papa Kamara did not corroborate with the testimonies of Cllr. Wright and other witnesses and therefore is of no legal relevance to these proceedings.
16. That as to count nine (9) of movant’s motion, respondent says that the legal authorities cited by movant in support of its motion fall short of the law in reference to the competition of title in an ejectment action wherein the better title should prevail. In the case Foday Kamara, Luseni Keith and Samba versus The Testate Estate of the late Isaac K. Essel, decided on July 5, 2012, the Supreme Court held that “it is true that this court has held in a line of cases that where the contesting parties derived their titles from the grantor, the party with the older deed holds a superior title and is therefore entitled to the property. These holdings, however, have been predicated on the assumption that both parties hold deeds that are issued legitimately. A person, for example holding a deed purporting to be from the same grantor as his or her adversary cannot assert that the mere fact that he or she holds an older deed makes such deed superior to that of his or her adversary where there are questions of legality or legitimacy of the deed held by him or her”. The Supreme Court also held in Kaizolu v. Cooper Hayes, Supreme Court Opinion, March Term, 2011, decided July 22, 2011 that while it is true that in an ejectment action where the parties’ titles are derived from the same grantor, the party with the older title is preferred, an older title whose procurement is shrouded in doubt and uncertainty, as in the instant, cannot prevail.
17. That as to count ten (10) of movant’s motion, respondent says that contrary to movant’s assertion that “non-production of the letters of administration was neither indispensable nor of any legal significance” is a fallacy that runs contrary to the best evidence doctrine which requires that the best evidence a case admits of must always be produced. In the instant case, only the letters of administration will convince the court that indeed Mr. John G. T. Nagbe was a bona fide administrator at the time of the conveyance of title to plaintiff/movant by the Intestate Estate of the late Koffa Nagbe. Failure on the part of movant to produce such crucial evidence (letters of administration) makes whatever conveyance to movant by his alleged grantor null and void.
18. That as to count eleven (11) of movant’s motion, respondent says and avers that same should be set aside in that a letters of administration is sine qua non for the issuance of a Decree of Sale and that these documents should claim the attention of a would be buyer, which should form part of the buyer’s records and file after a successful purchase transaction. It behooves the ordinary mind as to why the plaintiff will obtained a copy of the Decree of Sale and then tell this Honorable Court that its grantor “Mr. Nagbe showed us his letter of administration and yet did not plead nor annex same to his complaint. Why would plaintiff obtain from the Nagbe Estate a copy of the decree of sale and not the letters of administration? Respondent says this leaves much to be desired.
19. That as to count twelve (12) of movant’s motion, respondent reaffirms counts eighteen (18), and nineteen (19) of its resistance and says further that what is not totally done is not done at all. The fact plaintiff failed to annex its grantor’s letters of administration undermines the fact that Mr. John G. T. Nagbe was a bona fide administrator. What may be accepted as true may not be true especially when the holder failed to provide evidence to substantiate its allegation.
20. That as to count thirteen (13) of movant’s motion, respondent contends that the testimony of the current administration does not in any way confirm that Mr. John G. Nagbe was an administrator of the aforesaid Estate at the execution of the deed as claimed by the plaintiff. No verbal averments by any pool of witnesses will substantiate that indeed Mr. John G. T. Nagbe was a n administrator of the Koffa Nagbe Estate during the execution of the plaintiffs deed in 1986, in the absence of any documentary evidence thereto. Only and only the showing of the letters of administration issued by the Monthly and Probate Court will substantiate that Mr. John G.T. Nagbe was indeed administrator, especially when said administrator ship is being challenged in open court.
21. That as to count fourteen (14) of movant’s motion, respondent contends and avers that the presumption that the possession of a Decree of Sale means that there was letters of administration will only hold provided that the existence of the letters of administration was never challenged but once a challenge has been put forward to the existence of said letters then it behooves the holder to produce his formal document to prove its existence. The argument that when official act has been done which can only be lawful and valid by the doing of certain preliminary acts will be presumed that said preliminary acts have been done cannot prevail under the circumstance when these preliminary acts are challenged and when it is proven to the contrary that there is no evidence to show that these preliminary acts Were ever done. Presumption -legal Inference or assumption that a fact exists based on the known or proven existence of some other fact or group of fact. Black Law Dictionary, Eighth Edition, page 1223.
22. That as to count fifteen (15) of movant’s motion, respondent says said application will not lie in the instant case wherein the title of the older deed is shrouded in doubt and uncertainty for to do so will divest honest and valid title holders of property which has been procured by and through genuine purchase.
23. That as to count sixteen (16) of movant’s motion, respondent says same should not give any consideration by this court In that the jury’s verdict was mainly based on documentary evidence by the parties and testimonies of witnesses testifying on behalf of the parties. The jury found that the facts/evidence provided by the parties in these proceedings undoubtedly shows that the defendant herein exhibited clear and convincing proof of title meeting all prerequisites regarding the purchase of land from an Intestate Estate against that of the plaintiff whose title has a dark cloud hanging over it.
24. The Supreme Court held in Morgan versus Barclay[2004] LRSC 22; , 42 LLR 259 (2004), Syl. 13 & 14, that the “jury is the exclusive judge of the evidence and must in reason be exclusive judge as to what constitutes the preponderance of the evidence”. Further, the Supreme Court held that “where the Jury has reached a conclusion after having consideration to the evidence which is sufficient to support a verdict, the same should not be disturbed by the court’.
25. That as to count seventeen (17) of movant’s motion, respondent contends that the pleadings of these proceedings are self-explanatory in that defendant did not raise any issue of adverse possession in his answer contrary to the plaintiffs assertions herein. Instead respondent did plead and exhibit a title deed showing his ownership to said property and which deed was probated and registered within statutory time. Respondent requests Your Honor and this Honorable Court to take judicial notice of defendant’s answer and testimonies of his witnesses’ during these proceedings to substantiate his contention.
26. That as to count eighteen (18) of movant’s motion, respondent says that said count is baffling in that movant asserts in said count that “during the course of this trial, respondent/defendant tried to impress upon this court and jury that movant/plaintiff did not have the authority to administer the Intestate Estate of the late Koffa Nagbe for the inclusion of the word “Letter of Authority” instead of Letter of Administration”. Firstly, the movant/plaintiff was not the administrator of the late Koffa Nagbe Estate as is being insinuated in said count. Further, the use of the word authority over that of administration was a direct tempering with the formal form of deeds with respect to Intestate Estate and for which said count and the entire motion should be set aside and denied.
27. That as to count eighteen (19) of movant’s motion, respondent avers that said count is a lame duck argument in that the notice was very specific to the effect that a resurvey was to be carried out with respect to the 42.5 acres of the land owned by the Koffa Nagbe Estate. The survey notice was published in the newspaper and announced over the radio inviting all adjoining and interested parties to come with their surveyors, deeds and relevant documents. Even though, movant claimed to have been in possession of the subject property, it failed and neglected to be present or sent a representative at the said survey in June 2008. It is strange that movant would allege that he had no idea of the survey when he lives only five minutes away from the disputed property. Moreover, plaintiff claimed to have been in possession of the subject property of these proceedings and had lessees and other persons residing on the said property which could have made it impossible for defendant to go on the said property unnoticed since 2008.
28. That as to count twenty (20) of movant’s motion, respondent says that said count is a misrepresentation of the facts as contained in the pleadings and the witnesses’ testimonies are recorded in the minutes of this Honorable Court during these proceedings. The defendant observed all requirements with respect to the purchase of disputed land because he wanted to obtain a genuine and clean title free of any legal and/or factual defects. Hence, respondent pleaded his grantor’s letters of Administration, Decree of Sale and a valid administrator’s deed duly probated and registered for the same property therefore making his title superior to movant.
29. That as to counts twenty (20) and twenty one (21) of movant’s motion, respondent says and avers that at no time did the movant/plaintiff inform respondent about its ownership to said property until the construction work had reached an appreciable level. Movant/plaintiff even failed to register to defendant during the time of survey that it was the owner of the property. Again, movant/plaintiff also sat supinely during the trial and subsequent eviction of one Isaac Wleh Tugbeh and others from the property by respondent/defendant following the Supreme Court ruling which affirmed that indeed defendant/respondent is the lawful owner of the said property.
Thereafter, the defendant/respondent performed a ground breaking ceremony for the construction work on the property, all of these overt activities did not claim the attention of the plaintiff/movant except when construction work on the subject property had reached an appreciable level; and it was only at that time that the plaintiff/movant decided to contact the defendant/respondent. What a grimy trickery act.
30. That as to count 22 of movant’s motion, respondent says again that the unanimous verdict of the empanelled jury was in keeping with the evidence adduced at the trial especially the evidence presented by respondent and the jury being judges of the facts give weight and credibility to the respondent evidence, both oral and documentary, and that is why the jury came up with a unanimous holding respondent/defendant not liable and said verdict should not be disturbed and respondent so prays.
31. That respondent denies all issues of both facts and law contained in movant’s motion not made a subject of special traverse herein.
WHEREFORE, and in view of the foregoing facts, laws and circumstances respondent most respectfully prays that Your Honor and this Honorable Court will deny movant’s baseless and unfounded motion for new trial, affirm the unanimous verdict of the jury and enter judgment thereon and grant unto respondent any and all further relief this Honorable Court and Your Honor may deem just and legal under the law.”
As noted before, the motion quoted herein and the resistance, also quoted immediately above, formed the basis upon which the trial judge made his determination whether to overturn or affirm the verdict of not liable brought in favor of the defendant/appellee and which the plaintiff/appellant believed the jury was in error. The trial judge, His Honour J. Boima Kontoe, presiding over the trial court by assignment, entertained arguments by the parties on the 27th Day of May, A. D.2013, and entered a ruling on the motion on the 14th day of June, A. D. 2013,denying the motion and thereafter entering a final judgment wherein it confirmed and affirmed the unanimous verdict of the jury This is how the judge, in denying the motion, viewed the case, factually and legally, and how he reasoned in his ruling in reaching the conclusion to deny the motion and enter judgment confirming the verdict of the jury:
COURT’S RULING
This case emanates from a complaint filed by the plaintiff, Subah-Belleh Associates, through its partners, Pewu Subah and Willie Belleh, during the June, A. D. 2011 term of court, for a parcel of land lying and situated in Bushrod Island. The said property, according to plaintiff was part of the Intestate Estate of the late G. Koffa Nagbe, comprising of 2.9422 acres. Consequent to the said purchase, according to plaintiff, the plaintiff admitted the deed that was executed in its favor for probation and later took said deed to the archives for registration. Further complaining, against the herein named defendant, plaintiff further stated that in July 2008, the Probate Court issued extended letters of administration in favor of Agnes B. Nagbe, heir of Koffa Nagbe, based upon the strength of said letters of administration, Agnes Nagbe sold the property in question to Defendant Dr. C. Nelson Oniyama.
Defendant in response to plaintiff’s allegation as contained in the complaint said that the entire complaint is a fit subject for dismissal in that he, through a genuine purchase on the 11th day of July 2008, acquired the property subject matter of this ejectment suit. He however stated that prior to the purchase of the land, he hired the services of a qualified surveyor who prior to the survey published the notice in the Inquirer Newspaper that the property was about to be resurveyed, and that if anybody had interest in said piece of land, he or she should appear to protest or object to said purchase.
The said parcel of land was then resurveyed without any objection from anybody, including the plaintiff who lives a few yards from the property.
The defendant in his pleading stated that having purchased the land, he entered upon same with the view of starting construction thereon, but with stiff resistance from illegal occupants including one Tugbeh Wleh against whom he instituted an action of ejectment before this court. After the decision of this court was rendered in his favor, the Defendant appealed to the Honorable Supreme Court of Liberia and the Honorable Supreme Court of Liberia rendered judgment in favor of the herein named defendant. It was predicated upon the Honorable Supreme Court final judgment that the herein named defendant again entered on the property, built a fence around same and embarked on construction work thereon; and it was at that point in time that plaintiff instituted the action of ejectment against Defendant which is now a matter before this court for determination.
During trial of this case, both oral and documentary evidence were adduced by the parties which this court will now examine in order to determine this motion for new trial. And the issues which this court finds to be dispositive of this motion for new trial are:
1. Whether or not evidence adduced by plaintiff during trial is sufficient to hold the defendant liable?
2. Whether or not, plaintiff’s failure to have acted when it should have acted in the circumstances under consideration relative to the property in dispute makes the defendant the proper owner of the property in light of the litigation against Tugbeh Wleh and others that was determined finally by the Honorable Supreme Court of Liberia?
3. Whether or not the unanimous verdict returned by the Jury in favor of defendant should be set aside?
Annexed to plaintiff’s complaint is a deed alleged to be executed in its favor by the alleged administrator of the intestate of the late G. Koffa Nagbe. A close inspection of the deed annexed to plaintiff’s complaint raises eyebrows as to its validity. For in this jurisdiction there is no Instrument that conveys title to the ownership of real property referred to as “letter of authority”. More besides further critical analysis of said deed reveals that the document is a fudged instrument in which the word administration is replaced by the world authority. It is also the practice hoary with age in this jurisdiction that mandates the Issuance of letters of administration before any administration deed can be issued by anyone claiming authority as administrator of an estate.
In addition to these defects in the deed; It is also the law in this jurisdiction that any person who fails to have any instrument relating to real property probated and registered within four months after its execution, the title to such real property shall be null and void against any party holding a subsequent deed for property which was probated and registered within four months.
The plaintiff’s deed was executed on the 14th day of November, A. D. 1986, probated and registered on the 11th day, that is, about a year from the time of its conduct of plaintiff is violative of the law herein above quoted. Therefore the said deed in keeping with law and practice is defective and does not convey title to plaintiff in these proceedings as against the deed of the defendant which was probated and registered within statutory time. The Honorable Supreme Court of Liberia in the case C.B. Reeves, Appellant versus Mark Haida [phonetic], 1 LLR, Syllable 1, page 271, opined that in ejectment, the plaintiff must show in himself a legal title to the property in dispute to recover it by title here, it is meant the right of possession arising from descend or purchase and the right of entry. In yet another case, Augustus F. King, Sekou Freeman et al. versus Momolu Lamine, Fahnbulleh et al., 31 LLR, page 235, Syllable 4, the Honorable Supreme Court of Liberia held that a plaintiff in an ejectment action must recover unaided by any defect or mistake of the defendant and proof of plaintiff title must be beyond. This is not the case at bar; for plaintiff’s deed is defective in respect of it not having been probated and registered within statutory time, and the conveyance made by his Grantor without any letters of administration indicates that said Grantor did not have any authority under the law to have conveyed said property to the plaintiff. Assuming that plaintiff is the rightful owner of the property in question but he failed to react, or to claim his property in view all the activities that have taken place in connection of this property. That is the occupation of said property by Tugbeh Wleh which led the herein named defendant to have instituted an action of ejectment against said Tugbeh Wleh and other occupants under his control, a case that was heard and determined by this court, and appealed announced to the Honorable Supreme Court of Liberia, where the Honorable Supreme Court of Liberia rendered judgment in favor of the herein named defendant; and also the resurvey of the said property of the Nagbe Estate, where the plaintiff lives few yards away from said property, coupled with the attempt that was made by some residents of said area to have the President of Liberia break ground on said property for the construction of a market because of representation made my locals that the property was a public land; and all these activities taking place within the full view of the plaintiff, especially Willie Belleh who lives few yards away from said property, indicates that said plaintiff did not take action to protect their right to said property.
In the case Alhaji Momo Sherif versus His Honor Henry Pearson, 35 LLR, page 355, Syllable 4, the Honorable Supreme Court of Liberia held that every person is entitled to take advantage of the law in defense of his or her right; but the law gives no protection to him who abuses his own right.
Indeed the plaintiff in the instant case, showed an outright abuse of his right to the property in question and the jurors who heard the evidence in this case and visited the site where the property is situated and lying, and also the home of Mr. Willie Belleh, one of the partners of Subah-Belleh Associates, did reach their own conclusion in evaluating the truthfulness of plaintiff witness, Willie Belleh’s testimony that the land in dispute is not within his full view, when he commutes to and from work viz-a viz defendant witnesses’ testimony that one of plaintiffs, Willie Belleh, lives five minutes’ walk away from the property in dispute. For prior to the purchase of the land, the defendant in pursuit of clear business transaction requested for a resurvey of the land which was conducted after several publications were made in the Inquirer Newspaper thereby giving notice to the public including the plaintiff. But [it], (plaintiff), failed to react. In addition to that, after the survey, the property or the subject of litigation before this very court, and the plaintiff failed to react until the Honorable Supreme Court of Liberia rendered final judgment in favor of the herein named defendant before the plaintiff decided to institute action of ejectment against the herein named defendant.
Although there are laws “on the issue of adverse possession; but the end of the law is justice and so the law does not contemplate that an individual would sit on his right and refuse to act and claim property to the detriment of an innocent purchaser who had given public notice of the acquisition of the said property and had the painful task of proceeding against Individuals who occupied said property in the court of law, a matter which traveled all the way to the Supreme Court of Liberia and the Supreme Court rendered decision in favor of the herein named defendant. Many other events took place on the piece of property which is the subject of this proceeding. For example, the visit of the President of Liberia; all of these events felt on deaf ears and the plaintiff made no move; it was only when the defendant constructed a fence around the property that the plaintiff decided to institute this action of ejectment against the defendant. In the case Eliza Jackson et al. versus Benedict Mason, the Honorable Supreme Court of Liberia held that the person who is being under no legal disability at the time stands by and permits property which he claims to pass into the possession of another person without objecting thereto, is presumed to have assented to the act and is therefore estopped thereafter from laying claim to said property.
The sole purpose of the determination of the motion for new trial is to ascertain whether or not the verdict of the empanelled jury is contrary to the weight of evidence adduced during trial.
After a careful perusal of the records of this case, this court says that the unanimous verdict of the trial jury that visited the site of the land as well as the home of the partner of Subah-Belleh Associates, Mr. Willie Belleh, and reached, their own conclusion regarding the proximity of Mr. Belleh to the property in question, did arrive at the right conclusion in light of the evidence and the circumstance of this case, and therefore the unanimous verdict returned by the trial Jury ought not to be disturbed. 41LLR, page 48, syllable 10.
Wherefore and in view of the foregoing facts and circumstances of this case, the verdict of not liable being in harmony with the testimonies of the witnesses, and documentary evidence produced during trial of this case, and the law controlling, the unanimous verdict of the trial jury holding the defendant not liable is hereby confirmed and affirmed. And the court by virtue of this motion having been filed by the plaintiff, hereby adjudge the defendant not liable as a final judgment in this case. Accordingly, the clerk of this court is hereby ordered to issue a bill of cost to be taxed by the counsels on both sides after approval by the court for said bill of cost to be satisfied by the plaintiff. AND IT IS HEREBY SO ORDERED.”
It is from the above ruling and final judgment that the plaintiff/appellant, believing the judge to be in error in confirming and affirming the verdict of the trial jury, coupled with other errors attributed to the court in the course of the trial, noted exceptions to the ruling and judgment and announced an appeal to the Honourable Supreme Court. The appeal, having been granted by the trial judge as a matter of right guaranteed by the Constitution of Liberia and the Liberian Civil Procedure Law, the appellant filed within the time allowed by our statute, its bill of exceptions itemizing the several errors which it attributed to the trial judge and the jury praying the Supreme Court to review and reverse the before mentioned verdict of the jury and the judgment of the lower court. We quote the twenty count bill of exceptions, as follows:
Subah-Belleh and Associates, Inc., represented by its partners, Willie Belleh and Pewu Subah, plaintiff/movant in the aforesaid entitled cause of action, excepts to the several rulings and/or decisions of Your Honor for the following reasons:
1. That Your Honour committed reversible error when you overruled plaintiffs objection to a question asked plaintiffs first witness, Willie Belleh, during cross examination of the said witness. The question reads: “Mr. Witness do you recall defendant instituting an action of ejectment in the Civil Law Court, 2011, against one Tugbeh Wleh and others who were squatters on the said premises at the time?” (See sheet 16, lines 5 to 8, 36th Day’s Jury Sitting, Tuesday, April 30, 2013). Plaintiff says that the Witness was not the best evidence as the defendant would since this question relates to the alleged action instituted against a third party for the subject property. Moreover, the question was intended to entrap the witness.
2. That Your Honor was in error when you overruled plaintiffs objection to a question a s ked Its first witness, Willie Belleh, by the defendant’s counsel on the cross examination because the said question was irrelevant and immaterial to the issue at bar. The question reads: “Mr. Witness, please refresh your memory and tell this court of the distance from where this property is and from where you live?” (See sheet 16, lines 18 and 19, 36th Day’s Jury Sitting, Tuesday, April 30, 2013). Plaintiff says that the question was neither material nor relevant to establishing genuine title to the subject property. Chapter 25, at Section 25.4, “Relevance”, of the Civil Procedure Law, Title 1, Liberian Codes of Laws Revised, states: “All evidence must be relevant to the issue; that is, it must have a tendency to establish the truth or falsehood of the allegations or denials of the parties or it must relate to the extent of the damages.”
3. That Your Honor committed reversible error when you again overruled plaintiffs objection to the defendant’s counsel question posed to plaintiff’s first witness, Willie Belleh, during the cross examination when in fact the question presented an argument. The question reads, “Mr. Witness, you told this court that you have been in possession of this property from the date of purchase up to the time defendant purchased this land, yet you are telling this court that you are not aware that the defendant instituted an action of ejectment against one Tugbeh Wleh and others who were squatting on this land and yet you told this court that you live just fifteen minutes’ walk away from there and yet you are not aware that this action was instituted; Mr. Witness, I would like to state that in June, 2011, the defendant instituted an action of ejectment against Tugbeh Wleh and others squatters who were at the time encroaching on the said property, where were you then?” (See sheet 17, lines 6 to 16, 36th Day’s Jury Sitting, Tuesday, April 30, 2013). Plaintiff says that the question posed to the witness was argumentative and very indistinct; yet you overruled plaintiff objection and ordered the Witness to answer the question.
4. That Your Honor was also in error when you overruled plaintiff’s objection to defendant’s counsel question asked plaintiff’s first Witness, Mr. Willie Belleh, on the cross examination when the question was vague and indistinct as the proper premise was not laid. The question reads: “Mr. Witness, I read: the residents of the Borough of New Kru Town petition the government of Liberia to help them construct a market and that the government asked them to provide the land they illegally claimed the land, subject matter of this suit and recommended same to the President of Liberia. When the President went on the land for the earth ground breaking ceremony, she was then informed that the parcel of land which had been recommended to her is the bonafide property of Defendant, Dr. C. Nelson Oniyama and subject of litigation sent to the Supreme Court, are you aware of this?” (See sheets 18 and 19, lines 23-10. Tuesday, April 30, 2013. Plaintiff submits that the defendant’s counsel read from an instrument which was never presented to the witness to avail him the opportunity to refresh his memory neither was the proper premise laid to indicate the source and author of the instruments referred to.
5. That Your Honor committed reversible error when you overruled plaintiff’s objection to a question asked plaintiff’s second witness, Pewu Subah, by the defendant’s counsel on the cross examination. The question was “Mr. Witness, your partnership purchased the property subject of dispute base on the date indicated on the deed, can you also say when you took possession of said property? (See sheet 15, lines 14-16, 37th Day’s Jury Sitting, Wednesday, May 1, 2013). The question was asked merely to entrap the witness because the witness was not the best evidence, as the title deed would be.
6 . That Your Honor also committed reversible error when you overruled the plaintiff’s objection to a question asked the plaintiff’s second witness, Pewu Subah, during the cross examination when in fact the question was opinionative and expressed the o pinion of defendant’s counsel. The question was: “As a lawyer, I surmise from the lawyer report then that the defendant indeed had some form of title. Am I correct?” ( See sheet 17, lines 24-25, 37th Day’s Jury Sitting, Wednesday, May 1, 2013).
7. That Your Honor was in error when you overruled plaintiff’s objection to a question asked its second witness, Pewu Subah, on the cross examination because the question was irrelevant. The question reads, “Mr. Witness, please say for the benefit of the court and jury, since you were in possession of the property, when last did you visit the property in question ?” (See sheet 18, lines 10-12, 37th Day’s Jury Sitting, Wednesday, May 1, 2013). Plaintiff says that the question did not have the tendency to establish the truth or falsehood of the title in issue for the subject property.
8 .That Your Honor also committed reversible error when you overruled plaintiff’s objection to a question asked by the defendant’s counsel during the cross examination as the question misstated the witness’ testimony in chief. The question reads: “Mr. Witness, you told this court in your testimony in chief that the defendant tried to evict some people on the property; does that presuppose that you are aware that the defendant and some people were in court regarding this property?” (See sheet 18, lines 19-21, 37th Day’s Jury Sitting, Wednesday, May 1, 2013). Plaintiff submits that the Witness did not acknowledge that the defendant ousted and evicted some people from the land but rather, the witness was referring to the advice of Cllr. Johnny Momoh and what Cllr. Momoh believed was the rationale behind his advice to the parties. The witness testimony in this respect is found on sheet 9, lines 14-22, 37th Day’s Jury Sitting, Wednesday, May 1, 2013.
9. That Your Honor was in error when you overruled the plaintiff’s objection to a question asked by the defendant’s counsel to plaintiff’s second witness, Pewu Subah, during the cross examination because the question was an assumption and expressed the opinion of the defendant’s counsel. The question reads: “Mr. Witness, when the Supreme Court of Liberia is delivering opinion, all persons in the Republic are informed about it. Have you not heard that there was a judgment regarding the very property in dispute, in favor of the defendant by the Supreme Court?” (See sheet 20, lines 11-15, 37th Day’s Jury Sitting, Wednesday, May 1, 2013). Plaintiff submits that the question assumes that whenever the, Supreme Court delivers opinions all persons in the Republic are informed about it; therefore, the plaintiff should be aware of the o pinion of the Supreme Court in the matter referred to. This assumption is incorrect and worked prejudice to the detriment of the plaintiff in the eyes of the empanelled jury.
10. That Your Honor erred when you disallowed plaintiff’s objection to a question asked plaintiff’s second witness, Pewu Subah, by the defendant’s counsel during the cross examination because the question was asked merely to entrap the witness. The question reads: “Mr. Witness, you are Managing Partner of your firm, and you know for someone to sign on behalf of your firm, he must be authority; and I do know that Johnny Momoh is not an authority of Sherman and Sherman; so you agree with me that it is not Sherman & Sherman that signed this opinion. Is that correct?” (See sheet 21, Lines 6-10, 37th Day’s Jury Sitting, Wednesday, May 1, 2013). Plaintiff submits that the question is entrapping for the parties (both the defendant and the plaintiff) acknowledged and recognized Sherman & Sherman as their legal counsel and agreed for the firm to review their respective claims and submit to each party a legal opinion and recommendations. Cllr. Johnny Momoh wrote and submitted the opinion for and on behalf of the firm. For the defendant’s counsel to state that Cllr. Momoh is not an authority of Sherman & Sherman; therefore, Sherman & Sherman did not sign the o pinion is merely to entrap the witness. Moreover, the question is also argumentative.
11. That Your Honor committed reversible error when you denied plaintiffs motion for newly discovered evidence and sustained the defendant’s counsel resistance thereto.(See sheets 5-8, 39th Day’s Jury Sitting, Thursday, May 2, 2013).
12. That Your Honor erred when you sustained the defendant’s counsel objection to one of plaintiff’s questions asked its third witness, Cllr. M. Wilkins Wright, on the direct examination. The question reads, “Mr. Witness, for the benefit of this court and jury please read a copy of the letter you have in your possession?” (See sheet 13, Lines 22 & 23, 39th Day’s Jury Sitting, Thursday, May 2, 2013).
13. That Your Honor also erred when you sustained defendant’s counsel objection to a question plaintiff asked defendant’s witness Arah R. Kamara during the cross examination on the ground the question burdened the records. Plaintiff says that question did not burden the records for it was not previously asked and answered by the witness on the stand. The question was: “Mr. Witness, did you publish a survey notice to the public for the conduct of the survey of that 3.13 acres of land?” (See sheet 13, Lines 12 and 13, 40th Day’s Jury Sitting, Friday, May 3, 2013). Plaintiff says that the witness was not responsive to the previous question asked him; therefore, the follow-up question was intended to have the witness be more responsive.
14. That Your Honor committed reversible error when you sustained the defendant’s counsel objection to a question asked the defendant’s witness Arah R. Kamara while cross examining the witness because the question was intended to impeach the witness’s credibility. The question reads: “Mr. Witness, is this document titled Private Land Survey Authorization reference from DSVCILM and E/M0261 marked exhibit “D/1″in bulk an authorization for you to conduct the survey or an authentication of the existence of a title deed?” (See sheet 16, lines 4-7, 40th Day’s Jury Sitting, Friday, May 3, 2013). Plaintiff says that the witness is the best evidence since he procured the authorization to conduct the survey and conducted the survey on the strength of the authorization.
15. That Your Honor was in error when you overruled plaintiff’s objection to a question asked by the defendant’s counsel to defendant’s second witness, G. Wellington Toqwee, during direct examination and permitted the witness to identify and testify to documents the witness did not mentioned or referred to in his testimonies in chief. The question reads thus: “Mr. Witness, during your testimony you mentioned that indeed Cllr. Momoh prepared the letter of administration and the decree of sale on behalf of the Nagbe estate; were you to see these documents will you be able to recognized them?” (See sheet 22, Lines 15-18, 40th Day’s Jury Sitting, Friday, May 3, 2013). Plaintiff submits that the witness did not mention or refer to these instruments in his testimonies in chief; therefore, he was not the best person to have identified and testified to them for the testimonies was not from his certain knowledge. Furthermore, the defendant’s counsel question to the witness assumed facts not testified to by the witness and travelled beyond the scope of the witness’s testimonies. Hence, the witness should not have been permitted by the court to identify and testify to the instruments.
16. That Your Honor was in error when, over the resistance of plaintiff, you sustained the defendant’s motion, spread on the records of the Court, for (i) the Jurors to visit the site of the subject property and the private residence of one of plaintiffs partners, Willie Belleh, supposedly to ascertain the distance between the two and determine the reasonableness of the alleged failure of plaintiff to have immediately notice any intruder on the subject land. (See sheet 37 to 40, 40th Day’s Jury Sitting, Friday, May 3, 2013). Plaintiff submits that the visitation of the Jurors to the private residence of one of plaintiff’s partners was not only unwarranted but very prejudicial to the interest of the plaintiff for the basic reason that an action of ejectment is one about title and not the location or proximity of the private residence of one of plaintiff’s partners. Furthermore, the private residence of one of plaintiff’s partner was not on trial and same was not made the subject of the proceeding.
17. That your Honor committed reversible error when, over the resistance of plaintiff, you granted the motion for continuance spread on the records by the defendant during the 40th Day Sitting of the Court on Friday May 3, 2013. (See sheet 37 to 40 40th Day’s Jury Sitting, Friday, May 3, 2013). Plaintiff specifically says that the ruling granting the continuance requested by the defendant was inconsistent with the expressed ruling or Your Honor made on Thursday, May 2, 2013, in response to another request for continuance prayed for by the defendant and granted by Your Honor. The ruling of Thursday, May 2, 2013, reads in part, as follows: “However, the defendant is sternly warned to ensure that they come prepared with all their witnesses to testify in keeping with the certificate issued to this court that they are in touch with their witnesses and that they would appear in court to testify when the court so requires.” (See sheet 30, Lines 11-16, 39th Day’s Jury Sitting, Thursday, May 2, 2013).
18. That Your Honor committed reversible error when you failed and/or refused to instruct the empanelled jury in accordance with the plaintiff’s written instructions filed with the specifically, Your Honor failed and/or refused to instruct the jurors on (1) the principle superior title which states that where, both parties trace their title for the same property and have exhibited deeds in support of their respective claims, the most recent deed is the proper subject for cancellation; that the older title and superior title had always been the controlling principle for cases in ejectment and (iii) the Supreme Court opinion in respect of one’s investment on another’s property. Mrs. Joko Marwolo, Appellant v. Reeves, Appellee, decided January 14, 2010.
19. That Your Honor committed reversible error by and in the following statement contained in Your last instruction to the jury which were contrary to the facts and circumstances in the case at bar: “If you find from the plaintiff’s document to title that his grantor, John G. T. Nagbe, had letters of administration from “Montserrado County, at the time he conveyed the 2.9422 acres of land to the plaintiff in 1986 and that said deed issued by John G. T. Nagbe was probated and registered by the plaintiff within four months as of the date of execution, of said deed; then you will return a verdict of liable against the defendant. However, if you find from the documentary evidence that the grantor of the plaintiff, John G. T. Nagbe, did not have letters of administration at the time he executed the deed for the 2.9422 acres of land in favor of plaintiff and that said deed was not probated and registered In four months from the date of execution of said deed, then you will return a verdict of not liable in favor of the defendant. (See sheet 16 & 17, 3rd Day’s Chamber Session, Thursday, May 9, 2013). Plaintiff submits that the instruction is contrary to the records in these proceeding in that the plaintiff’s grantor (I) obtained and possessed a Court’s Decree of Sale from the Monthly and Probate Court for and in the County of Montserrado which was pleaded and exhibited; (if) the Decree of Sale expressly acknowledged the plaintiff’s grantor as the administrator of the Estate of the late Koffa Nagbe and that the said Decree of Sale had been issued based upon the application filed by the administrator/ plaintiff’s Grantor; thus confirming the fact that the plaintiff’s grantor did pray for and was granted Letters of administration as the administrator of the G. Koffa Nagbe Intestate Estate.
20. That Your Honor committed reversible error when, over the exception of the plaintiff , you recorded the verdict of the empanelled jury, which verdict was against the weight of the evidence adduced at the trial by the plaintiff.
21. That Your Honor committed reversible error when you denied plaintiff/movant’s motion for new trial and granted the resistance of the defendant/respondent where the verdict of the trial jury was manifestly against the weight of the evidence adduced at the trial by the plaintiff the established law hoary with age in this jurisdiction.
22. That movant/plaintiff excepts to all and singular your several rulings and decisions made during the hearing of this matter.”
We have painstakingly integrated in this Opinion the entire factual premise, complicated and extensive as they are, including the pleadings and rulings, and the culminating bill of exceptions, to ensure not only that they are adequately reflected and compared with the evidence adduced by the parties at the trial, but also to determine whether they, in conjunction with the evidence adduced at the trial, have met the standard laid by this Court in such ejectment cases. We believe that it is with such full presentation that the issues and arguments advanced by the parties can (1) be exposed to the most heightened methodical analysis by this Court; (2) be seen as providing the appropriate basis for the Court’s decision; and (3) be effusively grasped, appreciated and rendered testable as sound in the law.
The issues presented by the parties, based on the pleadings and other papers filed with the court, the evidence adduced at the trial, and several rulings made by the trial judge in the course of the trial, including the ruling on the motion for new trial and the final judgment entered by the court, are captured or structured by the plaintiff/appellant’s brief in the following wording:
“1. Whether or not in an action of ejectment involving parties who have a common grantor and whose deed relate to the same piece of land, the party first in time to acquire title from the common grantor and therefore possessing the older deed has superior title?
2. Whether or not an administrator’s alleged lack of authority to act on behalf of an estate may be pleaded by a third party to question the legality of a conveyance made by the intestate estate by and through the administrator, although the intestate has never disavowed or questioned the authority of the said administrator?
3. Whether or not the existence of the court’s Decree of Sale duly issued by the Monthly and Probate Court for and in the County of Montserrado to John G. T. Nagbe, authorizing the sale of the subject property to appellant/plaintiff presupposes the existence of the requisite letters of administration in favor of the said John G. T. Nagbe?
4. Whether or not a unanimous verdict may be set aside where the verdict is manifestly against the weight of the evidence adduced at the trial?”
The defendant/appellee, for his part, believing that the case presented five issues for the determination of this Court, in his brief, structured the issues in this manner:
”1. Whether or not the conveyance of title by an intestate estate which falls short of [the] statutory requirements renders said title defective and illegal?
2. Whether or not in an ejectment action an older deed whose procurement is shrouded in doubt and uncertainty can prevail?
3. Whether or not a person who sits by and refuses to assert his right over a piece of property that he allegedly claims to own, being free from any legal disabilities, can exert claim to said property and have the protection of the law when the ownership of the aforesaid property has already been determined by court?
4. Whether or not when an official act has been done which can only be lawful and valid by the doing of certain preliminary acts and failure to show evidence that these preliminary acts were done renders that official act a legal nullity?
5. Whether or not a neglect to have probated and registered any deed of conveyance with respect to real property within the time prescribed by statute renders said document null and void as against any party holding a subsequent instrument relating to such property which is duly probated and registered?”
Because of the similarities of the issues presented by the parties, this Court has decided to condense them into the following singular question which is reflective of the major contentions of the parties but provides the proper, comprehensive, and appreciative basis for conscious articulated analyses by the Court: As culled, the parties present as the main question, but amongst others, whether, where the contending parties to a land dispute secure their title deeds from the same grantor and the deeds purport to convey the identical parcel of land, the party who first secured his or her title deed or who holds the older title deed to the land automatically is vested with a superior title to the property and is therefore entitled to ownership and possession of the property? There are many other ancillary issues which flow this primary issue, especially the issue surrounding the defectiveness of the appellant’s transfer deed and the failure to comply with the law regarding the registration and probation of the said deed, which of necessity must firstly be answered in order to properly address the question of the older deed principle, which this Court has numerously articulated is not a principle that stands by itself but is dependent on a number of factors, especially the factor of the title being clear of doubt and uncertainty. Hence, we shall address these issues as we proceed with the Opinion.
In regards to the mentioned primary issue presented by the parties, the appellant contends that because it holds an older title deed for the property in dispute, as compared to the title deed held by the appellee, and that as it had exercised possession of the property for a long and extended period of time prior to the appellee securing his title deed from the same grantor, for the same parcel of land, it, the appellant, therefore holds a superior title, and hence, under the law, it is entitled to the property. As articulated by the appellant, the contention presupposes that the principle holds regardless of whether there are defects in the appellant’s title, whether there are defects in the appellants deed, whether there are defects in the entire transaction of conveyance, whether the prescription of the law was followed in order to vest legal title, or whether the appellant’s deed is free of uncertainty or other legal insufficiencies to vest legal title.
However, because we believe that it is critical to answering the question and being fully cognizant that any answer to the question must necessarily take into consideration all of the factors stated above, we proceed to the analysis focusing on determining whether any of the factors are present as affects the title asserted by the plaintiff/appellant. In that connection, let is review the positions of the parties.
The appellant, in support of its claim that it holds a superior title deed to the property, and that it is therefore entitled to ownership and possession of the property, not only exhibited with its complaint several lease agreements which it had executed with a number of lessees, but it also cited the Court to a number of Opinions delivered by the Supreme Court, wherein the Court said that when two parties assert claim of title or ownership to an identical parcel of land conveyed by the same grantor, the party holding the older title deed has a superior right to ownership of and possession to the property. In Cooper v. Gissie, [1979] LRSC 35; 28 LLR 202 (1979), cited by the appellant in support of that position or the principle, the Supreme Court, speaking through Mr. Justice Pierre, and relying on the cases Walker v. Morris, [1963] LRSC 42; 15 LLR 424 (1963) and Davies v. Republic, 14 LLR 246 (1960), stated the following: “Where both sides trace their titles to the State for the same piece of property, and have exhibited deeds in support of their respective claims, the more recent deed is the proper subject for cancellation.” ld., at 203. The Court, further relying on Duncan v. Perry, 13 LLR 510 (1960), text at 514-515, and Johnson et al. v. Beyslow,11LLR 365 (1953), text at 377, opined even more elaborately that “title, older title, and superior title, have always been the controlling principle in cases of ejectment both in the English and American courts, and we know of no time when they did not control decisions in cases of ejectment in the courts of Liberia. We still maintain that position today.” This Court takes further note of the case Lartey et al. v. Corhel et al.[1989] LRSC 14; , 36 LLR 255 (1989), which similarly spoke to the issue, as did the other cases cited by the appellant, and particularly the position articulated by the Court in these words: “Where parties contesting title to real property derive their respective rights from the same source, the party showing the prior deed is entitled to the property”; or as put another way by the Court: “In normal circumstances, where two conflicting deeds of conveyances exists and there is a dispute over their legal validity, the one issued subsequent to the first is inferior. Under the elementary principle of law governing deeds relating to realties, the latter deed must yield.” ld., text at 258. [Emphasis supplied]
The cases mentioned above, of which excerpts were quoted, reflect the reliance and position of the appellant and the dissenting Justices in asserting that, as the plaintiff/appellant holds an older title deed to the property in dispute, its title is superior to that of the appellee. We do not dispute that the Supreme Court has opined, as appeared in the cited cases and even in many other cases where disputes similar to the instant case, were brought before the Court for resolution. See National Africa First Pentecostal Church v. Davies et al., Supreme Court Opinion, March term, 2009, decided July 23, 2009; Dasusea et al. v. Coleman[1989] LRSC 3; , 36 LLR 102 (1989); Biggers v. Wesley, [1977] LRSC 30; 26 LLR 146 (1977).
But the appellee has countered the assertions made by the appellant regarding its superior title to the property by virtue of its older deed and its long standing possession of the property, that the principle is not applicable where the plaintiff’s transfer deed or title is tainted with uncertainties and gross failure to comply with the law, which failures deprives the defaulting party of superior title where another party who also holds title to the property has complied with the law. But even more importantly, the defendant/appellee asserts that under the law, a plaintiff’s title must be clear and free of doubts and uncertainties and the burden of proving a clear title in an ejectment case rests not on the defendant but on the plaintiff, a burden which is not exonerated by any alleged defects in the defendant’s title.
Thus, interestingly, the defendant/appellee did not deny and still does not deny that the appellant held a title deed that predated that of the appellee, but he contends that the appellant’s title deed lacks legal validity, not only because it had failed to meet the statutory requirements for legitimacy, thereby being shrouded. in doubt and uncertainty, but also that the appellant had suffered waiver and laches and was therefore estopped from asserting or claiming title to the subject property in dispute. The appellee argues that the mere fact that the appellant holds a title deed that is older than that held by the appellee does not, by virtue of having such older deed, ipso facto gives the appellant superior title over the title deed of the appellee.
Seeking to distinguish the ordinary case where one party holds an older title deed as compared to another contending party from the instant case, which the appellee contends is without the ambit of the older deed principle contained in the cases cited and relied upon by the appellant, the appellee sets forth the following arguments: (a) That the person who executed the appellant’s title deed and conveyed the property to the appellant was without the authority to do so since he had failed to exhibit any letters of administration upon which he relied for his authority to execute the transfer deed and that while a decree of sale was introduced as evidence authorizing the sale of the property in dispute, both instruments, the appellee asserts, were necessary prerequisites for the sale of the property in question since the property belonged to an intestate estate and was not the personal property of the purported executor of the deed; (b) that the deed exhibited by the appellant was not probated and registered within the statutory period of four months of the execution of the deed, thus rendering the appellant’s title deed as voidable and not valid as against any third party to whom the property was subsequently conveyed and who had secured the probation and registration of his deed within the time allowed by law; (c) that the appellant’s deed was registered more than a year prior to its execution and long before its probation, both of which the law forbids; and (d) that the appellant’s deed was tainted with doubts and uncertainties.
With regard to the claim that the appellant’s deed was invalid because it was executed by a person who had no authority to execute the said instrument, that conclusion being drawn by virtue of the fact that the appellant had failed to make proffer of the letters of administration to the complaint showing or evidencing the authority of the executor of the deed, purporting to be administrator of the Intestate Estate of the late John G. T. Nagbe, the appellee cited the Court to the case Garnett et al. v. Allison[1994] LRSC 33; , 37 LLR 611 (1994). In that case, the Court held that “in an ejectment action, the parties must necessarily rely on title, and when a pleading refers to a written instrument, a copy of the instrument be annexed to and made a part of the pleading.” We are told also that in accord with the foregoing, a plaintiff, in order to be adjudged to have title to property in dispute, must show that his or her title deed is “clear, genuine and sufficiently descriptive that it could be relied upon by the jury to reach the conclusion that the plaintiff [is] entitled to the land in dispute.” Nyumah and Freeman v. Kontoe and Payne, [2000] LRSC 2; 40 LLR 14 (2000).
Additionally, in arguing that this Court not apply to the instant case the principle and cases cited by the appellant, the appellee relied upon and cited the Court to a further number of cases wherein this Court held that the mere fact that a plaintiff may have a title deed that predates or is older than that held by the defendant does not ipso facto render the plaintiff’s title deed superior to that of the defendant or vests in the plaintiff the right of title, ownership or possession to the property in dispute. Thus, we are called upon to look at the Court’s holding in the recent case Kiazolu v. Cooper-Hayes, delivered on July 22, 2011, at the March 2011, Term of Court, wherein this Court said: “While it is true that in an ejectment action where the parties’ titles are derived from the same grantor, the party with the older title is preferred, an older title whose procurement is shrouded in doubt and uncertainty, as in the instant case, cannot prevail.”
Additionally, with regards to the appellee’s allegation that the plaintiff’s deed had lost its validity, he states that even if an assumption is made that it had such status originally, or that its strength was superior to that of the defendant’s, the superior strength principle was not applicable to the instant case because of the failure by the appellant to probate and register the said deed within four months, as prescribed by statute. The appellee, believing that his position was supported by the statute and case law in this jurisdiction, referred the Court to Chapter 1 of the Property Law, Title 29, Liberian Code of laws, sections 2 and 5. Section 2 of the said law reads: “All persons acquiring any interest affecting or relating to real property shall appear in person or by attorney-at-law before the probate court for the county or territory in which such real property is situated, or should there be no probate court in the area where such real property is situated, then he shall appear before the nearest probate court to the area involved, within four months of the date of execution of the instrument, and have the deed, mortgage or other instrument affecting or rebutting to the real property publicly probated; provided, however, that this provision shall not apply to persons acquiring an interest affecting or relating to real property prior to October 1, 1962”.
Section 5 of the same law reads: “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 property shall be void as against any party holding a subsequent instrument affecting or relating to such property, which is duly probated and registered.”
As for the case law relied upon, the appellees cited the Court to the case Salifu v. Lassannah, [1936] LRSC 13; 5 LLR 152 (1936), wherein the Supreme Court, speaking through Mr. Justice Dixon, and relying on 2 Rev. Stat. 196, §1302, said the following of the instance where there is a failure to comply with the statute relative to probation and registration of a transfer deed: “If any persons shall fail to have any instrument relating to real estate probated and registered, as herein provided, within four months after its execution, his title to such real property shall be null and void as against any party holding a subsequent instrument relating to such property, which is duly probated and registered.” ld., at 159. The appellee asserts further that the principle stated in the Salifu case remains couched and entrenched in our statute today, and that the Supreme Court has consistently adhered to the principle in its many decisions handed down subsequent to the Salifu case regardless of the number of years which the defaulting party purportedly held title to the land.
Moreover, the appellee asserts and we are aware of the long line of decision of this Court on the issue, which not only remains in force today but which are relevant to the disposition of the issue under review and discussion. Barbour v. Bickersteth, 8 LLR 183 (1944); Davies-Johnson v. Early, [1965] LRSC 24; 17 LLR 3 (1965); Cooper v. Brapoh, 17 LLR 27 (1965); Dundas v. Botoe, [1966] LRSC 53; 17 LLR 457 (1966); Morris v. Jackson et al.[1969] LRSC 30; , 19 LLR 311(1969); Bailey v. Sancea, [1973] LRSC 36; 22 LLR 59 (1973); KissdelI v. Diago, 22LLR 329 (1973); Cooper et al. v. Davis et al.[1978] LRSC 57; , 27 LLR 310 (1978).
Also, with reference to his contention that the appellant’s suffered laches and waiver by not asserting its alleged right to the property in the face of a series of open and significant events relating to the property, and that therefore the appellant is estopped at this stage from asserting title to the property, the appellee cited and relied on the following Opinions handed down by the Supreme Court: Jackson et al. v. Mason et al.[1975] LRSC 7; , 24 LLR 97 (1975), wherein Mr. Justice Pierre, speaking for the Court said: “if a party who, being under no legal disability at the time, stands by and permits property which he claims, to pass into the possession of another without objecting thereto at the time, such party is presumed to have assented to the transaction and is estopped from afterwards raising claims thereto.”, ld., at 108. See also A. Hejazi Corporation v. Zoe and Liberian-American Insurance Corporation, [1995] LRSC 31; 38 LLR 61 (1995),cited by the appellee, wherein the exact principle and quotation were reiterated word for word by the Supreme Court.
Further seeking to buttress its position on the issue, the appellee also referred the Court to the case Sheriff v. Pearson, Thorpe and Carew, [1988] LRSC 65; 35 LLR 355 (1988), which, as with other earlier cases (Republic v. Kenneh[1985] LRSC 22; , 33 LLR 114 (1985); British Petroleum Midwest Africa v. Kromah, [1984] LRSC 13; 32 LLR 58 (1984); LAMCO v. Bamkor, [1983] LRSC 126; 31 LLR 537 (1983); Dugbeh et al. v. Lewis et al.[1981] LRSC 36; , 29 LLR 359 (1981); Pongay v. Obey Korlubah, [1982] LRSC 9; 29 LLR 500 (1981), set forth and subscribed to the principles that: “Every person is entitled to take full advantage of the law in defense of his right but the law gives no protection to him who abuses his own ,
rights” and “he who is silent when he should speak assents.” ld., at 359.
The foregoing are the major arguments advanced by the parties, along with other subsidiary arguments, in support of their respective positions. This Court, as noted earlier, is fully aware of the several principles outlined by the parties and is cognizant that the application of those principles depends on the sets of facts and circumstances presented in a particular case. It is with this background that we proceed to review the title positions of the parties, analyze those positions, and make a determination or conclusion we deem legal and appropriate.
Beginning with the title assertion made by the plaintiff/appellant, and the counter-claims made by the defendant/appellee, in response to the plaintiffs/ appellant’s claims, we believe it is important that we articulate the standard which, in this jurisdiction, ejectment cases are expected and must adhere to. This is what this Court has said with regards to the principle: Every court of law is forbidden from entering a judgment in favor of a plaintiff in an ejectment action due to, on account of and based upon imperfections, defects and deficiencies discovered in the title of the party defendant. White v. Steel, [1909] LRSC 4; 2 LLR 22 (1909); Miller v. McClain, [1956] LRSC 20; 12 LLR 356 (1956); Neal v. Kandakai, [1966] LRSC 72; 17 LLR 590, 596 (1966); Tay v. Tay [1968] LRSC 18; 18 LLR 310, 315 (1968); Jackson et al. v.Mason[1975] LRSC 7; , 24 LLR 97, 110 (1975); Cooper v. Gissie et al.[1979] LRSC 35; , 28 LLR 202, 210 (1979); The United Methodist Church and Consolidated African Trading Corporation v Cooper et al.[2001] LRSC 11; , 40 LLR 449, 458 (2001). Indeed, the law makes it mandatory, as stated in Opinions of the Supreme Court, literally without dissent, that a plaintiff in every action of ejectment must recover on the strength of his own title and cannot and should not prevail as a consequence of a weakness in the defendant’s title. This principle has been unswervingly applied in the disposition of ejectment suits from the establishment of Liberia’s court system. See Bingham v. Oliver, [1870] LRSC 1; 1 LLR 47, 49 (1870); Couwenhoven v. Beck, [1920] LRSC 4; 2 LLR 364 (1920); and William et al. v. Karnga, et al., 3 LLR 234 (1931).
In Duncan v. Perry, 13 LLR 510 (1960), this long held principle was further re-articulated by the Supreme Court when it held:
“The primary objective in suits of ejectment is to test the strength of the titles of the parties, and to award possession of the property in dispute to that party whose chain of title is so strong as to effectively negate his adversary’s right of recovery. In all such cases the plaintiffs right of possession must not depend upon the insufficiency or inadequacy of his adversary’s claim; he must be entitled to possession of the property upon legal foundations so firm as to admit of no doubt of his ownership of the particular tract of/and in dispute.” [Our Emphasis].ld. 515
Yet, notwithstanding the foregoing, our colleagues have decided today, by the stroke of a pen, but without the support of the law, to assume a position in the instant ejectment case which has the net effect of setting aside this fundamental law controlling ejectment causes in this jurisdiction. We have resisted the temptation to form part of that onslaught on the law.
It is important, therefore, that we elaborate more on what the position of this Court has been and what the law is in this jurisdiction. Mr. Justice Jangaba laid out the broad premise of ejectment cases when, speaking for the Court in the case Tulay v. Salvation Army (Liberia) Inc., he opined that “the primary objective in suits of ejectment is to test the title of the parties, and to award possession to the property in dispute to that party whose chain of title is so strong as to effectively negate his adversary’s right of recovery.” [2002] LRSC 29; 41 LLR 262 (2002), text at 275. But it was not in the Tulay case that the principle was first enunciated. Indeed, it was barely three years prior to the Tulay case that the Supreme Court unmistakably subscribed to the principle, later reiterated by Mr. Justice Jangaba, as the central and fundamental position of the Court in ejectment matters. In that earlier case, Donzo v. Tate, [1998] LRSC 23; 39 LLR 72 (1998), Mr. Justice Morris, espousing the position of the Court with respect to the claims of title to disputed realty advanced by the contending parties in an ejectment suit, had echoed the principle in the identical words. ld., at 84. This Court further reiterated the principal objective in determining title in ejectment actions in the more recent case Dossen v. Bawo, Captan et al., decided August 16, 2012, at its March Term, A. D. 2012.
While acknowledging its adherence to the broad principle stated above, the Court was always careful in articulating and stating firmly the cardinal, indeed the core, principle which recognized the presupposition that the principle stated above held where a plaintiff had sworn, by a clear, sufficient and acceptable preponderance of the evidence, entitlement or title to the property. In the Dossen case, for example, the Court articulated, in very specific and clear terms, the core principle that had emerged out of, which governed and which formed the premise upon which the more general principle in ejectment action depended. That principle, believed to be cardinal to the determination of title in ejectment cases, is that the duty of the burden of proof in ejectment cases rests primarily, indeed exclusively, on the plaintiff. Watamal Cooper et al. v. Kieta, Supreme Court Opinion, October Term, 2012, handed down January 4, 2013. Under this core principle, enshrined in the jurisprudence of this jurisdiction is that a plaintiff is required to prove, by a preponderance of evidence, the strength of his or her title deed, rather than rely on the weakness of the defendant’s title. Accordingly, this Court has consistently held that while it acknowledges that where a plaintiff in an ejectment action has shown valid and legal title to property, he or she is rightfully entitled to recover the said property upon the strength of the title, Tulay v. The Salvation Army (Liberia) Inc., [2002] LRSC 29; 41 LLR 262 (2002), text at 275, it has unequivocally maintained that the strength of the plaintiff’s title must be based on proof of title in the plaintiff rather than on any deficiency in or weakness of the defendant’s title.
In all of those cases, the Supreme Court has said in clear, succinct and unambiguous terms that “a plaintiff’s title is not presumed but must be established” [Reynolds v. Garfuah[2003] LRSC 5; , 41 LLR 362 (2003)]; that the plaintiff must rely on proof presented by him or her to evidence title to the land claimed rather than rely on the weakness of the defendant’s title. [Neal v. Kandakai[1966] LRSC 72; , 17 LLR 590 (1966), Cooper v. Gissie et al.[1979] LRSC 35; , 28 LLR 202 (1979), Donzo v. Tate, [1998] LRSC 23; 39 LLR 72 (1998), and The Tower of Faith Church v. The Intestate Estate of the late Wheagar Blaygbor, March Term, 2010.] This is how the Court, speaking through Madam Justice Johnson, characterized the Court’s position on the issue in the Tower of Faith Church case: “The burden to prove the right to possession or to title to real property rests with the plaintiff and not the defendant; as such, it does not matter whether the defendant has a valid, defective or any other title at all.
The principle mentioned immediately above is not a new one. The history of our legal system leads to the conclusion that it was enunciated as far back as the declaration of independence of the nation. Indeed, in the very first volume of the recorded Liberia Law Reports, the Supreme Court in the case Bingham v. Oliver , 1LLR 47 (1870), with text at 49, expressed and verbalized the principle that ”in an action of ejectment the plaintiff must recover upon the strength of his own title and not upon the weakness of the defendant’s title.” ld., at 49.One year later in 1871, the Court reaffirmed the principle when in the case Savage v. Dennis, 1LLR 51(1871), the Court declared that “in an action of ejectment the plaintiff shall recover upon the strength of his own title and not upon the weakness of the defendant’s title.” The principle was again repeated in the case Reeves v. Hyder, [1895] LRSC 3; 1 LLR 271 (1895), wherein the Court said: “In ejectment the plaintiff recovers upon the strength of his own title and not on the weakness of that of his adversary.” ld., at 273. The Supreme Court has consistently, without any deviations, upheld the principle for almost one century and one decade. See Gibson et al. v. Jones[1929] LRSC 3; , 3 LLR 78 (1929), wherein this Court said: “In ejectment the plaintiff must show a legal title to the property in dispute to recover it; the weakness of the defendant’s title will not of itself enable him to recover.” See also Couwenhoven v. Beck, [1920] LRSC 4; 2 LLR 364 (1920); Cooper v. Cooper-Scott, [1954] LRSC 14; 12 LLR 15 (1954); Duncan v. Perry, 13 LLR 510 (1960). And in the St. Thomas Episcopal Church v. Gbedze, decided August 2, 2013, at the March Term, 2013, the Court was even more vocal in stating the principle:”The judge’s error”, the Court said, “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 on the deficiencies of the defendant’s title in order to prevail”; and quoting from Cooper v. Gissie, [1979] LRSC 35; 28 LLR 202 (1979), which itself quoted from 25 AM. JUR., Ejectment, §26, the Court said: “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.”
Thus, while the Court has said that ordinarily where the contending parties have acquired title from the same grantor and for the identical parcel of land it is mandatory that they establish by preponderance of evidence who is legally vested with original title [Tulay v. Hall, and Tarpeh, [1999] LRSC 23; 39 LLR 559 (1999)], it has also said, as the core principle in ejectment cases, that the primary burden of proof of title rests with the plaintiff, and that any failure by the defendant to show title to the disputed property does not thereby vest title in the plaintiff or relieve the plaintiff of the burden of proof of unblemished title, or “without the plaintiff first having to demonstrate legally and to the satisfaction of the court that he or she does have legal title to the property claimed by him or her.” Watamal, Cooper et al. v. Kieta, Supreme Court Opinion, October Term, 2012, decided January 4, 2013.
And, to further reiterate its endorsement of the principle relative to the burden of proof being on the plaintiff, and to re–echo its position on the issue, the Court, in Watamal, Cooper et al. v. Kieta, speaking through Mr. Justice Banks, opined that “the first principle which this Court has consistently adhered to in any determination of title to real property is that the burden of proof to establish title to real property rests exclusively on the plaintiff, and that any failure by the defendant to show title to any property, the subject of litigation, cannot serve to thereby vest title in the plaintiff, without the plaintiff first having to demonstrate legally and to the satisfaction of the court that he or she does have legal title to the property claimed by him or her.” The Court cited a long line of cases, including the case Dassin v. Bawo, Captan et al., decided by the Court only a term earlier, at its March Term, 2012, wherein the Court, alluding to the principle, expressed its views in these terms: “What is important for us, therefore, is that the plaintiff, having alleged that it was the owner of the property in dispute, which allegation was challenged by the defendant, it (the plaintiff) had the burden of proving, whether before a board of arbitration or a jury, that its deed was clear, genuine and sufficiently descriptive that it could be relied upon by the arbitrators (or a jury) to reach the conclusion that the plaintiff was entitled to the land in dispute.” we find the same position taken by the Court in the case Teahjay v. Brown, decided by the Court at its October Term, 2013.
The long line of cases cited clearly set out the principle and the standard which the Court adheres to and expects of the plaintiffs in actions of ejectment. Our dissenting Colleagues do not deny the existence of this principle; they do not dispute that this Court has consistently applied the principle in practically every action of ejectment in the nature of such cases as we now have before us; they do not question the validity of the principle; and they do not directly or openly call for the recall of the principle by this Court. Indeed, they acknowledge at the very onset of their dissent that “in proving title the plaintiff is required to rely and recover on the strength of his own title and not on the weakness of his adversary’s title”, but they then proceed, perhaps mistakenly, to subordinate this specific principle to the general principle “that in ejectment suits the property in dispute will be awarded to the party whose title is so strong as to effectively negate his adversary’s recovery.” We believe that the assertion and reliance by the dissent on the latter principle is a misapplication of the law since the application of the principle relied on by them presupposes that the plaintiff in an ejectment suit has satisfactorily met the standard stated by us relative to the preponderance of the evidence showing title without any reference to perceived defects in the defendant’s title, in which case the burden then shifts to the defendant to overcome the burden let by the plaintiff that he or she has a clear and unblemished title. It is at this point that the burden shifts to the defendant and it is at this juncture that the principle of the “strong as to effectively negate his adversary’s recovery” comes into play. The first focus therefore and the question to firstly be resolved is whether the plaintiff in the instant case met the standard stated by us and consistently adhered to by the Supreme Court, such that we can conclude that the jurors, the triers of the facts, were in error in returning a verdict in favour of the defendant/appellee and that the trial court was also in error in affirming and confirming the said verdict and entering judgment thereon in favour of the defendant awarding him title and possession of the disputed property.
We are cognizant, as we believe the parties are also, that under the laws of this jurisdiction, it is the jury that are triers of the facts in a case and that it is therefore within the province of the jury to weigh the sufficiency of the evidence, observe the demeanor of the witnesses, and determine the credibility to be given to the testimonies of witnesses produced by the parties in support of their respective claims; and ultimately, based on all of the foregoing, to determine what verdict to bring. Forleh et al. v. Republic[2004] LRSC 3; , 42 LLR 23 (2004), Munnah and Sommah v. Republic, [1988] LRSC 34; 35 LLR 40 (1988), Sinkor Supermarket v. Ville, [1983] LRSC 78; 31 LLR 286 (1983); Morgan v. Barclay, [2004] LRSC 22; 42 LLR 259 (2004); Sheriff v. The Testate Estate of the Late Alhaji S. Carew, [1986] LRSC 1; 34 LLR 3 (1986); American Life Insurance Company, Inc. v. Holder, [1981] LRSC 14; 29 LLR 143 (1981); Liberian Tractor and Equipment Company (LIBTRACO) v. Perry, [1995] LRSC 38; 38 LLR 119 (1995); Momolu v. Cummings, [1996] LRSC 19; 38 LLR 307 (1996).
This Court has incessantly adhered to that basic tenet, and has shown great reluctance in disturbing the verdict of the jury except where the verdict seems to be so manifestly against the weight of the evidence, or demonstrates that an abuse was committed, or that the jury was tampered with, or that there were other errors committed by the trial court so prejudicial to the aggrieved party that it influenced the outcome of the trial or meted out grave injustice. Catholic Relief Services v. Natt, Brown and Cororal, [2005] LRSC 5; 42, LLR 400 (2005); Barclay v. Digen, [1999] LRSC 43; 39 LLR 774 (1999,); American Life Insurance Company v. Sandy, [1984] LRSC 47; 32 LLR 338 (1984); The International Trust Company of Liberia (lTC) v. Cooper-Hayes, [2002] LRSC 6; 41 LLR 48 (2002); Levin v. Juvico Supermarket, [1975] LRSC 12; 24 LLR 187 (1975); ADC Airlines v. Sannoh, [1999] LRSC 11; 39 LLR 431(1999).
The foregoing prompts the question as to whether any of the conditions stated above are apparent in the instant case as would warrant disturbing the verdict of the jury and the judgment of the lower court confirming the said verdict, in the face of the principles stated herein before regarding the standard the Supreme Court has set regarding the burden of proof on a plaintiff in an action of ejectment.
As noted before, the plaintiff/appellant argued that it met the standard set by the Supreme Court and that the jury was therefore in error in returning a verdict in favour of the defendant/appellee and thus awarding the property to the defendant/appellee. The plaintiff asserts that it had attached to its complaint its title deed to the disputed property issued in plaintiff/appellant’s favour by the Intestate Estate of the late G. Koffa Nagbe duly signed by John G. T. Nagbe, administrator of the mentioned Estate. The plaintiff/appellant further averred that the said Administrator’s Deed, executed on November 14, 1986, showed that 2.942 acres of land was conveyed to it by the mentioned Estate.
The deed, the plaintiff/appellant stressed, was executed more than two decades prior to the execution of the defendant/appellee’s deed, making plaintiff/appellant’s deed the older deed, and thereby conferring on it, under the decisional law on the “older deed theory” enunciated in this jurisdiction, title and ownership to the property in dispute. The plaintiff/appellant emphasized that in support of its claim to title and ownership of the property, it executed several lease agreements relative to the said property prior to the defendant/appellee acquiring his Administrator’s Deed for the identical piece of property from the self-same grantor of the appellant. All of the evidence mentioned, the appellant contended, proved that not only did it have title, superior title to the property, both as a matter of fact and as a matter of law, but also that it had possession of the said property. The jury, it said, had therefore erred in respect to its verdict, in the face of the evidence referred to herein. Under the circumstances, the appellant concluded, a proper basis is laid for reversal of the verdict of the trial jury and the judgment by the trial judge affirming and confirming the said verdict.
The defendant/appellee, for his part, argued that the jury committed no error in returning a verdict in his favour and thereby awarding him title to and ownership of the property in dispute. He noted that he had challenged the authority of the issuer of the appellant’s Administrator’s Deed to issue the deed in the first place; that he had questioned and disputed the genuineness of the plaintiff’s deed in that even the decree of sale upon which the plaintiff/ appellant relied to show authority for the sale of the property to the plaintiff/ appellant related to a different parcel of land; and that he had contested the validity of the deed proferred by the appellant since the appellant had failed to comply with the mandatory probation and registration requirements of the law by probating and registering the deed within four months of the date of execution of the deed, thus having the effect of rendering the appellant’s deed void as against the appellee’s deed which was probated and registered within the time allowed by law; and that he had further challenged the validity of the appellant’s deed since the registration of title said deed had not only occurred prior to the probation of the deed, but that the deed itself showed that registration was supposed to have occurred even before the deed itself was executed, acts which were not only impossible but which rendered the deed so defective as to deprive it of any semblance of a valid conveyance.
The appellee admitted that the principle does exist in ejectment actions, enunciated by this Court over many decades, that a party having the oldest deed has superior title to and the right of ownership to property in dispute where the property is from the same grantor and is for the same parcel of land. But he pointed out and stressed that the principle was not applicable to the instant case because of the defects in the conveyance process and the invalidity of the transfer instrument held by the appellant. He called the Court’s attention to the fact that although he had challenged the appellant to produce the letters of administration issued by the Monthly and Probate Court for Montserrado County in favour of the administrator or issuer of the appellant’s administrator’s deed, which would have evidenced that the authority necessary for the issuance of the appellant’s administrator’s deed existed in the issuer, the appellant had failed either to attach the document to the reply or produce same during the trial of the case. These failures and defects, the appellee reasoned meant that letters of administration did not exist for the issuer of the appellant’s deed and hence rendered the decree of sale also defective, since the compulsory premise for the issuance of the decree did not exist to give validity to the decree. He argued that under the manifold opinions of the Supreme Court, a decree of sale could not be ordered or issued in favor of a person who was not an administrator of the estate regarding which the decree had been issued, and consequently that any deed issued to a person who did not hold letters of administration for the Estate was invalid. As such, the appellee concluded, and because of the other defects pointed out in the plaintiff’s deed as well as the entire conveyance process pursued by the plaintiff, the principle of the older or superior title, asserted and relied on by the plaintiff/appellant, was not applicable to the instant case.
We agree with the position of the defendant/appellee that because of the several factors which we shall point out later in the analysis of the contentions of the parties, the plaintiff/appellant had failed to meet the burden of proof standard enunciated by this Court for many decades, we do not believe that the jury erred in returning a verdict in favor of the defendant/appellee. However, before proceeding to discuss the issues presented in that regard, this Court deems it crucial to express as it has done in the more recent past its concern at the relatively new trend amongst certain persons, natural and legal, and especially with regards to land and estate matters, In either conveying to persons property which they know they do not have title to or do not own or, having title originally, they are conscious that they have previously conveyed same to another and therefore have no further title or ownership to the property in question. We can appreciate that in a few of such instances, the further conveyance of the same property may have been done out of innocence, error or ignorance or without the conveying party realizing that the property had been previously conveyed.
However, in many other instances the act is done with full knowledge that title to the property no longer exist in the conveying party, but out of a desire by the conveyor for illegal gains at the expense of innocent buyers. Indeed, it was in an attempt to address this menacing problem that the Legislature recently passed 11The Act Against the Criminal Conveyance of Land”, which was duly signed into law by the President on August 26, 2014, and subsequently published to give it the required legal effect. And as before we again admonish the Executive Government to take seriously the need for prosecution of persons involved in such activity or conduct. Such move would further validate the new statute as well as other applicable laws. We sound the warning not only because the attitude referred to herein has the propensity for serious consequences for the nation and its people but also because the instant dispute grows out of one of such conduct done innocently or deliberately. We now return to the issues at hand.
The first contention which this Court believes warrants its critical attention is the appellant’s claim of a superior title to the property, even in the face of the appellee’s attack of plaintiff’s title deed. We have already recited the arguments of the parties in that respect. The appellant’s argument is basically that it has an older deed and that therefore, under the decisions of the Supreme Court, it has superior title to the property and hence ownership thereto. The appellee’s response to the appellant’s claim is that while it is true that a party with the older deed generally is said to have a superior title, the claim does not hold where the legality, validity and genuineness of the deed is challenged as in the instant case. Our dissenting Colleagues would have the Court adopt the position of the plaintiff/appellant and ignore completely the challenges made to the plaintiff’s deed, the defectiveness to the procedures followed by the plaintiff, both in securing his title deed and in probating and registering same which cast doubts, uncertainties and illegality on the said deed. We cannot adopt such position to the sacrifice of the law of this jurisdiction, both statutory and case laws.
It is true and this Court acknowledges that it has decided in a number of ejectment cases that a party holding an older transfer deed has a superior title deed to a title deed of a party that was executed subsequently, Johnson et al. v. Beyslow[1954] LRSC 2; , 11 LLR 365 (1953); Lartey et al. v. Corhel et al.[1989] LRSC 14; , 36 LLR 255 (1989). However, the counter-contention of the appellee finds greater support in the law as the 11older deed principle” cannot give legality to an instrument which by law does not possess the requisite legality. In the case Mananaai v. Momo, decided by this Court on July 5, 2012, at its March Term, 2012, this Court, quoting the case Kiazolu v. Cooper-Hayes, also decided by the Supreme Court at its March Term 2011, said: “While it is true that in an ejectment action where the parties titles are derived from the same grantor, the party with the older deed title is preferred, an older deed whose procurement is shrouded in doubt and uncertainty, as in the instant case, cannot prevail.” Again, in the case Kamara v. The Testate Estate of the late Isaac K. Essel, also decided at the March 2012 term of the Court, this Court, speaking through Mr. Justice Banks, held as follows: “whether or not a party in an ejectment action with the older deed prevails against his adversary when both parties derive titles from the same grantor, we also hold that under the circumstances in the instant case, the contentions of the appellants in that regard cannot be upheld or sustained. It is true that this Court has held in a line of cases that where the contesting parties derived their titles from the same grantor, the party with the older deed holds a superior title and is therefore entitled to the property. These holdings, however, have been predicated on the assumption that both parties hold deeds that are issued legitimately. A person, for example, holding a deed purporting to be from the same grantor as his or her adversary cannot assert that the mere fact that he or she holds an older deed makes such deed superior to that of his or her adversary where there are questions of legality or legitimacy of the deed held by him or her.”
In the instant case, the appellant was clearly placed on notice that its deed, the administrator’s deed purportedly issued in its favour by the Intestate Estate of the late G. Koffa Nagbe and under the signature of John G. T. Nagbe, as administrator, was the subject of attack and challenge. In the face of the appellee’s attack on the appellant’s title deed, both with respect to whether the person issuing the plaintiff’s deed on behalf of the Intestate Estate of G. Koffa Nagbe had the authority to issue such deed and whether the title deed issued in favour of the appellant was probated and registered within the statutory period of four months from the date of execution so as to render the appellant’s deed superior to that of the appellee, must and should have claimed the attention of the appellant. We believe that such attention was important, because under the principle stated above, in order for the plaintiff/appellant to rely on the “older deed principle”, it, the plaintiff/appellant, had to show that its title deed was of uncertainties, doubts and defects and that it therefore had a clear title to the land, void of the defects alleged by the appellee, either in respect of the conveyance, the process followed in legalizing the instrument under the law, or regarding its compliance with the law.
We do not see in the records that the plaintiff/appellant properly or appropriately addressed the problems that were highlighted by the appellee as would have warranted the jury returning a verdict in favour of the appellant, given that the defects highlighted by the appellee clearly brought into question the legality and legitimacy of the plaintiffs/appellant’s title deed. Both of the founders and partners of the appellant testified during the trial of the case; both had the opportunity to explain or refute the allegations relating to the letters of administration, or the lack thereof, and the authority of the issuer of the deed to execute the same; both had the occasion to clarify the issue of the probation and registration of the deed issued in favour of the appellant; and both had the opportunity to address the issue of the registration of the deed prior to its probation and execution. Yet, neither they nor the other witnesses of the appellant believed or saw the need to have the letters of administration produced, to secure a copy from the Center for Archives and Documents or the Ministry of Foreign Affairs, or even from the Monthly and Probate Court for Montserrado County, so as to remove the doubt raised as to the authority of John G. T. Nagbe to issue the administrator’s deed which he issued to the appellant purportedly in the capacity as administrator of the Estate.
Instead, the appellant advanced a number of alternative arguments. Firstly, it argued that the issuance by the Probate Court of the Decree of Sale, wherein reference is made to John G. T. Nagbe as administrator of the Intestate Estate of the late G. Koffa Nagbe, presupposed that letters of administration .had been issued to him by the Court and that he was thereby vested with the authority, as administrator of the estate, to effect the sale of the 2.942 acres of land to the appellant and to issue to the appellant an administrator’s deed evidencing the said sale and transferring title to the land in dispute to the appellant. This is how the appellant responded to the appellee’s assertion that it had failed to attach the letters of administration of John G. T. Nagbe, evidencing his authority to execute the administrator’s deed in favour of the appellant: “Plaintiff says [it] did not think that it was necessary to proffer the letters of administration when they had proffered the court’s decree of sale, which fully describes the letters of administration. Plaintiff gives notice that since the full description of the letters of administration is described in the court’s decree of sale, if need be at the trial it will request for a subpoena to be served on the clerk of court to produce proof of the existence of the said letters of administration. Plaintiff contends that it is a principle of law that when an act is done, presupposing the existence of a prior lawful act, the law presumes the validity of that prior lawful act.
We wonder, firstly, how in the face of the challenge made by the defendant/appellant that there existed no letters of administration in favour of John G. T. Nagbe, the plaintiff/appellant could have ignored making any effort to produce the letters of administration which it had given notice it would do at the trial “if need be”. There was no question that the letters of administration was necessary as a challenge had been mounted in respect of its very existence. It was not a question of “if need be”. But more than that, in spite of the notice given by the plaintiff that the letters of administration would be produced at the trial, no request was made to the lower court for the production of the letters of administration by the clerk of the Monthly and Probate Court for Montserrado County. No request was made of the Ministry of Foreign Affairs to secure from that Agency a copy of the letters of administration, or that it issues an instrument to the effect that the records were destroyed and that therefore a copy of the documents could not be issued by the Ministry. Not a single one of such efforts was by the plaintiff/appellant although the issue of the authority of John G. T. Nagbe, or the lack thereof, to execute the administrator’s deed in favour of the plaintiff/appellant remained a real and core contention of the defendant/appellee in defeating the appellant’s title claim or rendering the plaintiff’s/appellant’s deed lacking the necessary legal efficacy and to remove any uncertainty or doubt as to its issuance or its legality as would vest in plaintiff/appellant the right to invoke and rely on the “older deed principle”.
The letters of administration, in our view, formed one of the core foundations to the determination as to whether the appellant held a deed that was genuine and clear of doubt. As one of the foundation to the title contest in the instant case, the appellant could not and should not have left the answer to conjecture or speculation. For instance, let us assume, as appellant seemed to propose, that the letters of administration it relied on as the basis for the issuance of the decree of sale, was issued on July 11, 1985. The administrator’s deed, also relied on by the plaintiff/appellant in claiming title to the property in dispute, bears the date November 14, 1986. By operation of law, the life of the letters of administration expired on July 10, 1986, four months prior to the execution of the administrator’s deed in favor of the appellant. There was no evidence produced to show that the letters of administration of John G. T. Nagbe, assuming that there was one, was extended by the Probate Court as would have vested authority in the administrator to execute the deed in favour of the appellant. This brings into further question, and clearly within the realm of speculation, the level of reliance and reliability which this Court can place on the decree of sale. Why, we wonder, did the plaintiff/appellant not see the need to have the Monthly and Probate Court for Montserrado County issue out a certificate to the effect that letters of administration had in fact been issued to John G. T. Nagbe, since he had a decree of sale from the same Court, wherein reference was made to him as 11administrator”. What was the fear on the part of the plaintiff in seeking such certificate but relying instead on the theory that since the decree of sale referred to John G.T. Nagbe as “administrator”, he must truly have been the administrator of the Estate. We are prompted to ask was there something that the plaintiff did not want to have revealed. Or was it negligence on the part of counsel? Again, we must reiterate that this Court cannot indulge in speculation in reaching conclusions in any case brought before it for disposition.
We disagree with our dissenting Colleagues that the testimonies of the witnesses for the plaintiff, in person of its two partners, or even that of the alleged current administrator of the estate, were adequate substitutes for the failure to produce the challenged letters of administration. The Civil Procedure Law of this jurisdiction is quite clear on the Issue. It states, under the “Best Evidence Rule” that the best evidence must always be produced and that no evidence can be produced which presupposes the existence of better evidence. Civil Procedure Law, Rev. Code 1:25.5. We believe that it was encumbent upon the plaintiff in the face of the challenge advanced by the defendant to produce the letters of administration of John G. T. Nagbe or to have an official explanation or certification introduced into the court as to why the document could not be produced, rather than rely on the speculation of the plaintiff’s partners as to what may have happened to the document. Indeed, our inspection of the records reveal that even in their testimonies, none of the plaintiff’s witnesses could say with certainty what actually happened to the challenged instrument. None of them said that the document was destroyed;· instead, all of them speculated that because of the condition of the nation at the time, they document may have been destroyed. Such does not meet the required standard of the law and we believe our dissenting Colleagues to be wrong in believing that by such speculative testimonies by the plaintiff’s witnesses, the plaintiff had met the standard under the law and that nothing more was required of it.
Moreover, the appellant, rather than producing evidence to show the existence of the letters of administration, which was under challenge by the defendant, or producing extended letters of administration, since the appellee had argued further that even if letters of administration existed in the first instance it had expired, chose to advance the further theory that assuming that the letters of administration had expired, the defect was cured by the Court’s issuance of the Decree of Sale, an act which the appellant said was tantamount to an extension or renewal of the letters of administration.
We note that while the legal arguments advanced by the appellant may seem good in some respects, they exhibit a number of flaws. Firstly, it does not explain, and none of the witnesses for the appellant provided any explanation, why the letters of administration was not attached to the complaint or the reply, or why it was not produced at the trial. We reiterate that the fact that some of the witnesses stated that they were told by John G. T. Nagbe or others that John G. T. Nagbe held letters of administration to administer the Intestate Estate of the late G. Koffa Estate or that they saw such letters of administration was insufficient to meet the standard of evidence required or to explain away why the letters of administration, a public document that was or should have been stored with and available both at the National Archives for Documents and Records and the Monthly and Probate Court for Montserrado County, was not produced. Also, as noted before, many questions arise from this failure. Was the document so defective that its credibility would have been brought into question, resulting in the appellant being weakened? Did the document, if it existed, contain the name of John G. T. Nagbe or another name, or a combination of names? Was the document duly registered and probated as required by law, or was it lacking in that respect? How were they able to secure the court’s decree of sale but seemingly not the letters of administration, or to even give some explanation as to why the latter could not be secured? These are but a few questions that could or may have been generated with the production of the alleged letters of administration. But no answer to any of them could have been supplied in the absence of the document.
Additionally, we wonder why the appellant choose to go the legal route of presupposing the existence of a legal document predicated upon the issuance of a subsequent document whose basis is or should be in the existence of the prior document if the document whose existence is being challenged can easily be produced or at least an explanation provided as to why it cannot be produced. As noted earlier, the document in question is a public document; it is an instrument which forms a part of the records of the Monthly and Probate Court for Montserrado County. Therefore, in our opinion, its production should not have been a problem. Both the Civil Procedure Law and the Opinions of the Supreme Court clearly provide that our courts are clothed with the authority to not only take judicial notice of public records, of which the records of our courts are a part. Further, they are also more specifically vested with the authority to take judicial notice of their own records. Section 25.1of the Civil Procedure Law states that “[e]very court of the Republic of Liberia shall without request take judicial notice of the Constitution and of the public statutes and common law of the Republic.” Civil Procedure Law, Rev. Code 1:25.1. Section 25.15 of the same law states that “letters testamentary and of administration may be introduced in evidence in all cases until they have been regularly revoked.” And section 25.16 thereof states: “Deeds and other writings shall be admissible against all parties to them and shall also be evidence against all mankind of the transfer of all titles or rights transferred by them.” All of the foregoing conveys the clear message that courts in this jurisdiction have the authority to take judicial notice of their records and of the records of other court, upon request of any party involve in litigation. Indeed the Supreme Court has elaborated on the matter in several cases including the following: Universal Press Corporation v. Kennedy et al.[1982] LRSC 36; , 30 LLR 50 (1982), “ A court of justice is bound to take judicial notice of its own records whether or not its attention has been called thereto”;MIM Liberia Corporation v. Toweh, [1983] LRSC 19; 30 LLR 611 (1983), “it is one of the inherent rights of a court to take judicial notice of its own records especially in a case pending before it.” See also Dopoe v. City Supermarket, [1986] LRSC 26; 34 LLR 215 (1986); Lamco J. V. Operating Company and the Ministry of Labour v. Garmoyou et al.[1988] LRSC 16; , 34 LLR 712 (1988).
Why, we wonder, did the appellant not deem it important to avail itself of this avenue so as to render the issue or the challenge to the authority of John G. T. Nagbe moot or irrelevant to the case? We do not and cannot supply the answer; what we do say is that the refusal by the appellant to take advantage of the opportunity may have generated a level of suspicion with the jury and diminish in the eyes of the jurors the credibility of the process pursued by the plaintiff in securing the parcel of land, thereby leading to the conclusion that it had not met the standard required in actions of ejectment.
Perhaps even more troubling for this Court is that the failure to produce the instrument upon which rested the authority of John G.T. Nagbe to execute an administrator’s deed in favour of the appellant violated one of the most fundamental principles of law held in this jurisdiction, the principle of notice. By the failure to produce the document, the appellee was effectively deprived of the opportunity of examining the instrument and challenging its authenticity, genuineness, credibility and the process by which it was issued by the Monthly and Probate Court. All of these factors, we believe, impugn on the decree of Sale and left in doubt the authority of John G. T. Nagbe, firstly, to apply to the Monthly and Probate Court for the Decree of Sale, secondly, to the basis upon which the Monthly and Probate Court determined to grant the application and issue the Decree of Sale which it allegedly issued. We do not believe that the presupposition of a prior legal act, regarding which the prior legal document setting the basis for the subsequent action has not been produced can serve as a basis to trump the principle of notice required under our law.
We have further difficulty understanding why the appellant, rather than just producing the letters of administration, which it alleged John G. T. Nagbe held at the time of the issuance of the administrator’s deed to the appellant, chose instead to assert the further legal argument that the appellee, a third party, could not legally challenge a conveyance made by the Estate through an alleged administrator in the absence of the Estate itself disavowing or questioning the authority of the alleged administrator. We hope that the appellant is cognizant that the law requires that an estate must act through an executor, where there is a will or an administrator/administratrix appointed by the court where the decedent dies without leaving a Will. The law does not require that the Estate should disavow or question the authority of a person purporting to be administrator of the estate before another whose right is directly affected by the action of the purported administrator challenges the action attributed to the alleged administrator. It was therefore quite within the purview of the appellee, as part of his defense to the appellant’s action of ejectment, to challenge the basis of the appellant’s claim to title to the property in dispute, especially given that this Court has consistently said that a plaintiff in an action of ejectment must recover the property on the strength of his or her own title deed and that said deed must be shown to be genuine and free of uncertainty and doubt.
We state therefore, and without hesitation that under the circumstances narrated above, the deficiencies exhibited by the appellant’s lack of production of the letters of administration said to have been issued in favour of John G. T. Nagbe to administer the Intestate Estate of G. Koffa Nagbe provided the jury with a sufficient basis to question the legitimacy of the appellant’s title deed and the process pursued in legalizing its title. Those deficiencies seemed to us also to have been sufficient for the jury to determine that the appellant had failed to meet the standard of proof required by this Court in actions of ejectment where this Court has made it clear that the burden of proof in cases such as the instant case rests exclusively on the plaintiff, and not on the weakness of the defendant’s deed; and that in such situations where there are doubts and uncertainty, the plaintiff, although having an older deed, cannot enjoy the benefit of the principle that the holder of the older deed has a superior title. We cannot subscribe to the appellant’s contention therefore that the jury was in error in reaching the conclusion that the appellant had failed to establish its title to the property.
We should emphasize that we do not here conclude that John G. T. Nagbe did not hold letters of administration duly issued to him by the Monthly and Probate Court for Montserrado County to administer the Intestate estate of the late G. Koffa Nagbe. Nor do we predicate our decision on the basis of any legality or illegality of the alleged letters of administration said to have been held by Jon G. T. Nagbe. Rather, we say that the existence of the letters of administration having been challenged, it was encumbent upon the plaintiff to produce the document or a copy thereof, or some certification from the appropriate public authority as to whether the instrument exists or not. We do not see in the records that the appellant sufficiently proved to the trial court that the Monthly and Probate Court ever granted John G. T. Nagbe letters of administration.
But there is an even greater disconcerting point which we believe deprived the appellant of meeting the standard of proof required of it in the instant ejectment case. The appellant, in seeking to prove its case, exhibited an administrator’s deed said to have been issued to it by the Intestate Estate of the late G. Koffa Nagbe, signed by John G. T. Nagbe; alleged to have been the administrator of the Estate at the time. The deed carries a date of execution of November 14, 1986. The deed shows also that it was probated on the 11th day of December, A. D. 1987, a period of thirteen (13) months after its execution, an act that was clearly in violation of the law governing the registration and probation of realty, necessary to give legality to the instrument against any other person asserting claim to the identical realty.
In addition, the deed showed that it was registered prior to being presented for and probated. Under the law, no deed can be registered before it is probated, and such act renders the deed subject to a challenge of validity. The Property Law is quite clear on the issue. All of the sections dealing with the probation and registration of deeds clearly set out that a deed, to be valid, must be probated before it is registered. Indeed, the process of registration can only be undertaken is directed by the probate judge after the process of probation has been completed. The law mandates that the probate court judge must inscribed on the face of the deed “let this be registered” before a registrar can register the deed, and- in the absence of such order, issues only after the probation of the deed, the registrar is without the authority to register the deed; for it is only upon the orders of the probate court judge that authority is vested, to register the deed. Indeed, at Section 5 of the Act, it is stated that any act by the registrar of deed in registering a deed before it is probated and without instructions from the probate court judge is regarded as criminal and a criminal penalty is imposed for such act. And at Section 6, the law states that any failure by a party to probate and register his deed as directed by the Act shall render the deed voidable as against any party who has probated and registered his deed in accordance or as directed by the law.
Thus, the appellee mounted a further challenge to the validity of the appellant’s deed on the ground that the appellant had failed to probate and register the deed within the period of four months prescribed by law and that, as such, said deed was void as against any subsequent purchaser of the identical property who had probated and register his or her deed within the period prescribed by the Property law of Liberia. The appellant’s response to t is issue seems to be that the probation and registration of its administrator’s deed provided sufficient notice to all persons that the land was encumbered. The appellant has cited the case Kruah v. Weah, [2004] LRSC 13; 42 LLR 148 (2004). This Court does not deny that in the Kruah case it stated that “by the probation and registration of its deed, the plaintiff had given notice to the whole world that it had acquired the property. This is against even the owner. Therefore, the subsequent sale by the same estate to the defendant is invalid.” We continue to hold that position today. However, the Court would like to point out that the principle, as declared in t he Kruah case, was done within the context that the plaintiff in that case had probated and registered its transfer deed within the time period prescribed by the Property Law, and hence, there was no challenge to the validity of the plaintiffs deed. That is not the situation in the instant case, and hence, that case is not analogous to the instant case. The appellee in the instant case has clearly set out a challenge to the validity of the appellant’s deed, stating that the deed was probated and registered a full thirteen months after the deed was executed. In that sense, the Kruah case is clearly distinguishable from the instant case and the principle stated therein would not apply automatically to this case. The query therefore is what is the net effect of the appellant’s failure to probate and register its transfer deed within the time stipulated by the Property Law? This is what the Property Law states, at Chapter 1, sections 2 and 5:
“Section 2. All persons acquiring any interest affecting or relating to real property shall appear in person or by attorney-at-law before the Probate Court for the county or territory in which such real property is situated, or should there be no Probate Court in the area where such real property is situated, then he shall appear before the nearest Probate Court to the area involved, within four months of the date of execution of the instrument, and have the deed, mortgage or other instrument affecting or relating to the real property publicly probated; provided, however, that this provision shall not apply to persons acquiring an interest affecting or relating to real property prior to October 1, 1962.”
“Section 5. 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 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 29:2.
The statute quoted above is the governing law in this jurisdiction. Despite the interpretation adopted by the dissenting Justices, the statute states unmistakably and in very clear terms that all instruments affecting or relating to reap property must be publicly probated and registered; that the said undertaking must be carried out within four months of the date of execution of the instrument; and that a failure to comply with the statute and have the instrument probated and registered within four months shall rendered title to the real property involved null and void as against any party holding a subsequent instrument affecting or relating to such real property. The law draws no exceptions, and the Supreme Court, in interpreting and subscribing to the said law, has said consistently that the law was not only valid but that it must be strictly complied with.
We should underscore here that the law is not a new one and did not origin ate with the passage of the Property Law contained in the Liberian Code of Laws of 1956. Indeed, our review of the Opinions of the Supreme Court shows that as far back as 1896, the Supreme Court, noting section 2 of the Act of the Legislature, passed in 1861, said: “and the Court further says that the deed should have been admitted as evidence; and secondly while it is true that the law requires the probation of all deeds and other conveyances (Act of the Legislature of Liberia, 8161, p. 91, sec. 2), still section five of the same Act voids prior claims when there has been a flagrant neglect of probation for four months, and when said neglect results in litigation arising from the subsequent conveyances.” McAuley v. Madison, 1LLR 287 (1896). We find also that twenty four years later, the Supreme Court, again faced with the issue, stated as follows:
“Let us consider first the validity of the title deed offered by plaintiff in support of her claim to the property in dispute, the admissibility of which as evidence was objected to by the defendant on the ground that it had not passed through the requirements of the statute with respect to probation and registration within the time prescribed. Examining the instrument we find that it purports to have been executed in 1891; probated in 1893 (two years later), and registered in 1917, twenty-six years after the original transaction. The Statute of 1865, which seems to have been enacted to prevent fraud by secret conveyances of lands and to open the door to any legal objections to any such transfers, expressly limits the time to four months within which all conveyances and transfers of real property shall be probated and registered. The statute is mandatory and not merely directory, so that all such instruments to be of any validity, or legal efficacy, must not only conform to its provisions but conformity must be made within the time limit prescribed by the said provisions. The paper title of plaintiff, although purporting to have been probated and registered, shows upon its face that neither of these acts were done within the statutory time. Upon the legal maxim that: “whatever is not legally done is considered in law as not done at all”, the act becomes a nullity and of not legal effect. In Reeves v. Hyder, (1 Lib. L. R. 271) this Court held: “That the probation of a deed makes It legal evidence before courts of law.” We reaffirm this rule and hold that it was error in the trial judge to have admitted the said deed of plaintiff as evidence in support of her alleged title to the property in litigation.” Couwenhoven v. Beck, [1920] LRSC 4; 2 LLR 364 (1920),text at 370.
The statute, upon which the Supreme Court’s opinion in McAuley v. Madison was based, was continued under a new Act passed by the legislature, and the Supreme Court, as before, continued to subscribe to the same. This is what the Supreme Court, exactly twenty-four years after McAuley v. Madison, said in the case Barbour v. Bickersteth, 8 LLR 183 (1944),when confronted with the issue:
”The defendant, now appellant, claims ownership of said property by lease agreement made profert of by him and marked exhibit “1”, which plaintiff, now appellee claims to be invalid since by inspection thereof it will be seen that, although said agreement of lease was entered into on March 1, 1939, the probate and registration thereof was not performed until February 24, 1941, approximately one year and eleven months from the date of execution and an additional nine days after the order of sale had been issued. The failure to have probated and registered said agreement within the time prescribed by statute renders same voidable under the conditions prescribed In the enactment stated below.
Every instrument relating to real estate, before the same shall be entitled entered to be registered, shall be presented to the Probate Court of the county in which the property is located . 2 Rev. Stat.§ 1299.
If any person shall fail to have any instrument relating to real estate probated and registered, as herein provided, within four months after its execution, his title to such real property shall be null and void as against any party holding a subsequent instrument relating to such property, which is duly probated and registered.” 2 Rev. Stat. § 1302. See L. 1861, 90, § 5.
The records in the case show that although the deed of lease from T. A. Dundas to Joseph W. S. Barbour for ten years was executed on March 1, 1939, and would thereby have constituted an encumbrance upon the land, same was not offered for probate until February 24, 1941. Hence, the conveyance was Ipso facto voidable, and became absolutely null and void according to the statute when Barbour, by his negligence aforesaid, allowed the sheriffs deed to Elizabeth Bickersteth, executed February 29, 1941, to be probated and registered within the legal time.” ld., text at 185.
Twelve years after the Barbour case, the legislature enacted the 1956 Code of Laws, wherein, at Title 29, Property Law, the principle governing the probation and registration of instruments relating to real property was reiterated, although under a different wording. Yet, notwithstanding the different wording, the tenet, intent and spirit of the principle remained the same and the Supreme Court continued to ascribe to its mandatory prescription. That law remains in force without and amendments being made thereto to today’s date. See Dundas v. Botoe, [1966] LRSC 53; 17 LLR 457 (1966); Kissdell v. Diogo, [1973] LRSC 81; 22 LLR 329 (1973),”a deed probated and registered twelve years after its execution is voidable but it would only be void against a properly probated and registered deed for the same property”; Cooper v. Davis et al.[1978] LRSC 57; , 27 LLR 310 (1978),”a duly probated and registered deed is superior as evidence of title to any prior instruments or indicia which have not been duly probated and registered.” In Wilson et al. v. Wilson et al.[1994] LRSC 8; , 37 LLR 420 (1994) this Court declared:
“Regarding the probation and registration of the documents, the well-known legal requirement is that a deed conveying realty should be probated and registered within a period of four months from the date of execution and delivery to the grantee. Even in the absence of such probation a conveyance is not ipso facto void, but may become void under the statute where a third party who has for valuable consideration, received a deed executed in his favor for the same property and from the same grantor, probates and registers his title within the four month period prescribed by the statute, and the prior grantee failed to register his title within said four month period. This statute is sometimes referred to as the “race” statute. The first grantee to register his title within the prescribed period prevails”.
Other than where the property is not conveyed from the same grantor and is not identical to the disputing parties, the only occasion we are aware of when the Supreme Court has said that the statute would not apply is in the case Davies-Johnson et al. v. Early et al.[1965] LRSC 24; , 17 LLR 3 (1965),wherein the Court, speaking through Mr. Justice Simpson, said: “In the estimation of this Court, the mere failure to probate and register a deed does not render same a totally void instrument but only voidable as against a third-party bona fide purchaser for value who has only probated his deed and had same registered in accordance with section 6 of the Property Law (1956 Code 29:6). In other words, the failure of a grantee to have his deed duly probated and registered is not a defense available to his grantor in an action of ejectment.” ld., text at 8. But this is not the situation in the instant case.
We reiterate that the law is clear and is mandatory. Where a party fails to probate and register a transfer deed within the four months period stipulated by law, the deed “shall be void as against any party holding a subsequent instrument affecting or relating to such property, which is duly probated and registered.” Thus, as the appellee holds a subsequent title deed that was duly probated and registered within the time prescribed by law, his title deed is superior to that of the appellant whose title deed, by virtue of the failure to conform to the statute, became void. This is the prescription of the statute and, as this Court has said from the onset of the independence of the Republic, it is without the authority, constitutional or statutory, to add to or take away from the concise wording and dictate of the statute. Ware v. Republic, Supreme Court Opinion, March Term, 2012, decided on July 6, 2012; Firestone Plantations Company v. Paye et al.[2002] LRSC 2; , 41 LLR 12 (2002); Wilson v. Firestone et al.[1986] LRSC 18; , 34 LLR 134 (1986); Kasaykro Corp. v. Steward et al.[1982] LRSC 47; , 30 LLR 164 (1982). The appellant was under a legal obligation to ensure that it was in strict compliance with the law, to scrupulously secure its interest by conforming to the law, especially given the fact th3t the Supreme Court had made many pronouncements on the issue over many decades prior to the appellant being given a title deed by the G. Koffa Intestate Estate, assuming that the person signatory to the deed was the lawful administrator of the Estate. Ignorance of the law can never be an excuse for violation of the law; nor can it provide a legal basis for the Court to turn a blind eye to the violation, even if the view is held by it that the Estate acted improperly in conveying the property to the appellee when it had already conveyed same to the appellant earlier.
We are told by the appellant that as the G. Koffa Nagbe Intestate Estate had already conveyed the property in question, it no longer owned the property and therefore could not have conveyed the property to the appellee. Indeed, the appellant has stated an intent of the statute different from that which the Supreme Court has stated. In its response to the challenge raised by the appellee to the legality of the appellant’s deed for not being probated and registered, the appellants stated as follows: “as to the time the administrator’s deed was probated and registered, plaintiff says that the purpose of probation and registration is to record the transaction and thereby give legal notice to the public of the existence of the instrument which covers the transaction, which means that even if a party fails to probate and register within four (4) months the instrument which vests in him an interest in real property but he does probate and register that instrument subsequent to the said four-month period but before another person acquired an interest in that same property, the notice had been effectively given. That is, plaintiff probated and registered its administrator’s deed in December 1987, while the defendant acquired title to the same land in July 2008, a full 21 years later. So the purpose for the probation and registration was more than adequately complied with.”
We cannot subscribe to the quoted argument of the appellant; nor can we subscribe to the support which our dissenting Colleagues give to the said argument, for not only does it not represent the purpose of the statute, as articulated by the Supreme Court in the Couwenhoven case, but it would have a twofold effect, both of which this Court has repeatedly said would be illegal. Firstly, the proposition advanced by the appellant and subscribed to by our dissenting Colleagues would have this Court squarely legislate, which the Court has said on countless occasions it has no authority to do. Firestone Plantations Company v. Paye and Barber and Sons, [2002] LRSC 2; 41 LLR 12 (2002). No matter how we may disagree with the wisdom of the statute, we cannot legislate or overturn it unless it violates the Constitution. It is only the Legislature that can determine that the statute no longer serves a useful purpose and should be amended or repealed. Yet, our dissenting Colleagues seem to believe that we can overturn the statute because we question its wisdom, but that would clearly be invading the province of the Legislature and transgressing the clear demarcation of the branches of the government provided for in the Constitution.
Moreover, this Court cannot, as our dissenting Colleagues seek to do, give interpretation to a statute that is clearly adverse to the statute where the statute is so clear on its face that it does not need or require interpretation, as to do so would be tantamount to overturning the statute and replacing same with our own legislation, simply to accomplish the goal we seek to achieve. Such interpretation would be legislating, invading the province of the Legislature, and usurping the authority of that body, all of which we are similarly prohibited from doing. We make specific reference to the argument that because the defendant acquired the property after the plaintiff had probated and registered its title deed, the said acts rendered the deed legal and valid against any third party even though the probation and registration occurred outside the period allowed by law. We must note that the law draws no such exception to its application and the Supreme Court has never taken such position. We believe that had the legislature desired such exception or wanted to have such excluded from the application of the law, it would have included same in the Act. But there is no such exclusion and from time immemorial, the Supreme Court has held the position that once the deed was probated and registered outside of the statutory time, unless there were shown to be intervening factors or forces (such as war, closure of the courts, or acts of God) over which the grantee had no control, any failure, particularly due to act of negligence, cannot give the grantee superior title over a subsequent buyer by the mere fact that the first grantee had already probated and registered his or her transfer deed prior to the land being subsequently purchased by the second grantee.
Secondly, to give acceptance to the argument of the appellant and our Colleagues would effectively render all of the previous Opinions of the Supreme Court not only erroneous, which we do not believe they are, but we would also have to declare the statute upon which those Opinions are predicated as invalid, which we do not believe it is and which we could not do in any case unless the law was in violation of the Constitution, which argument has not been raised: We have seen in no case before or after the Couwenhoven case where this Court has subscribed to the theory advanced by the appellant that once a party who has failed to probate and register his or her title deed within the tau r-month period prescribed by the statute but proceeds to probate and register the instrument before a transfer is made to another party by the same grantor, the intent of the statute has been met and the invalidity or voidness stated by the statute is thereby cured. Quite to the contrary, all of the decisions of this Court state that once there has been a failure to comply with the statute, the party’s title deed is void as against any other party who has subsequently acquired title and who has probated and registered his or her title deed within the prescribed statutory period. Where the law is so clear on its face as not to need or be susceptible to interpretation beyond its clear wording, and its spirit and intent are so obvious, we are forbidden and cannot substitute our views for those of the Legislature. Vijayaraman and Williams v. The Management of Xoanon Liberia (Ltd.), [2004] LRSC 4; 42 LLR 41 (2004); The International Trust Company of Liberia v. Doumouyah et al. [1989] LRSC 23; 36 LLR 358 (1989); The Management of BAO v. Mulbah and Sikeley[1989] LRSC 28; , 36 LLR 404 (1989).
The lack of ambiguity in the statute indicates that if the Legislative intent was as the appellant has argued, then the legislature would have included it in the statute because, as previously mentioned In this opinion, the court does not delve into the legislative intent when the text of the statute is clear and unambiguous.
We do not see that the intent of the statute, as shown in its underlining purpose, articulated in the Couwenhoven case, or the wording of the statute, or the effect or impact of the statute, violates any rights of a party who fails, refuses or neglects giving adherence and compliance to the law. Perhaps in making grantees aware of the consequences of their failure to honour the obligations they owe to themselves to comply with the law may serve to induce them to be more studious in ensuring that they protect their interest. Williams v. Kpoto, Supreme Court Opinion, October Term, 2012, decided January 19, 2013; Liberia Agricultural Company v. Hage et al., 38LLR 259 (1995); Merriam v. Pearson et al. [1985] LRSC 2; 32 LLR 513 (1985); Gaiguae v. Jallah, [1971] LRSC 3; 20 LLR 163 (1971).
Moreover, subscribing to the theory advanced by the appellant and our esteemed dissenting Colleagues would be tantamount to recalling, by way of a back door, all of the decisions of this Court on the issue of the failure to probate and register a realty instrument within the time allowed by law. This Court finds no basis for such recall, especially in the manner which our agreement with the appellant would suggest, and because, as stated before, it would also be tantamount to modifying or effectively amending the statute.
We are therefore constrained to not only uphold the statute, but to also state that under the circumstances presented in the case the appellant has clearly failed to meet the standard of proof required by the law, and especially as set out in the Opinions of the Supreme Court. Accordingly, we hold that the jury did not err in returning the verdict which it did or that the trial judge erred in confirming the said verdict and entering judgment in favour of the appellee.
In addition to the foregoing, we also see that there were further problems presented with respect to the process pursued by the appellant in securing its title deed or with the instrument upon which appellant says authority was based f or the issuance of its administrator’s deed. Let us take recourse to the decree of sale issued by the Monthly and Probate Court for Montserrado County. Firstly, while the Probate Court’s Decree of Sale was issued on July 11, 1985, and is said on its face to have been registered according to law, but no date of registration appears on the face of the copy of the decree filed with the court to show when it was registered. We cannot conceive that an instrument of that importance will be filed with the court and the date of registration would not appear thereon, unless no such date appeared on the original of the document. We hold that it is mandatory that a date of registration of the decree appear on the face of the decree, the same as a date of registration is placed on of deeds, so that notice is given as to when the instrument was registered and thereby enable a determination to be made as to whether the registration was done in compliance with the law. This does not appear to have been done in the instant case.
The point highlighted above is significant in light of the fact that the administrator’s deed executed in favour of the appellant, and which is said to have been issued on the strength of the decree of sale issued to John G. T Nagbe, purported administrator of the Intestate Estate of G. Koffa Nagbe, carries an execution date of November 14, 1986, a period of one year and four months after the issuance of the decree of sale. Assuming that the administrator’s deed was issued on the strength of the decree of sale, and the administrator’s administration of the estate was valid for a year, one is left to wonder if the decree of sale was still valid one year and four months after its issuance as could have legally vested authority in the administrator to effect the sale of the property to the appellant at the time stated in the administrator’s deed, if without an extension of the letters of administration by the Probate Court, he no longer had the authority to effect such sale.
We are of the opinion that the fact that the Probate Court had issued a decree of sale for the sale of certain property by the administrator did not ipso facto vests authority in the administrator to effect the sale of the property if he allowed the term of his letters of administration to expire before attempting to sell or effecting the sale of the property. The jury therefore could very well have viewed this uncertainty as a failure by the appellant, as the plaintiff in the case, to meet the standard of proving title free of doubt and uncertainty. We cannot, under the foregoing, say that the jurors, as triers of the facts, were wrong in concluding that in their view a verdict could not be brought in favour of the plaintiff/appellant.
Stated from another vintage point, the plaintiff/appellant has instituted an ejectment suit relying on a title instrument. But the said title paper is yet to qualify as a “deed”, as contemplated by law. On its face, plaintiff/appellant’s title instrument, in obtrusive violation of the law controlling, was registered in 1985, long before said instrument was offered for probation in 1987. To date, these defects are glaring on the face of plaintiff/appellant’s “deed”. Can one maintain an action of ejectment on such defective instrument? Clearly, the answer is no.
Further, the deed itself seems to have a problem in relation to the decree of sale issued by the Monthly and Probate Court. The decree of Sale, on its face, shows that it was issued on July 11, 1985, it was registered in volume 453-85 of the Records for Montserrado County. And while a date is not shown on the copy attached to the court’s records as to show when the registration occurred, the volume number (453-85) appearing is supposed to attest to the fact that the registration occurred sometime in 1985, because the second figure of a volume number is reference to the year in which a document is registered. The administrator’s deed, said by the appellant to have been issued on authority of the decree of sale from the Monthly and Probate Court, shows that it was executed on November 14, 1986, a period of fourteen months after the issuance of the mentioned decree of sale. The deed shows a probation date of December 11, 1987, a period of two years and five months following the execution of the decree of sale and thirteen months following its (the deed’s) execution. Yet, the same deed carries on its face a volume number, 460-85, which means that the deed was registered in 1985, a period of up to two years prior to the probation and up to a year prior to the execution of the deed by the purported administrator. We find it rather incomprehensible that the deed could have been registered in a volume that predates the date of execution of the deed, for it could not have been possible for the deed to have been registered in 1985 when (it was not executed until 1986. Could the jury, in the absence of any full explanation by plaintiffs witnesses, have seen that as a factor also in returning a verdict of not liable in favour of the defendant/appellee? We do not speculate as to what went on in the minds of the jurors, but clearly in the face of this factor. we cannot say that the jury was in error in determining that the plaintiff had not presented evidence clear and sufficient enough and without doubt as to be said to meet the standard of proof required of it to award it title to the land in dispute.
Moreover, while we do not go into the issues of waiver, laches and the statute of limitations, advanced by the appellee in his answer and memorandum filed before the lower and the brief filed before and arguments made to this Court, we believe that comments on those issues as reflected from the testimonies of the appellant’s witnesses and the appellee’s witnesses are appropriate, although in the context of how the jury may have perceived the evidence and return a verdict in favour of the appellee. The appellee testified, and there was no rebuttal made by the appellant, that upon title to the property being conveyed to him by a court appointed administratrix of the Intestate Estate of the late G. Koffa Nagbe, he noticed that the land was being occupied by squatters; that when attempts to have them removed from the property failed, especially as some of them claimed ownership to the aid property, he commenced legal action to have them evicted. According to the appellee, the case was tried in the lower court, judgment was entered in his favour, and on appeal to the Supreme Court the judgment was affirmed. He stated that in the course of the entire process, the appellant never appeared to claim title to the property although its managing partner lived only a few minutes’ walk from the property. The appellee further testified that it was only after he had evicted the squatters and illegal occupiers of the property from the said property and commenced work thereon that the appellant claimed ownership to the property. Furthermore, he said, and his testimony was corroborated by the testimony of other witnesses, that there was serious public interest in the property, to the extent that the President, believing that the property belonged to another party, had even visited the property to dedicate a structure thereon. These events, the appellee stated, were carried both on the radio and in the newspaper and were widely known and visible to the public, and that it was only on his intervention in bringing to the attention of the President that the property in question was owned by him, that the efforts of the Government were halted. Yet, in all of these events, the appellant made no intervention.
All of the above could have led the jury into believing that if the appellant truly believed that that it held title and ownership to property, subject of dispute in the instant case, it would not have sat by and allowed the property to be used by others without raising objections or see the property go to waste, and decided only to raise objections after the property had been rendered usable and developed by another. The jury may even have believed that the act of the appellant would amount to unjust enrichment, and both in that regard and the other evidence presented which showed serious deficiencies and defect$ in the appellant’s title, determined that appellant did not meet the standard to be awarded title to the property. Again, we do not propose to engage in conjecture, although we are rather surprised that the appellant did not exert greater efforts to ensure that the property and its title thereto were adequately secured as to ensure its retention of superior title or right to the property. We cannot, therefore, under the circumstances, say that the jury was in error or see that there is sufficient basis to disturb the verdict returned by the triers of the facts or the judgment of the trial court confirming and affirming the said verdict and entering judgment thereon.
Before we conclude this Opinion, we would like to sound a stern warning on counsel to refrain from conduct which we believe cast aspersion on the legal profession, impugn on their integrity and leave the impression of unethical behavior. We note that the parties, in support of their claims, attached two Opinion Memoranda from firms and persons who, in the course of the controversy as to title and ownership of the land in dispute, set out what they said were their views and position on the matter. While we do not have a problem with counsels advising their clients as to whether, in the opinion of counsel , the clients have a reasonably good case for litigation, we have serious misgivings when counsel, representing both parties, provides an opinion as a result of a conference with the two parties. We note that the appellant, to impress the trial court that it had a sound case for judgment in its favour, attached to its pleadings an Opinion Memorandum from the Sherman and Sherman law Firm. The allegation, gathered from the both parties and from the records, is that at the time Sherman and Sherman provided the Opinion Memorandum to the parties, it represented both the appellant and the appellee, it had invited both parties for a series of meetings, it had secured documents from the two parties on the matter, and thereafter, under the signature of Counsellor Jonny Momoh, it gave an opinion that effectively adjudged one party liable in the matter. We do not question that the intent may have been honourable and good. What we do say is that it does not speak well of the counsel, especially when one of the clients then proceeds to another Firm and secures a contrary opinion. The dispute, we believe, should have been submitted to an independent lawyer for analysis and opinion. No law firm should allow itself to be placed in such a position. No law firm should in a matter represent two opposing clients in a controversy because it draws into question the Firm’s impartiality and it creates a perception, whether actual or imaginary or speculative, that the Firm is not acting in the best interest of the clients. The better approach, in our view, was for the Sherman and Sherman law Firm to inform the parties that it could not undertake or perform such a task since both parties were clients to the Firm, and recommend instead that an independent law firm be approached to give an opinion on the matter if the parties so desired.
Because the other issues presented by the parties are not of such consequence as to affect the outcome of the case and give additional value to the Opinion and all that we have stated or alter the law controlling in matters such as the instant case, we shall not delve into those issues beyond what we have said of most of them in analyzing the core issues presented. This is consistent with the many holdings of this Court that it does not have to address every issue presented once this does not affect the administration of justice or prejudices any party, or could not control the outcome of the case. Knuckles v. The Liberian Trading and Development Bank, [2000] LRSC 6; 40 LLR 49 (2000);Republic v. The Leadership of the Liberian National Bar Association, [2001] LRSC 26; 40 LLR 635 (2001); Kamara and Kollie v. Kindi et al.[1998] LRSC 26; , 39 LLR 102 (1998).
In concluding we would like to punctuate that in holding as we do that the appellant failed to meet the standard of proof required of it in order to be entitled to the property in dispute, and that as such the appellee holds a superior title and is therefore entitled to the property, we do not preclude the appellant from pursuing any other remedy against the Intestate Estate of the late G. Koffa Nagbe. As we stated earlier In this Opinion, this Court has on numerous occasions expressed its strong concern regarding the current trends whereby persons, natural and legal, purporting to hold title to realty have sold such land to a number of persons, innocently and deliberately. However, whether the act is done innocently or deliberately is not of essence to this Court. What is of essence is that a party is injured by the action of the seller or conveyor of the realty. It is therefore our Opinion, consistent with law, that where one having title to real property, sells the said property to one person and thereafter sells the property to a second or third person he can and should be held civilly and criminally for the act. Thus, consistent with our Constitution and the several statutes which grant unto an aggrieved party a right of action, a person who has purchased property from another who had previously sold such property, having a cause of action, can sue the seller for damages and recover not only the amount expended by him or her but also any other damages sustained as a result of the act of the seller.
Accordingly, presuming that it can furnish the appropriate letters of administration, or otherwise establish that letters of administration was issued to John G. T. Koffa, the appellant would then have a series of remedies available to it. It could demand, and rightfully, from the Intestate Estate of the late G. Koffa Nagbe an equivalent parcel of land to restore to it the land which the Estate had subsequently sold to the appellee, or demand the return of the amount which it paid for the land and compensatory damages for injuries suffered as a result of the conduct of the Estate unless the Estate disavows the representation made by John G. T. Koffa that he was administrator of the Estate, duly appointed by the Monthly and Probate Court for Montserrado County. In cases where negligence causes a purchaser to not probate and register his/her deed within four months of its execution and the purchaser’s grantor thereafter sells the same parcel of land to another buyer who probates and registers within the required time, while the negligence would preclude recovery of the land in dispute, such negligence would not prevent the initial purchaser from taking legal action and recovering against the grantor for the injury suffered growing out of the illegal second sale. Such accountability by conveyors of real property and according persons subjected to suffering as a result of the conduct of conveyors of real property already provided for by law, if strictly enforced, will serve as deterrence to other persons intending to engage in such conduct. Hence, the avenues stated above are available to the appellant.
WHEREFORE, and in view of the foregoing, it is the Opinion of this Court that the jury did not err in bringing a verdict In favour of the defendant and that the trial judge also did not err in confirming the said verdict and entering judgment thereon. Accordingly, the judgment of the lower court is hereby affirmed and confirmed.
The Clerk of this Court is hereby ordered to send a Mandate to the lower Court to resume jurisdiction over this case and to proceed to enforce the judgment of the court in accordance with law. Costs of these proceedings are assessed against the appellant. AND IT IS HEREBY SO ORDERED.
Counsellors Cyril Jones of Jones and Jones Law Firm and T. Negbalee Warner of Heritage Partners and Associates appeared for the appellant. Counsellors Momodu T. Babah Jawandoh of MUSICAL Chambers Liberia, Inc., David A. B. Jallah of the David A. B. Jallah Law Firm, Emmanuel B. James of the lnternatlonal Group of legal Advocates and Consultants, and Yamie Quiqui Gbeisay, Sr. of Tiala law Associates, Inc. appeared for the appellee.
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2015