CAVALLA RUBBER CORPORATION, Petitioner/Appellee, v. THE LIBERIAN TRADING AND DEVELOPMENT BANK (TRADEVCO), Respondent/Appellant.

PETITION FOR REARGUMENT

Heard: September 18, 1996. Decided: September 27, 1996.

1. The statutes governing appeal shall be strictly construed; and when a party fails or neglects to comply with any of the mandates of these statutes, the appeal shall be dismissed.

2. The statutes provide that security for an appeal bond shall be either real property to the value of the appeal bond or an insurance company authorized to issue surety bond in Liberia.

3. Cash, manager’s check, certified checks and other such securities for bonds, in general, do not qualify as security for appeal bond. Therefore, an appeal bond, secured by a manager’s check, is defective and the appeal shall be dismissed upon motion of the appellee.

4. When an appeal has been dismissed, the Supreme Court is prohibited from delving into the merits of the appeal or from discussing the facts and circumstances of the case, no matter how just and equitable it might seem to do so.

5. Where a case has been dismissed by the trial court and the appeal therefrom dismissed by the Supreme Court for any one or more jurisdictional defects, such as defective appeal bond, the judgment of the trial court remains as it was when the appeal was taken and the Supreme Court shall not issue an order for the trial court to hear the merits of the case or for the case to be recommenced.

Respondent instituted an action of debt against petitioner at the Debt Court for Montserrado County; but upon a motion of the petitioner to dismiss, the trial judge dismissed the case. Respondent appealed to the Supreme Court and filed an appeal bond, secured by a manager’s check consistent with several opinions of the Supreme Court to the effect that cash, manager’s check or certified check may secure an appeal bond. Petitioner filed a motion with the Supreme Court to dismiss the appeal for reason that the statutes allow only for real property or an insurance company so authorized to secure an appeal bond. In response, respondent contended that it had filed an appeal bond consistent with several prior decisions of the Supreme Court and so if the Supreme Court is recalling its own previous opinions that recall should not be retroactive as to affect the appeal before it.

The Supreme Court reiterated its previous opinions on the issue and granted the motion to dismiss but without prejudice to the parties to appear at the Debt Court for Montserrado County and hear the debt case on its merits to determine what currency (Liberian dollar or United States dollar) the debt should be paid in since there was no denial of the debt itself.

Petitioner filed a petition for reargument which was granted. Upon hearing, the Court dismissed the appeal but without prejudice to the petitioner to recommence its case.

Considering the second opinion to be different from the judgment, and therefore filed a second petition for reargument, which was again granted. Upon hearing, the Supreme Court dismissed the appeal without reserving to the respondent any right to have the debt case heard on its merits, holding that in accordance with the language of the law on appeal bonds the respondent’s appeal bond was defective since it was not secured by real property but by a manager’s check.

Charles W. Brumskine and Oswald N. Tweh appeared for petitioner. H Varney G. Sherman appeared for respondent.

MR. JUSTICE BADIO delivered the opinion of the Court.

This petition for reargument grows out of an action of debt filed by the respondent against the petitioner, which was dismissed by the debt court upon the motion of the petitioner. Respondent then filed an appeal to the Supreme Court, and again petitioner moved to dismiss the appeal for reason of defect in the appeal bond. The motion to dismiss the appeal was heard during the March, A. D. 1995 Term of this Court and deter-mined on July 27, 1995; but on the following day, July 28, 1995, the petitioner petitioned the Court for reargument, alleging that the Court overlooked certain important points of law, which in effect inadvertently negated its own decision dismissing the appeal.

Even though the respondent’s appeal was dismissed in essence, His Honour Mr. Justice Smith speaking for the Court ordered, as follows:

“…without prejudice to the parties appearing in the trial court to present evidence as to the actual amount of debt owed by the defendant company and in what currency the evidence shows said obligation should be discharged. The case is therefore remanded to the trial court commanding the judge therein presiding to resume jurisdiction and proceed to hear evidence specifically as to the amount due by the defendant company and in what currency the debt obligation is to be discharged.”

Petitioner contended that this Court’s decision dismissing the appeal without prejudice means that this Court had allowed for the institution of a new suit for the same action; and yet the Court inadvertently ordered the trial judge to resume jurisdiction over the cause of action that had been dismissed and proceed to hear evidence. Petitioner contended that the dismissal of an appeal prohibits the appellate court from reviewing the appeal or the issues outlined in the appealed case; and as such, this Court should not have ordered the trial court to resume jurisdiction and proceed to hear evidence in the same case.

Oral arguments of the July 27, 1995 petition for reargument were entertained during the October, A. D. 1995 Term of this Court and on December 7, 1995, this Court again decided in its opinion, as follows:

“Therefore, in view of the foregoing, the appeal from the judgement dismissing the action of debt on jurisdictional grounds is dismissed for defects appearing on the face of the appeal bond; but the matter not having been tried as to its merits, the plaintiff is permitted to recommence his action with the right to election of venue as well as remedy to be sought. The Clerk of this Court is ordered to send a mandate to the Judge of the Debt Court, Montserrado County, informing him of this judgement. And it is hereby so ordered.”

The judgement, which was entered based on the opinion, ordered as follows:

“That the petitioner/appellee’s petition for reargument is granted and the appeal dismissed without prejudice and plaintiff is permitted to proceed with the debt action in the court below.”

For the second time, petitioner filed a petition for the re-argument of this case; and this time petitioner contended that it observes that the concluding clause of the opinion is different from the judgement. In other words, petitioner submitted that this Court has inadvertently permitted respondent, plaintiff at the trial court, to proceed with the debt action in the debt court.

Petitioner argued that the granting of its July 28, 1995 petition for re-argument and also the dismissal of the appeal for reason of defect in the appeal bond legally corrected the mistakes in the first opinion; therefore the second opinion requiring the plaintiff to proceed with the debt action is a mistake, which should be corrected, because, there was no debt action pending in that court, as the debt action had been dismissed by the Debt Court.

In its returns, respondent argued that it had filed an appeal bond, secured by a manager’s check, consistent with several decisions of this Court that a manager’s check can secure an appeal bond and that it is this case that has recalled those decisions and instead held that only natural persons with real property to the value of the appeal bond can secure an appeal bond. Respondent further contended that pursuant to well-established and generally accepted principles of appellate practice, the recall of the Supreme Court’s earlier decisions on procedural law should not affect this case at bar and that it is for this reason that notwithstanding the recall of those decisions and the granting of the motion to dismiss, the Supreme Court has ordered that the case be proceeded with at the Debt Court on the merits.

Respondent also emphasized that because the amount claimed as debt is so large and also because the proceedings involves a foreign commercial bank, this Court’s opinion dismissing the case on procedural grounds sends the wrong signal to the business community at this critical period in the history of our country, and therefore this Court should avoid the legal technicalities raised by petitioner and allow the Debt Court to proceed with the action, as ordered in the two previous decisions of this Court in this matter.

The text of Rule IX of the Supreme Court Rules provides a relatively simple rule and the vitality of that rule consists wholly in the fact that it received the Bar’s acquiescence and it also rests upon legal conscience and legal justification. Based on this, the Supreme Court in the past several years and in many opinions has entertained rehearings which have led to the overruling of prior decisions and the denial of some petitions for re-arguments.

Section 51.8 of the Civil Procedure Law, Revised Code, provides that every appellant shall give an appeal bond in the amount to be fixed by the court with two or more legally qualified sureties, and that a failure to file a sufficient appeal bond within the specified time shall be a ground for dismissal of the appeal.

The dismissal of respondent’s appeal is consistent and also in conformity with our holding in the case, Gabbidon .v. Toe[1974] LRSC 24; , 23 LLR 43, 47 (1974). In that opinion we held that “Our law does not give us the authority either to add to or take from what the Legislature has commanded unless the said command clearly breaches provisions of the Constitution.”

Reverting specifically to the respondent’s argument, we observe that the underlying implication is that we relax the rule and permit a hearing on the merits of the claim in the Debt Court rather than dismissing the case on appeal on the legal technicality that instead of a manager’s check, only real property to the value of the appeal bond can secure an appeal bond. That argument reveals, in essence, that respondent’s failure to file a proper bond, as provided by the statute, should be ignored by us and the case proceeded with because of the amount and the commercial bank involved.

This line of reasoning has been repeatedly rejected by the Supreme Court; for example, in the case West African Trading Corporation v. Alraine (Liberia) Ltd., [1976] LRSC 23; 25 LLR 3,10-11 (1976), this Court said: “… courts do not decide substantive issues upon immaterial technicalities. However, dismissal of an appeal on grounds of non-compliance with the statute is not a technicality.” Based on this principle, this Court has consistently applied the relevant statutes mandating the dismissal of an appeal upon failure to file a proper appeal bond, irrespective of the merits of the pending case or the parties thereto.

Therefore, this Court’s opinion of December 7, 1995, delivered by Mr. Justice Yancy, correctly held that a defective appeal bond is a mandatory statutory ground for dismissal of an appeal and it is a legal principle in this jurisdiction that has remained consistent and unalterable throughout the judicial history of the Republic of Liberia.

However, the same opinion permitted respondent to replead and to recommence his action with the right to election of venue as well as remedy to be sought. Furthermore, we observe that the judgment is different from the decision or holding of the opinion, in that the judgement orders:

“That the petitioner/appellee’s petition for re-argument is granted and the appeal dismissed without prejudice and plaintiff is permitted to proceed with the debt action in the court below.”

It is because of the variance between the decision of the opinion and the accompanying judgement that petitioner filed the second petition for re-argument, which was ordered by the justices to be docketed for this second rehearing.

We hereby reconfirm the law established and settled in this jurisdiction that an appeal must be dismissed when it is determined that appellant’s appeal bond is defective.

While we agree that modern practice does not favor too many technicalities, but prefer to hear a case on its merits, the basic principles of appellate procedure cannot be disregarded as they apply to appeal bonds. We must at all times abide by that law.

We acknowledge that respondent’s argument sounded quite reasonable and convincing and we certainly would have encouraged more extensive arguments to reveal the facts surrounding the debt case and how that case was disposed of and dismissed by the judge of the debt court, as repeatedly referred to in respondent’s argument. However, we cannot legally and procedurally discuss, expound on, or decide issues not made a definite part of a proceeding, and squarely presented for our consideration. This proceeding dwells only on the issue of the defectiveness of the appeal bond and not on the merit of what transpired at the debt court to warrant the appeal. If that were not the case, we would have surely expanded greatly on the legal and equitable rights of the parties in that litigation; but regrettably, we are legally prohibited from doing so.

It must be made clear, however, that the Supreme Court has the responsibility of deciding a case presented pro et con by the counsellors representing the parties. Many times the Justices of the Supreme Court are criticized for deciding cases contrary to the expectation of the public. These criticisms, we freely accept and tolerate because the public’s understanding of the law and trial procedure of our courts is limited. Regrettably, however, we cannot comprehend why professional lawyers, especially counsellors, who are knowledgeable in the law and trial procedures, would express views contrary to what they know are definite provision of statutes, especially when, due to their own negligence, they allow their clients rights to float into the pool of despair.

Frankly, we prefer not to suggest that some lawyers intentionally avoid complying with the essential requirements of law and procedure because they, indeed, have a definite responsibility to maintain and defend the rights of their client. However, could any conscientious individual think otherwise when, considering the level of intelligence and professional ability of some lawyers, they resolve to acting completely different and contrary to the required provision of the law?

The Supreme Court is always ready and prepared to secure the rights of party litigants both in law and in equity; but we, the justices, would be straight-jacketed if those lawyers who are required to present issues in the interest of their clients, as in this case, intentionally decide to proceed contrary to the provision of law and at the conclusion of the hearing expect the justices to twist the law only to cover up their own unprofessional exercise. Lawyers, especially counsellors, are expected to be very diligent.

In view of the foregoing, petitioner’s motion to dismiss respondent’s appeal and the petition for reargument filed are hereby granted and the appeal dismissed. The Clerk of this Court is ordered to send a mandate to the judge of the Debt Court for Montserrado County informing him of this judgment. Costs are disallowed. And it is hereby so ordered.

Petition granted; appeal dismissed.