MICHAEL GWENIGALE AND THE DIRECTOR OF THE CHURCH WORLD SERVICES, Appellants, v. JEROME G. PELHAM, Appellee.
MOTION TO DISMISS AN APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: December 20, 1995. Decided: January 26, 1996.
1. The Civil Procedure Law provides that an appeal bond securing an appeal should contain a description of the property sufficient to easily identify same.
2. Where the description of the property securing a bond is vague and uncertain, thus making the location of the property on the ground difficult, the bond is defective.
3. If the description is sufficient to identify the particular piece of property intended to be encumbered by the bond, the appeal shall not be dismissed.
4. A sufficient description of realty in the affidavit of sureties means that the property is so described as to make finding it on the ground an easy exercise.
5. If property pledged is so described as not to make finding it an easy exercise, it will be deemed inadequate and the appeal will be dismissed.
6. A motion to dismiss an appeal should be granted where the appeal bond is incurably defective. But where extrinsic factors can assist in establishing sufficiently the property pledged, the bond is deemed sufficient.
From the final judgement of the Civil Law Court of the Sixth Judicial Circuit, defendant/appellant appealed to the Supreme Court. When the notice of completion of appeal was served on the appellee, he moved the Court to dismiss the appeal on grounds that the property offered as security for the bond is not sufficiently described.
The Supreme Court stated that a sufficient description of realty in an affidavit of sureties requires that the property be so described as to make finding it on the ground an easy exercise; and that if the description is such as to make finding the property difficult, the bond will be deemed inadequate and the appeal will be dismissed. In the instant case, the Supreme Court, upon review of the records, found that the description of the property given was vague and uncertain, which made the location of the property on the ground difficult. Accordingly, the Court held that the bond was defective in keeping with statute, and decided cases, and therefore granted the motion to dismiss.
G. Wiefueh Sayeh appeared for movant/appellee. Elijah Garnett and Flaagwaa R. McFarland appeared for appellant.
MR. JUSTICE YANCY delivered the opinion of the Court.
The records indicate that on the 15th day of December, A. D. 1991, at about 10:30 p.m., an accident occurred on the Gardnerville highway near the area known as Chocolate City, in which appellee/movant’s vehicle bearing license number 7654 was damaged by another vehicle, bearing license number GP-114, owned by the appellant/respondent Church World Services, and driven by Michael Gwenigale.
The Traffic Court for Montserrado County found the appellant/respondent guilty of reckless driving resulting in property damage. The judgment was appealed to the Criminal Court ‘B’ of the First Judicial Circuit, Montserrado County, and Monrovia, where the matter was left in limbo, as the appellants/respondents did nothing to have their appeal heard.
On March 30, 1992, appellee/movant, commenced a civil action of damages for wrong in the Civil Law Court, Sixth Judicial Circuit Court, Montserrado County, praying for nine-teen thousand five hundred Liberian dollars (L$19,500.00) as special damages, calculated on the average earnings of the taxi for the period of time from the accident up to the commencement of the action, and general damages for the inconvenience and hardship suffered by the loss of the use of the taxi in transporting the children to and from school etc., in the sum of forty thousand Liberian dollars (L$40,000.00), or a total damages award of fifty nine thousand Liberian dollars (L$59,000.00).
The defendant filed an answer denying liability and at the same time moved the court to dismiss the complaint on the grounds that the driver of the Church World Services, being an employee of said church, is not the owner of the vehicle; and the Church being the owner, enjoys diplomatic immunity.
The motion was resisted by the plaintiff, heard, and denied. Further, the court ordered the assignment of the case for disposition of law issues, at which hearing, the defendant now appellant/respondent, was ruled to bare denial, on grounds that although the answer was filed with the Clerk, it was not served on the plaintiff within statutory time.
At the trial, plaintiff was required to prove his case and the defendant to cross examine plaintiff’s witness. Being on bare denial, no allowance was given for the introduction of any affirmative matter by the defendant, which is in keeping with the rules of evidence in vogue in this jurisdiction. Civil Procedure Law, Rev. Code 1: 9.1(2).
The plaintiff produced witnesses and after examination, arguments pro et con were heard and the jury duly charged. Returning from their room of deliberation, a verdict of “liable” was brought against the defendant, appellant/ respondent herein in the amount of fifty nine thousand Liberian dollars (L$59,000.00), of which nineteen thousand Liberian dollars (L$19,000.00) were for special damages, and forty thousand Liberia dollars (L$40,000.00) for general damages.
Defendant, appellant/respondent excepted to the verdict and filed a motion for retrial, which was heard and denied. From a final judgment rendered on February 4, 1995, defendant announced an appeal which was granted. Defend-ant/appellant’s duly approved bill of exceptions was filed; appeal bond filed and notice of completion of appeal duly served on the appellee/movant by March 28, 1995. There the matter rested until April 6, 1995 when counsel for appellee/ movant dispatched a letter to counsel for appellant rejecting the notice of completion of appeal in that the requirements for the completion of appeal had not been fully satisfied. The records reveal that there was no response from the appellant/respondent to this timely notice until the appellee/movant filed the motion to dismiss the appeal on 18th October, A. D. 1995.
Appellant/respondent resisted the said motion by filing a bond on 15th December, A. D. 1995. The motion to dismiss is on the grounds of defects in the certainty of the description of the demised property in the bond. Appellant contends that the requirements of the Civil Procedure Law, Rev. Code 1:63.2(3) has been fully satisfied. On this defect in the sufficiency of the description of the demised property in the appeal bond, rests the crux of the matter as to whether an appeal may be dismissed for reasons thereof.
The statutes clearly provide the several grounds for the dismissal of an appeal: Id, 1:63.2(3). More importantly, the statute provides when the sufficiency of an appeal bond may be tested: Id.,1:63.6.
The statutes provide that an appeal bond should contain a description of the property sufficient to easily identify same; Id., 63.2(c).
The description in the appeal bond is herein below quoted in toto:
Property of surety James E. Summerville, located in Paynesward, Montserrado County, R.L., lot nos. 1, 2 and 3, valued at $75,000.00 area; one acre:
a. “Commencing at the southwestern corner of said one acre block marked by a concrete monument and running on magnetic bearings North 36 degrees 30 minutes East 264 feet; thence running South 53 degrees 30 minutes East 165 feet; thence running South 36 degrees 30 minutes 264 feet parallel with a 264 feet alley; thence running North 53 degrees 30 minutes West 165 feet to the point of commencing, and containing one acre of land and no more.”
From the above, it is clear to any casual observer that the point of commencement is not referenced to any other point or points but to itself. Furthermore, there is no adjacent owner named on any of the sides, but the land is described as running parallel with a 264 feet alley. Now the highways are in the hundred of feet, but alleys are usually from 16 to 25 or 30 feet in width. Hence a 264 alley is an innovation. But more important, the resistance to the motion to dismiss, has the alley as being 264 feet, whereas the description contained in the statement of property evaluation as filed has a 246 feet alley. A doubt and uncertainty therefore exists patently on the face of the bond.
The second piece of property proferted is allegedly owned by one Peter N. Shan, located in Duala, Bushrod Island, valued at L$35,000 containing 1/4 of an acre which is described as follows:
b. “Commencing at the corner block of a half lot and running thence North 54 degrees East 99 feet to the river; thence running North 36 degrees West 55 feet parallel by the river; thence running South 54 degrees West 99 feet to the edge of the river thence running parallel by the alley; thence running South 36 degrees East 55 feet to the place of commencement and containing one lot or 1/4 acre of land and no more.”
Note here that the metes and bounds filed with the bond is written on Ministry of Finance headed official paper and signed by the “Property Owner” and is undated. Also the description gives lines running from the edge of the river and parallel “by the alley”. The length or distance of this portion of the property that runs from the edge of the river parallel by the alley is omitted as well as the width of the said alley. Hence, if the figure is a rectangular one, bounded 99 feet by 55 feet, where does the portion running by the alley from the edge of the river fit into the plan? This also is an ambiguity.
It is clear from these descriptions that the property can not easily be located, since the description is vague and uncertain; hence the bond is defective in keeping with statute, and decided cases. Id., 1: 63.2(c); West Africa Trading Corpo-ration v. Alraine (Liberia) Ltd., [1975] LRSC 16; 24 LLR 224 (1975), Zayzay v. Jallah, [1976] LRSC 6; 24 LLR 486 (1976); Kerpai v. Kpene, [1977] LRSC 4; 25 LLR 422 (1977).
In the above cited cases, it is held that if the description is sufficient to identify the particular piece of property intended to be encumbered by the bond, the appeal shall not be dismissed. In Kerpai v. Kpene, [1977] LRSC 4; 25 LLR 422 (1977); West Africa Trading Co., v. Alraine (Liberia) Ltd., [1975] LRSC 16; 24 LLR 224 (1975), and Zayzay v. Jallah, [1976] LRSC 6; 24 LLR 486(1976), the Supreme Court held that a sufficient description of realty in the affidavit of sureties means property so described as to make finding it an easy exercise. Further it is held that if property pledged is so described as not to make finding it an easy exercise, it will be deemed inadequate and the appeal will be dismissed.
In Everyday v. Due, [1978] LRSC 53; 27 LLR 291 (1978 ), this Court held that a motion to dismiss an appeal should be granted where the appeal bond is incurably defective. But where extrinsic factors can assist in establishing sufficiently the property pledged, the bond is deemed sufficient.
From the description given herein above, no extrinsic factors could be applied without admitting oral testimony to replace a written one. The origins of the survey description being vague, uncertain and indistinct, the bond is incurably defective and the appeal should be, and is hereby dismissed. Civil Procedure Law, Rev. Code 1:25.9.
In view of the above, the appeal is hereby dismissed, and the Clerk of Court ordered to send a mandate to the Civil Law Court ordering the presiding judge thereof to resume jurisdiction over the case and enforce the judgment. Costs are assessed against the appellant. And it is hereby so ordered.
Motion granted; appeal dismissed.