The Heirs and Estate of the Late James A. A. Pierre, by and thru its Administrator, Counsellor James E. Pierre, of the City of Monrovia APPELLEE/MOVANT VERSUS McKinley K. Commings, also of the City of Monrovia APPELLANT/RESPONDENT

MOTION TO DISMISS

Heard: May 3, 2005 Decided:                          September 16, 2005

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT

The records in this case reveal that as a result of dispute surrounding a five-acre parcel of land situated in the “12 houses area” of Paynesville, Montserrado County, between the heirs of the of the Late James A. A. Pierre and Mckinley K. Commings, an agreement to submit to Statutory Arbitration to determine the ownership of the said property was signed by the parties on the 9thday of September, A.D. 2002.

This agreement was approved by Judge Felecia V. Coleman then assigned Circuit Judge presiding over the September A.D., 2002 Term of Civil Law Court, Sixth Judicial Circuit. The said agreement was witnessed by the counsellors for the respective parties, that is, Cllr Francis Garlawolu for the Appellant/Respondent and Cllr. Scheaplor Dunbar for the Appellee/Movant.

The parties to the Arbitration agreement unanimously agreed to the following: that a Board of Arbitration be appointed to investigate and make findings of the facts as they relate to the ownership of the property in question; that a formal written report and findings be submitted to the court for implementation in keeping with the Provisions of Chapter 64 of the Civil Procedure Law; that the Arbitrators’ findings would be considered valid, conclusive, binding and enforceable. Besides the losing party agreed to waive all legal and equitable defenses of which it could have availed itself in respect of any proceedings instituted by the Revealing Party to enforce the Arbitrators’ decision; that under the terms of the said agreement, arbitration would be the only and exclusive remedy available to the parties; and that no suit either at law or equity would lie to determine the right to the property besides the Arbitration proceedings agreed to by the parties.

On the basis of the above, a three member Board of Arbitrations was on November 27, 2002, constituted by Judge William Metzger. On April 8, 2003, the findings and final report of the Board was submitted to court. For the benefit of this opinion, we hereby quote the unanimous conclusion of the Board of Arbitrations.

“The Board wishes to clearly state that the Public Land Sale Deed from the Republic of Liberia to James A.A. Pierre conforms in all aspects with the actual property on the ground. To simply put it, the Pierres’ Deed meets all the technical requirements, it can be plotted and it matches the property on the ground. As for the Warranty Deed from Thomas Mack Deshield to Mckinley K. Commings, the technical information contained in the Deed cannot be plotted to make it conform to the property on the ground in the area under dispute. The Commings’ Deed bears no relationship with any Property in that area”.

Following the submission of the Arbitrators’ report to Judge Metzger on April 22, 2003, the Respondent filed a motion to vacate the Arbitrators’ report, but said motion was denied by Judge Wynston O. Henries, Resident Circuit Judge, Civil Law Court in his ruling of May 7, 2004. In keeping with Section 64.10 of the Civil Procedure Law, the Movant on May 12, 2004 filed a motion requesting the court to confirm the Award of the Arbitrators and this request was granted on May 18, 2004.

On July 6, 2004, a motion for the entering of a Final Judgment in keeping with Section 63.13 of the Civil Procedure Law was filed by Movant. The Court granted the motion, and confirmed the findings and decision of the Board of Arbitrators submitted to the court on April 8, 2003. The Report provides that “title to the five-acre Parcel of land, the subject of the Arbitration proceedings, is vested solely in Movant, that is, the heirs and Estate of the Late James A.A. Pierre, to the exclusion of any claims that the Respondent, Mackinley K. Commings may have to the property”.

The Court’s final judgment was excepted to by the court’s appointed counsel for the Respondent and an appeal was announced therefrom to the Honourable Supreme Court , of Liberia. The appeal was granted, and an approved Bill of Exceptions was filed with the Clerk of the Court below. The records in the case file also show that the Respondent filed an Appeal Bond, but failed to file and serve a Notice of Completion of Appeal.

Due to the failure of the Appellant/Respondent to file a Notice of Completion of Appeal, Appellee/Movant requested the Clerk of the Court below to issue a Clerk’s Certificate to that effect and a Clerk’s Certificate was issued. For the benefit of this opinion, we deem it necessary to quote said Certificate:

CLERK’S CERTIFICATE
This is to certify that from a careful perusal of the Records of this Honourable Court, it is observed that the APPELLANT IN THE ABOVE ENTITLED CAUSE OF ACTION HAS NOT FILED IN THIS COURT, HIS NOTICE OF COMPLETION OF APPEAL IN THE ABOVE CAPTIONED CASE UP TO AND INCLUDING THE WRITING OF THIS CLERK’S CERTIFICATE. HENCE THIS CLERK’S CERTIFICATE.

Upon the receipt of the Clerk’s Certificate, Appellee/Movant filed a Motion to Dismiss Appellant/Respondent’s Appeal on ground of Appellant/Respondent’s failure to file and serve a Notice of Completion of Appeal.

To this Motion to Dismiss, Appellant/Respondent failed to file a Returns. More besides, the records show that on several occasions when the case was assigned for hearing/argument, the Appellant/Respondent did not appear nor file a Brief. However, on Monday, April 18, 2005, when the case was called for the hearing/argument of the Motion to Dismiss, Appellant/Respondent was represented by Counsellor Francis Y. S. Garlawolu who requested the Supreme Court for the deferment of the argument in the case on grounds that he was just retained and needed time to read the case file so as to enable him to represent the legal interest of his client.

This request was granted by the Court due to the fact that Appellee/Movant’s Counsel did not object to same, but simply informed the court that Cllr. Francis Y. S. Garlawolu was one of the Counsels for Appellant/Respondent in the Court below and that Counsellor Francis Y. S. Garlawolu signed the agreement in the arbitration proceedings.

The records further show that when the case was reassigned for argument, both the Respondent/Appellant and Counsel did not appear or send any written excuse to the Court. Appellee/Movant therefore invoked Rule IV, part 7 (e), pages 67, 68 and 69 of the Revised Rules of the Supreme Court, praying Court to allow him proceed with the argument of the case. The request was granted and Appellee/Movant was allowed to argue its side of the Motion to Dismiss Appellant/Respondent’s Appeal.

From the facts and circumstances stated above, the only issue to be determined by the Honourable Supreme Court is: whether or not Appellant/Respondent’s failure to tile and serve a Notice of Completion or Appeal is a ground for the dismissal of the Appeal?

Under our law, it is the service and filing of the Notice of Completion of Appeal that pleases the parties under the jurisdiction of the Supreme Court. Our Civil Procedure Law, Section 51.4 (d) of the Liberian Code of Law Revised provides that:

The following acts shall be necessary for the completion of an appeal:

a) Announcement of the taking of the Appeal;

b) Filing of the Bill of Exception;

c) Filing of an appeal bond;

d) Service and tiling of notice of completion of the Appeal

Failure to comply with any of these requirements within the time allowed by statute shall be ground for the dismissal of the Appeal”.

Section 51.9, page 251 of the same book also provides that “After the foiling of the Bill of Exceptions and the filing of the appeal bond as required by sections 51.7 and 51.8, the clerk of the trial court on application of appellant shall issue a notice of the completion of the appeal, a copy of which shall be served by the appellant on the appellee. The original of such notice shall be filed in the office of the Clerk of the trial Court”.

This court has held in the case: Nancy Vs. Curry, 14 LLR 152 (1960) that “when an Appeal statute has been violated and the appellant fails to perfect his appeal within Sixty (60) days as required by law, the Appeal should be dismissed since the statute prescribing the period of time within which an appeal must be taken is mandatory”. In the case: ITP Ltd, a Liberian Corporation, represented by its Attorney-In-Fact Counsellor Henry Reed Cooper, Petitioner, S. Baccus Mathews, Minister of Foreign Affairs, Respondent, 37 LLR, Syl 1, page 808, this Honourable Court held that “the failure of the appellant to file and serve a notice of completion of appeal within 60 days is a ground for the dismissal of the appeal”. Also this Court has held that “the notice of completion of appeal issued by the Clerk, upon application of the appellant, served on the appellee and returned served by the ministerial officer of the trial court, places the appellee under the jurisdiction of the Supreme Court”. See the case: Elizabeth Emmanuel, Plaintiff-hi-Error, Vs. His Honour Eugene L. Hilton Assigned Judge Presiding, People’s Civil Law Court for Montserrado its September Term, A. D. 1983, and Mary Y. Lewis, Defendants-in-Error, 32 LLR Syl. 3, page 277, Text at page 286.Hence, the Appellant/Respondent having Failed to tile and serve a Notice of Completion of Appeal, it is tile of this Court that the Motion to Dismiss the appeal be granted.

Wherefore and in view of the facts, circumstances and the laws we have cited above, the Motion to Dismiss the Appeal is hereby granted and the Appellant/Respondent’s Appeal is hereby dismissed. The Clerk of this Court is hereby ordered to send a mandate to the Court below commanding the Judge presiding therein to resume jurisdiction over this matter and enforce the final judgment of the trial Court in the Arbitration proceedings. Costs ruled against Respondent. AND IT IS HEREBY SO ORDERED.