JAMES KAZIAH TOE, Appellant v. IDA WILLIAMS et al., Appellees.

MOTION TO DISMISS APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: May 11, 1982. Decided: July 9, 1982.

1. Failure to file and serve a notice of the completion of appeal within sixty (60) days after rendition of judgement is ground for the dismissal of the appeal.
2. It is the filing and service of the notice of the completion of the appeal that confers jurisdiction upon the appellate court over the cause and when not filed and served, or where it is filed and served more than sixty (60) days, the appeal will be dismissed upon motion properly made.

From a final judgement in an action of ejectment in the Civil Law Court for the Sixth Judicial Circuit Court for Montserrado County, appellants excepted and announced an appeal to the Supreme Court. Appellees moved the Supreme Court to dismiss the appeal on grounds that the notice of the completion of the appeal was not timely filed. The Supreme Court sustained the contention of the appellees and dismissed the appeal.

Ignatius N. Weah appeared for appellant. J. Emmanuel R. Berry appeared for appellees.

MR. JUSTICE MORRIS delivered the opinion of the Court

The appellant instituted of an action of ejectment against the appellees in the Sixth Judicial Circuit Court for Montserrado County for arbitrarily occupying lot No. 11 situated and lying at the intersection of Warren and Fair-Ground Road, now known as the United Nations Drive, in the City of Monrovia, Montserrado County, contending that he was the bonafide owner of the said property. In their answer the appellees contended, among other things, that this identical action was instituted by the same appellant against the same appellees for the identical property, on the 5th day of September 1980. They further contended that said action was dismissed by His Honor Frank W. Smith who presided over the December, A.D. 1980 Term of the Civil Law Court to which judgment, plaintiff/appellant excepted and appealed therefrom to the Honourable the Supreme Court of Liberia sitting in its March 1981 Term. Appellees also argued that appellant had not paid the costs of the action dismissed and had again instituted the identical action against the same appellees for the identical parcel of land, and therefore should the Court allow this action to stand, it would be encouraging a multiplicity of suits which was disallowed under our statute in vogue. Pleadings progressed to the reply. Having entertained arguments from both sides on the issues of law, the court dis-missed the action on September 15, 1981 and ordered the rents that were kept in escrow released to the defendants/ appellees. To this ruling the plaintiff/appellant excepted and appealed to this Court. Thereafter, he filed the bill of exceptions and appeal bond together with the notice of the completion of the appeal.

At the call of the case, counsel for appellees called the Court’s attention to a one-count motion which he had filed con-tending that the notice of the completion of the appeal was filed ninety (90) days after the rendition of final judgment in violation of the Civil Procedure Law, Rev. Code 1: 51.8. Counsel for appellant maintained that he had applied to the Chief Justice to have the bond approved nunc pro tunc on the 18th of November 1981 and that the Chief Justice had ordered the relieving judge, His Honour Hall Badio, to approve said bond on the same date, November 18, 1981. Notwithstanding this mandate, the appellant’s counsel sat supinely until the 17th of December 1981 before presenting said appeal bond to Judge Hall Badio for approval. The last paragraph of the appeal bond reads thus:

“The penalty of this bond is Four Thousand ($4,000.00) Dollars this 14th day of December, A. D. 1981, in the City of Monrovia, in witness whereof in the presence of witnesses we bond our hands and signature.”

Since the date of the execution of the bond is unknown, we regard this date as the date of the execution of the bond. The affidavit of sureties was sworn to on the 4th of December 1981 and the revenue certificate accompanying the appeal bond is dated December 10, 1981.

During the argument before us, appellants’s counsel admitted filing the bond eight-four (84) days after the rendition of judgment but argued that he applied for an enlargement of time. Recourse to the record indicates that other than the letter written to the Chief Justice, there was no application for the enlargement of time. The statute on enlargement of time states that:

“When under this title or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, provided by law, at any time in its discretion: (a) order the period enlarged if application is made before the expiration of the period originally prescribed or as extended by previous order, or (b) upon motion made after the expiration of the prescribed period permit the act to be done when the failure to act was the result of excusable neglect.” Civil Procedure Law, Rev. Code 1: 1.7(2).

We also quote appellant’s letter to the Chief Justice:

“November 18, 1981

May It Please Your Honour:

We beg to submit to your Honor’s Chambers that His Honor Frank W. Smith, People’s Circuit Judge, Civil Law Court, sitting in its September Term, A. D. 1981 by assignment has completed his Term

Also the Resident Circuit Judge James Bull, due to health reason is in foreign parts, United States of America, and as such, it becomes impracticable to advance the cause of our client.

We are therefore hereby craving Your Honour’s Chambers to advise which circuit judge will approve our client James K. Toe’s appeal bond.
Very obediently yours,

WEAH LAW FIRM
Ignatius N. Weah
COUNSEL FOR APPELLANT”

Judge Frank Smith, referred to in appellant’s letter, did not preside over the trial. The case was tried by Judge A. Wallace Octavius Obey who was afterward incapacitated, by his appointment as an assistant Minister of Justice after rendition of judgment. He therefore could not continue to perform any judicial act.

Although appellant’s letter was in no way an application for an enlargement of time in contemplation of the statute above quoted, appellant would have been within statutory time, if he had written his letter to the Chief Justice, prior to the expiration of the sixty days. According to the records before us Judge Obey’s ruling dismissing the appellant’s action was rendered on September 15, 1981, sixty-one days after the rendition of the judge’s judgment according to their argument, but sixty-four days according to the records before us. Appellees’ counsel contended that November 17th was the last day for the filing and service of the notice of the completion of the appeal, while counsel for appellant argued that the 18th of November was the last day. According to our calculation, from the 18th of September to the 18th of November 1981, is sixty-one days. However, if the 17th of November was a Sunday or a legal holiday, then and in that case the next day which was the 18th of November, 1981, would have been the last day. The 17th of November 1981 was on a Tuesday and was not a legal holiday. Hence, the contention of appellant’s counsel cannot be conceded.

Failure to file and serve a notice of the completion of the appeal within sixty days after rendition of judgment is a ground for the dismissal of the appeal. Civil Procedure Law, Rev. Code, 1: 51.4(d). This Court has repeatedly and consistently held that it is the filing and service of the notice of completion of appeal that confer jurisdiction upon the appellate court over the cause and when not filed and served, or where it is filed and served more than sixty days, the appeal will be dismissed upon motion properly made. Lartey v. Lartey, [1944] LRSC 3; 8 LLR 194 (1944);Nancy v. Curry, 14 LLR 152 (1960); Whea and Dough-Bie v. Bonwein and Karlstron, [1964] LRSC 35; 16 LLR 51 (1964); and Hannah v. Seaz, [1964] LRSC 39; 16 LLR 84 (1964).

In view of the foregoing circumstances as well as the facts mentioned and the laws cited supra, this Court has no other alternative but to grant the motion. It is therefore our holding that the motion be and the same is hereby granted, and the appeal dismissed. And it is so ordered.

Motion granted.