M/V Vega Granat by and thru its Captain and Mr. Austin Taylor including all Persons acting under his authority Movants Versus The Intestate Estate of George Freeman by and thru its Administratrix, Mrs. Jehdee Freeman of Grand Bassa County, Liberia Respondent

MOTION TO DISMISS

ACTION OF DAMAGES FOR WRONGFUL DEATH

Heard: October 30, 2019    Decided: February 7, 2020

MADAM JUSTICE YUOH DELIVERED  OPINION OF THE COURT

The •present motion to dismiss the appeal grows from an Action of Damages for Wrongful Death filed before the Second Judicial Circuit, Grand Bassa County.

The records show that on January 18, 2019, the respondent/appellant, the Intestate Estate of George Freeman, instituted an action of damages for wrongful death against the movant/appellee, M/V Vega Granat, a shipping vessel ow%ed by the movant/appellee, alleging inter alia, that the intestate, George Freeman, was a contractor on board the said vessel; that while in the employ of the respondent]appellant, the intestate, George Freeman, was allegedly exposed to a poisonous gas, carbon monoxide, thereby resulting in death due to asphyxia; that the cause of death was determined from an autopsy conducted by a consultant pathologist, Dr. Simeon Owizz Koroma; that the intestate estate incurred expenses for the burial of the decedent, and is still incurring expenses for the up-keep and maintenance of the intestate heirs, to include his widow and four (4) children.

On January 28, 2019, the movant/appellee filed its answer along with a motion to

dismiss the complaint invoking the legal doctrine of lis pendens, asserting that there was already a same action involving the same parties pending undetermined before the said court.

On February l, 2019, the respondent/appellant filed its reply and respective resistances to the motion to dismiss and a motion to join, thus resting the pleadings.

On April 24, 2019, following a hearing on the motion to dismiss, the trial court rendered its ruling, granting same in favor of the movant/appellee, but without prejudice to the respondent/appellant. In its ruling, the trial court noted that two Counsellors, Thompson Jarba and Joseph Kollie had filed separate actions on behalf of the intestate estate. In the first action of damages for wrongful death filed on April 23, 2018, the intestate estate was represented by Cllr. Joseph Kollie and while this action remained undetermined, the same intestate estate represented by Counsellor Thompson Jargbe filed similar action on January 18, 2019. The respondent/appellant noted exceptions to the ruling on the motion to dismiss, and announced an appeal to the Supreme Court.

On April 30, 2019 and May 21, 2019, the respondent/appellant filed its bill of exceptions and appeal bond respectively, and served the latter on the movant/appellee on May 23, 2019. Thereafter, on May 24, 2019, the respondent/appellant filed notice of completion of the appeal with the clerk of the trial court, and served same on the counsel for the movants on May 25, 2019, thus properly placing the matter before the Supreme Court for appellate review.

On June 4, 2019, while the matter remained pending before the Supreme Court, the counsel for the movant/appellee filed a motion to dismiss the appeal but later withdrew same and on June 25, 2019, refiled an amended motion to dismiss the appeal, which we quote below, to wit:

“Movant/Libellee Amended Motion to Dismiss

Movants/Libellees in the above entitled caused of action pray your Honors to declare the Respondent/Libellant’s Appeal Bond inconsistent with law and dismiss the appeal for the following reasons as follow to wit:

1. That a motion to dismiss filed by the Movants/Libellees was granted against the Respondent/Libellant on the 24^th of April, 2019 and the Respondent/Libellant herein excepted and announced an appeal to this Honorable Supreme Court of Liberia.
2. That the Respondent/Libellant filed its Bill of Exceptions on the of April, 2010, consistent with law. The Respondent/Libellant also filed an appeal bond on the 21 ^st of May, 2019, and served same on the Movants/Libellees counsel on the 23 ^rd of May, 2019, at the hour of 12 noon. Attached and marked WI is a copy of the said appeal bond to form part of this motion to dismiss.
3. That while the Movants/Libellees by and thru their counsel were planning to go to Buchanan to file their exceptions to the Respondent/Libellant’s appeal bond, the counsel was served with the

Respondent/Libellant’s notice of completion of appeal on the 25 ^th of May, 2019. That according to the said notice of completion of appeal, it was filed on the of May, 2019, thereby divesting the court below of jurisdiction and denying the Movants/Libellees the time and opportunity to except to the Respondent/Libellant appeal bond in the court below. Attached and marked M/2 in bulk is the copy of Respondent/Libellant’s notice of completion of appeal for Your Honors attention and perusal.

4. That under our Civil Procedure law consistent with chapter 51 section 51.8 “every appellant shall give an appeal bond in an amount to be fixed by the court, with two or more legally qualified sureties, to the effect that he will indemni$’ the appellee from all costs or injury arising from the appeal, if unsuccessful, and that he will comply with the judgment of the appellate court or of any other court to which the case is removed… “
5. That paragraph one (1) of the appeal bond filed by the Respondent/Libellant and which reads “know ye all men by these presents: that we, Jehdee Freeman Libellant/Appellant in the above captioned case and Sky International Insurance Company represented by its authorized corporate offcer, surety in the above captioned case do hereby bind ourselves and our representatives, administrators, assigns, jointly, and severally unto the Plaintiff in the amount of US$IO,OOO.OO (Ten Thousand United States Dollars), as the miount offer to guarantee/indemnify the plaintiff in case the Appellant/defendant/movant fails to proceed or to succeed in the appeal”. This paragraph also makes the bond utterly defective, incurably bad and contrary to the law above stated, hence, a subject of denial and dismissal of the appeal.
6. Further to count five (5) herein above, Movant says that the Respondent/Libellant is the plaintiff in this case and if the said Respondent/Libellant and its purported surety, the Sky International Insurance Company will according to the Libellant’s appeal bond bind themselves and their assigns, administrators, representatives to the plaintiff (Respondent/Libellant), then it means that the Libellant will indemnify itself instead of indemnifying the Movant/Libellee contrary to the law and does not meet the requirement and purpose of an appeal bond. The appeal must therefore be dismissed as a matter of law.
7. That the affidavit of surety signed by the Sky International Insurance Company is also defective. Paragraph four (4) thereof reads “that the surety has assets value of over million United States Dollars with savings in one of the banks within the Republic of Liberia and that the value of this bond is US$IO,OOO.OO (Ten Thousand United States Dollars) which amount is sufficient to guarantee the plaintiff and for the appeal of the defendant”.
8. Further to count seven (7) above, Movants says that with the paragraph above, the intent of the US$ 10,000.00 (Ten Thousand United States Dollars), the value on the Libellant’s appeal bond is to guarantee the plaintiff for the appeal of the defendant, which means that the libellant will secure itself from the appeal the libellees/defendants when in fact and indeed, the libellant is the appellant in this case. The said affidavit surety is also contrary to section 51.8 of the Civil Procedure law. It should be the defendants/libellees/appellees whom the appeal bond should secure for cost and expenses associated with the appeal of the plaintiffflibellant/appellant by the US$IO,OOO.OO (Ten Thousand United States Dollars) and not the appellant to secure itself by its own appeal bond.
9. That the object of an appeal bond is to indemnify the appellee and for the appellant to comply with the judgment of the appellate court or any other court to which the case is removed. In the instant case, the appellant has not committed itself to the indemnification of the appellees and has not committed itself to comply with the judgment of the appellate court. This being contrary to the statute and because the so-called surety is not bind in any contract to the appellees and the appellees will have no claim against the so-called surety, the appeal should be dismissed.
10. That under our law, a surety on a bond, if it is an insurance company, must be authorized to serve as or execute surety bonds within the Republic of Liberia. In the instant case, and from the Article of Incorporation attached by the Libellant and the Sky International Insurance Company, surety, to the appeal bond, the said surety is not authorized to execute surety bonds within the Republic of Liberia. The surety is therefore not legally qualified to serve as surety; hence the appeal should and must be dismissed.
11. That the so-called surety, the Sky International Insurance Company has shown no asset in itself to qualify as a surety in the instant case nor has it shown any bank statement in the amount of US$IO,OOO.OO (Ten Thousand United States Dollars) even if it had pledged same to indemnify the appellees from all costs and expenses associated with the appeal, nor has the said so-called surety shown any tax clearance as require by law.
12. Further to count eleven (11) above, the appeal bond being utterly defective, incurably bad and not consistent with law, the appeal must and should be dismissed consistent with the many opinions of the Honorable Supreme Court of Liberia.
13. That the appeal bond is filed by the appellant/Respondent herein is inconsistent with and not in obedience to the appeal statute. The appeal is therefore a subject of dismissal. Movants so pray.

WHERFORE AND IN VIEW OF FOREGOING FACTS AND PRNCIPLE OF LAW, Movants/Libellees prays Your Honors to dismiss the Respondent/Libellant appeal and grant unto the Movants/Libellees all that are consistent with law.”

We observe form the records that the respondent/appellant who had filed its resistance to the motion to dismiss on June 19, 2019, did not withdraw or amended same. The resistance asserts inter alia, that the phrase “to guarantee/indemnify the plaintiff’ as contained in the appeal bond constitutes harmless error; that given the purpose of an appeal bond is to indemnify the appellant from all costs attendant to

arising or from the appeal, the appearance of the word ‘plaintiff’ in the phrase “to guarantee/indemnify the plaintiff’ is a misnomer arising from the clerical error of ‘cut and paste’, and same should be treated as harmless error, as it does not obviate the respondent/appellant and its insurer’s obligations under the bond.

The records and arguments, pro et con, present a single issue for our determination, viz.:

Whether the defects in the appeal bond as alluded to by the movant/appellee warrant a dismissal of the appeal.

The first challenge interposed by the movant/appellee to the appeal bond is regards to the designated party to be indemnified under the bond based on the wordings contained therein. The appeal bond states thus:

“Appeal Bond

KNOW ALL                    BY THESE PRESENTS: That we, Jehdee Freeman,

Libellant/Appellant in the above captioned case, and Sky Insurance Company, represented by its authorized corporate officers, surety in the above captioned case, do hereby bind ourselves and our representatives, administrators, and assigns, jointly and severally unto the plaintiff in the amount of US$IO,OOO.OO (Ten Thousand United States Dollars) as amount offered to guarantee/indemnify the plaintiff in case the appellant/defendant/movant fails to proceed or succeed in the appeal…” emphasis supplied

A defect in an appeal bond arises when the said bond lacks in any manner or form from the standard prescribed by law or precedent. It is the law that when the value of an appeal bond is insufficient to indemnify the appellee, said bond is rendered defective, setting forth ground for the dismissal of the appeal, and if the value is not made sufficient prior to the trial court losing jurisdiction of the case.

To give effect to a test of the sufficiency of an appeal bond, the Civil Procedure Law prescribes a three (3) day period, from the date of the filing and service of the appeal bond on the appellee, within which the value of the bond may be challenged in the trial court; and where the appellee is not afforded the opportunity to challenge the appeal bond in the trial court, the Supreme Court has held that a challenge to the appeal bond may be raised on appeal.

The movant/appellee has argued, and we are in total agreement, that the mandatory provisions of the appeal statute must be strictly complied with, irrespective of who the contending parties may be. However, the movant/appellee is of the view that the present appeal bond is defective because of the wording of the bond which states that the respondent/appellant and its insurer bind themselves ‘to guarantee/indemnify the plaintiff rather than the movant/appellee, and requests this Court to dismiss the appeal on this basis.

On the other hand, the respondent/appellant contends that it is in strict compliance with the appeal statute; that the phraseology of its appeal bond is a result of clerical error, which it terms as “cut and paste”, and that same amounts to harmless error.

Our review of the records show the appeal grows from a matter in admiralty; that the pleadings designated the parties as ‘libellant’ and ‘libellee’, in keeping with precedent and practice, and not the usual designation of ‘plaintiff and ‘defendant’.

We also observed that the appeal bond refers to the respondent/appellant as ‘libellant/appellant’. Predicated on this premise, we are of the considered opinion that the use of the word ‘plaintiff, in reference to the party to be indemnified, can reasonably be deduced as a product of clerical error because throughout the records the parties are referred to as libellant and libellee. This error on the part of the respondent/appellant is harmless to the substantive rights of the movant/appellee, and in the interest of substantive justice, this Court will not be guided or bound by mere technicalities of insubstantial omissions, especially where those omissions would not have the effect of a party suffering injustice. Firestone Plantations Company v. Bravy, 36 LLR 893, 904 (1990); Mentor Initiative v. Fardoun, Supreme Court Opinion, October Term, 2013. We therefore hold that negligence of the respondent/appellant in designating the indemnified party as ‘plaintiff amounts to harmless error, and do not warrant the dismissal of the appeal on said basis.

The second challenge to the appeal bond is regards to the assets of the insurer, which the movant/appellee claims the insurer failed to prove; and the lack of a tax clearance from the Liberia Revenue Authority, showing that the respondent/appellee was tax compliant and in good standing.

In addressing the contention regarding proof of its assets, the respondent/appellant argued that the certificate issued by the Central Bank of Liberia in favor of the Insurer, Sky International Insurance, was sufficient proof of the insurance company’s financial viability, thus precluding the need for a showing or listing of the company’s assets.

This Court has outlined the necessary requirements for the satisfaction of an appeal bond in a litany of Opinions, notable of which is the case Robertson et al., v. The Quiah Brothers et al., Supreme Court Opinion, October Term 2011, wherein this

Court, speaking through Mr. Justice Banks, opined thus:

“…the purposes stated both in the statute and in a litany of cases decided by this Court presuppose and imply that the insurance company is in good standing and has the liquidity or other means to satis%’ the judgment and other cost associated with the case in which it is serving as surety.

According to this Court, the standards contemplated by the Statute are:

1. The exhibition or attachment to the bond of the articles of incorporation of the insurance company as evidence that the company does exist;
2. Registration certificate of the insurance company with the appropriate government ministry or agency indicating that it is authorized to do business in Liberia and that it is in good standing;
3. Clearance from the Ministry of Finance evincing that all taxes due as at the tilne of the execution of the bond have been fully paid; and
4. Evidence, such as certificate or other legal instrument from an appropriate legal authority such as the Central Bank or other insurance authority or similar government entity having regulatory responsibilities for insurance companies, that the insurance company possesses assets within the Republic of Liberia, sufficient to cover the obligation undertaken by the insurance company in the bond, exclusive of other bonds to which it is already serving as surety, commensurate with the amount stated in the ..”

This Court notes that the Central Bank of Liberia did issue an instrument which the respondent/appellant attached to its appeal bond as evidence that it has assets within Liberia sufficient to cover the obligation undertaken by the insurance company in the bond.

We also take cognizance of the facts and proceedings in this matter, especially the action from which the appeal emanates, that was dismissed without prejudice, affording the respondent/appellant the opportunity to pursue the original case before the lower court; that the amount of the bond is sufficient to indemnify the movant/appellee; and, that the movant/appellee is not entitled to a money judgment. By implication, the movant/appellant stands to suffer no monetary loss even if the appeal were heard on its merits and granted in favor of the respondent/appellant save for costs of court. We therefore hold that given all of these facts, we are not inclined to dismiss the present appeal.

WHEREFORE AND IN VIEW OF THE FOREGOING, the motion to dismiss the appeal is denied and the appeal ordered proceeded with on its merits. Costs to abide final determination. IT IS HEREBY SO ORDERED.

Counsellor David Woah of Woah & Associates Law Firm appeared for the Movant/Appellee. Counsellor Thompson Jargba of the Law Offices of Jargba & Associates appearedfor the Respondent/Appellant.