Manhattan Trading Corporation,by and thru its President, Mr. Marouf A. Mansour, of the City of Monrovia, Liberia, MOVANT VERSUS World Bank, by and thru its Corporate Officers, RESPONDENT
MOTION TO DISMISS APPEAL
HEARD: JUNE 21, 2015 DECIDED: JULY 14, 2016
(The syllabus below constitute no part of the opinion of the Court but has been prepared by Liblaw for the convenience of the reader).
- Under Civil Procedure Law §63.5, any objection to the sufficiency of sureties on an appeal bond must be raised in the trial court within three days of service; failure to do so constitutes waiver and laches.
- The sufficiency of the bond amount may be challenged at any time before the Supreme Court, whereas the sufficiency or qualification of the sureties must be challenged in the trial court before it loses jurisdiction over the case.
- The object of an appeal bond is to indemnify the appellee from all costs and injuries that may arise from the appeal and to ensure that the appellant complies with the judgment of the appellate court. An appeal bond that adequately secures these ends will not be set aside for technical defects in form.
After Manhattan Trading won US$507,757.66 on summary judgment, the World Bank appealed and filed a US$900,000 insurance-backed appeal bond. Manhattan moved in the Supreme Court to dismiss the appeal, claiming the bond was defective for lack of a regulatory certificate proving the insurer’s assets. The Supreme Court held that objections to the sufficiency of sureties must be raised in the trial court within three days under Civil Procedure Law §63.5, before that court loses jurisdiction. Only challenges to the sufficiency of the bond amount may later be raised before the Supreme Court. Because the Insurance Company of Africa’s bond exceeded the judgment and indemnified the appellee, the objection was deemed waived. Motion to dismiss denied; appeal proceeds on its merits.
MADAM JUSTICE JAMESETTA HOWARD WOLOKOLLIE
MADAM JUSTICE WOLOKOLIE delivered the opinion of the Court
This is the second motion to dismiss the appeal filed before this Court involving the parties in this controversy in a damages suit. The facts in this matter are that on September 10, 2012, the movant/appellee, Manhattan Trading Corporation, by and through its President, Mr. Marouf A. Mansour, of the City of Monrovia, Liberia filed a petition for declaratory judgment against the respondent/appellant, World Bank Liberia, by and through its corporate officers in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County. The petitioner prayed the court to adjudge respondent/appellant, World Bank, liable to movant in the amount of US$507,757.66 for unpaid rent and renovation expenses excluding statutory interest of six (6) percent arising out of a lease contract allegedly entered into between the parties. After the parties rested with pleadings, the movant filed a motion for summary judgment praying court to adjudge the respondent liable to the movant/appellee as prayed since there existed no dispute of genuine or material issue of law and fact.
The motion was assigned and heard. On the 23rd day of November, 2012, a final judgment was rendered by the trial judge granting movant/appellant’s motion for summary judgment and adjudging the respondent/appellant liable to movant in the amount of US$507,757.66. The respondent excepted and announced an appeal to the Honorable Supreme Court of Liberia, sitting in its March Term 2013. The appeal was granted as a matter of law. However, the Judge in delivering the final judgment, informed the movant and respondent’s counsels that the written text of his ruling was still being processed by the court reporter and was not ready for distribution to the parties and that he would only read the “wherefore portion” of the judgment so as to enable any aggrieved party to except to the ruling and announce an appeal therefrom. He promised that the full written text of the judgment would be delivered to each counsel of record after it was printed by the court reporter.
The full text of the judgment was delivered on December 3, 2012, and the respondent, World Bank, excepted to the ruling and filed its bill of exceptions on December 7, 2012, which was approved by the Judge on the same day. Before then, on December 5, 2012, the movant, Manhattan Trading Corporation had filed a motion with the trial court to resume jurisdiction and enforce its judgment, basically contending that the World Bank, respondent, had failed, refused, and neglected to file an approved bill of exceptions within ten (10) days as of the date the final judgment was rendered in keeping with law. The Respondent World Bank resisted the motion contending that while the statute provides that a bill of exceptions should be filed within ten (10) days as of the date of the rendition of final judgment, the statute contemplates that copy of the final judgment would be delivered to the parties to the proceedings on the selfsame day the judgment is rendered. Respondent World bank argued that although the final judgment was rendered on a given date, the statute would not toll for the filing of a bill of exceptions until such time when a copy of said final judgment was made available to the party against whom the final judgment was rendered. Besides, the World Bank also maintained that it had filed a bill of exceptions already approved by the Judge and therefore for the trial court to resume jurisdiction and enforce judgment would not lie.
The trial judge granted the Movant Manhattan Trading Corporation’s motion to resume jurisdiction and ruled to have the court enforce its judgment. The Respondent World Bank fled to Her Honor Justice Sie-A-Nyene G. Yuoh, Justice presiding in Chambers, with a petition for a writ of prohibition which was granted and the peremptory writ issued. Upon appeal by the Movant, Manhattan Trading Corporation to the Bench en banc, the Bench upheld the Chamber Justice’s ruling and sent a mandate to the court below restraining and prohibiting the trial judge presiding therein from enforcing the judgment in the motion to dismiss the appeal and instead allow the Appellant, World Bank, to proceed with the completion of its appeal nunc pro tunc as of the date of the filing of the approved bill of exceptions.
With the mandate of the Supreme Court to have the respondent file its appeal nunc pro tunc, on October 8, 2014, the Appellant World Bank filed an appeal bond and five days later filed a notice of completion of appeal. Having filed the notice of completion of appeal with the trial court, the court below was divested of the matter and the case was transferred and docketed before the Supreme Court.
The appellee, movant now before us, the Manhattan Trading Corporation, has filed before this Court a motion to dismiss the appellant/respondent World Bank’s appeal, alleging that the World Bank’s appeal bond is fatally defective in that there is no certificate attached to state its compliance with the requirement, that when an appellant uses an insurance company to put up an appeal bond, there should be a certificate or other legal instrument from the appropriate legal authority, such as the Central Bank or other insurance authority, or similar government authority having regulatory responsibility for insurance companies, indicating that the insurance company possess assets within the Republic, sufficient to cover the obligations undertaken by the insurance company in the bond exclusive of other bonds to which it is serving as surety. The Movant, Manhattan Trading Corporation prays this Court to dismiss the Appellant World Bank’s appeal due to the defectiveness of the bond.
Resisting the motion to dismiss the appeal, the World Bank in its returns argued that its bond was approved by the trial judge on October 8, 2014, and that the appeal bond was served on the Movant, Manhattan Trading Corporation on the same day. Five days thereafter, the appellant filed a notice of completion of appeal. Failure of the Movant Manhattan Trading Corporation to have excepted to the said appeal bond within the three (3) days statutory period, the appellant said, constituted a waiver of any alleged defects in the bond.
This Court is called upon to settle the contention raised in the resistance to the motion, that the Movant, Manhattan Trading Corporation suffered waiver and lashes to challenge the bond in the Supreme Court, it having failed to challenge the bond within three days after service on it and before the lower court lost jurisdiction of the appeal. The statute referenced by the Respondent World Bank is Section 63.5 “BOND AND SECURITY’ of the Civil Procedure Law (1973).
The salient issue determinative of this second appeal therefore is whether the Movant, Manhattan Trading Corporation suffers waiver to challenge the bond in the Supreme Court after it failed to challenge the bond in the lower court within three days when the bond was served on it?
Revised Code, Civil Procedure Law, 1: 63.5 (1973), Chapter 63. BONDS AND SECURITY, Section 63.5.(1)(2), “Exception to surety”, states:
Exceptions. A party may except to the sufficiency of a surety by written notice of exceptions served upon the adverse party within three days after receipt of the notice of filing of the bond. Exceptions deemed by the court to have been taken unnecessarily, or for vexation or delay, may, upon notice, be set aside, with costs.
Allowance where no exception taken. Where no exception to sureties is taken within three days or where exceptions taken are set aside, the bond is allowed. “
The same Revised Code, Section 51.8. “Appeal Bond” provides:
“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 indemnify 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. The appellant shall secure the approval of the bond by the trial judge and shall file it with the clerk of the court within sixty (60) days after rendition of judgment. Notice of the filing shall be served on opposing counsel. A failure to file a sufficient appeal bond within the specified time shall be a ground for dismissal of the appeal; provided, however, that an insufficient bond may be made sufficient at any time during the period before the trial court loses jurisdiction of the action”. (emphasis ours).
This issue of the appellee’s being estopped from challenging an appeal bond before the Supreme Court if it were not challenged by the appellee within three days after he was served with the bond and before the trial court lost jurisdiction has been raised before this court in several of its Opinions: Kerpai v. Kpene, [1977] LRSC 4; 25 LLR 422, 430 (1977); FDA v. FDA Workers Union et al.39 LLR 684, 688 (1999); Intercon Security Systems, Inc. v. Philips and Tarn[2000] LRSC 4; , 40 LLR, 30 (2000); Gbartoe et al. v. Doe; [2000] LRSC 15; 40 LLR 150, 156 (2000);
In the case Kerpai v. Kpene cited above, the appellee sought to dismiss the an appeal before the Supreme Court on the ground that the real property pledged by the sureties on an appeal bond was not described by the metes and bounds as required by the statute thus rendering the bond defective and besides, the bond was not one and a half times the money judgment. The appellant resisted the motion to dismiss the appeal and among other things raised the contention that the appellee should have raised the issue of the sufficiency of the bond and sureties before the court below. The Court in upholding the appellant’s resistance to deny the appellee’s motion to dismiss the appeal, held:
“We interpret the provisions of sections 63.3, 63.5 and 63.6 of the Civil Procedure Law as prerequisites to be undertaken by a party to obtain a ruling on the sufficiency of the appeal bond before the lower court loses jurisdiction over the subject matter. In other words, we feel that the law makers intended them as a cure for the mischief or evil of denying party litigants an opportunity for a hearing on the merits by unnecessary dismissal of cases on motions to dismiss before an appellate court. Hence, a party’s failure to comply with these provisions will be considered a waiver which will prevent him from contesting the sufficiency or insufficiency of the sureties or bonds on appeal before this Court:”
Three subsequent cases, FDA v. FDA Workers Union et al.[1999] LRSC 35; , 39 LLR 684, 688 (1999); Intercon Security Systems, Inc. v. Philips and Tarn, [2000] LRSC 4; 40 LLR 30 (2000); and Gbartoe et al. v. Doe; [2000] LRSC 15; 40 LLR 150, 156 (2000); supra, reaffirmed the Supreme Court’s holding that the failure of the appellee to except in the court below to the sufficiency of the sureties or deficiencies of an appeal bond within 3 days after receipt of notice of the filing of the bond constitutes a waiver of his objection and warrants denial of a motion to dismiss the appeal.
In the case Thompson et al. v. George et al.[1977] LRSC 46; , 26 LLR 239 (1977), this court set out when a dismissal of an appeal can be entertained in the Supreme Court where the appellant fails to challenge the appeal bond within three days after service on him/her/it and there is ample time to challenge the bond in the trial court.
In the Thompson case, the appellees, Amos George et al. filed a motion to dismiss an appeal in the Supreme Court on the ground that the indemnification fixed in the appeal bond filed by the Appellants Thompson et al. was insufficient, the final judgment of the lower court having awarded the appellees the amount of eight thousand, five hundred dollars ($8,500) and the appeal bond stipulated only five hundred dollars ($500.00).
The appellants against whom the appeal was sought to be dismissed resisted the motion to dismiss stating that final judgment was rendered on May 11, 1977, the bond filed on June 19, 1977, and a copy of the approved bond served on one of the counsels for the appellees. Appellant argued that if the appellees felt that the appeal bond was insufficient, they should have attacked the alleged insufficiency of the appeal bond in the trial court before it lost jurisdiction in the case. The failure of appellees to attack the bond, appellants said, showed that the appellees were satisfied with the sufficiency of the appeal bond and were therefore guilty of lashes and waiver and were estopped from questioning the sufficiency of the appeal bond.
The appellants cited Section 63.5 of the Civil Procedure Law (1973). The appellants, further in their resistance, relied on Section 51.8 which reads that “an insufficient bond may be made sufficient at any time during the period before the trial court loses jurisdiction of the action.” The appellees failure to attack the sufficiency of the bond below before the lower court lost jurisdiction, the appellants countered, estopped them from doing so at the Supreme Court level.
In this case, the Supreme Court referring to the interpretation of Section 63.5 (1) (2) of the Civil Procedure Law (1973) as it relates to an appeal bond, held:
“This provision of law (63.5.1.2.), in our opinion, is only applicable to exceptions taken to a surety and not to the appeal bond because insufficient to indemnify the appellee from all cost or injury arising from the appeal and assure that appellant will comply with the judgment of the appellate court or any other court to which the case is removed”(p.243).
In this Thompson case, the Court, in its interpretation of Section 51.8 of the Civil Procedure Law (1973), held that Section 51.8 of the Civil procedure Law allows an appellant to make an insufficient bond sufficient before the trial court loses jurisdiction, but does not prevent an appellee from attacking the sufficiency of an appeal bond before the Supreme Court since the intent of the appeal bond is to indemnify the appellee and secure him from any cost or injury arising from the appeal if unsuccessful and to assure that the appellant will comply with the judgment of the appellate court or any other court to which the case is removed. Citing the case Karneh v. Republic, [1967] LRSC 13; 18 LLR 91 (1967), the Court held also that an appeal bond is inadequate when the indemnity provided therein is less than the amount of the judgment, and it is the responsibility of appellant to secure the approval of a sufficient appeal bond.
In its rationale allowing the sufficiency of the appeal bond to be challenged in the Supreme Court, the Court held that it would defeat the intent of the appeal statute calling for an appeal bond if an appeal bond is insufficient to indemnify an appellee from cost and ensure that a final judgment is complied with. The Supreme Court, referred to the case Beyslow v. Gibson, [1943] LRSC 1; 8 LLR 79 (1943), which stated that the “extent of liability of the surety on the appeal bond is fixed by the legal import of the condition in the bond and not by the judgment of the appellate court. No action in law would therefore be maintained against a surety for failure of the principal to comply with the judgment of an appellant court where the breach of such failure was not one of the conditions of the bond.” The Court said this means then that where a judgment on appeal is confirmed in favor of the appellee and the appeal bond is less than the judgment, the surety is only liable to make payment as to the extent of his bond pledged and no more, and the appellant putting up a bond less than the judgment would defeat the purpose of the appeal bond.
There are several Opinions of this Court where the Court denied a dismissal of the appeal and had instead opted to go into the merit of the appeal where it has found that though the sufficiency of the surety was lacking, there was sufficiency of the bond to indemnify the appellee. Emphasis has therefore been on evidence of sufficiency of the appeal bond to indemnify the appellee.
In the case Kerpai v. Kpene, supra, the Supreme Court held that the contention of the movant/appellee was as to the sufficiency of the sureties and not the sufficiency of the bond where the movant/appellee contended that the affidavit of sureties failed to show the metes and bounds of the property of all the sureties offered as security in order to identify the property sufficiency to establish the lien of the bond. The court held that since the affidavit of sureties described the property of one of the sureties sufficiently to establish the lien on the bond with a value which far exceeded the penalty of the appeal bond in securing the appellee from all injuries that might arise from the appeal, the bond was not fatally defective for having only one surety if the financial ability of the surety was not question in the court below by the appellees as to the effect that they were not satisfied with the indemnification. Similarly, in the FDA V. FDA Workers Union et al. case, the Court held that the a sum inserted in the bond been sufficient to indemnify the appellee from all costs and injuries in consequence of the appeal, this validated such bond to all intents and purposes (National Bank v. Karloweah [2005] LRSC 4; 42 LLR 389, 397 (2005).
A long line of Opinions of this Court support the view that the purpose and object of the statute on an appeal bond is to ensure that the appellant indemnifies the appellee from cost and injury arising from the appeal, and that the appellant will comply with the judgment of the court: Kennedy and General Petroleum Corporation v. Carlton Petroleum Corp., [1997] LRSC 4; 38 LLR 360, 363 (1997); MCC et al. v. Brown[1998] LRSC 2; , 38 LLR 512, 515 (1998); American Life Insurance Co. v. Sandy, [1984] LRSC 34; 32 LLR 242, 243(1984); The Intestate Freeman and Wesseh v. Lewis et al.[2000] LRSC 11; , 40 LLR, 103, 110 (2000); Gbartoe et al. v. Doe[2000] LRSC 15; , 40 LLR 150 (2000); Ahmar v. Gboe, [2004] LRSC 10; 42 LLR 117, 126 (2004); William and Seekey v. NPA, [2005] LRSC 12; 42 LLR 520,525 (2005).
An appeal bond must therefore meet the primary intent of the legislature, which is that the bond posed is in an amount to satisfy the judgment and indemnify the appellee(s) of costs, and we uphold and agree that an amount stated in an appeal bond which is less than the costs of the final judgment is of no effect since it does not meet the intent of the statute and therefore said appeal bond can be challenged at the Supreme Court.
Our dissenting colleagues have advanced the opinion that Chapter 63 of our Revised Civil Procedure Law on Bonds and Security cannot be applied to Chapter 51 “Appellate Procedure”, specifically with regards to Section 63.5 (1)(2), “Exception to Surety” and Section 51.8. “Appeal Bond.”
We do not agree. We uphold previous decisions of this court that Chapter 63, “Bonds and Security”, which applies generally to all bonds, is applicable to appeal bonds. Black Law Dictionary defines a bond as a written promise to pay money or do some act if certain circumstances occur or a certain time elapses; a promise that is defeasible upon the condition subsequent. It also defines an Appeal Bond as a bond an appellate court may require from an appellant in a civil case to ensure payment of the costs of appeal.
Chapter 51 though specifically relates to an Appellate Procedure, and requires a mandatory filing of an appeal bond, under Section 51.8, to indemnify from costs, injuries or assurance of complying with a judgment, it cannot be said that it is distinct and separate from bonds set as security because of the mere fact that Chapter 63, section 63.4 provides that both parties may consent to waive the setting of bond, whereas Section 51.8 of Chapter 51, makes an appeal bond a mandatory step for taking an appeal. Like all bonds under Chapter 63, when given, Chapter 51.8 seeks to ensure that sureties of appeal bonds are qualified or that the security offered on the bond is adequate, and genuine; and like Chapter 63 (Sections 63.5, 63.6 63.9), Chapter 51 (Section 51.8) allows for justification of sureties when it provides that an insufficient bond may be made sufficient at any time during the period before the trial court loses jurisdiction.
If Section 51.8 of the appeal statute requires that an insufficient bond can be made sufficient at any time during the period before the trial court loses jurisdiction of the action, how else can this be interpreted except that a challenge is made to the sufficiency of the appeal bond in the trial court, by the judge whose approval is needed, or by the appellee in whose favor the judgment is made.
In a motion to dismiss an appeal filed before this Court growing out of a petition for cancellation of a lease agreement, Supreme Court Opinion, October Term, 2013, the movant, Jihad A. Khalik, claimed that the respondent, Mohammed K. Musahson, appeal bond was defective in that the appeal bond did not secure two legally qualified sureties as required by the Civil Procedure Law, Section 51.8. Mr. Justice Philip A.Z. Banks, III, speaking on behalf of the Court in a unanimous decision, stated that this contention of the movant was without any legal merits. He said and we quote:
“We note that it is true that Section 51.8 of the Civil Procedure Law states that “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 indemnify 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” [Civil Procedure Law, Rev. Code 1:51.8], the same law also explains, at Section 63.2, sub-section 1 and 2, what is meant by legally qualified sureties, the number of sureties required for a bond, where an insurance company serves as surety, and the requirements expected of such sureties, whether with regard to an appeal bond or other.”
Referencing Chapter 63 as to what is meant by legally qualified sureties in the contestation of an appeal bond under Section 51.8, Justice Banks referred to Section 63.2 of Chapter 63 of the Civil Procedure Law in his interpretation of this issue which we construe as being proper in giving effect to the appeal statute.
We refer to other common law jurisdiction, especially the United States Supreme Court in which in an opinion it ruled on the construction of related statutes which we find relevant to this issue of Section 63.5(1)(2) being applicable to section 51.8 of our Civil Procedure Law (1973). The several decisions found in Section 168, of 73 Am Jur 2d., reads:
“Ordinarily, related statutes should be construed, if possible, by reasonable interpretation, so as to give full force and effect to each ofthem, since, where it is possible to do so, it is the duty of the courts in the construction of statutes to harmonize and reconcile laws and to adopt that construction of a statutory provision which harmonizes and reconciles it with other statutory provisions. In this regard, it has been said that the courts are not at liberty to pick and choose among legislative enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed legislative intention to the contrary, to regard each as effective, and that in interpreting related and co-existing statutes, the courts must harmonize and accord full application to each of these statutes unless they are irreconcilable and in hopeless conflict. It is not assumed that one or the other of related statutes is meaningless; rather, such statutes will be so construe as to give each a field of operation. 73 Am Jur 2d, Statutes, Section 168.
In the absence of a showing to the contrary, all laws are presumed to be consistent with each other. Ibid.
A challenge to the surety of a bond in the trial court, like we have stated above, is not to have the appeal dismissed by the trial court, which clearly has no jurisdiction to dismiss an appeal after the bill of exceptions has been filed (1LCLR: 51.16); but it is to satisfy the intent of the Legislature in ensuring that the constitution right to an appeal is upheld and that a case is heard on its merits, and also to ensure that the appellee is indemnified from all costs or injury arising from the appeal, and that the appellant will comply with the judgment.
This being so, it is only prudent then that any challenge to a bond, especially to a surety must be made, heard and corrected in the trial court before it loses jurisdiction of the action. Where the challenge to the bond is made in the Court below and the appellant fails to consider and correct the bond, the appellant then risk having his appeal dismissed in the Supreme Court, the proper place for dismissal of an appeal because of a defective bond.
It would be disastrous for this Court to say that the Legislature intended that appeal bond be challenged only in the Supreme Court. Taking this position will mean that the Court in many instances will have to take evidence especially in cases where sureties of bonds under 63.2 (1) (2) are natural persons and lien on their real property as security is often disputed. Justification of sureties often requires proof and often hearings are held on the exceptions and evidence presented to substantiating that the bond is proper. Where this Court constitutionally is not clothe with the authority to take evidence, by allowing the justification of an appeal bond before the Supreme Court will be creating a circus and it would be calamitous if we should adopt such practice.
We uphold the decisions of this Court that the three day requirement under section 63.5 (1) (2) for a party who has been served a bond to challenge said bond is applicable to an appeal bond. The appeal bond statute provides that an insufficient bond may be made sufficient any time during the period before the trial court loses jurisdiction of the action. If an appellee is served an appeal bond on the thirtieth day after the announcement of the appeal and he/she chooses to challenge the bond on the fifty-ninth day or sixtieth day, what time would the appellant have to make the bond sufficient? Would this not frustrate the intent of the legislature who intended that the statutory right to an appeal remain inviolable? This Court has had to dismiss many appeals due to the negligence of lawyers and it is aware of the hardship such dismissals have had on clients. To say that appeal bonds should not be challenged in the lower court but in the Supreme Court instead, besides being constitutionally impossible since this court cannot take evidence which may be required in some instances, the chances of many appellants having their appeal heard on its merit will be frustrated. The objective of the Supreme Court is to ensure that a matter heard by the lower court is determined based on equity and the law. And this Court has often emphasized in several of its Opinions on motions to dismiss that the dismissal of a case constitutes a harsh sanction and the Court prefers to address the merits of an appeal whenever possible.
We therefore upholds and confirms that Section 63.5 (1) (2) of the Civil Procedure Law (1973) applies to an appeal bond, and where an appeal bond is filed in a time sufficient for an appellee to challenge said bond before the lower court loses jurisdiction, and the appellee fails to do so, he/she/it suffers waiver and laches and the appeal bond cannot be challenged in the Supreme Court except as to the insufficiency of the amount stated in the bond to indemnify the appellee of the judgment and associated costs and as held in the Thompson case.
We must now address if the contention of the appellee goes to an attack on the surety of the bond so that Section 63.5 of the CPLR (1973) applies, or the insufficiency of the bond which this Court says can be attacked even atthe level of the Supreme Court?
In the case International Automobile Company, Inc. v. Gabriel W. Nah, 31LLR 156 (1983), this Court defined surety as one who undertakes to pay money or perform other acts in the event that his principal fails therein, whereby the surety becomes directly and immediately liable. (II C.J.S., Bonds, Section 9). In this connection, in order for a bond to be valid it must have an obligor and obligee.
The appellant in the case before us filed an appeal bond put up by the Insurance Company of Africa (ICA), in which the Company undertook to indemnify the appellee World Bank in its appeal. The Affidavit of surety reads thus:
Affidavit of Surety
PERSONALLY APPEARED BEFORE ME, a duly qualified and commissioned Justice of the peace in and for the County of Montserrado, Republic of Liberia, Insurance Company of Africa, by and through its Assistant Vice President & Non-Life Manager, Septimus L. M. Massaquoi, and after having been duly sworn, deposed as follows:
1. That Insurance Company of Africa (ICA) is an insurance company duly organized and existing under the laws of the Republic of Liberia, and authorized to execute surety bonds within the Republic of Liberia, as per copies of the Articles of Incorporation, certificate issued by the Commissioner of Insurance of the Republic of Liberia, certificate of business registration for the year 2014 issued by the Liberia Business Registry, statement of account issued by the International Bank (Liberia) Limited, and tax clearance certificate issued by the Ministry of Finance, Republic of Liberia, attached hereto to form a part of this Affidavit of Surety by reference.
2. That in view of its authorization, the Insurance Company of Africa undertakes to indemnify Manhattan Trading Center, by and thru its President, Marouf Mansour, the within-named appellee, in the amount of US$900,000.00 (United States Dollars Nine Hundred Thousand) out of money and property set aside and available in keeping with the Insurance Law of Liberia, for and in respect of all costs and injuries which the appellee may suffer by reason of the appeal taken by the appellant/respondent to the Honorable Supreme Court from the final judgment of the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, as rendered in the above-entitled cause of action by His Honor Yussif D. Kaba, Resident Circuit Judge presiding by assignment, September Term, A.D. 2012
3. That in the event it is finally decided that the appellee is notentitled to the relief demanded in the action mentioned above, then these present shall become null and void; otherwise, same shall remain in full force and effect.
4. That the assets of the Insurance Company of Africa are over and above the value of the appeal bond in the amount of US$900,000.00 (United States Dollars Nine Hundred Thousand) and also over and above the debts and liabilities of the Insurance Company of Africa/Surety. Furthermore, the Insurance Company of Africa has paid all taxes to the Government of Liberia up to and including the year 2014, as evidenced by the Tax Clearance Certificate attached hereto.
5. That all and singular the averments herein contained are true and correct both in substance and in fact; and as to those matters of information received, it verily believe same to be true and correct.
Sworn and subscribed to before me this 8th day of October, A.D. 2014
Justice of the Peace for Montserrado County, R.L.
For: Insurance Company of Africa (ICA)
By: Septimus L.M. Massaquoi
Assistant Vice President & Non-Life Manager
The appellee Manhattan Trading Corporation contends in counts 3, 4 and 5 of its motion to dismiss the appeal the following:
“3. That in their attempt to perfect their appeal to this Honorable Court, respondent filed a defective appeal bond in violation of section 51.8 1LCLR page 250, and in contravention of several recent opinion of the Honorable Court.
4. Movant says that it is the law in this Republic, that when an insurance bond is used by a party, there should be a certificate or other legal instrument from an appropriate legal authority such as the Central Bank or other insurance authority or similar government authority having regulatory responsibilities for insurance companies, indicating that the Insurance company possess assets within the Republic, sufficient to cover the obligations undertaken by the Insurance Company in the bond, exclusive of other bonds to which it is serving as surety, commensurate with the amount stated in the bond. Your Honors are respectfully requested to observe that, contrary to this requirement, the respondent bond is fatally defective as there is no certificate attached to state its compliance with aforementioned requirements. Copy of the clerk’s certificate to this effect is hereto attached marked M/1.
5. Movants says that when an appealing party deviates from established requirements of our appellate procedures, and opinion of this Honorable Court, the appeal must be dismissed. See Jihad Kalik V.S Mohammed Musahson, Supreme Court Opinion, March Term A.D. 2013, Robertson v. Quiah Brothers, October Term A.D. 2013, Mentor Initiates v. Fardoun October Term A.D. 2013, Supreme Court Opinion.
Where and in view of the foregoing, movant prays Your Honors to dismiss the appellant/respondent’s appeal and to grant unto movant each and every relief deemed just legal and equitable.”
There have been several cases where this Court has dismissed an appeal based on the defect of an insurance bond. Where the case has been dismissed because of the defectiveness of the insurance bond, it had been entertained by the Supreme Court because these bonds were filed on the last day of the time allowed for completing an appeal, or filed along with the notice of completion of appeal or less than three days before the lower courtlost jurisdiction; in which case, the appellee could not challenge the bond at the lower court. National Bank vs. Karloweah[2005] LRSC 4; , 42 LLR 389 (2005); Taye v. Kiawu et al., Supreme Court Opinion, October Term 2014; Hussenni V. Brumskine, Supreme Court Opinion, March Term 2013.
We see that the appellee has cited the cases Jihad Kalik vs. Mohammed Musahson, Supreme Court Opinion, October Term, A.D. 2013; Robertson and Reeves vs. Quiah Brothers, Supreme Court Opinion, October Term, A.D. 2011; and Mentor Initiates et al. vs. Fardoun, Supreme Court Opinion, October Term, A.D. 2013, in support of its argument for hearing of the motion to dismiss in the Supreme Court. In these cases, the appeal bond was filed along with the notice of completion of appeal and it is the law extant that where the appeal bond is filed along with the notice of completion of appeal, the notice of completion of appeal removes the case from the jurisdiction of the trial court onto the Supreme Court, and as such, the appellee did not have an opportunity to challenge the bond in the trial court and the appellee’s challenge to the appeal bond can only now be heard in the Supreme Court.
But this is not so in the motion to dismiss now before us. In this case before us, the appellee has not denied that the appeal bond was timely filed to enable it challenge the bond before the lower court lost jurisdiction, or that it did not was not opportune to challenge the bond in the court below because the appellant filed its notice of completion of the appeal along with the appeal bond, and thereby, removed the case from the jurisdiction of the lower court unto the Supreme Court. We therefore do not see the cases cited by the appellee as being relevant to the issue of whether the appellee who does not deny that the bond was timely served upon it, and had ample time to challenge the bond in the court below before it lost jurisdiction can subsequently file a motion to dismiss the appeal in the Supreme Court challenging the appeal bond.
In this case, the appellee did not present a challenge to the sufficiency of the bond as to the sufficiency of the surety. The ruling of the lower court awarded the appellee Manhattan Trading Corporation judgment in the sum of United States Five Hundred and Seven Thousand, Seven Hundred and Fifty Seven, and Six Cents (US$507, 757.06). In the Affidavit of Surety, ICA has committed itself to payment of the judgment in an amount of United States Nine Hundred Thousand Dollars (US$900,000.00), an amount which this Court sees as sufficient to cover the judgment and indemnify the appellee of all costs.
We therefore hold that the surety of the appeal bond, the Insurance Company of Africa (ICA) in its Affidavit of Surety, written above, having undertaken to indemnify the appellee, Manhattan Trading Center, in the amount of US$900,000.00 (United States Dollars Nine Hundred Thousand) for and in respect of all costs and injuries which the appellee may suffer by reason of the appeal taken by the appellant to the Honorable Supreme Court from the final judgment of the lower court, the bond is sufficient. Should there be a forfeiture of the conditions stipulated in the affidavit, ICA will be liable in an action of damages for breach of contract (Section 63.7.).
As we are of the considered opinion that the challenge posed by the appellee goes to the sufficiency of the surety and not to the sufficiency of the bond, and in which case the appellee should have challenged the bond in three days but failed to do so, its failure amounts to a waiver of its rights to challenge the validity of the appellant’s appeal bond in the Supreme Court.
Wherefore and in view of the foregoing, it is the opinion of this Court that the motion to dismiss the appeal is denied and the appeal ordered proceeded with on its merits. AND IT IS HEREBY SO ORDERED.
WHEN THIS CASE WAS CALLED FOR HEARING, COUNSELORS SAMUEL R. CLARK AND THEOPHILUS C. GOULD OF CLARK AND ASSOCIATES LAW FIRM AND KEMP AND ASSOCIATES AND LEGAL CONSULTANCY CHAMBERS, INC. RESPECTIVELY APPEARED FOR THE MOVANT. COUNSELORS J. JOHNNY MOMOH AND AMARA SHERIFF APPEARED FOR THE RESPONDENT.