A.D.C. AIRLINES, by and thru its President/ General Manager, Appellant, v. BENEDICT F. SANNOH, Appellee.

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

Heard: October 23, 1997. Decided: January 23, 1998.

1. An appeal will be dismissed for failure to serve a notice of completion of appeal on the appellee within the statutory period of sixty days.
2. Each case coming before the Supreme Court involving the breach of a procedural technicality concerning a period an act is to be performed must be considered on a case by case basis, and all of the facts and circumstances giving rise to such breach must be carefully scrutinized.
3. Neglect by an appellant’s counsel to perfect an appeal to the Supreme Court as provided for by statute, may render said appeal dismissible.
4. An appeal may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute, and by the appellate court after filing of the bill of exceptions, for failure of the appellant to appear on the hearing of the appeal, to file an appeal bond, or to serve a notice of completion of appeal.
5. The word “may”, as used in the provision of the appeal statute, grants to the Supreme Court the discretionary power of determining whether or not to dismiss an appeal for non-compliance with all of the procedural steps for perfecting an appeal.
6. An action commenced immediately preceding hostilities and continued immediately thereafter cannot and should not be considered by the court with the strict application of procedural rules.
7. The statute mandates the approval and filing of the appeal bond within sixty days after rendition of final judgment by the lower court. However, as regards the service of the notice of completion of appeal, the statute does not mandate that this be done within sixty days.

Appellee instituted an action of damages against the appellant for breach of contract, alleging that the appellant had caused him embarrassments and inconveniences when it had left him stranded in a foreign country. The appellant failed to make an appearance at the call of the case for the disposition of the law issues. The law issues were therefore heard without the participation of the of the appellant. Thereafter, ruling on the law issues was made by the trial judge. In the ruling, the trial judge dismissed the appellant’s answer and ruled the appellant to a bare denial of the allegations in the complaint.
When the case was called for trial on the facts, the appellant and its counsel again failed to appear. Growing out of this failure, appellee invoked the rule of the circuit court and prayed that an imperfect judgment be entered against the appellant. The request was granted, default judgment was entered against the appellant, and the appellee was permitted to present evidence to substantiate the allegations laid in the complaint.
Thereafter, following a verdict by the empaneled jury in favour of the appellee, final judgment was rendered against the appellant. A counsel was designated to take the judgment for the appellant. The designated counsel entered exceptions on behalf of the appellant and prayed for an appeal. Subsequently, however, the court-appointed counsel communicated with the court to the effect that the appellant had refused to accept the judgment transmitted to it. When the time allotted by statute for the filing of a bill of exceptions has elapsed, appellee moved the trial court for the dismissal of the appeal. The motion was resisted, heard and granted, and the appeal was dismissed. Appellant noted exceptions thereto and announced an appeal to the Supreme Court. Pursuant to the granting of the appeal, appellant filed a bill of exceptions and appeal bond, but failed to serve a notice of completion of appeal within the time allowed by law. This prompted the appellee to file a motion in the Supreme Court to dismiss the appeal, stating that the appeal statute mandatorily required that the notice of completion of appeal be filed and served within sixty days of the date of rendition of judgment by the trial court.

The Supreme Court agreed that the statute required that the notice of completion be filed and served but that no time limit is stated for such act to be done. The Court opined that as to whether an appeal should be dismissed for that reason was discretionary with the Court, such discretionary powers being granted by the statute by the use of the word “may” with reference to the Court’s decision whether to dismiss an appeal or not. The Court determined that the instant case fell within the ambit of the discretionary use of its powers to dismiss an appeal. The Court noted that the action was commenced just before the outbreak of hostilities in Liberia and was concluded immediately thereafter, and it observed that under those circumstances, it was reluctant to apply the strict interpretation given to the procedural technicality of the law. The Court therefore, in the interest of transparent justice, denied the motion and ordered that the case be heard on the merits. The Court pointed out however that its decision was confined only to the instant case and did not affect other cases decided by the Court and dismissed on procedural grounds.

Sie-A-Nyene Yuoh appeared for the appellant. Benedict F. Sannoh appeared for the appellee.

MR. JUSTICE SACKOR delivered the opinion of the Court.

The facts, as gathered from the certified records before us, disclosed that the movant herein, plaintiff in the court below, brought an action of damages for breach of contract on January 15, 1996, against the appellant, defendant in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, during the March Term, A. D. 1996, of said court, presided over by His Honour William B. Metzger, then assigned circuit judge. At the call of the case for arguments on the law issues, the appellant airline and its counsel were absent. The trial judge, on September 26, 1996, in passing on the law issues raised in the pleadings, dismissed defendant/appellant’s answer and ruled the case to trial, placing the defendant on a bare denial of plaintiff’s complaint.

The appellant/respondent failed to appear when the case was called for hearing on the facts. Appellee therefore prayed for an imperfect judgment, which was granted, and thereafter made perfect, following the production of evidence by appellee before an empaneled jury. The empaneled jury, at the close of evidence, returned a unanimous verdict in favor of appellee and awarded him the sum of Two Hundred Seventy-Five United States Dollars (US$275.00) as special damages, and Eighty Thousand United States Dollars (US$80,000.00) as general damages. The trial judge, on October 8, 1997, rendered his final judgment affirming and confirming the verdict in favor of appellee, to which judgment the court appointed counsel, in person of Counsellor James E. Pierre, excepted and announced an appeal to this Court of last resort.
The designated counsel, in a letter dated 15th October 1996, returned copies of the final judgment and ruling on law issues to the trial court, on the grounds that he had submitted copies of said documents to the offices of the appellant/defendant but that the appellant’s administrative manager had refused to ac-cept delivery of the aforesaid documents and to sign the receipt for same. Appellee, on the 24th day of October, 1996, filed a three-count motion in the trial court to dismiss the appeal for failure of appellant to file an approved bill of exceptions. The motion was resisted by appellant, heard on December 2, 1996, and granted on December 5, 1996. Appellant excepted to this ruling and appealed to this Court.
On December 10 and 30, A. D. 1996, Appellant A.D.C. Airlines filed its approved bill of exceptions and appeal bond respectively. Appellant, on February 10, 1997, filed its notice of completion of appeal which was served on the appellee/ movant on February 14, 1997.

Appellee filed an eight-count motion to dismiss appellant’s appeal because of appellant’s failure to serve a notice of completion of appeal on the appellee within sixty days after the date of the announcement of the appeal, and further, that the said notice of completion of appeal was served on appellee on February 14, 1997, eleven (11) days beyond the statutory period of sixty days. Appellee/respondent argued before this Court that it is the service of the notice of the completion of an appeal that confers jurisdiction of this Court over the appellee, but not the filing of said notice. Appellee/movant further main-tained that the appellant cannot appeal from the trial judge’s final judgment which granted his motion to dismiss. Appel-lant’s appeal, he said, was dismissible for its failure to file an approved bill of exceptions as required by law, and that this Court could not entertain issues raised in a resistance to a mo-tion which delved into the merits of the appeal, as said issues are raised in the bill of exceptions and reserved for the appeal.
Counsel for appellant, on the other hand, contended that the notice of completion of a appeal was filed on the 10th day of February 1997, and that the expiration of the sixty days fell on February 11, 1997, a public holiday, Armed Forces Day. Counsel for appellant also argued before this Court that the trial judge ex parte proceeded with a trial of the case in the lower court in that the defenadnt/appellant, a corporation, was never served with any notices of assignment, thru its legal counsel, during the trial in the court below. It also contended, by its counsel, that an appeal is a matter of right, and therefore it requested this Court to deny appellee’s motion to dismiss, and to order the hearing of the appeal on its merits.
From the foregoing facts and circumstances, the decisive issue for the determination of this case, notwithstanding other minor issues, is whether or not the appellant served a notice of completion of appeal on the appellee within the statutory period of sixty days.
We shall pause for a moment to determine some other issues raised in the pleadings and argued before this Court, before proceeding to dispose of the main issue. Appellee argued before this Court that the appellant, having failed to file an approved bill of exceptions, cannot appeal from the ruling granting appellee’s motion to dismiss appellant’s appeal. In oth-er words, appellee contended that appellant cannot announce an appeal for the second time. Appellant, for its part, conten-ded that an appeal is a matter of right. This Court is inclined to decline this issue for reason that it delves into the merits of the appeal, especially since appellant contended that its legal counsel had not been served with notices of assignment during the trial of the case in the court below, as noted in its bill of exceptions. This issue is therefore reserved for the appeal.

We shall now consider the decisive issue in this case. Section 51.16 of our Civil Procedure Law, Rev. Code 1, provides that an appeal may (emphasis ours) be dismissed for the failure of appellant to serve a notice of the completion of the appeal on the appellee as required by statute. This Court has also held in a long line of opinions, that an appeal will be dismissed where the appellant fails to serve a notice of completion of appeal on the appellee within the statutory period of 60 days. Bility v. Sirleaf, [1976] LRSC 68; 25 LLR 319 (1976); Sauid v. Gebara, [1964] LRSC 18; 15 LLR 598 (1960); Mahr v. Sinoe, [1978] LRSC 58; 27 LLR 320 (1978).
A recourse to the certified records before this Court clearly shows that the appellant filed but failed to serve a notice of completion of appeal within the period of 60 days, pursuant to opinions of this Court. It is indeed regrettable to observe that lawyers, members of our much esteemed and exalted profes-sion, failed and neglected to see that their clients’ matters are attended to and handled with that degree of precision and fidelity that will ensure the protection of their interest, whether it be interest in respect to contract, property, liberty or life. This indeed will justify the oath which they took and to which they subscribed.
We observe also from the records in this case on appeal a total neglect by counsel for appellant in the trial court, which worked to the detriment of their client who entrusted its matter to their care, in the hope and expectation that the same would be attended to and handled with a degree of legal profes-sionalism to insure the protection of its legal interest in this litigation. It is the practice and procedure, hoary with the age in our jurisdiction, that such neglect, as in this case by appellant’s counsels, in perfecting an appeal to this Court as provided for by the appeal statute, may render said appeal dismissible.
However, this Court, in the interest of justice, shall decide this case in keeping with its opinion in the Donzo v. Ahmed case, 37 LLR 107 (1992), decided during its 1992 October Term, wherein Mr. Chief Justice Bull, speaking for this Court said:

“We are of the opinion that each case of this nature which comes before us, involving the breach of a procedural technicality concerning the period an act is to be per-formed, must be considered on a case by case basis, and all of the facts and circumstances which resulted in such breach should be carefully scrutinized”.
In the Donzo case, this Court observed a total neglect of the appeal by the lawyer when he failed to file a bill of exceptions, for which he was fined a sum of L$1,000.00. This Court therefore allowed the filing and approval of the bill of ex-ceptions nunc pro tunc. Mr. Chief Justice Bull continued in the Donzo case:

“We believe that the time is now, than ever before, that we must begin to look seriously at, and consider the spirit and intent of our civil procedure statutes”.
The Liberian Law Reports, as well as our unreported cases, are replete with opinions that have determined the interests and rights of party litigants by a narrow, strict and technical appli-cation of the rules of procedure as are found in the procedural statutes. These opinions have over the past half century deprived a number of our compatriot and foreign friends of their prized and valuable possessions. This Court does not favor such strict application of procedural laws for the deter-mination of substantive rights. Therefore, this Bench reaffirms the foregoing view of the Bull Bench. We believe that this view is permissible under Part IV, Chapter 51, section 51.16, of the Civil Procedure Law, which reads:

“An appeal (emphasis ours) may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute and by the appellate court after filing of the bill of exceptions for failure of the appellant to appear on the hearing of the appeal, to file an appeal bond, or to serve a notice of the completion of the appeal.”
The verb may, as used in the foregoing provision of the procedural statute, grants this Court the discretion to decide whether the appeal should be dismissed. We note that this discretionary provision includes the following grounds which may subject an appeal to dismissal.

1. Failure to file a bill of exceptions within l0 days in the trial court.
2. Failure to appear on the hearing of the appeal.

3. Failure to file an appeal bond within statutory time.
4. Failure to serve a notice of completion of the appeal.

The discretionary verb, used in the quoted provision, sup-ports the words of Mr. Chief Justice Bull, quoted supra, that cases which come before this Court on the breach of a procedural technicality, concerning the period a procedure should be completed, must be considered or treated on a case by case basis.
This case falls within that category. The Court takes judicial notice of the April 6, 1996 hostilities that occurred in Monrovia, Liberia. A review of the motion to dismiss revealed in count 1 that this case was filed in the March Term, A. D. 1996, of the Sixth Judicial Circuit Court, and in count 2, that final judgment was rendered in the said case on the 8th day of October, A. D. 1996, that is, during the September A. D. 1996 Term. It is the opinion of this Court that an action commenced immediately preceding hostilities and continued immediately thereafter, cannot and should not be considered by this Court with the strict application of the procedural rules. The Legis-lature, in its wisdom, in chapter 51 of the Civil Procedure Law, Rev. Code 1: 51.16, granted this Court the discretionary autho-rity to decide whether or not to dismiss an appeal for non com-pliance with all of the procedural steps to perfect an appeal. Our view to exercise that discretion to deny a motion to dismiss an appeal for failure to serve a notice of completion on appellee's counsel is supported by section 51.8 of the Civil Procedure Law, which provides:

“ ....The appellant shall secure the approval of an appeal bond by the trial judge and shall file it with the clerk of court within sixty days after rendition of judgment”
This statute mandates the approval and filing of the appeal bond within sixty (60) days after rendition of final judgment by the lower court. The statute mandates service of the notice of completion of appeal thereafter, but not within sixty (60) days. For reliance, see Civil Procedure Law, Rev. Code 1: 51.9.

We observed and scrutinized the facts and circumstances in the instant case, which resulted in the breach of our procedural code, and we hold, in the administration of transparent justice, and in the exercise of our discretion, considering the interven-ing hostilities between filing and determination of this action, that we should deny the motion and proceed to hear appellant's appeal on its merits. This opinion does not in any manner affect all of the other opinions which this Court has handed down dismissing appeals for reason that the notice of the completion of the appeal was not served on the appellee within the statutory period of 60 days. This opinion only sets conditions for which this Court shall exercise its discretionary power not to dismiss an appeal for failure to serve a notice of completion of appeal, for the reasons which we have herein already stated, and therefore, this opinion is confined to this particular appeal. Appellant's counsel, the David A. B. Jallah Law Firm, is hereby fined the sum of Two Thousands Five Hundred Liberian Dollars (L$2,500.00) to be paid into the government revenue within 48 hours of the rendition of this opinion, and a receipt thereof furnished to the Marshal of this Court, failing which the proprietor of said Firm will not be allowed or permitted to practice law within the Republic, directly or indirectly, until said amount is paid.
We henceforth sound a warning to our practicing lawyers that a reoccurrence of such procedural breach, as occurred in the instant case, will result into greater punishment rather than just a fine. The Clerk of this Court is hereby ordered to docket this case to be heard on its merits. Costs are to abide final determination of the case. And it is hereby so ordered.

Motion to dismiss denied.

MR. JUSTICE JANGABA dissents.

The majority of my distinguished colleagues have correctly stated the facts in this case, and therefore the facts are not in dispute. The majority opinion holds that the failure of appel-lant to secure, serve and file a notice of completion of appeal within sixty (60) days renders the appeal dismissible in this jurisdiction, for reason that the Court of last resort does not, by this failure, acquire jurisdiction over the person of the appellee. However, the majority elects to relax this jurisdictional rule and considers it appropriate to hear the appeal on its merits, notwithstanding the facts of the case and the supporting law that the failure of an appellant to secure, serve and file a notice of completion of appeal within the prescribed period of 60 days, as required by our statute, deprives this Court of last resort to jurisdiction over the person of the appellee.
I have therefore disagreed with my colleagues and withheld my signature from the judgment of the majority of the Court and have filed this dissent. This dissent principally deals with the exception made by the majority to this cardinal principal of law, hoary with age in our jurisdiction.
I shall now state the facts of this case briefly and discuss the issue and reasons given by my colleagues in hearing the appeal on its merits, without first acquiring jurisdiction over the per-son of the appellee, contrary to law.
The appellee herein instituted an action of damages for breach of contract against the appellant in the Civil Law Court for the Sixth Judicial Circuit Court, Montserrado County, during its March Term, A. D. 1996. On the 26th day of September A. D. 1996, His Honour William B. Metzger, then presiding by assignment, ruled on the law issues and dismissed appellant’s answer, thereby placing appellant on a bare denial of appellee’s complaint.

This case was called for hearing upon a notice of assign-ment, but appellant failed to appear. Appellee than prayed the trial court for an imperfect judgment, which was granted, and subsequently made perfect, following the production of evi-dence before an empaneled jury. The jury, upon the close of the evidence, returned a unanimous verdict in favour of appellee, awarding the amount of US$275.00 as special damages and US$80,000.00 as general damages. The trial judge, in his judgment rendered on the 8thday of October, A. D. 1996, confirmed and affirmed the verdict of the empaneled jury, to which judgment the court-appointed counsel, Counsellor James E. Pierce, excepted and announced an appeal to this Court. However, the records revealed that Counsellor Pierre, in a letter of October 15, 1996, informed the trial court of the refusal of defendant's administrative manage to accept delivery of the judgment.
The appellee, on October 24, 1996, filed a three-count motion to dismiss the appeal, for reason that while the appel-lant had filed its bill of exceptions within ten days from the date of the rendition of the judgment of the trial court, it had failed to serve and file its notice of completion of appeal within the sixty day period prescribed by law.
Appellee, plaintiff in the lower court, therefore filed a motion to dismiss appellant’s appeal for lack jurisdiction over the person of the appellee. The records in this case clearly show, and my distinguished colleagues have agreed, that this Court of last resort did not acquire jurisdiction over the appellee; yet, they have decided to hear the appeal on its merits notwithstanding the absence of jurisdiction.
A recourse to our appeal statute, section 51.4, of the Civil Procedure Law, Rev. Code 1, clearly sets forth the statutory requirements necessary for the completion of an appeal to this Court. They include the following:

1. Announcement of the taking of the appeal;
2. Filing of the bill of exceptions;

100. Filing of an appeal bond; and

4. Service and filing of notice of completion of the appeal.

This section of our appeal statute further provides that “failure to comply with any of these requirements within the time allowed by statute shall be ground for dismissal of the appeal”.
This above quoted statutory provision is not discretionary but mandatory, and should therefore be strictly adhered to by us in such cases brought before us while exercising our appellate jurisdiction. In regard thereto, the failure of appellant in this case to secure, serve and file a notice of completion of the appeal, as prescribed by law, is a statutory ground for the dismissal of its appeal by this Court.

The legal authorities relied on by the majority opinion are not in disagreement, but the reason for relaxing the application of the cardinal principle of law greatly made me wonder when such cases cited by my colleagues were dismissed for failure and neglect of appellants to perfect appeals before this Court. A notice of completion of an appeal before this Court is in the nature of a summons, service of which by appellant upon the appellee brings him under the jurisdiction of this Court. Thus, this Court does not acquire jurisdiction where the notice of completion of the appeal is not served and filed within the statutory period of 60 days.
This Court has consistently held “it is the duty of litigants for their own interest, to so surround their causes with the safeguards of the law as to secure them against any serious miscarriage and thereby pave the way to the securing of great benefits which they seek to obtain under the law. Litigants must not expect courts to do for them that which it is their duty to do for themselves.” Tozoe v. Republic, [1973] LRSC 42; 22 LLR 113 (1973), text at 116; Wesley v. Tyler et al.[1971] LRSC 62; , 20 LLR 477(1971).
It is clear from the above quoted authorities that party litigants are duty bound to handle their cases for their own benefits in securing them against any serious miscarriage, so as to obtain the benefits sought under the law. Further, this Court cannot do that which the party litigants ought to do for them-selves. To impose a fine on counsel may only deter future negligence but does not legally confer appellate jurisdiction on this Court. This approach, to my mind, will encourage more violations of our procedural statute and will serve as a flood-gate to enter this Court on appeal. I have found it impossible for these reasons to affix my signature to the judgment of this Court denying appellee’s motion to dismiss appellant’s appeal.
It is therefore my opinion that the motion to dismiss appellant’s appeal, being sound in law, should be granted; that the appeal should be dismissed; and that the judgment of the trial court should be ordered enforced. Consequently, I am withholding my signature from the decision of this Court in the instant case.

MR. JUSTICE WRIGHT dissents.

I have declined to join my very distinguished colleagues in signing the judgment in the majority opinion because I do not see any basis in law, or equity, as claimed by the majority, for which the motion to dismiss the appeal should not be granted. The opinion is excellent throughout its presentation and discussion, but the abrupt “round about face” in the conclusion arrived at is, in my opinion, unjustified, and has sent a dangerous signal from this Bench. I have not dwelt on the facts herein because the majority opinion has narrated all the important facts.
I differ with my colleagues because we appear to be getting different rules or standards for different people facing similar circumstances, which could haunt us later. Further, we seem to be treading new path and doing away with or departing from rules long set and imbedded in our system of jurisprudence in this jurisdiction. It is good to be innovative and au courant with modern legal principles, practices and procedures, as well as principles hoary with age. By this opinion today however, we have, whether wittingly or unwittingly, recalled and overturned all those cases in the long line of opinions by this Court dismissing and denying appeals based on a failure to timely file an approved appeal bond and to serve and file a notice of completion of appeal. Not only that, but the Supreme Court has knowingly elected to ignore our positive law on the subject. Our statute sets it as a mandatory requirement that an appellant "shall" present his bill of exceptions to the trial judge within ten days after judgment; and, also "shall" secure the approval of the appeal bond by the trial judge and file it with the clerk of court within sixty days after judgment; and finally, after these two requirements have been satisfied, he “shall” apply to the clerk who "shall" issue a notice of completion of appeal, a copy of which shall be served on appellee by appellant and the original filed in the clerk's office. Civil Procedure Law, Rev. Code 1: 51.7, 51.8 and 51.9.

This law is positive, clear, unambiguous, mandatory and definite. There is no exclusion or exception; it is not condi-tional but absolute; it is not discretional but compulsory. It requires strict construction and application and may not be observed at the will of any party or the Court; it must be enforced as is. Dennis-Brown et al. v. Dennis et al.[1970] LRSC 49; , 20 LLR 96 (1970), text at 98, and McCauley v. Laland, [1894] LRSC 1; 1 LLR 254, 255 (1894).
My colleagues, throughout the majority opinion, recognized and stated what the law is. However, although, as found from the records transcribed from the trial court the facts in the instant case bring the case squarely within the application of this law, the Court has failed to apply the law. The opinion states: "this Court also held in a long line of opinions that an appeal will be dismissed for appellant's failure to serve a notice of completion of appeal on appellee within the statutory period of sixty days.” Bility v. Sirleaf, 25 LLR 219 (1976); Sauid v. Gebara, [1964] LRSC 18; 15 LLR 598 (1964); Marh v. Sinoe, [1978] LRSC 58; 27 LLR 320 (1978). "A recourse to the certified records of this Court clearly shows that the appellant failed to file and serve a notice of completion of appeal within the statutory period of 60 days.” The majority states further:

"It is the practice and procedure hoary with age in our jurisdiction that such neglect, as in this case by appellant's counsels, in perfecting an appeal to this Court, as provided for by the appeal statute, renders said appeal dismissible.”
Then the majority abruptly departs from the law and their own findings and go on to say: "We have observed and scru-tinized the facts and circumstances in the instant case which resulted in the breach of our procedural code, and we hold, in the administration of transparent justice, and in the exercise of our discretion, considering the intervening hostilities between filing and determination of this action, and for the reasons stated above, that we should deny this motion and proceed to hear appellant's appeal on its merits."

My question is, what is transparent justice, and who is entitled to it? Is it only for an unsuccessful litigant or is it to be shown to both parties? In fact, in the instant case, what is the transparent justice referred to by my colleagues? Does it make a difference who the parties are, or who the lawyers are? Or, are my colleagues motivated by the amount of the award of damages by the jury? What other consideration has aroused their sympathies so much as to knowingly and deliberately ignore and depart from our positive and mandatory statutory requirement with absolutely no legal justification?
If it is because of who the parties are, may I caution my colleagues of the danger of setting different standards for different parties similarly situated. There are no big parties and small parties; no rich parties and poor parties; no corporate parties or government; and no individual parties, but all per-sons appearing before our courts as parties stand equal before the law and deserve equal treatment under the law.
If it is because of who the lawyers are, similarly there are no big or famous lawyers and small or insignificant lawyers. Each practitioner appearing before our courts ought to be meted out the same courtesies, rights and privileges, and must be subjected to the same treatment. If our rulings are based on who the lawyers are or who the parties are, the Court subjects itself to become stooges and exposes itself to manipulation, thus losing credibility and independence.
If it is because of the amount of the award by the jury, we should not lose sight of the fact that it is only the trial jury or petty jury who can determine what an award or general damages will be and it is solely within their discretion, and we do not have to like what it is.
Even the trial court does not have the authority to change the jury's verdict simply because it does not like the jury or its award. The most that the trial judge can do is to correct the verdict in the presence of the jury and upon their own clarifi-cation as to what they intended, if it appears ambiguous in some respect, so as to make it intelligible and enforceable. Alternatively, he can set aside the verdict and order a new trial if it is found to be contrary to the weight of the evidence adduced. Note that what is set aside by the trial court is not the amount awarded but the determination of “liable" or "not liable."
The appellate court is even more impotent to tamper with a jury's award since the Court is strictly confined to the records, especially where the verdict itself and the amount awarded have both been confirmed and affirmed by the trial court.

In violating, ignoring and straying from the clear statutory mandate in the appeal statute, my colleagues have cited and relied on the case Donzo v. Ahmad, 37 LLR 107 (1992) October Term, Supreme Court Opinions, wherein this Court held that each case of this nature involving the breach of "a procedural technicality concerning the period an act is to be performed must be considered on a case by case basis.” (Emphasis mine). My colleagues, in both the instant case and the cited case, gave the impression that procedural law is not important or relevant, and seek to relegate procedure law as being a mere "technicality" which only serves to burden or embarrass litigants, thus making it subjective. It is my view that procedural law is equally as important; it is the pathway to and vehicle by which substantive law may be articulated. Substantive law is not self-executing, and so if one does not observe procedure, you cannot reach substance. For example, appeal is a matter of right under the Constitution, but the statute on appeal governs how to get your appeal heard and determined. Thus, after an unsuccessful litigant obtains an unfavorable judgment, he does not automatically walk up into the Supreme Court Chambers and tell the Justices "I am here for you to review my case." He must first orally announce in the trial court his dissatisfaction with the judgment and appeal therefrom; then within ten days thereafter, he must file an approved bill of exceptions; and he must, within sixty days after judgment, secure the approval of the trial judge to his appeal bond; and finally, he must serve a notice of completion of appeal on the appellee. Therefore, his right to appeal under the Constitution is enforceable only if he conforms to the statutory procedural dictates. This Court has all along been consistent that failure to conform to the statutory requirements for appeal is ground for dismissal of the appeal. Ammons v. Barclay, [1968] LRSC 2; 18 LLR 212 (1968), Syl. 3; also, Bedell v. Bedell, [1971] LRSC 64; 20 LLR 484 (1971).

Therefore, my colleagues cannot seek to portray that our procedural law is mere technicality and an impediment to unsuccessful litigants. If that is their point of view, then they should unequivocally declare it repugnant to the organic law and strike it down for being unconstitutional. But in the absence of that, and as long as it has not been so declared, it should be upheld and given effect. In fact, it is not the province of the Court to make law but simply to interpret what the Legislature has enacted. Ammons v. Barclay, supra.
I should also state that under general principles of law, case law is subordinate to legislative enactment, and where there is a conflict between a court decision and a statute, the latter takes precedence, just as a statute must yield to the constitu-tion. Liberian Air Taxi. Inc. v. Meissner, [1967] LRSC 6; 18 LLR 40 (1967), Syl. 1, 2, and 3.
With this in mind, it is my opinion that this Court never did and still has not yet legally acquired jurisdiction over the parties or the action of damages, subject of the instant appeal, to enable the Court to go one step beyond the motion to dismiss and hear the merits of the appeal. If the jurisdictional prerequisites have not been complied with, then the appellate court cannot lawfully take any action in respect of such matter.

In the case Mardea v. Republic, [1956] LRSC 8; 12 LLR 289 (1956), this Court held that the jurisdiction of an appellate court over an appeal is conferred by the notice of completion of the appeal, duly issued and served on the appellee, since such notice is in the nature of summons and an appeal will be dismissed on motion of the appellee. Cummings v. Hughes, [1968] LRSC 7; 18 LLR 250 (1968), text at 253. When a motion is made to dismiss an appeal for failure to file an approved appeal bond and to serve and file a notice of completion of appeal within the prescribed time, it is not a defense that the papers were in fact filed. Timeliness is essential and failure to comply with its require-ments lends the appeal subject to dismissal. Brown et al. v. Dennis et al., supra. This Court has held that "it is needless for this Court to enter into extensive argument to establish the well-known requirements of the law, as it should be obvious to every reflecting mind that an appeal is not complete until the appellee is duly summoned, which summons places him under the jurisdiction of the court to which the appeal is taken; therefore, the summons or notice forms a very integral part of an appeal and should be served within the time allowed for the completion of the appeal." And the Court has added:

"Accordingly it is apparent that it is the sole responsibility of the appellant to so conduct his appeal that all of the duties to be performed for the completion of his appeal be timely done. Any neglect in any respect as enumerated by statute is considered to be a fatal defect which this Court cannot cure. Id., at 98; also, Cooper v. CFAO, [1971] LRSC 51; 20 LLR 397 (1971), text at 400.
Against the background of the above, I fail to see what aroused the sympathies of my colleagues and what they hoped to achieve by denying the motion to dismiss and to hear the appeal on the merits. The appellant has deprived itself of the opportunity to have this Court legally hear its appeal and the Court cannot do for them what they failed to do for themselves. Ammons v. Barclay, supra.
We come back to the question of transparent justice, which my colleagues claim to want to render by denying the motion to dismiss, which motion is clearly supported by law. They claim to be doing so in the interest of transparent justice in favor of the appellant, but is the movant not also entitled to enjoy transparent justice? I think they are both entitled to that enjoyment.
It is for these reasons that I have withheld my signature from the judgment denying the appellee's motion to dismiss appellant's appeal and, therefore, have prepared and filed my dissent to the decision of the majority of my brethren of the Bench.