CHICRI ABI-JAOUDI, Appellant, v. THE INTESTATE ESTATE OF THE LATE BENDU KIADII, by and thru its Administrator, FOLLY KIADII DEMPSTER, Appellee.
MOTION TO DISMISS APPEAL FROM THE MONTHLY AND PROBATE COURT FOR
MONTSERRADO COUNTY.
Heard: October 18, 2001. Decided: December 20, 2001.
1. Every person taking an appeal shall give an appeal bond in an amount fixed by the court, with two or more legally qualified sureties, and to the effect that he will indemnify the appellee from all costs and injury arising from the appeal, if unsuccessful, and that he will comply with the judgment of the appellate court or any other court to which the case is removed.
2. Unless the court orders otherwise, a surety to a bond shall be two natural persons who fulfill the requirements of section 63.2 of the Civil Procedure Law, or an insurance company authorized to execute surety bonds within the Republic of Liberia.
3. An insurance bond filed by an appellant, although permissible under section 63.2 of the Civil Procedure Law, will be deemed to be in violation of the statute and thus defective if it states that the appellant will indemnify himself rather than the appellee from all costs, injury, and damages arising from the appeal.
4. A violation of the provisions of the appeal statute renders the appeal materially defective.
5. The sole purpose of an appeal bond with qualified sureties is to secure to the appellee his costs or damages arising from the appeal and assured the appellate court of compliance with its judgment or the judgment of any other court to which the case is removed.
6. Where a clerk’s certificate attached to a motion to dismiss is not challenged, the contents thereof will be deemed admitted by the party against whom the certificate was issued.
7. The requirement that an insurance company serving as surety to an appeal bond be authorized to execute surety bonds within the Republic of Liberia is a mandatory requirement which applies to all insurance companies posing as sureties.
8. Where a party’s assertion that an insurance company is not authorized to execute surety bonds within the Republic of Liberia is not challenged by the opposing party, the court will sustain the allegation and declare the insurance company to be without authority and therefore not legally qualified to execute surety bonds in Liberia.
9. Where the sureties to an appeal bond are not legally qualified under the statute, the appeal bond will be deemed defective and the appeal will be dismissed.
In a motion to dismiss the appeal taken by the appellant from the judgment of the Monthly and Probate Court for Montserrado County in the case of a bill of information for the payment of rents, the appellee prayed the Supreme Court for dismissal of the appeal because (a) the insurance company which served as surety to the bond was not authorized to execute surety bonds within the Republic of Liberia, (b) the indemnification provisions of the appeal bond stated that the appellant would indemnify himself rather than the appellee, (c) the appeal bond was an insurance policy rather than a bond, and (d) the insurance company, surety to the bond, had placed a time limitation of one year for the effectiveness of the bond.
The Supreme Court agreed with the appellee’s contentions and therefore ordered the appeal dismissed. The Court opined that the failure of the appellee to challenge the allegation that the insurance company was not authorized to execute surety bonds within the Republic of Liberia was tantamount to an admission which rendered the bond defective and the appeal dismissible. The Court noted that the statutory provision stipulating that an insurance company must be duly authorized before it can execute surety bonds is mandatory and must be complied with to render a bond valid. The Court also held that the bond was defective since the indemnification provision sought to indemnify the appellant rather than the appellee from costs and injury arising from the appeal. Accordingly, the Court ordered the appeal dismissed.
Sylvester S. Kpaka appeared for the appellee.
MR JUSTICE JANGABA delivered the opinion of the Court.
This case is before us on a motion to dismiss the appeal taken from the final judgment rendered by the Monthly and Probate Court for Montserrado County on January 26, 2001, against the appellant, Chicri Abi-Jaoudi. The appeal grew out of a bill of information filed by the appellee on August 22, 2000 before the lower court praying for the sum of US$49,000 as rental arrears covering the period 1991 up to and including 2000.
The certified records in the case reveal that subsequent to the filling and service of the notice of the completion of the appeal by the appellant on the appellee, the latter filed this motion to dismiss the appellant’s appeal, alleging the follow-ing grounds as the legal bases for the said motion, and praying this Honorable Court to set aside the appellant’s appeal bond and to dismiss the said appeal:
1. That the appellant’s appeal bond, to which the Universal Insurance Company of Liberia (UNICOL) served as surety, was legally defective, in that the same was filed in violation of section 63.2(1), the relevant portion of which provides, among other things, that an insurance company posing as a surety to a bond must be authorized to execute surety bonds within the Republic of Liberia before it can be legally qualified to become a surety to an appeal bond; that authority was not shown on the face of the appellant’s appeal bond.
2. That respondent’s appeal bond was also filed in violation of chapter 51, section 51.8 of the Civil Procedure Law because, according to the “binder” attached to the said appeal bond, the said bond is not intended “to indemnify the movant/appellee”, but rather the said appeal bond is only intended to indemnify Chichi Brothers (appellant’s company), “from costs, injury and damages they may sustain if judgment is awarded against them.” This “binder” the movant says, is contrary to section 51.8, the relevant portion of which provides that “[e]very appellant shall give an appeal bond… with two or more legally qualified sureties to the effect that he (appellant) will indemnify the appellee from all costs or injury arising from the appeal, if unsuccessful…” (Emphasis added).
3. That the appellant’s appeal bond is further legally defective because the said appeal bond is actually an insurance policy, with premium paid thereon “to insure Chichi Brothers against costs, injury or damages arising out of the appeal Chichi Abu-Jaoudi has taken”, as can be more fully shown by the “binder” attached to appellant’s appeal bond.
4. That the appeal bond is also defective because the appellant’s surety, Universal Insurance Company of Liberia (UNICOL), has placed a time limitation to the validity on the said appeal bond, that is to say, one year duration (March 19, 2001-March 9, 2002).
In response to the motion to dismiss, the appellant filed a resistance in which he alleged the following:
1. That the appellee was taking the ($) sign to mean United States dollars in the instant case.
2. That appellant’s bond is signed by Insurance Company of Liberia which placed time limitation to the validity of the appeal bond because appellant presumed that the cases will not he heard until after one year.
In addition to the motion to dismiss and the resistance thereto, filed by the parties, counsels on both sides filed with the Clerk of this Court their respective briefs in support of the various contentions raised in their pleadings.
The appellee’s brief was consistent with the motion, that is to say, that the issues raised or contained in the movant’s motion were supported by relevant laws controlling the filing of appeal bonds in this jurisdiction, both in respect of the statutory laws and the opinions of this Court applicable to appeal bonds. However, the appellant’s brief was a mere restatement of the respondent’s resistance, and the said brief, containing four (4) counts, cited no laws in support of the contentions raised therein.
When the case was called for hearing, the appellee’s counsel, Counselor Sylvester S. Kpaka, strenuously argued all of the contentions raised in the motion and brief, citing this Court to several relevant statutory laws and opinions applicable to the filing of appeal bonds. These laws are also cited in this opinion. On the other hand, the appellant’s counsel was unable to cite this Court to any law in support of his arguments. Instead, he sought only to raise doubts as to the correct application of the laws cited by the appellee and to assert that the appellee’s motion had no merits. He was, however, unable to show to this Honorable Court in what form or manner the appellee’s motion was unmeritorious.
Appellee’s counsel, in his arguments, presented this Court with the following issues:
1. Whether or not the insurance bond filed in the monthly and probate court by the appellant as security to his appeal meets the requirements for an appeal bond, as stipulated and provided for in section 51.8 of the Civil Procedure Law?
2. Whether or not the appellant’s appeal bond satisfied the requirements of section 63.2 of the Civil Procedure Law regarding legally qualified sureties?
3. Whether or not an appeal bond which places a time limitation on its own validity is legally defective?
The appellant was not able to present this Court with any law issue for the determination of the case. Hence, from the foregoing facts and circumstances, the only issue which this Court deems to be determinative of the cause of action is whether or not the appellant’s appeal bond filed in the Month-ly and Probate Court for Montserrado County as security to his appeal met the requirements for an appeal bond, as stipulated and provided for in sections 51.8 and 63.2 of the Civil Procedure Law, Rev. Code 1, and if not, what are the legal consequences of the failure to meet the said requirements?
In resolving this issue, this Court cites verbatim the provisions of sections 51.8 and 63.2 of the Civil Procedure Law. Section 51.8 states:
“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 any 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 the judgment. Notice of the filing shall be served on the opposing counsel.
A failure to file a sufficient appeal bond within the specified time shall be a ground for the dismissal of the appeal; provided, however, that an insufficient bond may be made sufficient at any time during the period before the court loses jurisdiction of the action.” (Emphasis ours).
The statute quoted above is clear in its provision that an appellant shall give an appeal bond “with two or more legally qualified sureties.”
The next statutory provision, which is section 63.2 of the Civil Procedure Law, defines who legally qualified sureties are. The section captioned legally qualified sureties, states:
“1. who may be sureties: Unless the court orders otherwise, a surety on a bond shall be two natural persons who fulfill the requirements of this section or an “insurance company authorized to execute surety bonds within the Republic.” (Emphasis ours)
The question therefore is whether or not the appellant’s appeal bond was filed in conformity with the statutory provisions under sections 51.8 and 63.2 of the Civil Procedure Law, cited above. This issue has been raised in many previous opinions rendered by this Court. In the case The Liberian Trading and Development Bank (TRADEVCO) v. Cavalla Rubber Corporation, [1995] LRSC 42; 38 LLR 153 (1995), this Court held that section 51.8 of the Civil Procedure Law requires that there should be two legally qualified sureties to secure an appeal bond. Consequently, the motion to dismiss the appeal in that case was considered meritorious by this Court. Hence, the appeal was dismissed.
In the instant case, the respondent elected to file an insurance bond instead of a property valuation bond, with two legally qualified sureties. However, although the statute, under section 63.2, permits an insurance company to file a bond, yet the said statute mandatorily requires that such an insurance company must be authorized to execute surety bonds in Liberia. We shall say more of section 63.2 later in this opinion. Suffice it to say, however, that although the filing of an insurance bond is permissible under section 63.2, yet the appeal bond filed by the appellant, in whom an insurance company served as surety, was filed in violation of both sections 51.8 and 63.2, respectively. Recourse to the records certified to this Court revealed that the appellant’s bond sought to indemnify Chichi Brothers (the appellant’s company) from costs, injury and damages, as evidenced by the “binder” attached to the appellant’s bond. This is in flagrant contravention of that portion of section 51.8 of the Civil Procedure Law which states that the appellant “will indemnify the appellee from all costs or injuries arising from the appeal, if unsuccessful.” In the case Agip (Liberia) Corporation v. Sadatonou et al.[1971] LRSC 11; , 20 LLR 222 (1971), at page 226, this Court said: “Over and again this Court has emphasized the need of caution in appeals and over and again this Court has made it clear that all appeal bonds in civil matters must indemnify the appellee in the amount of one and one-half times the judgment from which the appeal is taken.” Under the same breadth, and in the same opinion, this Court, citing Nasre v. Kandakai, [1954] LRSC 16; 12 LLR 26, 27 (1954), said: “Repeated, and not without avail, we have held fast to the mandatory statutory requirements for an appeal to this Court. Violation of the provisions of this statute renders an appeal materially defective”
Our appeal statute clearly provides that an appeal bond with sureties must indemnify the appellee from all costs or injury arising from the appeal, and that the appellant will comply with the judgement of this Honorable Court or any other court to which the case may be removed. Civil Procedure Law, Rev. Code 1:51.8. This Court has also held that the sole purpose of an appeal bond with qualified sureties is to secure to the appellee his costs or damages arising from the appeal and to assure the appellate court of compliance with its judgment or the judgment of any other court to which the case is removed. Kerpai v. Kpene, [1977] LRSC 4; 25 LLR 422, Syl. 3 (1977); Vaswani v. Atlantic Marketing Company, [1990] LRSC 13; 36 LLR 768 (1989). Hence, we hold that an appeal bond with qualified sureties which indemnifies the appellant rather than the appellee from costs or injury arising from the appeal is materially defective.
We shall next examine section 63.2 of the Civil Procedure Law to find out whether the appellant’s bond was filed in compliance with the said provision of the law. A close perusal of the records revealed that a clerk’s certificate was obtained by the appellee from the clerk of the lower court certifying that there was no showing on the face of the appellant’s bond that the surety to the said bond, the Universal Insurance Company of Liberia (UNICOL), was authorized to execute surety bonds within the Republic of Liberia. Although this certificate was attached to the appellee’s motion and a copy thereof was served on the appellant, the certificate remains unchallenged by the appellant. Therefore, the allegations contained in the certificate are deemed by this Court to have been admitted by the appellant. Our Civil Procedure Law, Rev. Code 1:9.8(3), provides that authorization to execute surety bonds within this Republic is a mandatory requirement under section 63.2 of the Civil Procedure Law and applies to all insurance companies posing as sureties to bond in general, and specifically, to appeal bonds. Since the appellant failed and neglected to challenge the appellee’s contention that the appellant’s surety to his appeal bond was not authorized to execute surety bonds within this Republic, this Court is left with no alternative but to sustain the appellee’s contention and declare that the surety to the appellant’s bond, the Universal Insurance Company (UNICOL), is not a legally qualified surety to the appellant’s appeal bond within the contemplation of sections 51.8 and 63.2 of the Civil Procedure Law. This Court has also held that where the sureties to an appeal bond are not legally qualified under statutory provisions, the appeal bond is defective and the appeal is therefore subject to dismissal. Ghandour Brothers, Inc. v. Brockwoldt and Company Ltd., [1970] LRSC 34; 20 LLR 34 (1970), Syl. 1, text at page 37.
In the recent case of Freeman and Wesseh v. Lewis et al.[2000] LRSC 11; , 40 LLR 103 (2000), decided at the March Term, A. D. 2000, this Court, speaking through Chief Justice Scott, addressed the issue on appeal bonds as follow: “From the foregoing provisions of the Civil Procedure Law, that is sections 51.8 and 63.2, the intent of the lawmakers is clear, unambiguous and straight forward. The language of the stated provisions requires two legally qualified sureties who are at least two natural persons who shall present unencumbered real proper-ties or an insurance company authorized to execute surety bonds in Liberia. The law is equivocally clear on the requirements of sureties to be given as security for appeal bonds. This view had been previously held and expressed by this Court in the cases The Intestate Estate of the Late Willie J. M. Bowier v. Williams et al.[2000] LRSC 9; , 40 LLR 84 (2000), delivered on April 5, 2000 during the advance opinions of the March, A. D. 2000 Term of the Honorable Supreme Court, and The Liberian Trading and Development Bank (TRADEVCO) v. Cavalla Rubber Corporation, [1995] LRSC 42; 38 LLR 153 (1995), decided at the March Term, A. D. 1995″.
With regard to the second portion of the issue raised in this opinion, that is, the consequences of a defective or insuffi-cient appeal bond, we are in complete accord with this Court’s decision held in the Lewis case, cited supra, and therefore again cite hereunder the words of Madam Chief Justice Scott: “The question now is what are the consequences of a defective or insufficient appeal bond? Chapter 51, section 51.8 of the Civil procedure Law states that the object of an appeal bond is to ensure that the appellant’s sureties will indemnify the appellee from all costs or injury arising from the appeal, if unsuccessful, and that the appellant will comply with or satisfy the judgment of the appellate court. The provision goes on to state a penalty for a defective or insufficient appeal bond after the lower court loses jurisdiction. That penalty is the dismissal of the appeal. The language of the sentence which contains the penalty for an insufficient or defective appeal bond after the lower court loses jurisdiction clearly shows that the provision is mandatory and that compliance is not left to the discretion of the appellant. 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.” This Court is therefore under a legal duty to declare that due to the defectiveness of the appellant’s appeal bond the appellee’s motion to dismiss the appellant’s appeal is hereby granted and the appellant’s appeal is ordered dismissed. The Clerk of this Court is ordered to send a mandate to the court below ordering the judge presiding therein to resume jurisdiction over the case and enforce its judgment, thereby giving effect to this Court’s decision. Costs are ruled against the appellant. And it is hereby so ordered.
Motion granted; appeal dismissed.