NYONBEOR AL-BOLEY, for himself and DANIEL SLUWAR, Objectors/Appellants, v. THE PROPOSED UNITY PARTY, Respondent/Appellee.

MOTION FOR ADVANCEMENT OF HEARING OF APPEAL

Heard: May 7, 1935. Decided: June 21, 1935.

1. Cases may be advanced for hearing in the appellate court on a proper showing.
2. The usual procedure for advancement of a hearing in the Supreme Court is by motion directed to the discretion of the Court.
3. A motion for the advancement of a hearing must be accompanied by an agreed statement of the case or by such extracts from the records as will show the case to which the rule or statute providing therefor is applicable.
4. Cases involving matters of public interest, and appeals in matters of habeas corpus and criminal matters, may be advanced upon the docket in the discretion of the Court.
5. The docketing and advancement of a case are two separate and distinct procedures, the former involving placing the case on the docket and the latter being to advance the case after it has been placed on the docket.
6. Although the procedure followed by a party for advancement of a case may be out of place, the Court has the right, in the exercise of its discretion and in the interest of justice, to advance the hearing of the case to the term in which the Court is sitting.

Appellee, the Proposed Unity Party, filed a motion for the advancement of the hearing of an appeal taken to the Supreme Court by the appellants, Al-Boley and Daniel Sluwar. The appellants, who had objected to the probation of the articles of incorporation of The Proposed Unity Party by the Monthly and Probate Court for Montserrado County, had lost the case in the lower court and had appealed the decision to the Supreme Court. However, because the appeal was perfected after the Supreme Court had already convened for the March Term, 1985, the appellee filed a motion before the Court to advance the hearing of the case.

Although the motion to advance the hearing of the appeal was resisted, and the Supreme Court opined that the appellee had failed to follow the procedure prescribed by law for advancement of a case for hearing, the Court nevertheless granted the motion and ordered the case advanced for hearing. The Court noted that in the Liberian jurisdiction, a case could be advanced if it involved the public interest, habeas corpus, or criminal matters. The Court observed that while it was true that the appellee had failed to first move the Court to docket the case as required by law, and to present legal authority to support the motion, it had determined, in the exercise of its discretion, to grant the motion in the interest of justice and because of the public interest in the matter.

George S. B. Tulay and Roger Steele appeared for the objectors/ respondents. J. Edward Koenig, in association with Clarence E. Harmon, Francis Y. S. Garlawulo and Joseph Sirleafappeared for the appellee/movant.

MR. JUSTICE JANGABA delivered the opinion of the Court.

The action from which this motion emanated is an appeal from the ruling of the Judge of the Monthly & Probate Court for Montserrado County, Her Honour Luvenia V. Ash-Thompson, in the case Nyonbeor Al-Boley of the City of Paynesville and Daniel Sluwar of the City of Monrovia, object-ors, versus the Proposed Unity Party of Monrovia, Liberia, respondent.
Appellee/movant listed four (4) reasons why the motion should be granted while appellants/respondents resisted same in seven (7) counts, requesting this Court to deny the motion.
There are several issues presented, among which is the basic question, whether or not a motion for advancement can be made when the case has not been placed on the docket for a term.
We have not been able to find any precedence in this jurisdiction and therefore we must invoke the relevant law controlling docketing and assignment of cases before this Court.

Let us first determine what the word “docket” means. Legal authorities have stated that the word “docket” means:

“A minute, abstract, or brief entry; or the book containing such entries. A formal record, entered in brief, of the proceedings in a court of justice. A book containing an entry in brief of all the important acts done in court in the conduct of each case, from its inception to its conclusion. The name of ‘docket’ or ‘trial docket’ is sometimes given to the list or calendar of causes set to be tried at a specified term, prepared by the clerks for the use of the court and bar.” BLACK’S LAW DICTIONARY 431 (5th ed.).

The dockets or calendar of the appellate court is a register of the actions therein, ordinarily kept by the clerk and the order of the cause on the docket or calendar usually determines the order in which it will be heard. The time, manner, and order of docketing are governed by local practice statutes or court rules. In a proper case, the case may be docketed, advanced, and set for hearing upon the motion of appeal as required by law or files a void notice, the reviewing court may strike the cause from its docket. A case will be stricken from the calendar after the appeal has been dismissed, or where the appellate court is without jurisdiction of the subject matter. However, a motion to strike the appeal from the files is not a proper remedy where the case was improperly brought as an appeal on questions of law and fact.

The appellant is required to exercise due diligence to see that the case is properly docketed, and the appeal may be dismissed for laches in this respect.

A rule of court requiring cases to be ready for hearing when reached will be rigidly enforced.” 5 AM. JUR. 2d, Appeal and Error, § 678.
Our attention is also focused on the citation for advance-ment and preference of a case, and its relevancy to dockets and calendars, which we quote as follows:

“The practice in most appellate courts permit cases to be advanced for hearing, out of the regular order, on a proper showing. The usual procedure to procure such advancement is by motion directed to the discretion of the court. In a proper case, the case may be advanced on appellee’s motion. Such motions should be accompanied by an agreed statement of the case, or by such extracts from the record as will show that the case is one to which the rule or statute providing therefor is applicable.

A showing of good causes which are ordinarily regarded as entitled to a preference by reason of statutes or rules of court are those involving important questions affecting the public interest, cases involving questions which are similar to those in a case scheduled ahead, cases involving the allowance or denial of a temporary injunction, cases upon which the settlement of an estate depends, cases in which the question at issue is the jurisdiction of the court below and criminal cases.

A case which does not fall within any of the excep-tions stated by rule of court or statute will ordinarily not be advanced. A case will not be taken up out of its order on the docket where private interests only are concerned.

A motion to affirm a judgment on the ground that the appeal is without merits is, in substance, only a motion to advance the cause for hearing prior to its being reached on the calendar and will be allowed only when there is good reason for such advancement.” 5 AM. JUR. 2d., Appeal and Error, § 679. Advancement or preference, pp. 125-127.
In an effort to resolve the issue presented, it is further necessary that we look at the revised rules of the Supreme Court of Liberia governing dockets:

“PART 1. ENTRY OF CASES:

“The clerk shall enter upon the docket all cases appealed to, or pending in this Court in the order of their filing. No case shall be entered on the docket until all the records and papers connected therewith shall have been sent up and filed in the office of the clerk. The clerk in making up the docket shall give the title and nature of every case.”

PART 2 : CONTINUANCE and WITHDRAWAL

“In all cases where the cause shall not be docketed and the records filed with the clerk by either party before the expiration of five days from the commencement of the term, the cause shall be continued until the next term. Whenever the appellant and appellee, or the petitioner and respondent shall in vacation by them-selves, or either counsel, sign and file with the clerk an agreement in writing directing the cause to be with-drawn, and specifying the terms on which it is to be withdrawn as to costs, shall pay to the clerk any fees that may be due to him and the ministerial officers, it shall be the duty of the clerk to enter the case with-drawn upon the approval of any Justice of the Court, and to give to either party requesting it a certificate of withdrawal.”

PART 3: CALL OF:

“The clerk, under the direction of the Court shall call causes for argument or hearing in the order in which they stand on the docket, except that causes in which counsel from the counties outside of Montserrado appear, may be grouped so as to take precedence of causes arising from the County of Montserrado.

If the parties, or either of them, shall be ready to proceed when the cause is called, the same will be heard unless otherwise ordered. If neither party shall be ready, the cause may be postponed, or put at the foot of the docket. If a cause is called at two terms, and upon the call at the third term neither party is ready to proceed, the cause may be dismissed. Causes involving matters of public interest, and appeals in matters of habeas corpus and criminal cases may be advanced upon the docket in the discretion of the Court. The docket shall be entirely under the control of the Court and no action with reference thereto shall be binding upon the Court, or a Justice thereof.” RULES OF COURTS – THE DOCKET – PARTS 1 – 3, pp. 37 – 38.

This is the law in vogue. It is however striking to note that the Counsellors of this bar, who motion the Court for advancement of a case, do not follow the required procedure laid down by the Court’s rules. The case at bar was filed after the opening of the March Term. This means that the case should have been put on the docket for the October Term because the cases for the March A. D. 1985 Term had already been docketed prior to the completion of the appeal. In our opinion, the first and proper procedure to follow was a motion to have the case docketed. The appellee did not however make such motion. Moreover, the appellee, in all its arguments before the Court, did not present any legal authority to support the motion to advance this un-docketed case. The only reliance that came close to the point and which is of interest to us is the case Pratt v. Phillips, [1941] LRSC 8; 7 LLR 218 (1941). We disagree however that the cited case is analogous to the set of facts in the instant case. In Pratt v. Phillips, the case was already placed on the docket when they filed a motion to advance it for hearing; whereas in the case before us, the case has not been placed on the docket. Furthermore, and consistent with the practice in this jurisdiction, we would like to clearly point out that docketing of a case and advancement of it on the docket are two separate and distinct procedures. In all cases, when an appeal is properly taken from a court of record, the clerk places the case on the docket with other cases pending for appellate review. The cases must be reviewed in the order in which they appear on the docket. In the instant case, although the appeal was taken to the March, A. D. 1985 Term of this Court, it was not perfected until April 18, 1985, after the March Term had already begun. Despite this fact, the appellee proceeded to move the court to advance the case for hearing when in fact it had not been docketed.
We consider this procedure out of place. Notwithstanding, this Court does have the right, in exercising its judicial discretion and in the interest of justice, to decide any case on appeal before it for the term for which it is sitting. Judicial discretion is as old as the court, and according to 14 AM. JUR. it is defined as follows:

“EXERCISE OF JUDICIAL DISCRETION – Discretion, when invoked as a guide to judicial action, means a sound discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law and directed by the reason and conscience of the judge to a just result. In all matters of discretion, however, the judge must exercise a judicial discretion. Such a discretion is a mere legal dis-cretion, a discretion in discerning the case prescribed by law; and when that is discerned, it is the duty of the court to follow it. For instance, where a law is constitutional, a court has no discretion as to its enforcement. Nor may a court ignore a violation of a constitutional right merely because it is relatively not as bad as it might have been.

This does not mean, however, that in all cases involving statutes the courts are without discretion, as instances may arise where, even though the rights and liabilities of parties are prescribed by statute, the courts possess a certain amount of judicial discretion in the matter.” 14 AM. JUR., Courts, § 54, pp. 279-280.
On this ground, the motion is hereby granted, the case ordered docketed and simultaneously advanced on the docket for hearing. And it is hereby so ordered.

Motion granted.