THE MANAGEMENT OF BONG MINING COMPANY, Appellant/Respondent, v. AMOS BAH and THE BOARD OF GENERAL APPEALS, Ministry of Labour, Appellees/Movants.

MOTION TO DISMISS APPEAL FROM THE NATIONAL LABOUR COURT.

Heard January 12, 1988. Decided February 25, 1988.

1. There is no rule which fixes the amount of an appeal bond at one and one-half times the amount awarded in a judgment. However, a bond is inadequate when the indemnity provided therein is less than the amount of the judgment.

2. A statute enacted subsequent to a decision of the Supreme court takes precedence over the decision and makes the decision obsolete.

3. An insufficient bond may be made sufficient at any time before the trial court loses jurisdiction of the case; this, however, does not prevent an appellee from questioning the sufficiency of the bond at a later stage of the appeal.

In a complaint for unfair labour practices, the appellee Amos Bah claimed that he was entitled to compensation for injuries sustained to his ribs and testicles. The hearing officer found the appellant company to be liable to the appellee and therefore awarded the appellee $14,600.00. On appeal to the Board of General Appeals, the Board affirmed the ruling of the hearing officer. Not being satisfied with the decision of the Board, the appellant petitioned the Circuit Court for the Sixth Judicial Circuit, Montserrado County, for a judicial review of the decision. While the case was pending, the National Labour Court was established to handle labor cases. Hence the case was transferred to the new court. The National Labour Court, not finding the decision of the Board to be erroneous, denied the petition and affirmed the ruling of the Board. Form this judgment of the labour court, the appellant appealed to the Supreme Court for a final adjudication.

However, before the case was called for disposition by the Supreme Court, the appellee filed a motion to dismiss the appeal, stating as reason for the request that the bond was insufficient to indemnify the appellee, in that the appeal bond posted by the appellant was to the value of $17,600.00, an amount which was only $3,000.00 in excess of the value of the judgment, rather than one and one-half times the judgment. The appellee contended that the value of the appeal bond should have been $21,900.00, an equivalent of one and one-half times the judgment of the lower court.

The Supreme Court disagreed with the contention and therefore denied the motion to dismiss. The Court held that there was no rule or law which fixed the amount of an appeal bond at one and one-half times the judgment of the lower court, and opined that a bond is adequate where the amount stated therein is equivalent to the amount of the judgment. The Court observed that its previous decisions which had set the value of an appeal bond at one and one-half times the judgment of the trial court had been superseded and made obsolete by a subsequent statute which had been passed by the Legislature. The Court concluded therefore that as an appeal is only insufficient if the indemnity provided therein is less than the amount of the judgment, the motion to dismiss was without any legal basis. The Court accordingly denied the motion.

E. Wade Appleton appeared for appellees/movants. James D. Gordon of the Carlor, Gordon, Hne and Teewia Law Offices appeared for appellant/respondent.

MR. JUSTICE JUNIUS delivered the opinion of the Court.

At the call of this case for hearing, the Clerk informed the Court that a motion to dismiss the appeal had been filed in her office by the appellees. We quote the one count of said motion as follows:

“1. That the appellant’s appeal bond (cash bond) is fatally and incurably bad and defective in that the amount of indemnification or penalty is insufficient, since the amount awarded by the trial court if $14,600.00, confirmed in the final judgment, and therefore the indemnity should be one and half times $14,600.00, which is $21,900.00, instead of $14,600.00, as can be fully seen by the cash bond of the appellant. Appellees respectfully request this Honourable Court to take judicial notice of the said cash bond.”

To the above quoted motion to dismiss the appellant filed a resistance of three counts as follows: `

1. Because respondent says that the motion to dismiss is vague, uncertain and indistinct, in that movant maintains that the respondent/appellant filed an insufficient bond, but failed to state the amount filed which is considered by the movant as being insufficient. Because of this blunder respondent maintains that the motion should be dismissed as same was merely filed to delay and baffle the hearing of the main case.’

2. Respondent says that they filed a sufficient bond (appeal bond) in the amount of $17,600.00 which is far and above being sufficient, because the judgment appealed from is $14,600.00, but the bond filed is $3,000.00 in excess of the judgment. A copy of the appeal bond CASH is hereto annexed as exhibit “A” of this resistance.

3. And also because respondent says that there is no law that requires an appeal bond to be one and one-half times the judgment as is contended by the movant. The law requires that the appeal bond must be sufficient to indemnify the appellee. In the instant case the bond is more than sufficient because the $17,600000 can indemnify the appellee with a surplus balance of $3,000.00.”

This case originated in the Ministry of Labour and travelled to the Civil Law Court for the Sixth Judicial Circuit for judicial review. Within the interim, the National Labour Court was created. The said case was therefore forwarded to the new court for judicial review, as per petitioner’s petition. The petition was heard by the National Labour Court and judgment was rendered against respondent, who appealed to this Court. As can be seen from the above quoted motion to dismiss the appeal, the bond of the appellant has been attacked as fatally and incurably bad and defective, in that the amount of indemnification or penalty is insufficient since the amount awarded by the trial court was $14,600.00, and if confirmed in the final judgment, the indemnity should be one and a half times $14,600.00, which is $21,900.00 instead of $17,600.00. The movant cited the case Niumo v. Freeman, [1964] LRSC 4; 15 LLR 517 (1964), where this Court held that “an appeal bond, in a civil appeal must cover one and one-half times the principal amount at issue where indemnification is a primary purpose of the obligation; and defectiveness of such a bond in this respect constitutes ground for dismissal of the appeal”. In Thompson v. George, [1977] LRSC 46; 26 LLR 239 (1977), this Court held also that the statutory provision that “an insufficient bond may be made sufficient at any time during the period before the trial court loses jurisdiction of the action, sets a time limit within which appellant may secure the approval of a valid appeal bond, but does not stop appellee from questioning the sufficiency of the bond at a later stage of the appeal.” See Civil Procedure Law, Rev. Code 1:51.8.

The appellant on the other hand contends that there is no law that requires an appeal bond to be one and one-half times the judgment. It asserts that the law requires only that the appeal bond must be sufficient to indemnify the appellee. It cited us to the case Thompson v. George, [1977] LRSC 46; 26 LLR 239 (1977), wherein this Court said that “no rule fixes the amount of an appeal bond at one and one half times the amount awarded in the judgment of the lower court, but such a bond is inadequate when the indemnity provided therein is less than the amount of the judgment.” Therefore, it says, the $17,600.00 is sufficient to indemnify the appellee.

We observed that the movant has failed to take cognizance of the Court’s pronouncement in the Thompson case. We note further that the movant has also failed to realize that the later statute takes precedence over the decision of this Court in the Niumo v. Freeman case[1964] LRSC 4; , 15 LLR 517 (1964), thus making it obsolete.

It is therefore the opinion of this Court that the bond tendered by the appellant herein is sufficient, especially as it is three thousand dollars in excess. The motion to dismiss the appeal is hereby denied and the case ordered proceeded with on its merits. And it is so ordered.

Motion denied