Patrick Bowah, Representative Candidate (LTP), Konoboh District, Grand Gedeh County. Appellant Versus The National Elections Commission (NEC). 1st Appellee ) AND George Boley. 2nd Appellee )
HEARD: December 8, 2017
DECIDED: December 13, 2017
MADAM JUSTICE YUOH DELIVED THE OPINION OF THE COURT
This appeal grows from a final judgment of the Board of Commissioners of the National Elections Commissions (NEC), denying and dismissing the appellant’s appeal for his failure to file his appeal from a final ruling of the Magistrates of Elections within the statutory time of 48 hours as prescribed by Article 12.1 of the Elections Regulations on Hearing Procedures promulgated by the National Elections Commissions under authority of Section 2.9(h) of the New Elections Law. We observed from the records that George Boley, being a party of interest who contested the October 10, 2017, elections in District # 2, was also designated as 2nd appellee pursuant to Chapter 6, sub- section 6.2(1) of the New Elections Law which states that “…all parties having an interest in an elections dispute must be joined in the suit…” See Dorbor et al. v. National Elections Commission, Supreme Court Opinions, October Term A. D. 2011.
The facts, as culled from the records forwarded to this Court by the National Elections Commission, the 1st appellee, show that on October 14, 2017, the appellant filed a
“That on October 14, 2017, Hon. Patrick Bowah filed a complaint with the Magistrates of Elections of Grand Gedeh County alleging irregularities relating to the October 10, 2017 presidential and representative elections, specifically the representative election that took place in District # 2, Grand Gedeh County.
A hearing was had on the complaint, after which the Magistrates of Elections entered final ruling on October 17, 2017, dismissing same. To said ruling the appellant excepted and announced an appeal to the Board of Commissioners of the NEC.
A hearing was had on the complaint, after which the Magistrates of Elections entered final ruling on October 17, 2017, dismissing same. To said ruling the appellant excepted and announced an appeal to the Board of Commissioners of the NEC.
On November 21, 2017, when the appeal was called for hearing by the Board of Commissioners of the NEC, the counsel representing the 1stappellee NEC, made a submission on the minutes to dismiss the appellant’s appeal on grounds that the appellant had failed to file his appeal with the Board within 48hrs as of the final ruling of the Magistrates of Elections, as prescribed by the Elections Regulation on Hearing Procedures. We quote the submission as follow:
“That on October 14, 2017, Hon. Patrick Bowah filed a complaint with the Magistrates of Elections of Grand Gedeh County alleging irregularities relating to the October 10, 2017 presidential and representative elections, specifically the representative election that took place in District # 2, Grand Gedeh County.
That hearing in this matter was conducted starting from October 15, 2017, and concluded October 17, 2017, when the magistrate handed down his ruling dismissing the matter. The appellant took exceptions and filed the Bill of Exceptions and same was approved by the Magistrate on October 18, 2017, by Magistrate Dougee of Grand Gedeh County. Counsels says that the law requires and consistent with Article 12 of the Guidelines relating to elections hearing procedures published May 2016, specifically Article 12, sub-section 12.1, which reads “a party not satisfied with the decision of the Magistrate shall have the right to appeal to the Board of Commissioners no later than 48hrs after the decision is rendered. A Bill of Exceptions approved by the Magistrate shall be filed before the end of the 48 hrs.”… Counsel says that the records show that the appeal was filed with the Board of Commissioners on November 15, 2017, which is more than 48 hrs. Counsel says that consistent with the facts and the laws quoted herein above, the herein appellant failed to follow the procedure governing appeals and failed to perfect the appeal within 48 hrs by filing the bill of exceptions with the Board of Commissioners as required by both the statute and regulations.
WHEREFORE, AND IN VIEW OF THE FOREGOING, counsel prays that this appeal be denied and dismissed. And respectfully submits.”
The appellant also spread his resistance on the records which we similarly quote as follow:
“That the submission made by the counsel be denied and dismissed on the ground that appellant did [conform] and abide by the [law] just read by the counsel for the appellee requiring the appellant to file his appeal to this Commission within 48 hrs. Counsel says that this was done as you can see if you have the copy of the communication from Mr. Patrick Bowah, the appellant in these proceedings, dated October 17, 2017, addressed to the Elections Commission representative or Magistrate of the Elections Commission in Grand Gedeh County, especially given the condition of this Country; coming from
2wzdu to Monrovia the 48 hours will elapse on him; counsel says that the best person to represent the National Elections Commission is the Magistrate who is the agent who is equipped to convey this appeal to the Board of Commissioners and that [is] what he did. And Submits.”
On the same day of the hearing on the submission and the resistance thereto, the Board of Commissioners entered its final ruling dismissing the appeal on grounds as set forth in the 1st appellee’s motion to dismiss. Excerpt of said ruling is quoted below:
“At the call of this appeal, the co- appellee spread on the record [a submission] requesting the dismissal of the appeal for same was filed outside of the statute. The appellant argued that its bill of exceptions was filed within the statutory time because it is the responsibility of the Election Magistrate in the County who presided in the hearing to have perfected the filing of the Bill of Exceptions with the Board of Commissioners. The respondent contended further that he was assured by the Magistrates of Elections that the Bill of Exceptions originally filed with him will be transmitted to the Board of Commissioners. On the basis of those two, the appellant believes that he is within the statute. Section 2.9, subsection (h) of the Elections Law provides thus “the National Elections Commission shall have the power to formulate and enforce guidelines controlling the conduct of all elections for elective public offices which guidelines shall not be inconsistent with the provisions of the Constitution and the Elections Law.” Pursuant to that provision, the National Elections promulgated the Elections Hearing Procedure, Article 12, sub- section 12.1. .The records in the case [reveal] that the decision of the Magistrate dismissing the appellant’s complaint was entered on October 17, 2017. The bill of exceptions shows that [it] was filed with the Board of Commissioners on November 15, 2017, almost a month after. It is the decision of this Board that the bill of exceptions was filed outside the statutory period and the contentions advanced by the appellant/respondent are not tenable; it is therefore the decision of the Board that the motion to dismiss the appeal is hereby granted and the appeal is dismissed and it is hereby so ordered.”
It is from this afore- stated final ruling of the Board of Commissioners that the appellant excepted and announced an appeal to the Honorable Supreme Court, and filed his bill of exceptions with the clerk of the Supreme Court on November 30, 2017. In his three (3) count bill of exceptions, the appellant averred that the Board of Commissioners committed reversible errors when it dismissed his appeal from the ruling entered by the Magistrates of Elections of Grand Gedeh County. We quote herein below the appellant’s three (3) count bill of exceptions, to wit:
“APPELLANT’S BILL OF EXCEPTIONS
And now comes appellant in the above entitled cause of action most respectfully tendering this bill of exceptions for approval by the Board of Commissioners, thus paving appellant’s way to the Honorable Supreme Court of Liberia with his appeal, same bill of exception being the following to wit:
That the Board of Commissioners committed a reversible error when it denied and dismissed appellant’s appeal to it on ground that said appeal was not filed within statutory time of 48 hours; when in fact the appeal was filed with the Magistrates of Elections of the County of Grand Gedeh.
That the Board of Commissioners committed a reversible error when it denied and refused to accept the fact that filing of the appeal with the Commission’s representative in the county, that is the Magistrates of Elections is tantamount to filing of the appeal with the Board of Commissioners of the Commission [NEC].
That the Board of Commissioners committed a reversible error when it failed to accept as filing of the subject appeal with the Board of Commissioners when the appellant vie email sent said appeal of the Hearing Officer’s ruling to the Board of Commissioners, which appeal is now in the Commissioners’ email box, as evidence by the retrieved copy of the sent email.
Wherefore, and in view of the foregoing, appellant prays yours Honors to approve this bill of exceptions so as to enable appellant to move on to the Supreme Court for the review of the Board of Commissioners’ ruling; and grant unto appellant any and all relief which the Board may deem necessary, legal and equitable in the premise.”
On December 6, 2017, the 2nd appellee, Mr. George Borley filed a motion to dismiss the appellant’s appeal on ground that the appellant filed his bill of exceptions outside the statutory time of seven (7) days in keeping with sections 6.3 and 6.4 of the New Elections Law. Section 6.3 of the New Elections Law provides that “any contestant affected by the decision of the Commission shall have the right to appeal to the Supreme Court of Liberia not later than seven (7) days after the decision is rendered.” Section 6.4 of the same law states “the contestant shall file with the clerk of the Supreme Court the bill of exceptions within seven (7) days after rendition of decision of the Commission and shall pay the cost of filing the bill of exceptions and of procuring a certified copy thereof the same as those paid by a plaintiff and/or appellant in a civil action.”
At the call of the main appeal before the Supreme Court on December 8, 2017, the 2nd appellee informed the Court of the pending motion to dismiss the appeal. Upon enquiring from the counsel for the appellant as to the absence of a resistance to the Motion, said counsel informed the Court that he had just been served with a copy of the motion upon his appearance in the chambers of the Court for the hearing of the appeal, but was ready to submit on the records his resistance if granted permission by the Court. The Court granted the permission and the appellant’s counsel spread his resistance to said motion on the records, denying the 2nd appellee’s contention that his bill of exceptions was filed outside the statutory time of seven (7) days as prescribed by the New Elections Law. Further thereto, the appellant cited section 1.7, sub- section 1 of the Civil Procedure Law. We quote the said section as follows:
“In computing any period of time prescribed or allowed by statute, by order or rule of court, by rule or regulation, or by executive order, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a legal holiday. When the period of time prescribed or allowed is less than ten days, intermediate Sundays and holidays shall be excluded from the computation”.
Also in his resistance to the appellee’s motion, the appellant stated that the final ruling of the Board of Commissioners of the NEC was delivered on November 21, 2017, but was received on November 22, 2017. As such, in computing the time as of the date of receipt
1 of the final ruling, the last day for the filing of the bill of exceptions fell on Wednesday, November 29, 2017, a public holiday (Tubman’s Birthday), which prompted him to file same on Thursday, November 30, 2017. Thus, the bill of exceptions was filed within seven (7) days as mandated by the New Elections Law.
This resistance was not disputed by the 2nd appellee. In fact, 2nd the appellee in a submission on the records conceded the legal soundness of the appellant’s resistance in its entirety. This Court taking judicial notice of the law relied on by the appellant, ruled on the records denying and dismissing the appellee’s motion, ordered and proceeded to the hear the merits of the appeal.
In his argument, the counsel for the appellant maintained that he had filed his appeal before the Board of Commissioners within the time prescribed by law, that is, within 48 hours as of the final ruling of the Magistrates of Elections, which ruling was rendered on October 17, 2017. We note that the appellant based his argument on the law of agency, wherein an agent can act on behalf of his principal. He stated that in this case, the fact that the Magistrates of Elections is an employee of the NEC, was an agent of the NEC, thus he properly filed his appeal before said employee/agent on the same October 17, 2017, which he asserted was tantamount to filing with the Board of Commissioners. He also stated that in perfecting his appeal, he sent a copy of said appeal to the email address of the secretary to the Commissioner with oversight responsibility of Grand Gedeh County, because the road condition was deplorable which would have made it impossible to travel from Grand Gedeh County to Monrovia where the Board of Commissioners sits at the head office of the NEC. According to him, these two acts constituted compliance with the provision of the regulations on filing of an appeal taken from the ruling of the Magistrates of Elections to the Board of Commissioners of the NEC within 48 hours after the rendition of final ruling.
In its argument, the 1st appellee maintained that the method of filing employed by the appellant did not comply with the provision of the statute controlling appeals since he failed to file his appeal with the Board of Commissioners within 48 hours after the rendition of the final ruling by the Magistrates of Elections. The 2nd appellee for his part, argued that even taking into consideration the deplorable road conditions as asserted by the appellant, which, according to him, made it impossible to file his appeal with the Board of Commissioners in Monrovia within 48 hours after rendition of the final ruling of the Magistrates of Elections, it would still be unreasonable, by any standard, to accept that the appellant’s appeal which was officially filed with the Board of Commissioners on November 15, 2017 or pursuing his appeal 28 days after the final ruling of the Magistrates of Elections.
The facts and arguments advanced by the parties present only one issue determinative of this appeal, which is, whether or not the appellant having filed his bill of exceptions with the Magistrate of Elections and by sending it by email constitute filing as contemplated by the law in vogue.
The Elections Regulation which governs appeals from Magistrates of Elections to the Board of Commissioners provides that: “a party not satisfied with the decision of the Magistrate shall have the right to appeal to the Board of Commissioners no later than 48 hours after the decision is rendered. A Bill of Exceptions approved by the Magistrate shall be filed
“Requirement. All pleadings, affidavits, and other papers required to be served in an action shall be filed. If a party fails to comply with this paragraph, the court, on motion by any party, may order any papers not filed to be regarded as stricken.
Place of filing. Except as otherwise required by law or order of court, papers required to be filed shall be filed with the clerk of the court in which the action is pending or will be brought.”
This quoted provision of the Civil Procedure Law is also supported by the Black’s Law Dictionary, Ninth Edition, which defines filing as: “the delivery of a legal document to the court or records custodian for placement into the official record.”
This Court interprets the above quoted provisions of the law to mean that legal documents or papers are considered filed only when they are delivered to the clerk of court, or in this case, the person(s) designated by the Board of Commissioners of the NEC to receive and file all papers on behalf of the Board and who will, in accordance with the law and practice in this jurisdiction, make a notation thereon as to the date and time of filing.
Further, we take note that the appellant has also attempted to impress upon us that the appeal was filed within the statutory period since he transmitted same via email to the secretary assigned to the Commissioner with oversight responsibility of Grand Gedeh County given the road conditions.
This Court takes judicial notice of the conditions of the roads in rural parts of Liberia, especially during the rainy season; nonetheless, our Constitution mandates the holding of general, presidential and legislative elections in the month of October of each elections year which is the peak period of the rainy season, and until this law is amended, our elections will continue to be held during these times of torrential rainfall when the poor road conditions are worsen, making travel unsafe and hazardous. Candidates would still have to travel to their various constituencies to campaign for votes; the NEC will still have to transport election materials throughout the country given the deplorable road conditions. In like manner, candidates who are dissatisfied with elections results will still have to travel from other parts of the country to Monrovia to have their grievances addressed, either by the Board of Commissioners of the NEC or this Honorable Supreme Court. In as much as we are sympathetic to the plight of the appellant in this case, considering the immense difficulty of traveling from Grand Gedeh County to Monrovia to file his appeal with the Board of the NEC, we cannot hold emailing of his appeal to suffice for filing in accordance with the law and practice aforementioned.
Our holding is premised on the law which does not allow the “electronic filing of courts orders or notices, or official court documents (including briefs, pleadings, and other writings) required to be executed in connection with court proceedings unless any rule of law relating to those proceedings provides for applications of those provisions.” Part III Section 13.14 of An Act Amending the General Business Law Title 14 Revised Code and Adding
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Thereto Chapter 13 To Facilitate The Use of Electronic Transactions For Commercial And Other Purposes And To Provide For Matters Arising From And Related to Such Use.
Were this Court to hold contrary to the provision of the law cited supra, we would not only be extrapolating the law, we will also be setting precedents that would determine the method of filing appeals or other records before courts, where by parties who would be unable to file their appeal with the clerk of court by appearance before said clerk and have him inscribed his signature, the time and date of filing- factors which tend to become significant issues in instances of challenges to filing within a specified time- would opt to file their appeal email. The procedure on filing an appeal is clear and unambiguous. It is not within our purview to hold otherwise, for doing so is tantamount to extrapolating the law.
Moreover the issue of filing of the appellant’s appeal via email was never raised in the proceedings before the Board of Commissioners of the NEC but was only included in his bill of exceptions filed before this Court. This is unacceptable because it is trite law that issues not raised in the lower court cannot be included in the bill of exceptions coming before an appellate court except for subject matter jurisdiction. The Supreme Court has held that “bill of exceptions are specifications of the exceptions made to the judgment, decision, order, ruling, sentence or other matters of the trial court excepted to and relied upon for the appeal, together with a statement of the basis of the exceptions.” Universal Printing Press v. Blue Cross Insurance Company, Supreme Court Opinion, March Term A.D. 2014.
The appellant’s argument that he properly filed his appeal because same was filed before the self- same Magistrate who had approved the bill of exceptions, and who also happens to be an agent of the Board of Commissioners could act on behalf of the Board is untenable and un- weighty for two reasons.
The first reason is that the New Elections Law which created the office of Magistrates of Elections within the National Elections Commission clearly defines the scope and authority of an Magistrates of Elections by providing thus:
“Section 2.24: Magistrate of Elections
the Commission shall appoint within each County/District as many Magistrates of Elections as shall be necessary, who shall serve as liaison between the Commission and the County/District they represent in respect of all Elections activities within their county of assignment. Each such Magistrate shall comply with all general as well as special instructions issued to him by the Commission. A Magistrate of Elections shall have power and functions within his area of jurisdiction to hear and determine objections of voters on the registration rolls, and upon a proper showing, to order the reinstatement upon a proper showing, to order the reinstatement upon the registration rolls of names of qualified voters struck off by mistake. Magistrates of Elections shall have the power and jurisdiction in the first instance to hear and determine all elections offenses in which the penalty provided is not more than five hundred ($500.00) dollars. In all other offenses, the Commission shall have original administrative jurisdiction subject only to judicial review by the Supreme Court of Liberia.
Subject to any directions given by the Commission, the Magistrate of Elections shall on receipt of the writ, endorse thereon the date of its receipt, and shall make all necessary arrangements for holding of the election.
The Magistrate of Elections may, with the approval of the Commission, appoint a deputy or deputies to act specially or generally, or for a particular constituency, who shall have the authority to perform all the duties of the Magistrate of Elections or such duties as are specifically prescribed and subject to such limitations as are mentioned in the appointment.
The Magistrate of Elections shall take such steps as shall be directed by the Commission to inform the political parties, independent candidates and the voters of
a) The dates by which acts have to be done, nominations made or otherwise as required by this title;
b) The time-table for the electoral process;
c) the general arrangements for taking the poll, counting the ballots and declaring the results of the poll; and
d) Generally, as to the conduct of the election and the duties of parties and candidates;
The Magistrate of Elections shall in accordance with any directive from the Commission:
a) Furnish the approved polling places and provide each one with a ballot box or boxes
b) Provide each polling place with the necessary ballot papers prepared in the prescribed forms and furnished by the Commission;
c) Administer the oath to all persons serving in the polls; and
d) Arrange for the poll and the count and declaration of the results within the county/district.”
There is nowhere in the New Elections Law quoted supra, or attendant Regulations promulgated by the NEC that the Magistrates of Elections is authorized to receive and file bill of exceptions on behalf of the Board of Commissioners.
The second reason is that assuming arguendo that the Magistrate was an agent of the Board of Commissioners, the Magistrate, pursuant to the law of agency could not go beyond the scope of authority clearly defined in the above quoted citation. This means that in order to receive legal documents on behalf of the Board of Commissioners of the NEC, the Magistrate of Elections ought to have obtained the expressed authority from the Board. Given the challenges posed by the deplorable road conditions of the country, especially in the leeward counties it would not be unreasonable for the NEC to designate its Chief Hearing Officer/Magistrate of Elections as agent upon whom appeal documents can be filed. That system not being in place, this Court will not accept the appellant’s argument that the filing of his bill of exceptions with the Elections Magistrate is tantamount to filing before the Board of Commissioners as contemplated by the law.
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This Court says that our position stated herein should not be misconstrued that the Court is unaware of the deplorable roads in rural parts of the country and the challenges travelers encounter thereon. Rather, it is the position of this Court that if the appellant was unable to file his bill of exceptions within 48 hours due to the challenging conditions of the roads he should have availed himself of the legal remedy available to him in such instances as stipulated in section 1.7(2) of the Civil Procedure Law, by requesting for enlargement of the statutory time since he could not be in Monrovia within 48 hours to file his appeal before the Board of Commissioners of the NEC. Section 1.7(2) of the Civil Procedure Law provides thus:
“Enlargement. When under this title or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, except as otherwise provided by law, at any time in its discretion: (a) order the period enlarged if application is made before the expiration of the period originally prescribed or as extended by previous order, or (b) upon motion made after the expiration of the prescribed period permit the act to be done when the failure to act was the result of excusable neglect”
Further, we note that the appellant waited supinely for a period of almost 30 days before appearing at the Board of Commissioners to retain the services of a lawyer to pursue his appeal. At the hearing of this appeal, the lawyer representing the appellant admitted that his services were retained less than a week before the commencement of the hearing of the case before the Board of Commissioners. This act of the appellant demonstrates willful neglect to vigilantly pursue his appeal knowing full well that the NEC, pursuant to Article 83(c) of the Constitution has thirty (30) days in which to hear and determine all complaints coming before it. The Supreme Court in cautioning appealing parties to fully comply with the appeal statute has consistently held as follows:
“in as much as the Court has repeatedly expressed its strong preference for deciding cases on its merit and, consequently, is hesitant to dismiss a case by reason of a mere technicality it is very important that an appellant, in pursuing an appeal takes the outmost care to ensure that the statute is strictly complied with; that the Counsel for the appellant must continuously and meticulously examine the appeal statute and make sure that it is complied with to the letter and to the full intent of the Legislature as the Court is not prepared to sacrifice the appeal statute or turn a blind eye to accommodate the errors of the appellant in perfecting his appeal. To the converse, the position of the Supreme Court has been strict compliance; and any omission in fulfilling the requirements enounced in the appeal statute is deemed fatal and a warranty for the dismissal of the appeal as the Supreme Court has been un- wavering and uncompromising in its position that non- compliance with the mandatory statutory requirements for appeal cannot be deemed as mere technicality and that a case will in fact be dismissed where there are violations of the substantive statutory requirements by the appellant.”Manakeh v. Toweh, 32LLR 207 (1984); Ezzedine v. Saif 33LLR 21 (1985); Blamo et al., v. The Management of Catholic Relief Services, Supreme Court Opinion, March Term 2006; Hussenni v. Brumskine,
2017
This Court has made no differentiation in the application of the principle of law quoted supra, to appeals in elections matters. In fact the Court has articulated and espoused that: “it is incumbent on a candidate in an election to ensure that he has in place a qualified legal team so that in the event he believes that an election violation has occurred, he would be in the position to adequately take advantage of the law, especially with the timeframe prescribed by the law for asserting a challenge and timely appealing from any decision related to the challenge since electoral challenges are special proceedings which must be heard expeditiously.” Jonathan Boye Charles Sogbie v. NEC, Suprme Court Opinion, October Term A.D. 2016; Kamara v. NEC, Supreme Court Opinion March Term, A.D. 2017; National Elections Commission (NEC) v. Siebo, Jr., Supreme Court Opinion, March Term A.D. 2017.
WHEREFORE, and in view of the foregoing, the appeal is hereby denied and dismissed. The Clerk of this Court is ordered to send a mandate to the National Elections Commission to resume jurisdiction over this case and enforce this judgment. And it is so ordered.
Appeal Dismissed
When this case was called for hearing, Counsellor Amos Y. Bartu of Legal Consultants, Inc., appeared for the appellant. Counsellor Joseph N. Blidi, In- House Counsel of the National Elections Commission (NEC) and Counsellers Frank Musah Dean, Jr. and C. Alexander B. Zoe appeared for the 1st appellee. Counsellor J. LaveliSupuwood appeared for the 2nd appellee.