ROBERT J. BROWN, Appellant, v. GENERAL CONSTRUCTION, INC., by and thru its General Manager, JACK D. GHASSANA, Appellee.

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

Heard: October 19, 2000. Decided: December 21, 2000.

1. The clerk of the trial court, not the appellant, has the statutory duty to transcribe and transmit the trial records to the Supreme Court within ninety days after rendition of judgment of the court; hence, any delay in the transmission of the appeal records is error by the clerk, not the appellant.

2. Delay by the clerk of the trial court in transmitting the trial court records to the appellate court beyond the ninety day period allowed by law is not a statutory ground for the dismissal of an appeal.

3. The only grounds upon which an appeal may be dismissed are those specified by the controlling statute.

In an appeal taken to the Supreme Court from a judgment of the Circuit Court for the Sixth judicial circuit, Montserrado County, in an action of declaratory judgment, the appellee filed a motion praying for the dismissal of the appeal, stating that the appellant had failed to have the trial court records prescribed and transmitted to the Supreme Court within the ninety day period allowed by law.

The Supreme Court disagreed, holding that the responsibility for transcribing and transmitting the records of the trial court to the Supreme Court was statutorily delegated to the clerk of the trial court and not the appellant. The failure of the clerk to perform that statutory duty, the Court said, did not constitute ground for the dismissal of an appeal. The Court opined that the only grounds upon which an appeal could be dismissed were those specified by the appeal statute. The Court observed that the failure to have the trial court records transcribed and transmitted to the Supreme Court within the period prescribed by law was not one of the stated statutory basis for the dismissal of an appeal. The Court therefore denied the motion and ordered the appeal heard on the merits.

Marcus R. Jones of the Jones and Associates Legal Consultants appeared for the appellant. Manston J. Manley of the White and Associates Law Firm appeared for the appellee.

MR. JUSTICE. MORRIS delivered the opinion of the Court.

The facts of this case, as gathered from the certified records before us, disclosed that on the 31st day of July, A. D. 1998, the appellee, petitioner in the court below, filed in the Civil Law Court of the Sixth Judicial Circuit, sitting in the September Term, A. D. 1998, presided over by His Honour Wynston O. Henries, Resident Circuit Judge, a petition for declaratory judgment against the appellant to determine the rights of the parties with respect to a lease agreement executed on the 15th day of June, A. D. 1977 for a period of twenty (20) years certain, with an optional period of ten (10) years, On the 10th day of August, A. D. 1998, the appellant filed its returns. Pleadings thereafter rested, law issues were heard and disposed of, and the case was ruled to trial. On the 22nd day of September, A. D. 1998, the petition was argued, heard, and ruling was reserved by the court. On the 25th day of September, A. D. 1998, the appellant filed a motion for a trial by jury. On the 9th day of October, A. D. 1998, the trial judge, His Honour Wynston O. Henries, denied the appellant’s motion for a jury trial and granted the petition for declaratory judgment in favour of the appellee, indicating among other things that the lease agreement entered into by the parties was valid and that it operated on the same terms and conditions as were spelt out or indicated in the original agreement. The appellant excepted to the ruling and announced an appeal to this Honourable Court of last resort. On the 14th day of October 1998, the appellant filed its bill of exceptions, duly approved by the trial judge, and on the 18th day of November, A. D. 1998, filed its notice of completion of appeal.

On the 30th day of April, A. D. 1999, appellee filed a seven-count motion to dismiss the appellant’s appeal. In counts 4 and 5 of the motion, the appellee contended that the failure of the appellant to pay the fees for the preparation and transmission of the court’s records to the Honourable Supreme Court of Liberia within the ninety day period allowed by law was tantamount to an abandonment of his interests and, therefore, grounds for the dismissal of the appeal. The appellant, on the other hand, argued that appellee’s motion was absurd and unmeritorious and did not constitute a legal ground for the dismissal of appellant’s appeal. The appellant further submitted that the motion was made in bad faith and was designed purposely to mislead this Court, and, hence, should be dismissed. The appellant contended that the ground stated in the motion was not one of the grounds enumerated by the Civil Procedure Law for the dismissal of an appeal. He stated the following as the grounds specified by the statute:

“ Failure to announce the taking of appeal;

Filing of the bill of exceptions;

Filing of an appeal bond; and

Service and filing of notice of completion of the appeal.

Failure to comply with any of these requirements within the time allowed by statute shall be ground for dismissal of the appeal.”

The appellant noted further that the appeal could be dismissed by the appellate court after filing of the bill of exceptions, for failure of the appellant to appear on the hearing of his appeal, to file an appeal bond, or to serve a notice of the completion of the appeal as required by statute. Civil Procedure Law, rev. Code 1:51.16.

The issue to be decided by the Honourable Court is whether or not the delay in transmission of the trial court’s records to the appellate court beyond the 90 days allowed is ground for the dismissal of the appeal. We hold that it is not.

In compliance with the law extant in this jurisdiction, the clerk of the trial court has the statutory duty to transcribe and transmit the trial records to this Honourable Court. Hence, and delay in the transmission of the appeal records is not ground for the dismissal of an appeal. We, therefore, hold that it is the statutory duty devolved on the clerk of the court from whence the appeal is taken to transcribe and transmit the records of the case on appeal before this Honourable Court within 90 days after rendition of final judgment. For reliance, see Civil Procedure Law, Rev. Code 1:51.11, 1 LCLR 252 (1973). In the case Tarpeh et al. v. Kru and Wolo, 2l LLR 62 (1972), this Honourable Court held that “delay in transmission of the record on appeal to the appellate court beyond the timely (90) days allowed is not a ground for dismissal.”

We also further hold that “the only grounds upon which an appeal can be dismissed are those specified by statutes.” Cess-Pelham v. Republic, [1960] LRSC 53; 14 LLR 161, Syl. 2 (1960); Kolenky v. The Liberian Eastern Timber Corporation, [1972] LRSC 39; 21 LLR 252, Syl 1 (1972).

The delay in the transmission of the records on appeal to this Court beyond ninety days is not a statutory ground for the dismissal of an appeal. The grounds upon which an appeal can be dismissed by this Court are those that are specified by the controlling statute. The contention of the appellee not being legally tenable is therefore not sustained.

Wherefore, and in view of the foregoing facts and circum-stances, the motion to dismiss the appellant’s appeal is hereby denied and the appeal ordered heard on its merits. Costs are to abide the final determination of this case. And it is hereby so ordered.

Motion to dismiss appeal denied.