Zonbon Coleman and Ernest Moriba, Representatives of of Senatorial Aspirant Soko Adama Dolley at Tallying Center for Bomi County Appellant Versus The Board of Commissioners Commission (NEC) Hon. J Alex Tyler, Declared Wwinner, Independent Candidate) 2003 Senatorial Elections, Bomi County, Liberia Appellees

APPEAL

ELECTORAL FRAUD

Heard: December 12, 2023.                       Decided: December 19, 2023

MADAM JUSTICE WC LOKOLIE DELIVERED THE OPINION OF THE COURT

This appeal from the ruling of the Board of Commissioners of the National Elections Commission (NEC) stems i on#several complaints filed by the appellants on various complaint forms between Oct ^Iber’ll – 16, 2023. The appellants, poll representatives of Soko

Adama Doriey, one of the file candidates that contested for the senatorial seat in Bomi

County, alleged irregularities during the senatorial elections, unaccounted for ballots papers, discrepancies, alteration of figures, and that one of the appellants, Ernest Moribah, was thrown out of the tally center.

Based on the complaints filed, the Hearing Officer cited the parties to an investigation. Both of the appellants testified to their allegations and the Elections Magistrate, Luther Dean, appeared and rebutted the appellants’ testimonies. After the investigative hearing was had, the Hearing Officer ruled, denying and dismissing the appellants complaints, holding that the appellants failed to prove their allegations of irregularity, miscalculation and discrepancy of votes as alleged; that they failed to show sufficient oral and documentary evidence to prove their allegations.

The appellants appealed the Hearing Officer’s ruling to the Board of Commissioners (BOC) of the NEC, and the BOC after a hearing, confirmed the Hearing Officer’s ruling. The BOC held that the records did not show that the appellants prove any irregularity or fraud to change the outcome of the election; it therefore upheld the Hearing officer’s ruling. The appellants excepted to the BOC’s ruling and announced an appeal to the Supreme Court.

We have observed from the records that the complainants/appellants are not the candidate, Soko Adama Dorley, himself, but persons alleging to be his representatives, who have shown no authority given to them by Mr. Dorley to file a complaint on his behalf or act on his behalf.

Howbeit, the appellees filed before this Court a motion to dismiss the appellants appeal for failure of the appellants to serve the appellees copies of the bill of exceptions filed by them in accordance with the New Elections Law (1986), Chapter 6: 6.7. The appellees’ Motion to Dismiss reads:

“Movant’s Motion

Movants in the above-en’itled cause of action move Your Honors to deny and dismiss Respondents’ Appeal, al for legal reasons, showeth the following to wit:

1. That on November 24, the Board of Commissioners of the National Elections Commission entered Fiiⁱ ?l Ruling confirming the Hearing Officer denying and dismissing Respondents’• therefrom, thereby declaring Co-Movant Jenekai Alex Tyler as winner of October 10, 2023, senatorial election in Bomi County. Your Honors are kindly req lested to take judicial notice of the case file containing the Final Ruling ofthe Board Commissioners of the National Elections Commission in substantiation of the contained herein.
2. That on the 30^th day of November, 2023, the Respondents filed their bill of exceptions with the Clerk of the Supreme Court of the Republic of Liberia. Your Honors are also kindly requested to takeajuc.;cial notice of the case file in substantiation of the averment contained herein’,
3. That Section 6.7 of the New Elections Law of Liberia requires any contestant appealing from the final determination of the National Elections Commission in a contested case to file bill of exceptions with the Clerk of the Supreme Court within seven (7) days after the Commission’s determination of a contest and copy of said bill of exceptions must be furnished the person apparently elected or in whose favor the Commission has decided; and also serve the Commission through its Chairman. Movants say that even though the Respondents filed their bill of exceptions within the statutory period, but the Respondents failed to serve the Movants copy of the bill of exceptions up to and including the date of filing of this motion to dismiss, a period of six (6) days after the Respondents were required by law to serve the movants with copy of the bill of exceptions, in total violation of the statute quoted herein.

That the Supreme Court of Liberia held in the case: Kanneh versus Firestone Plantation Company, 37 LLR 211 (1993) that except as otherwise provided by statute, the time for the service of an answer or reply shall be ten (10) days from the date of receipt of the responsive pleading. Similarly, as in the instant case, the date for the filing and service of the bill of exceptions is seven (7) days after the date of receipt of the final determination of the Board of Commissioners of the National Elections Commission. Accordingly, the Respondents not having served the bill of exceptions on the Movants as provided for by statute, the said bill of exceptions should be ordered stricken from the record of the case file as if no bill of exceptions were filed, thereby making the appeal dismissible as a matter of law.

WHEREFORE AND IN VIEW OF THE FOREGOING, movants pray Your Honors to deny and dismiss the respondents’ appeal and grant unto movants any other and further relief as the law demands in the premises.”

The appellants filed resistance to the appellees’ motion to dismiss, which reads as follows:

“RESPONDANTS’ RESISTANCE

AND NOW COMES RESFONDENTS, in the above-entitled case of action and most respectfully your Honors deny and dismiss the movants’ motion to dismiss, and for cause showeth the followii g legal and factual reasons to wit:

1. Respondents say that to counts (1) and two (2) of the motion, said counts present no traversable asues as they are restatement of the led to the appeal to the Honori ble Supreme Court by the respondents.
2. That as to count three (3, of the Motion, Respondents say that Section 6.7 of the -New Elections Låwti of Liberia, unlike Section 51.4 of ILCLR which provides sanction.fcfp to comply with any of the requirements for perfecting an appeal, the sæ,id section 6.7 does not or is silent on what sanction should apply for the failure to fully comply with its statutory wordings such as  “Copy shall be furnishbd he person apparently elected or in whose favor the Commission has déci^t led,”
3. Further to count two (2) above, and still traversing count three (3) of the Motion, Respondents say that the said statue/legislation, section 6.7, having not prescribe penalties/ sanctions for having failed to fully comply with it, Movants are without legal authority to impose or call for the imposition of a sanction/ penalty that the statute itself does not prescribe for failure to fully comply with it. What the statute did not prescribe for violation of it, it withholds. Hence, the said Motion should and must be denied and dismiss.
4. Further to count three above, Respondents say that the motion and the prayer contained therein that the appeal be denied and dismissed for respondents failure to fully comply with a section of the said statute when all other aspect of the said statue has been complied with in keeping with law, can be viewed as a “legal technicality” which this Supreme Court frowns upon in settling elections disputes. Hence, the motion should and must be dismissed.
5. That as to count four (4) of the motion, respondents say that the facts and law relied upon in Kanneh v. Firestone Plantation Company found in 37LLR, 211(1993) are not analogous to and or applicable to the case at bar as this is an election matter and section 6.7 of the New Election Law of Liberia does not call for the dismissal of the appeal for failure to fully comply with the said statue. Hence, the said motion should and must be dismissed.

WHEREFORE AND IN VIEW OF THE FOREGOING, Respondents pray that your Honors as follows:

1. Deny and dismiss the entire motion.
2. Grant unto Respondents any and all further relief as your Honors deem legal, just and equitable in such cases.

Rule all costs again the Movants.

The Court had the motion to dismiss and the appeal consolidated allowing both parties to argue its side of the case

Counsel representing J. Tyler, movant/ co-appellee, argues that section 6.7 of the New Elections Law (1986) emvnasizes that service by an appellant of his bill of exceptions on the person apparently electec! or .in whose favor the Commission has decided shall be made within seven (7) days of the ä•uling by the Board of Commissioners (BOC) of the NEC; that the appellants having failed toe.) so, the bill of exceptions filed by them must be ordered stricken and the appellants) appeai denied. The movant/co-appellee referenced the Kanneh v. Firestone case, in which the S.vreme Court held that except as otherwise provided by statute, the time for service of an å’nswer or reply shall be ten (10) days from the date of receipt of the responsive pleading. The •movi nts argue that in similar vein, the date of the filing of the bill of exceptions is seven (7) days after the date of receipt of the final determination of the BOC of NEC.

The counsel for the respondents/appellants in his resistance to the motion to dismiss and argument before the Court, does admit that he failed to serve the Co-appellee J. Alex Tyler with the bill of exceptions even up to the hearing of the case by this Court, but that the appellants’ counsel failure to furnish the Co-appellee Tyler with a copy of the bill of exceptions is no ground for dismissal of the appellants’ appeal since the New Elections Law, contrary to the Civil Procedure Law 51.4 which provides sanctions for failure to comply with the requirements for perfecting an appeal, does not provide a sanction for non-compliance with service of the bill of exceptions.

Section 6.7 of the New Elections Law, pivotal to the issue surrounding the motion to dismiss, reads as follows:

“Within Seven (7) days after the Commission’s determination of a contest, any contestant appealing from the determination shall file his of exceptions to the office c of the clerk of the Supreme Court certified and with the seal of the Supreme Court thereon affixed. Copy shall be furnished the person apparently elected or in whose favor the Commission has decided; also service shall be made on the Commission through its Chairman. The Commission shall then within seven (7) days of receipt of the bill of exceptions, file with the Clerk of the Supreme Court, its return, serve a copy thereof on the contestant.”

The issue from the motion to dismiss is whether in face of the provision of the statute, the appeal is dismissible as a matter of law?

The records shows that on November 24, 2023, the Board of Commission (BOC) of the NEC made a final ruling confirming the Hearing Officer’s ruling from the investigation of the several complaints filed by the appellants. The appellants, said to be representing one of the senatorial candidates, Soko Adama Dorley, of Bomi County, appealed the ruling of the BOC to the Supreme Court, filing a bill of exceptions on November 30, 2023 with the NEC and on December 4, 2023 with the Supreme Court.

We have observed that lav:vers representing political candidates participating in election matters have not acquainted themselves with our elections’ laws and procedures thereunder. They tend to follow the practices and procedures which are followed in regular civil cases. In civil cases, for instance, ore who excepts to a judge’s ruling and announces an appeal from the ruling to the Supreme Court must file a bill of exceptions, approved by the judge, within ten (10) days after the rend ‘:ion of the judge’s ruling. A bill of exceptions in such cases does not require service on the op losing party. The Civil Procedure Law Chapter 51.7 only requires that the approved bill of exce Dtions be filed with the Clerk of the trial court.

On the other hand, the Eleqions Law, section 6.7, written supra, requires that a contesting party dissatisfied with the riling of the Board of Commissioners of NEC, and appealing

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therefrom, “shall” within seven (7) days file his bill of exceptions to the office of the Clerk of  the Supreme Court, same been “certified’ with the seal of the Supreme Court affixed thereon. Thereafter, a copy of this certified bill of exceptions is to be served on the person in whose favor the BOC has ruled and on .the Commission through its Chairman. The Commission having received a copy of the certified bill of exceptions shall within seven (7) days filed with the Clerk of the Supreme Court returns and serve a copy thereof on the contestant. No where in the language of this statute does it require that the bill of exceptions be approved by the Commissioners of the NEC before filing same with the Supreme Court and serving same on the party announced as winner by the BOC.

The counsel for the appellants argues that the New Elections Law, section 6.7 sets no sanction for the none service of the bill of exceptions on the opposing candidate. We agree with the appellants that.the statute provides no sanction for the none service of the bill of exceptions on the winning candidate; however, the precedent of this Court has been clear on the consequence of a party failure to follow the enumerated steps for the taking of an appeal to this Court. This Court has held that the steps required for taking an appeal and for conferring jurisdiction upon this Court to hear the merits of the appeal are mandatory and that except for acts or neglects recognized in law for excusing the failure to comply with the requirements, the Court is without authority to extend the mandatory time prescribed by law.

National Elections Commission v. Amos Sieh Siebo, Jr., Supreme Court Opinion, March Term 2017. The Court has further held that the taking of an appeal is a journey to the Supreme Court, step by step, and when any one of those steps is missing •or defective, the journey cannot be completed. Thus, every step •of the appeal process enumerated in the New Elections Law is important and critical to the conferral of jurisdiction upon this Court to hear the merits of any appeal emanating from the Board of Commissioners of the National Elections Commission.

Besides, if the service of the bill of exceptions is not important, then this Court wonders how the appellants expect.the opposing candidate, in whose favor the NEC had ruled, to respond to the bill of exceptions filed before the.Court, when arguments into the appeal are entertained by the Supreme Court. This Court has held that the candidates in an election, especially the winning candidate is a party of interest to any dispute arising therefrom, and he/she must be accorded notice on every aspect of said dispute. ( see: Dorbor v. NEC, Supreme Court Opinion, October Term, 2011; Chambers v. NEC, Supreme Court Opinion, March Term,

2015).

Even more specific, even though the statute authoritatively mandates that the bill of  exceptions from the BOC be filed with the Clerk of the Supreme Court within seven (7) days, the appellants failed to comply with said requirement. The records show that the BOC handed down its ruling on November 24, 2023, the appellants however filed the bill of exceptions with the Supreme Court on December 4, 2023, ten days thereafter, instead of December 1, 2023, which was the 7^th day after the BOC’s ruling. Is this Court under such circumstances justified and positioned to dismiss the appellants appeal? We think so.

The Legislature enacts laws to address specific issues and provide clear guidelines in pursuing the remedies available under specific circumstances, and it is the duty of the courts to interpret these laws and give meaning to the intent of the legislature, especially where it is clear on its face. Thus, when the legislature provides a time frame and mandatorily provides that an act must be done within that time frame, the failure to abide by the mandatory provision is fatal to a party’s case. Elections matters, this Court has held, are special proceedings which must be heard expeditiously. Kamara v. National Elections Commission, Supreme Court Opinion, March Term, 2017; Jonathan Boye Charles Sogbie v. NEC, Supreme Court Opinion, October Term, 2016.

Section 6.4. of the New Elections Law, “Filing of Bill of Exceptions” states in clear terms: “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 Exception and of procuring a certified copy thereof the same

-as those paid by a Plaintiff and lor appellant in a civil action.”

In this case, the appellan{.s are certainly out of the pale of the statute by filing the bill of exceptions with the Clerk of the Supreme Court ten (10) days after the rendition of the ruling by the Board of Commissioners of NEC, and by also failing to serve a copy of the bill of exceptions on the Co-appelee J. Alex Tyler. This means that the bill of exceptions is a legal nullity and should be stricken from the records of the case since it was not filed and served within the statutory periods The question is, can this Court proceed to hear the merits of the appeal in the absence of a fill of exceptions that provides the foundation on which the appeal stands? Wé do not believe^t .² 0.’

In view of the above, we hold that the appellants’ failure to file their bill of exceptions within the time provided by the Net/ Elections Law, section 6.7 renders their appeal dismissible.

This Court has emphasized;tt at 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 the election violations have occurred, hbw )utd be in the position to adequately take advantage df the law,

especially with the time-frame prescribed by the law for asserting a challenge and timely appealing from any decision related to that challenge. Jonathan Boye Charles Sogble v. NEC, Supreme Court Opinion, October Term, 2016.

In this case, the appellants’ counsel, Counsellor G. Weifuah Alfred Sayeh, neglected to thoroughly acquaint himself with the requirements of the New Elections Law on the taking of an appeal from the Board of Commissioners of the NEC to this Court, and as a consequence of his negligence and gross failure to exercise diligence, he executed the appeal process in a reverse manner and outside of the statutory period. Instead of filing the bill of exceptions with the Clerk of the Supreme Court and serve a copy on the Board of Commissioners of the NEC, and the Co-appellee Alex Tyler, Counsellor Sayeh filed the bill of exceptions with the Board of Commissioners of NEC first, awaiting their approval on said bill of exceptions before filing same with the Clerk of the Supreme Court, an error which apparently led to the late filing of the bill of exception before this Court.

Even Jif this Court were to overlook the mishap in the appeal process committed by the appellants, yet the Court would still be unable to reach the merits of this case because the appellants lack capacity and standing to file the complaints filed by them.

Section 6.1 of the New Elections Law states:

“Any political party or candidate who has justifiable reasons to believe that the elections were not impartially conducted and not in keeping with the Elections Law, which resulted in his defeat or the defeat of a candidate shall have the right to file a  complaint with the Commission; such complaint must be filed not later than seven (7) days after the announcement of the results of the elections.

Further Section 5: 5.3 of the Compiled Regulations of the NEC also states:

“All complaints shall be signed by the person with legal standing to bring the complaint, and shall include the person’s name, telephone number and address where applicable. By signing the complaint, the signer certifies that he or she has read the complaint, and is not filing same for any improper purpose.”

We see no authorization issued to appellants by candidate Soko Adam Dorley, authorizing them to file the complaints on his behalf, authorizing the appellants to act as his agents in filing the complaints. Since the appellants filed the complaints in a representative capacity, they ought to have demonstrated the authority upon which they relied to act as agents. This Court has defined a Power of Attorney as an instrument in writing by which one person, as principal, appoints another as his/her agent and confers upon the agent the authority to

perform certain specified acts or kinds of acts on behalf of the principal. St Joseph Construction Co. v ARC Group Inc., Supreme Court Opinion, October Term, 2009.

In the instant case, Soko Adam Dorley contested as an independent candidate; thus, he was required to execute an instrument in his own name, authorizing the appellants to file the various complaints filed by them on his behalf. In the absence of such authorization, the complainants acted without the legal capacity to assert the claims contained in their complaints,

The appellants in this case also lack •legal standing to obtain a judicial resolution of their complaints since they did not contest the senatorial election conducted in Bomi County on October 10, 2023. Legal standing has been defined by this Court as having sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. The requirement of standing is satisfied if it can be said that a plaintiff has a legally protectable and tangible interest at stake in the litigation. It is a jurisdictional question which does not concern itself with the merits or demerits of a case. Congress for Democratic Change v. NEC & Edwin Snowe, Supreme Court Opinion, October Term, 2020.

In this case, the appellants, Zonbon Coleman and Ernest Moriba, have no tangible and legally protectable interest in the outcome of the complaints filed by them since even if the complaints were to be favorably decided, they would not be the persons announced as winners of the election, and the candidate, Soko Adam Dorley, has nowhere appeared to contest the elections results before the NEC,

Interestingly, during arguments before this Bench, the counsel for the appellants was asked how did the allegations made in the complaints affect Mr. Soko Adam Dorley’s votes cast; whether the figures transcribed at the tally center for Mr. Soko Adam Dorley varied from the true ballot count of the various polling places in the county? The counsel answered that the figure at the tally center did reflect the true votes obtained by Mr. Soko Adam Dorley at the various polling places, but there was discrepancy by the NEC at the tally center in the total count where a polling center total ballots counts was less than five hundred and fifty (550) and the total at another was five hundred fifty:seven (557), seven more ballots than that required at-a polling place. In response, the NEC stated that it was all due to mistakes in the tabulation which was crossed out and corrected, and that because one of the complainants, Ernest Moribä was being aggressive and unreasonable, he was put out of the tallying center, The appellanté’ counsel was further asked to show how Soko Adam Dorley was affected by the mistakes made in the tabulation? The appellants’ counSel responded that it was not so much abouf Mr. Dorley, but other contestants who might have been affected by *the wrong tabulation at the tallying center. Apparently, the appellants set themselves up not only to be representatives of Mr. Soko Adam Dorley, but for all the Senatorial Candidates contesting in the elections.

We must make it clear that a court cannot render a valid judgment in favor of a party who is not before the court and is not properly represented.” Dennis v. Shiancoe et al, Supreme

Court Opinion, October Term, 2012

WHEREFORE AND IN VIEW OF THE FOREGOING, the appeal having been filed contrary to the New Elections Law, the appeal is hereby dismissed. The Clerk of this Court is ordered to inform the National Elections Commission accordingly, and to proceed with the certification of J. Alex Tyler as the winner of the 2023 Senatorial Election held in Bomi County. Costs are ruled against the appellants. AND IT IS HEREBY SO ORDERED.

WHEN THIS CASE WAS CALLED FOR HEARING, COUNSELLORS G. WIEFUEH ALFRED SAYEH APPEARED FOR THE APPELLANTS. COUNSELLOR J. JOHNNY MOMOH APPEARED FOR THE APPELLEE. COUNSELLORS G. AUGUSTINE TOE AND PETER Y. KERKULA APPEARED FOR THE NATIONAL ELECTIONS COMMISSION (NEC).