ANSUMANA DUKULY, Appellant, v. MORRIS JACKSON, Appellee.

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

Heard: March 22, 1982. Decided: July 8, 1982.

1. A motion is an application to a court by one of the parties in a case in order to obtain some rule or order of court incidental to the main relief sought in the action or proceeding in which the motion is brought. It may be written or made verbally. However, when it is made on some matter of fact, it must be supported by an affidavit that such facts are true.

2. Because the use of motions in the legal practice is to prevent what would work injustice to either one of the contending parties in a suit, courts of justice ought to use great caution when receiving them.

3. A motion is not a pleading, in so far as it relates to the rigid rules of pleadings. However, the rule governing amendments as contemplated by the statute regulating forms of pleadings applies to motions also.

4. A pleading is considered withdrawn when the former of such pleading is abandoned, costs incurred paid, and an amended pleading substituted therefor.

5. All admissions made by a party are conclusive evidence against such party.

6. An amended pleading, which is complete in itself but does not refer to the former pleading as being part of it, supersedes the former pleading which is considered abandoned by the amendment. The former pleading is therefore no longer a part of the pleader’s averments against his adversary.

7. When a motion is withdrawn and substituted with an amended motion, the court loses jurisdiction over the first motion.

8. Property used as security to a bond is considered to be sufficiently described to establish a lien on the bond where the description includes then lot number, the number of the house built on the lot, the name of the owner, the quantity of land and its value. This is especially the case where the community in which the property is located is a small community.

Appellant, against whom an action of damages had been instituted in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, by the appellee, had appealed to the Supreme Court from a verdict and judgment finding him liable to the appellee in the amount of $20,000.00. When the case was called for hearing by the Supreme Court, the Court was informed that a motion had been filed by the appellee to dismiss the appeal. An inspection of the records revealed that two motions were filed, an original motion, which was withdrawn and an amended motion filed in its stead. However, notwithstanding the withdrawal of the first motion and its replacement with an amended motion, the appellee requested the Court to make a determination on the former motion. The Court rejected the request, noting that once the motion had been withdrawn and replaced with an amended motion, the former motion ceased to be before the Court and that as such, the Court had lost jurisdiction over the said motion. The Court therefore held that it would hear and determined the amended motion and the resistance thereto.

In the amended motion, the appellee requested that the Court dismiss the appellant’s appeal for reason that (a) the statement of property valuation attached to the bond referred to the bond as criminal appearance bond rather than a civil appeal bond; (b) that there was an attempt to change the wording of the bond from criminal appearance bond to civil appeal bond; (c) that taxes on the property had been paid through government rental deductions; and (d) that appellant had failed to place the required $3.00 revenue stamp on the resistance to the first motion.

The Court rejected all of the contentions of the appellee. The Court held, as to the contention that the appellant had failed to place the required $3.00 revenue stamp on the resistance to the original motion, that as the motion had been withdrawn, the contention no longer had any relevance to the determination of the amended motion. With regards to the contention that the statement of property valuation had on its face criminal appearance bond rather than civil appeal bond, the Court held that this allegation was not supported by the statement which showed otherwise than as alleged by the appellee.

Lastly, the Court rejected the appellee’s contention that the property offered as security to the appeal bond was not sufficiently described to establish a lien on the bond. The Court held that the community in which the property was located was a small community and that the in such a case a description rendered the property easily identifiable. The Court recited the criteria which, when complied with, will be considered sufficient identification of the property. They included the lot number, the number of the house located on the property, the name of the owner of the property, the quantity of the land and the value of the land. Once these elements are met, the Court said, the property will be sufficiently described as to create a lien on the bond. The Court therefore denied the motion and ordered the case redocketed for hearing on the merits.

John A. Dennis appeared for appellant. Wade Appleton appeared for appellee.

MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.

Our review of the records of this case revealed that on the 5th of September, A. D. 1977, one Morris Jackson of the City of Monrovia, instituted an action of damages in the People’s Sixth Judicial Circuit Court, Montserrado County, during its December Term, A. D. 1977, against one Ansumana Dukuly, also of the City of Monrovia.

Trial was had and a final judgment rendered on the 30th day of April, A. D. 1981, in which a sum of $20,000.00 was awarded in favour of plaintiff. The defendant excepted to the judgment and announced an appeal to this Court for review.

At the call of the case for hearing, the appellee gave notice of the filing of a motion to dismiss appellant’s appeal. An inspect-ion of the case file disclosed that two motions to dismiss appellant’s appeal had already been filed and resisted. The first motion was filed on October 15, 1981. In that motion, the appellee contended that the description of the property in the affidavit of sureties was insufficient to identify the subject property, and that the said accompanying affidavit of sureties to the bond omitted the metes and bounds of the property. Against the said motion, appellant filed a resistance challenging the legal sufficiency of the motion to dismiss appellant’s appeal, maintaining that his appeal bond had met the legal requirements prescribed by the statute. Appellant also contended that appellee’s failure to except to appellant’s sureties within three days was tantamount to a waiver.

Subsequently, on the 4th of December, 1981, appellee filed an amended motion to dismiss appellant’s appeal, stating as the grounds therefor that the property valuation certificate accompanying the bond referred to criminal appearance bond and not civil appeal bond; that there was an apparent attempt to change the words on the face of the bond from “criminal appearance bond” to “civil appeal bond”; that the taxes of said property had been paid through government rental deduction; and lastly, that the resistance to the first motion did not carry the required revenue stamp of $3.00.

Again, the appellant filed an amended resistance, contending that the first motion had not been withdrawn; that no costs had been paid as a condition precedent to the filing of an amended motion; and that as the appellee had filed to except to the sureties within three days of the service of the bond, as required by law, he had suffered a waiver. Appellant therefore prayed that the amended motion be denied.

Observing the two motions in the file, the Court asked appellee which one he desired to pursue for the consideration of the Court. He replied that he preferred that the Court considers the former. To this answer, appellant interposed objections on the ground that the former motion, filed on October 15, 1981, had been constructively withdrawn by appellee’s own voluntary acts. The appellee argued, on the other hand, that the statutory requirements had not been complied with by appellee, in that there was no formal withdrawal of the first motion, and hence the motion still stood. From the foregoing, the issues which this Court has been called upon to decide are:

1. Whether or not a motion is a pleading and when is it considered withdrawn?

2. Whether or not the overt acts of a party litigant infer compliance with the statutory requirements without a formal process?

3. Whether or not the appellant’s appeal bond filed in this case is in anyway defective?

4. Whether or not the service by the appellant of the notice of the completion of the appeal on the appellee, and the filing thereof with the court within a period of less than sixty days, precluded the appellee from taking exceptions to the insufficiency of the surety on the bond?
In practice, a motion is an application to a court by one of the parties in a case in order to obtain some rule or order of court. It may be written but is often made verbally. When it is made on some matter of fact, it must be supported by an affidavit that such facts are true. Davis v. Crow, [1918] LRSC 6; 2 LLR 309 (1918).

In the case Harmon v. W. D. Woodin and Company, Limited, [1919] LRSC 3; 2 LLR 334 (1918), Mr. Justice Johnson, speaking for the Court, said that the use and object of motions in legal practice is to prevent what would work injustice to either one of the contending parties in a suit; therefore, courts of justice ought to use great caution when receiving them.

Our Civil Procedure Law, Rev. Code 1: 10.1, dealing with motions, provides:

“1. Motion defined; when and how made. A motion is a application for an order granting relief incidental to the main relief sought in the action or proceeding in which the motion is brought. A written motion is made when a notice of the motion is served. Unless made during a hearing or trial, a motion shall be in writing and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

2. Application by motion. Every application to the court for an order shall be made by motion.”
A long chain of judicial authorities in this jurisdiction clearly shows that a motion is not a pleading in so far as it does not relate to the rigid rules of pleadings. However, the rule govern-ing amendments as contemplated by the statute regulating forms of pleadings applies to motions also. Lamco J. V. Operating Company v. Verdier, [1977] LRSC 1; 25 LLR 394 (1977).

In this jurisdiction, a pleading is considered withdrawn when the former of such pleading is abandoned, costs incurred paid and, and an amended pleading substituted therefor. Civil Procedure Law, Rev. Code 1: 9.10(1).

The appellant having raised before this Bench the issue of the non-filing of a notice of withdrawal as well as non-payment of cost, the Court is thus bound to pass upon same.
During the arguments, counsel for appellant produced a letter addressed to him by counsel for appellee remitting a sum of ten dollars as return costs for withdrawing the former motion, thereby admitting before this Bench that payment of costs had been made by appellee and accepted by appellant after the attack on the motion. This Court acknowledges that imperative upon the refiling of pleadings, as with motions, is the payment of costs incurred by the respondent or appellant.

This was reportedly done by the remittance by appellee of a ten dollar note and the acceptance thereof by the appellant. Applying the legal principle that all admissions by a party are conclusive evidence against such party, the Court holds that the incurred costs in the case at bar was paid by appellee. Vide: Civil Procedure Law, Rev. Code 1: 25.8, under Admissions.

An amended pleading which is complete in itself, but does not refer to the former pleading as being part of it, supersedes the former pleading. The original pleading is thus considered abandoned by the amendment and it, therefore is no longer a part of the pleader’s averments against his adversary. Accordingly, appellee cannot avail himself of the allegations contained in the superseded pleading. 41 AM. JUR, Pleading, 313.

Conclusively appearing from the records of this case is a substituted motion which, by its very title, “amended motion”, amounts to withdrawal of the former motion. This Court, being competent to recognize and determine its own jurisdiction, even if not raised, is of the considered opinion that it has lost jurisdiction over the first motion filed on October 15, 1981. King v. Williams, [1925] LRSC 8; 2 LLR 523 (1925). We therefore hold that appellee did comply with the provisions of the statute on withdrawals and amendments. Vide: Civil Procedure Law, Rev. Code 1: 9.10(a) and (b).

Under the foregoing circumstances, we further hold that as a result of the overt acts of appellee in substituting the original motion with an amended motion and the payment of the costs thereof, the appellee is thus barred from submitting for the consideration of this Court his first motion, as he is now ruled to have rested his defense on his amended motion, filed on December 4, 1981. Therefore, the request of appellee’s counsel to hear appellee’s first motion, filed on October 15, 1981, which was withdrawn and substituted, cannot by any legal means be considered by this Court.

The amended motion to dismiss the appeal, which is now before us for consideration, indeed raises different issues from those contained in the former and abandoned motion. It states succinctly that: (1) the statement of property valuation accompanying the bond from the Ministry of Finance in favour of the appellant referred to a criminal appearance bond; (2) there was an attempt on the part of the appellant to change the words from “criminal appearance bond” to “civil appeal bond”; (3) the taxes for the property so offered as security had been paid through government rental deductions; and (4) the appellant had failed to place the required $3.00 revenue stamp on his resistance to appellee’s first motion.

The amended resistance seriously attacked the amended motion on the grounds that: (1) the first motion had not been withdrawn; (2) no costs had been paid as condition precedent to the filing of an amended motion; (3) appellant’s appeal bond met all the requirements of law; and (4) even granting that the bond was defective, the appellee having failed to except to the sureties within three days after the service of a notice of the filing of the appeal bond, as required by law, his inaction constituted a waiver, and he is deemed to have suffered from laches.

Appellant’s contentions, relative to the non-filing of the notice of withdrawal and the non-payment of costs incurred, having been considered in this opinion, supra, we deem it a needless exercise to go through the same again. As to appellee’s contention that the statement of property valuation in favour of appellant referred to a “criminal appearance bond” instead of a “civil appeal bond”, the records certified to this Court failed to disclose this fact, as evidenced by the said statement of property valuation which appellee made profert of as his exhibit “B”, and which we herein quote:

“REPUBLIC OF LIBERIA
MINISTRY OF FINANCE
MONROVIA, LIBERIA
REAL ESTATE TAX DIVISION

DATE : MAY 19, 1981
TO WHOM IT MAY CONCERN
STATEMENT OF PROPERTY VALUATION
LOT NO: LOCATION: VALUATION ACREAGE : PROPERTY OWNER
21-B HOUSE #64 , $72,100.00 1/8 SEKOU TRAWALEY
CAMP JOHNSON ROAD, MON. LIBERIA
(SEVENTY TWO THOUSAND ONE HUNDRED DOLLARS)
THIS IS TO CERTIFY THAT THE REAL ESTATE OF THE ABOVE-MENTIONED PERSON IS REGISTERED AND VALUED AS SHOWN ABOVE: TAXES THEREON ARE PAID THROUGH GOVERNMENT RENT REDUCTION.
APPEAL BOND IN FAVOUR OF: ANSUMANA DUKULY
CERTIFIED BY: (Signature not clear)
ACCOUNTS SUPERVISOR
SIGNED: (Signature not clear)
DIRECTOR R. E. T. D.
APPROVED: (Signature not clear) 5/19/ 81/
ASSISTANT MINISTER FOR REVENUES

In the absence of a showing that the statement of property valuation from the Finance Ministry in favour of appellant, annexed to his appeal bond, valued at $72,100.00, was made for appellant in a criminal case and not a civil one, this Court refuses to accept mere allegations without any support from the records.

As to appellee’s contention that the appellant had failed to adhere to the stamp act by not carrying the required revenue stamp on the face of the resistance to the first motion, the Court says that this contention has no relevance since appellee’s first motion was withdrawn and an amended motion filed and resisted, and this Court had lost jurisdiction over the former motion and resistance.

The appellant maintained that his appeal bond had met the legal requirements since, according to the statement of property valuation from the Ministry of Finance and the affidavit of sureties attached to the appeal bond, lot Number 21-B, located on Camp Johnson road, Monrovia, Liberia, with house #64, valued at $72,100.00, containing one-eighth of an acre, which was pledged as security in favour of appellant for his appeal bond which was in the penal sum of $30,000.00, was owned by Sekou Trawaley of Monrovia. In our opinion, the property offered by appellant as security to his appeal bond was described sufficiently in the affidavit of sureties to identify the particular piece of property, since, by extrinsic factors, it can be made practically certain what property it was intended to cover.

The Court concedes appellant’s contention on this point and says that in such a designated small community like “Camp Johnson Road”, within the City of Monrovia, the description of any real property offered as security which includes the lot number, the number of the house built thereon, the name of the owner, the quantity of the land and the value thereof, does indeed sufficiently identify the property to clearly establish the lien on the bond. Civil Procedure Law, Rev. Code 1: 63.2(2) and (3).

Finally, counsel for appellant contended and maintained that even granting that the appellant’s appeal bond was defective, which it is not, the appellee had waived the right to question the same and suffered the legal principle of laches. Appellant’s counsel argued that the final judgment having been rendered on the 30th of April, 1981, the appeal bond filed on May 5, 1981 and the notice of the completion of the appeal, according to the sheriff’s returns, served on both counsel on the 26th of May 1981, just twenty-six days after the rendition of final judgment, the appellee should have excepted to the alleged insufficiency of the bond within three days before the trial court lost jurisdiction over the subject matter. Civil Procedure Law, Rev. Code 1: 63.5 (1) and (2), read as follows:

“Exception to surety; allowance where no exception taken.

1. Exception. A party may except to the sufficiency of a surety by written notice of exceptions served upon the adverse party within three days after receipt of the notice of filing of the bond. Exceptions deemed by the court to have been taken unnecessarily, or for vexation or delay, may, upon notice, be set aside, with costs.

2. Allowance where no exception taken. Where no exception to sureties is taken within three days or where exceptions taken are set aside, the bond is allowed.”

Taking recourse to the records in the instant case, we find that the appeal bond was dated May 2, 1981, and approved on May 2, 1981, by His Honour Jesse Banks, Jr., then presiding by assignment over the Circuit Court for the Sixth Judicial Circuit, Montserrado County, for the amount of $30,000.00. The notice of the completion of the appeal was issued May 25, 1981, served and returned served by the sheriff on the 26th day of May, 1981, notifying the appellee that the appellant had perfected his appeal to this Honourable Court from the judgment of His Honour Jesse Banks, Jr. There is no notice of the filing of the appeal bond served on the appellee, as contended by appellant’s counsel.

Under the laws extant in this jurisdiction, the service and filing of the notice of the completion of the appeal ends the last stage of the taking of the jurisdictional steps in the lower court. Vide: Civil Procedure Law, Rev. Code 1: 51.4(d). It is also the service and filling of the notice of the completion of the appeal that confers jurisdiction on the appellate court over the case. Vide:Witherspoon v. Clarke, [1960] LRSC 60; 14 LLR 194 (1960).

The law with respect to exceptions to a surety can be employed only so long as the trial court still has jurisdiction over the matter and not after all of the steps for completion of an appeal have been taken. Vide: Jarboe v. Jarboe, [1975] LRSC 30; 24 LLR 352 (1975).

We have referred to the laws applicable and have taken recourse to the records for our satisfaction as to the grounds for appellee’s motion to dismiss. Regrettably, we have been unable to discover any fault with the appellant’s affidavit of sureties or the statement of property valuation from the Ministry of Finance, as contended by appellee’s counsel.
In view of the above, the appellee’s amended motion to dismiss appellant’s appeal is hereby denied for the want of legal and factual support or merit. The Clerk of this Court is hereby ordered to have this case redocketed for hearing on the merits. Costs are to abide final determination. And it is hereby so ordered.
Motion denied.