INSURANCE COMPANY OF AFRICA, represented by its Executive Vice President, THE REPUBLIC OF LIBERIA, and WANITA DAVIS COLAC, Informants/Appellees, v. D. GBORBOE DWANYAN, JAMES DAHN AND JULIUS ADIGHEBE, Respondents/Appellants

APPEAL FROM THE MONTHLY AND PROBATE COURT FOR MONTSERRADO COUNTY.
Heard: April 24, 1986. Decided: May 30, 1986.

1. The Supreme Court has ruled that our appeal statute does not provide for the sum of one and one half times the amount of the judgment for an appeal bond.
2. The appeal bond, according to our statute, is intended only to cover costs.
3. The requirements for the completion of an appeal under our statutes are as follows: (a) announcement of the taking of an appeal, (b) filing of the bill of exceptions, (c) filing of an appeal bond, and (d) service and filing of the notice of the completion of the appeal. The failure to comply with any of the requirements within the time allowed by the statute shall be ground for a dismissal of the appeal.
4. Where a bill of exceptions and appeal bond had been filed within sixty days and the notice of completion of appeal had been served after sixty days, but before attack by motion, a motion to discuss the appeal will be denied.
5. The judge shall of his own volition take judicial notice of public historical facts that are so well known as not to be the subject of reasonable dispute.

This is a motion to dismiss an appeal on the grounds that the notice of the completion of the appeal was served later than the sixty-day period required by law and that the appeal bond was defective since it was not one and one-half times the judgment.

The records showed that the ruling in the lower court was rendered September 16, 1985 and the notice of completion of appeal issued November 11, 1985, but not served by the ministerial officer until November 21, 1985. Incidentally, due to civil unrest in the country at the time, the sheriff decided to delay service of process until it was safe to do so. The records also showed that the value of the appeal bond filed was $45,000 instead of $45,840.28, the latter amount being one and one half times the amount of the judgment.

The Supreme Court denied the motion, maintaining that it was due to the action of the ministerial officer that the notice of the completion of the appeal was filed late and that therefore, the act of the court officer should not prejudice the intent of the appellant. Moreover, the Court held that the appeal statute does not require that the amount of appeal bond be one and one-half times the value of the judgment. The motion to dismiss the appeal was therefore denied

The Adighibe Law Firm and Boima K. Morris appeared for appellants. M. Kron Yangbe appeared for the appellees.

MR. JUSTICE DENNIS delivered the opinion of the Court.

This is a motion to dismiss the above named appellants’ appeal for the following legal reasons, to wit:

1. That the final judgment and/or ruling on this case was rendered on the 16 th day of September, A. D. 1985; nevertheless, the notice of completion of appeal was not served on the informants/appellees until the 21 st day of November A. D. 1985. By computation of time, said period of time aggregates sixty-six days instead of sixty days as mandatorily required by statutes on appeal.
2. Further informants/appellees submit for the adjudication of this Court in the dismissal of the subject appeal that appellants’ appeal bond should have been filed with the clerk of the trial court with “a notation” of the filing date thereon, which does not appear. As such, it is conclusive that the said appeal bond was not filed with the clerk of the trial court.

3 That the judgment rendered in this case entitles appellants to receive from the co-appellee, being the Insurance Company of Africa, the aggregate sum of ninety thousand seven hundred forty eight dollars sixty-two cents in insurance benefits from the policy which was obtained by the late Harrison G. Dahn.

4. That the appellants did not deliver one third of this amount to one ofthe named beneficiaries of the insurance policy, now co-appellee, Wanita Davis Colac.
5. Additionally, that the trial court ruled that the respondents/appellants deposit with the sheriff of the Probate Court that portion to which, Wanita Davis Colac, one of the named beneficiaries is entitled to, being one third thereof, equivalent to thirty thousand two hundred fifty nine dollars fifty two cents. The said judge further ruled that the three appellants should pay one hundred dollars each as fine, a total of three hundred dollars, making the judgment sum a total of thirty thousand five hundred fifty nine dollars fifty two cents. As such, the penal sum of the appeal bond, informants/appellees contend, should have been one and one half times the thirty thousand five hundred fifty nine dollars fifty two cents, being the judgment by calculation aggregates forty five thousand eight hundred forty dollars twenty eight cents; but rather the appellants’ appeal bond indicates forty five thousand dollars, an amount less than one and one half times the amount of the judgment.

Countering the motion to dismiss respondents/appellants’ appeal, the following constitutes the contents of appellants’ resistance:

(a) With reference to the legal ground for the dismissal of an appeal relating to the non-service of the notice for the completion of the appeal on the informants/appellees within the statutory time of sixty days, respondents/ appellants maintain that an appeal in a criminal case, as in the instant one, in which the Republic of Liberia is a party may be dismissed by the trial court for failure of the appellants to file a notice of completion of appeal on the informant/appellee and by the appellate court for failure of the appellant to appear at the time of the hearing of the appeal.

(b) Informants/appellees contend in count two of their resistance that Counsellor M. Kron Yangbe, not being of counsel for the Republic of Liberia, could not have filed the motion to dismiss respondents/appellants appeal.

(c) Count three of appellants resistance to appellees’ motion to dismiss their appeal is a repetition of count two.

(d) In passing upon count four of the resistance appellants maintain that the returns to the notice of the completion of appeal by the sheriff of the court confirms that it was served on the appellee on the 21S t day of November, A. D. 1985, having been issued on the 11 th day thereof, five (5) days before the expiration of the statutory period of sixty days. More than this, that a civil disturbance occurred on the 12th day of November, 1985 making it impracticable, if not impossible, for the sheriff of court to have served and made his returns thereto prior to the expiration of the statutory period of sixty days.

(e) Appellants/respondents deny the filing of appeal bond without a notation thereon, and offered as evidence the records in this case, as well as the failure on part of the appellees to have proferted a certificate from the clerk of court in proof thereof.

(f) The Republic of Liberia, being a party in these proceedings, appellants urge that the one and one half times requirement as the penalty of the bond is not legally required since the Republic of Liberia does not pay or receive costs. Vide: Deady v. Republic, [1944] LRSC 12; 8 LLR 256 (1944).

(g) With respect to count eight of the resistance, it is a repetition of count seven thereof, contending that if the appellants/respondent were convicted, they would not be involved in the payment of cost of court, as such prays the dismissal of the motion.

In the considered opinion of this Court, the most salient issues in this motion to dismiss appellants’ appeal relate to the deficiency of appellants appeal bond of one and one half times of the value or penalty of the appeal bond.

During the October Term, A. D. 1979, the Supreme Court, in Shannon v. Bull, [1979] LRSC 43; 28 LLR 261 (1979), heard December 4, 1979, and decided December 21, 1979, subsequent to our appeal statute, unequivocally held that the statute does not provide for the penal sum of one and one half times the judgment for an appeal bond. Vide: Civil Procedure Law, Rev. Code 1: 51.8.

According to our statute, an appeal bond is intended only to cover costs. The statute referred to above and the Supreme Court opinion in McGill v. Mobil Oil Company, Inc., [1977] LRSC 22; 26 LLR 68 (1977) support this legal viewpoint. See the Supreme Court opinion in the case of Shannon v. Bull, [1979] LRSC 43; 28 LLR 261 (1979), which recalled the opinion providing for one and one half times the amount of judgment for indemnification in the case BuchananEstime v. Raymond Concrete Pile, [1970] LRSC 19; 19 LLR 485 (1970).

Reverting to count one of the appellants’ resistance to appellees’ motion to dismiss their appeal, our present statute provides the below requirements for the completion of an appeal.

(a) Announcement of the taken of the appeal.

(b) Filing of the bill of exceptions.

(c) Filing of an appeal bond.

(d) Service and filing of notice of completion of the appeal.

The failure to comply with any of the requirements within the time allowed by the statute shall be ground for a dismissal of the appeal. Vide: Civil Procedure Law, Rev. Code 1: 51.4.

Appellants submitted to this Court that the notice of the completion of the appeal bears the filing date of November 11, 1985, and that consequently the statute has not been violated in respect thereof. Moreover, they said, the late service thereof was an act of the ministerial officer of Court for which appellants were not responsible since the act of the ministerial officer of the Court should not prejudice any party. Vide: Jantzen v. Freeman, [1914] LRSC 6; 2 LLR 167 (1914).

In addition to the statutory requirements for the perfection of an appeal and the dismissal thereof, and which makes a marked legal difference regarding the dismissal of an appeal, we have the following statutory requirements: “Dismissal of Appeal For Failure To Proceed. An appeal may be dismissed by the trial court on motion for failure of the appellant to complete the appeal and file notice of its completion as required by this chapter, and by the appellate court for failure of the appellant to appear on the hearing of the appeal”. Civil Procedure Law, Rev. Code 1:51.16.

The records in this case conclusively prove, and is admitted by the informant/appellee, that all of the jurisdictional steps including the issuance and service of the notice of the completion of the appeal, except for the late service thereof by the sheriff, which act should not prejudice a party litigant who has no part to perform as in the instant case, were taken long before the expiration period for the issuance and service of the notice of completion of the appeal. Vide: Civil Procedure Law, Rev. Code 1:51.9. It is therefore the considered opinion of this Court that:

(a) Respondents/appellants appeal bond was neither defective nor inadequate.

(b) The notice of the completion of the appeal was issued by the clerk of court within the statutory period of sixty days. The delay in the service thereof by the sheriff was due to excusable neglect or uncontrollable circumstances which should not prejudice a party litigant especially so when said party had no duty to perform. Vide: Cole v. Williams, [1949] LRSC 17; 10 LLR 191(1949). In the Cole v. Williams case, this Court said: “where a bill of exceptions and appeal bond had been filed within sixty days and the notice of completion of appeal had been served after sixty days, but before attack by motion, a motion to dismiss the appeal will be denied.” See [1949] LRSC 17; 10 LLR 191,Syl. 2 (1949).

From an inspection of the records in this case, which courts of justice are duty bound to take judicial notice of, thereby obviating the necessity for the production of any further evidence, the notice of the completion of the appeal was issued by the clerk of the Monthly and Probate Court for Montserrado County, on the 11 th day of November, A. D. 1985, before the expiration of the sixty-day statutory period. According to the returns of the sheriff of that court, which constitutes prima facie evidence of the service thereof, the notice was served on the Adighibe and the Tubman Law Firms and Counsellor M. Kron Yangbe for appellants and appellee, respectively, on the 21st day of November 1985. Vide: Phelps v. Williams, [1928] LRSC 14; 3 LLR 54 (1928).

A further perusal of the records in this case discloses that the attack, by filing of a motion to dismiss claiming the defective-ness of the appeal, was not made until the 9 0 day of April 1986, far beyond the period of sixty days. Our statute states that:

“The Judge shall of his own motion take judicial notice of public historical facts that are so well known as not to be the subject of reasonable dispute.” Civil Procedure Law, Rev. Code 1: 25.2.

The motion to dismiss the appeal is hereby denied based upon the within cited and quoted legal authorities. It is the order of this Court that the case be heard on its merits. Costs to abide final determination.
Motion denied.