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INTER-CON SECURITY SYSTEMS, INC., Appellant, v. NATHANIEL B. PHILIPS and CHARLES C. TARN, Hearing Officer, Ministry of Labour, Appellees.

 

MOTION TO DISMISS APPEAL FROM THE RULING OF THE NATIONAL LABOUR COURT FOR MONTSERRADO COUNTY.

 

Heard: April 10, 2000. Decided: May 12, 2000.

 

1. Although the Civil Procedure Law provides that an appellant shall secure the approval of an appeal bond by the trial judge, an appeal will not be dismissed where another judge regularly sitting or assigned to the circuit approves the bond.

2. The failure of the judge who tried a case to approve an appeal bond is not one of the statutory grounds for the dismissal of an appeal.

3. The assignment of judges to preside over the inferior courts of record lies within the power and authority of the Supreme Court and is therefore beyond the scope and control of the appellant with regard to the approval of a bill of exceptions and an appeal bond.

4. A judge regularly sitting or assigned by the Supreme Court to an inferior court can approve a bill of exceptions and an appeal bond.

5. The approval of a bill of exceptions and an appeal bond by judges other than the judge who tried the case, but who have been duly assigned to the court, is not ground for dismissal of an appeal.

6. Where the last day for the filing of a bill of exceptions falls on a Sunday, that day shall be excluded from computations of the ten-day period prescribed by statute.

7. Where the failure of an appellant to file an approved appeal bond and to file and serve a notice of completion of appeal within the sixty day period prescribed by statute is due to vis majeure, the filing and service will be considered valid and a motion to dismiss the appeal will be denied.

8. Real property offered as security to a bond should be sufficiently described to establish the lien on the bond.

9. Real property pledged as security to an appeal bond should be described in the affidavit of sureties, failing which the appeal shall be dismissed.

10. Where the property used as security to an appeal bond is not sufficiently described and the bond thereby rendered defective, the movant in a motion to dismiss the appeal will be deemed to have waived the right to challenge the appeal bond if he fails to except to the sufficiency of the sureties or the deficiency of the bond by written notice of exceptions within three days after receipt of the notice of the filing of the bond.

Appellant Inter-Con Security System Inc. appealed to the Supreme Court from a judgment of the National Labour Court for Montserrado County affirming the ruling of the hearing officer of the Ministry of Labour holding appellant liable to Co-appellee Nathaniel B. Phillips for illegal dismissal. While the case was pending before the Supreme Court, the appellees filed a motion to dismiss the appeal, contending (a) that the bill of exceptions filed by the appellant had been approved by a judge other than the judge who had heard and decided the case, (b) that the bill of exceptions had been filed beyond the ten-day period prescribed by statute, (c) that the appeal bond had been approved by a judge other than the trial judge and had been filed beyond the sixty days stipulated by law, and (d) that the notice of completion of the appeal had been served and filed beyond the sixty days from the date of the judgment, contrary to the appeal statute.

The Supreme Court, while agreeing with the factual pre-mise of the motion for dismissal of the appeal, disagreed with the contention of the appellees that under the circumstances and the applicable laws the appeal was dismissible. The Court noted, with reference to the bill of exceptions that while the statute provides for a period of ten days from the date of the judgment for approval and filing of the same, the ten day period would not obtain where the last day for approval and filing falls on a Sunday. In such circumstances, the Court said, the filing of the bill of exceptions on the eleventh day was permissible and does not constitute a basis for the dismissal of the appeal.

With regard to the contention that the bill of exceptions and appeal bond were approved by judges other than the judge who had heard and determined the case, the Court opined that it is legal for a judge other than the judge who hears a case to approve the bill of exceptions and appeal bond once the judge is assigned to and is regularly presiding over the court wherein the case was heard. The Court observed that the authority to perform such acts was vested in the judge by virtue of the assignment from the Supreme Court.

 

The Court also ruled that the failure of the appellant to serve and file its appeal bond and notice of the completion of the appeal within the sixty day period stipulated by statute was due to an involuntary prevention caused by the April 6, 1996 crises which constituted vis majeure. These events, the Court said, were beyond the control of the appellant and therefore could not constitute a basis for the dismissal of the appeal. The Court noted that it had the duty to take judicial notice of the crisis which prevented the filing of the appeal bond and notice of completion of appeal within the statutory time.

The Court also dismissed the contention of the appellees that the appeal should be dismissed because the appeal bond was defective since it did not sufficiently describe the property offered as security to the bond, holding that the appellees had waived the right to challenge the sufficiency of the bond or the sureties to the bond in not asserting such challenge within three days of receipt of the filing of the bond. The Court therefore denied the motion to dismiss and ordered the case docketed for hearing.

 

A. Blamo Dixon of Kemp & Associates, in association with Legal Consultants, Inc., appeared for the appellant. B. Anthony Morgan of Morgan, Grimes and Harmon Law Firm appeared for the appellees.

 

MR. JUSTICE MORRIS delivered the opinion of the Court.

 

On the 12th day of May, A. D. 1994 the co-appellee herein, B. Nathaniel Philips, filed a complaint with the Ministry of Labour against the Management of Inter-Con Security System alleging wrongful dismissal and refusal to pay his benefits. The records in this case disclose that B. Nathaniel Philips was employed by the appellant, the co-respondent management herein, on the 7th day of March, A. D. 1991. The appellant dismissed him on the 8th day of May, 1994, stating as the reason the violation of Inter-Con’s standard of conduct. On the 27th day of June, A. D. 1995, the Deputy Director of Labour Standards, Mr. Charles C. Tarn, ruled in favour of Co-appellant Philips, awarding him the sum of US$1,296.00 as benefits. To this ruling the appellant management excepted, and petitioned the National Labour Court for a judicial review. The petition was resisted, assigned for hearing, and heard on the 14th day of March, A. D. 1996 by His Honour William B. Metzger, Sr., Assigned Judge presiding over the National Labour Court for Montserrado County. On the same day, i.e. March 14, 1996, the judge ruled confirming the decision of the hearing officer, with the modification that the complainant, co-appellee herein, be paid two years wages. The appellant excepted to this ruling and announced an appeal to this Court for appellate review.

The appellant filed a bill of exceptions on the 25th of March, A. D. 1996, which was approved by Her Honour C. Aimesa Reeves, Resident Judge for the National Labour Court for Montserrado County. On the 30th day of July, A. D. 1996, Her Honour Gloria M. Musu-Scott, then Assigned Labour Court Judge for Montserrado County, approved appellant’s appeal bond. A notice of completion of the appeal was also filed with the clerk of the trial court on the 30th day of July, A. D. 1996 and a copy thereof served on counsel for the appellees on August 2, 1996.

 

While the case was pending on appeal, the appellees filed a four-count motion to dismiss the appeal, contending, among other things, that the approval of the bill of exceptions by Her Honour C. Aimesa Reeves was contrary to statute in that His Honour William B. Metzger, the assigned judge who had heard and decided the case, should have been the one to approve the bill of exceptions as the law requires. In count two of the motion, the appellees contended that the appeal bond filed by the appellant was fatally defective since it was not approved by the trial judge who had heard and decided the case, as required by law, but was instead approved by Her Honour Gloria M. Musu-Scott, who had not heard the case. The appellant, respondent herein, in countering the assertions made in the motion, contended that the appeal could not be dismissed by this Court because the bill of exceptions and the appeal bond were approved by other judges regularly sitting or assigned to the trial court by the Chief Justice. The respondent also averred that the failure of the judge who tried and decided the case to approve the bill of exceptions and the appeal bond was not a ground specified by the statute for the dismissal of the appeal.

In the case King Peters Heirs v. Gigger, [1978] LRSC 52; 27 LLR 287 (1978), Syl. 2 & 3, text at 289, this Court held that “[a]lthough the Civil Procedure Law, Rev. Code 1:51.8, provides that the appellant shall secure the approval of the appeal bond by the trial judge, an appeal will not be dismissed where another judge, regularly sitting or assigned to the circuit, has approved the bond…[and that] the failure of the trial judge to approve an appeal bond is not one of the statutory grounds for the dismissal of an appeal.” The records in this case reveal that His Honour Judge Metzger, who was assigned to the National Labour Court for Montserrado County at the time, heard and disposed of this case, but thereafter was reassigned to another court and succeeded by the resident judge of the National Labour Court, Her Honour C. Aimesa Reeves. It was this latter judge that signed the bill of exceptions tendered by the appellant. We also observe from the records that Her Honour Gloria M. Musu-Scott, who was subsequently assigned to the National Labour Court, approved appellant’s appeal bond on the 30th of July, A. D. 1996, following the April 6, 1996 crisis in Monrovia.

 

It is important to note at the juncture that the assignment of judges of our inferior courts lie within the power and authority of the Supreme Court and therefore is beyond the scope and control of an appellant for the approval of a bill of exceptions and an appeal bond. Hence, another judge regularly sitting or assigned to an inferior court by this Court can approve a bill of exceptions and an appeal bond. As such, the approval of the bill of exceptions and the appeal bond in the instant case by judges other than the judge who tried and decided the case, but who were subsequently assigned to the trial court, is not ground for the dismissal of the appellant’s appeal, as we clearly propound-ed in the King Peter’s Heir’s case, cited supra. In point of fact, the failure of the trial judge, His Honour William B. Metzger, Sr., to approve the appellant’s bill of exceptions and appeal bond is not one of the stated statutory grounds for the dismissal of an appeal within this jurisdiction. Hence, counts 1 & 2 of appellees’ motion to dismiss the appeal are hereby overruled.

Appellees also contended that the bill of exceptions and the appeal bond were filed beyond the statutory period of 10 and 60 days, respectively. In countering this assertion, the appellant contended that the 24th day of March, being the 10th day for the filing and approval of the bill of exceptions, was a Sunday, and therefore was excluded from the computation of time required for such filing. We are in agreement with the appellant’s explanation that the filing of the bill of exceptions on the 25th day of March, A. D. 1996, is provided for by law. The bill of exceptions was therefore approved within the statutory period of 10 days. See Lartey v. Lartey, [1944] LRSC 3; 8 LLR 194 (1944), Syl. 2, text at 199-200; Civil Procedure Law, Rev. Code 1:1.71, Computation of Time.

 

Another contention advanced by the appellees in the motion was that the appellant failed to file the appeal bond and the notice of completion of appeal within 60 days from the date of the ruling of the trial judge, which was made on the 14th day of March, A. D. 1996. The appellees therefore contended that the appellants’ appeal bond was defective and, hence, that the appellees were not brought under the jurisdiction of this Court. The appellant, on the other hand, contended that it did not file its appeal bond and the notice of appeal within the 60-day period required by law because of the April 6, 1996 crisis in Monrovia, the circumstances surrounding which were beyond its control. We are in agreement with the assertion of the appellant regarding its inability to file its appeal bond and the notice of the completion of appeal within the 60-day period required by law. We note that this was in direct consequence of the April 6, 1996 crisis in Monrovia, a fact well known in this jurisdiction. This Court therefore takes judicial notice of this historical fact, as we are required to do by Chapter 25, Section 25.2, of the Civil Procedure Law. The appeal bond and the notice of completion of appeal are therefore valid, and it is the opinion of this Court that the appellees were thereby brought under the jurisdiction of this Court. We hold also that the appellant was involuntarily prevented from complying with our appeal statute due to vis majeure, an irresistible force which was beyond the control of the appellant. BLACK’S LAW DICTIONARY 1572 (6th ed. 1990).

The final issue raised by appellees in their motion and argued before this Court is that the affidavit of sureties which accompanied the appeal bond is deficient since it did not contain a description of the metes and bounds of the real property offered as security. The respondent counter argued that the appellees had waived their right to raise such issue because they had failed to except to the sufficiency of the sureties to the appeal bond. Our statute provides that the property offered for security should be sufficiently described to establish the lien on the bond. Civil Procedure Law, Rev. Code 1:63.2(3)(b). This Court has held that real property pledged in an appeal bond should be described in the affidavit of sureties, failing which the appeal shall be dismissed. West African Trading Corporation v. Alraine (Liberia). Ltd., [1976] LRSC 23; 25 LLR 3 (1976), text at pages 5 & 6. We are in agreement with the con-tention of the appellees as to the law referred to and with respect to our prior holding. We observe, however, that the appellees had failed to except to the sufficiency of the sureties to the appellant’s appeal bond by a written notice of exceptions within 3 days after receipt of the notice of filing of appeal bond. Our law provides for exceptions to be taken to sureties of a bond within 3 days upon notice of filing of the bond. For reliance, see Civil Procedure Law, Rev. Code 1:63.5(1)(2).

 

The failure of the appellees to avail themselves of this statutory provision constitutes a waiver to challenge the appel-lant’s appeal bond. In the case Kerpai et al. v. Kpene[1977] LRSC 4; , 25 LLR 422 (1977), Syl. 6, text at 428, this Court held that “failure of appellee to except in the court below to the insufficiency of the sureties to an appeal bond within 3 days after receipt of notice of the filing of the bond constitutes a waiver of his objection and warrants denial of a motion to dismiss the appeal.” The contention of the appellees is therefore not sustained, given their failure to except to the securities of the appellant’s appeal bond. The bond is therefore allowed by this Court.

Wherefore, and in view of the foregoing, it is the considered opinion of this Court that the motion to dismiss the appellant’s appeal should be, and the same is hereby denied. The appeal is therefore ordered proceeded with on its merits. Costs are to abide the final determination of this case. And it is hereby so ordered.

Motion to dismiss denied.

 

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