CHARLIE D. JACKSON, Defendant/Movant, v. JOSIAH S. KARPEH, alias ROBERT S. KARPEH, Plaintiff/Respondent.

MOTION FOR DIMINUTION OF RECORDS

Heard: November 25, 1986. Decided: January 22, 1987.

1.After the trial judge approves of an appellant’s bill of exceptions, it becomes the duty of the clerk of the trial court to forward same, along with the other certified records of the trial court to the Supreme Court for determination of the appeal in question.

2. Where all appellant’s failure to fulfill the requirements for perfecting an appeal is due to a mistake or omission by an officer of the trial court, such as the clerk of court, the defect will not be considered fatal to the appeal, and may be cured by order of the appellate court in the interest of promoting substantial justice.

Following a verdict of liable in an action of ejectment brought against him by the plaintiff/respondent, and the rendition of final judgment thereon, appellant/movant excepted thereto and announced an appeal to the Supreme Court for appellate review. When the bill of exceptions was presented to the trial judge, she refused to approved same. Whereupon, the appellant petitioned the Chambers Justice of the Supreme Court for a writ of mandamus to compel the judge to approve the bill of exceptions. The writ was granted and the judged was ordered to approved the bill of exceptions nunc pro tunc. No appeal was taken from that ruling to the full bench.

However, when the ejectment case was called for hearing by the Supreme Court, it was discovered that the bill of exceptions, which was ordered approved by the Supreme Court, was not in the certified records. The appellant then moved the court for diminution of records. The motion was resisted by the appellee who prayed for the dismissal of the appeal, arguing that a prerequisite for the appeal had not been met by the appellant.

The Supreme Court granted the motion for the diminution of records, reasoning that as the appellant had previously applied to the Court for a writ of mandamus to compel the trial court judge to approve appellant’s bill of exceptions, and that as the Court had ordered the trial judge to approve the bill of exceptions, there had to have been a bill of exceptions in the records, approved by the trial judge in compliance with the mandate of the Chambers Justice.

The Court opined that it was the duty of the clerk of the trial court to forward the bill of exceptions along with the other certified records of the trial court once the judge had approved the bill of exceptions as ordered by the Supreme Court. The Court noted that the fault was therefore not attributable to the appellant and should not therefore prejudice appellant’s right of appeal. It observed that where an appellant’s failure to fulfill the requirements for perfecting an appeal is due to a mistake or omission by an officer of the trial court, the defect will not be considered fatal to the appeal. The Court further noted that in such instance, the defect may be cured by order of the appellate court, acting in the interest of promoting substantial justice. The motion was accordingly granted and the bill of exceptions ordered forwarded to the Court.

M Kron Yangbe appeared for the defendant/movant. Isaac R. Malobe and Nelson Broderick appeared for plaintiff/ respondent.

MR. JUSTICE BIDDLE delivered the opinion of the Court.

In January 1977, the plaintiff/respondent in these proceedings filed an action of ejectment in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, against the defendant, movant herein. According to the records certified to this Court, the ejectment suit was dismissed during the disposition of law issues by the then presiding judge, His Honour Johnnie N. Lewis, former circuit judge. The plaintiff/ respondent excepted to the said ruling and announced an appeal therefrom to this Honourable Court. He did not, however, perfect his appeal; instead, he refiled the same action against the same defendant. This second action was ruled to trial by former Circuit Judge, Alfred B. Flomo, after the disposition of the law issues raised in the pleadings. The empanelled jury, after hearing the evidence, returned a verdict in favor of the plaintiff. The trial judge subsequently entered final judgment confirming and affirming the jury’s verdict. The defendant, now movant, excepted to the final judgment and announced an appeal therefrom. The appeal was granted by the trial judge, Her Honour Emma Shannon-Walser.

According to the records certified to us, the movant herein, defendant below, tendered a bill of exceptions for approval by former Judge Emma Shannon-Walser but she refused to perform this legal duty imposed upon trial judges by statute. (See Civil Procedure Law, Rev. Code 1:51.7). This refusal necessitated the filing of a petition for a writ of mandamus by the appellant/defendant, movant herein, the before Chambers Justice, Mr. Justice Roland Barnes. After hearing in 1979, the Chambers Justice granted the petition and ordered the trial judge to approve the bill of exceptions nunc pro tunc. No appeal was taken from this ruling of the Chambers Justice.

The movant’s exhibits “A”, “B”, “D” and “E” show that the movant, defendant in the ejectment suit, did comply with the statute governing the perfection of an appeal to this Court. The movant’s exhibit “C” is a certified copy of the ruling of the Chambers Justice ordering the trial court to approve the defendant/movant’s bill of exceptions nunc pro tunc.

When the case was called for hearing during the March A. D. 1986 Term of this Court, it was discovered that the records certified were without the bill of exceptions which had been ordered approved nunc pro tunc in the 1970’s by Chambers Justice Roland Barnes. This was confirmed by the certificate of the Clerk of this Court, dated May 6, 1983, which specifically stated in its conclusion that “from the records transmitted to this Court, the . . . bill of exceptions is omitted.”

We wish to point out here that the purported omitted bill of exceptions must have been originally tendered by appellant, now movant, for the trial judge’s approval because it was her refusal so to do that necessitated the institution of the mandamus proceedings mentioned herein before. We assume that the bill of exceptions, having been ordered approved, was thus approved in compliance with the order of the Chambers Justice. We therefore hold that at that stage, that is, after the approval of the bill of exceptions by the trial judge, it was the duty of the clerk of the lower court to forward same, along with the other records certified to this Court, for its determination of the appeal in question. Because this duty was neglected by the clerk of court, the appellant/movant had no alternative but to file this motion for diminution of records.

The plaintiff/respondent in resisting the motion substantially argued that had there been a bill of exceptions before the trial judge for approval, and that if the trial judge did indeed approve same; the movant should have retained a copy thereof or annexed same to his motion for diminution of records. This argument, at first blush, seems plausible, but it cannot hold water because the ruling of the Chambers Justice in the mandamus proceedings, ordering the trial judge to approve the said bill of exceptions, to which ruling respondent did not except, is prima facie evidence that respondent conceded the existence of the said bill of exceptions in the office of the clerk of the trial court. Hence, after its approval by the trial judge, as ordered by Justice Barnes, it was the duty of the clerk to have forwarded all the records, including the bill of exceptions, to this Court. Jackson v. Duncan, [1951] LRSC 7; 10 LLR 428, 429-430 (1951). Furthermore, the certificate of the clerk of court with respect to the bill of exceptions clearly indicated that the said bill of exceptions was “omitted” from the records transmitted to this Court. We therefore further hold, as we have held in the past, that where an appellant’s failure to fulfill the requirements for perfecting an appeal is due to a mistake or omission by an officer of court, such as the clerk of court in this instance, the defect is not fatal to the appeal, and may be cured by order of the appellate court, so as to promote substantial justice. Fazzah v. Rogers Shoe Co., [1955] LRSC 4; 12 LLR 214 (1955). And substantially justice we must promote at all times.

Wherefore, and in view of the facts, circumstances and laws cited herein, it is the opinion of this Court that the motion for diminution of records be, and the same is hereby granted. Costs to abide the final determination of the appeal. And it is hereby so ordered.

Motion granted.