HIS HONOUR FREDERICK A. B. JAYWEH, Stipendiary Magistrate, City Magisterial Court, Temple of Justice, Appellant/Respondent, v. H. M. JAWHARY, Appellee/Movant.
MOTION TO DISMISS APPEAL FROM THE FIRST JUDICIAL CIRCUIT COURT, CRIMINAL ASSIZES “A”, MONTSERRADO COUNTY.
Heard: November 10, 1992. Decided: February 26, 1993.
1. Any person aggrieved by an unlawful search and seizure may make a motion for the return of the property and to suppress for use as evidence anything so obtained on seven different grounds laid in the statute.
2. Even though a search warrant is issued by a magistrate or justice of the peace, a motion for the return of the property in case of an unlawful search or seizure may be made in the circuit court in the area in which the property involved was seized.
3. A summary proceedings against a justice of the peace or magistrate is criminal in nature and as such, it is governed by the criminal procedure statute.
4. Under the criminal procedure law, the failure to file a bill of exceptions within ten days is not ground for the dismissal of the appeal. The entire appeal process, including the filing of the bill of exceptions, must be completed within sixty days, and it is the failure to complete the process within the sixty days that constitutes ground for the dismissal of the appeal.
The Republic of Liberia obtained a search warrant to search the premises of petitioner for building materials allegedly stolen from the private prosecutor. During the search, several items were seized from the premises of the petitioner. Consequently, he appeared in the magisterial court and demanded the items and also contended that the warrant was not served in keeping with the criminal procedure statute, in that the court officers neither served the warrant on him nor on the person in attendance at the premises. The magistrate denied the request. Thereafter, the petitioner filed a petition of summary proceeding against the magistrate which was granted, declaring that the warrant was not served in keeping with the statute and ordered the return of the property. The respondent magistrate excepted to the ruling and announced an appeal. On October 8, 1992, while the appeal was pending, the petitioner filed a motion to dismiss the appeal for reason that the respondent had failed to file a bill of exceptions within ten days from the date of rendition of final judgment, and that the search warrant was not legally served. The petitioner attached a certificate issued and signed by the clerk of the court to the effect that the final judgment was rendered on September 18, 1992, but that the bill of exceptions was not filed until September 30, 1992. The respondent resisted the motion, contending that the bill of exceptions was filed and served within ten days from the date of rendition of final judgment in keeping with statute. The respondent also attached a certificate issued and signed by the clerk of the trial court stating that although the final judgment was dated and signed on September 18, 1992, it was not officially rendered until the 21′ of September 1992, and that the earlier certificate issued in favor of petitioner to the effect that final judgment was rendered on September 18, 1992 was an error.
The Supreme Court determined that the formal certificate issued by the clerk in favor of the petitioner to the effect that final judgment was rendered on the 18 th of September 1992 represented the true and accurate records of the trial court, and that fraud was perpetuated in the issuance of the latter. The Court then fined the clerk and issued a threat of dismissal and prosecution upon the occurrence of a subsequent fraudulent act. The Court also held that the motion for the return of the property should have been instituted in the circuit court in the area where the seizure of property occurred. Regarding the filing of the bill of exceptions the Court opined that a summary proceedings is a criminal action and as such, only the criminal procedure law was applicable. In interpreting sections 24.7 and 24.9 of the said statute, the Court stated that the failure to file a bill of exceptions within ten days from the rendition of final judgment was not a ground for dismissal of the appeal, but that the bill of exceptions and the entire appeal process must be completed within sixty days from the date of rendition of final judgment, the failure of which constitutes a ground for the dismissal of the appeal. The Court then concluded that since the entire process was completed within twelve days from the date of final judgment, the appeal should not be dismissed. Accordingly, the Court denied the motion.
Roger K. Martin appeared for petitioner. John Morris appeared for respondent.
MR. JUSTICE SMALLWOOD delivered the opinion of the Court.
This appeal is before this Court from the First Judicial Circuit Court, Criminal Assizes “A”, Montserrado County from a ruling of the presiding judge.
The Republic of Liberia as plaintiff, based on the complaint of a Kaba Kamara, a representative of ITALCO, applied for a search warrant to search the premises of H. N. Jawhary located in Congo Town, near the Embassy of Switzerland for building material allegedly stolen from ITALCO. During the search 445 pieces of pellets red burn bricks were seized which the representative of ITALCO, Kaba Kamara, claimed to be the property of his company.
The appellee/movant, H. M. Jawhary, thru his counsel, appeared in the magisterial court and requested the return of the items that were seized because, according to him, the search warrant was not served in keeping with section 11.5 (2) of the Criminal Procedure Law, Rev. Code 2:11.5. He contended that the appellee/movant, H. M. Jawhary was not at the premises when the court officer conducted the search and the officer failed to serve the warrant on the person who was at the premises the day of the searching. The magistrate denied the request claiming that the warrant was legally served because it was served on a Miss Zeyton Smith who introduced herself to the officer as the caretaker of the premises. The appellee then filed a petition for summary proceedings against Hon. Frederick A. B. Jayweh, Stipendiary Magistrate, Magisterial Court, City of Monrovia, before His Honour M. Wilkins, Assigned Circuit Judge, presiding over the First Judicial Circuit Court, Criminal Assizes “A”,. Montserrado County, Republic of Liberia.
On the 18th day of September A. D. 1992, the circuit court Judge rendered his ruling granting the petition in summary proceedings and declaring that the search warrant was not served in keeping with statute and ordered the return to the petitioner “properties” seized under the search warrant. The respondent magistrate noted his exception and announced an appeal to this Court sitting in its October Term A.D. 1992, which was granted.
On October 8, 1992, the appellee, H.M. Jawhary, filed a motion before this Court to dismiss the appeal of the appellant magistrate. The petitioner has attached to the motion as exhibits a copy of the ruling of the circuit judge, a copy of the bill of exceptions filed by the appellant magistrate, a certificate issued by the clerk of court, Criminal Assizes “A” and a copy of a letter to the said clerk of court written by the appellee’s counsel, Counsellor Roger K. Martin.
A resistance to the motion to dismiss the appeal was filed on November 9, 1992, by the appellant magistrate. Attached to his resistance are a certificate from the very clerk of court, Criminal Assizes “A”, and a copy of a letter addressed to Counsellor Roger K. Martin by the said clerk of court. We shall deal with the two certificates and the letters later in this opinion.
The movant filed a seven (7) count motion but we deem only counts 5 and 7 are worthy of our consideration in determining whether or not the appeal should be dismissed. In count 2 of the motion, the appellee in the summary proceedings, contended that the search warrant was not served in keeping with the Criminal Procedure Law Rev. Code 2:11.5(2). This was the contention of the movant when he applied to the magistrate for the return of the property seized and it is because of the refusal of the magistrate to return the property that the magistrate was summoned before the circuit judge who ruled in favour of the appellee. Whereupon, the magistrate appealed. Whether or not the search warrant was legally served is the issue to be decided in the appeal case but because we have a motion to dismiss the appeal before us, we are prevented from opening the records in the appeal case.
During the argument, the movant was asked whether he applied for the return of the property in keeping with section 11.10 of the Criminal Procedure Law. His answer was that the magisterial court is not a court of record so he could not file a motion for the return of the property before the magistrate.
We feel ourselves compelled to interpret section 11.10 of the Criminal Procedure Law since it does not form a part of the issues in the appeal. Section 11.10 of the Criminal Procedure Law provides that any person aggrieved by an unlawful search and seizure may make a motion for the return of the property and to suppress for use as evidence anything so obtained on seven different grounds laid in the statute. Paragraph two of section 11.10 reads: “Courts Having Jurisdiction of Motion. “The motion may be made before the court, the jurisdiction of which encompasses the area in which the property involved is seized, or in the court where the trial is to be held”. Criminal Procedure Law, Rev. Code 2:11.10. It is therefore clear that even though a magistrate or justice of the peace court may issue the search warrant, the motion for the return of the property in case of an unlawful search and seizure, may be made in the court the jurisdiction of which encompasses the area in which the property involved is seized, or in the court where the trial is to be held. In this case, the area in which the property was seized is Congo Town, Montserrado County, Criminal Court “C”, which has jurisdiction over theft cases in Montserrado County, is the court, the jurisdiction of which encompasses the area, Congo Town, in which the property in this case was seized and therefore the motion for the return of the property ought to have been filed in Criminal Court “C”.
The appellee has asked this Court to dismiss the appeal because the bill of exceptions was filed late. In support of this issue he made profert of copy of the ruling of the circuit judge who heard the summary proceedings which carries the date September 18, 1992, over the signature of the judge. The ruling is buttressed by a clerk’s certificate. For the benefit of this opinion, we deem it necessary to quote the whole certificate as follows:
Criminal Assizes Court “A” October 1, 1992
Clerk’s Certificate
This is to certify that from a careful perusal and inspection of the records in the above captioned case, it is revealed that no counsel of the Ministry of Justice or County Attorney office signed the bill of exceptions, except Counsellor Morris of the Lewis & Lewis Law Office, although the plaintiff in the main case is the Republic of Liberia, and in the absence of Magistrate Frederick A.B. Jayweh of the City Magisterial Court announcing the Lewis and Lewis Law Office as his counsel in the summary proceedings against him and that the said bill of exceptions is filed on the 30th day of September A.D. 1992, approved by His Honour M Wilkins Wright, assigned circuit judge. The judgment appealed from was entered on the 18th day of September A.D. 1992.
Hence this certificate to attest to the above facts. Given under my hand and seal of this Honourable Court this 1′ day of October, A.D. 1992.
(s) Peter T. Nma
(t) Peter T. Nma Clerk, Criminal Assizes Court “A”
A copy of the bill of exceptions is also attached to the motion which carries the date of September 30, 1992, as both the date of execution and the date of approval. The appellee contended that the bill of exceptions should have been by the 28t h day of September 1992, but instead it was filed on September 30, 1992, two (2) days beyond the statutory period.
The appellant magistrate filed a seven (7) count resistance contending that the bill of exceptions was not filed beyond the statutory period because, according to him, the ruling was delivered in open court, on Monday, 21′ September A. D. 1992. In support of his contention he proferted a clerk’s certificate and a letter signed by the clerk of court addressed to Counsellor Roger K. Martin, counsel for movant. For the benefit of this opinion we deem it necessary to quote both the certificate and letter as follows:
October 5, 1992
“Counsellor Roger K. Martin
Counsellor-AT-Law
Martin Law Firm
Monrovia, Liberia
Dear Counsellor Martin:
In Re: H.M. Jawhary of the City of Monrovia, Liberia, Plaintiff Versus His Honour Frederick A. B. Jayweh Stipendiary Magistrate Monrovia City Court, Respondent. Action: Summary Proceedings
GROWING OUT OF THE CASE R.L., thru Italco of Monrovia, Liberia, Plaintiff Versus H. M. Jawhary, Defendant
Please be informed that the judgment in the above cited case was prepared, signed and dated 18th September, A.D. 1992 but was delivered in the open court on the 21′ day of September A. D. 1992. Mistakenly the date the judgment was actually rendered was not written in the minutes. Hence, the certificate issued in your favor in the said case that “the judgment appealed from was entered on the 18th day of September A. D. 1992” was inadvertently made and signed by me. Kindly note this correction. Kindest regards,
Respectfully yours,
(s) Peter T. Nma
(t) Peter T. Nma Clerk of the Aforesaid Court”.
Judge M. Wilkins Wright
Cllr. John N. Morris
File Certificate
“This is to certify that from a careful perusal and inspection of the records in the above captioned case it is revealed that final ruling in the above summary proceedings was prepared, signed and dated on the 18t h day of September A. D. 1992 but said ruling was rendered and delivered by His Honour M. Wilkins Wright on the 21′ day of September A. D.1992. Hence this certificate to clarify the issue.
Given under my hand and seal of this Honourable Court this 6th day of October, A. D. 1992.
(s) Peter T. Nma
(t) Peter T. Nma Clerk of the Aforesaid Court”. SEAL
Also attached to the resistance is a copy of the notice of completion to appeal which also carries the date of September 30, 1992, as the date the bill of exceptions was filed.
The ruling of the circuit judge was typed in the minutes of court of September 18, 1992, and was commenced on sheet one which has all of the opening ceremonies of the court including the devotion and the roll call of the jurors both grand and petit. This is on the 29th day’s jury sitting and the ruling ended on sheet 4 of the 29th day sitting of the jury. At the bottom of sheet 4 the ruling is closed with the date September 18, 1992 over the signature of the judge. Below the signature of the judge, the exceptions and the announcement of appeal are recorded as well as the granting of the appeal.
The clerk of court having issued and signed a certificate on October 1, 1992, in conformity with the minutes of court of September 18, 1992, undertook on October 5, 1992, to address the letter we have just quoted to Counsellor Roger K. Martin, counsel for movant. The letter is signed by Peter T. Nma as clerk of court, Criminal Assizes “A”. Again on October 6, 1992, the clerk issued and signed another certificate this time in favor of the respondent which we have also quoted above.
In reply to the clerk’s letter, Counsellor Martin on October 6, 1992, wrote the below letter.
October 6, 1992
“Mr. Peter T. Nma
Clerk, Criminal Assizes “A”
First Judicial Circuit
Montserrado County
Temple of Justice
Monrovia, Liberia
Dear Mr. Clerk
Your letter dated October 5, 1992, addressed to me in the case: H.M. Jawhary, Petitioner vs. His Honour Frederick A. B. Jayweh, Magistrate, City Court, Respondent, summary proceedings, in which you attempt to invalidate the certificate dated October 1, 1992, over your signature, was received today and is hereby acknowledged.
Please note that you cannot invalidate the said certificate because it is in conformity with the records in the court’s file and we do not wish to believe that you could allow them to be tempered with. Your claim that the judgment of judge Wright was prepared on the 18th of September and rendered in open court on the 21s t day of September, 1992 is false. If you observe below the judge’s signature after the final judgment which is dated September 18, 1992, you will observe the exceptions noted by the respondent magistrate and the appeal announced. You cannot convince anyone that when the judgment was prepared on the 18th day of September, as you claim, there and then the magistrate entered his exceptions and announced appeal and the judge kept the judgment until September 21, 1992. This is inconceivable. Had the judgment been made on the 21′ of September as you claim, the date of the judgment would have been the same and not on the date it was prepared. The respondent’s exceptions and announcement of appeal on the 18th day of September, 1992 is a clear and convincing indication that the judgment was entered in open court on the day the exceptions were entered and the appeal announced. You cannot therefore distort or misrepresent the records without exposing yourself.
Regards,
(s) Roger K. Martin
(t) Roger K. Martin Counsellor-AT-Law
cc: His Honour M. Wilkins Wright Assigned Judge, August Term, A.D. 1992 Criminal Assizes “A” First Judicial Circuit, Mont. Co.”
The clerk of court is the custodian of the records and the fate of a party litigant lies in his hands and if the clerk is so dishonest as to falsify the records of court, it is a very dangerous situation to be happening in a court of law, and we look upon this with great disfavor. This is manifest fraud and we deplore it. We cannot permit such fraudulent acts to continue and therefore we must now nip it in the bud by inflicting severe punishment on this clerk to serve as a deterrent. Mr. Peter T. Nma, clerk of court, Criminal Assizes “A” is fined a sum of Two Hundred Dollars ($200.00) to be paid into the revenues of the Republic of Liberia within twenty-four hours from the date of this opinion and the receipt presented to the Marshal of this Court. At the end of the 24 hours, if the amount is not paid, the Clerk of this Court is hereby authorized to issue a commitment and placed it in the hands of the Marshal for the imprisonment of the clerk of court until the amount is paid. Any repetition of similar act will lead to immediate dismissal and subsequent prosecution. A note of warning is therefore sounded to all clerks of courts the country over, that anyone committing such fraud in the line of his or her duties as clerk of court after this opinion, will be punished by dismissal and prosecution.
Summary proceedings was first provided for under our laws in the 1902 Act of the Liberian Legislature. Mr. Justice Witherspoon, speaking for the Court in the case King v. Ledlow, said:
“The Act of 1902 providing for summary proceedings against justices of the peace, city magistrates and constables, is intended to give the judges of the circuit courts jurisdiction to investigate the actions of said officers and to give immediate relief to all concerned.
It is a proceeding controlled by the state and prosecuted upon the information of the informant. The penalty imposed in cases of conviction is fine to be paid immediately or be imprisoned and suspended from office. Throughout the proceedings the prosecution partakes of a criminal action. The question then is, can the informant legally be made a party to the proceedings as in this case? We say no. To allow such would tend to hamper justice and prevent willingness to give evidence so necessary in such cases”. [1916] LRSC 15; 2 LLR 283 (1916), text at pages 284-285.
The Act of 1901 – 1902 was repealed in 1956 and replaced by section 205 of 3 LCL of 1956, which provides punishment of a fine of one hundred dollars or imprisonment for a misdemeanor against justices of peace, magistrate, constables or Policemen who causes any aborigine to be disturbed, robbed or otherwise injured by the attempt to execute or serve a writ which is found to have been illegally issued. The latest enactment is the Judiciary Law, Rev. Code 17: 8.12, which provides for summary proceedings against stipendiary magistrates and justices of the peace and places jurisdiction in the circuit court in the county or provisional monthly and probate court in the territories.
Having determined that summary proceedings is a criminal action, it is therefore clear which procedure must apply in deciding an appeal in summary proceedings and therefore we say the Criminal Procedure Law outlines the requirements for completion of appeal as (a) announcement of taking of the appeal; (b) filing of the bill of exceptions and (c) service and filing of notice of completion of the appeal. It also provides that the “failure to comply with any of the requirements stated in this paragraph within the time allowed by statute shall be ground for dismissal of the appeal”. Section 24.9 provides, among other things, that (a) the appellant shall present a bill of exceptions signed by him to the trial judge within ten days after rendition of the judgment, imposition of the sentence, or presentation of the bill of exceptions. The judge shall sign it, noting thereon such reservations as he may wish to make; (b) within ten days after presentation of the bill of exceptions, the judge shall sigh it, noting thereon such reservations as he may wish to make; (c) the signed bill of exceptions shall be filed by the appellant with the clerk of the trial court within sixty days after the rendition of the judgment, imposition of the sentence or granting of the order appealed from; and (d) on application of the appellant, the clerk shall thereupon issue a notice of the completion of the appeal, one copy of which shall be served by the appellant on the appellee, and another copy of which shall be filed with the Clerk of the Supreme Court. The original of such notice shall be filed in the office of the clerk of the trial court.
Our Criminal Procedure Law places supervision and control of the proceedings on appeal in the appellate court from the time the notice of completion of the appeal is filed. Criminal Procedure Law, Rev. Code 2:22.16. Therefore, since the notice of the completion of appeal in the present case was filed on the 30th day of September, A. D. 1992, this Court has jurisdiction over the appeal. In criminal cases the appellate court may dismiss the appeal for failure of the appellant to comply with any of the requirements for the completion of the appeal within the time allowed by statute. Criminal Procedure Law, Rev. Code 2: 24.7(1); and where the appellant has met all of the requirements within statutory time but fail to appear on the hearing of the appeal, the appellate court is given the authority to dismiss the appeal. Criminal Procedure Law, Rev. Code 2:26.17.
From the records before this Court, it is clear that the ruling of the circuit judge in the summary proceedings was rendered on the 18th day of September 1992, and the bill of exceptions was not presented to the judge for his approval until September 30, 1992, two days after the time allowed by statute for the bill of exceptions to be presented to the judge. The statute provides that the bill of exceptions shall be presented by the appellant to the judge within ten days after rendition of judgment. Civil Procedure Law, Rev. Code 1:24.9.
Under the Criminal Procedure Law, the appellant, after announcement of appeal, has sixty days within which to complete his appeal. The bill of exceptions must be presented to the judge within ten days after rendition of judgment; the judge must sign it within ten days after it is presented to him and the appellant shall file the bill of exceptions within six days after rendition of judgment with the clerk of the trial court. The statute does not specify the time within which the notice of completion of the appeal shall be filed. All of the jurisdictional steps for the completion of the appeal are to be taken within sixty days after the rendition of judgment.
In count seven of the motion to dismiss, petitioner/movant contends that the “purported bill of exceptions is further made illegal by filing same outside the statutory period often (10) days after the rendition of the final judgment”. We do not agree with this contention because the appeal is taken from a ruling in a summary proceedings which grew out of the issuance and service of a search warrant. The two proceedings are criminal in nature and therefore the criminal procedure law requires the bill of exceptions to be filed within sixty days following the rendition of judgment. The judgment or ruling in the summary proceedings out of which the appeal grew was rendered on September 18, 1992, and the bill of exceptions and the notice of completion of the appeal were filed on September 30, 1992, just twelve days following the rendition of the ruling.
The appeal taken from the ruling of the trial judge having been perfected, should be sent forward to this Court for final determination. The items seized under the search warrant should remain in the custody of the officer of court until this Court makes a final determination of the appeal.
The motion to dismiss the appeal is therefore denied and the Clerk of this Court is ordered to send a mandate to the judge presiding over the First Judicial Circuit Court Criminal Assizes “A” ordering the said judge to resume jurisdiction over the matter and enforce this judgment. This being a criminal matter, cost of court is disallowed. And it is so ordered.
Motion denied