ETHELDA JAMES, Respondent/Appellant, v. WILLIAM L. BONNER, representing THE CHURCH OF OUR LORD JESUS CHRIST IN LIBERIA, Movant/Appellee.

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

Heard: December 22, 1981. Decided: February 5, 1982.

1. A motion for newly discovered evidence is made in the trial court, not the appellate court, and its object is for the movant to either be relieved from final judgment or for permission to introduce newly discovered evidence by including same in the pleading to form a part of the proceeding, or to grant a new trial.

2. When an appeal is withdrawn from an appellate court, the appellate court has no choice but to send a mandate to the lower court to enforce the judgment from which the appeal was taken.

3. It is the service of the notice of the completion of the appeal that confers jurisdiction on the Supreme Court over the cause, and unless served within sixty days after rendition of final judgment, the Supreme Court will refuse jurisdiction.

Respondent/Appellant served her notice of the completion of the appeal sixty-three days after the rendition of final judgment and, in response, movant/appellee filed a motion to dismiss the appeal. Without resisting the motion, appellant then filed a motion for newly discovered evidence before the Supreme Court. The Supreme Court overruled the motion for newly discovered evidence on the grounds that it is not a relief or proceeding available in the Supreme Court, and dismissed the appeal for failure of appellant to serve the notice of the completion of the appeal within sixty days after the rendition of final judgment. The motion to dismiss the appeal was granted.

E. Wade Appleton appeared for the Appellant. George E. Henries and Toye C. Barnard appeared for the Appellee.

MR. JUSTICE MORRIS delivered the opinion of the court.

The respondent/appellant filed a petition for the cancellation of a Statement of Understanding entered into by and between the respondent/appellant and the movant/appellee on the 9th of December, A. D. 1978, for the expansion of the Ethelda James Child Welfare Foundation Mission and to manage the expanded mission for a period of twenty years. The respondent/appellant claimed that she hastily signed the said Statement of Understanding without reading it under the influence of Dr. William L. Bonner, the Presiding Bishop for movant/appellee, because he claimed that he was leaving Liberia for America on the same 9th day of December 1978 and, upon his return to Liberia, the managerial work, as provided in the statement of understanding, would commence.

Respondent/appellant maintained that the statement of understanding was fraudulent, in that it sounds, firstly, in “Workman’s Contract”, secondly, like a “Lease Agreement”, and thirdly like an “Infinitum Term of Life”; and, that it is contrary to the laws of Liberia. Respondent/appellant contended that the organization of the Church of Our Lord Jesus Christ, movant/appellee, which Article 4 of the statement of understanding contains, does not exist in the Republic of Liberia. She also asserted that without consulting her or making any reference to her, the movant/appellee has undertaken to demolish one of her buildings, which is not connected with the Church edifice, nor the school building and, indeed, not a part of the buildings named in the statement of understanding for improvement or expansion. Petitioner then submitted that when she approached the movant/appellee’s presiding bishop, he replied her in an insulting manner, to wit:

“You have turned your entire property and organization over to us under your signature; so I have nothing to confer with you about or to refer to you.”

This answer of the movant/appellee’s presiding bishop made respondent/appellant apprehensive of the assistance movant/appellee had offered to provide to respondent/ appellant’s organization. These allegations and others in the petition were denied by movant/appellee in his answer, and movant/appellee further maintained that:

1. He has paid the annual rental of $600.00 in check and had given notice to produce the returned check at the trial.

2. Respondent/appellant was estopped from raising the issue of fraud because the draft statement of understanding was prepared by her own lawyer; further, she voluntarily signed the statement of understanding and was not forced or placed under duress to do so.

3. His right and obligation included the remodeling of the existing church edifice and to construct a modern three story multi-purpose high school building. Therefore the structure which the movant/appellee has constructed on the premises, being on the area agreed upon by both parties, conforms with the provision of the statement of understanding and in no way violated the rights of the respondent/appellant..

4. the Statement of understanding was for a period of 20 years certain with an optional period of 20 years and therefore it is definite and not indefinite as claimed by the petitioner.

Pleadings progressed to reply. After arguments pro et con on the issues of law, Judge Fulton W. Yancy, Jr., then presiding over the People’s Sixth Judicial Circuit Court by assignment during the June 1981 Term, dismissed the petition with costs against the respondent/appellant. Respondent/ appellant excepted to the ruling and announced an appeal to this Court.

Counsel for movant/appellee then filed a two count motion to dismiss the appeal which motion is quoted thus:

“1. Appellee submits that these proceedings were instituted and heard in the People’s Civil Law Court for the Sixth Judicial Circuit, Montserrado County, sitting in its June Term, A. D. 1981; that judgment was rendered in favour of respondent/appellee on July 7, 1981, and that from said judgment the petitioner/appellant announced an appeal to this Honourable Court. Copy of the judgment is hereto attached and marked Exhibit “A” to form a part of this motion.

“2. Appellee further submits that, in contravention of the law governing appeals to this Honourable Tribunal, the appellant served his notice of completion of appeal on the appellee on September 10, 1981, which is three days more than the legally prescribed sixty (60) days for the notice of the completion of the appeal and service thereof. A copy of the notice of completion of appeal, with the returns thereon is attached and marked Exhibit “B” to form a part of this motion. Civil Procedure Law, Rev. Code 1:51.9; Bedell v. Bedell, [1971] LRSC 64; 20 LLR 484(1970); Studer v. Tubman et al.[1975] LRSC 9; , 24 LLR 151 (1971). Counsel for respondent/appellant, having received copy of this motion, filed the below quoted notice of withdrawal instead of resisting to the motion: “THE CLERK, THE HONOURABLE PEOPLE’S SUPREME TRIBUNAL, TEMPLE OF JUSTICE, MONROVIA, LIBERIA

Dear Madam Clerk:

Upon this notice of withdrawal, appellant in the above entitled cause, files this NOTICE OF WITHDRAWAL because of newly discovered evidence which were not heard in the court below for this Honourable Supreme Tribunal to pass upon and reserving the right to refile.

You will also prepare the bill of costs to be paid and any other necessary fees. This shall constitute your official authority.”

During the arguments before us, respondent/appellant conceded the legal soundness of the motion to dismiss the appeal and then made the following record:

“At this stage, appellant’s counsel says that he concedes the motion filed by counsel for the dismissal and therefore prays court to discard the notice of withdrawal filed in the matter. And respectfully submits.”

Normally, we would have decided this case by judgment without opinion, but we wish to sternly admonish counsellors of this Bar of the ethics and dignity of our profession. We have not found any provision of our statute granting a party the right to withdraw an appeal in the appellate court because of newly discovered evidence with reservation to refile, when the appeal has been duly attacked by motion to dismiss. It is more honourable for a counsellor of this Bar to admit his errors and the legal soundness of his adversary’s contention, and advise his client accordingly, than to resort to baseless tactics.

A motion for newly discovered evidence is made in the trial court for the movant to either be relieved from final judgment, or for permission to introduce the newly discovered evidence by including same in the pleading to form part of the proceedings, or to grant a new trial. Civil Procedure Law, Rev. Code 1:9.11 and 1:41.7(2)(b). An action, a petition or a motion may be withdrawn with reservation to refile, but one cannot withdraw an appeal with reservation to refile it, because an appeal is “the complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the superior court is called upon to correct or reverse.” It is the removal of a cause from an inferior court to one of superior jurisdiction, for the purpose of obtaining a review and retrial.” BLACK’S LAW DICTIONARY 24 (4t h ed.). Under our practice and procedure, when an appeal is withdrawn from the appellate court, the appellate court has no other choice but to send a mandate to the lower court to enforce its judgment from which the appeal was taken, but not to allow appellant to refile. Therefore the notice of withdrawal as filed by appellant’s counsel has no support in our statute and rules of court and cannot claim our attention.

From inspection of the records certified to us in this case, it is revealed that the ruling of the trial judge dismissing the petition was rendered on the 7th day of July 1981 and the sheriff’s returns to the service of the notice of the completion of the appeal indicates that said notice was served on the movant/ appellee on September 16, 1981, a full three days more than the sixty days legally allowed by statute. Counsel for respondent/ appellant has not disputed the correctness of the sheriff’s returns, nor did he file any resistance to the motion to dismiss. That which is not denied is deemed admitted. Civil Procedure Law, Rev. Code 1:9.8(3).

It is the service of the notice of the completion of the appeal that confers jurisdiction on the Supreme Court over the cause and unless timely served, this Court will refuse jurisdiction. Bedell v. Bedell, [1971] LRSC 64; 20 LLR 484 (1971). The relevant statute on the dismissal of an appeal provides that “an appeal may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute, and by the appellate court after filing of the bill of exceptions for failure of the appellant to appear on the hearing of the appeal, to file an appeal bond, or to serve notice of the completion of the appeal as required by statute.” Civil Procedure Law, Rev. Code 1:51.16.

As much as we would like to probe into the merits and demerits of this case, we are precluded from doing so because of the failure of the respondent/appellant to superintend her appeal by pursuing the necessary safeguard provided by statute.

In view of the foregoing, the motion, being in keeping with statute, is hereby granted, the appeal dismissed, and the so called notice of withdrawal discarded. Costs of the proceedings are ruled against respondent/appellant. And it is so ordered.

Motion granted; appeal dismissed.