AUGUSTINE JAPPEH, Informant, v. ALPHA and AIDA THIAN, Respondents.

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

Heard: March 24, 1988. Decided: July 29, 1988.

1. Appeal in the Liberian jurisdiction is controlled by statutory provisions which are mandatory and which must be strictly followed at all times.

2. The steps required for the completion of an appeal are (a) the announcement of the taking of an appeal, (b) the filing of an approved bill of exceptions, (c) the filing of an approved appeal bond, and (d) the filing and service of a notice of completion of appeal. A failure to comply with any of these requirements within the time allowed by statute shall be ground for dismissal of the appeal.

3. The statute also provides for the dismissal of an appeal by the appellate court upon the failure of the appellant to appear for hearing of the appeal.

4. One of the main grounds for the dismissal of an appeal is the lack of jurisdiction on the part of the appellate court. Completion of the prerequisites for perfection of an appeal is necessary to give the Supreme Court jurisdiction over the subject matter and the parties in an appeal; and jurisdictional requirements cannot be waived even by the appellee in the absence of statutory authorization. This being the case, the Court must of necessity, and even upon its own motion, always consider the question of its jurisdiction primary over any issue brought before it, since it is bound to take notice of the limits of its authority.

5. The Court will not do for parties that which they ought to do for themselves.

6. A bill of information is resorted to only in answer to matters of contempt of the Supreme Court, in requests for the recusal of a Justice or Justices of the Supreme Court from hearing a particular matter before the Court, or to bring to the attention of the Court irregularities or failure in the execution of an order emanating from the Supreme Court to some lower court or other lower authority.

The appellant was sued in ejectment in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County. Although duly served with summons and the complaint, the appellant failed to file an answer. Almost one year thereafter, the appellee, having obtained a clerk’s certificate regarding the non-filing of an answer by the appellant, applied to the court for a judgment by default. The application was granted, a default judgment entered and appellee permitted to present her case. Following the presentation of evidence by the appellant, the jury returned a verdict of liable against the appellant and award damages of five hundred dollars against him. Thereupon, but prior to the entry of final judgment, appellant effected a change of counsel. However, neither the appellant nor his new counsel was present when final judgment was rendered by the trial court and the appellant ordered ejected from the disputed premises. The court nevertheless designated counsel to take the judgment, except thereto, and announce an appeal on behalf of the appellant.
Thereafter, an approved bill of exceptions was filed, but no further steps were taken by the appellant to perfect his appeal. Instead, after more than two months, appellant filed in the trial court a motion for enlargement of time to perfect his appeal. Whereupon, appellee obtained the necessary clerk certificates stating that no approved appeal bond and notice of completion of appeal had been filed and served. A motion to dismiss the appeal was the filed, with the certificates as exhibits to support the contentions of the motion.

In response to the motion, the appellant filed a resistance and a bill of information. In the resistance, the appellant stated that the motion for the enlargement of time was still pending before the trial court and that he had expended more than $80,000.00 in constructing apartments on the premises. He prayed that the motion to dismiss be denied as he had not had his day in the trial court, and that his failure to complete his appeal was excusable. In the bill of information, the appellant requested the Supreme Court to remand the case so that he could be accorded his day in the trial court.

The Supreme Court consolidated the motion and the information, denied the information, granted the motion to dismiss and dismissed the appeal. The Court noted that the statute clearly stated the prerequisites for perfecting an appeal, the noncompliance of which rendered the appeal dismissible.

The Court observed that the appellant had not met two of the requirements of the statute, i.e. the filing of an approved appeal bond and the filing and service of a notice of completion of appeal. The Court characterized the failure of the appellant to comply with the statutory requirements governing appeals as an inexcusable neglect. It opined that in the absence of a fulfillment of the mandatory statutory requirements, it (the Court) was without jurisdiction of the persons of the parties and the subject matter of the case.

Regarding the bill of information, the Court ruled that the bill was inappropriate and did not constitute any of the basis upon which the same could be entertained. The Court noted that a bill of information is resorted to only in answer to matters of contempt of court, recusal of Justices of the Court from hearing a particular matter before it, or to bring to the attention of the Court irregularities or failure in the execution of an order emanating from the Supreme Court to a lower court or other lower authority. None of these existed in the instant case, the Court observed. Moreover, the Court noted that for the same reasons for which the appeal was dismissed, the information was also not properly before it. Accordingly, the Court ordered the information dismissed.

J. Emmanuel Wureh appeared for the appellant. M Fahnbulleh Jones appeared for the appellees.

MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.
The party litigants in this cause of action had each disputed the claims of the ether to the ownership of a certain parcel of land located in Paynesville, Montserrado County.

According to the records transmitted to this Court, respondents’ counsel wrote informant on November 7, 1986, inviting him to a conference in a bid to amicably resolve the said matter without court intervention, but the latter refused to cooperate in the matter. Therefore, on December 17, 1986, respondents filed an action of ejectment in the Sixth Judicial Circuit Court, Montserrado County, praying the ejectment of the informant from the aforementioned property, and asking for the return of possession of the property to respondents and to award respondents general damages.

On December 30, 1986, the respondents obtained a certificate from the clerk of court indicating that up to that date, the informant had not filed an answer to the complaint, even though the sheriffs returns, dated December 19, 1986, confirmed that he had served both the writ of summons and the complaint on the informant on that date. On November 11, 1987, almost one year after suing and obtaining the said clerk’s certificate in this matter, respondents counsel applied to the court to have informant called thrice at the door of the courthouse. When he did not answer, a judgment by default was rendered against him and a plea of not liable was entered in his favor. A regular panel of jurors was obtained to perfect the imperfect judgment by the production of evidence for the respondents. After the presentation of evidence and following the instructions of the court, the jury retired to its room deliberation and later returned with a unanimous verdict of liable against the informant. The jury also awarded general damages in the amount of $500.00 against the informant for wrongfully depriving the respondents of their property. The jury also held the informant liable to pay the costs of the proceedings.

Shortly thereafter, on November 20, 1987, informant filed a notice for a change of counsel from the then Counsellor Robert G. W. Azango, to Counsellor J. Emmanuel Wureh, the present counsel. Apart from the sheriffs returns indicating service of the summons and complaint on him; there is nothing in the records before us to show that the informant has in any way acted in defence of the suit brought against him.

On November 27, 1987, one week after the filing of the notice of change of counsel, the lower court rendered its final judgment in the matter, affirming the verdict of the jury and placing a writ of possession in the hands of the sheriff to evict the informant from the premises and ordering respondents restored to possession of the disputed land as its owners. Since the new counsel for informant was also absent at the rendition of this final judgment, the court rightfully designated Counsellor Patrick W. Sanyene to receive the judgment for and on behalf of counsel for the said informant. The designated counsel thereupon excepted to the judgment and announced an appeal to this Court of last resort. The trial court noted the exceptions and granted the appeal.

The new counsel for appellant thereafter filed an approved bill of exceptions on December 7, 1987. Rather surprisingly, however, informant decided to file before the lower court on February 12, 1988, a motion for enlargement of time to perfect his appeal, instead of proceeding to meet the other requirements for completing the said appeal. On the other hand, the respondents obtained another certificate from the clerk of court stating that to the date of the issuance of the certificate, informant had not filed an approved appeal bond nor a notice of completion of appeal as the law requires for appeals to the Supreme Court.

Based upon the latter certificate of the clerk of the lower court, respondents filed a motion on February 18, 1988, before this Court praying for the dismissal of the appeal earlier announced to this Court by the informant. The motion was resisted by the informant on February 29, 1988.

In the said motion to dismiss, consisting of two counts, counsel for respondents contended that even though the informant had filed an approved bill of exceptions, no approved appeal bond and notice of the completion of the appeal had been filed as required by law, as evidenced by the clerk’s certificate; that the aforementioned documents should have been filed within sixty (60) days from the date of the final judgment, which fell on January 27, 1988; and that since the statutory requirements had not been met, the appeal should be dismissed in accordance with the several opinions of this Court and the controlling statute. Thereafter, on February 26, 1988, counsel for respondents obtained yet another certificate from the clerk of the trial court to the effect that the sheriffs’ returns of February 12, 1988, indicated that informant was served with a notice to tax the records before transmission of the same to this Court, but that he refused to comply with the notice.

On February 29, 1988, informant’s counsel filed a nine-count resistance to the motion to dismiss stating, among other things, that his motion for enlargement of time before the trial court had not been disposed of that no notice was served on him to tax the records; that the sheriffs returns were false; that the said sheriff should be investigated by this Court and punished accordingly; that the motion to dismiss should be denied since the informant did not have his day in the court below, especially since the matter involved land which is so valuable; that respondents counsel’s refusal to sign for the motion for enlargement of time for the appeal process was done in bad faith; and that appellant’s failure to complete his appeal in time was excusable, as he had stated in the motion for enlargement of time, noting and that it had been very difficult to acquire a copy of his answer from informant’s former counsel, Counsellor Robert G. W. Azango, who had been elevated to this Court as an Associate Justice. This fact, he said, prevented him from completing his appeal on time.

Notwithstanding, informant’s counsel was not satisfied with the foregoing resistance to appellees’ motion to dismiss his appeal, and therefore, on March 16, 1988, filed a two-count bill of information before this Court, contending that appellant/ informant had spent over $80,000.00 to build a three-apartment edifice on the disputed land, that in view of the fact that appellant had not had his day in the court below and given the level of development made on the disputed land, the case be sent back to the court below to allow him his day in court.

In their returns to the information, counsel for respondents contended that the information was highly improper since information can only be filed in matters of contempt, to have a Justice or Justices recused, or in connection with the execution of a mandate or order of this Court in the court below, rather than to have same serve as a resistance to a motion to dismiss an appeal. The respondents further averred that informant had his day in court but that he had failed to file answer, that informant had filed his approved bill of exceptions on December 7, 1987, but had failed to proceed further in perfecting his appeal to this Court; and that the bill of information should be dismissed to allow the motion to dismiss to be heard and disposed of on time.

From the foregoing entangled legal battles and proceedings, the records and their arguments before us, we are satisfied that only two issues are relevant for our ruling in this case:

1. Whether or not this appeal is legally before this Court and deserves to be heard or allowed; and

2. Whether or not this Court has jurisdiction to hear the bill of information.

It should be pointed out here that the two sides to this conflict had earlier agreed to consolidate the issues in the motion to dismiss and the bill of information in accordance with the law which allows for such consolidation by the Court, either sua sponte by the Court or at the request of the party litigants themselves, as in this case. Civil Procedure Law, Rev. Code 1:6.3.

Starting with the first issue before us, we have to decide whether or not informant is properly before this Court for hearing, or as contended by the respondents, whether or not the informant has failed to meet the requirement for appeal and therefore the appeal should be dismissed.

Appeal in this jurisdiction is controlled by statutory provisions which are mandatory and which must be strictly followed at all times. The controlling statute states:

“The following acts shall be necessary for the completion if an appeal:

(a) Announcement of the taking 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.

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

“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.” Ibid., 51.16.

This Court, in its past opinions, has reaffirmed and reiterated the need for compliance with the requirements of the statute outlined above, and it has always urged party-litigants to ensure compliance with the said statute as only in this manner can the Supreme Court acquire jurisdiction over both the subject-matter and the parties to the appeal.

In K Rasamny Bros. v. Brunet, [1972] LRSC 41; 21 LLR 271 (1972), this Court held that:

“One of the main grounds for dismissal of an appeal is the lack of jurisdiction on the part of the court. Completion of the prerequisites for perfection of an appeal is necessary to give the Supreme Court jurisdiction over the subject matter and the parties in an appeal; and jurisdictional requirements cannot be waived even by the appellee in the absence of statutory authorization. This being so, this Court must of necessity, and if need be, upon its own motion, always consider the question of its jurisdiction primary over any issue brought before it, since it is bound to take notice of the limits of its authority”. (Citing 14 AM. JUR, Courts, § 168).

Also in the case ofMarh v. Sinoe, 27 LLR (1978), this Court, relying on the foregoing citation above, held that where the appellant has failed to file an approved appeal bond and has not served and filed a notice of completion of the appeal, the appeal must be dismissed. The Court noted that the two acts neglected by the appellant were required to confer jurisdiction upon it.

In the earlier case of Karpeh and Nagbe v. Fisher, [1974] LRSC 28; 23 LLR 91 (1974), this Court held that an appeal will be dismissed on motion when, as in this case, only a bill of exceptions has been filed and no other requirements of the appellate process are complied with by the appellants.

Mr. Justice Robert G. W. Azango, speaking for the Court at that time, concluded in the opinion that “having carefully considered the records in this case and the points raised in the motion to dismiss the appeal, we are of the opinion that the failure to file an appeal bond and issue and serve a notice of completion of the appeal are grounds for granting the motion, and, therefore, the appeal is dismissed with costs against appellant.”

Again, in Vamply of Liberia v. Manning, [1976] LRSC 41; 25 LLR 188 (1976), this Court held that it will not do for parties what they ought to do for themselves, and that failure to timely file an approved bill of exceptions, to post an appeal bond, or to serve a notice of completion of appeal, are all grounds for dismissal of the appeal.

From the foregoing, we are convinced that the appeal in issue should be dismissed for the inexcusable neglect exhibited by both the appellant and his counsels since the inception of this matter, but especially for their failure to do those things that would have conferred jurisdiction on this Court to handle this appeal. As long as no approved appeal bond has been filed and no notice of completion of appeal executed, we have been denied a say in the matter and over the parties to the attempted appeal. We believe that since December 7, 1987, when the bill of exceptions was approved and filed, appellant had ample time within which to file an approved appeal bond and a notice of completion of appeal.

Next, we proceed to the second and final issue, i.e. whether or not this Court has jurisdiction over the bill of information filed by counsel for appellant in support of his plea for a remand of this case for a hearing in the court below, since, according to appellant, he did not have his day in court and he had expanded vast sums of money, well in excess of $80,000.00, to develop the said disputed land with a three-apartment building. The bill of information was filed in support of appellant/informant’s contention that the motion to dismiss his appeal should be ignored and the matter remanded. However, in resolving the foregoing issue, that is, whether there was an appeal properly before us, we maintained that there was none since we had no jurisdiction in the matter. Similarly, the bill of information filed before us in connection with the same motion is outside our jurisdiction and therefore cannot be entertained.

What is more interesting about the bill of information is that it was filed in a novel situation, in that ordinarily a bill of information is resorted to only in answer to matters of contempt of this Court, in requests for the recusal of a Justice or Justices of this Court from hearing a particular matter before it, or more popularly, to bring to the attention of this Court irregularities or failure in the execution of an order emanating from this Court to some lower court or to some other lower authority. Massaquoi-Fahnbulleh v. Urey and Massaquoi, [1977] LRSC 5; 25 LLR 432 (1977); Barbour-Tarpeh v. Dennis, [1977] LRSC 11; 25 LLR 468 (1977); Raymond International (Liberia) Ltd., v. Dennis, [1976] LRSC 35; 25 LLR 131 (1976).

Thus, aside from what we have held on the issue concerning the dismissal of appeals, the bill of information herein is still dismissible since it has no concern with a matter cognizable before this Court and does not grow out of a previous act or out of a current one of which it is a part. informant wishes to bring to the attention of this Court at this time by a bill of information should have been done by way of the appeal which he neglected to perfect.

Therefore, in view of the foregoing, the appeal is herewith dismissed, along with the bill of information. The trial court is hereby ordered to resume jurisdiction over this matter and enforce its judgment, with costs against the informant. And it is hereby so ordered.

Appeal dismissed and information denied.