SELEKEE KAMARA, Respondent/Appellant, v. MUSA KAMARA et al., Movants/Appellees.

MOTION TO DISMISS APPEAL FROM JUDGMENT OF PROBATE DIVISION OF THE TENTH JUDICIAL CIRCUIT COURT, LOFA COUNTY

Heard: November 9, 1981. Decided: February 4, 1982.

1. The filing and service of the notice of the completion of the appeal concludes the last stage of the taking of the jurisdictional steps in the lower court.

2. It is the filing and service of the notice of the completion of the appeal that confers jurisdiction on the appellate court over the case.
3. An appeal bond which is not accompanied by an affidavit of sureties and certificate from the Ministry of Finance is defective and dismissible.

On the 10th Day of December, A.D. 1974, final judgment was rendered by the Probate Division of the Tenth Judicial Circuit Court, Lofa County. When the case was called for hearing, counsel for movants filed a motion, praying the Court for the dismissal of the appeal on ground that the appeal bond filed by respondent was unaccompanied by an affidavit of sureties and a certificate of the Treasury Department. Counsel for respondent, in resisting the motion, prayed the Supreme Court for the denial of the motion on ground that the movant should have challenged the bond in the lower court within three (3) days, following its filing, especially when the notice of filing the appeal bond was served on one of the movants/ appellees.

The Court sustained the motion, having found that while the notice of the completion of the appeal was filed and served on one of the appellees, there was no record that the appeal bond had been served. Moreover, the appeal bond in question was defective, in that it was unaccompanied by an affidavit of sureties and a certificate from an official of the Ministry of Finance. The Court noted that service of the notice of the completion of the appeal terminated the jurisdiction of the lower court and, hence, no challenge to the bond could have been made in the trial court. The motion was therefore granted and the appeal dismissed.

James D. Gordon appeared for the appellant. Joseph Williamson appeared for the appellees.

MR. JUSTICE MORRIS delivered the opinion of the Court.

A perusal of the records in this case show that it emanates from the Probate Division of the Tenth Judicial Circuit Court of Lofa County and is before us on a regular appeal. At the call of the case for hearing the counsel for appellees (movants), informed us that he had filed a motion to dismiss the appeal. We quote the three count motion and the resistence for the benefit of this opinion.

“1. Appellees say that the appeal bond of appellant is defective in that it does not meet the requirement of either cash, real property, valuables, or sureties’ bond as is required by statute controlling under the heading “Security for Bonds”. Appellees respectfully request Court to take judicial notice of the appeal bond filed by appellant, copy of which is hereto attached as Exhibit A.

2. Appellees further say that the appeal bond of appellant, on its face, seems to be a sureties’ bond with Peikai Trawalley and Mamadee Kamara as sureties; but said appeal bond is not accompanied by an affidavit of sureties and a certificate of the Treasury Department (Ministry of Finance) official, in utter violation of the statute and other laws extant, which renders said appeal bond defective and the appeal dismissible.

3. Appellees further say that appellant further violated the laws of appeal by not serving appellees with notice of filing of the said appeal bond, which would have enabled appellees to have made objections to said sureties prior to the trial court losing jurisdiction, this not having been done, this Honourable Court is without authority, but to dismiss said appeal in keeping with a long line of decisions and opinions handed down by this Court of last resort.”

Counsel for appellant (respondent), in resisting the above motion, maintained that:

“1. Because appellant says that final judgment in this case was rendered on the 10th of December, A. D. 1974, and an appeal bond filed on the 12th day of December, A.D. 1974. The notice of the filing of the appeal bond was served on Musa Kamara, one of the Appellees in these proceedings, on the 21st day of January 1975. The appellees should have filed exceptions to the appeal bond three (3) days after receipt of the filing in the trial court and obtained a ruling therefrom prior to the said court losing jurisdiction in the case. The appellees not having excepted to the bond in keeping with statute within three (3) days after receiving notice of the filing, the contention as contained in counts 1, 2 and 3 of the motion are without legal merits and should be overruled. Appellant requests court to take judicial notice of the records certified to it from the trial court with particular reference to the return of the sheriff on the back of the notice of the filing of the appeal bond.

2. And also because appellant says with further reference to counts 1, 2 and 3 of the motion, the appellees have waived their right to except to the appeal bond in this appellate forum for according to statute and opinion of the Honourable Supreme Court of Liberia, it is mandatory that a party wishing to except to a bond must do so within three (3) days after receipt of the notice of the filing in the trial court and obtained a ruling therefrom before the trial court loses jurisdiction. In the instant case, Musa Kamara one of the appellees in this case was served with the notice of the filing on the 21st day of January 1975. The exceptions should have been taken in the court below three days thereafter; this not having been done, the appellees are forever barred and precluded from asserting any right to excepting to the appeal bond.”

The relevant provisions of the Civil Procedure Law, which both parties are relying upon, are quoted hereunder:

§ 2.2 (3) Affidavit of sureties. The bond shall be accompanied by an affidavit of the sureties containing the following:

(a) A statement that one of them is the owner or that both combined are the owners of the real property offered as security;

(b) A description of the property sufficiently identified to establish the lien of the bond;

(d) A statement of the assessed value of each property offered.

(4) Certificate of Treasury Department official. The bond shall also be accompanied by a certificate of a duly authorized official of the Department of the Treasury that the property is owned by the surety or sureties claiming title to it in the affidavit and that it is of the assessed value therein stated, but such a certificate shall not be a prerequisite to approval by the judge.

§63.3. Approval by court; filing; service.

A bond shall become effective when approved by the court. Approval may be granted when the party furnishing the bond presents prima facie evidence to show that the sureties are qualified or that the security offered on the bond is adequate, genuine, and as represented by such party. An approved bond shall be filed with the clerk of the court in which the action is pending. A notice of the filing of the bond shall be served on the adverse party.

§63.5. Exception to surety; allowance where no exception taken.

1. Exceptions. A party may except to the sufficiency of a surety by written notice of exceptions served upon the adverse party within three days after receipt of the notice of filing of the bond. Exceptions deemed by the court to have been taken unnecessarily, or for vexation or delay, may upon notice, be set aside, with costs.

2. Allowance where no exception taken. Where no exception to sureties is taken within three days or where exceptions taken are set aside the bond is allowed.”

Counsel for respondent contended that final judgment having been rendered on the 10th day of December 1974, he filed his appeal bond on the 12th of December 1974 and the notice of the filing of the appeal bond was served on Musa Kamara, one of the movants in these proceedings, on the 21st day of January 1975, and therefore the movants have filed an exception to the insufficiency of the bond within three days prior to the trial court losing jurisdiction. Appellant requested court to take judicial notice of the records certified to the Court in this case with particular reference to the returns of the sheriff on the back of the notice of the filing of the appeal bond. Recourse to the records, we find that the appeal bond was dated December 12, 1974 and approved on December 16, 1974 by His Honour MacDonald Krakue, then presiding by assignment for the amount of $500.00. The document which was served and returned by the sheriff on the 21st of January 1975 is the notice of the completion of the appeal informing the appellees that appellant had appealed to the Honourable, the Supreme Court of Liberia, sitting in its March A.D. 1975 Term from the ruling of His Honour MacDonald Krakue, presiding judge. Nowhere in the records have we found any notice of the filing of the appeal bond served on the movants or co-movant Musa Kamara as contended by respondent’s counsel. The filing and service of the notice of completion of the appeal concludes the last stage of the taking of the jurisdictional steps in the trial court. It is also the filing and service of the notice of the completion of the appeal that confers jurisdiction on the appellate court over the case. Exceptions to the sureties can be taken by the appellee only so long as the trial court still has jurisdiction over the matter, and cannot be taken after all the steps for the completion of the appeal have been taken. Jarboe v. Jarboe, [1975] LRSC 30; 24 LLR 352 (1975); Civil Procedure Law, Rev. Code 1:51.4.

We have also carefully perused the records in this case but we have not discovered any affidavit of sureties nor a certificate from an official of the Ministry of Finance (Treasury Department) accompanying the appeal bond in this case as provided by the statute. An appeal bond which is not accompanied by an affidavit of sureties and certificate from the Ministry of Finance is defective and dismissible. Baley v. Nah, [1970] LRSC 35; 20 LLR 38 (1970); Jarboe v. Jarboe, [1975] LRSC 30; 24 LLR 352 (1975); Civil Procedure Law, Rev. Code 1:63.2 (3) & (4).

In view of the facts and laws cited, it is the opinion of this Court that the motion, being sound in law and in conformity with statute, is hereby granted and the appeal is dismissed with costs against the respondent. And it is so ordered.

Motion granted; appeal dismissed.

SELEKEE KAMARA, Respondent/Appellant, v. MUSA KAMARA et al., Movants/Appellees.