LAMCO J. V. OPERATING COMPANY, represented by its Manager, Appellant/Defendant, v. RILEY FLEMING, Appellee/Plaintiff.

Heard: May 20, 1985. Decided: June 20, 1985.

1. The Supreme Court will dismiss an appeal in a case filed in contravention of the statutory prerequisites.
2. Where an applicant’s failure to complete the statutory prerequisites for perfection of an appeal is due to neglect or recalcitrance of a judge or a clerk of court, the appellant will not be penalized if he has taken all the appropriate legal measures to avert the dismissal of his appeal, including timely application for compulsory process or mandate from the Chambers of the Supreme Court.
3. Where the appellant has failed to take measures against a recalcitrant judge or clerk of court, his failure to perfect an appeal will not be excused by reason of the neglect or recalcitrance of the judge or clerk, and the appeal will in such case be dismissed.
4. An appellant has a primary duty to superintendent or oversee the perfection of his appeal.
5. After the filing of the bill of exceptions and the appeal bond, the clerk of court, on application of the appellant, shall issue a notice of completion of appeal, a copy of which must be served on the appellee and the original filed in the office of the clerk of court. A failure to meet these prerequisites deprives the Supreme Court of jurisdiction over the case and renders the appeal dismissible.

Appellee, Riley Fleming, instituted an action of damages against the appellant, Lamco J. V. Operating Company, alleg-ing that appellant had negligently parked its fork lift in the middle of the street in a curve; that the forklift was not readily noticeable; and that appellee had driven his car into the said fork lift, causing bodily injuries to himself and damage to his car. Appellee therefore demanded $3,418.00 in special dama-ges as well as general damages.

A verdict was returned in favor of appellee and judgment was rendered thereon confirming the same. Appellant there-upon noted exceptions and announced an appeal to the Supreme Court. The appeal bond and the notice of completion of appeal were however filed beyond the sixty days allowed by statute. Consequently, appellee filed a motion to dismiss the appeal.
In countering the motion, the appellant argued that its failure to file the required documents within the statutory time was due to the negligence and recalcitrance of the trial judge and the clerk of the trial court.
The Supreme Court granted the motion and dismissed the appeal. The Court opined that while ordinarily it would not penalize an appellant who had failed to comply with the statutory requirements where the failure was due to the neglect or recalcitrance of the judge or the clerk of the trial court, the appellant had to demonstrate that it took all the appropriate legal measures, as a timely application for compulsory process or mandate from the Chambers Justice of the Supreme Court, to advert the dismissal of his appeal. The Court observed that these steps had not been taken by the appellant and therefore the failure to perfect its appeal could not be excused by reason of the neglect or recalcitrance of the judge or clerk of court. The appellant, the Court said, had the primary duty to oversee the perfection of its appeal, and that it had failed to exercise that duty. The Court therefore granted the motion and dismissed the appeal; and finding counsel for the appellant to be negligent, fined him $300.00.

David A. B. Jallah and E. Winfred Smallwood of the Cooper and Togbah Law Firm appeared for the appellant/ respondent. J. Emmanuel R. Berry appeared for appellee/ movant.

MR. JUSTICE JANGABA delivered the opinion of the Court.

This appeal arose out of a case between Mr. Riley Fleming, of the City of Buchanan, Grand Bassa County and the Lamco J. V. Operating Company, in which Mr. Fleming, appellee herein, sued the defendant/appellant for negligently parking its fork lift in the middle of the street in a curve, which was not imme-diately noticeable and into which the plaintiff/appellee drove his car, causing both property damage to his car and personal bodily injuries to himself and other occupants of his car. He therefore sued, claiming special damages against the defend-ant/appellant in the sum of $3,418,00. The lower court duly heard the case and granted the prayer of the plaintiff/appellee. The defendant noted exceptions and announced an appeal to this Honourable Court. The records show that it was during the processing of his appeal that there was laxity on the part of the appellant. Thus, the issue at bar is:

Whether or not the appellant should be penalized for not completing the statutory prerequisites for perfecting his appeal?
The leading case on this issue is Sauid v. Gebara, [1964] LRSC 18; 15 LLR 598 (1964), which provides that the Supreme Court must dismiss the appeal of cases filed in contravention of the statutory prerequisites. In that case, Chief Justice A. Dashward Wilson, speaking for the court, stated the law on a set of facts analogous to the facts in this case. He stated that where an appellant’s failure to complete the statutory prerequisites for perfection of an appeal is due to neglect or recalcitrance of a judge or a clerk of court, the appellant will not be penalized if he has taken all appropriate legal measures to avert the dismissal of his appeal, including timely application for compulsory process or mandate from the Chambers of the Supreme Court to the negligent or recalcitrant judge or clerk of court. The court explained however, that where the appellant had failed to take such measures, his failure to perfect the appeal will not be excused by reason of the neglect or recalcitrance of the judge or clerk, and the appeal will be dismissed. A similar opinion was also expressed in the case Cole v. Cole, [1964] LRSC 20; 15 LLR 608(1964).
A review of the records reveal that after he paid the fees to the clerk of the lower court, counsel for the appellant became a bit too relaxed. The primary duty was upon appellant to oversee the perfection of his appeal, and since he failed to do so, this Court finds him negligent.

As a result of this negligence, counsel for the appellee filed this motion to dismiss the appeal. The motion stated that in keeping with the defendant/appellant’s announcement of appeal, its appeal bond and notice of completion of appeal should have been filed on or before the 8th day of February, 1984, so as to give this Honourable Court jurisdiction over the subject matter. The movant cited the relevant law which provides that after the filing of the bill of exceptions and the filing of the appeal bond, the clerk of the trial court, on appli-cation of the appellant, shall issue a notice of the completion of the appeal, copy of which shall be served by the appellant on the appellee. The original of such notice shall be filed in the office of the clerk of the trial court. For reliance, see Rev. Code 1 :51.7, 51.8 and 51.9. A fulfilment of these prerequisites would have perfected the appeal and consequently given this Court jurisdiction over the matter; however this was not done. We are of the opinion that counsel for appellant should be penalized for this negligence. We therefore impose a fine of $300.00 to be paid within 48 hours from the date of the rendition of this judgment.
In view of the facts stated above, and the law controlling, this Court has no recourse but to grant the prayers of the appellee. The motion therefore to dismiss the appeal of the appellant is hereby granted. And it is hereby so ordered.

Motion granted; appeal dismissed.