THE LIBERIA ELECTRICITY CORPORATION (LEC), by and thru its Managing Director, SAMUEL N. BURNETTE, JR., Appellant, v. JOSIAH TAMBA, Appellee.

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

Heard Mar 18-23, 1988. Decided July 29, 1988.

1. A bond upon which natural persons are sureties shall be secured by one or more pieces of real property located in the Republic, which shall have an assessed value equal to the total amount specified in the bond, exclusive of all encumbrances.

 

2. A bond must show the names of the sureties, the amount of the bond, a description of the real property offered as security, sufficiently identified to clearly establish the lien of the bond, the date, and the title of the action, proceeding, or estate.

 

3. A surety to a bond represented as freeholder and householder is required to satisfy the requirements listed for a valid bond so as to guarantee proper ans sufficient indemnification in favour of the appellee.

 

4. Where a surety is represented as a freeholder and householder and such surety fails to comply with the statutory provisions under section 63.2(2), the bond will be declared as being materially defective, unless otherwise shown to be legally sufficient.

 

5. Typographical errors which do not actually affect the legal rights of party litigants are no grounds for the dismissal of an appeal.

 

6. An insurance company may be surety to a bond if so authorized by law.

 

7. The law does not require that an insurance company, to be surety to a bond, be a freeholder.

 

The Liberia Electricity Corporation, appellant herein, against whom a judgment had been rendered by the Civil Law Court for the Sixth judicial Circuit, Montserrado County, appealed to the Supreme Court fo a review of the judgment. Upon the call of the case for hearing, the Court was informed that a motion to dismiss had been filed praying the Court to dismiss the appeal on the ground that the appeal bond was defective. The bases for the claim were (1) that the insurance company, surety to the bond, had represented that it was a freeholder when in fact it was not, (2) that the affidavit of surety attached to the appeal bond had failed to state that the surety was the owner of property, to describe the property, to give the total lien, unpaid taxes and other encumbrances against the property, and to give an assessed value of the property; and (3) that the affidavit of surety had stated that the surety would indemnify the appellant rather than the appellee.
The Supreme Court disagreed with the contentions of the appellee and denied the motion to dismiss the appeal. The court held that the articles of incorporation and the certificate of authorization clearly authorized the surety, Mutual Assurance of Africa, Inc., to stand as surety to a bond, and the Court noted that under the Civil Procedure Law of Liberia, it was bound to take judicial notice of the documents. The Court observed that while the statute did prescribe that a freeholder or householder had to meet certain requirements as to the indemnification of the appellee and value of a lien on the property, those requirements were not applicable to the Mutual Assurance of Africa, Inc. as the statute did not require that an insurance company situated in the position as Mutual Assurance of Africa, Inc. should meet the requirements of a freeholder or householder.

 

With regard to the affidavit of surety stating that the surety would indemnify the appellant rather than the appellee, the Court said that this was a mere typographical error and that the bond and supporting documents clearly showed that the bond was intended to indemnify the appellee rather than the appellant. The Court therefore denied the motion and ordered the case docketed for hearing on the merits.

 

J. Emmanuel R. Reny appeared for the movant/appellee. The Steele & Steele Law Firm appeared for the respondent/appellant.

 

MR. JUSTICE BELLEH delivered the opinion of the Court.

 

The Liberia Electricity Corporation, appellant herein, appealed from the judgment of the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, in an action of damages. The appellant having satisfied the legal requirements for placing the cause under the jurisdiction of this Court of denier resort, the case was assigned for our examination of the issues presented in the respective briefs of the counsels representing the parties concerned. However, when the case was called to be heard by this Bench, counsel for appellee brought to the attention of the Court that he had filed a motion to dismiss the appeal, which we herewith quote as follows:

 

“APPELLEE’S MOTION TO DISMISS
1. Appellee submits that defendant/appellant’s appeal bond is materially defective in that the bond indicates that Mutual Assurance of Africa, Inc. is its surety, and represents the surety thereof to be a freeholder and householder within the Republic of Liberia, and according to law, a bond to which freeholders and householders are sureties shall be accompanied by a revenue certificate indicating that said surety(ies) own the property offered as security, and that said property is of the assessed value stated in the affidavit of sureties, and shown on the face of the revenue certificate but Appellant has failed to attach a revenue certificate or a certificate of the Treasury official to the bond as mandatorily required by law, hence said failure renders said bond materially defective and an obvious legal ground for dismissal of the appeal. FOR RELIANCE: Civil Procedure Law, Rev. Code 1: 63.2(4).

 

2. And appellee further submits that the affidavit of surety attached to the bond is also materially defective, in that it does not meet the requirement of the law in that, the law provides that the bond shall be accompanied by an affidavit of sureties containing:

 

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;”

 

c. A statement of the total amount of the liens, unpaid taxes, and other encumbrances against each property offered; and

 

d. A statement of the assessed value of each property offered, but appellant’s affidavit of sureties does not contain any of the foregoing requirements; hence, the bond along with the appeal should be dismissed. FOR RELIANCE: Civil Procedure Law, Rev. Code 1: 63.2(3).

 

3. And appellee further submits the appellant’s affidavit of Sureties is defective in that it indemnifies the appellant instead of the appellee, when in keeping with law the appellant must indemnify the appellee from all costs or injury arising from the appeal, if unsuccessful and that he will comply with the judgment of the appellate Court…. yet, appellant has failed to comply with the controlling law. FOR RELIANCE: Civil Procedure Law, Rev. Code 1: 51.8.

 

4. And appellee further submits that appellant has failed to show by documentary evidence or otherwise that Mutual Assurance of Africa, Inc. is authorized to execute surety bond as mandatorily required by law, nor has the said Mutual Assurance of Africa, Inc. executed any bond on behalf of appellant as the law requires, hence, the appeal should be dismissed. Appellee contends that the annexation of an insurance certificate to its defective bond is not legal and does it render the bond legally valid. Appellee submits that the insurance certificate attached to appellant’s bond merely gives Mutual Assurance of Africa, Inc. … authorization to engage in the insurance business… and not to execute bonds. FOR RELIANCE: Civil Procedure Law, Rev. Code 1: 63.2.

 

WHEREFORE, appellee prays that the bond being materially defective, the appeal should be dismissed, appellant be ruled to costs and appellee be granted such other relief as justice and right demand.”

 

In response to the motion to dismiss, appellant filed a five count resistance. For the benefit of this opinion, we hereunder quote verbatim appellant’s resistance:

 

“APPELLANT’S RESISTANCE
1. BECAUSE appellant says that count 1 of the motion is far-fetched and has no legal tenability in law; in that, Mutual Assurance of Africa, Inc. is an insurance company authorized to carry out insurance business in keeping with the laws of Liberia, as can be seen from appellant’s exhibit “A” which is a certificate issued said Mutual Assurance of Africa, Inc., and its authority to post a bond like any other insurance company, for and on behalf of a party cannot be impaired. Appellant submits that the bond as posted having the Mutual Assurance of Africa, Inc. as surety, is not defective under the law in view of the fact that said Company is legally qualified in keeping with the statute controlling to do business in Liberia. Appellant says to become a surety is in the context of doing business.

 

2. AND BECAUSE appellant says further to count 1 of the motion that the terms “freeholder” and “householder” have been interchangeably used with meaning in common; in that, a householder as defined by law is an occupier or inhabitant of a house as its head. The Mutual Assurance of Africa, Inc. has a family and that family has a location at a given place which is a house; consequently, Mutual Assurance of Africa, Inc. is a householder and its articles of incorporation filed with the Ministry of Foreign Affairs serves as a sufficient guarantee for revenue certificate as well as for property valuation.

 

3. AND ALSO further to count 1, appellant says that the purpose of section 63.2, Civil Procedure Law, Rev. Code 1, is not for legal technicality but for the purpose of identifying a surety to a bond and to be satisfied that such surety is and can be available to be served with foreclosure proceeding should such a bond become foreclosed.

 

4. AND COUNT 3 of the motion is a mere legal technicality and/or harmless error; in that the purpose of a bond is to indemnify an appellee and not the appellant. For what would be the rationale for a party who files a bond to indemnify itself when sue a party is the principal to the bond. Appellant submits that the bond is filed with the view and intent for appellee to be indemnified from all losses, inconveniences or other injuries appellee may sustain as a consequence of the case. Count 3 of the motion is therefore without legal reasoning and same should be overruled and with it the motion dismissed.

 

5. AND appellant says that count 4 of the motion is argumentative and should be overruled, and with it the entire motion be denied. Appellant submits that Mutual Assurance of Africa, Inc. has on several occasions and for several persons become surety which of course is a matter of evidence and this Honourable Forum does not hear evidence. Appellee, by its count 4, is attempting for this Court of last resort to hear evidence which is an impropriety to the rule of law and a contravention of the organic law of Liberia by appellee “…nor has the said Mutual Assurance of Africa, Inc. executed any bond on behalf of appellant as the law requires…” Appellant submits that by that statement appellee is introducing a strange (if not novel) practice in the legal system of our courts, by intending for this Court to hear evidence during a hearing. The said count should therefore be overruled and because of this, the entire motion denied.

 

WHEREFORE, and in view of the foregoing, appellant prays that the motion be denied and the case ordered proceeded with for the promotion of transparent justice to all concerned.”

 

Counts one and two of the appellee’s motion attack appellants appeal bond and the affidavit of surety for being materially defective, in that the bond indicates that Mutual Assurance of Africa, Inc, is its surety and represents the said surety thereof to be a freeholder and householder within the Republic of Liberia. Appellee argued that according to law, a bond to which freeholders and householders are sureties shall be accompanied by a revenue certificate indicating that the said sureties own the property offered as security, and that said property is of the assessed value stated in the affidavit of surety, all of which must be shown on the face of the revenue certificate. But appellant has failed to attach a revenue certificate or a certificate of the Treasury official to the bond as mandatorily required by law. Appellee has cited the Civil Procedure Law, Rev. Code 1: 63.2(4) for reliance.

 

In count one of the resistance, appellant seemed to concede the legal soundness of the contention raised in count one of the motion to dismiss the appeal with respect to the legal requirements for sureties to a bond who are freeholders and householders. However, appellant contended that Mutual Insurance of Africa, Inc. is an insurance company authorized to carry out insurance business in keeping with the laws of Liberia as evidenced by its certificate of authorization issued by the Government of Liberia marked, exhibit “A”, and attached to appellant’s appeal bond. Appellant further maintained that Mutual assurance of Africa, Inc. is authorized under the laws of Liberia to post bonds like any other insurance company for and on behalf of any party. Therefore, it said, the bond posted having with Mutual Assurance of Africa, Inc. as surety, is not defective.

 

The Civil Procedure Law, Rev. Code 1: 63.2(2) provides, under LIEN ON REAL PROPERTY AS SECURITY, as follows:

 

“A bond upon which natural persons are sureties shall be secured by one or more pieces of real property located in the Republic, which shall have an assessed value equal to the total amount specified in the bond, exclusive of all encumbrances. Such a bond shall create a lien on the real property when the party in whose favor the bond is given has it recorded in the docket for surety bond liens in the office of the clerk of the circuit court in the county where the property is located. Each bond shall be recorded therein by an entry showing the following:

 

(a) The names of the sureties in alphabetical order;

 

(b) The amount of the bond;

 

(c) A description of the real property offered as security, sufficiently identified to clearly establish the lien of the bond;

 

(d) The date of such recording; and.

 

(e) The title of the action, proceeding, or estate.”

 

A freeholder is defined as “one having title to a realty either of inheritance or for life; either legal or equitable title. A person who possesses a freehold estate; i.e. the owner of freehold.” BLACK’S LAW DICTIONARY 398.

 

Our Civil Procedure Law, Rev. Code 1: 63.2(2), provides that a surety to a bond represented as a freeholder and householder is required to satisfy the requirements listed thereunder as to guarantee proper and sufficient indemnification in favor of the appellee. Where a surety is represented as a freeholder and householder and such surety fails to comply with the statutory provisions under section 63.2(2), the bond must be declared to be materially defective, unless otherwise shown to be legally sufficient.

 

In count three of the motion to dismiss the appeal, appellant submitted that appellant’s affidavit of surety was defective in that it indemnified the appellant instead of the appellee from all costs or injury arising from the appeal, if unsuccessful, and that it will comply with the judgment of the appellate court…” Appellee therefore asserted that the appellant had failed to comply with the controlling law. Appellee relied on the Civil Procedure Law, Rev. Code 1: 51.8.

 

For the benefit of this opinion, we hereunder quote verbatim the last paragraph on sheet 1 of appellant’s appeal bond as well as paragraph (b) of appellant’s surety affidavit. The last paragraph of appellant’s appeal bond reads:

 

“The condition of this bond is that the appellant will indemnify the appellee from all costs or injuries arising from the appeal, if unsuccessful, and that it will comply with the judgment of the appellate court or of any court to which the case is removed.

 

Paragraph “B” of the surety affidavit reads:

 

“That in view of their authorization as per the attached certificate, they will indemnify Liberia Electricity Corporation, the within named defendant/appellant in the amount of $500,000.00 (FIVE HUNDRED THOUSAND DOLLARS) out of monies and properties set aside and available as stated hereinabove, for and in respect of all costs and injuries which the plaintiff/appellee might suffer by reason of an appeal taken by defendant/appellant against the plaintiff/appellee aforesaid.”

 

A careful perusal of the above quoted portions of both appellant’ appeal bond as will as the surety affidavit accompanying the appeal bond, revealed that the appellant and its surety obligated themselves to indemnify the appellee in keeping with our practice and procedure. The error was therefore one of a typo-graphical nature. Under our law, typographical errors which do not actually affect the legal rights of party litigants are no grounds for dismissal of an appeal.

 

Section 25.1 of the Civil Procedure Law, Rev. Code 1 provides:

 

“1. Public Law of Liberia. Every court of the Republic of Liberia shall without request tike judicial notice of the Constitution and of the Republic statutes and common law of the Republic.

 

2. Private law of Liberia and foreign law. Every court may take judicial notice without request of private acts and resolutions of the Liberian Legislature; ordinances and regulations of officers, agencies, or governmental subdivisions of Liberia; and the laws of foreign countries or their political subdivisions. If the court does not take judicial notice of any such law, it shall be an issue to be decided by the court, but the party relying on such law shall give each adverse party notice of his intention to rely on it. Notice shall be given in his pleadings, or at or before the pretrial conference, but at least ten days before trial when there is no pretrial conference; but the court may require other notice. Whether a law is judicially noticed or proof is taken, every matter specified in this paragraph shall be determined by the judge or referee and included with his conclusions of law or charged to the jury. Such findings or charge shall be subject to review on appeal as a finding or charge on a matter of law.” Civil Procedure Law, Rev. Code 1: 25.1.

 

In the light of the above provisions of our Civil Procedure Law, the court was compelled to take judicial notice of the articles of incorporation of the Mutual Assurance of Africa, Inc. dated 15th October, A. D.1986, filed with the Ministry of Foreign Affairs. It was obligated to observe from clause 1 of the said articles of incorporation that the said Mutual Assurance of Africa, Inc. was authorized: “To become surety in and execute any bail bond or guarantee in lieu of bail or any other guarantee for what purpose the same may be required. To execute fidelity and surety bonds within the Republic of Liberia in accordance with the Liberian Code of Laws Revised, Title 1, Chapter 63, Bonds and Securities, section 63.2, pages 266-267, ‘Legally Qualified Sureties’ to serve as security in garnishment of asset belonging to borrowers.”

 

Section 63.2, sub- paragraph 1 of the Civil Procedure Law, with respect to who may be sureties, provides: “Unless the court orders otherwise, a surety to a bond shall be either two natural persons who fulfil the requirements of this Section or an insurance company authorized to execute surety bond within the Republic.” Civil Procedure Law, Rev. Code 1: 63.2(1).

 

The statutory provisions under sections 63.2, sub- paragraph 1, quoted supra, do not specifically point out other requirements which must be met to qualify an insurance company to become surety to a bond; rather, the statute provides only that the insurance company be authorized by law. There is no showing that such insurance company should be freeholder. In the instant case, the articles of incorporation of the Mutual Assurance of Africa, Inc. was duly approved by the Ministry of Foreign Affairs of the Republic of Liberia and the certificate of authorization to carry on insurance business was also issued by the Ministry of Commerce of the Republic of Liberia. Hence, the Court is convinced that the Mutual Assurance of Africa, Inc. was duly authorized under our laws to execute surety bonds within the Republic of Liberia. Under these circumstances, the Court is of the opinion that the appeal bond executed by the Mutual Assurance of Africa, Inc. on behalf of the Liberia Electricity Corporation should be and the same is hereby declared valid to all intents and purposes.

 

WHEREFORE and in view of the foregoing, the appellee’s motion to dismiss appellant’s appeal is hereby denied and the trial of this case is hereby ordered proceeded with on its merits. Costs to abide final determination of the case. And it is hereby so ordered.

 

Motion denied.