JAWA E. MASSAQUOI, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

MOTION TO DISMISS APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 18, 1960. Decided December 16, 1960. 1. Failure to address a notice of appeal to the appellee in a criminal case is not a ground for dismissal of the appeal when the notice was duly served and returned within the statutorily prescribed period of time. 2. A criminal appeal is dismissable only as provided by statute. 1956 Code, tit. 8, � 380. On appeal from a judgment of conviction of embezzlement, appellee moved to dismiss the appeal. The motion was denied. Michael M. Johnson for appellant. Assistant Attorney General J Dossen Richards for appellee. MR. Court. JUSTICE MITCHELL delivered the opinion of the Jawa E. Massaquoi, defendant, was indicted by the grand jury attending at the August, 1958, term of the Circuit Court of the First Judicial Circuit, Criminal Assizes, Montserrado County, for the infamous crime of embezzlement. According to the records filed in the case, he was tried on the said charge during the August, 1959, term of the aforesaid court, and there convicted. Being dissatisfied with the judgment rendered against him, he noted his exceptions to the verdict of the petty jury, the judgment of the trial court and other proceedings during the trial, and has come forward before this appellate tribunal on a regular appeal for review on a bill of exceptions embracing 13 counts. Assignment for the hearing of the case having been made, appellee’s counsel filed a motion to dismiss the ap- LIBERIAN LAW REPORTS 213 peal, which motion is herein laid word for word as follows : “Now comes J. Dossen Richards, Assistant Attorney General representing the Republic of Liberia, appellee in the above-entitled cause, and respectfully moves this Court to dismiss the appeal of the appellant, and submits the following reasons : “1. Because appellee says that the notice of the completion of the appeal by which this Honorable Court takes jurisdiction over the appellee is materially and fatally defective and bad, in that it is issued in violation of the mandatory provisions of the statutes and the decisions of this Court in relation to the same, in that the said notice of appeal is directed to the Sheriff of Montserrado County, instead of to the appellee as the law directs.” Appellant’s counsel filed a resistance to the abovequoted motion, claiming that, since the notice of appeal was directed to the sheriff of Montserrado County, and was served and returned by him according to the statutes controlling, the appeal had been regularly and legally prosecuted; and therefore, he prayed the dismissal of the motion. At the call of the case the Court’s attention was called to the motion and resistance filed. Necessarily because of the fact that the motion is a jurisdictional one, we felt our selves justified to give it our consideration and determine whether or not it was sufficient in law and practice. Arguments for and against were heard, and this Court feels it very important, before arriving at a conclusion in this opinion, to expatiate on the grounds of the motion and the trend of the argument of appellee’s counsel. Appellee has contended that this Court ought not to assume jurisdiction over the appellee because appellant’s notice of the completion of his appeal is not directed to him as the law requires, but rather is directed to the sheriff of Montserrado County, in violation of the statutes con- 214 LIBERIAN LAW REPORTS trolling. During the course of his argument appellee cited in support of his position Adai v. Jackson, [1914] LRSC 7; 2 L.L.R. 171 (1914), and Bestman v. Republic, 13 L.L.R. 360 ( 1 959). For the purpose of refreshing our memory, we have taken recourse to these two opinions of this Court upon which the appellee’s counsel has so strongly based his arguments; and now we are satisfied that the principle involved in the former case is that the notice of appeal was not served and returned by the proper ministerial officer as the statute then in effect required. In this instance we do not hesitate to express our views in harmony with the legal soundness of that opinion. The statute then controlling made it mandatory for the notice of appeal to be served and returned by the ministerial officer of the court from which the appeal was taken. The notice of appeal in the case cited having been served and returned by a deputy marshal of the Supreme Court, and not the sheriff, the Court was compelled to sustain the objections and refuse jurisdiction. So then, the principles in the motion in point are not analagous to those attempted to be invoked under that opinion because, whereas this motion seeks to have the case dismissed because the notice was not addressed to the appellee, the other had the case dismissed because the notice was not served and returned by the proper ministerial officer–no comparison whatever. Touching�on the second ground of appellee’s argument, the issue there involved is the question of the notice of the completion of the appeal being issued by appellant’s counsel and not served and returned by the sheriff as the law directs, quite separate and distinct from this motion filed in the case at bar. Now, having explored the principles which constitute the crux in both of the cases cited by counsel in his argument, we shall now proceed to determine whether the motion is sufficient on its face to warrant the favorable consideration of this Court. The appellee in this case seeks to have the appeal dis- LIBERIAN LAW REPORTS 215 missed because the notice of appeal was not directed or addressed to the appellee. Taking recourse to the record before us in the case, we are convinced that the notice was actually addressed to the sheriff of Montserrado County, who served and returned the same according to law. This Court has ever and anon held that, according to our statutes, it is the service and return of the notice of appeal that gives this appellate Court jurisdiction over the parties; and when the service is legally made and the return verifies this fact, this Court will not be authorized to refuse jurisdiction over the parties. The law does require the notice of appeal to be directed to the appellee ; but according to our statutes and the long line of opinions of this Court, neglect to do so by the clerk of the court below, does not constitute legal ground for dismissal. See Brownell v. Brownell, [1936] LRSC 3; 5 L.L.R. 76 (1936). Our statute defining the duty of the clerk of the court from which a criminal appeal is taken makes the following provision : “The clerk of the court from which the appeal is taken shall issue a notice to the appellee, upon perfection of the appeal, informing him that the appeal is taken and to what term of court, and directing the appellee to appear and defend the same. The appeal is thereupon complete.” 1956 Code, fit. 8, � 375. The spirit and intent of the law there expressed is to have the appellee well informed of the appeal being prosecuted to its completion. The sheriff, being the ministerial officer of the court authorized under the law to serve and return the same, the question whether or not the notice be addressed to the appellee would not constitute a ground for dismissal the moment it is legally served and returned. “An appeal from a court of record may, upon motion properly taken, be dismissed for any of the following reasons only : 216 LIBERIAN LAW REPORTS ” (a) failure to file an approved bill of exceptions within the time specified in section 373 “(b) failure to file an approved appeal bond or material defect in such bond; ” ( c) failure to have notice of appeal served on appellee; or “(d) non-appearance of the appellant on appeal.” 1956 Code, tit. 8, � 380. This law cited, supra, being positive, unambiguous and emphatic, this Court feels that it would be an infringement on the constitutional rights of the Legislature to include any other ground, and this we are not authorized to do. Therefore, in the dispensing of transparent justice, we are compelled to declare the motion to dismiss unmeritorious and deny the same. And it is so ordered. Motion denied.