Pioneer Construction Company v Her Honor Morgan et al. [2015] LRSC 41 (14 August 2015)
Pioneer Construction Company by and thru its Managing Director, Mr. Jones Aman, its Chief Executive Officer, Mr. Wilbert D. Stubblefield and all authorized Officers of the city of Monrovia, Montserrado County, Republic of Liberia, Petitioners Versus Her Honor Eva Mappy Morgan, Chief Judge, His Honor Chan-Chan Paegar and His Honor Richard S. Klah of the Commercial Court of Liberia, Republic of Liberia, and the International Bank (Liberia)Limited represented by and thru Its General Manager, Mr. Joseph Anim, its Chief Executive officer, Mr. Henry Saamoi, all of the City of Monrovia, Montserrado County, Republic of Liberia, Respondents
Petition for a writ of Mandamus
Heard: OCTOBER 22, 2014 Decided: August 14, 2015
MADAM JUSTICE YUOH DELIVERED THE OPINION OF THE COURT.
The parties in these mandamus proceedings are not at variance regarding the facts, questions, and merits as to the matter in issue of the action of debt filed before the trial court, but instead they are seeking our appellate authority to determine the constitutionality of Article IV, section 3 of the Act to Amend the Judiciary Law, Title 17, Liberia Code of Laws Revised, which provides the procedure for perfecting appeals from final judgments of the Commercial Court. The said article and section provides inter alia as follows:”…Payment of the full amount of judgment shall be a condition precedent for the completion of an appeal from a judgment of the Commercial Court…”
The petitioners view the above quoted provision as repugnant to Article 20b of the 1986 Liberian Constitution which states, amongst other things as follows:
“…the right to an appeal from a judgment, decree, decision or ruling of any court, administrative board or agency, except the Supreme Court, shall be held inviolable.”
On the other hand, the respondent is contending that the selfsame Article 20b relied on by the petitioners authorizes the Legislature to prescribe rules and procedures for the easy, expeditious and inexpensive filing and hearing of an appeal and since in consonance with said authority the legislature has inserted Article IV, section 3 in the Act creating the Commercial Court, requiring the payment of the judgment amount as a condition precedent for the completion of an appeal from a judgment of the Commercial Court, same cannot be unconstitutional That portion of Article 20b of the 1986 Constitution as referenced by the respondent states thus:
“…the Legislature shall prescribe rules and procedures for the easy, expeditious and inexpensive filing and hearing of an appeal.”
Before proceeding further to address these contentions, we shall chronologically review the facts as they are presented by the certified records.
Pioneer Construction Company, the 1st petitioner herein, is a duly organized and registered corporation, existing and operating under the laws of Liberia. Mr. Wilbert D. Stubblefield, the 2nd petitioner is a Liberian businessman who established and is the owner of the 1st petitioner. The respondent, International Bank (Liberia) Limited, is a financial institution licensed to provide financial services within the Republic of Liberia.
The certified records show that on March 11, 2013, the respondent, the International Bank (Liberia) Limited, filed an action of debt before the full panel of the Commercial Court of Liberia sitting in its April Term A. D. 2013, against the Pioneer Construction Company, and Mr. Wilbert D. Stubblefield, the petitioners in these Mandamus proceedings. The undisputed facts as certified by the records show that in 2007, the respondent the International Bank (Liberia) Limited, based on an application, originally granted the petitioners an overdraft facility in an amount ofUS$15,000.00 (Fifteen Thousand United States Dollars), against which the petitioners repaid the respondent Bank US$11, 000.00 (Eleven Thousand United States Dollars) leaving a balance of US$4,000.00 (Four Thousand United States Dollars).
On September 23, 2008, the parties executed a new credit facility named and styled ‘Restructured Loan Agreement’ wherein the petitioners were granted a second overdraft facility by the respondent Bank in an amount of US$81,489.92 (Eight One Thousand Four Hundred Eighty Nine United States Dollars Ninety Two Cents), which reflected the petitioners’ previous outstanding balance of US $4,000.00 (Four Thousand United States Dollars) from the first loan facility and the restructured loan.
The terms and conditions of the Restructured Loan Agreement required inter alia, thus:
a) That the petitioners repay the respondent Bank in twelve (12) months as of the date of the agreement, same being September 23,2008, at an interest rate of 12% per annum.
b) That in the event of any judicial proceedings for the recovery of the loan, the petitioners will pay the respondent Bank a compensation for attorney’s fees and costs of collection, an amount not less than Ten (10) percent of the total amount due the Bank at the time of such proceedings;
c) That a penalty fee of2% per annum will be levied against the petitioners in the event of any default on the repayment terms.
d) That default under the terms of the Restructured Loan Agreement included: petitioner’s failure to make sufficient deposits into a specified account number 02.2010-03913-01 held with the respondent Bank on a monthly basis commencing September 23, 2008 to ensure full liquidation of the facility on or before September 17, 2009.
In order to secure the loan, the 1 51 and 2nd petitioners, Pioneer Construction and Mr. Wilbert D. Stubblefield executed three surety instruments which included:
a) A Mortgage Deed Agreement for a nine (9) bed room, two story building situated in Kenama/Cooper’s Beach on an area of 1 1/4 acres of land;
b) Personal guarantee and a promissory note tendered by Mr. Wilbert D. Stubblefield, the 2nd petitioner, who promised to be personally liable for the repayment of the loan amount, attorney’s fees, costs of collections, as well as annual default charges in the event the 1st petitioner, Pioneer Construction Company fails to repay the respondent or defaults under the agreement terms.
However, the records show that as of February 23, 2013, forty one months and six days after the due liquidation date of September 17, 2009, the petitioners failed and neglected to repay the respondent Bank in accordance with the Restructured Loan Agreement and the attendant mortgage deed agreement and promissory note.
On February 25, 2013, the respondent Bank’s Counsels, the Heritage Partners & Associates Law Finn, transmitted a letter to the petitioners, demanding that they settle the amount of US99,929.24 (Ninety Nine Thousand Nine Hundred Twenty Nine United States Dollars, Twenty Four Cents). We quote hereunder the respondent’s counsel letter, to wit:
“Heritage Partners & Associates
171 Benson Street, Opp. Former Liberty Party Headquarters
P.0. Box 10-1760 1000 Monrovia-10 Liberia, West Africa
171 Benson Street, Opp. Former Liberty Party Headquarters
P.0. Box 10-1760 1000 Monrovia-10 Liberia, West Africa
HPAM/MP/tnw/yjcb/119/13
February 25, 2013
Mr. Wilbert D. Stubblefield
Chief Executive Officer
Pioneer Construction Company
Somalia Drive, Gardnerville
Monrovia, Liberia
Chief Executive Officer
Pioneer Construction Company
Somalia Drive, Gardnerville
Monrovia, Liberia
Dear Mr. Stubblefield:
We are collecting attorneys for International Bank (Liberia) Limited (“IB”), and have been instructed by IB to collect from Pioneer Construction Company (“Pioneer”) the amount of US$99,929.24(Ninety Nine Thousand Nine Hundred Twenty Nine United States Dollars, Twenty Four Cents) representing outstanding loan balance including interest, attorney collection fees and default charges in respect of a US$81,489.92 restructured overdraft facility that IB granted Pioneers in 2008.
The records reviewed by us showed that Pioneers requested and was granted an overdraft facility of US$15,000.00 in 2007 and that this facility had an outstanding balance of US$4,000.00 at a later date when Pioneers again applied for and was granted a separate, second facility ofUS$81,489.92 (Eighty One Thousand Four Hundred Eighty Nine United States Dollars Ninety Two Cents), which culminated into the Restructured overdraft facility or loan.
Further review of the records show that the Restructured Loan was issued against, inter alia, the personal guarantee of Mr. Wilbert Stubblefield, thereby making both Mr. Wilbert Stubblefield and Pioneer jointly and severally liable for settlement of the said Restructured Loan. Unfortunately, both Pioneers and Mr. Wilbert D. Stubblefield failed, neglected or refused to settle any of the two overdraft facilities or the Restructured Loan that consolidated and reaffirmed their respective terms. Consequently, both Pioneers and Mr. Wilbert D. Stubblefield remained jointly and severally indebted to IB in the amount ofUS$US99, 929.24 as at February 22, 2013.
In view of the foregoing and consistent with the instruments of our client, we hereby demand full and prompt payment of the US99,929.24 owed IB by Pioneers, as explained above. We specifically request that the payment be made to us within ten (10) days as of the date of this letter. We are obliged to advise that if full payment is not received or a satisfactory payment arrangement agreed with us, we will be constrained to institute necessary legal action(s) without further notice to you.
Please do not hesitate to contact us, as we believe this matter can be resolved amicably without unnecessary public exposure and/or legal action. You may contact the undersigned on cell number 0886-558- 991 or our Managing Director on cell number 0886-524-896/0777- 199-620.
Kind regards,
Truly yours,
T. Negbalee Warner (Cllr.)
Managing Partner
Managing Partner
Cc: International Bank (Liberia) Limited”
Despite the above letter of demand, there is no instrument in the records indicating that the petitioners responded to said letter either by a written reply or other means to have the matter amicably resolved as offered by the respondent’s counsel; neither is there any showing that the petitioners approached the respondent on reasons why they could not settle their indebtedness. What is seen, is that the petitioners sat supinely ignoring the respondent’s efforts to recover its loan, thus necessitating the institution of the action of debt on March 11, 2013. We note however, that in its complaint and throughout the proceedings on the action of debt before the Commercial Court, the respondent bank prayed for the amount of US$99,292.24 (Ninety Nine Thousand Two Hundred Ninety Two Dollars, Twenty Four Cent), which included 12% annual interest rate, attorney collection fees and 2% default charges at the time of filing the complaint but that in the letter of demand quoted supra from the counsel representing the respondent bank, he indicated the amount of the petitioners’ indebtedness to his client to be US99,929, different from the amount pleaded in the complaint.
This Court takes note of the discrepancy between the amount of US$99,292.24, pleaded in the respondent’s complaint and the amount ofUS99,929.24, in the letter of demand and state here, that it is trite law that courts are bound to only decide on issues raised in the pleadings. Liberia Fisheries Inc. v. Badio et al., 36LLR, 277 294 (1989); The Original African Hebrew Israelite Foundation of Liberia v. Lewis, 32LLR 184, 188 (1984); Blanca, S.A. et. al., v. Nestel 25LLR 116 119(1977); Clark v. Barbour 2LLR 15 (1909). Accordingly, in consonance with this principle of law, we shall consider only the amount of US$99,292.24 (Ninety Nine Thousand Two Hundred Ninety Two Dollars, Twenty Four Cent), as constituting the petitioners’ indebtedness to the respondent bank.
On March 22, 2013, the petitioners filed an eight count answer in which they conceded their indebtedness to the respondent Bank, but claimed that the respondent had knowledge that the repayment of the loan was contingent upon receipt of proceeds from a contract entered between the petitioners and the Government of Liberia to renovate the Unity Conference Center. The petitioners therefore requested the trial court to join the Government as co-defendant to ensure acknowledgement of its indebtedness to the petitioners and to assume the responsibility for the repayment of the loan. We quote hereunder counts 1, 2, 3, 6 and the prayer of petitioners’ answer which we consider pertinent to the matter, as this Court has consistently held that it will pass only on issues that it deems germane to the disposition of the proceeding. LAMCO J.V. Operating Company v. Verdier, 26LLR 445(1978); LIBCO v. Collins, 36LLR 828 831(1990); USTC v. Morris et al., 41LLR 191 203-4(2002), Tehquah v. Republic, Supreme Court Opinion March Term 2014. The said counts state thus:
1. “As to the entire complaint, petitioners say that the Pioneers Construction Company represented by its Officers entered into a contractual agreement with the Government of Liberia, represented by the General Services Agency and all relevant authorities in 2005 to renovate the Unity Conference Center located in Virginia, Montserrado County, Liberia in the amount of about US$2,700,000.00.
2. That further to count one above, petitioners say that based on the contract entered into with the Government of Liberia which provided for pre-financing, the Company entered into the overdraft loan agreement with Plaintiff and that proceeds from the contract amount was to be directly payable to the plaintiff Bank. Please find attached copies of the arrangement between the Government of Liberia, the Company and the Plaintiff Bank, delivery invoices of purchased items, the Government of Liberia acknowledgment of the petitioners pre-financing the contract as exhibit D/1.
3. That further to court two, petitioners say that all the funds received by the company was used for its intended purpose to renovate the United k8Conference Center and the contract was executed by the petitioners company and that the failure on the part of the Government of Liberia to perform its responsibility of paying the contract amount has created a complete setback to the parties. Petitioners pray this honorable court to join the Government of Liberia, represented by the Ministry of Finance, the General Services Agency and the Ministry of Justice who acknowledged the contract and its pre-financing, yet requested for renegotiation of the contract and that the total cost of the pre financing works done on the Unity Conference Center be paid to the plaintiff Bank by the Government of Liberia.
6. That as to count 4, 5, 6, 7, 8, 9, 10 & 11 of the Plaintiffs complaint, petitioners say that the Pioneers Construction Company entered into the restructured loan agreement with the plaintiff Bank because of the contract which was pre-financed as acknowledged by the Government of Liberia. Petitioners therefore request this honorable court to join the Government of Liberia to make direct payment of the pre-financed renovation works done on the Unity Conference Center as it has been acknowledged by the Government of Liberia to Plaintiff Bank. Attached hereto is a copy of the acknowledgement.
Wherefore and in view of the foregoing, petitioners respectfully pray this honorable court to join the Government of Liberia by and thru the Ministry of Finance, the Ministry of Justice and General Services Agency to pay the total cost of the pre-financed renovation works done on the Unity Conference Center as acknowledged by the Government of Liberia to the Plaintiff Bank, rule the cost of these proceedings against the Government of Liberia and such further relief that your honours may deem just, legal and equitable.”
On April 1, 2013, the respondent Bank filed a thirteen (13) count reply in which it contended that the Restructured Loan Agreement with the petitioners was exclusive of the Government of Liberia and that the repayment of the loan facility was not contingent on proceeds from the Government ‘s contract with the petitioners. The respondent also contended that it granted the new loan facility based upon petitioners collateral and personal commitments/guarantees and not the Government’s contract. The respondent further contended that the Government of Liberia cannot be legally joined, absent the Government’s privity to the contractual relationship created and existing between the Bank and the petitioners.
A citation was issued out of the chambers of the Chief Judge of the Commercial Court, Eva Mappy Morgan, which was served and returned served on the parties requiring them to appear for a pre-trial settlement conference on Wednesday, April 3, 2013, and further requiring them to file their respective memorandum statements in the clerk’s office 48 hours prior to the conference. The statute creating the Commercial Court stipulates inter alia that action in the Commercial Court shall be commenced and regulated in the same manner as prescribed in the Civil Procedure Law for civil actions and that procedure in the Commercial Court shall be structured to promote the prompt determination of the commercial disputes in keeping with law. The act of the Commercial Court Judge to cite the parties to a pretrial conference was therefore in consonance with the provision of the Civil Procedure Law providing for a pretrial conference. A pretrial conference is for the purpose of simplification of issues, obtaining admissions of facts, disposition of any pending motions, etc. Commercial Court Act of 2010, Article 111, section (1)(2),· Civil Procedure Law, Rev. Code, 1:12.
The parties accordingly complied with the order of the presiding judge and on the said date, the pre-trial settlement conference was convened with all parties being fully represented. Following the conference and in consonance with section 12.5 of our Civil Procedure Law, which provides for the issuance of an order at the close of a pretrial conference, the judge, issued an order denying the petitioners’ motion to join the Government of Liberia and affirmed the petitioners’ indebtedness to the respondent.
We herein quote counts 3 through 8 of the judge’s order, to wit:
3. “That defendant’s motion to join is argued and denied by the court.
4. That the defendant in these proceedings has not denied its indebtedness to the plaintiff.
5. That defendant inability to pay is due in part to its inability to collect from the Government of Liberia.
6. That defendant requested and plaintiff accepted time to provide a joint stipulation of payment arrangement.
7. That defendant and plaintiff have agreed to file the aforesaid stipulation with court on or before 15 April 2013.
8. That this pre-trial order shall become part of the records, superseding the pleadings and controlling the subsequent course of the action unless modified at or before trial to prevent manifest injustice pursuant to 1LCLR §12.5.
On April 4, 2013, the petitioners filed a motion to correct the pretrial order on grounds that the government was not made a party and that the amount owed the respondent was not specifically stated. On May 28, 2013, the trial judge granted the motion in part by correcting the pretrial order, specifically stating the amount of US$99,292.24 (Ninety Nine Thousand Two Hundred Ninety Two Dollars, Twenty Four Cent) owed but denied the petitioners’ request to have the government joined as co-defendant. The judge thereby ruled and entered summary judgment against the petitioner in the amount US$127,197.80 (One Hundred Twenty Seven Thousand One Hundred Ninety Seven United States Dollars Eighty Cent) representing the amount of US$99,292.24 sued for by the respondent bank, successful attorney fees, 12% annual interest and court’s cost.
On August 7, 2013, the petitioners filed a petition for judicial review before the full panel of the Commercial Court seeking to reverse judge Morgan’s ruling. Following regular notices of assignment, the petition for judicial review was assigned, heard and on January 9, 2014, the trial court ruled denying petitioners’ petition. We herein quote excerpt of the trial court’s ruling which we deemed relevant to these proceedings:
“Having heard arguments pro et con, this Panel determines that two issues are germane to resolving this dispute, namely:
i) The first issue is whether or not the Chief Judge erred in her ruling denying the motion to join the Government of Liberia in the pending action? And
ii) The second issue is whether or not summary judgment will lie where a party confesses his indebtedness in a pending suit?
Section 5.54 of our Civil Procedure Law provides that “a party may be added to an ongoing suit by order of a court, except the Supreme Court, on a motion made by a party or on the court’s own initiative at any time during the pendency of an action on any terms that are just and fair (Emphasis ours).” In contrast, section 5.51 of 1LCLR subsection One (l)(a) says that “persons who ought to be parties to an action if complete relief is to be accorded between the persons who are parties in such action or (b) who might be inequitably affected by a judgment in such action shall be made plaintiffs or petitioners therein/’ However, the contention that the Government of Liberia should be joined as a party because of a letter written to confirm its award of a service contract to the 1st petitioner is an insufficient reason as it fails to establish any nexus to the credit facility extended to the said 1st petitioner by the respondent. Thus, the issue as to whether Her Honor, the Chief Judge erred in denying the Motion to join the GOL must be answered in the negative.
This brings us to our second issue as to whether or not summary judgment will lie where a defendant confesses its indebtedness to the plaintiff in a pending suit should be answered in the affirmative. Section 11.3 (3) of the Civil Procedure Law, 1LCLR, with the text found on page 119 provides that “the court shall grant summary judgment if it is satisfied that there is no genuine issue as to any material fact and the party in whose favor judgment is granted is entitled to it as a matter of law.” According to the certified record in the case, the contention by the 151 petitioner that thought it admitted conditionally that it is indebted to the respondent, nevertheless, Her Honor the Chief Judge should have ruled the case to trial to afford them their due process rights is not legally sound nor convincing. The Chief Judge properly granted summary judgment to the respondent since no genuine issue exists owing to the petitioners’ own admission that they are indebted to the respondent.
Accordingly, this Panel rules that the Petition for Judicial Review of the Chief Judge’s ruling on the Motion to Join the GOL should be denied. AND IT IS HEREBY SO ORDERED. Given under our hands and seal of this Honorable Court on this 9th day of January, A. D. 2014.”
The petitioners excepted to this ruling, announced an appeal to the Honorable Supreme Court of Liberia and filed a bill of exceptions in which they challenged the final judgment of the trial court contending that the court erred by not stating the specific amount owed and by refusing to join the government as co-defendant. The records show that only these two procedural steps were taken by the petitioners, that is, the announcement of the appeal and the filing of the bill of exceptions. However, in a petition for a writ of mandamus filed on March 31, 2014, before the Chambers of our distinguished Colleague, Madam Justice Wolokolie, we see the reason why the records do not reflect the remaining mandatory steps for the completion of the appeal. In the petition for a writ of mandamus the petitioners alleged that having announced an appeal and filed their bill of exceptions, the trial court refused to sign their appeal bond stating reasons therefor, that the petitioners had failed to pay the money judgment as required by Article IV, section 3 of the Commercial Court Act of 2010. Predicated upon this provision of the law relied on by the trial court, the present mandamus proceeding is before us.
We quote verbatim hereunder the petitioners’ ten (10) counts petition for the writ of mandamus, to wit:
1. Petitioner says that on the 10th day of March 2014, Petitioner made an application and filed for the issuance of Notice of Completion of Appeal with the Commercial Court within Statutory time and even after meeting all of the requirements for the completion of an appeal as provided for under section 51.4 of our Civil Procedure Statute entitled, Requirements for Completion of an Appeal 1LCLR. The following acts shall be necessary for the completion of an appeal: (a) Announcement of the taking of the appeal; (b) Filing of the bill of exceptions; (c) filing an appeal bond; (d) service and filing of notice of completion of the appeal. The Chief Judge of the Commercial Court, Her Honor Eva Mappy Morgan, along with the Two (2) Associates Judges of the Commercial Court, His Honor Chan -Chan Paegar and His Honor Richard S. Klah refused to sign Petitioners’ Appeal Bond, for the completion of Petitioner’s Appeal to the Honorable Supreme Court of Liberia, because as they put it, Petitioner should pay the money judgment as pre-condition for the approving Petitioner’s Appeal Bond
2. Petitioner says that the Commercial Court Judges relied on Article IV (3) of the Act Amending the Judiciary Law, Title 17, Liberia Code of Law Revised, to Provide for the Establishment of the Commercial Court; which states that “Payments of the full amount of judgment shall be a condition precedent for the completion of an appeal from a judgment of the Commercial Court, but the appeal bond, which may be required of the appellant, shall be exclusive of the amount of judgment paid.”
3. Petitioner says that the Respondent Judges erred in refusing to sign petitioner’s appeal bond, because appeal to the Supreme Court of Liberia is a right provided petitioner by the Constitution of Liberia, and as such, a Statute passed by the Legislature, denying a party litigant the right to appeal is repugnant to the Constitution of Liberia.
4. Petitioner says Article 20(b) of our constitution specifically provides that “the right to an Appeal from a judgment, decree, decision or ruling of any court or administrative board or agency, except the Supreme Court, shall be held inviolable (unchallengeable). The Legislature shall prescribe rules and procedures for the easy expeditious and inexpensive filing and hearing of an appeal.”
5. Petitioner says that in accordance with our statute, and the laws controlling the appeal process, after the filing of the bill of exceptions and the filing of the appeal bond as required by sections 51.7 and 51.8 of the Statute, the clerk of the trial court on application of the appellant shall issue a notice of the completion of the appeal. The failure of the Commercial Court Judges to sign Petitioner’s Appeal Bond, predicated on a statute enacted by the Legislature that denies Petitioner’s constitutional right of appeal was erroneous on the part the Commercial Court Judges.
6. Petitioner says that due to the refusal of the Respondent Judges to sign Petitioner’s Appeal Bond, which is a pre-requisite for the completion of the Notice of Appeal, predicated on a statute enacted by the Legislature, which requires Petitioner to satisfy the money judgment, as a condition precedent for perfecting an appeal, effectively denies Petitioner of its constitutional right of appeal.
7. Petitioner further says that the role of the legislature as it pertains to the constitutional right of appeal, is limited and restricted to whether or not appeal from the Commercial Court to the Supreme Court will operate as a stay for the enforcement of judgment in the lower court; but no statute can deny a party litigant within the territorial jurisdiction of Liberia, the right to appeal from a judgment.
8. Petitioner says that Article IV (3) of the Act Amending the Judiciary Law, Title 17, Liberia Code of Law Revised, for the Establishment of the Commercial Court, is unconstitutional, repugnant to the constitution and in violation of Petitioner’s Constitutional right to appeal.
9. Petitioner seeks the Prerogative Writ of Mandamus from the Justice in Chambers of the Honorable Supreme Court of Liberia, compelling and mandating them to approve Petitioner’s Appeal Bond, which is a necessary requirement and pre-requisite for the Notice of Completion of Petitioner’s appeal before the Honorable Supreme Court in Banc.
10. Petitioner also seeks the prerogative of Your Honor, to forward Petitioner’s Petition for the writ of Mandamus against the Commercial Court Judges to the full bench of the Supreme Court for determination, because of the constitutional issue of the right to appeal in this jurisdiction. Petitioner says that a legislative enactment which requires an appellant an appellant to fully satisfy a money judgment in the court below, as a pre-requisite for a circuit judge to sign an appellant appeal bond, which is a necessary requirement and pre-requisite for the Notice of Completion of Petitioner’s appeal before the Honorable Supreme Court in Bane is unconstitutional.
Wherefore and in view of the foregoing, Petitioner respectfully prays Your Honor and this Honorable Court to grant Petitioner’s petition as supported by Article 20(b) of the Constitution of Liberia, and the applicable statutes controlling the appeal process, by compelling and mandating the Commercial Court judges to sign Petitioner’s appeal bond, which is a necessary requirement and pre-requisite for the Notice of completion of Petitioner’s appeal; and declare Article IV(3) of the Act Amending the Judiciary Law, Title 17, Liberia Code of Law Revised, for the establishment of the Commercial Court, un-constitutional, and repugnant to the Constitution of Liberia. Petitioner further prays Your Honor to exercise your prerogative and forward petitioner’s petition for the writ of mandamus against the Commercial Court Judges to the full bench of the Supreme Court for determination, because of the Constitutional issue of the right of appeal in this jurisdiction. Petitioner also prays that Your Honor grant unto petitioner, any other such further relief or remedies that Your Honor may deem just, legal and equitable under the circumstances.
The Justice presiding in Chambers issued the alternative writ, ordering the respondent to file its returns; having determined that the petition challenged the constitutionality of the appeal provision of the Commercial Court Act, the Chambers Justice ordered the Clerk to forward the petition to the full bench of this Court. It is the law hoary with age that “when an application raises a constitutional issue, the Chambers Justice before whom said application is venue will refer it to the full Bench for the Court’s consideration of the relief prayed for and final disposition thereof.” Keyor v. Borbor & Carr, [1966] LRSC 54; 17 LLR 465 471(1966), Ayad v. Dennis, 23LLR 165 166(1974), Goodman v. NPA, 37LLR 545 548(1964), Garlawolo v. NEC, 41LLR 377 383(2003), Inter Burgo v. Ministry of Agriculture et. al., Supreme Court Opinion, October Term 2008, LACC v. Sieh, Supreme Court Opinion, October Term, 2014.
In obedience to the mandate of the Chambers Justice, the respondent bank filed a twelve (12) count returns to the petition. The Court herein below quotes the entire text of the returns, to wit:
1. ”As to the entire petition, co-respondent International Bank says and submits that it is a fit subject for denial and dismissal and same should be denied and dismissed for the reason that it fails to state a cause of action in law and fact, and the averments contained therein are based on perceived misconception and misinterpretation of(i) Article 20 (b) of the 1986 Constitution of the Republic of Liberia (ii) Chapter 51.4 “Requirements for the Completion of an Appeal” of the Title 1 of the Liberian Code of Law Revised, Civil Procedure Law and (iii) Article IV(3) of the Act Amending the Judiciary Law, Title 17, Liberia Code of Law Revised, to provide for the establishment of the Commercial Court of Liberia.
2. Further to count one (1) above, co-respondent International Bank submits that Article 20 (b) of the 1986 Constitution of the Republic of Liberia states that “the right to an appeal from a judgment, decree, decision or ruling of any court or administrative board or agency, except the Supreme Court, shall be held inviolable. The Legislature shall prescribe rules and procedures for the expeditious and inexpensive filing and hearing of an appeal.” (Emphasis added). The co-respondent bank submits that while the aforesaid quoted provision of the Constitution grants all party litigants the right to an appeal, it is also very categorical that the exercise of said right to an appeal, it also categorical that the exercise of said right of appeal is subject to legislative enactment (including amendment and/or modification of such enactment) of rules and procedures for the filing and hearing of an appeal in all courts of Liberia. This means that the Constitution contemplates and did provide that there would be condition precedent to the filing and hearing of an appeal, and that those conditions precedent would be determined by the Legislature, and no other branch.
3. Co-respondent International bank further submits that the Legislature of Liberia, in fulfillment of its constitutional responsibility to make, repeal, amend and modify laws, did prescribe in the Civil Procedure Law of Liberia rules and procedures of general application for the completion of an appeal from courts of record to the Supreme Court. The rules and condition for the taking and completion of appeal from courts of records to the Supreme Court are enshrined in Chapter S1, Section 51.4 “Requirement for the completion of an Appeal” of title 1, Liberian Code of Laws Revised, Civil Procedure Law, as follows:
a) Announcement of the taking of an 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
The co-respondent banks says that while these ‘Requirements” are conditions precedent to the filing and hearing of an appeal by every party litigant who wishes to take an appeal from a judgment, decree, decision or ruling of any court or administrative board or agency, their existence does not prevent or prohibit the Legislature from enacting another legislation that amends or modifies said requirements or the general statute.
4. Further to count two and three above and in further traversal of the entire petition, the co-respondent bank says that the legislature, in the exercise of its constitutional duty, created the Commercial Court of Liberia and provided in the Act creating that said Commercial Court a specific rule for the taking of appeal from the Commercial Court, which rule was an amendment or modification of the general requirements pertaining to the taking and competition of appeals contained in Chapter S I, section S 1.4 “requirement for the completion of an appeal” of title 1, Liberian Code of Laws Revised, Civil Procedure Law.
5. Further to count four (4) hereinabove, Article IV, section 2 & 3 of the Act to Amend the Judiciary Law, Title 17, Liberian Code of Laws Revised, to provide for the establishment of the Commercial Code provides as follows:
“An appeal from the Commercial Court shall not serve as a stay on enforcement of the judgment, provided that the amount of the judgment paid shall be placed in an interest bearing escrow account with a commercial bank to be designated by the Commercial Court pending disposition of the appeal.”
“Payment of the full amount of judgment shall be a condition precedent for the completion of an appeal from a judgment of the Commercial Court, but the appeal bond, which may be required of the appellant, shall be exclusive of the amount of the judgment paid.” (Emphasis supplied)
Co-respondent International Bank submits that the above quoted provision of the Act creating the Commercial Court constitutes rules and procedures that are additional to the general requirements prescribed in the Civil Procedure Law. As a matter of statutory interpretation, the principle of “recency” and specificity provide that in case of any conflict between two statutes, the statute that is specific and/or most recent will prevail. The rule of the Commercial Court Act being the most recent and also very particular prevails over the provision of the Civil Procedure Law. Thankfully, co-respondent submits that the provision of the Act creating the Commercial is not in conflict with the Civil Procedure Law, but is additional to the requirements of the Civil Procedure Law. Furthermore, the Co respondent says that prior to the Act creating the Commercial Court, the legislature also provided in the Act Creating the Debt Court a particular rule governing the taking of appeal the taking of appeal from the Debt Court, which has been in operation and with which all lawyers have complied for many decades. Indeed, section 3 of the Debt Court Act says that “payment of the full amount of judgment shall be a condition precedent .” This rule also does not in any way shape or form violate the rights of the appellant to the filing and hearing of its appeal under the facts and circumstances of this case, and the same applies to the Act creating the Commercial Court.
6. That as to Count one (1) of the Petitioners’ petition, co-respondent International Bank concedes and denies in part the averments contained therein. The Co-respondent says and submits that the Petitioner did (i) announced the taking of an appeal from the judgment and (ii) filed its bill of exceptions; but it did not fulfill the statutory requirements for the filing and hearing of an appeal in the Commercial Court of Liberia as contained in Article IV, section 2 & 3 quoted hereinabove. The Co-respondent acknowledges the law cited in Chapter 51, section 51.4 of the Civil Procedure Law, “Requirements for the completion of an appeal” but asserts that the petitioner failed and/or neglected to comply with the additional requirements prescribed by the Act Establishing the Commercial Court of Liberia and governing the filing and hearing of an appeal taken from the judgment or decision of the Commercial Court.
7. Further to Count six (6) above and in traversing counts (2) and three(3) of the petitioners’ petition, Co-respondent says and avers that Co-respondents Her Honor Eva Mappy Morgan, His Honor Chan -Chan Paegar and His Honor Richard S. Klah, were justified in their refusal to approve the petitioners’ appeal bond because of the petitioners’ failure and/or neglect to comply with the statutory requirements applicable to the perfection of the filing and hearing of an appeal taken from the judgment of the Commercial Count. The clear language of the statute creating the Commercial Court of Liberia is (1) “An appeal from the Commercial Court shall not serve as a stay on enforcement of the judgment, provided that the amount of the judgment paid shall be placed in an interest escrow account. The above quoted provision of the Commercial Court statute means just as it says-that an appeal taken from a judgment of the Commercial Court does not stay further proceedings in the matter such as the enforcement of the judgment until and except the petitioner places the full amount of the judgment sum into an escrow account; and then the full amount of judgment shall be a condition precedent for the completion of an appeal from a judgment of the Commercial Court.” Hence, for the petitioner perfect its appeal from the judgment of Commercial Court, it must deposit the full judgment sum into an interest bearing account. Therefore, the rules and procedures adopted by the legislature for the completion of an appeal from a judgment of the Commercial Court of Liberia contain the following five (5) requirements:
a) Announcement of the taking of an appeal;
b) Filing of the bill of exceptions;
c) Payment of the full amount of the judgment into an interest-bearing escrow account with a commercial bank to be designated by the Commercial Court pending disposition of the appeal;
d) Filing of an appeal bond;
e) Service and filing of notice of completion of the appeal
The Co-respondent maintains and subjects that the prov1s1ons of Article IV, section 2 & 3 of the Act Establishing the Commercial Court of Liberia is consistent with the Constitutional mandate giving the legislature the authority to prescribe rules and procedures for the easy, expeditious a and inexpensive filing and hearing of an appeal as the legislature only prescribe additional rules and procedures applicable to the Commercial of Liberia. Therefore, the Respondent judges acted within the ambit of the law.
8. As to count four (4) of the Petitioners’ petition, the co-respondent acknowledges the provision of Article 20(b) of the Constitution cited by the petitioners and assets that the statutory provisions (Article IV, sections 2 & 3) of the Act Establishing the Commercial Court of Liberia requiring the placement of the full judgment sum into an interest-bearing escrow account as a condition precedent for the completion of an appeal taken from the Commercial Court of Liberia is consistent with Article 20 (b) of the Constitution as the provisions of Article IV, sections 2 & 3 only prescribed additional requirements for the filing and completion of an appeal applicable to the Commercial Court of Liberia.
9. That as to count five (5) of the Petitioners’ petition, Co-respondent submits that while it acknowledges the provision of the statute quoted by the petitioner (sections 51.7 and 51.8 of the Civil Procedure Law); it avers that there are other requirements prescribed by the legislature and contained in the Act Establishing the Commercial Court for the completion of an appeal, which the petitioners failed and/or neglected to avail itself of and its failure and/or neglect to do so caused the Respondent judges to, as a matter of law, refuse the approval of the petitioners’ appeal bond because the petitioners did not comply the condition precedent for the completion of an appeal in the Commercial Court of Liberia as prescribed by the statute
10. Co-respondent International bank categorically denies and refutes the allegations contained in counts six(6), seven (7) and eight (8) of the petitioners’ petition, and asserts that
A. The provision of the Act establishing the Commercial Court of Liberia requiring the petitioners to place the judgment sum as the condition precedent for the filing of an appeal does not violate the rights of the petitioners from taking an appeal from a judgment of the Commercial Court, neither does it prohibit if from filing and hearing of an appeal from such court; but is a reasonable exercise of the constitutional power of the legislature to enact rules and procedures by which the constitutional right of appeal may be exercised, especially under the situation where there is manifest necessity, commercial or otherwise.
B. The role of the legislature as it relates to the constitutional right of appeal is not limited and restricted to whether or not an appeal from the Commercial Court of Liberia to the Supreme Court will operate as a stay for the enforcement of the judgment in the lower court but it extends to and includes as the Constitution mandates … ”prescribe rules and procedure for the easy, expeditious and inexpensive filing and hearing of an appeal.”
C. The exercise of such Constitutional mandate by the legislature is not limited or restricted to the application of section 51.4 of the Civil Procedure Law but at all times as and when the legislature deems it necessary to prescribe further rules and procedures for the filing and hearing of an appeal from any Court of competent jurisdiction in order to achieve the objective of the Constitution and ensure the smooth dispensation of justice; and
D. For the reasons stated in counts one(l) through nine (9) of this returns, the provisions of Article IV (3) of the Act Amending the Judiciary Law, Title 17, Liberia Code of Law Revised, for the establishment of the Commercial Court of Liberia is Constitutional and within the ambit of the law.
11. That as to count nine(9) and ten(l0) of the petitioners’ petition, co respondent International Bank submits that the Justice in Chambers of the Honorable Supreme Court should, for all the reasons stated in this returns, (a) refuse the issuance of the prerogative writ of mandamus prayed for by the petitioners and confirm and affirm the action of the bench of the Honorable Judges and (b) refuse the transmission of the case and the records to the full bench of the Honorable the Supreme Court because the issue raised by the petitioners are immaterial and irrelevant as a matter of law.
12. Co-respondent International Bank categorically denies all and singular the allegations of law and facts raised by the petitioners not specifically traversed in this returns.
Wherefore and in view of the foregoing facts and circumstances, Corespondent, International Bank prays your Honor as follow to wit:
A. To deny and dismiss the petitioners’ petition for the issuance of the prerogative writ of mandamus as a matter of law
B. Confirm and affirm the actions of the respondents judges and order the matter proceeded with according to law;
C. Rule the cost of these proceedings against the petitioners and
D. Grant unto respondents all that your honor may deem just and equitable under the circumstances”
In their argument before the full bench, counsels for the petitioners stated that the judges of the Commercial Court denied them their constitutional right to appeal; that said right is to be held inviolable and any legislation such as Article IV(3) of the Commercial Court Act, which impedes the right of appeal should be declared repugnant to Article 20b of the Constitution of Liberia and therefore unconstitutional. The petitioners then prayed for the issuance of the preemptory writ of mandamus to compel the judges of the Commercial Court to sign their appeal bond.
On the other the hand, the respondent disagreed with the argument of the petitioners’ counsel on grounds that Article 20b of the 1986 Constitution also authorizes the Legislature to prescribe rules for the filing and hearing of an appeal; and, in consonance to this constitutional mandate, the Legislature enacted the requirement for perfecting appeals from final judgment of the Commercial Court, therefore the requirement for the payment of the judgment sum as a condition precedent to the completion of an appeal does not violate the constitutional rights of the petitioners as enshrined in Article 20b of the 1986 Constitution.
Having attended to the facts and circumstances in this case, culminating into these mandamus proceedings, the Court have determined that there is only one issue for the disposition of these proceedings. The issue is:
1) Whether or not Article IV (3) of the Commercial Court is repugnant to Article 20b of the 1986 Constitution?
In answering this issue, the Court takes recourse to the requisite provision of the constitution and the Commercial Court Act already quoted supra.
The constitutional provision of Article 20 (b) which guarantees one’s inviolable right to appeal also authorizes and mandates the Legislature to enact laws to facilitate the process of an appeal. It is upon this constitutional mandate stipulated in Article 20 (b) that the Legislature enacted the requirements for the completion of an appeal in§ S 1.4 of the Civil Procedure Law which states as follow:
“The following acts shall be necessary for the completion of 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 appeal.
Failure to comply with any of these requirements within the time allowed by statute shall be ground for the dismissal of the appeal.”
The Legislature, pursuant to Article 20 (b) also enacted the following:
“on announcement of an appeal by a defendant, no execution shall issue on a judgment against him nor shall any proceedings be taken for its enforcement until final judgment is rendered, except that on appeal from an order granting a preliminary injunction, such preliminary injunction shall be in force pending decision on the appeal.” Civil Procedure Law Rev. Code 1:51.20.
It should be quickly noted that even though the Legislature declared in the Civil Procedure Law Rev. Code 1:51.20 that in general, an appeal shall serve as a stay to all judgments (except an order of preliminary injunction) the Legislature however further promulgated appeal provisions with respect to other actions where an appeal does not serve as a stay to include debt, summary proceedings, and domestic relations.
In debt actions it is stated:
“Appeals from judgments of the Debt Court in an Action of Debt shall not operate as a stay in the enforcement of the judgment thereof, except where the party was denied his day in court or where the amount of the indebtedness is in dispute.” New Judiciary Law Rev. Code 17:4.2.
In summary proceedings it is stated:
“..the taking of an appeal from the judgment of a Circuit Court in favor of a plaintiff shall in no case arising under this subchapter operate as a stay of enforcement proceedings..” Civil Procedure Law 1:62.24
In the Domestic Relations Law relative to the support of dependents, it is stated:
“An appeal shall lie from every final order of a court in any proceeding brought under this chapter, but the appealed order shall be enforced immediately and shall continue in force pending the decision of the appellate court…” Domestic Relations Law, Rev. Code, Vol. III §5.21
Similarly, in 2010 the Legislature pursuant to its authority enacted the law establishing the Commercial Court, requiring the appellant to pay the full amount of the money judgment into an escrow account as a condition precedent for the completion of an appeal. The requisite appeal provision, Article IV § 3 which is also the subject of these proceedings stipulates thus:
1) An appeal from a final judgment of the Commercial Court shall lie directly with the Supreme Court of Liberia.
2) An appeal from a judgment from the Commercial Court shall not serve as a stay on enforcement of the judgment, provided that the amount of the judgment paid shall be placed in an interest-bearing escrow account with a commercial bank to be designated by the Commercial Court pending disposition of the appeal.
3) Payment of the full amount of judgment shall be a condition precedent for the completion of an appeal from a judgment of the Commercial Court, but the appeal bond, which may be required of the appellant, shall be exclusive of the amount of the judgment paid.” Article IV§ 3 of the Act creating the Commercial Court
In view of the appeal provisions from other actions as found in our statutory laws, articulated hereinabove, can it be construed that the Legislature nullified the constitutional right to appeal by requiring the payment of the money judgment as a condition precedent for the completion of an appeal from a judgment of the Commercial Court? A concise review of our case laws that are analogous to the case at bar will illuminate and enlighten the Court in answering this query as the constitutional challenge to the appeal statutes relating to alleged violation of Article 20b of the Constitution is not a novelty.
This Court has consistently been emphatic that the exercise of the right to an appeal cannot be stifled by any institution of the Government, whether legislative, executive or the judiciary itself and that the mandate and command of the Constitution to allow all appeals from final rulings and judgments of lower courts to the Supreme Court is mandatory, and it is therefore not at the discretion of any judge or Court if an appeal should or should not be granted from final ruling. Jones and Thompson v. Pearson and Lef Investment Company, 31LLR 330(2983),· National Milling Company v. Bridgeway 36LLR 776 (1990) LEC v. Kpanan and Varpulah, 37LLR 316(1993); Husseni v. Brumskine, Supreme Court Opinion March Term, 2013.
However, notwithstanding the above, we have recognized that while the principle governing the grant of the right to an appeal is held sacred and must be observed, both the Constitution and this Court recognize that there must be a process by which the right can be exercised and enjoyed.
In the case Kyung v. Mathies, Supreme Court Opinion, October Term, 2006, the Debt Court of Montserrado County adjudged the petitioner liable to the respondent and attempted to enforce its judgment according to INA Decree No. 12 which states inter alia, …..that an appeal from a judgment of the Debt Court shall not operate as a stay in the enforcement of the judgment….” The petitioner filed a petition for prohibition, challenging the constitutionality of the INA Decree No. 12, on grounds that the act violated his right to appeal as espoused in Article 20b of the 1986 Constitution. This Court rejected the petitioner’s contention and denied the preemptory writ.
It held thus:
“INA Decree No.12 does not violate the Constitutional right of an appeal; all it does is to allow settlement of a judgment in an action of debt while the appeal is being pursued at the Supreme Court, and in the event the appeal is granted, the appellant recovers against the appellee. Therefore, the fact that an appeal from a judgment in an action of debt does not serve as a stay of enforcement of said judgment does not mean that the right of appeal is violated.”
Also,
”the Constitutional and Statutory laws are made to serve the need of the people and the benefit of the society; the constitution and statutory laws are usually amended for improvement in the lives and for better regulations of the affairs of the people for whom they are made. Id
In the case The Intestate Estate of the late William J. M Bowier et al. v. Williams et al., 40LLR 84 (2000), an ejectment action, the appellant challenged the appeal provision of the Civil Procedure Law specifically § 51.8 regarding the appeal bond. The appellant contended that the requirement mandating the filing an appeal bond was a violation of his right of appeal under Article 20b of the Constitution. The Supreme Court in passing on the constitutionality of § 51.8, rejected the appellant’s contention and dismissed the appeal holding thus:
“the right to an appeal is not a self-executing constitutional right; rather, the constitutional provision is executed by an enabling statute to secure the enjoyment of the right and that the appeal provision of the law do not restrict the constitutional right of appeal.”
The Court also held that:
”the legislative intent is to ensure that in the process of exercising one’s right of appeal, the constitutional right of the adverse party to a fair and speedy trial is protected.”Id.94
Also, in the case Toe v. FrontPage Africa Newspaper, Supreme Court Opinion, March Term, A.D. 2013, this Court acknowledged the equal rights of all the parties in the appeal process when it held thus:
“the framers of the Constitution had an equally important concern on their minds when they entrusted to the Legislature the prerogative of designing a framework for the orderly pursuit of appeals to the Supreme Court. They were cognizant of the provision of Article 11 which states that all persons are equal before the law and that all persons are entitled to the equal protection of the law.”
The Court further held:
”the Equal Protection Clause ensured that the rights of all parties, as in the case of appeals the rights of the appellant and the appellee, are protected. The framers were aware that in granting the right of appeal to an aggrieved party, there was also a corresponding need to ensure that a successful party was equally secured and protected under the law…The appeal provision of the statute therefore left to the Legislature and imposed on that body the duty and the obligation to strike a balance between the rights of the parties”.
Constitutionally, any laws, treaties, statutes, decrees, customs and regulations found to be inconsistent with the Constitution, to the extent of the inconsistency, shall be void and of no legal effect and the Supreme Court, pursuant to its power of judicial review is empowered to declare any such inconsistent laws unconstitutional. 1986 Constitution Article 2. We hold the view that Article IV§ 3 of the Act creating the Commercial Court and such other appeal provisions are not inconsistent with the constitution.
It is the law hoary with age, that:
“it is not within the province of the Supreme Court to add or subtract from legislation where the meaning is so plain. To declare what the law is, or has been, is a Judicial power; to declare what the law shall be is legislative. Shannon v. Liberia Trading Corporation. 7LLR 66 81(1974), Buchanan v. Arrivets, 9LLR 16, 19 (1945), George v. Republic, 14UR 158 159 (1960), Multinational Gas and Petrochemical Company v. Crystal Steamship Corporation, [1978] LRSC 36; 27 LLR, 198 205 (1978),Vijayaraman v. Xoanon, 42UR, 47 56 (2004),
In keeping with the constitutional principles of separation of powers this Court is not and will not be concerned with whether or not a piece of legislation is wise, unwise, oppressive, democratic or undemocratic, since the special function of the court is to interpret. If a legislation is pernicious or unwise it can be remedied by the people who, where the legislature refuses to change the law, may change their representatives in the legislature from time to time until such repugnant legislation is repealed. The Management of BAO v. Mulbah 36LLR 404 (1989).
We hold that Article IV (3) of the Commercial Court Act is constitutional and complementary to Article 20b of the 1986 Constitution and therefore this Court will not declare same unconstitutional.
Having declined to declare Article IV(3) of the Commercial Court Act unconstitutional, will mandamus lie?
Our Civil Procedure Law provides that, mandamus is a special proceeding to obtain a writ requiring the respondent to perform an official duty. Civil Procedure Law, Rev. Code 1:16.21.2. The Supreme Court held that “mandamus will not as a general rule [be] issued to review an exercise of a judicial discretion…..” King v. Howard 9LLR 135, 143 (1946). The Court has also held that while mandamus may be employed to compel an inferior tribunal to act or to exercise its discretion, the particular method of acting or manner in which the discretion shall be exercised will not be controlled.”
The Petitioners have advanced the argument that the approval of the appeal bond is a mandatory requirement of the trial judges and that the judges’ refusal to approve same was a denial of their constitutional right to appeal. The petitioners therefore prayed this Court to compel and mandate the Commercial Court Judges to approve their appeal bond claiming that it is a pre-requisite for the completion of the notice of appeal. Conversely, the co respondent has argued that the approval of the appeal bond is not a mandatory requirement or pre-requisite for the completion of an appeal from a judgment of the Commercial Court instead the only condition precedent for a party seeking an appeal from the Commercial Court’s judgment is the payment of the judgment sum.
As stated earlier the applicable provision of the Commercial Court’s Act relating to appeal, provides that
“payment of the full amount of judgment shall be a condition precedent for the completion of an appeal from a judgment of the Commercial Court, but the appeal bond, which may be required of the appellant shall be exclusive of the amount of the judgment paid.” Article IV § 3 of the Act creating the Commercial Court [Emphasis Ours]
In the case Brewer v. Mathies et al., 41LLR 229 (2002), we interpreted the word ‘may’ constitutes discretion as compared to the word ‘shall’ which is mandatory, Hence, the wording of the quoted statute regarding the payment of the judgment amount is mandatory while the requirement of the appeal bond is discretionary. However although the filing of an appeal bond is discretionary with regards to the Commercial Court, we must quickly state here that where said discretion is applicable, the requirement for filing of the bond shall only be for the purpose of satisfying the cost of court and not for the satisfaction of the judgment amount or to indemnify the successful party.
Mr. Justice Wright delivering a unanimous decision of this Court in the Brewer case stated:
“the duty of a judge is either mandatory or discretionary depending on the circumstances upon which the duty is imposed upon the judge, or it is depended upon the dictates of the statute which imposes the duty.”
And also:
“judicial discretion is defined as a ‘liberty or privilege’ to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law, and [that the] exercise of such discretion is reviewable only for abuse thereof.”
Nowhere in the records or in argument before us show that the petitioners were required to file an appeal bond before proceeding to the next step of completing their appeal to this Court; neither the statute nor the judges of the Commercial Court have mandated the petitioners to file an appeal bond for the purpose of completion of an appeal. The only mandatory addendum to those steps found in the wording quoted from the Commercial Court Act is the ‘payment of the judgment amount’. Had the Act made it mandatory for the filing of an appeal bond to complete the process of an appeal from a final judgment of the Commercial Court, then and there, failure of the court to approve the bond would be tantamount to refusing to perform a mandatory statutory duty for which mandamus may properly be invoked.
Therefore Mandamus will not lie to compel the performance of a discretionary duty, especially where there is no showing that the court required a bond by the petitioner or that it abused its discretion.
Ordinarily, our holding should conclude these mandamus proceedings. However, this Court notes that the proceedings with respect to the action of debt having been concluded by a final judgment by the panel of judges rendered on January 9, 2014; and in consonance with precedent to discourage the hearing of cases in piece meal; and this Court being authorized by law to give a judgment that the lower court should have given, have determined that as a matter of substantive justice, will also delve into the merits and dispose of the debt action.
Having already stated the facts and circumstances of the debt action the applicability of the remedial writ, the Court will address a collateral issue which is whether or not the trial court erred by entering summary judgment in favor of the respondent after the pre-trial conference.
In response to this issue, the respondent bank, plaintiff below argued before us that the trial judge correctly ruled and granted summary judgment immediately following the pre-trial conferencing indicating that there was no material issue of fact to be forwarded the trial since the petitioners have already made an admission of their indebtedness to the bank. The petitioners on the other hand, have argued in the affirmative, stating among other things that the court should have ruled the case to trial to allow the production of oral and documentary evidence to establish the sum certain. Strangely, this argument of the petitioners is also advanced along with the petitioners’ own admission and concession to the amount of US99, 292.24 (Ninety Nine Thousand Two Hundred Ninety Two United States Dollars, Twenty Four Cents) owed the respondent bank. Moreover, the petitioners have not indicated another amount to refute what the respondent bank had stated neither have they contested said amount, but only contended that the judge did not specify an amount in the order. What a contradiction!
It is worth noting that the petitioner’s counsel, Cllr. Farmere G. Stubblefield, signed the said order without any objections to count 3 which denied his motion to join the Government of Liberia neither did he object to count 4 which confirmed his clients’ concession of indebtedness to the respondent Bank. On May 28,2013, at the instance of the petitioners, the pre-trial order of April 3, 2013 was modified and corrected, specifically stating and re-affirming the amount of US99, 292.24 (Ninety Nine Thousand Two Hundred Ninety Two United States Dollars Twenty Four cents) owed the respondent. The petitioners conceded to this order by not registering any exceptions and we need not re-iterate that failure to note an exception to any such action shall prevent assigning it as error on review by the appellate court and we so hold.
Statute provides that
“at the conclusion of a pre-trial conference the court shall make a pretrial order reciting the action taken at the conference, including, but not restricted to, a statement of the issues for trial limiting them to those not disposed of by admissions or agreements of counsel, any leave granted for disclosure procedures, any disposition of motions and any agreements by the parties with respect to the extent or manner of proof at the trial. The order shall be signed by the court and attorneys and, when entered, it shall become part of the record, superseding the pleadings and controlling the subsequent course of action unless modified at or before trial to prevent manifest injustice.” (Our Emphasis) Civil Procedure Law, Rev. Code. 12:5
Thereafter, the records show that the judge rendered summary judgment in favor of the respondent ordering the petitioners to pay the amount of US$127,197.80 (One Hundred Twenty Seven Thousand One Hundred Ninety Seven United States Dollars Eighty Cent) representing the amount of US$99,292.24 sued for by the respondent bank, successful attorney fees, 12% annual interest and court’s cost, on grounds that the petitioners confessed their indebtedness to the respondent bank.
We are in complete agreement with the trial court’s granting the summary judgment in favor of the respondent bank on the legal basis that following the pre trial settlement conference there were no other genuine issues for which a trial could be held. The petitioners having made admissions to being indebted to the respondent Bank and agreed as per the judge’s order to enter into a stipulation of repayment with the bank of the amount owed, there were no legal grounds for the conduct of a full trial.
Our law provides:
”the court shall grant summary judgment if it is satisfied that there is no genuine issue as to any material fact and that the party in whose favor judgment is granted us entitled to it as a matter of law. When a motion for summary judgment is made and supported as provided in this section, the adverse party may not rest on mere allegations or denials of his pleading but his response by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue for trial; if he does not so respond, summary judgment, if appropriate, shall be entered against him.” Civil Procedure Law, Rev. Code 1:11.3(3), Dennis v. Philips [1973] LRSC 14; 21 LLR 506, 513 (1973); Sio v. Sio [1988] LRSC 40; 35 LLR 92, 98 (1988). [Emphasis Ours].
We hold that the trial court acted within the pale of the law when it granted summary judgment as there were no genuine issues as to any material fact for trial. Therefore, it is opinion of this Court that since Article IV § 3 of the Act creating the Commercial Court is constitutional and the writ of mandamus has been found to be inapplicable to the petitioners who have admitted and conceded to the judgment amount of US99,292.24 (Ninety Nine Thousand Two Hundred Ninety Two United States Dollars, Twenty Four Cents) owed the respondent bank, the judgment of the trial court is hereby affirmed and confirmed.
WHEREFORE, and in view of the facts and the applicable laws cited herein, it is the judgment of this Court that the alternative writ of mandamus is quashed and the preemptory writ denied. The petitioners are hereby ordered to pay forthwith the judgment amount ofUS$127,197.80 (One Hundred Twenty Seven Thousand One Hundred Ninety Seven United States Dollars Eighty Cent) representing the amount of US$99,292.24 sued for by the respondent bank, successful attorney fees, 12% annual interest and court’s cost.
The Clerk of this Court is ordered to send a mandate to the trial court to resume jurisdiction over this case and give effect to this judgment. Costs are ruled against the petitioners. AND IT IS SO ORDERED
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