BLAMA SANNOH, Appellant, v. VARNIE FAHNBULLEH, Appellee.

MOTION TO DISMISS APPEAL FROM THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT, BONG COUNTY.

Heard: March 23, 1982. Decided: 1July 1, 1982.

1. The certificate of property valuation of the Bureau of Revenue accompanying an appeal bond only confirms that the property offered by the surety and described in his affidavit is indeed in his name and that it is of the assessed value stated in the affidavit. It does not perform the duties of the affidavit of sureties.

2. An appeal bond is incomplete without sureties, and the sureties would not be bound if they subscribed their signatures without first knowing from the face of the bond what sum of money they bind themselves for.
3. Although the trial court approves the amount of indemnification to be provided for in the appeal bond, the failure to include the sum in the body of the bond renders it defective and dismissible.
4. An appeal bond which does not state in its body the amount of the bond, and which is not accompanied by an affidavit of sureties containing a statement of the total amount of the liens, description of the property offered as security sufficiently identified by metes and bounds to establish the lien of the bond, is defective, and therefore renders the appeal dismissible.
5. The requirements for the completion of appeal are all jurisdictional steps and failure to comply with any of the requirements within the time allowed by statute shall be ground for dismissal of the appeal.
6. Denial of a motion to dismiss an appeal does not bar the refiling of another motion to dismiss, if the first motion was not denied on its merits, but rather on the grounds that it was not filed at least twenty-four (24) hours before the hearing, and the hearing was not had upon the denial of the motion.

This is a motion to dismiss an appeal to the Supreme Court from a final judgement in cancellation proceedings in the Ninth Judicial Circuit, Bong County. Appellee alleges that the appeal bond does not state in its body the penal sum; and that the affidavit of sureties fails to state the value of the property offered as security; that it fails to describe the property sufficiently by metes and bounds to establish the lien on the bond.

The Supreme Court, holding that an appeal bond which does not state in its body the amount of the bond, and which is not accompanied by an affidavit of sureties containing a statement of the total amount of liens and description of the property is defective, sustained appellee’s contention, granted the motion and dismissed the appeal.

MR. JUSTICE SMITH delivered the opinion of the Court.

No appearance for appellant. M. Fahnbulleh Jones appeared for appellee.

An appeal in a cancellation proceedings instituted by appellant against appellee in the People’s Ninth Judicial Circuit Court, Bong County, Republic of Liberia, having been perfected, and while said appeal was pending before this Court, appellee filed a motion to dismiss the appeal for defectiveness of the appeal bond, alleging as follows:

1. That the appeal bond does not state in its body the penal sum as required by law to indemnify the appellee;
2. That the affidavit of sureties fails to describe the metes and bounds of the real property offered as security; and

100. That the affidavit of sureties does not carry in its body the value of the property offered as security.

In this motion, the appellee asked this Court to take judicial notice of its own record and dismiss the appeal on the grounds as substantially stated hereinabove.

Appellant filed a four-count resistance to the motion. In his resistance, appellant did not traverse any of the issues raised in the motion. Instead, appellant contended that a motion to dis-miss the appeal was once made by appellee when this Court was sitting en banc during the March 1981 Term, and that the motion was dismissed by the Court for violation of the law; and, therefore, appellee is estopped from filing the same motion to dismiss for the second time.

At the call of the case, counsel for appellant was not in Court and recourse to the Marshal’s returns to the notice of assignment shows that Counsellor Isaac R. Malobe, one of counsel of record for the appellant, was served but refused to sign the notice of assignment, stating as his reason, that he had a case assigned for hearing in the lower court for the same hour. Counsel for appellee, therefore, requested the Court for the invocation of the Supreme Court Rules, Rule 4, Part 6, Subsections (a) and (c), and to proceed to hear his side of the argument on the motion to dismiss since appellant’s counsel had filed a resistance to the motion. Rule 4, Part 6, subsection (a) and (c) reads as follows:

“Subsection (a)

The Clerk shall issue a notice of assignment to be served on counsel for each case docketed, which notice shall be served and returned by the Marshal before hearing.

“Subsection (c)

If a party appears, and the other party does not appear but files a brief, the Court will proceed to hear the argument of the party appearing, and render its decision on the basis of the brief filed and the argument of the party appearing. If one party appears and the non-appearing party has not filed a brief, the non-appearing counsel shall be given forty-eight hours to file a brief and appear for hearing of the case and the party shall be simultaneously informed of the non-appearance of the counsel and the postponement of the hearing for forty-eight hours. If, when the case is again called for hearing the party or counsel again fails to appear or file a brief, the Court shall proceed to hear the argument of the appearing party and rule thereon.”

In this case, counsel for both parties have filed their briefs and appellee’s motion to dismiss the appeal has been resisted by the appellant; hence, the Court granted the request and proceeded to hear argument of the appellee on the motion to dismiss.

We shall now address ourselves to the issues raised in the appellee’s motion to dismiss the appeal in the reverse order.

In count three of the motion to dismiss, appellee contends that the affidavit of sureties accompanying the appeal bond should have contained a statement of the assessed value of the real property offered as security as is required by statute. To decide this point of appellee’s contention, we must take recourse to the controlling statute on the point, and it reads, as follows:

“Affidavit of Sureties. The bond shall be accompanied by an affidavit of the sureties containing the following:

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

3.2. A description of the property sufficiently identified to establish the lien of the bond;

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

3.4. A statement of the assessed value of each of the property offered.” Civil Procedure Law, Rev. Code, 1: 63.2.

Let us take recourse to the affidavit of sureties as found in the record before us. It reads, as follows:

“Personally appeared before me, the undersigned, a duly qualified justice of the peace in and for the County of Bong, Republic of Liberia, at my office in the City of Gbarnga, Bong County, Republic of Liberia, Kamu Doubleh and Karmo Johnson, sureties for the above named petitioner/ appellant in the above entitled cause, and made oath according to law that each of them is the bona fide owner in fee simple of the real property offered as security in favor of the aforesaid petitioner/appellant in the above entitled cause of action, that said property being situated and located, as well as valued as indicated on the certificate of valuation issued over the signature of the proper authorized official of the Ministry of Finance of the Republic of Liberia; and that said properties are free from any and all liens, encumbrances, mortgages; and that all taxes on each piece of property offered as security have been fully paid to date; the assessed value of each piece of property being as mentioned supra, as will more fully appear on the face of the attached real estate certificate from the Real Estate Tax Division of the Ministry of Finance, R.L.” (Sic).

As can be observed from a glance at this affidavit, there is no statement of the assessed value of the property offered as security mentioned therein; there is also no description of the property in the affidavit, sufficiently identified to establish the lien of the bond as in keeping with subsection (b) and (d), and paragraph (e) of section 63.2 quoted hereinabove. The absence of such statement as required by the statute, supports the contention raised by appellee in counts two and three of his motion to dismiss.

However, according to the affidavit, there are attached thereto certificates said to have been issued from the Real Estate Tax Division of the Ministry of Finance, describing the metes and bounds of the property and stating the assessed value thereof. The questions which have arisen by this situation are: (1) Whether the certificate from the Ministry of Finance containing the description of the property and the assessed value not signed or sworn and subscribed to before a Justice of the Peace by the sureties can be considered as part of the sworn affidavit? (2) Can any property not described in the affidavit by the sureties and the assessed value stated therein, be legally seized by court in case of default? Our answer to these questions is no.

The prime purpose for obtaining a certificate of property valuation is to protect rights against fraud. The certificate of the Bureau of Revenues accompanying appellant’s appeal bond only confirms that the property offered by the surety and described in his affidavit is indeed in his name and it is of the assessed value stated in the affidavit. The certificate is to confirm that indeed the taxes on the property have been paid up to date or not, and whether there is any lien and other encumbrances against said property, which fact must have been stated by the surety in his affidavit and sworn to by him before a justice of the peace to the effect that, the facts as contained in the affidavit are true and correct. The Real Estate Tax Division is not required to perform the duty which is that of the sureties to perform.

In Taylor v. Pasi and Yarseah, [1977] LRSC 9; 25 LLR 453 (1977), this Court held that lack of proper description in the sureties’ affidavit by metes and bounds of the property offered as a lien of the appeal bond is ground for dismissal of the appeal.

The above quoted affidavit as sworn to by the sureties not having contained a statement of the description of the property to establish the lien of the bond and a statement of the assessed value of the property offered as security, counts two and three of the motion to dismiss must be sustained.

The salient issue raised in count one of the motion is, the lack of a penal sum in the body of the bond although the same is approved by the trial judge, who fixed the amount of the bond to be $4,200.00. This question has come up several times before this Court and there are numerous opinions on the question, one recalling the other. For the benefit of this Opinion, we quote hereunder the body of the appeal bond as filed by the appellant and attacked by the appellee as being defective:

“APPELLANT’S APPEAL BOND

KNOW ALL YE MEN BY THESE PRESENTS: That we, Blamo Sannoh of Kakata, Gibi Territory, R. L., petitioner/ appellant/principal and Kamu Doubleh and Karmo Johnson, both of the City of Kakata, Gibi Territory, R. L., sureties, being freeholders and householders within the Republic of Liberia, are hereby firmly held and bound unto the Sheriff for Bong County in the just and penal sum of $_______, good and lawful money current within the Republic of Liberia, to be paid to the respondent/appellee in the above entitled cause, his legal representative(s) jointly and severally by these presents.

The condition of this obligation is that we will indemnify the appellee from all costs and all injuries arising from the appeal taken by the above petitioner/appellant from the judgement of His Honour Eugene L. Hilton, presiding by assignment over the February, A. D. 1979, Term of the Ninth Judicial Circuit Court, Bong County, Republic of Liberia, rendered on the 16th day of March, A. D. 1979, against petitioner/appellant, and that the said petitioner/ appellant will comply with the judgment of the court to which the said action may be removed.”

As aforesaid, this bond was approved by the trial judge for the amount of $4,200.00 after it had been signed by the sureties and their witnesses without the penal sum fixed in its body. The question that has come up before this Court from time to time is, which of the amounts the law contemplates to be the penal sum for which the sureties, in case of default, can be legally held. Is it the amount fixed by the court at the time of the approval of the bond by the trial judge after the signatures of the sureties and their witnesses, or the amount fixed in the body of the bond before it is signed by the sureties and their witnesses? In other words, which of the amounts is the penal sum of the bond? Is it the amount fixed in the body of the bond or the amount fixed by the judge in the approval clause below the sureties’ signatures?

Our statute on appeal bond states, as follows:

“Every appellant shall give an appeal bond in an amount to be fixed by the court, with two or more qualified sureties, to the effect that he will 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 or of any other court to which the case is removed. The appellant shall secure the approval of the bond by the trial judge and shall file it with the clerk of the court within sixty days after rendition of judgment. Notice of the filing shall be served on the opposing counsel. A failure to file a sufficient appeal bond within the specified time shall be a ground for dismissal of the appeal; provided, however, that an insufficient bond may be made sufficient at any time during the period before the trial court loses jurisdiction of the action.” Civil Procedure Law, Rev. Code, 1: 51.8.

The above quoted statute has been construed and interpreted by this Court differently in many Opinions. In Saleeby v. Haikal, [1961] LRSC 17; 14 LLR 356 (1961), Mr. Justice Pierre speaking for this Court held that, fixing the penalty of a bond is the sole responsibility of the judge and, as long as he fixes it, his manner of doing so cannot be questioned by the parties nor can it adversely affect the interest of either side in the case. In that case, as in the instant case, appellee filed a motion to dismiss the appeal on the ground that the amount was omitted in the body of the bond. The Court denied the motion, holding that it did not appear to the Court that the appellant’s failure to have inserted the amount in the body of the bond could in any way erase the judge’s act of fixing an amount as penalty when he approved the bond, nor is the document shown to have been filed without a penalty.

In 1963, this Court in Mark-Reeves v. Republic, [1963] LRSC 7; 15 LLR 229 (1963), recalled the Pierre Opinion in Saleeby v. Haikal supra. Mr. Justice Mitchell, speaking for the Court, held that it was evident that the statute imposed two separate and distinct duties upon the judge. First, he is required to fix the amount that must be laid in the body of the bond; and this must be done before the sureties subscribe their signatures thereto, because they are supposed to know and accept the penal sum by which they are concurrently bound with the appellant. In the second place, the judge is again required to approve the bond, which cannot be done until after the principal and the sureties have subscribed their signatures thereto. The Court held that the bond itself is incomplete without sureties and that sureties would not be bound if they subscribed their signatures without first knowing from the face of the bond what sum of money they bind themselves for.

In support of this view of the learned Justice aforesaid, with which we are in perfect agreement, he quoted 11 C.J.S., Bonds, § 13, which reads as follows:

“It is essential to the existence of a bond that it contains an obligation which is an undertaking by the obligor to pay a sum of money to the obligee, and accordingly a bond will not be valid in which the amount of penalty thereof is omit-ted and a judgment thereon cannot be sustained, as such omission is a defect which cannot be supplied by oral proof of the amount intended.”

Mr. Chief Justice Wilson, also speaking for the majority of the Bench, in McBourough v. Nimley, [1963] LRSC 36; 15 LLR 366 (1963), cited Reeves v. Republic as controlling on the point, and held in that majority opinion that the defectiveness of an appeal bond from which the specific amount of the obligation undertaken by the sureties was omitted at the time the bond was executed, cannot be cured by the court’s subsequent fixing of the amount and the approval of the bond. In Jackson et. al. v. Eastman-Mason[1972] LRSC 25; , 21 LLR 216 (1972), this Court also held that although the trial court has approved the amount of indemnification to be provided for in the appeal bond, the failure to include the sum in the body of the bond renders it defective and subjects the appeal to dismissal. The opinion rendered in Saleeby v. Haikal, [1961] LRSC 17; 14 LLR 356 (1961), is therefore hereby recalled.

Whilst this Court is inclined to discourage the dismissal of an appeal where the motion to dismiss is unmeritorious, and go into the merits and demerits of the case to impartially decide the rights and wrongs of the parties, the Court would be remiss to ignore a mandatory provision of the statute which defines the grounds upon which appeals may be dismissed, where the mandatory jurisdictional steps are disregarded by the appellant. Under our appeal statute, a defective appeal bond is a ground for the dismissal of an appeal. Civil Procedure Law, Rev. Code, 1: 51.8. An appeal bond which does not state in its body, the amount of the bond, and which is not accompanied by an affidavit of sureties containing statement of the total amount of the liens, description of the property offered as security, sufficiently identified to establish the lien of the bond, is defective and, therefore, renders the appeal as taken, dismissible. Ibid, 63.2(2) and (3). Where an appeal bond contains no monetary provision, the bond is defective and a motion to dismiss the appeal will be granted. Mingle v. Richards, [1953] LRSC 1; 11 LLR 323 (1953).

As noted earlier in this opinion, the appellant has filed a resistance to the motion to dismiss the appeal, but did not deny the allegations set forth in the motion as constituting the grounds for the dismissal of the appeal. Rather, appellant contended that when the case was called during the March, A. D. 1981 Term of this Court, appellee made similar motion and it was denied by Court, and, therefore, he is estopped from making the motion for the second time.

According to our appeal statute, Civil Procedure Law, Rev. Code, 1: 51.4, filing of a bill of exceptions, filing of an appeal bond, and service and filing of notice of completion of the appeal are all jurisdictional steps. Failure to comply with any of these requirements within the time allowed by statute, shall be ground for dismissal of the appeal. The appeal must therefore be dis-missed because the appellant has not exercised diligence to confer jurisdiction on the appellate court to hear the appeal. Jurisdiction of a court over the subject matter can be raised at any time up to judgment. Hill v. Republic, [1925] LRSC 7; 2 LLR 517 (1924).

The motion referred to by the appellant was made without giving the appellant twenty-four hours before hearing. Rule 1 of the Supreme Court Rules, Part 2. The Court, therefore, denied the motion, but did not hear the appeal at that time. It is our opinion that the appeal not having been heard, the appellee has the right to question the jurisdiction of the Court to hear the appeal at any time before judgment, because of material defect of the appeal bond. Appellant’s resistance is, therefore, not sustained.

In view of the foregoing and the citations of law hereinabove made, it is the considered opinion of this Court that the motion to dismiss the appeal be, and the same is hereby granted, and the appeal dismissed with costs against the appellant.

It is also our considered opinion that a lawyer who negligently handled his client’s case, should not go unpunished. Counsellor Isaac R. Malobe is one of the counsels of record for the appellant in this case. It was his binding duty as appealing counsel for his client, to have prepared and filed an appeal bond with all the necessary requirements; instead, he negligently presented an insufficient and defective appeal bond for his client, despite the fact that the lawyer/client relationship had been established. But still worst was the failure of the learned counsel to honor the notice of assignment from this Court for the hearing of his client’s case which he had appealed to this Court. The learned counsel, in his attempt to refuse honoring the Supreme Court’s precept, told the Court’s bailiff (Peter Paul) who was serving the assignment that he had a case assigned in the lower court, and hence, he could not attend upon the Supreme Court’s assignment. In the meantime, the learned counsel attempted to offer the bailiff an amount of $1.00 to inform the Marshal that he did not see him. As a warning, not only to Counsellor Malobe but also to all members of the Supreme Court Bar, the learned counsel is hereby fined in the sum of $200.00 to be paid within forty-eight (48) hours; otherwise, the Clerk of this Court is hereby ordered to issue a commitment and place same in the hands of the Marshal, who shall have the Counsellor imprisoned in the common jail of Montserrado County, and there remain until the fine is paid and a revenue flag receipt exhibited to the Justice presiding in Chambers, who shall then order his release.

The Clerk of this Court is hereby ordered to send a mandate to the court below to resume jurisdiction over the case and enforce its judgment. And it is hereby so ordered.

Motion granted; appeal dismissed.