ABDALLAH SHERIFF, Appellant, v. LARMIE SESAY and EMANUAL GBALAZEH, Assigned Judge, presiding over the August 1967 Term, Tenth Judicial Circuit, Lof a County, Appellees.

APPEAL FROM RULING OF JUSTICE IN CHAMBERS DENYING ISSUANCE OF WRIT OF MANDAMUS. Argued March 21, 1973. Decided April 26, 1973. 1. Trials de novo in the Circuit Court on appeal from lower courts shall be conducted as though an action had been instituted in the first instance therein, which contemplates the designation of parties in the Circuit Court as plaintiff and defendant. 2. Remedial process by way of mandamus to compel approval by the trial judge of a bill of exceptions must be applied for within the time allowed by statute to tender the bill. 3. Such timeliness of application is permissible even on the last day for tender, since the writ of mandamus issued may compel approval of the bill by the judge nunc pro tune. The appellant herein appears to have successfully brought an action in debt in the Magistrate Court against the present appellee, from which he appealed to the Circuit Court where the case was tried de novo. The judgment was reversed in the Circuit Court and an appeal was sought to be taken by the losing party. However, the bill of exceptions does not appear to have been timely presented to the trial judge, as the Supreme Court in this opinion determined after examining the evidence. An alternative writ of mandamus was obtained, but it appears that the peremptory writ to compel the respondent judge to approve the bill of exceptions was denied and an appeal taken to the full bench from the ruling of the Justice in chambers. Afflrmed. M. Fahnbulleh Jones for appellant. No appearance for appellees. 25 26 LIBERIAN LAW REPORTS MR. CHIEF JUSTICE PIERRE delivered the opinion of the Court. This case originated in the Magistrate Court in Lofa County with Abdallah Sheriff appearing to have sued Larmie Sesay for debt. From what the record shows, it appears judgment was rendered for the plaintiff, and the defendant appealed to the Circuit Court. It also appears that Judge Emanuel Gbalazeh reversed the judgment of the Magistrate Court. But looking at Judge Gbalazeh’s returns filed to the alternative writ of mandamus, it does not seem clear that Abdallah Sheriff was the plaintiff and Larmie Sesay the defendant in the de novo trial. The record in this case is so mixed up and garbled that we find it difficult to get some sense out of the case. One would have thought that the trial judge would have cleared up some of the general confusion evident in the problem as to who were really plaintiff and defendant in the case before him, when he heard it on appeal in the Circuit Court. But the record shows that the judge helped to compound the confusion. Abdallah Sheriff announced an appeal on December 15, 1967, from the judge’s ruling in the Circuit Court. The next day, December 16, he presented his appeal bond for approval by the judge. The bond was duly approved, and the judge left the circuit for his home in Nimba County. Incidentally, there is no indication in the record as to why Sheriff’s lawyers elected to prepare and present for approval the appeal bond before the bill of exceptions. On December 21, 1967, six days after judgment had been rendered and the bond approved by the judge, counsellor C. L. Simpson in Monrovia wrote to attorney Joseph Kennedy in Bong County. It is important to keep in mind that the letter was sent to Bong County and not Lofa County, where the case had been tried. In effect, the letter pointed out the steps to be taken for the LIBERIAN LAW REPORTS 27 appeal and emphasized the need for the judge’s approval of the bill of exceptions within the ten days allowed after rendition of judgment. We have not been able to find in the record any reply from Mr. Kennedy to this letter. But on December 25, 1967, counsellor Simpson wrote another letter to lawyer Kennedy and as can be seen, between December 21, when the first letter was written, and December 25, when the second letter was written, lawyer Kennedy had changed status from attorney to counsellor. The letter referred to an enclosed bill of particulars and pointed out that December 26 was the last day for filing the approved bill. These two letters together with the bill of exceptions referred to in the letter of December 25 are exhibits A, B, and C, annexed to petitioner Abdallah Sheriff’s answering affidavit. On December 27, 1967, attorney C. Benedict Kennedy wrote from Voinjama, in Lof a County, in answer to counsellor Simpson’s second letter of December 25, in which he said among other things, “[Joseph] Kennedy was not in town. However [since the judge left for Nimba County] we filed [the bill] with the Clerk of the Tenth Judicial Circuit Court on December 25 and posted a copy to the judge” [for which he had a postal receipt]. Special note should be taken of the fact that according to this letter, the bill of exceptions was supposed to have been filed in the clerk’s office in Voinjama on December 26, 1967, and a copy posted to the judge who had left for Nimba County. Normally, filing and posting in this case on the tenth day plus one, since the tenth day was Christmas Day, would be in order. We have no quarrel with this phase of the case, if the information contained in this letter is true. Incidentally, this letter shows that cousellor Simpson’s instructions contained in his letter of December 2 1, and especially those instructions contained in the letter of December 25, had been carried out to the 28 LIBERIAN LAW REPORTS letter. But let us continue and see if it is true that the bill of exceptions was filed and/or posted on December 26. Not getting any reaction from the judge with respect to the approval of the bill of exceptions, the Simpson law firm filed a petition for a writ of mandamus on February 6, 1968, praying that Judge Gbalazeh be compelled to approve their bill of exceptions in order that they might complete their appeal. Count one of the petition, alleging that the bill of exceptions was filed on December 23, completely refutes the statement made in C. Benedict Kennedy’s letter of December 27, 1967, in which he stated that he had filed the bill of exceptions in the clerk’s office in Voinjama on December 26, 1967. These two statements referring to the filing date of the same bill of exceptions, are irreconcilably inconsistent. It is clear, therefore, that one must be false and the other might be true.. But which is false and which might be true? Moreover, the inconsistency of these two statements creates a doubt as to the truthfulness of either of them. At the time the appeal bond was prepared and presented for approval, why was not the bill of exceptions also prepared and presented? This question is especially significant, considering that whereas the bill of exceptions must be presented for approval within ten days, the appeal bond need not be tendered for approval till the sixtieth day after judgment. The inconsistency in these two statements with reference to the filing date of the bill of exceptions, makes it difficult for us to eradicate from our minds the possibility of a story manufactured to cover the neglect to timely file a bill of exceptions. Exhibit D attached to petitioner’s answering affidavit is a copy of a purported receipt for the registered mail containing the bill of exceptions alleged to have been sent to Judge Gbalazeh in Nimba on December 26. It is unusual that a registered letter seems to completely LIBERIAN LAW REPORTS 29 have disappeared between Voinjama and Sanniquellie and that up to the time this case was argued in the Supreme Court no serious effort had been made to trace it. It occurs to us that if this letter was registered, two post offices would be involved ; the sending post office, and the receiving post office. It should be considerably easy for the Ministry of Posts and Telegrams to have requested certificates from both of these offices certifying (a) that Voinjama had dispatched the piece of mail on December 26, 1967, and (b) that Sanniquellie had either received or failed to receive it. And if it had been received in Sanniquellie, who signed for it? During argument before us, we particularly inquired of the petitioner’s counsel why this course had not been followed. His answer was less than convincing. This has only strengthened our doubts that the bill of exceptions was ever registered in the Voinjama post office. The respondent judge in his returns unequivocally denies that any bill of exceptions in the matter was ever presented to him, except for some overtures which seemed to have been made to him for his approval of a bill after the time for filing one had expired. In addition to this positive denial by the judge of having ever seen or refusing to approve the bill of exceptions, we also have doubts that any post office would refuse or neglect to deliver a piece of registered mail addressed to the judge of a county. On the other hand, if this mail was received in Sanniquellie and delivered to the judge, a proper approach to the Ministry of Posts and. Telegrams would have satisfactorily cleared up this dot bt. Returning to the question of who was plaintiff and who was the defendant before Judge Gbalazeh, we mist hear in mind that the judge in the Circuit Court was hearing this matter on appeal from the Magistrate Court The Civil Procedure Law requires that “The hearing upon an appeal from a judgment of a magistrate or a justice of the peace shall be a trial de novo, except that issues of ? 30 LIBERIAN LAW REPORTS law may be determined on oral argument without the introduction of evidence.” Rev. Code 1 :52.5. We interpret this statute to mean that in trials de novo the Circuit Court will hear cases as if they had not been heard before. In other words, that the parties appearing as plaintiffs and defendants in the magistrate courts, will also appear as plaintiffs and defendants before the circuit courts in de novo hearings. According to the record in this case, petitioner Abdallah Sheriff has been referred to in the documents made profert with the petition, returns, and answering affidavit, as “appellant” and also as “appellee,” and sometimes as “appellee-appellant.” The unapproved bill of exceptions, the crux of these proceedings, demonstrates as well the same confusion throughout. We are not convinced that there has been a timely tendering of the bill of exceptions for approval, which was refused by the respondent judge. Only in such circumstance would granting the petition for mandamus be warranted in this case. This Court has held over and again that under our Civil Procedure Law it is the duty of the appealing party to tender a bill of exceptions for approval by the trial judge within ten days after rendition of judgment, and to file it after it has been signed. 1956 Code 6:1012. In superintending an appeal, every effort should, therefore, be made to see that the ten days do not elapse without conclusive evidence of compliance. This Court cannot grant compelling orders, even nunc pro tunc, on the strength of the petition filed in February 1968, for approval of the bill of exceptions alleged to have been filed December 26, 1967. We take the view that had the application for mandamus been filed within ten days after judgment was rendered, even on the tenth day there would have been proper grounds for granting the petition, and ordering nunc pro tunc approval of the bill. According to the judge’s returns, counsellor Simpson is alleged to have approached him on December 29, 1967, and again on January 12, 1968, and requested approval of LIBERIAN LAW REPORTS 31 the bill of exceptions. Both of these dates were beyond the statutory time for approving this document. It is our opinion that remedial process to compel approval of a bill of exceptions must be applied for in time, that is, in case of bills of exceptions, before the ten days expire, in order to effect the remedy sought. The writ will not ordinarily be granted to compel performance of an act unless the act is actually due from the respondent at the time of the application. Mandamus will compel the performance of a duty, but only where it can be shown that such performance has been properly demanded and refused. The time permitted for approval of the bill of exceptions having expired before application for mandamus was made, issuance of the peremptory writ must be denied. It is so ordered. Zfflrmed.