MOIGBE SIRLEAF, Appellant, v. VARMUNYA SHERIFF, Appellee.

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

Heard: April 22 & 26, 1982. Decided: July 8, 1982.

1. The statutory requirements for an appeal bond are mandatory and not discretional.

2. The description of property in an affidavit of sureties must be such as to make identifying the property an easy exercise, and the best means to achieve this is to state the number of the plot as well as the metes and bounds of the property.
3. Where the property offered as security on the bond has a prior lien and other encumbrances, it is the duty of the appellant to state the amount of such liens and encumbrances against said property in the affidavit.

These appeal proceedings are a result of a final judgement in favor of defendant, now appellee, in an action of ejectment rendered by the People’s Tenth Judicial Circuit, Lofa County, to which plaintiff, now appellant, excepted and announced an appeal. Appellee moved the Supreme Court to dismiss the appeal on grounds that the property offered as security is not sufficiently described in the affidavit of sureties for the purpose of identification; that the property has a prior lien on it; and that no taxes had been paid on it. The Supreme Court, holding that the statutory requirements of an appeal bond are mandatory and not discretional, sustained appellee’s contentions, granted the motion, and dismissed the appeal.

M. Fahnbulleh Jones appeared for appellant, while Clarence E. Harmon appeared for appellee.

MR. JUSTICE SMITH delivered the opinion of the Court

This ejectment case came on appeal before this Court from the People’s Tenth Judicial Circuit Court, Lofa County, appellant being the plaintiff in the Court below and appellee the defendant. The case came up for trial during the May 1981 Term of that court, presided over by His Honor Napoleon B. Thorpe, by assignment. A trial jury was selected, sworn and empanelled to try the issues joined between the plaintiff and the defendant. Following presentation of evidence by the parties and arguments of counsel for the plaintiff and the defendant, the court below instructed the empanelled jury, and they retired to their room of deliberation to consider their verdict. After due deliberation, the empanelled jury on the 1st day of July, 1981, returned a unanimous oral verdict in favor of the defendant to the effect that, he was entitled to his house, to which verdict plaintiff excepted. On the 7th day of July, 1981, the trial court entered final judgment confirming the verdict and adjudging the defendant not liable in the case, and ruled plaintiff to all costs. Plaintiff again noted exceptions, announced an appeal, and has brought this case to this Court of final review on a bill of exceptions.

While this case was still pending before this Court on appeal, appellee filed a motion to dismiss appellant’s appeal on the ground of defectiveness of the appeal bond, stating substantially that: (1) the property offered as security is not sufficiently described in the affidavit of sureties for the purpose of identification; (2) that said property had been previously offered as security in an appearance bond in keeping with the notation made by the officer of the revenue service on the certificate of property valuation; and (3) that one of the sureties, Amara Konneh, has paid no taxes on the land offered as security. For the benefit of this opinion, we quote hereunder the affidavit of sureties and the certificate of property valuation accompanying the appeal bond:

“AFFIDAVIT OF SURETIES

“Personally appeared before me., a duly qualified Justice of the Peace for Lofa County, Amara Konneh and James Z. Kennedy, sureties for the appellant in the above cause of action and being duly sworn depose and say:

1.1. That they are the sureties to the plaintiff/appellant’s appeal bond whose names appear in said bond in the above entitled cause of action.

1.2 That they are the owners in fee simple of real properties offered as security to the said bond.

1.3 That the real property of Amara Konneh is lot No. ___ and is bounded and described from Baytajal Creek and that of Mr. Richard S. D. Kaymah within the Voinjama District, Lofa County, R.L.

1.4 That surety James Z. Kennedy owns a property which values $6,800 (Six Thousand Eight Hundred Dollars) as hereto attached, bounded and described as follows:

“Commencing from a point thence running 32 degrees 82.5 ft., thence running from a point 40 degrees 132 feet to another point, thence running 32 degrees 82.5 ft. to a point 132 ft. to the place of starting.”

1.1. That there are no liens, unpaid taxes and other encumbrances against any of the real properties offered as security, as will more fully appear from a certificate of the Bureau of revenues hereto attached in favor of Surety James Z. Kennedy to appellant’s appeal bond. . . .”

This affidavit was sworn and subscribed to before Justice of the Peace William K. Sengbe by the sureties on the 30th day of July, 1981. Below is also quoted the certificate of property valuation from the Bureau of Revenues accompanying the appeal bond:

“TO WHOM IT MAY CONCERN

PROPERTY VALUATION CLEARANCE

CERTIFICATE IN FAVOR OF MR. MOIGBE SIRLEAF

This is to certify that the below listed property owner has fully met up with his obligation in the amount of thirty four dollars ($34.00) on Official Flag Receipt No. 1926301 dated August 1981.

Names James Z. Kennedy, lot No. N/N located Voinjama City, value a/paid $6,800 – $34.00. Also said property Valuation fee of Ten Dollars ($10.00) on Official Flag Receipt No. IR/192602, dated August 1, 1981. Hence, he is hereby granted this certificate of clearance. Note: The above mentioned property owner stood an appearance Bond or Mr. Jonah V. Johnson, December 23, 1980.

Counsel for the appellee, in arguing his motion to dismiss, contended that besides surety Amara Konneh’s property not having been described at all in the affidavit of sureties, there is no evidence of the payment of taxes thereon; that the description of Surety James Z. Kennedy’s property in the affidavit is insufficient to identify said property in order to establish the lien of the bond. Appellee strongly argued that although the description of the piece of property shows that it commences from a point several degrees and feet to the place of starting, but whether the degrees run east or west, north or south, the description does not show. He argued further that although the affidavit of sureties states that there were no liens and encumbrances against any of the real property, yet the certificate from the Bureau of Revenue plainly states on its face that the property owner had already stood as surety to an appearance bond for one Jonah V. Johnson. Hence, said property offered as security in this case is not unencumbered as stated by appellant, it having been previously pledged as security. Appellee therefore contended that there are liens and encumbrances against said property of James Z. Kennedy.

While arguing his side of the motion, counsel for appellant contended that the motion to dismiss the appeal is false and misleading in its entirety, and asked the Court to take judicial notice of the affidavit of sureties attached thereto. Continuing his argument further, the learned counsel for appellant argued that neither of the parties to the case nor the court was a surveyor, and, therefore, the possibility of determining the metes and bounds of the property remained solely with the purview of the surveyor, who as an expert was responsible, in his own words, “to make the necessary description in the deed and not myself nor the court.” Counsel for appellant also contended that the property was bought in the sixties and that the metes and bounds of the property have been described in the deed.

We must note here our full agreement with counsel for appellant that, the court is not a surveyor and that neither the parties nor their counsels, are experts to determine the metes and bounds of the real property offered as security to the appeal bond. Therefore, where the property of the sureties to an appeal bond is not sufficiently described, it would be impossible for the court to identify the same for the purpose of a judicial sale to satisfy the judgment in the event that the appellant is not successful on appeal, and he and his sureties are unable to comply with the judgment of the court. However, the learned counsel has asked us to take judicial notice of the affidavit of sureties, which in our opinion, will lead us to an unerring conclusion in the determination of the issues as to whether or not it meets the requirements of the law.

Recourse to the subject affidavit, quoted herein above, shows that the property of Surety Amara Konneh is not described by its metes and bounds as the law requires. There is also no certificate from the Bureau of Revenues to show that the property referred to in the affidavit of sureties is owned by said surety, and that it is of the assessed value on which taxes have been paid up to date, which seems to support the contention of the appellee.

It should be noted here that although the value of the property of Surety James Z. Kennedy as certified by the Bureau of Revenues is sufficient to cover the value of the appeal bond, in view of the fact that the aforesaid property had been previously offered as security in an appearance bond, said property should have been sufficiently identified in the affidavit to establish the lien of the appeal bond.

We have also observed from a further inspection of the affidavit of sureties, that the description of the property does not so state for the benefit of the Court in case of a breach of the terms and conditions of the appeal bond, the quantity of Surety James Z. Kennedy’s real property; that is, whether it is a lot or two or so many acres of land. Furthermore, from a careful perusal of the description of Surety James Z. Kennedy’s property, we observed that it commences from a point so many degrees and feet until it reaches the place of commencement, but whether it runs east or west, north or south, the description does not so state, thereby making it impossible to identify the property offered in order to clearly establish the lien of the bond. The number of the lot and the number of plot are also not mentioned in the description. Under such conditions, the question that has come to mind is, how can the real property of each of the sureties be located and identified by the court or a surveyor when the metes and bounds are not clearly described.

The filing of an appeal bond is an undertaking designed to obligate and bind the appellant and his sureties to the Republic of Liberia to indemnify the appellee from all costs and injury arising from the appeal taken, if the appellant is unsuccessful, and that the appellant will comply with the judgment of the appellate court or of any other court to which the case is removed. Civil Procedure Law, Rev. Code 1:51.8. Because the appeal bond must be in an amount to be fixed by the court, sufficiently calculated to indemnify the appellee, it is a legal requirement that it be secured by one or more pieces of real property located in the Republic of Liberia, owned by the sureties or one of them, and which shall have an assessed value equal to the total amount specified in the bond, exclusive of all encumbrances; such bond creates a lien on the real property. Ibid., 1: 63.2(2). According to paragraph 3 of the aforesaid section, on page 267 thereof, the bond shall be accompanied by an affidavit of the sureties, containing the following:

“(a) A statement that one of them is the owner or that both combined are the owners of the real property offered as security:

(b) A description of the real property offered, sufficiently identified to establish the lien of the bond;

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

(d) A statement of the assessed value of the property offered.”

A certificate of a duly authorized official of the Ministry of Finance to the effect that the property is owned by the surety or sureties claiming title to it in the affidavit, and that it is of the assessed value thereon stated, shall accompany such bond. These legal requirements are mandatory and not discretionary so that in case of inability of the appellant and his sureties to comply with the judgment of court, the said property offered as security and described in the affidavit of sureties, and only such property, could be exposed to public sale to raise money sufficient to indemnify the appellee and satisfy the judgment of court. This is the purpose of an appeal bond.

As we have already observed, the affidavit of sureties to the appeal bond in this case falls short in its description to sufficiently identify said property by metes and bounds as contemplated by law. The description of property in an affidavit of sureties accompanying an appeal bond, as contemplated by law, means that the number of the plot and the metes and bounds of the particular lots must be shown in the affidavit. Lamco J. V. Operating Company v. Verdier, [1977] LRSC 34; 26 LLR 180 (1977).

Also, in West Africa Trading Corporation v. Alraine (Liberia) Ltd., reported in [1975] LRSC 16; 24 LLR 224 (1975), this Court held that a sufficient description of realty in the affidavit of sureties means that the property must be described in order to make locating it on the ground an easy exercise. The Court suggested the best means to be the number of the plot of the land and its description by metes and bounds.

Another point of issue averred in appellee’s motion to dis-miss and argued before us is that, there was already a lien against the property of Surety James Z. Kennedy, as evidenced by the certificate of property valuation from the Bureau of Revenues, Ministry of Finance, which shows on its face that the said property had been previously offered as security in an appearance bond for one Jonah V. Johnson. Counsel for appellant in countering this issue in his argument, did not deny that the property had been offered as security in an appearance bond, but strongly contended that depending on the value of the bond, a piece of property could be offered as security for more than one bond, so long the value of such property is enough to cover the amounts involved in all such bonds; and that it was incumbent upon the appellee to have exhausted all means to ascertain the amount of the appearance bond referred to in order to show that the value of the property is not enough to be offered as security for the appeal bond. We cannot bring ourselves to agree with the argument of the counsel for appellant, that it was incumbent upon the appellee to ascertain what was the lien and other encumbrances against the property offered as security under the statute. According to Civil Procedure Law, Rev. Code, 1: 51.8, it is the appellant and not the appellee who is required to give an appeal bond. The Civil Procedure Law also mandatorily requires that the bond be accompanied by affidavit of sureties which must set forth the total amount of liens, unpaid taxes, and other encumbrances against each property offered. Ibid, 1: 63.2(3). The argument of counsel for appellant on this point is, therefore, unmeritorious. The amount of the lien against said property as a result of the appearance bond executed and referred to herein above, not having been stated in the affidavit as required by the statute, cited supra, the contention of the appellee must be sustained.

In view of all that have been said hereinabove and the legal citations in support of our position, we are of the considered opinion that the motion to dismiss should be, and the same is hereby granted. The appeal is therefore dismissed with costs against the appellant.

The Clerk of this Court is hereby ordered to send a mandate to the lower court commanding the judge presiding therein to resume jurisdiction over the case and enforce the judgment of the court. And it is hereby so ordered.

Motion granted.

MR. JUSTICE MABANDE dissents.

Appellant Moigbe Sirleaf instituted an action of ejectment against Appellee Varmuyah Sirleaf for three and one-half acres of land, lying and situated in Voinjama, Lofa County. Pleadings were thereafter exchanged and issues joined between the parties. Trial was held and judgment rendered in favour of Appellee Varmuyah Sirleaf. Appellant excepted to the judgment and appealed to this Court. During the pendency of the appeal, appellee filed a motion to dismiss the appeal. The motion alleged defects in the appeal bond and its supporting documents, as well as the insufficiency of the appeal bond. To this motion, appellant filed a resistance alleging that the appeal bond was sufficient and that it was not defective. The issues presented by the motion and the resistance thereto for our determination are: (1) whether an appeal taken from a judgment which awards no money must be supported by a bond? and (2) whether properties located all over the country must be described by metes and bounds in the affidavit of sureties.

Recourse to the bond showed that two sureties filed the bond along with the principal/appellant, but that one of the sureties had previously pledged the same property. The law requires that when a surety has previously filed a bond pledging any property, it is his duty, when pledging the same property to another, to specifically state how much value of the property was previously pledged. One of the appellant’s two sureties failed to do so. As it was a violation of the relevant law, it could render the bond defective to that extent. However, the defect of the pledged property of one surety of the sureties does not affect the pledge of the other surety. Indeed, appellee raised no issue of defect in the pledged property of the other surety. He, however, contended that the said property alone was not sufficient to cover the entire amount of the bond. Appellant, for his part, argued that as no amount was awarded by the judgment, it was not necessary and mandatory for him to post a bond.

An appeal bond is a contract between the appellant and the sheriff in which he promises to indemnify the appellee to the extent of the money judgment awarded.
A bond or a contract must be for a legal obligation assumed by a party. The consideration for an appeal bond is the promise of the appellant to pay to the appellee a sum certain in consideration of appellee foregoing immediate payment. Without any consideration, there can be no contract.

Where a judgment awards no monetary right or benefit to be conferred on the appellee, there can be no immediate settlement for him to forego as a consideration for a bond by the appellant. The law and appeal bonds and our rules of decision do not legalize the making of contracts without any consideration. Where there is no money judgment, there can be no financial liability imposed on the appellant to indemnify the appellee. Hence, a contract to give such an amount is without any foundation in law, as a contract cannot be made for a subject matter that does not exist or is impossible of existence. Thus, one cannot legally be compelled to promise to pay money when there is no monetary obligation. No such contract can be enforced when made. A contract on a subject matter that does not exist is illusory and therefore impossible of performance. The compulsory filing of such a bond is, in my opinion, an extortion and therefore legally unenforceable and invalid. A bond for a nominal amount may, however, suffice in such a case.

The Supreme Court has on several occasions held that real properties located all over the country, when pledged as security, need not be described by metes and bounds. In deciding this issues in the case Zayzay v. Jallah, [1976] LRSC 6; 24 LLR 486,488 (1976), the Supreme Court held:

“that however general and indefinite the description may be, if by extrinsic factors it can be made practically certain what property it was intended to cover, it will be deemed sufficient.”

Likewise in the case Richards v. Liberian Bank For Development and Investment, [1982] LRSC 14; 29 LLR 525 (1982), decided February 5, 1982, the Supreme Court held:

“In the case before us, the real estates are located in two small cities and are described by lot numbers. Deeds generally give four main descriptions of a parcel of land. Every deed must contain the names of the grantor and the grantee, the lot number, the name of the place where the specific property is situated, and an expert description of how it can be properly demarcated. In towns, villages and small cities, the names of the grantor and grantee may constitute reasonable description of the land. Inclusion of the lot number and its location in addition renders the description more precise.”

It is time to remind us that according to our previous decisions, and even four of our opinions delivered today, that mere legal technicalities that do not affect the merits of a case are not favored by the Supreme Court. Mitchell v. Fawaz, [1964] LRSC 8; 15 LLR 541 (1964); Levin v. Juvico Supermarket, [1974] LRSC 46; 23 LLR 201 (1974).

I disagree that the motion should be granted and therefore dissent.