Toe v Frontpage Africa et al. [2013] LRSC 33 (15 July 2013)
Toe v Front Page Africa Newspaper et al. [2013] LRSC 33 (15 July 2013)
Dr. Chris Toe of the City of Monrovia, Liberia, APPELLEE/MOVANT VERSUS FrontPage Africa Newspaper/FrontPage Africa Internet News Organ, represented by and thru its Managing Editor/Editor-in-Chief or authorized Representative, and Rodney N. Sieh and Samwar S. Fallah, Reporter of Oldest Congo Town, Monrovia, Liberia, APPELLANT/RESPONDENT
MOTION TO DISMISS APPEAL
Heard: OCTOBER 18, 2012 Decided: July 15, 2013
MR. JUSTICE BANKS delivered the Opinion of the Court.
Ordinarily, when a motion is filed to dismiss an appeal, and the failure by the appellant to comply with the requirements of the appeal statute in seeking to perfect an appeal taken from the judgment of a lower court of record to the Supreme Court, is so glaring and so blatant as not to warrant the delivery of an extensive opinion, this Court has opted to either enter a judgment without opinion or deal strictly, directly and summarily with the issue of whether the appellant has substantially violated the mandatory provisions of the appeal statute and therefore that a dismissal of the appeal is justified. The instant case presents one such situation where not only has counsels for the appellants conceded that there is significant and considerable violations of the requirements laid out in the appeal statute, and therefore that the motion to dismiss the appeal is legitimate and legally sound, both as to the law and the fact, but have also indicated effectively that the violations are the result of a display of utter indifference and callousness by the appellants to fulfill or even attempt to conform or comply with core mandatory requirements laid out in the statute governing appeals to the Supreme Court.
Under the circumstances stated above, this Court should feel obliged to simply dismiss the appeal by rendition of a judgment without opinion; or, in the alternative simply point out the violations that have been committed by the appellants and on that basis proceed to dismiss the appeal. We believe, however, that the rather unusual circumstances presented in this case, the very revealing mindset of the appellants, their seemingly hardhearted disregard for the appellate process, their continued display of indignity for and towards the judicial process and their seemingly deliberate disrespect for the constitutional guaranteed rights of other citizens, coupled with the recognition that they, the appellants, belong to the institution of the Fourth Estate [the Press], the fact that the law accords to that Fourth Estate the enjoyment of extensive and unfettered freedom to speak, investigate, inform and publish, and the magnitude of the value of the liability awarded to the plaintiff all dictate and compel us to not just dismiss the appeal but to explore in greater depth the issues that culminated in the motion to dismiss the appeal.
The Liberian Constitution, the highest and most sacred Law of the Land, accords and guarantees extensive and unbridled freedom of expression, including freedom of speech and of the press, academic freedom, freedom of thought, freedom of religion, to name only a few. That sacred document states, at Article 14, that: All persons shall be entitled to freedom of thought, conscience and religion and no person shall be hindered in the enjoyment thereof except as may be required by law to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. LIB. CONST., ART. 14 (1986).
Article 15 of the same instrument is even more extensive in the protection of those freedoms. It states:
a) Every person shall have the right to freedom of expression, being fully responsible for the abuse thereof. This right shall not be curtailed, restricted or enjoined by government save during an emergency declared in accordance with this Constitution.
(b) The right encompasses the right to hold opinions without interference and the right to knowledge. It includes freedom of speech and of the press, academic freedom to receive and impart knowledge and information and the right of libraries to make such knowledge available. It includes non-interference with the use of the mail, telephone and telegraph. It likewise includes the right to remain silent.
(c) In pursuance of this right, there shall be no limitation on the public right to be informed about the government and its functionaries.
(d) Access to state owned media shall not be denied because of any disagreement with or dislike of the ideas express. Denial of such access may be challenged in a court of competent jurisdiction.
(e) This freedom may be limited only by judicial action in proceedings grounded in defamation or invasion of the rights of privacy and publicity or in the commercial aspect of expression in deception, false advertising and copyright infringement. [Emphasis supplied]
These are amongst the most precious and cherished fundamental rights of this nation, and we recognize that without them our cherished democracy will be in grave danger of collapse. We are convinced that the framers of the Constitution knew why they determined to elaborate so extensively on these rights. They were aware and held fresh in their minds at the time the Constitution was being drafted how the nation and the people had suffered immensely from the lack of enjoyment of the right to express their thoughts and their conscience. Many of them recalled how they had been subjected to imprisonment because they had dared to express or champion the right to express their view; they were aware that democratic governance entailed the right to share information and the right to know; they were conscious of the fact that the development of the people depended on the extent to which they could be informed; they were sensitive to the reality that an uninformed people could expose the society to serious risk; they were aware of the impact that the deficiency, the lack of enjoyment of the right to unbridled freedom of expression presented for the nation and the people. Articles 14 and 15 of the Constitution were designed to give comfort to the people that a new era had emerged where political activists, academicians, the press and ordinary citizens could no longer fear that they could not express what they felt of the society, and particularly of public institutions.
But the framers of the Constitution were also cognizant of the prospects of abuse of the cherished fundamental rights that they sought to have the Constitution accord to all the people. They knew and believed that there was a need for a balance between the enjoyment of the fundamental rights and the abuse of those rights; and they were therefore very keen in stating that acknowledgment in the document. Thus whilst many provisions in the Constitution state that the rights mentioned above were to be enjoyed and that the enjoyment was not to be hindered, other provisions also stated that the enjoyment of the rights granted, whether of expression or of the press, of thought, of academic freedom, or the like, should not infringe on the rights of others, should not endanger the public safety, should not expose the nation and the people to health risks; should not disturb or hinder public order. But most of all, the Constitution recognized that those seeking or enjoying the fundamental rights surrounding expression and the press should be aware that in order that the rights of others are also guaranteed, the enjoyment of the right of freedom of expression and of the press be done responsibly and that the enjoyment was subject to accountability for any abuse thereof. ART. 15.
The framers clearly recognized that the right of the public to know did not vest in any person, including the press, the right to tell falsehoods, as in the instant case; to impute criminality to a person, in the absence of evidence to substantiate the claim. Thus, by inserting the
accountability or responsibility clause, the framers of the Constitution challenged the users of the freedom, especially the press, to undertake investigative reporting, as opposed to armchair reporting. They imposed on the public, the citizenry the obligation to tell the truth and not damage others by speculative devices; they imposed the duty on us, all of us, to ascertain the real facts, the truth, before publication is made that would impugn the reputation or image of a fellow citizen, whether big or small, rich or poor, educated or uneducated, and whether in the private or public sector. [REFER TO MINUTES OF CONSTITUTION COMMISSION]
This is the background around which the instant case is centered, the attempt by a citizen, acting pursuant to his constitutional guaranteed protect ion, to seek redress against the deliberate abuse of the right of freedom of the press and of expression. No law prevents him or any other citizen from seeking that protection, the same as the law protects the users and advocates of the freedom of the press and of speech. With this background, we proceed to recap the factual events, culled from the records in the case that culminated in the verdict returned by the empanelled jury, the judgment from whence an appeal was announced, and the failure by the appellants to seek to perfect that appeal.
Dr. J. Chris Toe, the appellee herein, a one-time Minister of Agriculture, filed in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, at its March Term, A. D. 2010, an eighteen-count complaint for libel against the defendants/appellants, the FrontPage Africa Newspaper, FrontPage Internet News Organ, Rodney D. Sieh, and Samwar S. Fallah. In the complaint, filed on May 10, 2010, the plaintiff/appellee alleged that the defendants/appellants, with malicious intent to injure his image and damage his reputation, developed over many years, had published in the newspaper and on the internet a number of deliberate false and malicious stories wherein they had accused him of the commission of acts which under the Penal Law of Liberia constituted crimes of the level of a felony of the first degree. The complaint stated that the allegations and accusations contained in the news stories published by the defendants/appellants, both in the local media and on international websites were lacking in any and all truthfulness; that the plaintiff had never been accused, charged, arrested, tried or convicted of any crime; that the publications of the defendants/appellant were designed solely to damage the good name and reputation of the plaintiff developed during his entire life and to have him, the plaintiff, exposed to local and international humiliation, ridicule and disgrace; and that the publications did have the effect of damaging the plaintiffs good character and reputation. The plaintiff therefore prayed that the court before which he had filed the complaint should enter judgment in his favor and award him an amount of two million United States Dollars (US$2,000,000.00), plus payment of all costs and expenses incurred by the plaintiff, growing out of and traceable to the defendants/appellants’ publication of the malicious and false stories wherein he was accused of the commission of criminal acts. For the benefit of this opinion, we quote herein below verbatim counts four (4), five (5),six (6),seven (7),eight (8), nine (9), ten (10), eleven (11), twelve (12), thirteen (13), fourteen (14), fifteen (15) and sixteen (16) of the complaint:
4. Plaintiff says that the defendant on Tuesday, January 19, 2010 published on page 4 of its FrontPage Newspaper, Vol. 1No. 28 under the caption PROSECUTION MUST FOLLOW RESIGNATION AND DISMISSALS that plaintiff was asked to resign after Investor allegedly reported him to the President. Attached is a copy of the FrontPage Article quoted above marked Exhibit P/1. The Article reads as follows:
IN RECENT MONTHS reports about officials being dismissed or coerced to resign only to resurrect to another sector of government have been rampant. Just last year, Former Agriculture Minister Dr. Chris Toe, was asked to resign after investors from Sithe Global, an international development company engaged in the development, construction, acquisition and operation of electric generation facilities in attractive markets around the world reported an incident to international partners who prevailed on President Sirleaf to rid her government of Toe. Sithe Global has since taken its business to neighboring Ghana. Toe, according to reports is still serving as a consultant for the government.
5. Plaintiff says further that defendants, with the same malice and intent to tarnish and damage the good name and reputation of plaintiff, and prior to the publication of the article quoted above, published on its FrontPage Africa Internet News site on November 26, 2009 that plaintiff stole millions intended for the Liberian people.
Attached is a copy of said article marked Exhibit P/2. The article under the caption CDC DEFEATS UP IN SENATORIAL BY-ELECTION; WHAT TRANSPIRED? WHAT WENT WRONG? Reads as follows:
Corruption Fight
From the inception of the Unity Party Former Agriculture Minister Christopher Toe, Lands, Mines and Energy Minister Eugene Shannon, Education Minister Joseph Korto and officials of the Ministry of Finance have all been booked by audit for not accounting for millions but no concrete action has been taken against these officials. Toe after diverting millions intended to solve violent strike action at the Guthrie Rubber Plantation in Bomi and Grand Cape Mount counties and money intended to provide help for people affected by Army Worms in Bong and Lofa Counties was asked to resign and is now living in peace after stealing misapplying millions needed by the Liberian people for development.
6. Plaintiff says that not only did the Government not make available to him any alleged millions intended to solve violent strike action at Guthrie Rubber Plantation in Bomi and Grand Cape Mount Counties and money intended to provide help for people affected by Army Worms in Bong and Lofa Counties, a fact which the defendant knew or should have known and was under an obligation to investigate and verify, but that the said allegations of the commission of crimes (acts of corruption and economic sabotage as defined by the Liberian Penal Law and the Liberia Anti-Corruption Commission Act) by the plaintiff were designed to impugn upon the hard earned image and reputation of the plaintiff established over the entire period of his life, both locally and internationally.
7. Plaintiff says that the Liberia Anti-Corruption Commission Act defines corruption as Any act or acts, decision or decisions or use of public resource or resources by a public or private official in the discharge of official duties and/or responsibilities which, in order to satisfy the selfish desire or interest of said official or other person, natural or legal, ignore the established laws, regulations, and thereby denies, deprives, and prevents, the State or person or persons, natural or legal, from receiving entitlement, consideration, and or treatment. Moreover, said Act defines Acts of Corruption as bribery, embezzlement, extortion, fraud, influence peddling, insider trading, misuse of entrusted public property and vested authority. And any economic or financial crimes, which are now provided for under the Penal Code of Liberia, or hereafter be defined and enacted.
8. Plaintiff says that similarly, the Penal Law states, as regards economic sabotage, at section 18.81, Misuse of Public Money, Property or Record, that: A person is guilty of a first degree felony, if he: (a) knowingly steals, takes, purloins, or converts to his own use and benefit or the use of another; or without authority, sells, conveys or disposes of any records, voucher, money, or thing of value of the Government of Liberia or of any Ministry, or Agency thereof, or public corporation, or any property made or being made under contract for the Government of Liberia or any Ministry, Agency thereof or public corporation; (b) receives, conceals, or retains the same with intent to convert it to his use or gain; knowing it to have been stolen, purloined or converted; (c) disposes of, uses or transfers any interest in property which has been entrusted to him as a fiduciary, and in his capacity as a public servant or any officer of an institution, in a manner he knows is not authorized and that he knows to involve risk of loss or detriment to the owner of the property or to the Government of Liberia or other person for whose benefit the property was entrusted.
9. Further, plaintiff says that at section 15.82, under the caption Theft and/or Illegal Disbursement and Expenditure of Public Money, states that: A person is guilty of a first degree felony, if he: (a) knowingly fails to render his account or accounts· for public money or property as provided by law, said person being an officer, employee or agent of the Government of Liberia or of any Ministry or Agency thereof or public corporation, having received public money which he is not authorized to retain as salary, pay or emolument; (b) knowingly takes, misappropriates; converts or exercises unauthorized control over, or makes unauthorized transfer of an interest in the property or another or the Government of Liberia, with the purpose of depriving the owner thereof or purposely deprives another of his property by deception, or by threat;
(c) knowingly receives, retains or disposes of property of another or the Government of Liberia which has been stolen, with the purpose of depriving the owner thereof or the Government of Liberia [of such property].
10. Plaintiff says that by the defendants imputing corruption to him and accusing him of the criminal offenses as defined under the laws mentioned above, when he has committed no such crime or any crimes for that matter, has never been accused of such crimes, has never been charged with such crimes, and has never been convicted of such crimes. Defendant has committed an act of libel per se, and, hence is liable in damages to the plaintiff. Plaintiff says further that defendant with the same malicious intent published on July 6, 2009 under the caption Liberia Drops 11 Points to World Bank Institute’s ranking MCC Quest in jeopardy wrote that: A second incident turning international partners’ head is the slap on the wrist given to former Agriculture Minister Dr. J. Chris Toe. Toe reportedly sought to solicit payments from Sithe Global, an international development company engaged in the development, construction, acquisition and operation of electric generation facilities in attractive markets around the world. The company reportedly reported the incident to international partners who prevailed on Sirleaf to rid her government of Toe. Sithe Global has since taken its business to neighboring Ghana. In the aftermath of Toe’s departure from the government, EPA has been informed that international partners remain baffled that Toe is still being offered government contracts to the dismay of donors unhappy that corrupt officials continue to be rewarded by the Sirleaf administration. Copy of said article is attached and marked Exhibit P/3.
11. Plaintiff says that defendant’s publication carried on its internet website was seen and read by millions of people in and out of Liberia. Plaintiff says that the internet being a search engine or tool to which people from all over the world and everyone even in the remotest part of the world have access. Defendant, by publishing such defamatory statement on the internet, is telling the whole world that Plaintiff has committed a crime although there is no proof as to the truthfulness of such statements. Plaintiff says further that in the absence of such proof, defendant’s publication is a deliberate attack on the integrity and moral character of plaintiff and intended to disgrace, degrade, and reduce his good name, character or reputation among his peers and friends and the public or international community at large. Plaintiff, being an inter national figure, says that defendant’s publication is also intended to induce an evil or unsavory opinion of plaintiff in the minds of a substantial number of people in the community and the world, especially those plaintiff worked with at home and abroad and that said unprivileged publication was well calculated to injure plaintiff in his business, trade or profession. Plaintiff further avers that the design and effect of the defendant’s action was to bring mental harm, distress and injury to plaintiff, the defendant being fully aware or is deemed to have been aware of the effect of its false publications. For such acts, the defendant is deemed in law to have committed libel per se and is therefore subject to damages, and plaintiff so prays of this Honorable Court.
12. Plaintiff says that the defendant’s herein statements are libelous on their face and constitute libel per se as they not only clearly impute to plaintiff the commission of crime but also that as a direct consequence of the words (allegations) expose plaintiff to hatred, contempt, ridicule and obloquy by the people of Liberia and the world at large because to say that plaintiff after diverting millions of dollars was asked to resign and is now living in peace after stealing and misapplying millions is tantamount to accusing plaintiff of committing a crime although plaintiff was never accused, arrested, or charged by the State. A statement is classified as defamatory on its face when the meaning or message is obvious on its face; the defamatory is accomplished by the very words spoken and extrinsic facts are not needed to explain. Plaintiff says that the entire publications and statements are false, totally untrue and defamatory as they pertain to plaintiff and intended to tarnish the good name and reputation that plaintiff has built for himself over the years as a professional in his profession; the defendant’s conduct presents a proper legal basis for an action of libel per se. The law provides that words that expressly or implicitly tend to injure one’s personal or professional reputation are considered defamatory per se. (50 Am Jur. 26,Sections 136 and 137). Statements are defamatory per se when they constitute a serious charge of incapacity or misconduct in words so obviously and naturally harmful. (Ibid).
13. Plaintiff says that defendants publications charge or impute to plaintiff criminal conduct involving moral turpitude and said publications 11 are considered a libelous imputation and defamatory. Plaintiff says that defendants state with certainty that plaintiff diverted millions of dollars and stole millions belonging to the Liberian people, which statement is defamatory and libelous per se, and even if said statement implies that plaintiff stole without explicitly accusing plaintiff of theft, is defamatory on its face. Plaintiff says further that the persistent publications of defamatory statements by defendant show that defendant with malice and hatred is bent on destroying the reputation and good character of plaintiff for which defendant should be held accountable.
14. Plaintiff says that these are not the only two publications by defendant’s internet news service and Newspaper about plaintiff with the aim of destroying his good reputation. That defendant has been over the years, publishing libelous information about plaintiff even when he was Minister of Agriculture. Plaintiff says that on June 7, 2007, Rodney D. Sieh published on his FrontPage internet news service under the Caption Liberia’s Corruption Mess: NSA Eying Top Officials in Sirleaf’s Government., Source Says. In this Article, Rodney D. Sieh wrote:
The National Security Agency is seriously looking into concrete evidence involving financial dealings of some senior officials in the administration of President Ellen Johnson-Sirleaf, an Executive Mansion source told Front Page Thursday. The focus of the probe is targeted at people that a lot of alarm is being raised on. The NSA is working very hard. But she (President Sirleaf) wants evidence on a lot of the cases that have been cited, the source confided. Asked who the top tier officials subject to probe were, the source declined to name names for fear of upsetting the investigation.
FPA has gathered that one name being seriously eyed is Agriculture Minister Dr. Chris Toe. That is one Minister being closely monitored big time, the source confirmed. It is not clear why the NSA and not the Justice Ministry or General Audit Commission is handling the probe, but it is believed that some senior ministers have been depositing huge sums of monies in foreign bank accounts. During her Documents (including memos and reports) in the possession of FPA reveal damaging acts of corruption at several ministries and agencies. At the Ministry of Agriculture, Toe reportedly operates with an inverted chain of command. The directors, personnel, or procurement, finance, asset management, communication, training and General Audit report directly to the Minister. The directors are closely supervised by the Assistant Minister for Administration, who also reports directly to the Minister, especially in connection to finance and the procurement of goods and services, according to a copy of a report obtained from the Ministry.
Short changed at CARl.
The sources The resources of the organ are being manipulated by the Minister. One CARl official informed EPA that the allowances of CARl staff are sometimes diverted, sometimes to pay some of the newly hired associates of the Minister, who in technical terms are illegal employees since they are not yet on government payroll. The report further states the employment of personnel is done by the Minister, generally, without interview or scrutiny. The Minister is also accused of being fond ·of giving away contracts for the purchase of fuel, repair of equipment, especially computers. Since then, the Minister reportedly runs the Ministry of Agriculture single-handedly. Copy of said article is attached and marked Exhibit P/4.
15. Plaintiff says .that further as to count fourteen (14) of this complaint and with wicked, malicious and evil design aimed at tarnishing and defaming the good name and reputation of plaintiff, defendant Rodney D. Sieh published on his FrontPage internet new service dated June 5, 2007 under the caption Ministry of Agriculture Scrutiny brewing here in which he alleged that, and I quote:
The Minister of Agriculture has come under scrutiny from the lawmakers and the Liberian people for corruption, especially with respect to revenues from fishery and rubber plantation. Copy of the publication mentioned herein above is attached and marked Exhibits P/5.
16. Plaintiff says that as a result of defendants’ publications, his character and reputation have been maligned and his name has been associated with criminal activities without any proof; that because defendants’ statements were not privileged as they are published by defendants with malice, hatred and ill will toward plaintiff and with the desire to injure plaintiff, defendants should be held liable for damages in the amount of US$2,000,000.00 (Two Million United States Dollars). Plaintiff says in the instant case where the statements published are defamatory per se, injury to reputation is presumed from the bare fact of the publications and therefore damages and malice will be presumed. Plaintiff says further that defendants’ publications were reckless and deliberate without investigating or verifying his source.
In response to the assertions made in the complaint, the defendants/ appellants, on May 20, 2012, filed a three-count answer, which was subsequently withdrawn and an amended answer filed in its stead. In the amended answer the defendants/appellants sought to justify and reaffirm the accusations made in the
publications, and to explain occurrences which they said showed that the acts attributed to the plaintiff did occur, and hence that the defendants could not be held liable.
We quote counts two (2) through nine (9) of the ten-count amended answer:
2. That as to count three (3) of the complaint, defendant admits the averments therein contained”.
3. That as to counts four (4), five (5), and six (6) of the complaint, defendants say the stories carried in its Newspapers, referred to in plaintiff’s complaint, were the results of thorough investigation conducted into plaintiff’s stewardship while serving as a public servant at the Ministry of Agriculture.
4. Further to count four (4) of this amended answer, plaintiff says on Wednesday, April4, 2007,the Deputy Minister of Agriculture, Honourable Peter N. Korvah, wrote a letter to Her Excellency, President Ellen Johnson Sirleaf, exposing several corrupt transactions at the Ministry, including the purchase of a Nissan Patrol Trooper for United States Dollars Sixty Thousand (US$60,000.00) for the plaintiff which was actually worth United States Dollars Forty-Five Thousand (US$45,000.00). Copy of the letter and the document attached thereto are hereto attached in bulk and marked plaintiff’s EXHIBIT D/1.
5. Further to count four {4) of this amended answer, defendant says though plaintiff denies receiving huge sums of money intended to solve violent strikes at Guthrie Rubber Plantation in Bomi and Grand Cape Mount Counties, and money intended to help poor citizens affected by Army Worms in Bong County, he has woefully failed to say, as a public servant, how much he received and how much was expended to help the poor citizens of Bong County, affected by the Army Worms.
6. Further to count five (5) of the amended answer, defendant says the President of Liberia was heard on radio asking plaintiff what he did with the people’s money when she visited areas affected by the Army Worms in Bong County and saw that nothing was done to alleviate their plight, despite the allocation of huge sums of money for this purpose. Defendant gives notice that during the trial, it shall produce the transcript of the recording, the recording itself, evidence and witnesses to substantiate the averments herein contained.
7. Further to count six (6) of the amended answer, defendant says lawmakers from counties affected by the caterpillars invasion, mainly Bong County, described the pronouncement by plaintiff about the construction of ten (10) hand pumps as false and misleading to the Public. I have visited all the towns and villages affected by the caterpillars invasion in Zota District and I saw the people suffering from diarrhea and other diseases because of lack of safe drinking water. There is no hand pump there; people are playing with the lives of our people in Monrovia, this is very sad” Representative Edwin Juah of Zota District, Bong County, told the Plenary of the House of Representatives. Defendants give notice that during the trial [they] shall produce evidence in substantiation of the averments herein contained.
8. That as to counts seven (7) through eighteen (18) of the complaint, defendant says on September 23, 2009, the General Auditing Commission submitted to the Ministry of Agriculture an Audit Observation Memorandum, in which it observed several financial irregularities committed by the plaintiff, ignoring all the rules of financial transparency and accountability. The report, inter alia, recommends that Dr. Toe should provide supporting documentation for inadequately supported payment requests to Firestone as a basis for authorizing payment. {2) Dr. Toe and Mr. Cage should be made to account for all incentives paid to them by providing detail of services rendered. Copy of the Audit Observation Memorandum hereto attached and marked defendant’s EXHIBIT D/2.
9. Further to count eight (8) of this amended answer, defendant says because of these many financial improprieties and irregularities, plaintiff was asked to resign. Many corrupt officials have been simply asked to resign, without Government stating the reasons. The New Democrat Newspaper on Tuesday, June 8, 2010, conveys a warning from the President of Liberia in these words contrary to the past, President Ellen Johnson-Sirleaf has vowed to provide reasons for which corrupt officials are dismissed. She said ministers must face corruption with a tough hand by dismissing anyone caught in the act. Several ministers and high
level officials have simply been asked to silently and quietly resign in the midst of serious allegations without the President stating reasons for their dismissal. This will now change, the President said. Copy of the New Democrat Newspaper is hereto attached and marked defendants EXHIBIT D/3.
The records further reveal that in response to the amended answer a fourteen-count amended reply was filed by the plaintiff wherein he rejected the allegations made by the defendants and challenged the defendants to produce evidence to substantiate the allegations the commission of a crime, they had levied against him. We quote the amended reply, as follows:
Plaintiff In the above entitled cause of action reaffirm, confirms and reasserts its claim and, replying to defendants’ amended answer in the above entitled cause of action, most respectfully prays Your Honor and this Honourable Court to deny and ignore defendants’ amended answer and shows the following legal and factual reasons, to wit:
1. That plaintiff in the above cause of action respectfully request court to take judicial notice of the fact that defendants’ amended answer is not legally before this Honorable Court because said amended answer was filed outside of the statutory period of ten days, and therefore in violation of section 9.10(2 & 3) of the Civil Procedure Law,1LCLR,page 112,and for which act this Honourable Court is vested with the authority to strike the said amended answer from the records of the court, and Plaintiff so prays.
2. That as to counts one (1) and two (2) of defendants’ amended answer, Plaintiff, while maintaining that the amended answer is without statutory time and therefore the proper subject to be stricken, further confirms, re affirms and reasserts all of the averments made in counts one (1) through eighteen (18) of his complaint and prays that Your Honor and this Honorable Court to sustain plaintiffs complaint and dismiss defendants’ amended answer:
3. That as to counts three (3) of defendant’s amended answer, plaintiff says that defendant did not conduct any investigation, much less a thorough investigation to ascertain the truthfulness of the allegations prior to the malicious publication of same to the injury of the plaintiff. Plaintiff says that defendants’ article of January 19, 2010 was not just published long after plaintiff was a government official and had joined the private sector as a private citizen, but that defendants whole intent was to tarnish and damage the good name and reputation after he had left the public service and joined the private entrepreneur sector, since [they], defendant[s], although having made earlier attempts to destroy plaintiffs reputation, [were] unable to destroy plaintiff’s good reputation and image while he was then in the employ of the Government. Plaintiff says that with the same malice and intent, defendants, prior to the January 19, 2010 publication of the article, quoted in count four of plaintiff’s complaint, also published on its FrontPage Africa Internet News site on November 26, 2009 that plaintiff stole millions intended for the Liberian people.
4. Plaintiff says that had defendants investigated as alleged, he would have exhibited in his amended answer the amount that was stolen, where it was stolen from and from whom it was stolen because defendants intention was geared towards damaging plaintiff’s reputation and therefore the defendants [were] reckless in its alleged Investigation and subsequent publication of the articles published by defendants. Plaintiff says that by defendants imputing corruption to him and accusing him of crimes when he has committed no such crime or any crimes for that matter, has never been accused of such crimes, has never been charged with such crimes, and has never been convicted of such crimes, defendants [have] committed an act of libel per se and, hence [are] liable in damages to the plaintiff and defendants’ amended answer should be dismissed and plaintiff so prays.
5. That as to Count four (4) of defendants’ amended answer, plaintiff says that the letter written by the Deputy Minister of Agriculture for Administration, Peter N. Korvah and exhibited by defendants was written out of pure jealousy and envy and from the tune of said letter, one can assume that said Deputy Minister wanted the job that plaintiff had, that of Minister of Agriculture. Plaintiff says further that there is no mention in Mr. Korvah’s letter of a crime being committed by plaintiff, nor is there any inference that plaintiff had committed a crime. Plaintiff says that all of Mr. Korvah’s allegations in said letter are centered around being left out of things as Deputy Minister by plaintiff who was Minister at the time. Defendant has not shown by said letter the millions of dollars stolen by plaintiff, as alleged in his newspaper, which means that defendants’ articles are all lies and published with the sole intent to induce an evil or unsavory opinion of plaintiff in the minds of a substantial number of people in the community and the world, especially those plaintiff worked with at home and abroad and that said unprivileged publication was well calculated to injure plaintiff in his business, trade and profession. Plaintiff respectfully requests court to take judicial notice of the content of Mr. Korvah’s letter exhibited by defendant.
6. Plaintiff says further as to count five (5) hereinabove that defendant, by publishing such defamatory statement on the Internet and in the newspaper, is telling the whole world that plaintiff has committed a crime although there is no proof as to the truthfulness of such statements. Plaintiff says further that in the absence of such proof, defendants’ publication is a deliberate attack on the integrity and moral character of plaintiff, and intended to disgrace, degrade and reduce his good name, character or reputation among his peers and friends and the public or international community at large. That there is nothing in Mr. Korvah’s letter that suggests or implies that plaintiff stole millions of dollars as alleged by defendants in [their] malicious publication against plaintiff. Instead, one can conclude that Mr. Korvah wanted to be in charge and control of the “finances of the Ministry knowing he was not the comptroller of said Ministry. Plaintiff says that it is apparent that Mr. Korvah wanted to usurp the functions of plaintiff who was the Minister at the time and when he could not, he connived with defendants to tarnish the good name of plaintiff. Plaintiff respectfully requests court that defendants’ amended answer be dismissed and so prays.
7. Plaintiff says that the defendants’ publications herein stated are libelous on their face and constitute libel per se as they not only clearly impute to plaintiff the commission of a crime but also that as a direct consequence of the words (allegations) expose plaintiff to hatred, contempt, ridicule and obloquy by the people of Liberia and the world at large because to say that plaintiff after diverting millions of dollars was asked to resign and is now living in peace after stealing and misapplying millions is tantamount to accusing plaintiff of committing a crime although plaintiff was never accused, arrested, or charged by the State. A statement is classified as defamatory on its face when the meaning or message is obvious on its face; the defamation is accomplished by the very words spoken and extrinsic facts are not needed to explain. Plaintiff says that the entire publications and statements are false, totally untrue and defamatory as they pertain to plaintiff and intended to tarnish the good name and reputation that plaintiff has built for himself over the years as a professional in his profession; the Defendant’s conduct presents a proper legal basis for an action of libel per se. The law provides that words that expressly or implicitly tend to injure one’s personal or professional reputation are considered defamatory per se. (5O Am Jur. 26, Sections 136 and 137). Statements are defamatory per se when they constitute a serious charge of incapacity or misconduct in words so obviously and naturally harmful. (Ibid)
8. That as to counts five (5), six (6) and seven (7) of defendants’ amended answer, plaintiff says that defendants [have] not provided any evidence that plaintiff was given funds and that said funds were siphoned into plaintiff’s personal account abroad as published by defendants. Defendants [have] even admitted that he does not know how much plaintiff was allegedly given and the source of the funds. Plaintiff says that it is surprising that defendants [are] aware that plaintiff was given funds but yet does not know how much was given or expended. It is the defendants, in count three (3) of [their] amended answer allege that [they] had conducted a thorough investigation of what [they] alleged but yet [they do] not know how much money was allegedly given to plaintiff. Is this how one does investigation? Plaintiff says that defendants never did any investigation as alleged or [they] would have known that no funds were given to be expended.
9. Plaintiff says further as to count eight (8) above, that when funds are allocated by government for a particular Ministry or agency of Government, the records are there at the Ministry of Finance as well as the national budget to show how much was allocated. Hence Defendant should have known or had reason to know whether funds allocated were received and disbursed especially after his so called investigation was conducted. Defendants [have] produced no evidence that [they] conducted a thorough investigation of the allegations made by [them] or that [they] met with plaintiff or anyone else and the fact that the defendants did not produce any evidence with respect to conducting a thorough investigation confirms that [their] false publications against the plaintiff were not only deliberate but well calculated and malicious. Defendants [are] misleading this Honorable Court and therefore [their] amended answer should be dismissed and plaintiff so prays.
10. Plaintiff says further as to count nine (9) hereinabove, that it is not the function of the Ministry of Agriculture to solve violent strike at Guthrie Rubber Plantation; rather it is the responsibilities of the Ministries of Labour and Justice where necessary. Plaintiff says further that the Ministry of Agriculture is also not responsible for the ill health of citizens; rather it is the Ministry of Health’s responsibility. Plaintiff says that defendants alluded to the “allocation of huge sum of money for this purpose” but made no mention as to whether the huge sum of money allocated for the purpose was given to plaintiff. Plaintiff says that allocation does not mean money was given or received as alleged. Defendants have not provided any evidence to substantiate [their] allegations and the whole aim of defendants several publications after plaintiff had left the employ of government was to impute criminal conduct involving moral turpitude and said publications are considered a libelous imputation and defamatory. Plaintiff says that defendants stated with certainty that plaintiff diverted millions of dollars and stole millions belonging to the Liberian people, which statement is defamatory and libelous per se and even if said statement implies that plaintiff stole without explicitly accusing plaintiff of theft, is defamatory on its face. Plaintiff says further that the persistent publications of defamatory statements by defendants show that’ defendants with malice and hatred [are] bent on destroying the reputation and good character of plaintiff for which defendants should be held accountable.
11. That as to Counts seven (7) and eight (8) of Defendant’s amended Answer, Plaintiff says that the statement made by the so called Representative is fabricated and intended to again tarnish the good ‘name and reputation of Plaintiff. The statement made by Representative Juah should be attributed to him as he should be the one responsible to build hand pump for his people in his district and county whom he represents rather than waiting for others to do same. Plaintiff says that it is, a shame that the Representative can blame someone else for sicknesses people in his district or county have and attributing said sicknesses to Plaintiff not building hand pump, especially when he did not make available to Plaintiff any funds. Plaintiff says further that there is nothing in the Representative statement to impute that plaintiff had stolen money or committed a crime. Plaintiff says that for defendants to publish in [their] newspaper that plaintiff had stolen money intended for others and committed a crime is defamatory and libel per se and hence this Honorable Court [should] dismiss defendants’ amended answer and plaintiff so prays.
12. That as to count nine (9) hereinabove, plaintiff says that General Auditing Commission only submitted its observation and said nothing about a crime being committed or stolen funds as alleged by defendants. Plaintiff says that the GAC observation was made based on an audit conducted at Guthrie Rubber Plantation and not the Ministry of Agriculture and moreover the audit which had various management team at different times was never completed and therefore there is no report as alleged by defendants in [their] false publications. Further, the observation did not accuse plaintiff of any crime or stolen money but rather requested for documentations to prove certain concerns the GAC might have had. Defendants, after [their] thorough investigation, have not produced any documents, or evidence to substantiate whether this request was met by plaintiff or his allegations that plaintiff had stolen money intended for others or committed a crime. Plaintiff says that during trial he will request court to subpoena the GAC for the final report of the said audit.
13. That as to count nine (9) of defendants’ amended answer, plaintiff requests this Honorable Court to take judicial notice of the date of the New Democrat Newspaper which is June 8, 2010 after President Sirleaf returned from the United States and long after plaintiff had left the employ of government. Plaintiff says that the President’s statement cannot be attributed to him as he is no longer an official of government and challenge defendants to prove otherwise. That defendants [have] been, over the years, publishing libelous information and statement about plaintiff even when plaintiff is no longer a public figure but a private citizen. These acts of the defendants just go to show to what length defendants will go to destroy the reputation of plaintiff and the kind of malice and hatred defendants [have] for plaintiff, a man [they] do not know. Plaintiff says that it has been and is the practice and behavior of defendants to keep publishing damaging articles about plaintiff with the intent of destroying and tarnishing plaintiff’s good character and reputation that he has built up over the years.
14. Plaintiff denies, refutes, rejects and disclaims any and all issues, claims, contentions and points raised in defendants’ answer which were not specifically traversed in plaintiff’s reply.
WHEREFORE AND IN VIEW of the foregoing, plaintiff prays this Honorable Court for judgment against defendants in the amount of two million United States Dollars (US$2,000.000.00) for damages and that defendants be made to pay all costs and expenses plaintiff may incur as a result of defendants malicious and false publications in these proceedings, plaintiff also prays this Honorable Court for any and all further relief that this Honorable Court would deem legal, just and equitable under the circumstances of this case.”
This is the background upon which the case was ruled to a jury trial on the merits following the disposition of the law issues. A jury trial was held, in which the both sides produced evidence. The trial jury, after listening to the evidence, returned a unanimous verdict of liable against the defendants. A motion for new trial having been filed, heard, and denied, the trial court entered judgment on the verdict confirming and affirming the same and adjudging the defendants liable in damages to the value of US$1.5 million. It is from that judgment that counsel for defendants/appellant excepted and announced an appeal to the Supreme Court; and it is the failure to perfect that appeal by fully complying with the requirements of the appeal statute that this Court now has before it for disposition a motion to dismiss the appeal. Because the motion to dismiss the appeal precludes us from probing the merits of the bill of exceptions, we shall refrain from dwelling on the merits of the errors alleged by the appellants to have been committed by the trial judge and the jury. The motion to dismiss the appeal, filed on August 26, 2011, set out the following allegations as a basis for the request made to the Court to dismiss the appeal:
1. That movant sued appellants/respondent for Two Million United States Dollars as a result of appellant’s malicious and false publications in its newspaper and internet news organ against movant/appellee. Following the filing of movant’s complaint, appellant/respondent filed its answer thereto and which answer was followed by movant’s reply traversing all of the allegations contained in appellant’s /defendant’s answer.
2. At the hearing of the law issues, the court below ruled the case to trial on its merits. A trial jury was empanelled to hear the case. At the end of the trial, the jury returned from their room of deliberation with a unanimous verdict of liable against the defendant/appellant thereby awarding the movant the amount of 1.5 Million United States Dollars as damages suffered by the movant as a result of appellant’s false and malicious publications against the movant. Following the unanimous jury verdict, a motion for new trial was filed by respondent followed by movant’s resistance thereto. Following hearing of the motion for new trial, the court below dismissed appellant’s motion and affirmed the unanimous verdict of the jury herein and thereafter entered its final judgment affirming the jury’s verdict and adjudging the appellant liable for libel in the amount of 1.5 Million United States Dollars as found by the empanelled jury.
3. Movant says that counsel for appellant/respondent excepted to the final judgment which was handed .down on February 23, 2011 and announced an appeal to the Honourable Supreme Court sitting In its March Term A. D. 2011. The exception of counsel for appellant was duly noted by the court below and the appeal announced was granted as a matter of right. The appellant on March 4, 2011 thru his counsel filed his approved bill of exceptions with the Clerk of the Civil Law Court. Since the announcement of the appeal and the filing of the bill of exceptions, respondents have failed and neglected to complete the process within the statutory period as required by law. A copy of the bill of exceptions is hereto attached and marked exhibit F4/1to form a part of this motion.
4. Movant says that because our statute governing appeals provides under section 51.4 1LCLR P-249, as follows: 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 the appeal
Failure to comply with any of these requirements within the time allowed by statute shall be ground for dismissal of the appeal.
5. And also because Movant says that our statute provides under section 51.9 1LCLR P-251 as follows: After the filing of the bill of exceptions and the filing of the appeal bond as required by sections 51.7 and 51.8, the clerk of the trial court on application of the appellant shall issue a notice of the completion of the appeal, a copy of which shall be served by the appellant on the appellee. The original of such shall be filed in the office of the clerk of the trial court. And also because movant says that our statute provides under section 51.16 1LCLR P-253 as follows: “An appeal may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute, and by the appellate court after filing the bill of exceptions for failure of the appellant to appear on the hearing of the appeal, to file an appeal bond, or to serve notice of the completion of the appeal as required by statute.
6. And also because movant says that subsequent to the filing of the bill of exceptions, respondent’s counsel failed to file an appeal bond as required by section 51.7 and 51.8,to serve notice of the completion of the appeal as required by section 51.9 1LCLR, P-251. Movant says that consistent with the provisions of sections 51.4, 51.7, 51.8 and 51.9 of 1 LCLR, respondent should have filed and served the appeal bond and the notice of completion of appeal within the statutory period of sixty (60) days allowed by law. A copy of the Clerk’s Certificate is attached and marked exhibit 14/2 to form a part of this Motion. That by virtue of the facts and circumstances narrated in counts one (1) thru six (6), and respondent’s failure to file an appeal bond, to serve notice of completion of the appeal in the instant case, respondent’s entire appeal should be dismissed.
WHEREFORE AND IN VIEW OF THE FOREGOING, movant prays Your Honors to grant movant’s motion to dismiss appellant’s/respondent’s appeal, order the lower court judge to resume jurisdiction and enforce its final judgment and grant unto the movant such other and further relief as Your Honors may deem just, legal and equitable in the circumstances of this case, with costs against respondents.
In support of the allegations made in the motion, the appellee attached to the motion two instruments. The first is a communication addressed by counsel for the appellee to the clerk of the trial court for the issuance of a certificate to the effect that the appellants had failed to meet the statutory requirements for perfecting their appeal, and the second being a certificate issued by the clerk of the trial to that effect. We quote the two instruments as follows:
The Clerk
Sixth Judicial Circuit
Civil Law Court
Temple of Justice Building
Monrovia, Liberia
Dear Madam Clerk:
May 9, 2011
Ref: Dr. J. Christ Toe Plaintiff
Action: Damages for Libel
Versus
Front Page Africa Defendant
We wish to request the issuance of a Clerk’s Certificate in the above matter to the effect that after the announcement of an appeal and the subsequent filing of the bill of exceptions by the defendant, the said defendant has failed to file an appeal bond together with the service and filing of notice of completion of the appeal as provided for in Section 51.4 (Requirements for completion of an appeal) of 1LCL Revised. Further, it is more than sixty (60) days and the defendant has failed and neglected to serve and file his notice of the completion of his appeal within the statutory period. Hence, you will please issue a Clerk’s Certificate to this effect.
Your usual cooperation in this regard is highly solicited.
Kind regards.
The document issued by the clerk of the trial court, bearing date May 11, 2011, in response to the communication from counsel for the appellee read as follows:
CLERK’S CERTIFICATE
This is to certify that from a careful perusal of the Records of this Honourable Court it is observed that the defendant in the above captioned case has failed to file an Appeal Bond together with the Notice of Completion of Appeal up to and including the Issuance of this Clerk’s Certificate. HENCE THIS CLERK CERTIFICATE.
In response to the motion to dismiss, the defendants/appellants’ counsel, on November 7, 2011, filed what the denominated as appellants/respondents response to appellee/movant’s motion to dismiss. We quote the referenced eight-count document herein, verbatim:
AND NOW COME, appellants/respondents, and most respectfully respond to appellees/movant’s motion to dismiss appeal for reasons as showeth the following to wit:
1. That appellants/respondents are defendants in an action of damages for libel suit filed by the appellee/movant during the June, A. D. 2010 Term of the Sixth Judicial Circuit Court.
2. Appellants/respondents aver that following the disposition of law issues, the case was ruled to full jury trial by His Honor Yussif D. Kaba, Resident Judge of the Sixth Judicial Circuit presiding by assignment; and that subsequent to the production of evidence by both sides, the jury returned a verdict in favor of the appellee/movant, upon which the presiding judge entered final judgment.
3. Appellants/respondent say further that from the final judgment of the presiding judge, appellants/respondents announced an appeal to the full bench of the Supreme Court of the Republic of Liberia, sitting in its October Term, A.D. 2011.
4. In obedience to statutory requirements relating to the appeal process, legal counsels for the appellants/respondents filed with the Sixth Judicial Circuit Court, bill of exceptions which was approved by His Honor Yussif D. Kaba.
5. Further, lawyers representing the appellants/respondents explained to the authorized representative and Managing Editor, Rodney Sieh, the required processes for an appeal to be concluded and the negative consequences appellants/respondents would face in the event the appeal process [was] not completed within the time provided for by law.
6. Further to count five above, and despite the information/explanation provided the appellants/respondents relative to the completion of the remaining processes to complete the appeal, Mr. Rodney Sieh showed no concern and adopted a lackadaisical posture. This behavior prompted the lawyers to officially communicate with him on March 29, 2011. Find marked and attached as R/1copy of the March 29, 2011 communication to form a cogent part of these proceedings.
7. Lawyers representing appellants/respondents were introduced to Mr. Rodney Sieh by Fonati Koffa, who himself was counsel of record in the action for damages for libel suit in the lower court, but had to withdraw his representation to campaign for a legislative seat in Grand Kru County. Therefore, Mr. Koffa was also communicated with via email as to Mr. Sieh attitude towards ensuring that the appeal bond is procured and the remaining processed completed. Find marked and attached R/2 copy of the email sent to Fonati Koffa.
8. And because the appellants/respondents failed, neglected and refused to procure the appeal bond, a necessary and required process despite all efforts exerted, lawyers were unable to file the appeal bond and the notice of completion of appeal.
Wherefore and in view of the foregoing, the appellee/movant’s motion to dismiss appeal is properly founded in law, as appellants/respondents have neglected to take advantage of the constitutional requirement of appeal even though advised by lawyers, thereby allowing appellee/ movant to be entitled to the remedy requested in the motion to dismiss.
In addition, counsel for appellants attached two documents to their response to the motion to dismiss, intended to support counsels’ allegations of the lack of cooperation from the appellants regarding complying with the statutory requirements for perfecting the appeal. The first document reads:
March 29,2011
Mr. Rodney Sieh
Managing Editor
Front Page Africa News Paper & Internet Services
Congo Town
Montserrado County
Republic of Liberia
Dear Mr. Sieh:
The Sixth Judicial Circuit, Civil Law Court handed down its final judgment in the Chris Toe versus FrontPage Africa libel suit on February 23, 2011. From this final judgment, an appeal was announced to the Supreme Court of Liberia sitting in its March Term, A. D. 2011.
We have begun the appeal process by filing with the Civil Law Court FrontPage Africa’s Bill of Exceptions. The next Step is to procure and file an appeal bond on behalf of FrontPage Africa with the Civil Law Court prior to the last step of filing notice of completion of appeal.
The entire appeal process takes sixty {60) days maximum as of the day the appeal was announced in open court. Calculating from the date the appeal was announced, up to and including today’s date, we have less than three {3) weeks to meet up with statutory requirements. That is we have this remaining time to file the appeal bond as well as the notice of completion of appeal.
In this regard, you are obliged to fund the procurement and filing of the appeal bond, a precondition for filing the notice of completion of appeal. Kindly note that the appeal announced will be a subject for dismissal and the final judgment against FrontPage Africa enforced should you fail to fund the procurement and timely filing of the appeal bond within the remaining period. If this happens, you shall absolve us of any wrongdoing as your lawyers, since we shall have done all our best legally, to protect the interest of FrontPage Africa.
Thank you.
Kind personal regards,
Powo C. Hilton, Esq.
Counselor-At-Law/Lead Counsel.
The second document, an email addressed to the head of the firm representing the appellants, which complained- of the inaction and indifference shown by the appellants towards fulfilling the statutory requirements for the completion of the appeal, read as follows:
THE CASE OF FRONTPAGE AFRICA
From: Powo Hilton
To: J. Fonati Koffa 3/30/11
Greetings Bossman,
It has been more than one (1) month since judgment was rendered against FrontPage Africa in the libel suit brought against the news organ and its managers/publishers.
The law requires that within sixty (60) days as of the day of the final judgment, the party appealing must complete the appeal process filing bill of exceptions, procuring and filing appeal bond, and filing notice of completion of appeal.
As of the date of this mail, we have filed the bill of exceptions approved by the judge, and have yet to obtain and file the appeal bond and the notice of completion of appeal.
This mail is intended to have you inform that despite repeated demands made to FrontPage management about ensuring that the appeal process is completed within statutory time, nothing has been heard except the promise that management will get back to us. We have written the FrontPage Managing Editor, Rodney Sieh, on this matter.
In view thereof, lawyers representing FrontPage will not be responsible and must not be held responsible in the event the process is not completed within time, the appeal is dismissed and judgment enforced.
Thanks and regards,
Powo C. Hilton, Esq.
Counselor-At-Law/Managing Partner
Torch Professional Consultancy, Inc.
P. 0. Box619
2nd Floor, Hykal Building
Broad & Johnson Streets
Monrovia, Montserrado County
Republic of Liberia
We note further that in addition to the instruments filed by counsels for the appellants, when the case was called on October 18, 2012 for the disposition of the motion to dismiss the appeal, counsels also requested this Court for permission to make a submission on the records of the Court. Permission was granted and counsels made the following submission:
SUBMISSION: At this stage, one of counsels for the respondent says that they concede to the legal soundness of the movant’s motion to dismiss the appeal because appellants/respondents failed, neglected and refused to procure the appeal bond, a necessary and required process despite all efforts exerted by the lawyers. And respectfully submits.
To which submission, counsel for movant interposes no objection.
As noted, at the onset of this case, this Court has no difficulty dealing with the core issue presented in the motion to dismissal the appeal. The motion states that the defendants, in violation of the appeals statute, as couched in section 51.4 of the Civil Procedure law, Liberian Code of laws Revised, had failed to file with the clerk of the trial court and to serve on the appellee an approved appeal bond and a notice of completion of the appeal.
Counsel for the appellants acknowledged the truthfulness of the allegations made in the motion to dismiss, conceded that the motion was sound in law, and concluded that the motion should be granted. This Court has held that where allegations are averred in a motion to dismiss and the allegations are not denied in the resistance they are deemed to be admitted. Dahn et al. v. Waeyen, [1981] LRSC 11; 29 LLR 119 (1981). In this case, not only were the allegations not denied by the appellants, but they were expressly admitted by counsel for the appellants who acquiesced in the prayer of the appellee that the appeal be dismissed.
The core issue presented then is whether the failure by the appellant to comply with the requirements of the appeals statute, that is, to file with the trial court and serve on the appellee an approved appeal bond and a notice of completion of the appeal, prerequisites for perfecting the appeal announced by the appellants, warrants the dismissal of the appeal?
In response to the issue, we hold, for the reasons stated hereinafter, that the failures committed by the appellants in complying with the statute renders the appeal dismissible, that in the absence of compliance with the requirements for perfecting an appeal to the Supreme Court, this Court lacks jurisdiction to hear the appeal on the merits. We are cognizant of the right granted by the Constitution of Liberia, the Supreme law of the land, to every party litigant against whom a judgment has been rendered to appeal the judgment to the Supreme Court of Liberia for review. LIB. CONST., ART. 66 (1986). Indeed, this Court has stated consistently for more than one and one-half centuries that the right of review granted by the Constitution is cardinal to ensuring that the rights of all of our citizens and all persons within the borders of the Liberian nation state are secured and protected. Article 20(b) of the 1986 Constitution is quite explicit in the guarantee of the right of appeal. It states: The right of an appeal from a judgment, decree, decision or ruling of any court, administrative board or agency, except the Supreme Court, shall be held inviolable. The legislature shall prescribe the rules and procedures for the easy, expeditious and inexpensive filing and hearing of an appeal.
Like the Constitution, which characterizes the right of appeal as a fundamental right, the Supreme Court has also expressly recognized that the appeal provision of Article 20(b) grants a right and not a privilege. In the case Municipal District of Buchanan v. Bridgeway Corporation and National Milling Company, [1989] LRSC 36; 36 LLR 470 (1989), the Supreme Court, speaking through Mr. Justice Junius, re-echoed the words of the Constitution that the right of appeal shall be held inviolable, stating in the most succinct term: We must emphasize here that under our justice system, the right of an appeal does not lie within the discretion of the trial judge to grant or deny. It is a right granted and guaranteed by the Constitution and we have sworn to uphold that right. It is a right, not a privilege and trial judges must never interfere with its exercise. ld., at 482.
But the Supreme Court has also recognized, the same as the Constitution itself, that while the Constitution grants the broad right of appeal, it anticipates that the Legislature, in obedience to its constitutional mandate, will enact laws to ensure an orderly, expeditious and inexpensive process to facilitate the enjoyment of the right. Indeed, that is why the Constitution, in granting the right, also states that: The Legislature shall prescribe the rules and procedures for the easy, expeditious and inexpensive filing and hearing of an appeal.”LIB. CONST., ART. 20(b) (1986). It is upon this constitutional recognition and the mandate granted thereunder, buttressed further by Article 34 of the Constitution, which enumerates the powers of the Legislature, that authority devolved upon the legislature to enact section 51.4 of the Civil Procedure Law and therefore upon which the said section obtains its legitimacy.
Equally important is the recognition by the Constitution’s grant of the right of appeal is broad and overreaching. Therefore, the fact that there was a need to give a mandate to the Legislature to design the appropriate rules and procedures is further attestation that the grant is not self-executing, but rather that the enjoyment of the right is dependent on the legislature putting into place some mechanism and process that would give orderliness to the exercise of the right. It is with this reality in focus that the Supreme Court has said, with respect to the referenced provision, that not only are they not self-executing, but that they merely indicate a principle, an aspiration, without laying down rules giving them the force of law; and further, that a provision such as Article 20(b), not being self-executing, necessarily “requires ancillary enabling legislation to give it effect. Vargas v. Reeves and Eid, [1999] LRSC 6; 39 LLR 368, 377 (1998).
In the Vargas case, a serious challenge was raised as to the constitutionality of Section 22.1(2)(3) and (4) of the Civil Procedure Law which provide for a time frame within which a demand for a jury trial must be made. The statute stipulated that a failure to make such demand within the time provided for by the section deprived the person making the demand of the right to a jury trial.
The petitioner in that case, in asserting the challenge to the constitutionality of the section, argued that the statute violated Article 20(a) of the 1986 Constitution which provided that in all cases not arising in courts not of record, under court-martials and upon impeachment, the parties shall have the right to trial by jury”, and that the prescription of a time frame within which a trial by jury can be demanded and enjoyed and that one’s failure to comply with its requirement should be of no consequence. ld., at 377. The Court, holding that the statute was not unconstitutional but rather in aid of the Constitution, reasoned that the statute gives form, shape and effect to the broad constitutional provision which is merely a general guideline. Without such a statute, the constitutional provision will remain abstract and a mere declaration or principle. The Constitution cannot provide for every single scenario or possibility or transaction and that is why statutory enactments are provided for, so as to give life or meaning to constitutional principles, and such enabling legislation must be strictly observed. ld., 377-78. The same interpretation applies to the instant case where the relevant provision of the statute is not self-executing but that the enjoyment of the right granted thereunder is dependent on some form of legislative intervention.
It was the recognition of the non-self-executing status of Article 20(b) that led the framers of the Constitution to entrust to the Legislature the solemn duty, in ensuring that justice, transparent justice, is enjoyed by all, plaintiffs and defendants, appellants and appellees, to provide a process and a mechanism for the enjoyment of the right of appeal; and it was in obedience to that constitutional mandate that the Legislature designed and enacted into law Chapter 51 of the Civil Procedure Law, intended to be the framework within and through which the right of appeal, guaranteed by the Constitution, can be enjoyed.
But we believe that 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 the Article 11 which stated that: “All persons are equal before the law and that all persons are entitled to the equal protection of the law.” LIB. CONST., ART ll(c) (1986). The Equal Protection Clause ensured that the rights of all parties, as in the case of appeals the rights of the appellants and i:he appellees, 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 Legislature therefore, as part of the duty imposed on it, would have to put into place a mechanism that would ensure that all the parties— the appellant, who had the right of appeal, and the appellee, successful in having his or her grievance addressed— are equally protected by the law. Thus, the appellant would have the assurance that he or she would be secured in the right to appeal any judgment of the lower court and the appellee who would similarly have the assurance that should the Supreme Court uphold or affirm the judgment, he or she would be similarly adequately secured and that the appellant would comply with the judgment of the Court. 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.
We believe that the Legislature performed that task in a manner as not to generate a constitutional challenge in the enactment of chapter 51 of the Civil Procedure Law. And although the law’s enactment was prior to the coming into effect of the 1986 Constitution, Article 95(a) of the new Constitution does declare that “[n]ot withstanding [the abrogation of the 1847 Constitution], any enactment or rule of law in existence immediately before the coming into force of this Constitution, whether derived from the abrogated Constitution or from any other source shall, insofar as it is not inconsistent with any provisions of this Constitution, continue in force as if enacted, issued or made under the authority of this Constitution.” Therefore, we are of the opinion that the provisions of the referenced statute conform to the tenet, the obligation and the duty imposed by the new Constitution and, hence, can withstand any constitutional challenge. See LIB. CONST., ART 2 (1986).
Thus, while under the framework established by the Legislature pursuant to the constitutional mandate, parties feeling aggrieved by the decisions or judgments of the lower courts and desiring to have their matters reviewed by the Supreme Court have the right to such appeal, they also have the duty to ensure that if the appeal is not successful, the appellee would be secured in his or her judgment. That security is established in the following requirements of section 51.4:
(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 the appeal.
Failure to comply with any of these requirements within the time allowed by statute shall be ground for dismissal of the appeal. Civil Procedure Law, Rev. Code 1:51.4.
Further, sections 51.5 through 51.9 elaborate in detail on the requirements enumerated above, stated as prerequisites to having the Supreme Court hear a case appealed to it, whether the appeal is taken from a judgment concluded as a result of a bench trial or a jury trial. A cardinal part of that process, outlined by the statute, is that in the event the appellant is not successful at the level of the Supreme Court, he/she will comply with the judgment of the highest Court of the Land.
We should emphasize also that the dismissal of appeals from judgments of our lower courts because of the failure of the appellants to comply with the statutory prerequisites necessary to confer jurisdiction upon this Court is not a new phenomenon in this jurisdiction. Our previous Civil Procedure Law contained similar provisions and the Liberian Law Reports are replete with opinions of the Supreme Court dismissing appeals, either due to the appellants not complying with one or more of the statutory requirements for the hearing of the appeal or that the appellant had failed to appear for the hearing of the appeal. See Mensah et al. v. Wilson[1986] LRSC 13; , 34 LLR 100 (1986); Liberia Electricity Corporation v. Lewis and Greenfield, [1986] LRSC 14; 34 LLR 112 (1986); Goffa and Family v. Teah, [1998] LRSC 28; 39 LLR 137 (1998); Knuckles v. The Liberian Trading and Development Bank, [2000] LRSC 6; 40 LLR 49 (2000); Constance v. Constance, [2001] LRSC 33; 40 LLR 738 (2001); Kanneh v. Manley et al.[2002] LRSC 3; , 41 LLR 25 (2002); Liberia Electricity Corporation v. Lloyd, [2003] LRSC 3; 41 LLR 348 (2003); Ahmar v. Gbortoe, [2004] LRSC 10; 42 LLR 117 (2004); Sarweh et al. v. National Port Authority (NPA)[2005] LRSC 7; , 42 LLR 436 (2004); Williams and Seekey v. National Port Authority, [2005] LRSC 12; 42 LLR 520 (2005). This case presents one of such situations.
We are also aware that this Court has on a number of occasions held that mere technicalities should not be used to prevent the Court probing the merits of the case and ruling thereon in the interest of justice. Liberia Electricity Corporation (LEC) v. Lewis and Greenfield, [1986] LRSC 14; 34 LLR 112 (1986). But this Court has made its position very clear that the preparation and submission of an appeal bond rests on statutory requirements and must be complied with [Gabbidon v. Toe[1974] LRSC 24; , 23 LLR 43, 44 (1975)] and that dismissal of an appeal on the ground of non compliance with statutes is not a matter of mere technicality. It is a matter of compulsory and mandatory dictate and direction by the statute. Cavalla Rubber Corporation v. The Liberia Trading and Development Bank (TRADEVCO), [1995] LRSC 42; 38 LLR 153, 161 (1995). We therefore do not have the discretion to offer disobedience to that law.
There is no disputing that the failures in the instant case are substantial and go to the essence of whether the appeal can be heard by the Supreme Court. The failure by the appellants to comply with core requirements of the appeal statute is substantial enough to deprive this Court of jurisdiction to hear the merits of this case; and since no fault is attributed to the lower court, either by the judge, the clerk or any other officer, for the non-compliance with the statute, we are left with no choice but to dismiss the case. Freeman and Wesseh v. Lewis et al.[2000] LRSC 11; , 40 LLR 103 (2000); Totimeh-Hansen v. Hansen, [1983] LRSC 69; 31 LLR 228 (1983).
The Civil Procedure Law of Liberia, Section 51.16, 1 LCLR provides that “an appeal may be dismissed by the trial court on motion for failure of the appellant to filed a bill of exceptions, within the time allowed by statue, and by the appellate Court after filing a bill of exceptions for failure of the appellant to appear on the hearing of the appeal, to file an appeal bond, or to serve notice of completion of the appeal as required by the statute.” But more than that, the same law, at section 51.4 states that the failures shown in this case warrants that the case be dismissed. Knuckles v. Liberia Trading and Development Bank (TRADEVCO), [2000] LRSC 6; 40 LLR 49 (2000). Accordingly, we are of the strong, compelling and considered opinion that the motion is properly grounded in the facts and in the law, and that same should therefore be granted.
It does not matter to us the reason for the appellants choosing not to comply with the mandatory requirements of the appeal statute. It does not matter to us whether the failure was the result of the indifference shown and demonstrated by the appellants, or whether it was due to the amount of the award and perhaps the inability the inability as a result thereof by the appellants to satisfy the monetary requirements of the law regarding appeal bonds. We should state, in clarity of the Court’s position, that its many decisions to dismiss appeals have not been predicated upon the value of the lower court’s judgment but rather on whether the statute was complied with by the appellants. Mr. Justice Yancy, speaking for this Court in the case Cavalla Rubber Corporation v. Liberian Trading and Development Bank (TRADEVCO), [1995] LRSC 42; 38 LLR 153 (1995) said the following in regard to the value of the judgment or appeal bond:
A lot of emphasis was placed by the respondent/appellant as to the large amount in question and also that it involved a foreign commercial bank. It was argued that an opinion dismissing the case on procedural grounds would send the wrong signal to the business community at this critical period in the history of our country. The underlying implication is that we relax the rule and permit a hearing on the merits of the claim in the court below rather than dismiss the case on a legal technicality, i.e. the failure of the respondent/appellant to file a proper appeal bond, in keeping with the statutory requirement governing appeal bond. But this line of reasoning has already been rejected by the Supreme Court on numerous occasions in the past. However, dismissal of an appeal on the ground of non-compliance with statutes is not a mere technicality. ld., at 161.
While we could stop here with the dismissal of the appeal, we are of the strong opinion that we should allude to the lessons learned from our dismissal of the appellants’ appeal. We earlier referred to provisions of our Constitution that guaranteed freedom of thought, of expression, and of the press. We hold those freedoms and the provisions containing them in high esteem and believe that they should be protected at all times. This is why we take highly judicial notice of the Freedom of Information Act and the Whistle Blower Act, intended to aid the press and others investigating acts of public officials, or any other persons for that matter, to uncover the truth before proceeding to publish and circulate reports and stories and draw conclusions that a person has committed a crime or engaged in other offensive and demeaning conduct. This is why also the press, in its quest for the truth, must take maximum advantage of those Acts, which the courts of this nation are bound to respect, uphold and adhere to; this is why we continue to insist that the courts, at any and all costs, must and should always be prepared to protect the rights granted by the Constitution and those Acts; and this is why further, if the press feels that it is not being accorded the rights granted by the Constitution and those Acts, or that public officials or other persons and institutions covered by the Acts are refusing to adhere to or comply with the directives of the Act, the press should seek the intervention of the courts, as the press has the right to do and as we are bound to uphold.
But neither the courts nor the exercisers of the rights stated above can ignore the fact that the same Constitution and statutes that grant those rights and guaranteed the exercise of the rights similarly place us on notice that the exercise of the rights come with responsibility and that we are can be held accountable when we abuse them or infringe on the rights of other citizens who are also entitled to the protection of the law. The rights do not grant to any of us carte blanche authority to smear the image and the reputation of any our citizens or persons residing in Liberia, without proof that they did in fact engage in the alleged criminal conduct. Republic of Liberia v. Jawhary, Supreme Court Opinion, March Term, 2006, decided August 18, 2006. This is how Mr. Justice Pierre, speaking for this Court in the case In re C. Abayomi Cassell[1961] LRSC 22; , 14 LLR 391, 427-28 (1961) depicted the essence of the Freedom of The Press Clause of the Constitution: “On the question of freedom of the Press, we should like to say that this freedom should not be interpreted as license to exceed the constitutional liberties a citizen should enjoy….Too often some of us are wont to use this constitutional privilege from motives other than could be called good, and for ends far removed from justifiable; therefore the Constitution has made the use of the privilege subject to personal responsibility for its abuse.
We dare to state and to emphasize that the protection of the rights of our citizens is not limited only to actions taken or undertaken by the Government or public officials; it applies to any and every action taken or undertaken by any citizen or groups of citizens against other citizens which infringe upon rights also guaranteed them by the Constitution. The Equal Protection Clause of the Constitution does not discriminate between public officials and private citizens, between males and females, between adults and youths, between the rich and the poor, between religious sects or denominations, between a priest and an atheist, between a baby and an aged person, or between the high and the lowly. All are protected under the law.
Therefore, it doesn’t matter whether you are the President of the nation or an ordinary market woman selling bitter balls in the market; whether you are Vice President of the nation or a shoe shine boy shining shoes on the sidewalk; whether you are Speaker of the House of Representatives or a pen-pen operator or rider; whether you are the President Pro Tempore of the Senate or a simple trader on the streets; whether you are Chief Justice or Associate Justice of the Supreme Court or a student, a social society advocate, or a disabled person; whether you are a cabinet minister or a homeless person on the street; or whether you are a manager or director in a lucrative public or private institution, or a messenger, janitor or yard boy. They are all are entitled to the equal protection of the law; and the law shows no discrimination because the citizen that has determined to injure another citizen is a member of the press or of any other institution whose prime focus is on the exercise of the freedom of expression or of thought granted by the Constitution.
We would therefore reach the same conclusion even if the person injured in the instant case was a messenger, a yard boy, a subsistence farmer, or a street seller or cleaner. If any of those persons was accused by any other person, whether of the press or in any other sector of the society, of the commission of a crime, and the person affected feels that he or she did not commit the offense of which he is accused, that he or she was never charged or prosecuted for such crime alleged against him or her by the press, he/she would be entitled to equal access to the law for the protection of his/her image and reputation, and the accuser, whether of the press or otherwise, would have to give proof that the offense of which it has accused the person, is true, for that is the only defense.
Indeed, that is why, at Article 26 of the Constitution, it is provided that: Where any person or any association alleges that any of the rights granted provisions on freedom of expression, of thought and of the press, it conveys a clear, distinct and undisputed impression that all citizens are entitled to the equal protection of the law and that the exercise of a right granted by the Constitution carries with it a responsibility to be cautious and responsible, and to couple the exercise of those rights with a clear sense of discipline so the rights of other citizens equally entitled to protection are not infringed upon.
We do not doubt that persons holding public offices are exposed to greater scrutiny and accountability, as rightly they should. But the fact that one opts to hold a public office does not mean that the person thereby relinquishes his right to be protected by the law, that he or she may thereby be falsely accused of acts that have no foundation of truth, or that he or she thereby waives his or her constitutional right to challenge the accusations· and be protected by the law. The fact that one holds a public office does not mean that others, including even the press, are vested with the right to levied deliberate falsehoods and lies against him or her. The accusers, including the press must be aware that such deliberate false accusations carry with the serious negative consequences for the victims of the accusations.
Moreover, the fact that one official of government chooses not to protect his or her right under the law does not prevent any other public official from choosing to exercise the right of protection granted by the law from utterances of falsehood and lies that could injure and tarnish an image and a reputation build up in a lifetime.
That is why our society has opted for ensuring that any person injured by the acts of another has a remedy at law. This is why also our society has opted for a jury system so that persons who are injured and persons who have committed such injury are equally judged by our peers who have the opportunity of deciding whether in fact the exercise of certain rights by any segments of the society has encroached or infringed upon the rights of other citizens. We cannot and must never lose sight of this cardinal principle and the objective of the framers of our Constitution in granting certain rights and freedoms and attaching responsibility to the exercise of those rights.
We emphasize again that the law draws no distinction between a reporter and another person not associated with the press. The burden of proof is the same where allegations are made, especially, as in the instant case, where the defendants accused the plaintiff of the commission of an act which, under the Penal Law of Liberia, is a crime and punishable as such. The burden was therefore on the defendants to prove the truthfulness of the statement made against the plaintiff. The only burden imposed on the plaintiff, since the statements attributed to the defendants/appellants constituted defamation per se, was to show or prove that the defendants had made the accusations, allegations and statements which the plaintiff attributed to them.
When allegations are made against a person, whether he or she is a public official or a private citizen, the person or institution making the allegations must be aware that there are likely to be consequences if the allegations are shown to be untrue, and that part of those consequences could be monetary damages. The persons making the allegations must be able and capable of measuring the damage, the harm, the hurt, the injury, the pain, the agony, the disgrace and the distress which their accusations could cause or may have caused to those whom they have accused.
This is why the law, universally recognized and adhered to, requires that persons making allegations that impute to others acts of corruption, criminal conduct, dishonesty and such negative vibes, must be prepared to show that the allegations are made on the basis of investigations conducted and are grounded in the truth, so that in the event a suit is commenced, as the aggrieved party has the constitutional and statutory right to do, the truth, not speculation, will be placed before the jury in a fair and impartial trial, and thereby a verdict of liable is averted or that even in the face of a liable verdict, to make every effort to comply with the procedural and substantive appeal requirements so that the Supreme Court has the opportunity to review, reverse or modify the award, verdict, or judgment, if it determines that they are unjustified.
We are deprived of that opportunity to review the verdict and the judgment confirming same by the failure or refusal of the appellants to comply with the statutory requirements for perfecting an appeal. We are therefore left with no choice but to dismiss the appeal and to affirm the judgment of the lower court.
Wherefore, based on all we have said and the relevant laws cited, it is the considered opinion of this Court that the motion to dismiss the appeal be granted as the Court is without jurisdiction to go into the merits of the case to determine if the jury or the trial judge were in error; that the verdict of the empanelled jury and the judgment rendered thereon by the trial judge confirming the said verdict be confirmed and affirmed; and that the appeal taken therefrom be dismissed. And we so order.
The Clerk of this Court is hereby ordered to send a mandate to the court below directing the judge presiding therein to resume jurisdiction over the case, give effect to this Opinion, and enforce the judgment. Costs are adjudged against the appellants. AND IT IS HEREBY SO ORDERED.
Emmanuel B. James appeared for the movant. James N. Kumeh appeared for the respondent.