JEROME TROWEN, Respondent/Appellant v. PETER G. TARPEH, Movant/Appellee.
MOTION TO DISMISS APPEAL FROM RULING OF THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRAOO COUNTY.
Heard: November 23, 1981. Decided: February 4, 1982.
1. While an appeal bond may suffice for appearance bond, an appearance bond cannot answer the purpose of an appeal bond.
2. Where the affidavit of sureties is submitted with the appeal bond, hut names a principal other than the appellant, the appeal bond is materially defective and the appeal shall be dismissed upon motion of the appellee.
3. Where the certificate of property valuation from the Ministry of Finance names a principal other than the party litigant presenting it, the bond is materially defective.
4. An appellant need not file exceptions to an appeal bond which has been filed after the statutory period of sixty days for perfection of the appeal. Such an appeal bond may be attacked directly before the Supreme Court.
Final judgment in an action of ejectment was entered against the respondent/appellant on August 4, 1980 by the Sixth Judicial Circuit Court, Montserrado County. Respondent/ appellant filed his bill of exceptions, approved appeal bond and notice of the completion of the appeal. When the case was called for hearing, the movant/appellee informed the Supreme Court that he had filed a motion to dismiss the appeal on the following grounds: (a) that the appeal bond was not supported by a valid property valuation certificate from the Bureau of Internal Revenue in that the certificates attached to said appeal bond were originally obtained and intended as a security for the appearance of two defendants in the Criminal Court; (b) that, according to the said certificates, indemnification of the movant/appellee under the circumstances, is an absurdity.
Respondent/Appellant resisted the motion, contending that property valuation certificate is simply meant to show that the sureties are qualified and that movant/appellee, having failed to except to the sureties within three days, was guilty of laches and waiver. The Court refused jurisdiction over the case and granted the motion to dismiss the appeal, after finding that the properties intended to serve as security for the appeal bond had earlier been pledged as security for the appearance of two defendants in a criminal case.
E. Wade Appleton appeared for the Appellant. S. Edward Car/or appeared for the Appellee.
MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.
This appeal comes from the Sixth Judicial Circuit Court, Montserrado County, where a final judgment was rendered on August 4, 1980, during its June Term, in an action of ejectment. Subsequently, on the 14th day of August 1980, and on the 16th day of October 1980, respondent/appellant filed his approved bill of exceptions, approved appeal bond and notice of completion of the appeal. However, when the case was called in this Court for hearing, the movant/appellee informed us that he had filed a motion to dismiss the appeal and that a resistance had also been filed.
The grounds laid in the five-count motion are:
(a) that the appeal bond is not supported by a valid property valuation certificate from the Bureau of Internal Revenue as the controlling statute contemplates, in that the certificates attached to said appeal bond were originally intended to obtain the appearances of two different defendants, namely: Madames Monica Mensah and Maju Bah, respectively, in another court and not for appellant, Jerome Trowen; and (b) that according to said certificate, indemnification of the movant/appellee under the circumstances is an absurdity. During argument before this Bench, movant/appellee pointed out that the appeal bond lacked the required affidavit of sureties; and hence that the appeal ought to be dismissed.
On the other hand, the respondent/appellant, in an attempt to overcome his handicap, contended; (a) that according to the relevant statute he had complied with all the requirements for the completion of an appeal, (b) that movant/appellee had failed in his motion to state which of the requirements of the law relative to appeal respondent/appellant had violated, (c) that also property valuation certificate is simply meant to show that the sureties are qualified and finally (d) that movant/ appellee, having failed to except to the sureties within three days, was thus guilty of laches and waiver; and that accordingly the motion to dismiss the appeal should therefore be denied.
Observing that both the motion and its resistance, together with the arguments presented, have raised legal and factual issues pertaining to the certificates from the Ministry of Finance and the affidavit of sureties, it is proper to have recourse to them:
“REPUBLIC OF LIBERIA
MINISTRY OF FINANCE
MONROVIA, LIBERIA
REAL ESTATE TAX DIVISION
DATE: SEPTEMBER 10, 1980
TO WHOM IT MAY CONCERN
STATEMENT OF PROPERTY VALUATION
LOT NO: LOCATION VALUATION ACREAGE PROPERTY OWNER
N/N BUSHROD ISLAND $14,200.00 1/2 TOBY MOORE (FOURTEEN THOUSAND TWO HUNDRED DOLLARS)
THIS IS TO CERTIFY THAT THE REAL ESTATE OF THE ABOVEMENTIONED PERSON IS REGISTERED AND VALUED AS SHOWN ABOVE: TAXES THEREON ARE PAID UP TO AND INCLUDING JUNE 30, 1980.
APPEARANCE BOND IN FAYOUR OF: MAJU BAH X X X X X XX
CERTIFIED BY: SGD. Signature illegible
PP. ACCOUNTS SUPERVISOR
SIGNED; Signature illegible .
DIRECTOR, R. E. T. D. ASSISTANT MINISTER FOR REVENUES
APPROVED: Signature illegible 9/10/80
SST. MINISTER FOR REVENUES” “REPUBLIC OF LIBERIA MINISTRY OF FINANCE MONROVIA, LIBERIA
REAL ESTATE TAX DIVISION
OFFICE OF THE MINISTER DATE: JUNE 10, 1980
TO WHOM IT MAY CONCERN STATEMENT OF PROPERTY VALUATION
LOT NO.: LOCATION: VALUATION: ACREAGE: PROPERTY OWNER
N/N LYNCH STREET $7,500.00 1/4 J. B. SANDY
MONROVIA, LIBERIA
(SEVEN THOUSAND FIVE HUNDRED DOLLARS)
THIS IS TO CERTIFY THAT THE REAL ESTATE OF THE ABOVEMENTIONED PERSON IS REGISTERED AND VALUED AS SHOWN ABOVE: TAXES THEREON ARE PAID UP TO AND INCLUDING JUNE 30, 1980.
APPEARANCE BOND IN FAVOUR OF: MONICA MENSAH X X X
CERTIFIED BY: Signature illegible
ACCOUNTS SUPERVISOR SIGNED: signature illegible
ASST. MINISTER FOR REVENUES”
“AFFIDAVIT OF SURETIES:
PERSONALLY APPEARED before me a duly qualified Justice of the Peace for and in Montserrado County, Republic of Liberia, TOBY MOORE and J. B. SANDY, SURETIES, all of the City of Monrovia, Liberia and made OATH according to law to the effect that:
1. That they are the sureties on the annexed Appeal Bond in the entitle cause of action.
2. That one of them is the owner of the property appearing on the said certificate of the Revenue Services offered as security.
3. That the said property is unencumbered and the taxes have been paid up to date as seen on the property valuation.
4. That the assessed value of the property is $14,200.00 (FOURTEEN THOUSAND TWO HUNDRED DOLLARS).
LOT NO. LOCATION VALUATION ACREAGE PROPERTY OWNER
N/N BUSHROD ISLAND $14,200,00 TOBY MOORE MONROVIA, LIBERIA
N/N LYNCH STREET 7,500.00 J. B. SANDY
MONROVIA, LIBERIA
That the total assessed value of both properties are:
$21,700.00
SWORN AND SUBSCRIBED TO BEFORE ME AT MY OFFICE IN MONROVIA, LIBERIA, THE 16TH DAY OF OCTOBER, A. D. 1980.
Sgd. Robert B. Anthony
JUSTICE OF THE PEACE, MONT. CO.
SURETIES/DEPONENT
$1.00 Revenue Stamp affixed here.”
The relevant statute relating to the contents of the certificate from the Ministry of Finance and the affidavit of sureties is Section 63.3(3) and (4) of the Civil Procedure Law; and it provides:
“3. Affidavit of Sureties. The bond shall be accompanied by an affidavit of the sureties containing the following:
(a) A statement that one of them is the owner or both combined are the owners of the real property offered as security;
(b) A description of the property sufficiently identified to establish the lien of the bond;
(c) A statement of the total amount of the liens, unpaid taxes, and other encumbrances against each property offered; and
(d) A statement of the assessed value of each property offered.”
“4. Certificate of Treasury Department official.
The bond shall also be accompanied by a certificate of a duly authorized official of the Department of Treasury that the property is owned by the surety or sureties claiming title to it in the affidavit and that it is of the assessed value therein stated, but such a certificate shall not be a prerequisite to approval by the Judge.”
From a careful perusal of the motion and its resistance, four pertinent issues present themselves:
1) Whether one property can be pledged as a security twice, that is to say, in two separate and distinct actions, without showing the extent of each lien?
2) Whether the appeal bond in question is effective in the light of the statute controlling?
3) Whether the purpose of property valuation certificate is simply to show that the sureties named therein are qualified?
4) Whether the presentation to court by counsel of documents surrounded by deceptive and fictitious circumstances amounts to a contemptuous act on his part?
A scrutiny of the certificates attached to the appeal bond reveals that while the properties of Messrs J. B. Sandy and Toby Moore have been pledged herein in favour of respondent/appellant in the instant case, it is also equally revealed that the same properties had earlier been pledged as security for the appearances of two different parties (defendants) namely: Monica Mensah and Maju Bah, in an action where Jerome Trowen, respondent/appellant in this case, was no party litigant and was not involved at all. These circumstances make indemnification impossible as same has not been executed in keeping with the expressed provisions of the statute on appeal.
While an appeal bond may suffice for an appearance bond, an appearance bond cannot take the place of an appeal bond, especially so where there is evidence, as in this case, that the reported sureties, J. B. Sandy and Toby Moore are no agents for appellant/principal in the case. Amierable v. Cole, 13 LLR 17 (1957).
The certificates are legally faulty in that the sureties did not obligate themselves, neither did they pledge their properties to movant/appellee to comply with the judgment for which the appeal was pending. Generally speaking, an appeal bond is in nature of a contract; the parties being appellant and sureties/ obligors on the one hand and the appellee/obligee on the other hand, so that in the event an action was brought on the bond, the appellee would be the proper party plaintiff. Civil Procedure Law, Rev. Code 1:63.7. ·
The motion on its face strikes at the very basis of the appeal in that it attacked certain material defects in the bond, which must of necessity render it defective. Recourse to the records certified to us in this case reveals that the affidavit of sureties is admittedly defective because it bears no signature of any one as affiant(s)/deponent(s) who by statute would be the guarantors of the respondent/appellant. Therefore, the respondent/ appellant’s bond essentially had no affidavit of sureties; and hence where no affidavit of the sureties is submitted with the appeal bond, the sureties will be considered not qualified under the law. Rasamny Bros. v. Brunet, [1970] LRSC 24; 20 LLR 3 (1970). Also, in the case, Sauid v. Gebara, [1964] LRSC 18; 15 LLR 598 (1964), the Court held that where the sureties subscribing to an appeal bond are not statutorily qualified the bond is materially defective and the appeal will thus be dismissed.
Whilst it is true that a property valuation certificate is simply meant to show that the sureties named therein are qualified, yet, in a case like this and under similar circumstances, we would not regrettably share the view that the named sureties (J. B. Sandy and Toby Moore in this case), would be qualified, when in fact their reported consent for respondent/appellant, Jerome Trowen, was obtained improperly and indirectly; the same having been intended only for the appearances of Madames Monica Mensah and Maju Bah in another case. The purpose of a certificate is to show that the sureties are qualified when the contracting parties have a meeting of the minds.
The property valuation certificate from the Bureau of Internal Revenues and the affidavit of sureties are two of the essential prerequisites for the completion of an appeal to this Court; and if found to be defective in any of its important parts, an attack by an appellee will of necessity render the appeal dismissible.
The Court is further of the view that the grounds for dismissing an appeal are not restricted to the statute only, as the respondent/appellant scuffies to contest, but also are based on numerous opinions of this Court. Baky v. Nah, [1970] LRSC 35; 20 LLR 38 (1970); Sirleaf v. Reeves, [1971] LRSC 56; 20 LLR 433 (1971).
The Court observed that the property valuation certificates attached to the appeal bond are in favour of Monica Mensah and Maju Bah for their appearances and not in favour of Jerome Trowen, the respondent/appellant/principal for indemnifying the appellee. The Court also observed that the affidavit of sureties does not carry the signature of any affiants/ deponents. These attributes of the affidavit of sureties render it a legal nullity. Estime v. Raymond Concrete Pile Company, [1970] LRSC 19; 19 LLR 485 (1970); Civil Procedure Law, Rev. Code 1:63.2(3)and (4).
A careful inspection of the records certified to us shows that the respondent/appellant served the copy of the appeal bond, together with the notice of the completion of the appeal on movant/appellee on the 16th day of October 1980, well after 72 days of the rendition of final judgment, contrary to law, thereby making it legally impossible to take exception to the sureties since, by then, the trial court had lost jurisdiction over the action. The principles of lashes and waiver do therefore apply. Therefore, respondent/appellant’s contention that movant/ appellee should have excepted to the sureties within three days statutory time is inconsistent with the law on the point. Civil Procedure Law, Rev. Code 1:51.8 and 1:51.9.
This Court has for some time now been noticing with much disfavor the way some practicing lawyers are handling their clients’ cases and interests; indifference and carelessness are now the order of the day. This practice inevitably reflects very poorly on the profession of our choice and will soon bring it into disrepute, if not checked. Because of the sheer dereliction of duty by Counsellor E. Wade Appleton in filing the appeal bond in this case 72 days after the rendition of final judgment and surreptitiously posting as appeal bond property valuation certificate that had earlier on been obtained in favor of Madames Monica Mensah and Maju Bah for an appearance bond, this Court is issuing a stem warning against such practices as being careless and reprehensible nature and the indifference shown result in gross miscarriages of justice to clients.
The presentation to this Court by counsel of a document fraught with deceptive and fictitious surroundings for the purpose of misleading this Court, is contemptuous. This Court, therefore, adjudges Counsellor E. Wade Appleton guilty of contempt of court and accordingly fines him the sum of one hundred fifty dollars ($150.00) to be paid into the Government Treasury within five days from the date of this judgment as atonement.
Since it is patently clear the bond now before this Court is indeed defective for failure to comply with statutory requirements and also for failure to conform to numerous opinions of this Court, we must thus hold that what is not legally done is not done at all. Therefore, this Court has refused jurisdiction over the hearing on the merits of the case and accordingly has sustained the motion to dismiss, with costs against respondent/ appellant. And it is so ordered.
Motion granted; appeal dismissed.