JOSEPH D. WENNAH, Appellant/Respondent, v. ISAAC T. TAY, Appellee/Movant.

MOTION TO DISMISS APPEAL FROM THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT, GRAND BASSA COUNTY.

Heard: May 19, 1983. Decided: July 6, 1983.

1.The duty to have the trial records on appeal transcribed and transmitted to the Supreme Court within ninety days ailed judgment, is the statutory duty of the clerk of court, and a party litigant cannot suffer because of the failure of the clerk or any other officer of the court to perform his assigned duty.

2. The lessee’s right to quiet enjoyment of physical possession of the demised premises does not in any way affect the lessor’s inherent reversionary right to assign, or sell, or offer the property as a security to an appeal bond.

3. A property against which there is a lien can also be offered as security to secure a bond as long as the value of such property is enough to cover the total amount of the liens, unpaid taxes and other encumbrances against the property as long as the owner has not parted with the property.

Appellee/Movant filed a motion to dismiss an appeal emanating from the Second Judicial Circuit alleging as grounds that: (1) taxes had not been paid on the property offered as security on the appeal bond; (2) that there was no statement in the affidavit of sureties with respect to whether or not there are any liens or encumbrances on the property; (3) that the property was not sufficiently described by metes and bounds; (4) that the appeal records were not transmitted to the Supreme Court within the statutory period.

Appellant/respondent filed a resistance, contending that the bond as filed satisfied the relevant statutory requirements and that the transmission of the appeal records to the Supreme Court being a ministerial function of the clerk of court, the failure to perform that function could not be attributed to the appellant.

The Supreme Court upon inspection of the records found that appellee had complied with all the statutory requirements alleged by appellant to have been violated. With respect to the transmission of the appeal records, the Supreme Court held that whilst it is true that appellant had a duty to superintend his appeal, he cannot suffer because of the failure of the clerk of court to transcribe and transmit the records on appeal to the Supreme Court within statutory time, this being a statutory duty imposed on the clerk.

G. Bona Sagbe appeared for appellant/responderit. Richard K Flomo appeared for appellee/movant.

MR. JUSTICE SMITH delivered the opinion of the Court.

This case, now on appeal, emanated from the Second Judicial Circuit Court, Grand Bassa County. The appellant/respondent having excepted to the court’s final judgment, has perfected his appeal for review by this Court. But while the appeal was pending, the appellee/movant filed a five-count motion to dismiss, substantially alleging as follows:

1. That the appeal bond of the appellant was defective, because taxes were not paid on the property offered as security.

2. That there is no statement in the affidavit of sureties that, the property offered as security has not been mortgaged and/or leased, and that there were no other encumbrances against any of the said properties.

3. That the affidavit of sureties did not sufficiently describe the real property by its metes and bounds, that is, by block and lots numbers.

4. That there was no application made by the appellant to the clerk of court for the issuance of the notice of the completion of the appeal; instead, the application was made to the appellee as shown on the face of the notice of the completion of the appeal, contrary to law and in violation of the appeal statute.

5. That the Appellant neglected to superintend his appeal by having the appeal records reached the Supreme Court within ninety (90) days after judgment.

Appellant filed a resistance to the appellee’s motion, alleging in essence that the appeal bond was not defective to subject the appeal to dismissal, in that, it met all the requirements of the statute as evidenced by the documents accompanying the bond; that the fact that the notice of the completion of the appeal was issued and served, means that an application was made therefor to the clerk of court; that taxes had been paid on the property offered by the Government of Liberia which is leasing the said property having deducted from the lease rent taxes assessed on the property; and that the failure of the clerk of the trial court to have the appeal records transcribed and transmitted to the Supreme Court within ninety (90) days after judgment could not be attributed to the appellant and prejudice his interest, especially so when appellant completed the appeal within statutory time as evidenced by the notice of the completion of the appeal.

In order for us to fairly pass upon these issues, we must take recourse to the bond to see whether or not it meets the requirements of the statute.

An inspection of the appeal bond revealed that the bond was accompanied by affidavit of sureties in which the properties of the two sureties were described and also a certificate from the bureau of revenues stating the value of the property to be $60,000.00, over and above the amount of judgment which is $18,000.00. The certificate of property valuation also showed that taxes for 1981 had been paid on each of the properties. There was also a notice of the completion of the appeal in the records which counsel for appellee/movant agreed were served within the statutory time of sixty (60) days after judgment. For the benefit of this opinion, we hereunder quote, one after the other; the affidavit of sureties, the certificate of property valuation, and the notice of the completion of the appeal, as follows:

“SURETIES’ AFFIDAVIT

“PERSONALLY APPEARED BEFORE ME, in my office in the City of Gbarnga, a duly qualified Justice of the Peace for Bong County and Republic aforesaid, James E, George, Sr. and Mrs. Ellen L. Clarke, sureties to the attached appeal bond, signed in the above entitled cause, and made oath according to law that they are the owners of the real properties offered as securities, said properties for James E.

George, Sr. and Mrs. Ellen L. Clarke being houses and lots described as follows:

“LOT # LOCATION VALUE ACRES OWNER

N/N Gbarnga $30,000.00 2 lots & bldg. J E George N/N ” $30,000.00 17 acres & bldg. E L Clarke “Commencing from the south-west junction of the New Highway and the Fish Pond Street and thence running as follows: north 46 East 264 ft. north 44 West 82.5 ft., south 46 west 264 ft., south 44 East 82.5 ft. and back to the place of commencement and containing (2) lots 21780 sq. feet or two lots and no more. Commencing at the south west corner of Mr. Philip Harris 10 acres property and thence running north 50 degrees west 2,244 ft south, 40 degrees west, 330 ft. South, 50 degrees East, 2,244 ft. north, 40 degrees east, 330 ft. back to the place of commencement and containing 17 acres of land and no more. Within the Republic of Liberia, and that the assessed value of the properties are over and above the value of the bond, in sum of ($60,000.00) sixty thousand dollars and liabilities, that the said properties offered are unencumbered all this they said to be true and correct to the best of their knowledge and information, and belief and as to those matters of information they verily believe them to be true and correct ….”

“STATEMENT OF PROPERTY

VALUATION PROPERTY OWNER(S) LOCATION VALUATION LOT NOS. James E. George, Sr. Gbarnga $30,000.00 N/N Ellen L. Clarke Gbamga $30,000.00 N/N (Sixty Thousand Dollars) “This is to certify that the real estate properties of Mr.

James E. George, Sr. and Ellen L. Clarke have (sic) valued and registered as shown above. “RECEIPT NOS. DATE OF PAYMENT AMOUNT PAID 2133892 August 26, 1981 $624.00 2133701 September 17, 1981 $154.00. . ”

“NOTICE OF COMPLETION OF APPEAL “REPUBLIC OF LIBERIA TO: ISAAC T. TAY OF GRAND BASSA COUNTY, LIBERIA

“You will please take judicial notice that upon all of the papers herein, Joseph D. Wennah, defendant-appellant herein, hereby appeals to the Honourable the People’s Supreme Court of Liberia, sitting in its October, A.D. 1982, Term, from the final judgment rendered on the 21′ day of September, A.D. 1982, by His Honor Frederick K. Tulay, assigned circuit judge presiding over the August, A.D. 1982, Term of the People’s Second Judicial Circuit, Grand Bassa County, Republic of Liberia, and filed in the office of the clerk of court on the 25t h day of September, A.D. 1982.

“And have you there this notice of completion of appeal.”

From the above-quoted documents accompanying the appeal bond, it is our opinion that the said bond meets the requirements of the appeal statute, and appellee’s contention is, therefore, unmeritorious and embodies microscopic legal technicality merely intended to defeat the ends of justice.

Whilst it is true that the appellant had the duty to superintend his appeal, yet, the duty to have the trial records on appeal transcribed and transmitted to the Supreme Court within ninety (90) days after judgment, is the statutory duty of the clerk of court, and a party litigant cannot suffer because of the failure of the clerk or any other officer of the court to perform his assigned duty. Moreover, there is a certificate issued by the clerk of the trial court in the records to the effect that because of pressure of work, that is to say, transcribing appeal records for the Supreme Court, the records in the instant case could not get to the Supreme Court on time. The delay under the circumstances, in our opinion, is an unavoidable delay and cannot prejudice any of the parties to constitute a ground for dismissal of the appeal.

Counsel for appellee argued that because the property of each of the sureties has been leased to Government, they are not unencumbered and therefore could not have been offered as security for the appeal bond; hence, the Government of Liberia has a lien on the property.

The question that has arisen from this argument is, whether by reason of the Government of Liberia being a lessee, it has a lien on the said property by virtue of which the owner or lessor is forbidden by law from offering said property as security to an appeal bond. In discussing this question, it is necessary to know what is a lien and how is it created against a property, and who has the right to recover therefrom in case of a breach. It is, however, apparent that one who has a lien against a piece of property may recover therefrom in case of a breach.

“Lien” is defined by Black’s Law Dictionary 1072 (4th ed), as a charge, or security or encumbrances upon property. A claim or charge on property for payment of some debt, obligation or duty. A lien is a charge imposed upon specific property; it is not a property in, or right to, the thing itself, but constitutes a charge or security thereon. It is a tie that binds property to a debt or claim for its satisfaction.

Under this definition, it is difficult to understand by what parity of reasoning one could conclude that a lessee has a lien on the property leased by him by reason of which his lessor has no right to offer said property as a security to an appeal bond. Here is another legal definition of the word “lien”:

“In its most general significance, a lien is a charge upon property for the payment or discharge of a debt or duty. It is a qualified right, a proprietary interest, which, in a given case, may be exercised over the property of another. It is a right which the law gives to have a debt satisfied out of a particular thing. However, it confers no general right of property or title upon the holder; on the contrary, it necessarily supposes the title to be in some other person” (emphasis ours).33 AM. JUR. “Lien”, § 2–Definition and Nature.

The right of a lessee, in our opinion, is quiet enjoyment of possession of the demised premises, which imposes no monetary obligation on the lessor that would require payment to the lessee. A “lease” is not a “mortgage”. Mortgage is a transfer of property passing conditionally as security for debt; and so in the case of a mortgage, an estate is created by a conveyance of some act such as the payment of money, and the like, by grantor or some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance. In such a case, the mortgagee, who is in possession of the real property, with the agreement or assent of the mortgagor, expressed or implied, and in recognition of his mortgage, and because of it, and under such circumstances as an equitable prerequisite to his being dispossessed, has a lien against such property created by reason of the mortgage.

But in the case of a lease, the contract is for the exclusive physical use of the real property leased, and does not bind the lessor to the lessee for any monetary obligation, for the satisfaction of which the property had been demised; therefore, one who is obligated to the lessor, that is, the lessee, cannot be said to have a lien against the demised premises to forbid the legal owner or lessor, who retains title, from offering his said property as a security to an appeal bond.

In the wake of all that we have narrated supra, and the law cited, it is clear that the lessee’s right to quiet enjoyment of physical possession of the demised premises does not affect the lessor’s inherent reversionary right to assign, or sell, or offer the property as a security to an appeal bond. It is therefore our opinion that a property against which there is a lien, as the property offered as security in this case, can also be offered as a security to secure a bond as long as the value of such property is enough to cover the total amount of the liens, unpaid taxes and other encumbrances against the property, and as long as the owner has not parted with title to such property.

In view of the foregoing, the contention of the appellee that the Government of Liberia has a lien against the demised premises by reason of the lease, and therefore it cannot be offered as security for a bond, is not sustained.

Having traversed the grounds on which the motion to dismiss is based, and in keeping with the law cited supra, it is our candid opinion and holding that the motion to dismiss appellant’s appeal be, and the same is hereby denied with costs against the appellee.

The Clerk of this Court is hereby ordered to re-docket the appeal for hearing during the ensuing Term of Court. And it is hereby so ordered.

Motion denied.