PHOTO: Judge Eva Mappy-Morgan (middle), outgoing Chief Justice Korkpor (right) and Justice Kabah (left)
By Garmah Never Lomo, garmahlomo@gmail.com
TEMPLE OF JUSTICE, Monrovia- The Judiciary Inquiry Commission (JIC) some time ago investigated a complaint against the chief Judge of the Commercial Court, Eva Mappy-Morgan finding her liable to ethical misconduct in the long-running MOTC case, but a majority Opinion from the Supreme Court of Liberia thrashed the JIC findings and recommendations.
The majority opinion of the highest court in the country was handed down on Monday September 26,2022, saying instead that Judge Mappy-Morgan disregarded the recommendation of the JIC that disciplinary action be taken against her on for alleged misconduct, but the Court said HER ACTION WAS NOT UNETHICAL.
But the but the outgoing Chief Justice Francis S. Korkpor has given a dissenting view on the majority opinion of his colleagues.
The JIC in its findings recommended that that Judge Morgan be suspended by the Supreme Court for a period of one year without pay and benefits and those lawyers involved with the petition for accounting whose representations appear wanting and derelict of fidelity to clients and violative of the Code of Moral and Professional Ethics and the laws of the Republic be forwarded to the grievance and ethics committee for investigation.
The JIC also opined that the complainant is not precluded by these proceedings to institute action of damages for wrong against the respondent Judge Morgan in a competent court of jurisdiction.
But the respondent Judge took exception to the findings and recommendations of the JIC and announced an appeal therefrom to the Supreme Court and filed a Bill of exceptions consisting of nineteen counts.
In his dissenting view, Chief Justice Korkpor based his decision on two legal issues:
Whether or not by single handedly presiding over the petition for accounting the respondent Judge breached the Act establishing the commercial court and if yes, whether such action is punishable under Judicial canon #10?
Whether or not the lifting of the freeze on Ducor petroleum’s LBDI account following the communication from the counsel for Monrovia Trading company (MOTC) amounted to acting on an ex parte communications in violation of Judicial canons #23&24?
“Article V, section 2 of the Act establishing the commercial court provides a case filed before the commercial court may be heard by one of the three judges of the commercial court provided that where the amount of claim is in excess of US$1,000,000.00(one million United States dollars) or the Liberian dollars equivalent, the case shall be heard by the full three judge panel.”
The respondent Judge advanced the argument and my majority colleagues have accepted that because the action filed before the commercial court is a petition for accountant, there is no sum certain involved in the case; that it is only when the actual amount is in excess of one Million United States dollars that the case can be heard by the full three panel judge, therefore the respondent Judge was justified to have sat on the case alone.
“I disagree and hold the view that when an action is filed before a court, including an action for proper accounting, said action must be taken at its face value. In other words, the amount stated in the complaint should be the yardstick or benchmark for determining the claim,” Chief Justice Korkpor added.
In the instant case, MOTC prayed for accounting from Amos Brosius for petroleum products in the amount of US eight million dollars allegedly entrusted to him. In my view, on conducting proper accounting, the amount started by MOTC could be confirmed or understated but yet still within the jurisdictional limits of the commercial court. It is only when the amount is overstated and the actual amount after the process of accounting falls below one million United States dollars that a single judge of the commercial court can provide over it.
According to Chief Justice Korkpor, several questions linger with respect to this case. What happens after the accounting is done and it is discovered that the amount is more than required for a single judge to sit on the case? What happens to the sundry decisions including Pre-trial applications/ motions that a single judge would have taken as was done in the instant case? Will they be set aside and the matter returned to the full three panel judge? The proper thing to do, therefore, is to take the complaint at face-value.
Chief Justice Korkpor added that it is trite law that any order, ruling or judgement of a judge is a legal nullity where the judge is within jurisdiction. In my view, the respondent Judge in this case did not have jurisdiction, when she presided over the petition for accounting filed by MOTC and this is a violation of the Act establishing the commercial court.
He said: “This court (Supreme Court) with the authority to sanction judges having assumed jurisdiction over this case for judicial review, though through the path of the JIC can determine from the facts of the case which is not in dispute that the respondent judge did not have jurisdiction to sit on the case alone. At least this much should have been recognized and pronounced by my majority colleagues but they did not.
But I disagreed with the JIC that for exceeding her jurisdiction the respondent judge can be held under Judicial canon #10 which provides that;
Judicial Canon Ten. ESSENTIAL CONDUCT OF A JUDGE
A judge should be temperate, attentive, impartial and since he is to administer the law, interpret it and apply it to the facts, he should be studious of the principles of the law and diligent in endeavoring to ascertain the facts.
In my mind judicial canon #10 is not applicable
The second issue whether or not the lifting of the freeze on Ducor petroleum’s LBDI account following the communication from the counsel for MOTC accounted to acting on an Ex parte communication in violation of Judicial canon 23&24?
The JIC found and it is not in dispute that the freezing order issued by respondent judge on July 15,2013 was a result of an agreement by MOTC and complainant to freeze the account of Ducor petroleum’s except for seven checks totaling amount (US 121,704.36) pending audit. The respondent judge proceeded to unfreeze and subsequently returned the Ducor petroleum’s account at LBDI on the request of MOTC without notice to the complainant counsels.
In my view, the freezing of the account in question being a red of an agreement, the respondent judge(Morgan) ought not to have ordered ex parte the unfreezing and returning to status quo ante on July 23,2013 and July 23,2013 respectively without the knowledge of the complainant. I hold that the respondent judge’s conduct in this respect clearly violates Judicial canon 23&24 which provides
Judicial Canon Twenty-Three. EX PARTE APPLICATION
A judge should discourage ex parte hearing of applications for injunction and receiverships where the Order may work detriment to absent parties; he should act upon such ex parte applications only where the necessity for quick action is clearly shown, if this be demonstrated, then he should endeavor to counteract the effect of the absence of opposing counsel by a scrupulous cross-examination as to the facts and the principles oflaw on which the application is based, granting relief only when satisfied that the laws permit it and the emergency demands it. He should remember that an injunction is a limitation upon the freedom of action of defendant and should not be granted lightly or unadvisedly. One applying for such relief must sustain the burden of showing clearly its necessity and this burden is increased in the absence of the party whose freedom of action is sought to be restrained even though only temporarily.
Judicial Canon Twenty-Four. EXP ARTE COMMUNICATIONS
A judge should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application.
In my view, the action of the respondent judge constitutes a clear violation of Judicial canons 23&24 for which a penalty should attach.
Judicial canon #39 provides Judicial Canon Thirty-Nine. PENALTY
The penalty for violation of any provision of the Judicial Canon shall be either fine, suspension, impeachment and/or prosecution in a court oflaw according to the gravity of the violation.
I believed that to totally vindicate the respondent judge as the majority of my colleagues have done in is error. By their decision today September 26,2022, my colleagues have given freedom to trial court judges to carry out Ex parte proceedings not in line with Judicial canon 23&24.
For the forgoing reasons, I have withheld my signature from this judgement of the majority opinion.
Hearing by the full Bench of the Supreme Court in June of 2021.
In the petition for Accountant case hearing before the full Bench of the Supreme Court, one of the Amici Curie (friends of the Court), Cllr. Benedict Sannoh has said that the Chief Judge of the Commercial Court at the Temple of Justice ‘was in total error’ to unfreeze the US$1.3 account of Monrovia Oil Trading Company (MOTC) only without the involvement of Mr. Amos Brosius of Ducor Petroleum Company.
The Amici Curie is appointed by the Chief Justice. And Judge Eva Mappy Morgan was recently indicted by the Judicial Inquiry Committee (JIC) of acting unethically by unilaterally unfreezing the bank account in question.
During his argument at the Supreme Court on June 23, 2021, Cllr. Sannoh, who is also former Liberian Attorney General and Minister of Justice, said after the account was frozen, the lawyer representing MOTC, Cllr. Negbalee Warner called Judge Morgan to request her to lift the freezing order because he has satisfied what the court wanted and Judge Morgan unilaterally unfroze the account without the other party.
Cllr. Sannoh during argument raised several issues, but key among was whether or not Judge Morgan violated Judicial Canon #10 and whether or not the JIC’s recommendation satisfied the Supreme Court?
To answer the first issue, Cllr. Sannoh said Judge Morgan by herself to hear the case alone without the two other judges was in violation of Judicial Canon 24 and not Canon 10 adding that regarded the outcome of case, the Judiciary is the Victim which is not healthy.
The former Justice Minister told the Supreme Court Bench that even though Judge Morgan was in error by lifting the freeze on the account without the other party, Judges should not be sanctioned for every mistake they make.
Cllr. Sannoh maintained that Judge Morgan violated Judicial Canon 24 which states:
Judicial Canon Twenty-Four. EXP ARTE COMMUNICATIONS
A judge should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application.
The Friend of the Court argued that Judge Morgan didn’t have the authority to unilaterally unfreeze the account to MOTC without the other party, adding that due process was never accorded to Mr. Amos Brosius and her decision to freeze the account was a private communication.
The JIC recommendation said Judge Morgan’s conduct was in violation of Judicial Canon 10 which states
Judicial Canon Ten. ESSENTIAL CONDUCT OF A JUDGE
A judge should be temperate, attentive, impartial and since he is to administer the law, interpret it and apply it to the facts, he should be studious of the principles of the law and diligent in endeavoring to ascertain the facts.
But Cllr. Sannoh said Judge Morgan should have rather issued a notice of assignment on Mr. Brosius lawyer for hearings before lifting the account order, adding that Judges Morgan didn’t authorize any withdrawal of monies from the LBDI account for her personal use.
He indicated that the JIC’s recommendation is not consistent with law, narrating that even though Judges Morgan conduct is being investigated but it borders around all those lawyers involved in the matter.
Another Amici Curie, Cllr. Jonathan Massaquio raised three issues and key among them was: whether or not can a Presiding Chief Judge a make a deposition of a matter under strange rule?
Cllr. Massaquoi answered in the affirmative (yes), because it involves Judicial misconduct that is defined in their jurisdiction and other Jurisdiction adding that the Judge ought to know his/her jurisdiction before proceeding in a matter.
The second issue, he raised was whether or not a judge can preside over a case alone? The Act establishing the Commercial Court says where one of the judges are I’ll or unable to perform, the Chief Judge must write the Chief Justice, who will appoint a judge from a specialized court to complete the three penal judges.
Cllr. Massaquio said the injury that the Chief Commercial Court caused is the ordering of the withdrawal of 1.3 m, adding that the Judge Morgan single handedly the matter without the other party which left fairness and accountability out.
He recommended that members of the Supreme Court initiate impeachment of Judge Morgan for ethical transgression and misconduct.
Cllr. Massaquoi has also recommended that Cllr. Negbalee Warner and Cllr. Bemah Lassana be forwarded to the Grievance and Ethics Commission for investigation.
Another Amici Curie, Cllr. Milton Taylor and Cllr. Alfred Sayeh, who filed a joint brief, said that all the witnesses who appeared before the JIC didn’t testify that Judge Morgan took money and Judge Morgan did nothing wrong for which she should be impeached.
Cllr. Taylor indicated that if Judge Morgan didn’t have Jurisdiction over the matter, it was a judicial Action and not ethical transgression.
He therefore said that the JIC failed to establish any wrong against Judge Morgan and prayed the high Court for the JIC recommendation or report be set aside and Judge Morgan right should be restored and grant unto all other rights that is just and equitable.
For her part, one of the lawyers representing Judge Morgan, Cllr. Bonda Elliott argued before the Supreme Court that they have reviewed the case files and their investigation highlights few issues.
One of them is: whether or not Judge Morgan violated Chapter 5 of the act that established the Commercial Court? According to her, Mr. Brosius admitted that MOTC and Mr. Brosius had agreed to establish Ducor Petroleum for the sole purpose of retail petroleum sale.
The tough-talking female lawyer questioned the Supreme Court during the argument: what ethical violation that affected Mr. Brosius?
Cllr. Elliott said there was no agreement to freeze the account but rather it was a restriction. She added that the purpose of the restriction was satisfied by MOTC therefore, when MOTC lawyer Cllr. Warner called Judge Morgan that he met the requirements set forth by the Court over the seven checks, he asked Judge Morgan to remove the restriction, something she did.
Judge Morgan’s lawyer further argued that assuming that Judge Morgan didn’t have jurisdiction over the matter, but it is not ethical violation and JIC was completely wrong for finding Judge Morgan guilty when she has committed any ethical transgression.
Cllr. Elliott therefore prayed to reverse the JIC report and recommendation and set her client free from said matter.
At the time, the Supreme Court of Liberia has reserved ruling into the matter.
Judge Morgan was represented by a team of lawyers including Cllr. J. Moses Peagar, Cllr. Joyce Reeves Woods, Cllr. Bemah Lassana and Cllr. Bonda Elliott.
While, the Amici Curie include Cllr. Benedict Sannoh, Cllr. Jonathan Massaquio, Milton Taylor and Cllr. Alfred Sayeh.