Monrovia – Economic crimes indictee, Senator Varney Sherman, and the Sherman & Sherman Law Firm will have to face the punch of what comes out of releasing their bank account statements to state prosecutors after several months of dodging the prosecution’s request.
“The Movants’ motion to dismiss/quash prosecution’s application for Writ of Subpoena Duces Tecum to be served on the eight commercial banks to produce banking information of the defendants named in said application is hereby dismissed and denied, and resistance hereto is hereby sustained” – Judge Yamie Quiqui Gbeisay, Sr.
The pair’s motion to deny the Writ of Subpoena Duces Tecum filed by state prosecutors requesting several commercial banks to release account statements of some individuals mentioned in the 2015 Global Witness Report on Liberia was denied by Criminal Court “C”.
Presiding Judge of the Court, Yarmie Quiqui Gbeisay, has given Sherman and the banks 72 hours to release the documents subject to the Subpoena to the clerk of the court.
The banks in question include: Afriland Bank, Access Bank, GN Bank, United Bank of Africa, LBDI, Guarantee Trust Bank and EcoBank.
In their motion to deny the Subpoena, Sherman & Sherman cited the Doctrine of Les Pende, noting that there was another pending action on the same cause of action between the same parties.
They contended that the prosecution made similar request to Criminal Court “A”, requesting the banks to produce their accounts to which they objected but were denied and subsequently took an appeal to the Supreme Court. The Supreme Court is yet to rule on the matter.
They also argued that the application for the issuance for the Writ of Subpoena Duces Tecum before the court was irregular, because, the state and the court failed to give them notice as required by Section 8.3 (1) of the Criminal Procedure Law.
Pursuant to Sherman & Sherman’s contention, the then presiding judge of Criminal Court “C”, Emery S. Paye, temporarily halted the request for the production of the bank accounts until otherwise ordered.
On June 16, 2016 the state filed its resistance to the Cllr. Sherman and the Sherman & Sherman’s motion for denial, noting that Sherman’s call on the court to quash the Subpoena was intended to evade the implementation of the precepts of the court. The State further argued that the precepts were intended to obtain essential instrumental to prosecute the case against them.
According to the prosecution contended that Cllr. Sherman and others named in the Global Witness report were indicted, arrested and brought before the court under the jurisdiction of Criminal Court “C”. Hence, there was no legal basis or justification for the defendants to quash or dismiss the application for a Writ of Subpoena Duces Tecum.
They further argued that the application for Subpoena Duces Tecum then pending before Criminal Court “A” therefrom presently before the Supreme Court, were separate and distinct from the application for a Subpoena before Criminal Court “C”.
According to the state prosecutors, the demand through the Subpoena was intentionally made on the banking institutions because they were in possession of the documents demanded. They added that the writ was not issued on the defendants, because by law, they are not expected to produce evidence against themselves.
The court, upon hearing the arguments of both sides, was concerned about determining:
Whether or not there was another matter pending between the same parties for the same cause of action in the Republic;
Whether or not an appeal taken from a judgment sitting in Criminal Court “A” can affect an action pending before Criminal Court “C”?
And Whether or not an application for Subpoena Duces Tecum addressed to third party is required to be served on the defendants in the parent case out of which the application grew?
Examining the operatives that led to the lawsuit in Criminal Court “A” and “C”, the court recalled that based on the Global Witness’ Report, the Government of Liberia constituted a committee to investigate the persons named in said report for bribery.
During the course of said investigation, the prosecuting attorneys made an application to Criminal Court “A”, praying for the Court to issue Subpoena Duces Tecum to eight banking institutions to produce bank statements for U.S. Dollar accounts from January 1, 2010 to September 30, 2010 for Cllr. Sherman and Sherman & Sherman Inc., Cletus Wortorson, etc.
Upon notice, Cllr. Sherman and Sherman and Sherman Inc. filed a motion before Criminal Court “A”, praying the court to squash/dismiss the Writ of Subpoena Duces Tecum on grounds that there was no case in court between the subpoenaed banking institutions and government, and as such, it was wrongful and illegal to subpoena the banking institutions to produce their banking information.
“From my understanding, the request by the prosecution to Criminal Court “A” to issue Subpoena Duces Tecum for the production of bank statement for the persons being investigated, but not yet charged with a specific crime, was the cause of action or operative facts that led to the lawsuit before Criminal Court “A” which was subsequently appealed to the Honorable Supreme Court of Liberia.
In other words, to apply for Subpoena Duces Tecum without a case in court was the factual situation or legal theory that the lawsuit (Motion to squash/Dismiss) was filed by the Movant in Court “A”.,” Judge Gbeisay observed.
According to him, in the instant case, the purpose and objectives for the application of Writ of Subpoena Duces Tecum in Criminal Court “A” was different from the purpose or objectives for the Writ of Subpoena Duces Tecum in Criminal Court “C”.
“If the objectives for the banking information in both courts “A” and “C” are separate, it cannot be said that the cause of action in both Courts “A” and “C” are the same,” Judge Gbeisay asserted.
Determining whether or not an appeal from a judgment of Criminal Court “A” can affect an action before Criminal Court “C”, the court noted that it was important to examine the subject matter jurisdiction of both Courts, citing Section 3.2 of the Judiciary Law which says,.
“The Circuit Court shall exercise original jurisdiction in admiralty cases over all cases to which another court is not expressly given exclusive original jurisdiction in the Sixth Judicial Circuit by the Constitution or Statutory Provision, provided that, in Montserrado County, the Circuit Court in the First Judicial Circuit shall have jurisdiction shall have jurisdiction to try only Criminal cases and that the Circuit Court in the Sixth Judicial Circuit shall have jurisdiction to try only cases other than criminal.”
Judge Gbeisay noted that now that the defendants have been charged, indicted and that Court “C” was rightfully and legally exercising jurisdiction, precepts issued out of Court “C” to facilitate trial of the crimes charged cannot, should not and ought not to be restrained by an appeal taken from a judgment of the judge presiding over Criminal Court “A” decision that is sought to be reviewed and not Criminal Court “C”.
“So, it is without parity of reason to argue or imply that the inherent Stay Order of the appeal of Criminal Court “A” is by any means extended to Criminal Court “C” another court for that matter.
As to the issue of whether or not an application for Writ of Subpoena Duces Tecum directed to a third party is required to be served on the defendants in the parent case out of which the application grew?, the court answered in the negative.
Judge Gbeisay noted that while it is true that Section 8.3 (1) of the Civil Procedure Law says every order required to be served, every pleading, every written motion, other than the one which may be heard ex parte and every written notice, appearance, demand, offered of judgment and similar papers shall be served upon each of the parties affected thereby, but statutory provision falls under the caption: “General Requirements.
Nevertheless, when it comes specifically to service Subpoena, the same civil procedure law under the caption of Subpoena, as found on Section 14.3, says: “A Subpoena shall be served by delivering a copy thereof to the person named therein.”
Judge Gbeisay noted that no reference, whatsoever, is made to the third party who may stand to be affected. The court deemed it expedient to declare that application for a Subpoena Duces Tecum needs not be served on a third party.
Judge Gbeisay holding its observations into consideration noted, “The Movants’ motion to dismiss/quash prosecution’s application for Writ of Subpoena Duces Tecum to be served on the eight commercial banks to produce banking information of the defendants named in said application is hereby dismissed and denied, and resistance hereto is hereby sustained.”