Monrovia – Growing out of a motion to recuse himself out of the impeachment proceeding of Associate Justice Kabineh Ja’neh, Chief Justice Francis Korkpor on Tuesday resisted efforts to have him removed from the proceedings, telling a tensed hearing that he sees no issue of private pecuniary interest involved that should keep him off the gavel.
Rodney D. Sieh, [email protected]; Henry Karmo, [email protected]
Associate Justice J’aneh, through his lawyers, on February 13, 2019, filed a Motion for the Chief Justice to recuse himself from presiding over the impeachment proceeding over what has been termed as “conflict of interest”.
The Chief Justice asked a tense hearing: “How am I “conflicted” from the standpoint of the Movant because of the Judgment I signed in the Constance Case? After all the Judgment in question, though not on the merits of the case, inure to the benefit of the Movant. So, for all intents and purposes, the Movant should not be the one raising the issue of conflict, even if any. The further question is – is it a conflict of interest for the Supreme Court to meticulously apply the law passed by the Legislature? Can one be adjudged liable or guilty for applying the law? The answer is no. Therefore, I committed no conflict of interest when I, along with three other Justices signed the Judgment Without Opinion in favor of the Movant for the failure of Madam Constance to have perfected her appeal.”
Crux of Impeachment Saga
The Constance case is the crux of the matter of the impeachment charges brought against Associate Justice J’aneh, drummed up by two members of the lower house of the National Legislature- Rep. Acarous Gray (CDC, District No. 8) and Rep. Thomas Fallah (CDC, District No. 5).
On November 15, 2018, the lawmakers sponsored a Bill of Impeachment to the Senate for the impeachment of Justice Ja’neh for the alleged commission of the crimes of theft of property, forgery, fraud, corruption, proved misconduct, abuse of public office, wanton abuse of judicial discretion and misuse of power stemming from a parcel of land the Associate Justice, then a private citizen, according to court records, purchased from John Nyemah Constance Jr in 1996, long before he was a member of the high court. His accusers say he manipulated the courts which he is a part of to his advantage.
Ironically, Constance Jr. was issued Letters of Administration to administer the property owned by his father, the late John Nyemah Constance Sr. Constance Jr., under the signature of Judge John L. Greaves who later became Associate Justice of the Supreme Court, issued Constance Jr. a Court Decree of Sale, to sell the piece of land.
Associate Justice J’aneh’s accusers claim that he “abused power” by forcefully seizing a plot of land belonging to Mrs. Annie Constance, a 90-year-old woman.
The property, according to lawyers representing Associate Justice J’aneh, was previously owned by the deceased father of the seller, Mr. Nyema Constance, Sr. who had issued Letters of Administration by Jehu Striker, then Judge of the Monthly and Probate Court of Montserrado County in the 1960s.
Following the death of Mr. Nyema Constance, Sr., the same court in 1996 under Judge John Greaves issued Letters of Administration to Constance Jr., with a mandate to sell and dispose of any property of the Intestate Estate of his late father J. Nyema Constance Sr., including the disputed 0.54 lot of land.
When Nyema Constance, Jr. died in 1998, his mother, Annie took issue over the sale which is now front and center the burning issue of the ongoing dispute regarding the Associate Justice’s impeachment proceedings by the lower house.
Cllr. Cooper Kruah, representing the legal interest of the Associate Justice is now the Minister of Post & Telecommunications. It was Kruah who initially contacted the 90-year-old regarding the issue of the disputed land.
Judge Boima Kontoe ruled in favor of J’aneh on the matter but Mrs. Constance Lawyer took exception and announced an appeal before the Supreme Court.
In October 2013, almost six months later, Cllr. Kruah obtained a clerk’s certificate that after the filing of the exception, Cllr. Lawrence Yeakula, lawyer for the 90-year-old, reportedly failed to perfect the appeal.
On December 2, 2013, Cllr. Kruah filed an appeal before the Supreme Court to dismiss Cllr. Yeakula’s appeal; the court ruled in October 2017, in consonance with the law. The Supreme Court gave its opinion on October 12, 2017, which judgment mandated then Judge Boima Kontoe to enforce it (opinion) by evicting Mrs. Constance and her children.
J’aneh, due to his personal interest in the case, did not sit on the hearing and did not sign on the document, thus recusing himself. The document was signed by the Chief Justice Francis Korkpor and Associate Justices Sie-A-Nyene Yuoh, Jamesetta Howard Wolokillie and Philip A.Z. Banks, III.
Four other Justices, including Chief Justice Francis Korkpor, signed the ruling dated October 24, 2017 and read: “The Motion to Dismiss the appeal is hereby granted, and Yeakula’s appeal is dismissed,” adding, “the Clerk of Court is hereby ordered to send a Mandate to the Civil Law Court, mandating the Judge presiding there to resume jurisdiction over this case and give effect to this judgment.”
Key Factor: The Merits of the Case
On Tuesday, Chief Justice Korkpor, explaining the key factors leading to his decision not to recuse himself, said it all came down to whether the Justice has made a decision or a pronouncement on the merits of the case.
Said Justice Korkpor: “It goes without saying, therefore, that since the Supreme Court did not decide the Constance Case on its merits I, as one of the concurring Justices in that case, have expressed no view and taken no position on the merits of the said case that will work prejudice to the Movant by my presiding over this impeachment trial.”
Dismissing Associate Justice J’aneh’s lawyers’ contention that his presiding over the case would amount to conflict of interest because he had signed the Judgment in the Constance Case, the Chief Justice explained that when used to suggest disqualification of a public official from performing his sworn duty, the term “conflict of interest” refers to a clash between public interest and the private pecuniary interest of the individual concern. “Black’s Law Dictionary, 5th Edition. Based on what I have said and given the circumstance of this Motion to Recuse, I hold that the Movant has not established any legal and/or factual ground for me to recuse myself. The Motion to Recuse is therefore denied and dismissed. IT IS hereby so ordered.”
Justice J’aneh’s lawyers had argued that in Count 9 of the Amended Bill of Impeachment filed against him, the House of Representatives averred that where an appeal is subject to dismissal due to the gross negligence of the appellant’s lawyer, the Supreme Court has traditionally heard the case on its merits and punished the lawyer for negligence.
In the Annie Constance’s Case, which is presented as one of the grounds for Associate Justice J’aneh’s impeachment, the Chief Justice averred, the House of Representatives maintained that the Movant manipulated the Supreme Court of Liberia in dismissing Madam Annie Constance’s appeal to allow the Movant to keep a valuable property for which he paid a small amount.
The Chief Justice frowned on suggestions that he participated in and signed the Judgment in the Constance Case along with three other Justices of the high court and dismissed suggestions that he deviated from the general law in the Constance Case, insisting that he will oversee a fair and impartial proceeding and therefore would not be recusing himself.
During Monday’s argument before the Chief Justice, counsels representing the House of Representatives, in resisting Justice J’aneh’s lawyers’ Motion to Recuse contended that there was no basis for such an argument and was an attempt to create chaos in the impeachment proceeding in complete disregard to Article 43 of the 1986 Constitution.
Chief Justice Korkpor said Tuesday that after carefully perusing the Motion to Recuse and the Resistance filed, and after listening to the oral arguments presented by the counsels representing the parties, opined that the prime purpose for a judge recusing himself/herself from a case is to ensure and assure that the party litigants enjoy the cool neutrality of an impartial trial.
Thus, he explained, where it is established that a judge has interest in the case, or where the judge is related to any of the parties, or where he/she has previously participated in the case either as a lawyer or a judge, or where he has expressed a view bordering the merits of the case, or given some ruling and decided contentious issues in the case, that judge is precluded by law from sitting and hearing the same case.
Referencing a famous U.S. Judge, Joseph T. Bouvier, the Chief Justice said: “The call for a judge to recuse himself/herself is a plea of exception by which a party requires that the judge, though having jurisdiction of the cause should abstain from deciding it on the ground of interest or for a legal objection to the party’s prejudice. A request for a judge to recuse himself/herself is a challenge for cause; the cause stated must have legal and/or factual basis. It must be remembered that a judge has a duty to hear every case that comes before him/her which duty is imposed by law. It is therefore wrong for a judge to refuse, without just cause, to sit, hear and determine a case, just as it is also wrong for a judge to preside over a case over which judicial propriety forbids him/her to hear and decide.”
Decision ‘Not My Own Making’
In the case of impeachment proceedings of Associate Justice J’aneh, the Chief Justice said:
“Article 43 of the Constitution of Liberia (1986) particularly confers the duty on the Chief Justice of the Supreme Court of this nation to preside when the President, Vice President or an Associate Justice of the Supreme Court is on trial. Article 43 provides: “The power to prepare a bill of impeachment is vested solely in the House of Representatives, and the power to try all impeachments is vested solely in the Senate. When the President, Vice President or an Associate Justice is to be tried, the Chief Justice shall preside; when the Chief Justice or a judge of a subordinate court of record is to be tried, the President of the Senate shall preside. No person shall be impeached but by the concurrence of two-thirds of the total membership of the Senate. Judgment in cases shall not extend beyond removal from office and disqualification to hold public office in the Republic; but the party may be tried at law for the same offense. The Legislature shall prescribe the procedure for impeachment proceeding which shall be in conformity with the requirements of due process of law.”
Chief Justice Korkpor said, as he has stated time and again, it is by the dictates of the Constitution of Liberia (1986) that he should preside over this impeachment proceeding.
He added: “It is not of my own making. The Constitution does not say who presides over impeachment proceedings involving the President, Vice President or an Associate Justice in the absence of the Chief Justice or when the Chief Justice is incapacitated or disqualified. Thus as I see it, for me to recuse myself from performing the constitutional duty of presiding over an impeachment proceeding as the Movant has requested of me, the Movant must clearly establish legal and/or factual grounds that partake of conflict of interest that would work to the injury of the Movant by my presiding over this impeachment proceeding.”
The Chief Justice said the movants calling for him to recuse himself has not established that he has an interest in the impeachment trial, or that he is related to any of the parties in the case.
Instead he said: “The Movant has only contended that I participated in, and signed the Judgment in the Constance Case along with three other Justices, therefore I am “conflicted”; that if I “deviated from the general law in the Constance Case” a fair and impartial proceeding will not be conducted when I preside over this impeachment trial involving him. I hold that I am not “conflicted” and that I did not deviate from the law in the Constance Case to warrant my recusal from presiding over this impeachment proceeding.”
Regarding the arguments regarding his role in the Constance case, the Chief Justice said: “The Constance Case was never decided by the Supreme Court on its merits and argued that while the respondents had filed their bill of exceptions, they took no further steps to perfect the appeal, depriving the Supreme Court of jurisdiction to hear the case on its merits.
According to the Chief Justice, a review of the records shows that on April 9, 2013, the assigned Circuit Judge for the Sixth Judicial Circuit Court, Montserrado County, sitting in its March Term A.D. 2013, entered final judgment in favor of the movant. “The respondents noted their exceptions, announced an appeal therefrom, and on April 19, 2013, filed their bill of exceptions. The records also show however, that this was the only step taken by the respondents in the process of perfecting their appeal to this Court, thus lacking in the filing of an appeal bond and the filing and service of the notice of completion of the appeal, the other remaining mandatory steps.”
The Chief Justice averred: “Given the facts that the filing of the bill of exceptions ipso facto divested the trial court of jurisdiction over the case, and that in such a case the statute provides that a motion for the dismissal of the appeal shall be filed before the Supreme Court, the movant, on December 2, 2013, filed a motion to dismiss the appeal before the Supreme Court sitting in its October Term A.D. 2013.”
FPA Redux: Constance ‘Did Not Perfect Appeal’
The Chief Justice explained that when it became clear that Madam Constance did not perfect her appeal to have the Supreme Court to hear the appeal, the appeal was dismissed because of failure to fully comply with the acts necessary for the completion of an appeal as stated under Section 51.4, 1LCL Civil Procedure Law. “When a case is dismissed for failure to perfect an appeal, the Supreme Court is precluded from opening the case file to decide issues relating to the merits of the case. In accord: Mulbah v Russell [2014] LRSC 57 (2014); Hussenni v Brumskine [2013] LRSC 43 (2013); Toe v Frontpage Africa et al. [2013] LRSC 33 (2013); Pentee v Turay [2000] LRSC 23, 40 LLR, 207 (2000); Porte v Citibank, [1993] LRSC 3; 37 LLR, 126 (1993). This means that issues such as the alleged negligible amount paid by the Movant for the Constance property, the age of the purported Administrator of the Constance Estate, etc., which are raised in the Bill of Impeachment were never presented before the Supreme Court and they were therefore never passed upon.”
The Chief Justice further stated that when the Supreme Court opines that a Justice is required to recuse himself/herself from the case where the Justice is on record to have taken a position with respect to the particular case, it means concrete position bordering on the merits of the case, not a decision based on mere procedural grounds which does not go to the merits of the case, for without deciding the merits of the case, there is no way of knowing the inclinations of the Justice as to the contentious issues raised in the case.
Citing the case, Allen Yancy et al v. Republic of Liberia 26LLR 374 (1978) text at page 391, the Chief Justice argued that, Chief Justice James A.A. Pierre said on the issue of recusal of a Justice: “Baring interest, relationship, or previous handling of a case, we are of the opinion that unless a Justice of the Supreme Court had expressed his views on the merits of the case, before it reached the Supreme Court on appeal, he is not disqualified to sit when it came up for review.”
He furthered: “Chief Justice Pierre went on to say further that: “Even where [the Justice] had granted a remedial writ growing out of the said case on trial in the lower court, no matter what his ruling might have been respecting the grounds laid in the petition, so long as that ruling did not discuss the merits of the case on trial, he is not by reason of such ruling recused when the case reaches the Supreme Court on appeal.”
Chief Justice Korkpor said the key deciding factor is whether the Justice has made a decision or a pronouncement on the merits of the case. “It goes without saying, therefore, that since the Supreme Court did not decide the Constance Case on its merits I, as one of the concurring Justices in that case, have expressed no view and taken no position on the merits of the said case that will work prejudice to the Movant by my presiding over this impeachment trial.”
J’aneh: ‘We Have to Accept the Ruling’
Outside the courtroom, lawyers and supporters on both sides of the aisle, including Associate Justice J’aneh, appeared content with the ruling. “We have except the ruling and that is all we can say and we will proceed,” the embattled Associate Justice told FrontPageAfrica.
His lead lawyer, Cllr. Arthur Johnson injected: “I respect the ruling and respectfully disagree with the ruling. We are prepared for the legal battle. As you can see the team is a strong team and we are prepared for the legal battle but as we speak there is no rule for the proceeding.”
This is where the issue of Rule 63 comes in.
Up Next? A Hearing on Rule 63
Chief Justice Korkpor said at the end of his decision Tuesday that the rule in question would be the next agenda as the hearing reconvenes Wednesday.
Last November, the Supreme Court entertained oral arguments from both parties. The minority senators (plaintiffs), who are insisting that the amendment of rule 63 was unconstitutional because it was purposely made just to impeach Justice Ja’neh and the majority (respondents), arguing that they have not violated any part of the Constitution.
During that proceeding, four of the 30 senators – Conmany Wesseh, Daniel Naatehn, Milton Teahjay and Oscar Cooper requested the Court to declare “the Constitutionality Amendment of the Senate Rules to Provide for Impeachment while urging the court to block the impeachment trial of Associate Justice Ja’neh, citing constitutional issues and errors in the amendment to the Senate Standing Rule number 63.
In that request, the four senators contended that their majority colleagues adopted the procedure to enable them to conduct a hearing on the impeachment of Justice Ja’neh because there was no such procedure at the Senate prior to the impeachment of Justice Ja’neh by the House of Representatives.
Nineteen other Senators, led by Cllr. H. Varney G. Sherman (UP, Grand Cape Mount) countered that the amended Rule 63 of the Senate’s Standing Rules created a “usable set rule” and further set a stage for all impeachment proceedings or trials for Associate Justice Kabineh Ja’neh and any other person, including the President, Vice President, Chief Justice, and Judges.
‘The Law is Process’
That decision, if rendered Wednesday should pave the way for the full impeachment proceeding.
For now, many Liberians are still unsure how these proceedings would play out. But some like Representative Larry Nyounquoi (Independent, Nimba County, District No. 8) believe there’s hope in the justice system. “The chief Justice has spoken the law and no parties have taken exception to the ruling. The law is a process. We are happy that the process of law is being given time to take shape. Once this is happening the arbitrariness of law will hold.”
Attorney Alphonso Zeon countered: “It is the court that says what the law is and the Chief Justice has made a decision not to recuse himself. The busy argument is that the case leading to the call for his recusal was not discussed on the merit; it was dismissed because of lack of process to perfect views. So, because of that he did not have a definitive decision.”
For Abraham Dillon of the opposition Liberty Party, the ruling was good and grounded in law. “I am comfortable with the way it is proceeding.” His fellow Liberty partisan Daniel Sando was not so sure. “The impeachment procedure has violated the constitution of Liberia because there is no rule set for impeachment. I was not surprise by the decision render by the chief justice. The entire process is fraudulent so the ruling will be. But this sends a message that there is confidence in the Judiciary. What they are doing today will be referenced by generations to come. So, precedence in these cases are very important.”