Monrovia – One of Liberia’s renowned lawyers who represents the legal interest of several multinational companies in Liberia, currently on trial for his alleged role in a shady payment by Sable Mining Company has had his first legal defeat in the legal saga after his motion preventing the release of his bank statement to State Prosecutors was denied by a court.
Cllr. H. Varney Sherman who is facing trial along with others after their indictment by the State on multiple criminal offences including bribery, criminal conspiracy, economic sabotage, criminal solicitation and criminal facilitation filed a motion before Criminal Court ‘A” resisting a writ of subpoena duces tecum issued by the court based on a petition from the State requesting bank statement belonging to Cllr. Sherman, his law firm-the Sherman and Sherman and another accused, former Senate Pro Temp Cletus Wotorson between January 1, 2010 and September 2010.
In legal terms, a writ of subpoena duces tecum is a request by the court to compel the production of documents that might be admissible before the court. It is not limited to parties to a lawsuit but may also be used for others who have relevant documents.
In the absence of a valid excuse, an individual served with a subpoena duces tecum must produce the items sought, although a subordinate may comply instead. A subpoena duces tecum may be challenged by a motion to quash, modify, or vacate the subpoena or by a motion for a protective order.
To commence the trial against Cllr. Sherman and others the State filed a petition before the court and a subpoena duces tecum was issued to eight commercial banks in Liberia including the Guaranty Trust Bank, Afriland Bank, Eco Bank, Global Bank, United Bank for Africa, International Bank Liberia, Access Bank and Liberia Bank for Development and Investment ordering these banks to appear before the court on May 23 to provide bank statements of Cllr. Sherman and other parties.
The lawyer who on the day of his indictment told supporters that he is confident of victory in the case, saying he was born in the court and can never be threatened by court through his Legal counsels filed a motion resisting the writ contending that the subpoena is fatally defective and violates his rights to confidentiality.
In count 1,2 and 3 of their motion Cllr. Sherman and the Sherman and Sherman Law Firm contended that Section 14.1 of 1LCLR, page 137-138 provides amongst other things that every subpoena shall state the title of the action and shall command the person to whom it is directed to attend and give testimony or produce books, documents or other things designated or to do both at a time and place therein specified, indicating that in the instant case, document which form the basis of each of the writs of subpoena duces tecum was a mere letter with an attached affidavit totally unrelated to the letter.
“Movants contend that the application for writ of subpoena duces tecum fatally defective because it designates each bank and entity as Respondent and the Republic of Liberia as Petitioner when there is no case between the Republic of Liberia and any of the designated banks”, stated portion of the motion against the subpoena.
Confidentiality issues raised
The movants also raised the issue of confidentiality which they contended that every financial institution has its own internal regulations and contract provision with their customers including movants, on the sanctity of confidentiality on the customer accounts and this confidentiality obligation should not be set aside or violated by the court unless good cause is shown and unless the account holder has the opportunity to object to the application to the Honorable Court for disclosure of his account and transaction of his account.
In further contention, the first and second Movants stated that an Act to authorize the Establishment of the central Bank of Liberia 1999, Section 37 (2) provides that in publishing information obtained from commercial banks pursuant to its regulatory authority, the Central Bank shall not publish any information which would disclose the affairs of any person who is a customer of a financial institution unless the consent of such interested party has been obtained in writing and this statutory rights of Movant is violated by the issuance of the writ of subpoena without any notice to Movants, praying the court to dismiss and quash the State petition.
The motion further stated “Third Movant contend in Count 3 of his motion that the writ of subpoena duces tecum issued by this court is irregular, unlawful, illegal and in complete violation of the law and procedures applicable and extent in this jurisdiction because there is no ongoing in Criminal Court ‘A’ of the First Judicial Circuit, Montserrado County in which Movant are part in which it require banks to appear as witnesses to produce documents”.
Former Senate Pro temp Wotorson also raised similar legal arguments against the subpoena.
Alleged Crime vs confidentiality
In resisting the motion by the accused, the State in a seventeen count resistance contended amongst others that when a crime is allegedly committed the claim of confidentially cannot be used to protect the commission of the crime and as rightfully committed by Movants, banking information can only be released when lawfully required and that the request to the judge, the subsequent issuance of the writ on the herein named commercial banks constitutes lawful action and hence, prayed the court to dismiss the Movant’s motion.
“The respondent further asserts that it wonders why Movants would not allow their bank account statements to be revealed to the investigation when an allegation which points and established the probable cause for one to believe that there exist a probable cause and it is probable cause the court is under legal duty to issue a subpoena duces tecum prayed for and contained in the request made to the court under the signature of the County Attorney for Montserrado County, Cllr. J. Daku Mulbah”, the State contended.
In conclusion, the State furthered that the request and subsequent issuance of writ of subpoena duces tecum was consistent with the law and no rights of the Movants were abridged.
Added the State’s resistance “Finally, respondent contend that the intent of Chapter 17, Section 17.3 of the criminal procedure law contained in count three of its resistance which requires the consent of the interested party does not imply that confidentiality protection extents to cover criminality and therefore Movant’s motions should be ignored and dismissed for legal insufficiency”.
Judge Dismisses Sherman, others motion
In its deposition on the matter, the court raised two legal questions including whether subpoena may be issued out of a court of competent jurisdiction directing documentary and other physical evidence before the court at a time prior to trial and whether the right to privacy or a person subject to criminal investigation is abridged by the issuance of a writ of subpoena duces tecum.
Finding legal answers, the court held that under the U.S. Federal Gramm Leach Act, 2009 and Article 16 of the Construction of Liberia, the contention of Movants cannot hold because it is legally permissible for a court of competent jurisdiction to subpoena banks prior to trial and during civil, criminal or regulatory investigations to produce documentary evidence for the use of authorized government authorities.
Assigned Circuit Judge, Criminal Court “A”, Judge J. Boima Kontoe decided the matter “Wherefore and in view of the foregoing laws, facts and circumstances of these motions and the resistance thereto, Movants’ motion as consolidated is hereby denied and the resistance thereto sustained.
Consequently, the order contained in the notice of assignment for the hearing of these motions ordering a stay of compliance by the banking institutions mentioned above pending the hearing of the motions filed by the Movants is now dissolved and the banking institutions served the writ of subpoena duces tecum as evidenced by the Sheriff’s returns are hereby ordered to produce the documentary evidence subject that subpoena duces tecum served on them within 24 hours since they have had prior notice to produce same before the stay order pending hearing and determination of these motions”.
The decision by the Judge is a huge boost to the State in the ongoing trial of Cllr. Sherman and others as it will pave the way for the State to obtain vital financial information that could help with the prosecution.
Maintaining innocence
Cllr. Sherman and his law firm have been indicted for allegedly receiving money from Sable Mining and facilitating its distribution to several government officials in an attempt to twist the law in favor of the mining company to get the right to the Wologizi Mine in Lofa County.
He and others were indicted on Wednesday, May 25 but Cllr. Sherman continues to maintain his innocence.
Cllr. Sherman told supporters on the day of his indictment “Now we are in the courtroom, rest assured that we got some of the best lawyers who are working for us. You know myself I’m a lawyer, we got all the lawyers at Sherman and Sherman law firm,” Cllr. Sherman added.
“The little I will tell you is that we are innocent. We have not committed any crime in the Republic and I will defend myself and the others very, very vigorously,” Cllr. Sherman maintained.
“We are going to fight this case to its logical conclusion; I’m not going to give any interview or to tell you anything about the details of this matter”, he added.
The lawyer and others have another legal task at hand, to convince that court that their respective bail bonds filed are valid after the State raised the issue that bonds are defective and insufficient.
Supreme Court Appeal
Meanwhile, the Movants-Cllr. Sherman, Sherman and Sherman Law Firm and former Senator Cletus Wotorson through their legal counsels excepted to Judge Kontoe’s decision and announced an appeal to the Supreme Court.
The Supreme Court is the highest interpreter of the law and any decision by the high court will be binding on both parties.
Only a court of higher jurisdiction has the power to undo the decision of a lower Court Judge and in this case, only the Supreme Court has that superior power to review the decision of Judge Kontoe. The various commercial banks will be legally required to wait for the Supreme Court decision before acting further.
It is required under Liberian law that all parties to a case cannot act on a particular issue that is already before the Supreme Court for action.
In the current trial, other aspects of the proceedings such as hearing of the challenge posed by the State against the bail bond filed by the accused can still go ahead while the Supreme Court specifically hears the lower court decision on the Writ of subpoena duces tecum.
Kennedy L. Yangian, [email protected]