Liberia: Supreme Court Reverses Judicial Inquiry Commission Decision on Judge Morgan

A report from the Judicial Inquiry Commission which found Judge Eva Mappy Morgan of the Commercial Court guilty of unethical behavior has been overturned by the Supreme Court of Liberia.

The court’s decision came nearly two years after the Commission, which is charged with the exclusive power to investigate complaints against judges of courts of record and non-record, had ruled that Mappy Morgan violated some provision of the Judicial Canons while presiding over the Ducor Petroleum case. 

The Commission had asked the Supreme Court to suspend the Chief Judge of the Commercial Court for a year without pay and benefits for improperly lifting a stay order on the escrow account of Ducor Petroleum, which was then hosted at the Liberia Bank for Development and Investment (LBDI), without the consent of one of the parties to the case.

Majority opinion 

But, the Court in a majority opinion ruled that the action of Mappy Morgan  to withdraw the stay order on the US$3.3 million escrow, while the case was being litigated, was not in violation of the Judicial Canons, status, or the Act that established the Commercial Court of Liberia -- absolving the judge of finding of the Commission.

“It is the holding of this court that the Chief Judge Eva Mappy Morgan, did not transgress the Judicial Canons, stature or the Act that created the Commercial Court of Liberia, hence should not be reprimanded as recommended by the Judiciary Inquiry Commission,” the Court said in the ruling signed by Chief Justice  Sie-A-Nyene Yuoh and Associate Justices Joseph Nagbe, and Jamesetta Howard -Wolokollie.

“The decision to establish an escrow account, which met the approval of the parties, was done through a communication by one of the lawyers of the MOTC, not through a regular judicial process, which may require the exchanges of pleadings. Whatever the case, all the communication constitutes the certified records in this case.”

The Court ruling that set Judge Mappy Morgan free came as a result of Justice Yuoh's reversing her earlier vote on the matter, which found the judge guilty of the Commission’s finding. 

Yuoh, while serving as Associate Justice, voted last year along with former Chief Justice Francis Korkpor to endorse the Commission’s report. However, Justices Nagbe and Howard-Wolokollie voted against the Commission’s finding -- creating a tied vote as a result of Associate Justice Yussif D. Kabas’s abstention from voting, since he chaired the Commission whose findings Mappy Morgan was challenging at the Supreme Court.

And while President George Weah was still looking into Korkpor request for an Ad Hoc Justice, the Court issued a surprise supreme ruling on Sept. 26, with Yuoh as the newly Confirmed Chief Justice, reversing her vote to strike down the Commission report -- free Mappy Morgan of all charges. 

The judgment was issued a day ahead of  Korkpor’s retirement as Chief Justice of the Supreme Court -- and it is not clear what led to Yuoh's eventual change of mind.

"[On] the issue of the communication of Cllr. T. Negbalee Warner [which is] dated July 22, 2013, we wish to reiterate that his communication to Judge Morgan is consistent, and in line with the mode of communication adopted in this case,” the majority Justices ruled.  “For  example, the issue of the seven checks of US$212,704.36 received and presented to the judge was done without a regular application to the court and the chief judge acted accordingly to order the deposit of the check into the Ducor's account at the [bank.].”

Dissenting opinion

Korkpor,  however, in his dissenting opinion said the majority opinion was wrong, as he found it hard to agree that Juege Mappy Morgan is blameless on all counts.  The former Chief Justice added that he supports the Commission’s finding against the judge on grounds that the letter from MOTC lawyers requesting the unfreezing of the escrow account was an ex parte communication, which was in violation of Judicial canon 24.

“I sincerely disagree. And, my disagreement is based on fundamental principles of law and the Judicial Canons under which we operate,” the former Chief Justice said.  “I am unable to go along with my colleagues at this time. This is why I have withheld my signature from the judgment growing out of the majority opinion.”

“I hold that the letter from MOTC lawyers requesting the lifting of the freeze was a private letter addressed to the respondent judge. Judicial Cannon #24, is clear… ‘A judge should not permit private interview, arguments or communications designed to influence his judicial action, where interest to be affected thereby are not represented before him, except in a case where provision is made by law for ex parte application.’”

The case

The case against Mappy Morgan arose from a petition filed by Amos Brosius with the Judiciary Inquiry Commission, accusing Mappy Morgan of illegally lifting a stay order on the Ducor Petroleum's escrow account housed at LBDI, allowing his adversaries, the Monrovia Oil Trading Company (MOTC), access to the account funds, resulting in its depletion.

In 2013, at the beginning of the case, Mappy Morgan, and the remaining two judges of the three-judge court, had agreed with all parties in the cases to freeze all accounts of the company, both at LBDI and Ecobank Liberia, pending the final determination of the lawsuit. 

But Mappy Morgan, according to Brosius, in that same year wrote the two banks single-handedly and requested that “any transactions to the accounts, i.e. deposits, withdrawals, checks, must be accompanied by a letter signed by her, authorizing said transaction.” 

The letter, according to Brosius, opened the corridor for MOTC lawyer Warner to request the unfreezing of the bank's US3.3 million dollar account at the LBDI,  which had already been set as an escrow account.

Brosius also claimed that the Judge violated the 2010 Act that created the Commercial Court, which says “a single judge should not hear a case in the amount of over US$1 million.”

The Commission, to which Brosius had complained, in 2021 agreed with his claims and opined that the complainant had the right to sue the judge in a court of competent jurisdiction.

The Commission also found Judge Mappy Morgan’s action to unfreeze and subsequently returned the Ducor Petroleum's account domiciled at the LBDI on the request of MOTC's lawyer, Warner, without notice to the complainant counsels, ‘was wrong and illegal’.

“The freezing of the account in question being a result of an agreement, the respondent judge ought to have ordered ex parte, the unfreezing and returning to status quo ante, on July 23, 2013, and July 24, 2013 respectively, without the agreement of the complainant,” the Commission’s findings noted.

“The  respondent judge’s conduct violates Judicial Cannons 23 and 24. The MOTC’s letters were private communication and the respondent judge’s action adversely and grossly affected the rights of the complainant in violation of Canon 24,” it added. “The respondent judge recklessly abused her discretion in the matter of the MOTC request, illegally ordering LBDI unfreezing and returning the subject account to status quo ante without notice to the complainant or complainant counsels.”

Judicial Canon 23, which is on EX PARTE APPLICATION states that “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 of law 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 the 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.”

On EX PARTE COMMUNICATIONS, which is 24, the Canon states that, “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.”

Meanwhile, Mappy Morgan took an exception to the Commission’s findings at the time they were released, in April 2021, and, based on the appeal, the Supreme Court of Liberia has struck down the Commission’s argument, setting her free.