Reprisal Replacement?

By Abednego Davis

The decision by President George Weah (left) means that Magistrate Ernest Bana (right) will no longer have anything to do with the case.

President Weah appoints new Magistrate to replace Monrovia City Court Magistrate Bana, who ruling against gov’t lawyers over Roots FM’s ‘Illegal Closure’.

President George Weah has with immediate effect, replaced Stipendiary Magistrate Ernest F. B. Bana of the Monrovia City Court, whose ruling on November 4, 2019  disagreed with argument by government lawyers in the writ to close-down the Roots FM 102.7 radio station owned by talk-show host Henry Pedro Costa.

Following an order by Magistrate Bana to have the radio station shutdown and its equipment confiscated, which was executed on Thursday, October 10, 2019, Roots Holdings Incorporated, the parent company of Roots FM 102.7, filed a motion before the court asking it to return property and suppress evidence on grounds that these properties were illegally gathered without probable cause.

However, the government lawyers asked that the petition be denied on the basis that Roots Holdings Inc. lacks the legal capacity to sue, because of it did not attach to its application, a notary board resolution to mandate and empower it to sue. The government also argued that Roots Holding Inc, is a separate and distinct entity, and therefore, does not qualify in its capacity to sue on behalf of Roots FM 102.7.

Citing a series of correspondences between Roots Holdings and the Liberia Telecommunications Authority (LTA) as well as the Ministry of Information, Culture and Tourism (MICAT), which are the statutory authorities regulating radio station operations, Magistrate Bana said: “This court is of the view that Roots Holding Inc, is the parent company of Roots FM 102.7. The issue of frequency number 102.7 is never challenged by either party and therefore considered by this court as mute.”

The President’s decision means that Magistrate Bana will no longer have anything to do with the case, though the Magistrate ruled that he would hear the merit and demerit of the case, which decision the government lawyers have resisted.

To make matters worse for Bana, President Weah has named Traffic Court Judge Jomah Jallah to replace him.

Jallah is expected to take his seat at the court on Friday, November 8, 2019, though the President is yet to commission him.

The Constitution

Article 73 of the 1986 Constitution states: “No judicial official shall be summoned, arrested, detained, prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of a trial in open court or in chambers, except for treason or other felonies, misdemeanor or breach of the peace. Statements made and acts done by such officials in the course of a judicial proceeding shall be privileged, and, subject to the above qualification, no such statement made or acts done shall be admissible into evidence against them at any trial or proceeding.”

It is not clear whether President Weah’s replacement of Magistrate Bana was due to his judicial indiscretion, but a Supreme Court lawyer refused to rule out the possibility.

In his ruling, which put him in trouble with President Weah, Bana said he had considered all of the ramifications of the interaction between the government and Roots Holdings Incorporated, as well as their respective acquiescence, stressing: “This court strongly believes that the capacity to file a motion by Roots Holdings Incorporated on behalf of Roots FM 102.7 is bonafide, and therefore allowed.”

Immediately afterward, Magistrate Bana ruled that “the application by the government to deny the motion of Roots Holdings Incorporated for lack of standing and capacity is hereby denied, and that the case ruled to trial on the motion to return property and suppress evidence.”

That is to say that the government should return the station’s broadcast equipment which it confiscated.

Magistrate court judge Ernest Bana (Photo_ John Moore, Getty Images)

Further, Magistrate Bana added, “This court, under these circumstances, affirms that Roots Holdings, Inc., has the legal standing to sue on behalf of Roots FM 102.7 as a parent entity, because of its remedial rights affecting the whole of the proceedings.”

However, a Supreme Court lawyer (name withheld) said with the President having replaced Bana, this clearly demonstrates that the Magistrate is completely out of job.

According to the lawyer, the Constitution is silent on a President’s appointment of a magistrate.

“There is nowhere in the Constitution that mentions the President appointing a magistrate,”the lawyer said.

Therefore, the lawyer said since a magistrate’s appointment is not mentioned in the Constitution, a practice of old gives the President the right to appoint and subsequently commission a magistrate.

“That practice does not give the President or the legislature any right to commission the magistrate. This is where the law remains silent,” the senior lawyer said.

Article 68 also provides: “The Chief Justice and Associate Justices of the Supreme Court shall, with the consent of the Senate, be appointed and commissioned by the President; provided that any person so appointed shall be: a citizen of good moral character; and a counselor of the Supreme Court Bar, who has practiced for at least five years.”

Article 69 further says: “The judges of subordinate courts of record shall, with the consent of the Senate, be appointed and commissioned by the President; provided that any person so appointed shall be: a citizen of good moral character; and an Attorney-at-Law, who has practiced for at least three years or a counselor of the Supreme Court Bar.”

As for Article 70, the Constitution summed up: “The Chief Justice and the Associate Justices of the Supreme Court, and all judges of subordinate courts shall, before assuming the functions of their office, subscribe to a solemn oath or affirmation to discharge faithfully and impartially the duties and functions of their respective offices and to preserve, protect and defend the Constitution and laws of the Republic. The oath or affirmation shall be administered by the President or his designee.”

Article 71 further says: “The Chief Justice and Associates Justices of the Supreme Court, and the judges of subordinate courts of record shall hold office during good behavior. They may be removed upon impeachment, and conviction by the legislature based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes.”

Given these constitutional provisions, the lawyer explained that nowhere is a magistrate mentioned.

He said the President can appoint and commission a magistrate for only two years, and they cannot be confirmed like the judges and justices as mentioned in the Constitution, thereafter, he/she can either choose to replace a particular magistrate or not.

“This is not happening because we do not have many judges or magistrates, so, you can see that many of the magistrates have served their respective posts for over 10 years now,” the lawyer clarified.

It can be recalled that Magistrate Bana issued a search, seizure, and arrest warrant against the management and staff of Roots FM for allegedly preaching ‘hate messages and inciting the public’ against the government.

Based on the writ, court sheriffs with the help of other security personnel, reportedly invaded the station’s premises, taking away two speakers, two CPUs, desktop computers, two chairs, flat screen TV, two head-phones, speaker stamp, microphones, wires and other electronic materials contrary to the instruction as contained in the writ, which action prompted the Roots Holding Incorporated through its manager, Fidel Saydee, to file a ‘motion to return said property and suppress evidence’ that was before Magistrate Bana against the government.

Saydee, through his legal team, argued that the items taken from the station were illegally done by the government, which resulted to the perpetual closure of the station.

Additionally, lawyers representing Roots FM noted that the manner in which the station’s equipment were brought before the court was ‘wrong and criminal in nature.’

They further alleged that during the invasion and subsequent closure of the station, money and other valuables got stolen.

However, the government lawyers argued that Fidel Saydee, by law, is a non-existent individual who lacks the requisite capacity and standing to file an action against the State on behalf of the station.

Prosecution maintained that Saydee did not seek permission from the board of directors of Roots Holdings Incorporated before filing such action, something they said contradicts the laws that control the existence of a corporation.

The government also contended that it did not close down Roots Holdings Incorporated, rather, the radio station, Roots FM; therefore the motion filed by Fidel should be dismissed by the court as there is no authorization or right granted to Saydee to file such motion.

Credit Daily Observer.

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