— Seeks alternative, but will it work at Supreme Court?
The plan by state lawyers to silence Montserrado County District#10 Representative Yekeh Kolubah, believed to be strong critic to President George Weah, failed to materialize on Wednesday, May 6, when the Criminal Court ‘A’ at the Temple of Justice dropped kidnapping the charge against the lawmaker..
Refusing to have himself associated with any illegal plan to convict Rep. Kolubah of the kidnapping charge, Judge Roosevelt Willie ruled that the state lawyers failed to prove the theory of the charge, which they based on the doctrine of vicarious liability against the lawmaker.
Vicarious Liability is one that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.
Under common law, a member of a conspiracy can be held vicariously liable for the crimes of his co-conspirators if the crimes committed by the co-conspirators were foreseeable and if they were committed with the intent of furthering the objective of the conspiracy, which theory the prosecution employed during the trial to convict Rep. Kolubah.
Initially, the government lawyers, while using the vicarious liability, argued that bodyguards of Rep. Kolubah had acted on the lawmaker’s instruction to kidnap and brutalize one Emmanuel Freeman for refusing a T-shirt printed to join the June 7, 2019, protest against the Weah-led government.
Denying the contention, Judge Willie said, the prosecution also failed to establish the three (3) critical elements of vicarious liability.
According to Willie, for anyone to prove vicarious liability there should exist: “a relationship of employer and employee; a tortious act of negligence must be committed; and the act must be committed within the course of employment.
In defense of the law, Willie admitted to Rep. Kolubah’s bodyguards brutalizing of Freeman, but, refused to accept the argument about the lawmaker’s direct involvement.
“Kolubah’s bodyguards did not commit the act in their course of duty,” Willie defended his decision.
The criminal court judge also said, state lawyers did not disprove or rebut testimonies by Rep. Kolubah and another witness, Mohammed S. Kaba, that the lawmaker’s, bodyguards acted on their own based on the order from their friend Mohammed S. Kaba.
“The prosecution’s failure to rebut Rep. Kolubah’s and Mohammed S. Kaba’s testimonies created doubt on their theory of vicarious liability, for which the Defendant should not be held for the crime of Kidnapping,” Judge Willie ruled restricting Kolubah from further answering to the kidnapping charge.
Shortly afterward, the state lawyers announced an appeal before the Supreme Court against the April 2020 ruling of Judge Willie, where the judge dropped four of the five charges that include aggravated assault, criminal attempt to commit murder, criminal solicitation and criminal facilitation levied against Kolubah, of which the lawmaker escaped the remaining kidnapping.
Surprisingly, the government lawyers did not object to the acquittal of Rep. Kolubah for kidnapping.
Judge Willie’s decision came immediately after the state lawyers’ nolle prosequi (dropped charges) against co-defendants Abu Keita, Johnson Kpor, Oliver Kanneh, Levi Blackie, Mohammed S. Kabah, Mohammed A. Kabah and Frank O. Morgan and subsequently used the lawmaker’s bodyguards to testify against him (lawmaker).
Further Judge Willie said, prosecution failed to rebut defense witness Kaba’s testimony that state witness Abu Keita is his friend, and that Keita knew that his (Kaba’s) Samsung galaxy note phone valued at US$850, being assigned to Kaba by his employer, Plan International Liberia.
Judge Willie continued that prosecution should have called Keita to rebut Rep. Kolubah’s statement that while Abu Keita and others were in police detention, Keita called him (lawmaker), informing him that they were being detained because Freeman got hurt while they were assisting their friend Kaba to retrieve his phone from the victim.
The judge determined that the true reason why Freeman was kidnapped was for an alleged stolen phone.
Judge Willie also recollected that prosecution’s second witness Naomi Johnson, who was sitting with Freeman when the group shouted at Freeman: “Where is the iPhone you stole,” informed the court that she told the group of men including Abu Keita that the stolen phone matter was not for them to handle, but for the police.
A Supreme Court lawyer who asked to remain unanimous, explained to the Daily Observer that vicarious means felt or experienced by reading or watching about somebody else to do something rather than by doing it yourself.
“And, liability means the state of being legally responsible for something. Therefore, vicarious can be defined as a concept used to impose strict liability on a person who does not have primary liability, that is, not at fault,” the lawyer noted, adding, “Vicarious liability is not a tort. Literally, it means that one person is liable for the torts of another. The employer is liable for the torts of his employee. This liability arises only when the employee is acting the course of his or her employment.”
The Supreme Court lawyer said, there are a variety of situations in which a party may be charged with vicarious liability. For example, an employer may be liable for an accident caused by an employee as a result of the negligent operation of a delivery vehicle. Often, parents may be held vicariously liable for the negligent acts of their children.
The lawyer continued: “Vicarious liability can be established where a duty of care imposed on an employer has been broken, but the claimant cannot identify which employee breached it. An employer, then, will not escape liability where a particular employee of his cannot be identified to have been responsible for the breach.”