A disagreement as to whether or not in the absence of a trial a court can subpoena (order) a banking institution to produce bank statements of its customers was yesterday laid to rest, after the Criminal Court A said it has the legal backing to do so.
Earlier, Prosecutor and County Attorney of Montserrado County, Cllr. Daku Mulbah, asked the court to issue Subpoena Duces Tecum, ordering eight banking institutions to appear and produce bank statements from January 2010 to September 2010 of Cllr. Varney Sherman, the Sherman and Sherman Law Firm and former Senator Cletus Wotorson of Grand Kru County, named in the Global Witness bribery scandal.
The Bank statements requested for also covers accounts of Sable Mining, Western Cluster, Delta Mining Consolidate Ltd, West Africa Exploration, Senator Morris Saytuma, Sumo Kupee, Speaker Alex Tyler, Representative Henry Fahnbulleh, former National Investment Commission chair Richard Tolbert, and Willie Belleh, Chairman, Public Procurement Concession Commission.
Although there was no case before the court against the accused, the prosecutor said his request was to assist the Liberia Anti-Corruption Commission’s (LACC) ongoing investigation to enable it to bring criminal charges against them.
The banking institutions subpoenaed are Guarantee Trust Bank, Afriland Bank, Ecobank, Global Bank, United Bank for Africa, International Bank Liberia, Access Bank and the Liberia Bank for Development and Investment (LBDI).
However, lawyers for Sherman and Wotorson, in separate defense of their clients, asked the court to deny the prosecutor’s request, contending that it would violate their right to privacy and that there is no matter involving them before the court of law.
In determining the merits and demerits of the contentions, Judge Kontoe denied the defense’s request.
Consequently, Judge Kontoe said: “The banking institutions are ordered to produce the documentary evidence subject to the subpoena deuces tecum served on them within 24 hours, since they have had prior notice to produce same.”
Judge Kontoe added that “the contention of the defendants cannot hold because it is legally permissible for a court of competent jurisdiction to subpoena banks prior to a trial and during trial, in a civil, criminal or regulatory investigation to produce documentary evidence for the use of authorized government authorities.”
The Criminal Court Judge said the request from the County Attorney and the LACC for a subpoena to be issued and served on the banking institutions, and asking them to produce account statements of the defendants to assist the Ministry of Justice and the LACC to complete an investigation, is consistent with law; and no right of privacy of the accused is abridged by the government.
“Whatsoever documentary evidence subjected to subpoena and asking banking institutions to produce (bank statements) of the accused would be examined at the time they are about to be offered into evidence consistent with the provision of Section 17.2 of the Criminal Procedure
Law and at that point they can object, if need be, to the documentary evidence being offered,” he added.
Despite Judge Kontoe’s ruling, the defense rejected the decision and announced an appeal to the Supreme Court.
Earlier, in their justification to deny the government’s request, defense lawyers argued that because it violates the cardinal principle of notice, the order was not served on the defendants to give them the opportunity to determine whether the application has merit.
“The confidentiality of any individual’s account at a bank and his transaction with a bank is one of the underlying basis to banking in Liberia and most parts of the world,” they stated.
They added “The confidentiality of the defendants’ accounts with the subpoenaed banks is sacrosanct (untouchable) to section 35, (paragraph 2) of the financial institution Act of 1999.”
“It provides that the Central Bank of Liberia shall not, unless lawfully required to do so by law or court of law, relating to any person’s information as to the affairs of any individual customer of the financial institution obtained in the exercise of its regulatory jurisdiction.”
They further argued that “the statutory provision of each of the subpoenaed financial institutions has its own internal regulations and provisions with their customers on the security of confidentiality on their customers’ 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 this court for disclosure of his account and transaction of his account.”
Wotorson’s lawyers argued that it was unlawful, illegal and a complete violation of the law and procedures applicable in this jurisdiction, because there is no case ongoing in the court to which the defendant is a party that requires a bank to appear as witness to produce documents.
“The request as issued is in complete violation of the law governing subpoenas, as there is no record with the court of the tendency of the trial in which they are party and during which trial an application was made openly and to the notice of the accused,” they contended.
In counter argument, the government said, “when there is a crime allegedly committed the claim of confidentiality cannot be used to protect the commission of the crime; and as rightfully admmitted by the accused, banking information can only be released when lawfully required, and that is the request to the judge,” adding “the subsequent issuance of the writ on the commercial banks constitutes lawful action.”
The case continues.