The 6th Judicial circuit, Civil Law Court “A” has rejected a motion to dismiss a summary proceeding aimed at recovering possession of real property filed by Mr. Morley Paul, Kamara.
The motion to dismiss was filed before the court’s assigned judge Scheaplor R. Dubar by Mr. Mohammed Kafel in the case Mr. Morley Paul Kamara Vs. Mohammed K. Kafel.
The movant’s motion to dismiss grows out of an action of summary proceedings to recover possession of a real property instituted by the respondent /petitioner against Movant/respondent on January 5,2023.
The movant /respondent filed his return along with a 6-count motion to dismiss the petitioner’s action.
According to court records, In July 2021, Mr. Morley Paul, Kamara purchased a real property through foreclosure valued over US$800,000.
After purchasing the property, they met the occupants about continuing their leasehold and were shocked to learn that the lease was for US$20,000 a year and for a period up to 2041.
At that point, Mr. Kamara requested the bank’s (that sold the property) lawyers to ask the Commercial Court to evict the occupants when the writ of eviction was filed.
The leaseholder Mr. Mohammed Kafel’s lawyers filed a Petition for Adverse Claim suit with the same court.
Section 44.46 of Civil Procedure Law, Liberian Code of Law Revised, Title 1, prescribes that, when an adverse claim may be filed: “Prior to the application of property by a sheriff or receiver to the satisfaction of a judgment, any interested person institutes a special proceeding against a judgment creditor to determine the rights of adverse claimants to the property by serving a notice of petition upon the sheriff or receiver and upon the judgment creditor in the same manner as a summons.”
The analysis is based on the cited law from the court which declared that there can be no doubt that the adverse claim was not filed in time when the court still had jurisdiction; and even if it was filed in time and/or when the court had jurisdiction, this court would still not have authority or power to grant the relief prayed for because it has no jurisdiction to adjudicate title to real estate or priority of interest in real property whether through regular hearing or determination of an adverse claim.
According to court records, in the Commercial Court, the buyer’s title was recognized by the lessee and Judge Mappy acknowledged and affirmed when she wrote: “Certainly, the sale to the second respondent not being contested by the Petitioner the second respondent’s title to the previously mortgaged property is affirmed and the said second respondent may through the appropriate proceedings before a court of competent jurisdiction, enforce its title to the property, subject to any and all valid encumbrances and lien in accordance with the applicable law on the creation, validity and priority of interests in realty.”
However, the Kafel Estate did not challenge the buyer’s title and the court also acknowledged that it had no jurisdiction over title or priority of interest matter.
It is against this backdrop that Mr. Kamara filed for Summary Proceedings to Recover Possession of Real Property and the Kafel Estate, through Justice Advocates and Partners filed a motion to dismiss claiming that they had a lease up to 2024.
In response to the ruling, Lawyers representing the Kafel Estate have filed a Writ of Certiorari to the Justice in Chamber, Yamie Gbeisay contending that the mortgage agreement does not forbid the debtor from leasing his property therefore any lease entered into after the mortgage must be honored.
A prominent Lebanese businessman who has asked anonymity any ruling that will favor Kafel will break the entire banking system. “It means you can mortgage your property and still do anything with it. A lease of extension of that duration is tantamount to a sale in actuality. Ironically, this argument is coming from the law firm that was hired last year by LBDI to collect debts. Most of those debts are secured by mortgage. They are shooting themselves in the head.
“Even worse, a property worth over half a million dollar was leased for a meager $20k. $20k is about how much a vacant two lot in the area will lease for. And this compound has over 8 apartments. This smells fraud and some of the reasons Liberians do not want Lebanese to own land in this country. Imagine what they would do!”
According to a Lebanese businessman also expressed fear that if a mortgage is just a piece of paper, it would severely affect the business community because banks would cease to rely on mortgages as collateral.
The Commercial Court ruled that adverse claim does not lie because it had already closed the case. Mr. Kafel did not file any claim during the foreclosure process. In fact, Mr. Kafel, through a proxy, participated and won the initial bid but failed to close the transaction, perhaps since it had contrived a cheaper and fraudulent route. Mr. Kafel’s son met the President/CEO of IB Bank on this matter.
The media attempt to speak to the buyer proved futile as it was told that he is currently out of the country on a protracted business trip. However, the media managed to speak to a close associate who participated in the bidding exercise.
He claimed that the lease agreement certainly did not exist at the time of the bidding process. He believes it was prepared and back dated by these Lebanese thugs. “The fortunate thing is that they did not have a copy of the mortgage agreement. It is simple: no one with such a long-term lease agreement would buy the property. The lease is more profitable than paying several hundreds of thousands of dollars. It is very simple to guess correctly and it is criminal.
When contacted via email, Mr. Kamara responded by stating: “I have no comment on the case. I believe the court will see the facts and apply the law. I have full confidence in my lawyer. This is the third judge hearing the case. The previous judges are equally knowledgeable about the law and they ruled in our favor. Yes, a mortgage deed does not stop you from entering a lease agreement but when you default and the property is foreclosed, those lease agreements are inferior to the mortgage deed. That is simple and universal. Then the Lebanese guys offer me a comical sum of $20,000.”
