By Edwin G. Wandah
Six Judicial Circuit Court Judge; Judge Yussif D. Kaba, has addressed key issues affecting the Judicial System in distinguishing between Investigative Survey and Arbitration under the Aegis of the Court in the Court in Resolution of land disputes.
Speaking at the Law Day celebration held at the Temple of Justice in Monrovia on Friday, May 2, 2014, on the topic, “CHAPTER 64 OF THE CIVIL PROCEDURE LAW DISTINGUISHING BETWEEN INVESTIGATIVE SURVEY AND ARBITRATION UNDER THE AEGIS OF THE COURT IN THE RESOLUTION OF LAND DISPUTES, Judge Kaba said the issues of Investigative survey and arbitration in land disputes have been a serious impediment that needs to be addressed.
According to him, this was certainly a general topical legal issue especially, considering recent past history of civil crises and unrest. “The crisis resulted in displacement and dislocation of large number of our population thereby resulting in abandonment of real and personal property for protracted period, and the destruction or misplacement of title instruments,” Judge Kaba stated.
He stat further that more besides institutions such as the archives of the Ministry of Foreign Affairs and the Center for National Documents and Records that are established and empowered to record, preserve and store National Records such as Records of Titles to Real Property, were adversely affected.
He also said, even ledgers in which such information was recorded were either mutilated or destroyed thereby making it difficult to retrieve authentic copies of most of them.
“To add insult to injuries, institutional collapse and the breakdown of law and order propelled dishonest employees of those institutions to connive with criminal-minded individuals in creating phantom titles that added to the complication, and to add more insults to injuries, the above situation served as equipment for parasitic surveyors who preyed on the properties of others by the production of table deeds,” Judge Kaba averred.
According to him, the combination of these situations and others, not named, have made Land Disputes to be the most contentious and volatile issues in this country today, while no statistics may be available to quantify the volume of such cases pending before all of the courts and there is a need for such statistics to guard policy makers. “It is safe to assume that more than half of all the cases before our courts one way or the other involve issues relating to, or having to do with land disputes, ”Judge Kaba said.
“Honorable Supreme Court, during each terms and the number of cases heard and determined by the Civil Law court per term, even the Criminal Dockets of our various circuits are saturated with numerous cases that are derivative of land disputes, where most of these cases such as Criminal Trespass, Criminal Mischief and Aggravated Assault, have their origin in Land Disputes,” Judge Yussif D. Kaba stated.
Meanwhile, according to Judge Kaba, the topic is specifically important because it has to do with the speedy, timely and expeditious movement and determination of cases on our dockets, especially, considering the volume of back log of cases pending before the courts.
According to him, the importance in this regard is a consideration of the nature of issues raised in cases involving land disputes and the need for technical expertise to resolve some of those issues.
He said, inquiry into and understanding of alternative and enabling adjudicatory mechanisms and tools that are applicable and useful in the expeditious and logical resolution of land disputes therefore is not only timely, but it is also necessary.
Judge Kaba stated further that Chapter 64, captioned Arbitration, of the Civil Procedure Law Revised and is the only Statutory Provision providing for a form of Alternative Dispute Resolution (ADR) Mechanism in the Jurisdiction, which is the Black’s Law Dictionary, Ninth Edition which defines Arbitration as a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.
Meanwhile according to Judge Kaba, before the enactment of the Civil Procedure Law Revised in l972, Arbitration was not recognized as a Dispute Resolution Mechanism in the Jurisdiction. “This was made clear in the case Rev. J. W. Grant, Appellant, v. The Foreign Mission Board of the National Baptist Convention, U.S.A. Appellee, 1OLLR2O9 (1949),” Judge Kaba stated.
According to Judge Kaba, the relevant fact in that matter is that the App. & Laht and the Appellee consummated a contract by the term of which the Appellee contracted the service of the Appellant, Clause Six of that Contract Provided Inter Alia, that in case of any question should arise in the fulfillment of the articles of this contract that cannot be settled to the satisfaction of both parties that such question shall be referred to the Executive Board of the National Baptist Convention, U.S.A., Incorporated, and hereby agree to accept the findings of the said Board as final and binding.
He said in passing upon the legality of this clause, the Supreme Court, relying on American Jurisprudence to the effect that “it is well settled in most jurisdictions than an agreement between “Dr. L.M. Singhvi, President of the India Supreme Court Bar Association in l979 capsulated the main purpose of celebrating Law Day in the following terms: ‘To assess the State of Law and Administration of Justice; To suggest ways and means to recover our Legal and Judicial System; to reinforce the Bar and Bench Relationship; to toughen the Independence of the Judiciary,” Judge Kaba averred.
Hence, according to Judge Kaba, “Achieving all of these objectives, the legal practitioners need to embrace the freedom of the legal profession to make the legal and judicial system a valuable instrument to serve the people; and to sustain and enlarge public confidence in our legal and judicial scheme,” Judge Kaba stated.
“A written agreement to submit to arbitration any controversy existing at the time of the making of the agreement or any other controversy thereafter arising is valid, enforceable without regard to the justiciable character of the controversy, and irrevocable except upon such grounds as exist for the revocation of any contract.,” Judge Kaba stated.
He said the Supreme Court of Liberia, in a unanimous opinion, had the occasion to give meaning to this provision of the statute in the case Chichi Brothers, Inc., Appellant, v. Isuzu Motors Overseas Distribution Corporation, Appellee 40LLR128, where the appellant in this case, the Plaintiff in the court below instituted an action of damages against the Appellee for breach of contract, making the contract the subject of the action, provided at Clause Six and Seven that any dispute arising under the contract shall be submitted to arbitration in Tokyo and be governed by the law of Japan.
He said on the strength of a motion to dismiss for lack of jurisdiction filed by the Appellee/defendant, the trial court dismissed the complaint, on appeal, the Supreme Court, speaking through Mr. Justice John Nathaniel Morris held the trial court’s ruling to be correct, noting that not only was the contract to submit disputes arising thereunder legal, valid binding, constitutional and enforceable, but also that the parties to the contract were legally obligated to follow the method and procedures prescribed by the contract in the resolution of their disputes.
Meanwhile Chief Justice Francis S. Korkpor has called on Legal practitioners most especially, Counselors and Attorneys-At-Law to at least provide pro-bono services in places necessary, especially, those remote parts of the country where there are limited legal services.
In other developments, the Law Day celebration was climaxed by a grand soccer match at the Antoinette Tubman Stadium in Monrovia when the Liberian National Bar took on the Montserrado Bar where the game ended in 2 zero in favor of the Liberian National Bar Association.
Meanwhile, serious lawyers and attorneys who attended the football match at the ATS expressed satisfaction over the level of discipline and honesty exhibited at the events. The Law Day celebration was celebrated in grand style, with the full participation of the full bench of the Supreme Court of Liberia, including Chief Justice Francis Korkpor, Sr., Associate Justice Kabineh M. Ja’neh, and Justice Jamesetta H. Wolokolie, Justice Philip A. Z. Banks, III and her Honor, Associate Justice Sie-A-Nyene Yuoh.