Note
Original Text is in Amharic. This is an Unofficial Translation
Cassation File Number 104182
December 23, 2016 E.C.
Judges: – Tsegaye Asmamaw
Mustefa Ahmed
Abrha Messele
Abiye Kassahun
Etmet Assefa
Applicant: – Ato Mohammed Sali Suleiman
Respondents: – 1. W/ro Mudere Mohammed
- Ato Yakub Suleiman
Having examined the file, we have rendered the following judgment.
JUDGMENT
The reason this case was brought before the Cassation Division is that the Sagam Woreda Court, which had been litigating based on the application filed by the applicant pursuant to Article 358 of the Civil Procedure Code, rendered a decision; the Jimma Zone High Court, to which an appeal was lodged against that decision, dismissed the appeal; and the Oromia National Regional State Supreme Court Cassation Division, to which the case was brought in cassation, also dismissed the application and rejected the applicant, stating that the lower courts’ judgment did not involve a fundamental error of law. The applicant filed an application to challenge the judgment dated August 21, 2014 E.C., stating that this constituted a fundamental error of law and should be corrected by the Federal Supreme Court Cassation Division.
As we have observed the origin of the case, following the dissolution of the marriage between the present respondents by divorce, they had been litigating regarding the division of common property. After obtaining a court decision to divide their property equally and separating, the present applicant filed an application dated April 23, 2014 E.C., requesting that a one-room house located within Gata Kebele Peasant Association, in the area called Dinu, bounded on the East by the house of Sheikh Faris A/Simal, on the West by Sheikh Zuber Mohammednuri, on the North by market land, and on the South by A/Simal A/Gisa, and a cow whose color is Megala Boqa, which the two respondents had obtained a court decision on as husband and wife’s common property through court litigation, be returned to him as they are the applicant’s private properties.
Both respondents submitted replies to the application filed by the applicant with the Woreda Court. The 1st respondent, in her reply, stated that the applicant’s application was completely false; that the properties mentioned were the common properties of the two respondents; that the applicant had testified as a witness for the 2nd respondent during the husband and wife litigation between the respondents, and therefore his current objection was unacceptable; and that the applicant’s application was intended to help the 2nd respondent after deliberation, and was not based on truth. She argued that the applicant’s application should be rejected and dismissed. The 2nd respondent, on his part, in his reply to the applicant’s application, stated that the properties in dispute belonged to the applicant; he mentioned that he had stated and argued that they belonged to the applicant when he was litigating with the 1st respondent, and argued that he would not object if it was decided that the properties on which the applicant filed the application belonged to the applicant.
The Sagam Woreda Court, after investigating the case with evidence, examined the file and found that the house on which the applicant filed the suit is a one-room house located in Gata Kebele Peasant Association, in the area called Dinu, bounded on the East by the house of Sheikh Faris Abasimal, on the West by Sheikh Zuber Mohammednuri, on the North by market land, and on the South by Abasimal Abagisa. The house on which the two respondents litigated as husband and wife’s property and obtained a decision as property acquired during marriage is a one-room house located in Gata town, Gata Kebele, bounded on the East by a road, on the West by Simal Abagisa, on the North by a public cemetery, and on the South by Sheikh Faris Abasimal. Therefore, since the house on which the applicant filed an application, claiming it is his and mentioning the boundaries, and the house on which a decision was rendered in the marriage litigation between the two respondents, do not match in terms of boundaries, there is no decision rendered on the property the applicant claims is his. Even if the boundaries were mistaken and the house were considered the same, regarding the house on which a decision was obtained between the two respondents, the 1st respondent explained during the marriage litigation that it was a common house built by the husband and wife during the marriage; the 2nd respondent also, during the marriage property litigation, without denying that this house was the property of the husband and wife, argued that he had no objection if it was divided equally taking into account the share of his 2nd wife, Aleweya A/Rago. However, when giving a reply to the applicant’s application, he argued that the house belonged to the applicant. Considering this, the court noted that it understood that the applicant’s application was filed at the instigation of the 2nd respondent with the intention of harming the right of the 1st respondent. The court also stated that in its effort to investigate the matter, it was not proven that the house belonged to the applicant. The applicant’s evidences were also presented in an organized manner. The applicant did not present evidence capable of proving immovable property. Regarding the disputed cow, its ownership as husband and wife’s property was proven by the evidence presented. Stating this, the court rejected and dismissed the applicant’s application.
The applicant, being dissatisfied with this decision, filed an appeal and later a cassation application, but they were not accepted. This cassation application was filed to correct what the applicant claims is a fundamental error of law committed by the Oromia National Regional State courts that reviewed the case at various levels.
The Cassation Inquiry Division to which the case was presented also examined the file and decided that the manner in which the applicant’s request was rejected by the lower courts, stating that the disputed house was not proven by evidence to belong to the applicant, should be investigated, and thus decided that the case should be presented to the Cassation Division. The 2nd respondent appeared and gave a reply, while the 1st respondent was summoned but did not appear, so her right to give a reply was forfeited. The applicant submitted a reply to the 2nd respondent’s reply.
The litigation has concluded in this manner. We have also examined whether there is a fundamental error of law committed by the lower courts, considering the point on which the case was decided to be brought to cassation. From the examination of the file, we have understood that the house on which the applicant filed the application and the house on which the two respondents litigated as marriage property and obtained a decision are different in terms of boundaries; that the house on which the two respondents litigated and obtained a decision is the property of the husband and wife, not the property of the applicant; that the 2nd respondent also admitted during the husband and wife litigation that this house belonged to the two respondents and argued for division respecting the share of his 2nd wife, but when the applicant filed the application, he argued that it belonged to the applicant. Considering this, as well as the previous litigation process between the two respondents and the fact that it was confirmed by an investigator appointed by the court after the applicant filed the application, as well as by the evidence of the 1st respondent, and stating that the applicant’s evidence does not carry weight, the lower Woreda Court decided by rejecting the applicant’s application, as evidenced by the copy of the file.
Basically, the court of first instance has the power, after framing the relevant issue for the case and investigating it with evidence, to accept the argument and evidence of one party and reject the argument and evidence of the other party based on reason, as can be understood from Article 138 of the Civil Procedure Code. If an error is committed in this regard, the court that weighs and investigates evidence for the last time is the appellate court. It is stipulated in Article 80(3)(a) of the FDRE Constitution and Article 10 of the Federal Courts Proclamation No. 25/1996 E.C. that the Federal Supreme Court Cassation Division is established to correct final decisions rendered by regional or federal courts when they are found to involve a fundamental error of law. In the present case, it is a matter that we can understand from the examination of the file that the lower courts, by following a fundamental judicial procedure, framed the issue that should be framed, heard the evidence presented by both parties to prove the issue, and followed the method of investigation they deemed necessary, properly investigating the factual issue that needed to be investigated, and rendered their decision. Therefore, as we have not found that the judgment on which the cassation application was filed involves a fundamental error of law, we have decided the following.
DECISION
The decision rendered by the Sagam Woreda Court in file number 13042/06 on June 3, 2014 E.C., and upheld by the Jimma Zone High Court in file number 31469 in the session held on July 25, 2014 E.C., as well as accepted by the Oromia National Regional State Supreme Court Cassation Division in file number 186818 in the session held on August 19, 2014 E.C., is confirmed pursuant to Article 348(1) of the Civil Procedure Code.