Cassation File Number: 254909
October 18, 2024 (E.C.) [October 7, 2017 G.C.]
Justices:
- Etimet Assefa
- Dejene Ayansa
- Nuredin Kedir
- Melaku Kassaye
- Habtamu Irqihun
Applicant: W/ro Nejat Yessuf – Not Present
Respondents:
- 1st. Ato Aragaw Kassaw – Not Present
- 2nd. Ato Aschalew Hasabu
The file was scheduled for examination, and accordingly, the Justices, during their recess, examined the file and rendered the following Judgment.
Judgment
The Cassation petition was initiated because the Applicant, in the Cassation petition she wrote and submitted on March 14, 2024 (E.C.) [March 05, 2016 G.C.], alleged that a fundamental error of legal interpretation occurred when the Dessie City First Instance Court rendered a decision on July 27, 2022 (E.C.) [July 27, 2014 G.C.] in case number 28705, which was partially reversed by the South Wollo Zone High Court Appellate Bench on November 14, 2022 (E.C.) [November 14, 2014 G.C.] in case number 55278, and subsequently modified by the Amhara Regional Supreme Court Cassation Bench on February 16, 2023 (E.C.) [February 16, 2015 G.C.] in case number 0336346, and therefore requires correction. In the lower court, the current Applicant, as Plaintiff, and the 1st Respondent, as Defendant, litigated a divorce property division case, in which the 2nd Respondent intervened with regard to the sale of a house.
In the application the Applicant wrote and submitted to the lower court on April 05, 2021 (E.C.) [April 05, 2013 G.C.], she stated that she lived with the Respondent as husband and wife from 1999 (E.C.) [2006-2007 G.C.] until 2009 (E.C.) [2016-2017 G.C.] without marriage, and from July 10, 2009 (E.C.) [July 10, 2016 G.C.] they lived as married spouses. She explained that they own a house with services located in Dessie City, bounded as described in her lawsuit, registered in the name of the Respondent, and valued at Birr 2,500,000.00 (Two Million Five Hundred Thousand Birr), money deposited in a bank account opened in the name of the Respondent, and various movable properties. However, the Respondent was in the process of selling the house without the Applicant’s knowledge and transferring title, and the sale was stopped due to the Applicant’s objection, and requested that the marriage be dissolved and that the Respondent divide these common properties and return her personal properties.
The 1st Respondent, in his response written and submitted on May 25, 2021 (E.C.) [May 25, 2013 G.C.], stated that her claim that they lived together as husband and wife is falsely presented. He stated that instead of requesting the annulment of the sale agreement as the Applicant indicated that the house was sold, it is not appropriate to conflate it with a division of property between husband and wife. The 1st Respondent argued that he built the house subject to the lawsuit before the marriage, the finishing work was done after the marriage, and the Applicant did not contribute to the construction of the house. The 1st Respondent stated that he built the service house with money he borrowed by mortgaging his private house, so the Applicant should not claim it. The 1st Respondent stated that the money indicated in the bank statement attached by the Applicant is money collected in the Respondent’s account for a mosque being built in the Respondent’s birthplace, so she should not claim it. He stated that the other money is money he received from selling his private house, so it does not concern the Applicant. He listed the household items that he admitted and denied owing, and in the counterclaim he filed, he requested that the money the Applicant earned from her salary while working in an Arab country is common and should be divided, and that Birr 70,000.00 (Seventy Thousand Birr) he borrowed from A.B.K.U.T. (likely an acronym, meaning to be clarified if possible) to build the house is a common debt.
The Applicant responded to the counterclaim stating that she was sending her salary to the Applicant, and the house was built with that money, and there was no loan she took out with him, so the counterclaim should be dismissed.
Thereafter, the 2nd Respondent intervened by submitting an application stating that he purchased the disputed house after verifying with legal documents that it was free from debt and encumbrances, confirming that the 1st Respondent was not married, receiving the documents, and possessing the house under a mortgage agreement, so the Applicant and the 1st Respondent have no right to this house. He also requested that if the Applicant is said to be a joint owner of the house, she should only be allowed to claim the purchase price from the 1st Respondent and not have any rights to the house.
In her response to the 2nd Respondent’s intervention application, the Applicant stated that even though the 2nd Respondent stated that he saw evidence that the 1st Respondent was not married, the evidence he held was issued after the sale agreement was executed, which shows that the document is false. Since the sale was made while the Applicant and 1st Respondent were married and the Applicant did not give her consent, the agreement should be rescinded. If the agreement is not rescinded, the house should be valued at its current price and the 1st Respondent should return it to the Applicant and the service house built outside the land should be considered as a joint property of the 1st Respondent and the Applicant and we should be equally divided.
The 1st Respondent responded that he has no objection to the decision based on the application submitted by the 2nd Respondent.
After examining the arguments and evidence of both parties, the court stated that the witnesses presented explained that the disputed house was built with the money the Applicant sent while she was working in an Arab country and that the house is jointly owned by the Applicant and the 1st Respondent, so the house is jointly owned. Even though the respondent argued that the money deposited in the Commercial Bank is his personal property, he did not present evidence, so the money is common. The court stated that the personal properties requested by the Applicant are not acceptable because no evidence was presented. Regarding the counterclaim filed by the Respondent, the witnesses confirmed that the Applicant’s salary was used to build the house, and no evidence was presented for any remaining money, so it was rejected. It was also rejected as there was no evidence to prove that the loan taken from A.B.K.U.T. was used for marital benefit. Regarding the application submitted by the 2nd Respondent, the court decided that the sale agreement was made on April 06, 2012 (E.C.) [April 06, 2019 G.C.] and the evidence that the 1st Respondent was not married was given on April 30, 2012 (E.C.) [April 30, 2019 G.C.] after the sale agreement was made, so the evidence is not acceptable, and the sale agreement was made without the Applicant’s consent and the sale was illegal because he bought the house, which is a common property of the Applicant and the Respondent and so the sale agreement was annulled.
The 2nd Respondent filed an appeal to the South Wollo Zone High Court because he was aggrieved by this decision, and the court examined the case and decided that after the lower court annulled the sale agreement, the parties should have been returned to their previous positions as much as possible, and the 1st Respondent should return Birr 1,310,000.00 (One Million Three Hundred and Ten Thousand Birr) to the 2nd Respondent, and upheld the remaining part of the decision of the lower court with the modification.
The 2nd Respondent and the Applicant filed cassation petitions in separate files to the Regional Cassation Bench, claiming that this decision was erroneous, and the Bench combined the files and examined the case. The court decided that the primary reason the lower court annulled the sale agreement was the lack of the Applicant’s consent, but the title deed was registered in the name of the 1st Respondent and the sub-city confirmed that the Respondent was not married, so the 2nd Respondent was not negligent and the lower court’s annulment of the agreement based on the Applicant’s lack of consent is not acceptable. Another reason was the 1st Respondent’s attachment of the evidence that he was not married 15 days after the sale was executed, but the Federal Supreme Court Cassation Bench interpreted in case numbers 18786 (Vol. 4), 36887 (Vol. 13) and 138386 (Vol. 22) that an agreement cannot be annulled for such reasons if most of the agreement has been executed and there is no contradiction on the basic agreement, and there is no legally acceptable reason to annul the agreement, and stating that the agreement is valid. The court stated that the money in the 1st Respondent’s bank account came from the sale of the house and should be divided to the Applicant, and modified the decisions of the lower courts.
The Applicant filed a cassation petition written on March 05, 2024 (E.C.) [March 05, 2016 G.C.] to this Division, claiming that the lower courts’ decisions contain a fundamental error of legal interpretation. The content is: While it has been confirmed in the lower court that the disputed house was built and jointly owned while the Applicant and 1st Respondent were married and the respondents admitted to it, and the Amhara Region Family Law Article 79 clearly stipulates that the consent of the spouses is required to sell, exchange, lease, mortgage or otherwise transfer the jointly owned property of the spouses to a third party, the fact that the 1st and 2nd Respondents transacted the jointly owned house, which is the property of the Applicant and the 1st Respondent, without the Applicant’s consent, clearly contradicts what is stipulated in the law, but the Regional Cassation Bench decided that the sale is legal; while the bank statement shows that the money deposited in the bank was deposited before the sale of the house, it was decided that the money was obtained from the sale of the house, and it is a fundamental error of legal interpretation, so the decision of the Regional Cassation Bench should be overturned and my share should be divided and the money in the bank was not obtained from the sale of the house and my share should be divided.
After the Cassation Screening Division submitted the case to this Division, this Division examined the petition. The Division considered that the dispute originated from the marital property dispute between the current applicant and the first respondent, and the current second respondent entered into the dispute by claiming that he purchased the property, over which the parties were disputing as jointly owned, from the current first respondent by a legal sale agreement. According to the binding legal interpretation given by this Cassation Division in case number 223825, it should be examined whether his intervention in the dispute was entertained in the same file and the legality of the agreement was examined and decided. Therefore, it ordered the respondents to respond.
In accordance with this order, the 2nd Respondent submitted a response written on October 17, 2024 (E.C.) [October 17, 2016 G.C.]. The content is: When the 2nd Respondent bought the disputed house from the 1st Respondent, he fulfilled all the requirements required by law, that is, he completed the documented evidence written by the relevant body that the 1st Respondent was not married; I verified that it was free from debt and encumbrances; Because the sale agreement was presented before the authorized body, its legality was verified and registered, and because I bought the house in connection with the Commercial Bank of Ethiopia, where I work, the bank itself verified the legality of the purchase, and it was decided that the agreement should not be annulled because most of the agreement has been executed and there is no contradiction on the basic agreement. Because the 2nd Respondent bought the house that the Applicant and the 1st Respondent are disputing over and I have a right and interest in the house, my intervention in the dispute is within the content and scope of the dispute according to F/B/S/S/H/Code 41 (1 to 3), and the final decision may affect my right and interest, so I request that the lower courts uphold the decision of adjudicating and deciding on my application in the same file.
The 1st Respondent also submitted a response written on October 17, 2024 (E.C.) [October 17, 2016 G.C.]. The content is: Since the disputed house was built in 1997 (E.C.) [2004-2005 G.C.] with my private money on the place I was leading before I got married to the applicant, it is appropriate to sell it without the applicant’s consent. I request that the decision given by the Amhara Regional Cassation Bench be upheld because the sale was made in compliance with the appropriate requirements.
The applicant also submitted a reply reply written on November 03, 2024 (E.C.) [November 03, 2016 G.C.] and strengthened her petition.
The origin of the dispute is as seen above, and we have examined the topic held when it is said that it should be submitted by associating it with the arguments of both parties, the facts confirmed in the lower court and the appropriate law in the following manner. Article 79(a) of the Family Law Proclamation No. 79/95 of the Amhara National Regional State provides that the agreement of the husband and wife is necessary to sell, exchange, rent, mortgage or otherwise transfer the immovable property of the husband and wife to a third party. Article 80(1) states that the effect of the absence of agreement is that the contractual obligation may be rescinded at the request of the spouse who did not give the agreement. When these provisions are combined, they indicate that the willingness of the husband and wife is required when the joint property of the husband and wife is transferred to a third party in any way, and that if the property is transferred to a third party by the other spouse without the willingness of one spouse, the agreement or agreement to transfer the property shall remain valid until it is submitted to a court and rescinded.
In the case before us, the lower court record does not show that the Applicant, in connection with the disputed house and land, apart from including it with other properties in a general request for division of property against the 1st Respondent, requested a judgment to rescind the sale agreement made between the respondents. As seen above, regarding the disputed house, the Applicant, based on her marriage with the 1st Respondent, stated that the 1st Respondent sold the house without the Applicant’s knowledge and was in the process of transferring title, and the sale was stopped due to the Applicant’s objection, and requested that the marriage be dissolved and that the Respondent divide the common property, including this house, and return her personal property. Since the sale agreement was made without the applicant’s knowledge and consent, she did not request a judgment to annul the sale agreement, and during the process of examining the division of property resulting from the divorce and rendering the appropriate judgment, examining the legality of the agreement and rendering a decision that nullifies the effect of the agreement or gives effect to the agreement shall be deemed as rendering a decision in violation of the provision of F/S/S/H/Code 182/1 for unrequested judgment. (See binding legal interpretations given in S/M/Number 223825 and similar files.)
In summary, as long as it is confirmed that there is a sale agreement on the house that is the basis of the dispute; In the application in which the Applicant requested a divorce decision and presented a list of common and private property, citing this, in order to claim the right that the Applicant claims to have on the house, first this agreement must be adjudicated by an authorized body and the appropriate arguments must be made by the parties; Since the region’s courts have examined the legality of the agreement and given decisions with different outcomes regarding the disputed house in the process of examining the property dispute resulting from the divorce and rendering judgment, it shows that the lower courts have reached a conclusion that a fundamental legal error has been committed that contradicts Article 80(1) of the region’s Family Law and Article 182(1) of the F/B/S/S/H/Code, and the following has been decided.
Decision
The portion of the decisions rendered by the Dessie City First Instance Court in case number 28705 on July 27, 2022 (E.C.) [July 27, 2014 G.C.]; the South Wollo Zone High Court Appellate Bench in case number 55278 on November 14, 2022 (E.C.) [November 14, 2014 G.C.] and the Amhara Regional Supreme Court Cassation Bench in case number 0336346 on February 16, 2023 (E.C.) [February 16, 2015 G.C.] concerning the disputed house are overturned pursuant to Article 9(1)(b) of Federal Supreme Court Cassation Procedure Directive No. 17/2015. The remaining portion of the decision is unaffected.
We have stated that the agreement and the legal effect of the sale agreement made between the respondents regarding the disputed house is not to be entertained in the lower court file opened to examine the divorce and the result of the divorce.
We have stated that this decision does not prevent the applicant from filing a lawsuit and establishing the rights she claims to have in the house with respect to the disputed house.
Each party shall bear their own costs and losses incurred due to the cassation argument.
The case is closed because the matter has been decided. Return the file.
(unreadable signature of five justices)