Rural Farmland Dispute: Cassation Case No. 250350

Cassation Case No. 250350

December 25, 2016 E.C.

Justices: Etmet Assefa, Dejene Ayansa, Nuredin Kedir, Melaku Kassaye, Habtamu Irqihun

Applicant: W/ro (Mrs.) Nejiba Nuri – Appeared

Respondents: 1. W/ro (Mrs.) Sirsenge Badebo – Did not Appear 2. Ato (Mr.) Shukure Salia

The file was scheduled for examination, and accordingly, after examination, the following judgment is rendered.

JUDGMENT

The Cassation petition was submitted because the Applicant stated in her Cassation petition, written and presented on November 5, 2015 E.C., that the Cassation Bench of the Supreme Court of the SNNPR (Southern Nations, Nationalities, and Peoples’ Region) upheld the decision of the Regional Supreme Court Appellate Bench in Case No. 20970, dated June 16, 2015 E.C., in Case No. 23181 on October 29, 2015 E.C., and because this involves a fundamental error in the interpretation of the law, it should be rectified. The court records show that the Applicant was an intervener in the case at the lower court level, while the 1st Respondent was the Plaintiff and the 2nd Respondent was the Defendant in a property division case following divorce.

The 1st Respondent, following the divorce decision in the lower court, requested in her list of property against the 2nd Respondent that she be given her share of the two plots of land whose boundaries were mentioned in the suit, the trees located on the land, a large thatched-roof house, the livestock whose description and value were mentioned in the suit, and the produce harvested from the farmland, arguing that they jointly acquired these properties during their marriage. The 2nd Respondent, in his response, argued that the first-mentioned land on the list of property was divided into three parts by the family council, i.e., for the Respondents and the Applicant; that the second plot of land was given to the Applicant as Nikah (marriage gift) when he married her; that the movable properties were acquired by the Applicant; and that the grain harvested from the farmland was produced by the Applicant using her farmland; therefore, the request for division should be dismissed. The Applicant, having applied for and been granted permission to intervene, argued in her intervention that the farmland mentioned by the 1st Respondent at the beginning of her list of property was divided into three shares by the family council, and that the eucalyptus and acacia trees and the thatched-roof hut are located on the share that she received, and that in addition, the mentioned farmland, which is 1.5 Timad, was given to her as Nikah when she and the 2nd Respondent got married; that the livestock were given to her by her father; and that the wheat, sorghum, and corn produce were produced on her share of the farmland. Therefore, she argued that the request for division on her share is inappropriate, and thus, her share should be identified and determined.

The lower court, having heard and examined the evidence of both sides, having conducted an on-site observation, and having heard witnesses who it deemed impartial to the case, stated in its decision that considering the testimony of the witnesses it cited as impartial to the case, one cow with its calf, a bull, and a heifer were the common property of the Respondents, but because the animals were raised with the Applicant’s contribution, the Applicant and Respondents should divide them equally into three; that the presented evidence demonstrates that the farmlands were registered in the names of the Respondents and that the land claimed to have been divided by the family council had not been divided but was being used by the Respondents. The court further stated that the two thatched-roof houses where both sides lived were built by the 2nd Respondent, and that although the corn, sorghum, and wheat were produced on the farmland being used by the 1st Respondent, these farmlands were undivided common properties. The court then decided that after the Respondents equally divide the 8 Timad of land, the Applicant should share half of the 2nd Respondent’s share; that with regard to the Chat plant, eucalyptus trees, and the thatched-roof house, since they were acquired through the efforts of the 2nd Respondent and the Applicant, the Applicant and 2nd Respondent should divide them equally, and the 1st Respondent should share the 2nd Respondent’s share; that with regard to the 3 Timad of farmland, after the Respondents divide them equally, the Applicant should share half of the 2nd Respondent’s share; and that the livestock should be divided equally into three parts by all sides.

Dissatisfied with this decision, the Applicant appealed to the Siltie Zone High Court, which rejected the complaint related to the farmland but, with regard to the livestock, amended the decision of the lower court, deciding that one cow with its calf, one bull, and one heifer were raised with the Applicant’s contribution, so half of the share belongs to the Applicant, and the Respondents should equally divide the remaining half share. Thus, the High Court amended the decision of the lower court in this regard (only with regard to the livestock).

Dissatisfied with this decision as well, the Applicant appealed to the Appellate Bench of the Regional Supreme Court, and the court, after hearing arguments from both sides, decided that the evidence showed that the Respondents had already possessed the rural farmlands, built thatched-roof houses, and were living in them and using them, and that when the Applicant came as a second wife, another thatched-roof house was built for her; that even if the thatched-roof house where the 1st Respondent lived had aged and collapsed, the 1st Respondent and the Applicant were living while cultivating behind their respective thatched-roof houses. Criticizing the lower Woreda court for issuing a judgment that was difficult to implement, the Regional Court reversed the decisions of the lower courts regarding these lands, deciding that with regard to the 8 Timad of land, it should be divided equally in half by starting from the front side and measuring the length, demarcating the boundary from front to back, and that the property and land located in front of and behind the existing thatched-roof house should be for the joint share of the Applicant and the 2nd Respondent; that the area where the 1st Respondent’s thatched-roof house was previously located, along with the permanent property and land in front of and behind it, is the share of the 1st Respondent; and that with regard to the 3 Timad of farmland, half of the share is for the 1st Respondent, and the remainder is the share of the Applicant and the 2nd Respondent. The court upheld the decision of the Zonal High Court regarding the livestock. This decision was upheld by the Cassation Bench of the Regional Supreme Court.

In her Cassation appeal, the Applicant, being dissatisfied with this decision, stated that since she married the 2nd Respondent 26 years ago, without any objection from the 1st Respondent, the original thatched-roof hut on the property had collapsed, and she had built a thatched-roof hut for the second time and was living in it with her 6 children; that the 1st Respondent had not made any contribution to the construction of this house, and the house was not built for communal living; that it was unfair to decide that the two properties on which she had planted coffee, Chat, and eucalyptus trees and was cultivating and using by planting grain every year were common properties. Therefore, she requested that the decision of the lower court be reversed and that it be decided that they are the Applicant’s personal properties.

The Cassation Review Bench, noting that both wives have their own houses, questioned the propriety of one wife being ordered to share with the other, and that while it was established that 3 Timad of land was given to the Applicant as Nikah, the propriety of ordering her to share 25% with the 2nd Respondent. The Review Bench decided that this issue should be examined by the Cassation Bench and referred the case to the Cassation Bench. This Bench, ordered the Respondents to present their responses to investigate the appropriateness of the Regional Supreme Court Cassation Bench overturning the decision of the Regional Supreme Court Appellate Bench on grounds of jurisdiction in Case No. 22046 and then upholding the decision of the Regional Supreme Court Appellate Bench in Case No. 23181.

Accordingly, in her response, the 1st Respondent argued that there were no procedural flaws or errors of law committed in the manner in which the case was referred to the Regional Cassation Bench; that the Regional Supreme Court Cassation Bench was correct in overturning the decision of the Appellate Bench in Case No. 20970 on May 10, 2015 E.C., on the issue of jurisdiction; that with regard to the thatched-roof house, the Respondents had acquired all the properties from the very beginning, and after 35 years of marriage and having seen grandchildren, the 2nd Respondent married the Applicant in 2002 E.C. on the property that the Respondents had built and acquired, and that when the house where she was living aged and collapsed, the 2nd Respondent was not willing to build one for her, so she was living with neighbors. She claimed that the lower courts had gone to the site and investigated and rendered the decision. Therefore, the Cassation appeal should be dismissed. In general, she argued that since the lower courts rendered their decision based on the Family Code, Cassation decisions, and the legal interpretations of the House of Federation, the Cassation appeal should be dismissed.

The 2nd Respondent, in his response, argued that at the time he married the Applicant, the 1st Respondent was given her share separately, and all three of them had their own properties; therefore, he would not object if the Applicant’s request was granted, as the decision given by the lower Woreda court and the appellate court differed from this factual truth and contained a fundamental error of law.

The Applicant strengthened her Cassation arguments by submitting a reply brief written on December 15, 2015 E.C.

The above is a brief summary of the arguments of both sides and the content of the decisions rendered by the lower courts. We, too, based on the point raised by the Cassation Review Bench, have examined, in light of the relevant law, whether there is a fundamental error of law in the decision that can be rectified at this level, as follows. The Cassation dispute between the parties regarding the two rural farmlands and the trees grown on these lands, and the thatched-roof house built on one of the farmlands, is based on a property division decision given by the lower courts following the dissolution of the marriage between the Respondents through divorce. The arguments of the lower courts and the arguments made by both sides in this Bench show that the Cassation dispute is based on the Regional Family Code presented by both sides. Regarding the properties presented in these arguments, the Dalocha Woreda Court, after hearing arguments from both sides, decided that the Applicant should share half of the 2nd Respondent’s share after the Respondents equally divide the 8 Timad of land; that regarding the Chat plant, eucalyptus trees, and the thatched-roof house, since they were acquired through the efforts of the 2nd Respondent and the Applicant, the Applicant and 2nd Respondent should divide them equally, and the 1st Respondent should share the 2nd Respondent’s share; and that with regard to the 3 Timad of farmland, the Applicant should share half of the 2nd Respondent’s share after the Respondents divide them equally. Subsequently, this part of the decision was upheld by the Siltie Zone High Court. According to the system of lodging complaints stipulated in Article 5(2) of the Establishment of Courts of the Regional States Proclamation No. 43/1994, if the Applicant had a complaint about the decisions given, she should have lodged it with the Cassation Bench of the Regional Supreme Court, but she instead appealed to the Appellate Bench of the Regional Supreme Court. And the court, having heard arguments from both sides on the appeal presented by the Applicant, and the Cassation Bench of the Regional Supreme Court upholding the decision given by the Appellate Bench, when it should have rectified this fundamental error of law committed by the Appellate Bench in terms of its management of the arguments, shows that a fundamental error of law has been committed. Therefore, we have decided as follows.

DECISION

1. The order of the Cassation Bench of the Supreme Court of the SNNPR in Case No. 23181, dated October 29, 2015 E.C., upholding the decision of the Appellate Bench of the Regional Supreme Court in Case No. 20970, dated June 16, 2015 E.C., is reversed pursuant to Article 348(1) of the Civil Procedure Code.
2. We state that this decision does not prevent the Applicant from lodging her Cassation appeal with the Cassation Bench of the Regional Supreme Court if she believes that a fundamental error of law was committed in the decisions of the Woreda Court and the Zonal High Court.
3. Each party shall bear their respective expenses and losses incurred due to the Cassation dispute.

As the matter has been decided, the file is closed and shall be returned.

[Illegible signatures of four Justices]

M/A (Minute Administrator)

Dissenting Opinion

I, the Justice named in serial number 5, agree with the conclusion reached that the Appellate Bench of the Southern Nations, Nationalities, and Peoples’ Region Supreme Court’s acceptance of the second appeal and rendering a decision in a family dispute is procedurally incorrect, as there is no second appeal in family matters. However, given that the Applicant submitted a substantive appeal to the Regional Cassation Bench, and a final substantive decision was rendered by the High Court at the lower level, the Applicant should not have been required to submit a second Cassation appeal. The Regional Cassation Bench should have examined the Applicant’s appeal in light of the decision of the lower High Court. Therefore, I express my dissenting opinion as follows, due to the majority opinion ordering a new Cassation appeal to be submitted.

The Applicant submitted her Cassation appeal to the Cassation Bench of the Southern Nations, Nationalities, and Peoples’ Region regarding the decision of the Appellate Bench of the Regional Supreme Court. Since the appeal to the Cassation was made after the decision on the second appeal, the time for submitting the Cassation should be counted from the date the decision being appealed was rendered, according to Article 323/2 of the Civil Procedure Code. It is noted that in the case at hand, the Cassation complaint was filed within the prescribed time.

If the Cassation complaint was filed within the prescribed time, the question is whether or not the Applicant’s Cassation complaint in this file should be examined. When I consider this, I agree that the Appellate Bench of the Regional Supreme Court did not have the authority to hear the case on the second appeal. After it is stated in the decision that the Appellate Bench of the Regional Supreme Court did not have the authority to hear the case, the case should have been returned to the lower High Court for examination and decision on the original issue, based on the final substantive decision rendered by the Regional Cassation Bench. This is because the main purpose of the Civil Procedure Code is to enable litigants to resolve their disputes in a timely and cost-effective manner without causing them hardship. Allowing the Applicant to submit a Cassation complaint for the second time on the same issue, without having the original issue examined, leads to a waste of time and expenses for the litigants and is inconsistent with the purpose of the Civil Procedure Code. Therefore, I believe that the Regional Cassation Bench should have examined the arguments of both sides on the substance of the matter, in light of the final decision of the lower High Court, and returned the case to the High Court for a decision. I, therefore, dissent with this view.

[Illegible signature of one Justice]