Note
The Original Document is in Amharic. This is an Unofficial Translation
Cassation Case No.: 252647
January 28, 2016 E.C.
Judges: Berhanu Amenew
Bewket Belay
Kenea Kitata
Birhanu Mengistu
Marta Teka
Applicants: 1. Ato Tekalign Muleta
2. W/ro Behailu Muleta – *Absent*
**3. Ato Melese Muleta
Respondents: 1. Ato Gullat Kebede – *Present*
2. Akaki Kality Sub-City Land Holding Administration Office – *Not Summoned*
3. Akaki Kality Sub-City Woreda 08 Construction Permit Office
The record has been examined, and the following judgment is rendered:
JUDGMENT
The issue concerns the legal outcome of judgement beyond the requested relief. The dispute commenced at the Federal First Instance Court where the 1st Respondent filed a suit against the current Applicants and the 2nd and 3rd Respondents, stating that he owns the property with house number 836 in Akaki Kality Sub-city, Woreda 08; that while the 2nd Respondent had previously issued a title deed with title deed number 00465 for 250 square meters to the predecessor of the Applicants, Ato Muleta Ya’i, and after his death, 250 square meters was transferred to his heirs, the 2nd Respondent subsequently, in 2003 E.C., increased the holding to 460 square meters by including excess land and issued a title deed; and that when the 3rd Respondent issued an illegal fence renovation permit to the Applicants, they encroached on his holding by 1.30 meters on the upper side and 2 meters on the lower direction. Although he filed a suit against the Applicants, the court dismissed his case due to a false response given by the 2nd Respondent to cover up the wrongdoing. Therefore, he requested judgment that the title deed prepared by the 2nd Respondent by entering into his holding for the Applicants be nullified and that they be removed from his holding, that the fence renovation permit issued by the 3rd Respondent be cancelled, and that the Applicants vacate his holding.
2nd and 3rd respondents, having received the lawsuit, failed to submit a response, and their right to submit a statement of defence has been forfeited. In the statement of defence submitted by the applicants: – The area of the land we obtained through inheritance is 250 square meters on the title deed and 507 square meters by bill or cadastral. After our father died, we requested a title deed for 507 square meters but were told it was not possible. Therefore, after we were initially given 250 square meters, we submitted a petition for the remaining 210 square meters to be included, and we were given a possession title deed stating a total of 460 square meters. We transferred half, 230 square meters, by sale, and we have obtained a title deed for the remaining 230 square meters and are living on it. Based on the possession we physically hold, we requested our possession to be demarcated by fencing, and they know that the boundary was demarcated and we fenced it after stakes were driven on 24/12/2008 E.C. in the presence of the 1st respondent, other neighbours, and experts. It was confirmed that we have not encroached upon and possessed land belonging to the 1st respondent, and they had previously filed a lawsuit in this same court and a decision was rendered against them. Therefore, they argued by saying that since the title deed and the fence renovation permit were issued to us legally, they should not be cancelled.
The court, having examined the arguments and evidence presented by both parties based on the above, in the decision it rendered, stated that the construction permit issued to the applicants is legal, as indicated in the statement sent by the Akaki Kality Sub-city Woreda 08 Construction Permit Office by reference number 335/13 on 24/10/2013 E.C. Furthermore, in the statement sent by the Akaki Kality Sub-city Land Holding Administration Office by reference number 11642/13 on 24/10/2013 E.C., it stated that there is no evidence proving the existence of the 1st respondent’s holding included in the applicants’ title deed. When the statements presented by the offices were examined, they were found to support the applicants’ argument more than the 1st respondent’s claim. On the other hand, in this same court under file number 68872, both parties argued, and a decision was rendered stating that the applicants are not holding the 1st respondent’s possession, and nothing was presented by the 1st respondent regarding the annulment of this decision. Overall, the 1st respondent did not prove their claim with better evidence. Therefore, by stating that there is no reason to cancel the title deed and construction permit issued to the applicants, it decided by dismissing the lawsuit.
1st Respondent, being aggrieved by this decision, appealed to the High Court. The court, having examined the litigation and evidence, rendered a decision stating that the lower court’s action of ordering the matter to be investigated while knowing that the 2nd Respondent was a defendant was inadmissible from the perspective of neutrality. Although it was ordered that the matter be investigated at the central level, the investigation could not be conducted because the map prepared for the Applicants lacked complete coordinates. Based on the complaint filed by the current 1st Respondent at the lower court, the Akaki Kality Sub-City Land Development Management Office, through its Work Quality Complaint and Petition Resolution Desk, provided evidence indicating that the map prepared for the Applicants covering 230 square meters encroached upon the 1st Respondent’s holding from the area they physically possessed, and therefore sent a suggestion for correction, supported by a sketch, to the Sub-City’s Holding Administration Transition Period Service Principal Office. This letter also indicated that the map prepared for 230 square meters was prepared by encroaching 27 square meters into the 1st Respondent’s holding. According to the Guideline for Accommodating Undocumented Holdings, it is clearly stated that a map for a person is prepared to the extent of the holding they physically possess. Therefore, there is no legal basis for a map prepared by encroaching into the 1st Respondent’s holding to be legal. Consequently, the map should be corrected. It also stated that the fence renovation permit issued based on this incorrect map is inappropriate and therefore inadmissible, and reversed the lower court’s decision, stating that the map should be corrected and prepared, and that the Applicants should vacate and hand over the 27 square meters held based on the incorrect map to the 1st Respondent. The Applicants, being aggrieved by the decision rendered in this manner, appealed to the Federal Supreme Court, but the court, after hearing arguments from both sides, upheld the decision of the appellate court.
The Applicants filed a cassation petition with this Cassation Bench on 30/12/14 E.C., stating that a fundamental error of law was committed in the decision rendered as described above. The brief content of their petition is as follows: Based on the suit filed by the Respondent claiming that the Applicants have possessed their holding, the court ordered on 22/6/2010 E.C. that an expert physically attend the location and submit the result in a drawing. Both sides were present at the holding, and experts observed and submitted detailed measurements. Based on this measurement, the Akaki Kality Sub-City Land Development Management Holding Administration properly responded, supported by a drawing, stating that the Applicants did not cross the boundary and possess the 1st Respondent’s holding. While this response was submitted as evidence to both the lower court and the appellate court, the Federal High Court’s conclusion that the Applicants possessed 27 square meters of the 1st Respondent’s holding is inappropriate, as it bypassed this evidence and reached this conclusion without experts physically coming to the holding and observing, and without evidence being properly submitted that does not confirm that we possessed 27 square meters in any direction, unsupported by a drawing. The decision rendered by the court on its own initiative is one in which a fundamental error in evidence evaluation has been committed. The decision rendered by the appellate courts without having the decision given after we argued both sides on file number 68872 brought and examined is an error. We have explained with evidence that our holding confirmation map and fence renovation permit are legal, and that we did not possess the Respondent’s holding, and that we fenced after boundary markers were placed in the presence of the Respondent and other neighbors, with the agreement of the neighbors and without objection from others. Furthermore, the relief requested by the 1st Respondent was that the Applicants entered and fenced 1 meter and 30 centimeters on the upper side and 2 meters on the lower side into their holding in the direction bordering them, and not that we had crossed and possessed 27 square meters and should vacate. Therefore, their decision to order us to vacate 27 square meters where they did not request relief for us to vacate is one in which a fundamental error of law has been committed, and we request that it be reversed and the decision of the court of first instance be upheld.
The Cassation Bench, having examined the petition, ordered the respondents to be present and the matter to be examined, and the respondents to give their response, considering the suit filed by the 1st Respondent against the Applicants and the current 2nd and 3rd Respondents, in which they stated that the Applicants had illegally entered and possessed 1.30 meters on the upper side and 2 meters on the other side from their lower holding, and on which it was decided that the Applicants should vacate 27 square meters and the 2nd and 3rd Respondents should correct the holding confirmation map and fence renovation permit to the same extent, in conjunction with what is stipulated under Civil Procedure Code Article No. 182/2 and the legal interpretation given on Cassation File No. 25026 (Vol. 6), 37762 (Vol. 8), and in other files.
The cassation application filed by the applicants against the 2nd and 3rd respondents has been dismissed due to the applicants’ failure to serve summons on these two respondents.
Subsequently, the 1st respondent appeared in person, collected the summons, and submitted their response dated 01/04/2016 E.C. A brief summary of their response in relation to the issues identified for submission: – “Since the holding I possess is triangular in shape, I was unable to state its size based on my knowledge, so I stated in my claim that they entered and occupied 1.30 meters on the upper side and 2 meters on the lower side. Later, after investigation by the Akaki Kality Sub-City Land Development Management Quality Audit and Grievance Resolution Desk, it was confirmed and presented with evidence supported by a sketch dated 20/06/2009 E.C. that the applicants occupied 27 square meters of the respondent’s land. Based on this evidence, the lower High Court and the Federal Supreme Court Appellate Division rendered their decisions. Therefore, the decision ordering the applicants to vacate the respondent’s 27 square meters of holding and to correct the possession certificate and renovation permit issued to them accordingly is not such as to suggest that it rendered a decision in a manner that contradicts what is stipulated under Civil Procedure Code Article 182/2. They argued in their response that there was no error committed from the perspective of evidence evaluation.” The applicants did not submit their reply to the response.
The above briefly described the arguments of both parties and the content of the decisions rendered by the appellate court and the lower courts. Considering the issue raised above, we have examined as follows, in conjunction with the relevant law, whether a fundamental error of law that can be corrected at this court level has been committed in the decision rendered by the lower appellate High Court and affirmed by the Federal Supreme Court Appellate Division.
The dispute between the parties concerns the right of urban land possession. Unless specifically stipulated otherwise by special law, such civil disputes must be conducted and resolved according to the system laid down in the Civil Procedure Code. The reason for laying down the conduct of disputes in this manner in the Civil Procedure Code is to enable the court hearing the case to identify factual matters that can be proven by evidence and points upon which a decision should be rendered based on law, and to give appropriate resolution to the disputes within a reasonably short time and with limited human and financial resources. In this regard, if the court seized of a civil case conducts the dispute without properly implementing its responsibility to conduct the case by identifying correct legal and factual issues considering the substance of the dispute, and to render a decision limited to the requested judgment and the issue in dispute, it will make the dispute ineffective in terms of time and cost, leading to a conclusion that denies justice, and thus causes damage amounting to depriving the litigating parties of their substantive rights by preventing the purpose for which the procedural law stands from being achieved. Therefore, it is necessary to follow the case management process laid down in the procedural law and give appropriate resolution to the disputes.
As stipulated under Civil Procedure Code Article 225/2, if the claim is for immovable property, the claim application must specify boundary marks that enable the identification of the immovable property claimed, or if the property is known by being registered in the immovable property register, the number given in the register must be indicated. Furthermore, when the court exercising first instance jurisdiction renders a court decision related to immovable property, as stipulated under Civil Procedure Code Articles 182/2 and 183/1, it must identify, specify, and decide the exact area, boundary mark, or the number under which the property is registered in the immovable property register, of the immovable property that one party must hand over to the other party, limited to the matter on which the litigating parties requested judgment by presenting in detail or clearly indicating, and considering what is stipulated under Civil Procedure Code Article 225. When we consider Civil Procedure Code Article 182/2 in conjunction with Articles 328/3 and 348/1 of the same law, they indicate that the appellate court must also render a decision limited to the requested judgment and the point of dispute argued by the litigating parties.
In the present case, the 1st Respondent filed a claim stating that the Applicants have encroached upon and possessed 1.30 meters of land from the upper side and 2 meters from the lower side of their land; and that the current 2nd and 3rd Respondents have illegally issued possession certificates and fence renovation permits to the Applicants, including the land encroached upon. Therefore, they sought judgment requesting that the Applicants be ordered to vacate the encroached possession and that the possession certificate and fence renovation permit issued by the current 2nd and 3rd Respondents to the Applicants be cancelled. Based on this, the Applicants and the current 2nd and 3rd Respondents denied and argued against the presented claim and the requested relief. Accordingly, the issues requiring decision and to be framed are: 1) Did the Applicants encroach upon and possess 1.30 meters of land from the upper side and 2 meters from the lower side of the 1st Respondent’s landholding, or did they not? and 2) Did the 2nd and 3rd Respondents issue possession certificates and fence renovation permits to the Applicants, including 1.30 meters from the upper side and 2 meters from the lower side of the 1st Respondent’s landholding, or did they not?
We have observed above that the First Instance Court, framing these issues, decided by dismissing the claim on the ground that the 1st Respondent failed to prove with evidence that the Applicants encroached upon and possessed 1.30 meters of land from the upper side and 2 meters from the lower side of the 1st Respondent’s landholding. The lower High Court, which reviewed the case on appeal, reversed this decision and ordered the Applicants to vacate 27 square meters for the 1st Respondent, stating that it has been established that the Applicants encroached upon and possessed 27 square meters of the 1st Respondent’s holding by accepting additional evidence. In this regard, from the factual conclusion reached that the Applicants’ encroachment upon and possession of the 1st Respondent’s holding has been established through the evaluation of evidence by the High Court in this manner, and this decision was upheld by the Federal Supreme Court Appellate Division after re-evaluating the evidence, no error in the application of evidence evaluation principles correctable at this court level has been found.
However, the 1st Respondent did not deny and argue against the Applicants’ statement in his cassation application that He had previously filed a claim against the Applicants in the Federal First Instance Court under file number 68872, and in the decision rendered on 21/10/2010 E.C., it was decided that there was no holding possessed by the Applicants that belonged to the Respondent and thus no holding to be vacated; nor did He state that this decision has been overturned. While the procedural legal appropriateness of a decision being rendered after the 1st Respondent filed a claim again in this manner remains unclear, if it is established that the Applicants encroached upon and possessed the Respondent’s landholding, the decision ordering the Applicants to vacate should be limited to the extent of the relief requested by the 1st Respondent in their claim, stating that the holding the Applicants encroached upon and possessed is 1.30 meters of land from the upper side and 2 meters from the lower side. However, the decision rendered by the lower High Court, which reviewed the case on appeal, and the Appellate Division, ordering the Applicants to vacate and hand over 27 square meters of holding to the 1st Respondent, is outside the requested relief by the 1st Respondent. When the provision under Article 182(2) of the Civil Procedure Code, which stipulates that the appellate court may decide by framing issues not seen or framed by the lower court, is considered in conjunction with Article 328(3) of the Civil Procedure Code, it does not grant the appellate court jurisdiction to order something beyond the relief requested in the claim presented before the lower court. The Federal Supreme Court Cassation Division has provided binding legal interpretation in Cassation file numbers 37762 (as published in Volume 8), 25026 (as published in Volume 6), 188488 (unpublished), and other files that rendering a decision outside the requested relief is a fundamental error of law. Therefore, since the decision ordering the Applicants to vacate 27 square meters of land for the 1st Respondent, which is beyond the relief requested by the 1st Respondent, constitutes a fundamental error of law that must be corrected in accordance with Proclamation No. 1234/2013, Article 2(4/h) and 10(1/b), the following has been decided.
Decision
- The decision rendered by the Federal High Court under file number 277467 on 18/08/2014 E.C. and the decision rendered by the Federal Supreme Court Appellate Division under file number 226745 on 23/10/2015 E.C. have been revised in accordance with Federal Supreme Court Cassation Procedure Directive No. 17/2015, Article 9(1).
- It has been decided that the area the Applicants must vacate for the Respondent is only 1.30 meters from the upper side and 2 meters from the lower side, as per the relief requested by the 1st Respondent in their claim.
- Subject to what has been decided under serial number 2 of this decision, the part of the lower High Court’s decision concerning the 2nd and 3rd Respondents remains unaffected.
- We have stated that each party shall bear their own costs and expenses incurred in this court.
Order
- A copy of the decision shall be transmitted to the lower court. Copies shall also be given to the parties.
- The stay order previously issued suspending the execution proceedings pending in the lower court is lifted. Let it be written.
- The file is closed; it shall be returned to the registry.
Bears the unreadable signature of five judges.
M/T