Ethiopian Federal Cassation Decision No. 1105491 A case about Land Holding rights and Sale of Land

Background of the Case

The current respondent and the original plaintiff, Ato Galeme Rebso put forward a claim against the current applicant (original respondent) W/o Demekech by stating that he has inherited the land holding right of the farm land she resided on and that he has a certificate of holding to prove it. He requested for the restitution of the land and 126,500 as compensation.

The current applicant responded by stating that her husband bought the land from the daughter (w/o Bulbula Birwan) of the grandmother (W/o Mushra) of the current respondent in 10/10/1994 E.C. for 1,500 Birr in front of arbitrators. The land had also been integrated into the Alamata City Administration in 2000 making it not a farm land, but a residential exit (“gojo mewcha”), after which it was registered under the applicant’s name, therefore, she argued that the land holding is legal.

In 1994 E.C., Adane Asfaw ,the now-deceased husband of Mushira, bought a piece of rural land for 1,500 Birr from W/o Bulbula Birwan, who is one of Mushira’s daughters. The sale was made in front of community elders. At the time of the sale, the land was considered rural farmland ,Tarash, not officially part of a city or town. Later, the land became part of Alamata town. Later on in 2001 E.C., a landholding confirmation document was issued in the name of the representative by the Alamata Town Land Administration Office. After getting the confirmation; a house was built on the land, crops were planted, and the land was used for 12 years. Later the respondents ,Bulbula, challenged the ownership, saying the sale was unlawful and that the land still belonged to them. The applicant (Adane’s side) argued that; the land was legally bought, it was used for years, it was recognized by the city once it became part of town, and a proper landholding certificate was issued. Additionally , the respondent argued that the land was just a regular plot (arable land) and not meant for public access or as a passage route. The dispute went through multiple levels of court, eventually reaching the cassation bench.

Facts Established by the Cassation Decision

The Cassation Bench established that the applicant’s spouse, the deceased Ato Adhana Asfaw bought the land from W/o Mushra’s daughter, W/o Bulbula Birwan in 10/10/1994 E.C for consideration before the land was incorporated into the Alamata City Administration, which means that the land was a farm land and not a residential exit at the time of the conclusion of the contract of sale. These facts were established by the litigation that took place in lower courts.

Decisions Of The Lower Courts

Woreda of Alamata Court

– This court ruled that the land was farm land gained through inheritance, however the land was under Alamata City Administration at the time of the litigation. The court ruled that the land be registered under the current respondents name, and that compensation of 5,238.65 Birr of one year be given to him.

– The cite plan under the current applicant’s spouse’s name be erased.

Alamata High Court

The current respondent appealed.

– The court mentioned that the disputed land was under rural land administration until 2005 E.C. and that it was considered a residential exit. The applicant had been living there for 12 years since 1994.

– It also stated that the respondent got the inheritance right in 2001 E.C. and should not be able to uproot these people by bringing a claim in 2006 E.C.

– Additionally, the contract of sale was not challenged by the respondent. – The applicant also has a holding certificate.

– For these reasons, the court reversed the lower court’s decision.

Tigray State supreme courts, Appellate Court

The current respondent appealed to this court.

– This court stated that the land was indeed farm land before it was incorporated into the Alamata city Administration.

– The applicant’s claim of a contractual agreement of sale is illegal in its nature as rural land can not be sold or exchanged.

– The court reversed the lower court’s decision.

– It ruled that the land be under the respondent’s name and that the site plan be cancelled/ erased due to its illegality.

State Supreme Court Cassation Division

The current applicant appealed.

– This court found no fundamental legal issue with the State supreme court’s appellate court decision and therefore it endorsed it.

Fact in issue framed by the Cassation Bench

The current applicant appealed.

– Whether the contract of sale that transferred holding to the applicant was illegal according to the State supreme courts, appellate court’s decision.

– And whether, based on the above point, the court’s decision for the applicant to return the land back to the respondent is an appropriate ruling and other related points. Reasoning of the Federal Supreme Court, Cassation Bench

– Based on the facts established by this court, as mentioned above, there is a contract of sale concluded for the sale of the land in dispute. There is also a debate of whether or not a rural land, or any land for that matter can be put up for sale or not. For a contract of sale to be protected under the law, there must be certain requirements fulfilled. These requirements range from substantive requirements to procedural ones. Any illegally formed contract is void.

– Art. 40(3) of the FDRE Constitution² states that land of any kind (whether rural or urban) is a property of the state and the Nations Nationalities and Peoples of Ethiopia, and that it can not be sold or exchanged. Proclamation 456/97³ and based on Tigrian Rural Land Administration Proclamation N. 55/1994⁴ also reinforced that a contract of sale over land is illegal, and therefore, void according to Ethiopian civil code article 1716⁵. – It was also established that any contract that is deemed to be an illegal contract according to any relevant law can be invalidated at any time without being barred by a period of limitation. This is especially true for those contracts that contravene with the supreme law of the country such as the FDRE Constitution. Additionally other binding cassation decisions of the federal Supreme Court which are to be taken as part of the law also affirm this sentiment such as, Federal Cassation Bench Decision on case no. 43226⁶ and 79394⁷.

Holding of the Federal Supreme Court, Cassation Bench

– The contract of sale made between the parties was deemed to be void, therefore the applicant’s point of contention which was brought before the Supreme Court cassation division is unacceptable.

– The land holding went to the applicant in an unlawful way begin with and gaining a legitimate evidence in an illegitimate manner can not be acceptable in the eyes of the court, therefore according to article 1195⁸ and 1196 of the Ethiopian Civil Code, it is unacceptable to produce a certificate of land holding to claim land holding rights on this particular farm land.

– The cassation bench upheld the decision of the Tigrean State supreme court, appellate court and found no fundamental error of law.

Critical Reflection

I agree with the decision of the Federal Supreme Court Cassation bench’s decision as it was soundly made in relation to the country’s legal system and relevant laws. Considering sale of land is an illegal act prohibited both under the primary law of Ethiopia, which is the FDRE Constitution clearly states that “land is a common property of the Nations Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange”⁹, and secondary laws do not give recognition to sale or exchange of land as a right of land holders. We can observe this on both the Federal Land Administration Proclamation back then (which I was 456/2005¹⁰.) and now (Proclamation No. 1324/2024 ¹¹).

Therefore, the contract of sale was in fact void ab initio according to article 1716(1) of the civil code which states that “a contract shall be of no effect where the obligation of the parties or of one of them are unlawful or immoral.”¹² And according to the cassation decisions mentioned by the court (case no. 43226 and 79394) , the sale of an empty land without any value added to it is invalid and shall have no effect on the parties involved as it is an illegal act.¹³

Therefore, considering all the circumstances and the facts presented before the lower courts, we agree with the decision of the Federal Supreme Court, Cassation Bench in upholding the State Supreme Court’s decision to overturn the Alamata High Court’s decision.

REFERENCE(S):

Primary Legislation

1. Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No 1/1995, Federal Negarit Gazeta, 1st Year No 1, Art 40(3).
2. Rural Land Administration and Land Use Proclamation, Proclamation No 456/2005, Federal Negarit Gazeta, 11th Year No 44.
3. Rural Land Administration and Use Proclamation (Revised), Proclamation No 1324/2024, Federal Negarit Gazeta, 30th Year No 9, Art 64.
4. Ethiopian Civil Code, Proclamation No 165/1960, Federal Negarit Gazeta, 19th Year No 2, Arts 1173, 1195, 1196, and 1716(1).
5. Tigray National Regional State Rural Land Administration Proclamation, Proclamation No 55/1994, Tigray Regional State Negarit Gazeta.

Case Law (Cassation Decisions)

1. W/o Demekech Nir’a v Ato Galeme Rebso (Federal Cassation Decision No 110549), Cassation Bench of the Federal Supreme Court, File No 110549, (2016), page 352-356.
2. Geta Trading PLC v Commercial Bank of Ethiopia, Cassation Bench of the Federal Supreme Court, volume 12, File No 43226. (2011), page 58-64. 3. Ato Abdullah Ibrahim v Ato Usso Abdi, Cassation Bench of the Federal Supreme Court, volume 15, File No 79394 (2012), page 215-217.

¹ W/o Demekech Nir’a V. Ato Galeme Rebso (Federal Cassation Decision No 110549), Cassation Bench of the Federal Supreme Court, File No 110549, (2016), page 352-356.

² Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No 1/1995, Federal Negarit Gazeta, 1st Year No 1, Art 40(3).

³ Rural Land Administration and Land Use Proclamation, Proclamation No 456/2005, Federal Negarit Gazeta, 11th Year No 44, article 8(2 (1)).

⁴ Tigray National Regional State Rural Land Administration Proclamation, Proclamation No 55/1994, Tigray Regional State Negarit Gazeta.

⁵ Ethiopian Civil Code, Proclamation No 165/1960, Federal Negarit Gazeta, 19th Year No 2, Arts 1173, 1195, 1196, and 1716(1).

⁶ Geta Trading PLC v Commercial Bank of Ethiopia, Cassation Bench of the Federal Supreme Court, volume 12, File No 43226. (2011), page 58-64.

⁷ Ato Abdullah Ibrahim v Ato Usso Abdi, Cassation Bench of the Federal Supreme Court, volume 15, File No 79394 (2012), page 215-217.

⁸Ibid, article 1195 and 1196.

⁹Ibid, note 2.

¹⁰ Ibid, note 3.

¹¹ Rural Land Administration and Use Proclamation (Revised), Proclamation No 1324/2024, Federal Negarit Gazeta, 30th Year No 9, Art 64.

¹² Ibid, note 4.

¹³ Ibid, note 5 and 6.