Judicial Protection of Private Property Rights in Ethiopia: Selected Themes

Author:Hailu Burayu, Elias N. Stebek & Muradu Abdo
Pages:351-367
 
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DOI http://dx.doi.org/10.4314/mlr.v7i12.6
Judicial Protection of Private Property
Rights in Ethiopia: Selected Themes
Hailu Burayu, Elias N. Stebek & Muradu Abdo
Introduction
The protection of property rights involves complementarities between the
judiciary, executive organs and administrative tribunals. It envisages a
legislative framework and administrative protection based on an administrative
procedure law pursued by administrative authorities and tribunals. Moreover, It
requires an independent and competent judiciary with due integrity.
The judicial protection of private property rights determines the extent to
which individuals and legal persons are ensured access, proper interpretation,
efficient adjudication and appropriate judgment to their claims, counterclaims
and defenses whenever disputes are adjudicated in courts of law. This envisages
competence, integrity, efficiency, judicial independence, predictability and
consistency in judicial decisions. As an exhaustive analysis on all aspects of
these themes requires wider discussion, this comment focuses on the
jurisprudence, consistency and predictability of some high level Ethiopian court
decisions (particularly at the level of the Cassation Division of the Federal
Supreme Court) on selected themes related to private property with a view to
highlighting the practical protection of private property rights in Ethiopia.
Hailu Burayu (LL.B, LL.M; Consultant and Attorney at Law); E. N. Stebek (LL.B,
LL.M, PhD; Associate Professor); Muradu Abdo (LL.B, LL.M, PhD Candidate; Asst.
Professor).
This comment is an abridged version of the fourth chapter of the research titled
“Property Rights Protection and Private Sector Development in Ethiopia” which was
submitted to Private Sector Development Hub at the Ethiopian Chamber of Commerce
and Sectoral Associations. The authors are grateful to Private Sector Development
Hub for sponsoring the research in partnership with SIDA (Swedish International
Development Cooperation Agency).
352 MIZAN LAW REVIEW Vol. 7 No.2, December 2013
1 Overview of some cases that involve land rights
The current land holding system in Ethiopia gives power to both the federal and
regional states to enact laws pertaining to land. The Federal Supreme Court’s
Cassation Division decisions also bind lower courts in the interpretation of
similar issues as per Article 2(4) of Proclamation No. 454/2005. Therefore,
reference to the Cassation Division decisions on land rights is necessary to
examine the protection of property rights.
Land rights are crucial in private sector development as no investment can be
carried out without land.1 Article 1130 of the Civil Code gives recognition to
land and buildings as immovables, and Article 1204 states the elements of
ownership regarding the use, enjoyment of its fruits, and its disposal through
donation, sale or inheritance, etc. as envisaged under Article 1205. Article 1206
of the Civil Code entitles the owner “to claim his property from any person who
unlawfully possesses or holds it and may oppose any act of usurpation”.
Disputing parties may settle their difference with or without the involvement
of a third party, or through mediation or arbitration. Yet, going to courts of law
becomes necessary when resolving a dispute becomes impossible by the parties
themselves or through mediation or arbitration. The following cases show few
of the themes that can give an overview of the problems of predictability,
consistency and delay in the adjudication of property rights.
1.1 The need to recognize the economic value of land use rights
a) G/Egizabher v. Selamawit, FSC Cassation Division (File number 26130)2
The case started in the Tigray National Regional State. The mother of
Selamawit, Dinkinesh Demisu (deceased), was married to G/Egizabher. After
the death of her mother W/t Selamawit claimed a house with 10 rooms as heir to
her mother. The deceased had 5 rooms built on the land before she married
G/Egziabher, and they built 5 more rooms on the land after their marriage.
The High Court of Tigray decided that the rooms built after marriage should
be shared between G/Egziabher and Selamawit but part of the house built before
marriage (i.e five rooms) would exclusively belong to Selamawit and the court
1 As stated in Chapter 1, land is no more within the realm of private property under the
existing laws of Ethiopia: i.e., Proclamation No. 31/1975 that has made rural land
public property, and proclamation No. 47/1975 that renders urban land the property of
the state and the Ethiopian people. Private citizens thus only exercise possessory
rights not ownership right on rural or urban lands.
2 Alem Asmelash, (2010) “Comments on Some Land Rights Related Decisions of the
Federal Supreme Court Cassation Division”, Ethiopian Journal of Legal Education,
Vol. 3, No. 2, pp. 154-156 (abridged)

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