Review by: Brook Leulseged

Federal Supreme Court Cassation Decision Vol-13

Case File Number – 61331

October 10, 2004 E.C.

Plaintiff: Ethiopian Telecommunication Corporation (E.T.C.)

Representative: Befekadu Mekonnen

Defendant: Mr. German Genaro, Absent on trial

Material Fact

Defendant, Mr. German Genaro, on January 10,1998 E.C. entered into a written contract agreement with
E.T.C.- the sole network & phone service provider in the country. Accordingly, the defendant used the
services provided but failed to pay the charge. The total amount of overdue debt to be paid is 5,873.20
ETB. The defendant failed to meet his financial obligations duly; subsequently, E.T.C. sued for the debt.

Issue:
1) Is the defendant still financially obligated to pay? If yes- which article obliges him- and if no- which
articles set him free or waives his obligation.
2) What is the nature of the payment in arrear?

Brief review of the adjudications before the supreme court’s decision.

The Federal First Instance Court’s ruling: The court while interpreting the law came to a conclusion that
the payment under contention fails under the category of unpaid monthly debt. Thus, the court invoked
C.C. Art. 2024/F.

“Art. 2024. Presumption of payment after two years.

The following debts shall be deemed to have been paid where two years have elapsed since
they fell due: (F) interest on loans and generally any sum payable annually or at shorter
periodical intervals.” 1

Per the above article, the first instance court decided that the debt will be waived and considered to be
paid under the notion that 2 years have already elapsed since the day the debt fell due or had to be paid.
The plaintiff filled with discontent and in the hope of attaining a favorable ruling lodged an appeal to the
federal high court.

Federal High Court’s ruling: the court, citing C.P.C Art. 337, dismissed the appeal without further
consideration and maintained the latter court’s decision.

“Art. 2024/F - Power to dismiss appeal without calling on respondent Where the appellant states in his
memorandum of appeal that he bases his appeal entirely on the record of the original hearing and does
not apply for permission to call additional evidence, the Appellate Court may. after fixing a day for
hearing the appellant or his pleader and hearing him accordingly on that day, dismiss such appeal

1
Art. 2024/F, Civil Code of Ethiopia, 1960
Review by: Brook Leulseged
without calling on the respondent to appear, if it thinks tit and agrees with the judgment appealed
from.” 2

The plaintiff’s attorney lodged a rigorous 2-page appeal letter, to the Federal Supreme Court, underlining
that a fundamental error in the law has occurred i.e. while the case concerns contractual relations,
invoking Art 2024/F is a mistake and one that must be remedied.

The Federal Supreme Court’s ruling: the federal supreme court accepted the appeal and trial proceeded.
The federal supreme court singled out issues that needed interpretation and reinvestigation:

1) Is Art. 2024/F applicable to phone service charge or not?

2) Does Art. 2024 or the collective reading of the numerically aforementioned articles hold water
with regards to the nature of payment as debt or loan?

The court after a thorough reading of the letter of the law found that a fundamental error in law has
occurred. i.e. the article invoked by the lower courts is not only irrelevant but also inappropriately
interpreted. For instance, “interest on loans and generally any sum payable annually or at shorter
periodical intervals.”
Art. 2024/F explicitly refers to interest and loans; It doesn’t refer to the original amount pending to
be paid. So, even if the article was to be invoked, interest and loans are the only payments to be
waived but the original portion of the debt remains intact. Furthermore, the court found the
designation of the mobile payment arrears as debts unprecedented. If the legislators intended to also
encapsulate the original debt, they would have done so expressly. Federal supreme court decision
case file #35758 & #29181 establish a binding precedent in this aspect by keeping intact the original
sum in similar case. Also, proclamation 454/97 Art 2/1 also stringently stipulates that the original debt
or payment will remain intact.
More importantly, the encapsulation of mobile service payment by the lower courts as a type of
unpaid monthly debt is unwarranted for and extrajudicial since no explicit or implicit provisions can
be traced for it.
Thus, the lower courts should have investigated the case contractually, but invoking an impertinent
article has resulted in a fundament error in law.
The court had overruled the prior rulings on the aforementioned basis and remanded the case to a
lower court in order to adjudicate the particulars per C.P.C Art 343(1).

Commentary: I for one concur with the supreme court without reservation. The fashion and manner with
which the case had climbed the judiciary ladder is reminiscent and depictive of a larger strain of problem
that plagues our courts. The egregious mistake made while interpreting the law begs the question
whether there are competent judges or simply benchwarmers on the judicial bench. The failure to
consider binding precedents and recent proclamations that have effect shows the blatant disregard and
maybe even the crooked practice that threatens to derail the reliability and certainty of the judicial system.
The lower courts approach to the case lacks finesse. The crux of the case lies in identifying the nature of
payment- which has wrongly been identified as a loan by lower courts. Furthermore, the lower courts
should have treated the case contractually as there was a valid contract but the introduction of Art. 2024/F
shows nothing but the flexing of judicial muscle attributed to a lack of judicial restraint.

2
Art. 337, Civil Procedure Code of Ethiopia, 1965