Noise Pollution-Remedy-Period of Limitation Berhane Tessema v. Tamirat Kidane et al Cassation File No. 42824-volume 14

Berhane Tessema v. Tamirat Kidane et al 

Federal Supreme Court Cassation File No. 42824 (November 17, 2009)

Holding of the Court:

Excessive noise pollution is said to occur when it causes nuisance. The claim for its cessation is not barred by period of limitation. The remedy cannot be sought from the licensing authority.

Civil Code, Articles 1225, 1226, 1149;

Commercial Registration and Business Licensing Proc. No. 67/1997

Cassation File No. 42824

Hedar 8, 2002 E.C. (November 17, 2009)

Federal Supreme Court Cassation Division

Justices:Menberetsehai Tadesse, Hagos Woldu, Hirut Mellese,

Almaw Wolie, Ali Mohammed

Petitioner: Berhane Tessema Respondents: 1. Tamirat Ayane

2. Kolfe Keraniyo Sub-City Trade and Industry Development Bureau

Judgment

The case involves the issue of nuisance embodied in Article 1225 of the Civil Code and it started at the Federal First Instance Court. The present petitioner was the plaintiff. In a statement of claim dated Yekatit 28, 2000 EC (March 7, 2008), the petitioner stated that he owns a house adjacent to the first respondent, and that the latter is causing nuisance due to the excessive noise caused by metal works welding machine. He further requested that the second respondent revoke the business licence it has given to the first respondent because such activity should only be conducted in an industrial zone.

The first respondent contended that the claim should be barred by a limitation period of two years and that the noise created by the welding machine is not excessive. The second respondent also argued that the issuance of the licence was appropriate.

The Federal First Instance Court decided that the claim is barred by a period of limitation of two years. It also held the licence can only be revoked by the entity that is authorized for its issuance, and not by a court thereby rejecting the petitioner’s claims. This decision was confirmed by the Federal High Court, and the petition to this cassation bench is made against these decisions.

The petition submitted to the Federal Supreme Court Cassation Division dated Tir 18, 2001 EC (January 26, 2009) states that the nuisance had ceased due to the intervention of community police (denb askbari) and the statement of claim [dated March 7, 2008] was submitted as soon as the nuisance restarted. The first respondent on the other hand contended that new issues cannot be raised at the Cassation Bench and that the claim is barred by period of limitation.

The Cassation Bench has examined the arguments raised by both parties in light of the relevant legal provisions and the issues involved the case. The petitioner and the first respondent are neighbours and the latter is found to be undertaking mental works welding since 1993 Ethiopian Calendar, i.e. 2000.

Article 1225 of the Civil Code which deals with abuse of ownership against good neighbourly behaviour is different from Article 1149 which addresses the issue of the cessation of interference. Article 1225 embodies restriction on ownership right even when it is exercised on one’s own property; it requires that the external manifestations of an owner’s acts should not disturb or adversely affect a neighbour or another owner. The reading of Article 1225 in conjunction with Article 1226 and the subsequent provisions requires an owner to use his rights within the limits set forth by the law in such a manner that his lawful use of property does not cause nuisance or damage. Therefore, the period of limitation that applies to Article 1149 is not relevant in this case.

In the case under consideration, the nature of the arguments show that the petitioner is not requesting cessation of interference [as envisaged under Article 1149 of the Civil Code] but the cessation of the nuisance caused by the machine. The noise from the machine is bound to continue as long as the business undertaking continues. In other words, the lapse of time does not bar suits against nuisance. The key issue is proving nuisance due to the noise. The major objective of Article 1225 to protect the use rights of neighbours. There is no legal stipulation which allows the continuity of noise pollution [merely because it existed for a certain period of time].

Adjudication procedures do not allow decisions that emanate from mere focus on legal provisions cited by litigating parties where such provisions are not relevant for the issues in the case. The task of identifying the relevant provisions that should constitute the basis of judgments is the role of courts. Therefore, there is fundamental error of law in the lower court’s decision that the petitioner’s request against the first respondent’s act is barred by limitation. The court has erroneously based its decision on a legal provision that applies for interference in possession while the provisions that are applicable to this case are Articles 1225 and 1226 of the Civil Code.

With regard to the second respondent, the lower court has found that the respondent is not authorized to determine the modes of urban land use, but to merely issue licences where the legal requirements are met, and suspend or revoke them in the event of defects based on Commercial Registration and Business Licensing Proclamation. The petition submitted to this Cassation Division deals with the lower court’s decision which invoked period of limitation. However, the petition does not indicate the error of law in the decision of the lower court with regard to the second respondent.

The Cassation Division has observed from Article 10 of the Commercial Registration and Business Licensing Proclamation No. 67/1997 that the proclamation does not provide for the revocation of a business licence by the authority that is entrusted with its issuance in the event of nuisance caused to another person. Therefore, we have found no error of law in the decision of the lower court with regard to the second respondent. We have thus rendered the following decree.

Decree

1.The decision of the Federal First Instance Court (File No. 69348) dated Sene 26, 2000 (July 3, 2008) and confirmed by the Federal High Court (File No. 69348) on Hedar 24, 2001 (December 3, 2008) are amended in accordance with Article 348(1) of the Civil Procedure Code.

2.As there is no legal ground to bar the petitioner’s claims by period of limitation against, the case is referred to the Federal First Instance Court in accordance with Article 341(1) of the Civil Procedure Code so that the court can, based on Article 1225 of the Civil Code render its decision by examining whether the noise created by the first respondent’s welding activity causes nuisance at the petitioner’s house, and whether the respondent has made efforts to control the noise.

3.The decision of the lower court with regard to the second respondent is confirmed.

Signature of five justices

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