Ethiotelecom -v.- Negussie Tefera -Compensation for damage to telecommunications or electric cables C-F-N 72238

Ethiotelecom –v.- Negussie Tefera

Federal Supreme Court Cassation File No. 72238 (November 12, 2012)

Holding of the Court:

An administrative body shall ensure whether there are telecommunications or electric power cables prior to the issuance of construction license, and any person who acquires license shall guarantee that no damage shall occur on telecommunications or electric cables. Thus, anyone who negligently causes damage while carrying out construction will be held liable.

Article 3(3), Protection of Telecommunication and Electric Power Networks Proclamation No. 464/2005;

Articles 2027(1), 2028 and 2035 of the Civil Code

Cassation File No. 72238 Hidar 3, 2005 E.C. (November 12, 2012)

Federal Supreme Court Cassation Division

Justices: Teshager G/Selassie, Almaw Wolie, Ali Mohammed, Adane Negussie, Mustefa Ahmed

Petitioner: Ethiotelecom

Respondent: Negussie Tefera

The court has rendered the following judgment.

Judgment

The case started in South-West Shewa Zone High Court where the current petitioner was the plaintiff. He claimed that the defendant (current respondent) caused damage amounting to Birr 48,998.72 to the optical fibre cable, property of the petitioner, while digging the land under his possession, on Yekatit 10, 2001 E.C (February 17, 2009) at 10:30 a.m, and causing the cable from Addis Ababa to Jimma to be severed, knowing that it is buried in the ground at the depth of half a meter. The petitioner further stated that, the defendant refused to pay the 48,998.72 Birr (forty eight thousand nine hundred ninety eight birr and seventy two cents) (inclusive of VAT) required of him. The petitioner claimed that the defendant had written a letter dated Megabit 08, 2001 (March 17, 2009) admitting liability for the damage caused and requesting to

reimburse the cost incurred in the maintenance, transport as well remuneration paid to professionals and labourers.

In his statement of defence, the defendant (current respondent), argued that the Woliso City Administration while allocating the 1,888 square meters of land to him and when it provided him with the plan in 1997 E.C as per Article 3(3) of Proclamation No. 464/2005, did not inform him that there is an optical fibre cable buried in the land. He further argued that, there is no sign put by the plaintiff to this effect, and the cable is buried more than 150 meters from the main road, while this distance should not have been more than 15 meters. He argued that the letter written to the plaintiff was not a statement of admission of liability but was written in good faith as the damage was unintentionally caused to state property. The defendant also raised an alternative argument for the reduction of the amount of compensation. He contended that he is not liable for the damage, but in case the court finds enough reason to decide otherwise, the amount of damage claimed is exaggerated.

The High Court requested the City Administration to confirm whether it had informed the defendant that there is an optical fibre cable buried in the ground, to which the latter responded to the negative arguing that the plan of Ethiotelecom was not delivered to it. The court then found that it cannot be maintained that the defendant had prior knowledge of this fact, as the plan given to him does not show the existence of a cable buried in the land.

Regarding the alleged letter of admission of the defendant, the High Court noted that the content of the letter does not show an admission of liability, stating that he is not expected to know whether there was a buried cable, as the location is 150 meters from the main road. The Court further stated that the defendant proposed to pay the amount incurred for the maintenance of the cable as well as the money paid to the professionals and labourers, with the intention of reimbursing the expenses incurred. Moreover, the Court, found that the defendant’s contention of the amount claimed by the plaintiff does not amount to an admission of guilt, and it rejected the claim of the plaintiff (current petitioner).

The Oromia Regional Supreme Court to which an appeal was brought affirmed the decision of the High Court. The petitioner then brought this petition to the Cassation Division of the Federal Supreme Court alleging that the lower courts have committed a fundamental error of law. The petitioner stated that, as per Article 3(3) of Protection of Telecommunications and Electric Power Networks Proclamation No. 464/2005, it is the responsibility of the Woliso City Administration and the respondent (who requested for a construction permit) to check whether there is a telecommunication cable. It

further argued that Art. 23(1) of Telecommunications Proclamation No. 49/1996 requires the City Administration and the respondent to obtain the prior consent of the petitioner. According to the petitioner, the court has unduly rejected the suit by stating that what the respondent stated in the letter does not amount to admission, while the latter had admitted that he has negligently caused damage and that he is willing to pay a reduced amount.

The respondent on the other hand, argued that the City Administration did not inform him that there is a cable buried in the land given to him, and the petitioner’s argument which alleges that the respondent should have known is not acceptable. He further stated that what he admitted about the damage during the litigation conducted in the lower courts was not admission of liability.

The Cassation Division after hearing the litigation has identified two issues, i.e. whether the respondent is liable for the damage caused, and if the respondent is liable, the amount that should be paid as compensation.

This court has examined the first issue in the light of Proclamation No. 464/2005, issued to protect telecommunication and electric networks. According to Article 3(3) of the Proclamation, Federal and City Administration bodies are required to make sure that damage will not be caused to a telecommunication or electric network before giving a construction permit, and the applicant for a construction permit should do the same before undertaking the construction. Article 4 of the Proclamation states that, anyone who causes damage to a telecommunication or electric network, intentionally or negligently, is punishable. The Cassation Division noted that the respondent caused the damage by negligently digging the ground contravening its obligation of making sure that damage will not be caused to a telecommunication network.

Furthermore, Article 2027(1) of the Civil Code states that irrespective of any undertaking on his part, a person shall be liable for the damage he causes to another by fault. If a person, intentionally or negligently commits a fault causing damage to another, he shall be liable for the damage caused, without there being a prior contractual relationship between them. Article 2035(1) also renders a person liable if he/she infringes any specific and explicit provision of the law, decree or administrative regulation. Despite these stipulations embodied in the Proclamation and the Civil Code, the lower courts decided that the respondent is not liable stating that the City Administration did not inform him about the existence of the cable and because the petitioner did not put any sign on the place where the damage occurred. The lower court further stated lack of proof to show that the current respondent committed the fault knowingly, despite the fact that the respondent has not denied causing the

damage. The decision of the lower courts in relation to the first issue is not thus acceptable.

Regarding the second issue, i.e. amount of the damage, Article 2028 of the Civil Code provides that anyone who caused damage to another by fault has to make it good. Moreover, Articles 2090(1) and 2091 of the Civil Code stipulate that the damages due by the person legally declared to be liable shall be equal to the damage caused to the victim by the act giving rise to the liability. In this regard, the Cassation Division found it important to examine the reasons submitted by the respondent and the evidence he has produced to support his argument that the amount of compensation claimed by the petitioner is exaggerated.

The Cassation Division then observed that the decision of the lower courts relieved the respondent from liability although he did not deny causing damage to the property of the petitioner. This is not in conformity with Article 3(3) of Proclamation No. 464/2005 which stipulates that anyone who seeks a construction permit shall, before carrying out the construction, make sure that damage will not be caused to telecommunication and electric networks. This court has further found that the lower courts have failed to note Articles 2027(1), 2028 and 2035 of the Civil Code based on which a non contractual liability may arise. Therefore the decisions of the lower courts have a fundamental error of law.

Decree

  1. The decision of the South West Shewa Zone High Court, File No. 21371 delivered on Tahsat 07, 2003 E.C. (December 16, 2010), and the decision of the Federal Supreme Court, File No. 112894 rendered on Hedar 28, 2004 E.C. (December 8, 2011), are reversed as per Article 348(1) of the Civil Procedure Code.
  2. The Respondent is liable for the damage caused. Thus, according to Article 343(1) of the Civil Procedure Code, the case is returned to the South West Shewa Zone High Court, so that it shall assess and decide on the amount of damage based on the litigation of the parties, examining the evidence, and if necessary hearing an independent expert.

Signature of five justices

Source: Federal Supreme Court Cassation Division Decisions

Volume 14, pp. 203 – 206.

Abridged translation: Maereg G. Gidey

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