LAW OF CIVIL

PROCEDURE
By :Misganu k. Jifar
Ass.Lecturer at Mettu University
School of Law

1
Law of civil Chapter one
procedure Introduction to civil procedure
Conceptual and Historical
Background
Part Under this chapter
one 1. Substantive vs. procedural rules
&scope
significance

2. Criminal vs. civil procedure

3. Purposes of civil procedure
4. Administration of justice in
Ethiopia :historical antecedents and
salient features of 1965 Civ.p.c
2
 Conceptual underpinnings
I. Nature of Civil procedure

Laws

Private Public
laws laws
Substa Nation Internat
ntive Adjective laws al ional
laws laws laws
Crimi
Civil nal
law law
Law of Law of
procedure evidence

Crimin
Civil al
proced proced
ure ure
3
Cont’d
Substantive laws procedural laws

 define rights, duties, Enforce

substantive
privileges and liabilities of
rights,duties,privi
persons
 set out regulatory norms iges
for their mutual relations A means to an end
in their ordinary course of contemplated by
life. substantive law

provide the basic rules governing A means to an end

the day-to–day activities of
individuals Vis-à-vis the
community they live in

4
 Substantive vs. procedural laws
Procedural laws govern as to how claims of persons are
prepared; where and when presented; and, how determined and
finally enforced by a court of law.
 procedural rules, in essence, give effect (“life”) to the ends
sought to be achieved by substantive laws.
 prescription without application is nothing but pretense. i.e.
rights and duties envisaged by the substantive laws
would mean nothing unless they are fully enforced;
most importantly, when they are breached.
5
Parameters employed to
differentiate these two laws
1. the material source; i.e., the constituent document
of the rule under consideration.
 rules of civil procedure, for instance, are primarily
and substantially embodied in the Civil Procedure
Code and, to a certain extent, in such other bodies
of laws like the ‘Proclamation for the Establishment
of Federal Courts’, Proc. No.25/96 ( and the
amending proclamation thereto ) Whereas rules of
substantive laws are predominantly incorporated in
such substantive codes as the ‘Civil’ and
‘Commercial’ they are secondarily, found in some
other laws relating to civil matters.
6
Cont’d
the rules of substantive laws envisages to avoid conflicts
so as to ensure individual freedom within the framework
of public order and societal harmony; by predefining the
rights and duties of individuals and groups; and, by
regulating their interactions at various levels of relations.

7
 Cont’d
2. contents (purposes) and the functional correlations
between them.
the rules of substantive laws envisages to avoid conflicts so as to
ensure individual freedom within the framework of public order and
societal harmony by predefining the rights and duties of individuals
and groups; and, by regulating their interactions at various levels of
relations whereas the rules of civil procedure are fundamentally
meant to deal with the manners of framing law suits; determining
their place of institutions; and, governing the way they are to be
considered and finally enforced by the courts of law.
8
Cont’d
 the law of procedure is the means to the end
sought to be achieved by substantive laws.
 Rules of civil procedure law secure the just, speedy

and inexpensive disposition of civil cases in the

administration of justice.
3. the actual functions of the two classes of
laws vis- a-vis their respective spheres of
applications.

9
Cont’d
the rules of substantive nature determine individual conducts and
regulate their interactions within the society at large.
That is, they deal with civil matters largely falling outside the
environs of the courtrooms.
 Procedural rules, in contrast, govern the process of litigation;
regulate the conduct of relations between the litigants and the court
with respect to the proceedings; and, as such, is called “law of
action”.
substantive rules represent ‘law at rest’, so to say; while procedural
rules denote “law of motion”. 10
Civil vs. criminal procedure
 Based on purposes and the ultimate objectives
& the types of relationships they chiefly
govern; the nature of the legal interests that
would be affected at their violations and,
hence, the parties who would have sufficient
stake therein so as to invoke a justiciable
controversy, laws may be classified into ‘civil’
and ‘criminal’.

11
Cont’d
 Civil law deals with ‘civil’ matters whereas,
the criminal law is concerned with ‘ criminal’
cases.
 the purpose of adjusting human relations at

various levels is so as to preserve and ensure

the wellbeing of the public at large but the
legal interests of others may be adversely
affected and an eventual evil may be inflicted
there upon.

12
cont’d
 infringements or violations of legal interests which are so
recognized and protected by law -are considered to be legal
wrongs thereby entailing liabilities and incurring legal
sanctions upon the wrongdoer.
 These wrongs and the attending liabilities are, in
turn, considered to have either private or public
nature.
 Violation of private rights, affect individual
interests; and are called civil injuries; whereas,
the violations of public interests, affecting the
society as a whole and it is called criminal
injuries/crimes.
13
Cont’d
 a crime is an offence against the community as a
whole for which the offender is held criminally liable
and faces penal sanctions.
 A civil wrong, on the other hand, is an infringement of

the legal interests of private individuals and is

repressible, principally, through reparation of
damages.

14
Cont’d
 the main purpose of administration of civil
justice is primarily to enforce rights; and,
hence, a civil case may end up in an award of
compensation to the individual victim or
dismissal of the case.
 penal prosecutions, being the concern of the

public at large, have the final aim of ensuring

the overall peace and security of the nation as
a whole and, may result into an acquittal or
conviction.
 Where there is a right ,there should be a

remedy.
15
Cont’d
 civil procedure is a set of rules employed in
the disposition of civil cases/suits while
criminal procedure is meant to govern the
steps to be followed in penal prosecutions.
By what parameters we can differentiate these
laws?
 nature of the parties instituting the legal action.

Civil cases are initiated by private person ; government

may initiate it but by its private capacity.

16
 Cont’d
In criminal cases the parties are commonly the state
(represented by the public prosecutor) and an
individual suspect (accused) exception offence upon
complaint which is initiated by the victim.
 Purpose of initiating a law suit and the relief sought

securing redress in monetary terms is the purpose of

initiation of civil suit & the relief demanded in a civil
case is mostly the payment of money or is usually to be
assessed in monetary values; the payment of
damages,injunction,restitution,forced performance and
etc. while the overall purposes and aims for initiating a
criminal case is maintenance of peace and order of the
general public by, primarily, punishing the law
breaker(deprivation of personal liberty) 17
Cont’d
 availability of alternative dispute settling
mechanism in either of the cases.
the parties are at liberty to negotiate over their
disputes even while the case is still pending in
civil cases; and have it withdrawn from the
court any time before a final judgment is
rendered. But criminal cases are not subject to
such alternative dispute settlement mechanisms
with exception of upon complaint offences.
 civil procedure is, thus, a method employed

in the initiation and disposition of such civil

disputes/cases.
18
Cont’d
 A civil case is one w/c is instituted by a
physical/legal person or even the government
against another for obtaining redress for a
wrong allegedly committed against him
usually for payment of money /other specific
relief. a person who initiate a civil case called
plaintiff whereas a person who is sued is
defendant.

19
Cont’d
• Civil procedure is that body of law which deals with the
processes of adjudicating a civil case before a court of law.
What are these “processes” of adjudication?
These include, but not limited to:
 Determination of court of jurisdiction
 Determination of parties ….institution of suit and service process
 The form & contents of pleadings
 The hearing of parties and their evidences
 The form & contents of judgments & decrees
 Reviews of decisions
 Execution of decrees, etc.
 Effect of judgment upon future litigation..Res judicata & splitting
of claim
It is a ‘means to an end’; not an end in itself-the end being the
enforcement of rights and obligations

20
Cont’d
 Its interpretations and applications should be
guided by its ultimate objective of enforcing
& advancing substantive rights
 Utmost care must be taken so that
substantive rights should not be lost for the
sake of procedural nicety or due to wrong
understanding and application of procedural
rules.

21
 The Purpose of Civil Procedure Vis-
à-vis Fundamental Procedural Rules
 What is the objective of civil procedure?
rules of civil procedure aims to ensure that
disputes are handled by an impartial legal tribunal
in a fair and orderly manner and as expeditiously
and economically as possible.
They are meant to secure the just, speedy and inexpensive
disposition of cases.

22
Cont’d
 No objective of Civil procedure is expressly stated in
the Ethiopian Civil Procedure Code.
 Efficient in term of time, energy, money (cost) involved
in litigation-cost cutting
 Effective in terms of decisions in line with substantive
law rules.

23
Cont’d
B. The Functions of Civil Procedure Law
• General function: enforcement of substantive rights
& obligations-its ultimate objective
1. Ensures that the “outcomes of judicial proceedings
(judgments & decrees) are consistent with the rules of
substantive laws
2. Ensures that the “processes” of adjudication is fair;
the losing party must feel he has had his ‘day in
court’, i.e. the opportunity to defend his rights even if
he lost the case

24
Fundamental procedural principles
 procedural principles have fundamental
importance that form the foundation of and
apply to all sorts of procedural laws ; be it
civil, criminal or administrative,
 ensure the proper dispensation of justice.
 The rules are well settled; they have received

a wide range of application and embraced the

whole notion of fair play (procedure) or due
process and failure to comply with them, in
principle, vitiates a decision and discredit the
judgment as lopsided so as to constitute a
miscarriage of justice.
25
Cont’d
1. Fair Hearing of a Suit/Impartiality of the
Courts
There are factors which are used to evaluate
impartiality of courts or through which “fair
hearing of a suit” is ensured.
A. Neutrality of the Presiding Judge
Judges have to bear impartial and objective mind
In order to impart justice without fear or favor.

26
Cont’d
 the authority empowered to decide dispute
between opposing parties must be one free
from bias-by which is meant an operative
prejudice ; i.e., predisposition towards one
party or against the other without proper
regard to the true merits of the case.
 There are two attributive features of
impartiality. These are: subjective and
objective impartiality

27
Cont’d
subjective impartiality refers to the impartiality of the
judge himself and objective refers to impartiality of
the tribunal; i.e., the tribunal/ court or bench should
provide the public with the guarantee that it operates
impartially; i.e., conditions that avoids suspicions of
impartiality.
 In other words, the impartiality of the judge (the

subjective one) alone is not sufficient- there must be

conditions that warrant the impartiality of the court (the
objective one).

28
Cont’d
 impartiality is about just ends and concerned just
means.
common sources of bias that should disqualify a person
from acting as a judge.
I. Personal bias
friendship, relationship (either personal or
professional) or hostility or animosity against
either of the parties; or, negativity from
personal prejudices; or even political rivalry.
29
Cont’d
II. Pecuniary Bias/ Bias as to the Subject-
Matter.
If a judge has a monetary interest in the case
brought before him he has to be withdrawn
from the bench b/c no one can be a judge in his
own case. Article 27 of proclamation no.25/96
‘’Nemo judex in cause sua’’
B. Right to be Heard:
Nobody should be condemned unheard!

30
 Cont’d
 Any one against whom an action is taken or whose right or
interest is, thereby being affected should be aware of the
information against him and should also be granted a
reasonable opportunity to defend himself. The governing
maxim in this case runs: ‘audi alter am par tem’; meaning
‘Hear the other side’– nobody should be condemned unheard.
 Notice has to be given to the party before the
proceedings start and,
 A party has to be given an adequate and reasonable
(effective) opportunity to explain (hearing).
 A parties have to get the opportunity to adduce all
relevant evidence on which he relies and
opportunity for rebuttal of evidence submitted
against him. 31
Cont’d
C. Equality of Treatment
 Implies equal subjection of all persons to the

ordinary laws of the land as administered by

the regular courts of law; and, law extends
protection to everyone.
 the degree to which procedural rules facilitate

equal opportunities of participation for the

litigants to influence the judgment may be
taken as the most important criterion by
which procedural fairness is evaluated.

32
Cont’d
 there are three fundamental pillars used as
ultimate test of procedural fairness (equality).
i. Equipage Equality
Refers to equality between the litigants in
preparing their respective pleadings in getting
legal aids (services), in searching for evidence
etc., irrespective of their differences in income
levels. E.g. article 91
ii. Rule of Equality
each party should be subjected to and
protected by, similar rules. E.g. article 58

33
Cont’d
iii. Outcome of Equality
Similar issues, under same grounds /circumstances,
should have similar outcomes.
For instance class action is allowed-pursuant to Art 38 of
the Cv. Pr. Cd and similar cases should be treated alike.
C. Public Hearing of a Suit
 In order to ensure the transparency of court proceeding,

it has to be accessible to the public at large(court

room) ,it has to be accessible to media unless closed
trial is required based on justifiable causes.
 in this sense that it is often said that justice must not

only be done, but must also be seen being done!

 Article 12(1) FDRE constitution:

34
D. Independence of the Judiciary and
Accountability of the Judges
Independence and accountability are the two
sides of the same coin.
 Judicial independence, as one of the cardinal

elements of the rule of law.

 Judicial independence is categorized as

Institutional and personal/functional

Independence.

35
 Institutional independence
o related to the concept of separation of powers-is a
mechanism through which, a balanced coordination
and cooperation among the three branches of the
government is ensured; and, at the same time-signifies
the freeing of the judiciary from an unwarranted
encroachment or influence of any sort,

36
institutional independence of the judiciary is essentially
ensured through the following means.
 Legal Basis

it is not something to be granted or, at times,

withheld, of personal will-but one with a legal
foundation. Article 78 &79 FDRE constitution
 Independence to Administer Internal Affairs and

Budget , appointment of judges

37
 Functional independence
 in the process of discharging their judicial
tasks, judges should be free, internally, from
their own colleagues and/or from the
influence of superior courts; or, externally,
from any kind of outside intrusion, fear or
influence; and they should solely be bound
and guided by the law.
 independence of the judiciary, can be
guaranteed if only it is supplemented by a
functional or individual independence
38
Accountability of the Judges
 Independence does not mean and should not

lead to irresponsibility and arbitrariness.

 It should not be manipulated as an incentive

for laziness, corrupt motives, or for a

tremendous degree of discretion so as to end
up in the ‘rule of the judges’.
 reasonable compromise has to be struck

between judicial independence and

accountability.

39
 CONT’D
E. Establishment of Courts by Law
 the structures of the courts; their hierarchical

relations and their comparable jurisdictions

have to be explicitly constituted by law; and,
only courts so established can assume judicial
function.
 special or temporary bodies that take away

judicial powers from regular courts; and by and

large, do not follow procedures prescribed by
law ought not to be set up. Judicial power
should principally and solely be vested in the
regular courts.
40
Cont’d
 But tribunals may be established by law for
cheaper , speedy and professionals are well-
trained possessing special experience and
and expertise in a particular field.
Rules of Procedure Vis-à-vis Modes of
Proceedings
 the laws of procedural rules in any country

chiefly adopt either the ‘Adversarial’ or the

‘Inquisitorial’ modes of fact- finding to the
total, or, partial exclusion of the other; or, at
times, an hybrid of the two,

41
Cont’d
 degree of the roles played both by the actual
parties to a case and the presiding judge are
the distinguishing factors between the two
modes of litigations.
The Adversarial Procedure
 traced to the early Anglo-Saxon court
proceedings, is alleged to be the typical
feature of English judicial process or the
major proponent of the system (other
countries as such as the USA, Australia and
New Zealand).

42
 Cont’d
prominent characteristics of an adversarial court
proceeding from the procedural point of view
 the parties themselves (or represented by their advocates)

shoulder the burden of initiating, shaping and fixing the

scope of the litigation.
 process is termed as the core of what might be

called the ‘factual methodology’ of the system.

 The underlying proposition of the system is

that truth is most likely to emerge as a bi-

product of the vigorous combat between
intensely partisan advocates.

43
 It is ‘litigant-driven’ fact-finding process.
 an adversarial court proceedings judges play

a relatively passive role.

 Judges function is limited to regulating the

proper conduct (smooth flow) of process.

 the judge is merely there as an impartial

umpire to see to it that the rules of the game

are evenly and properly observed by the
players.

44
The Inquisitorial Procedure
 mode of investigative procedure is originally
tied to the traditional function of a strong and
absolute government, namely the maintenance
of public order and the suppression of crimes.
 chiefly employed in the judicial proceedings of

the Continent of Europe (France and Germany

being the representative ones)
 judges can inquire deep into the merits of the

case so as to be able to decide on what the real

issues between the parties are.

45
Cont’d
 They can, for instance, order the parties to
produce further evidence and critically examine
the witnesses of either side, if and when they are
of the opinion that a fair decision cannot
otherwise be reached.
 the real parties do have active role to play in
initiating, shaping and fixing the scope of the
litigation. However, relatively the system
envisages, a more active role for the judges to
play.
 judges thus occupy a centerpiece in the ‘fact-
finding’ process as opposed to the neutral umpire
of the adversarial judge.
46
mode of Ethiopian court
proceedings
primary source material of the Code the Code
is observed to be the 1908 Indian Code of
Civil Procedure-which itself was taken as a
model procedure in some British colonies in
Africa-such as the Sudan….adversarial
 some provisions of Civil procedure code

article 241,264,266,272,345….inquisitorial.

47
Rules of Civil Procedure in Ethiopia:
Historical Development

 1965 is a point of departure; when the

current Civil Procedure Code of Ethiopia was
promulgated.
 Periods before and after1965

Before 1965
Historically, Ethiopia was identified with the
absence of a systematically organized judicial
process or uniformly applied procedural laws
b/c of absence of competent expertise.

48
 Cont’d
 Proc.No.2/1942 (formally called the ‘Administration of Justice
Proclamation’)
established system of courts ; authorize courts to promulgate procedural
rules with approval of MOJ.
Accordingly High Court promulgated ‘Leg. Not. No .33/1943’(governs
actions of High and subordinate courts.)
In 1951 another rules relating to appeals to the Supreme Imperial Court,
supreme imperial court procedure rules,legal notice No.155/1951
promulgated.
 the procedural law (called, ‘Court Procedure Rules’) was promulgated
 Proc. No. 130/1953 (and the amending Proc. No. 135/1954) for the

establishment of judicial power;

 Leg. Not. No. 177/1953, on the enforcement of judicial relief;
 Leg. Not. No. 176/1953 (and the amending Leg. Not. No. 179/1954) on

the execution of judicial decrees;

 State Leg. Not. No. 176/1954, on Insolvency and Advocates’ fees; and,
 Leg. Not. No. 195/1963, for the Determination of Material Jurisdiction

of Courts.
49
Cont’d
 these procedural laws were, on the whole, not
sufficiently detailed and a number of areas of
procedural matters were also left uncovered.
 No systematically organized and all-
encompassing procedural laws.
 Later the 1965 civil procedure code drafted by
codification Department of MOJ ; regarding its
source prof. Allen Sedler argue as it is
Ethiopian Origin whereas other scholars argue
as it Is Verbatim Copy of Indian Code of Civil
procedure.
50
Salient Features of the 1965 Civil
Procedure Code
 It is issued as a decree by Emperor…no law maker’s
deliberation on it.so no minute is referred for
interpretation. two proclamations, Proc No 51/1975
and Proc No 84/1975 were enacted. The former
reduced the number (rights) of appeals to only one;
the latter amended Art 31/1 of the Code to the effect
that an application for change of venue could only be
admitted before the hearing of evidence.
 as per the Proclamation, if the other party has incurred
expenses as a result of the rejection of the application,
the petitioner might be required to compensate same.
 It is common law origin unlike substantive laws.

51
Cont’d
 embodied comprehensive and concise rules
that apply to civil litigations of any sort. It
encompasses rules on jurisdiction of courts;
framing of issues; parties to and scope of
litigation; service of summons; pre –trial and
trial proceedings; revision of decisions and
modes of executions among others.
 no single procedural law of civil nature has
been made. Proc No 25/96 and its amendment
proclamation No.138/98, which preceded Proc
No.454/2005 are of civil nature .

52
Cont’d
until the recent enactment of Proc. No.
454/2005, which re-amended (Proc No 25/96
is amended by proc. No138/98), Proc No.
25/1996 (with the prescription that the legal
interpretation reached upon by the Cassation
Bench of the Federal Supreme Court, shall be
binding upon the courts).

53
Cont’d
 It has four schedules forms governing
pleading process.
1. 1st schedule – form of pleading
2. 2nd schedule – process: notice, service…
3. 3rd schedule – miscellaneous forms
4. 4th schedule- execution

54
Source of Ethiopian Civil Procedure
 What are the Sources of civil procedure law
in Ethiopia?
A. The FDRE Constitution: on matters of:
• The type and structure of courts,
• The division of judicial power b/n federal
and state,
• The relationship between federal and state
courts

55
Cont’d
B. The Civil Procedure Code, 1965
 An Imperial Decree- No clear legislative
history
 Indian origin
 Basically adversarial
 Meant for the then unitary gov’t
 Difficult to apply it to the current federal
arrangement

56
Cont’d
C. Federal and state laws
• Examples: Federal courts Proc. No.25/96,
Oromia courts Proc. Megeleta Oromia No.
141/2008
• They deal with the structure & jurisdiction of
their respective courts- a subject for civil pro.
D. Other substantive laws, such as the Civil Code,
the Commercial Code, the Family Code, etc.
containing rules of procedural nature.
E. Judicial decisions e.g. per Proc. No.454/2005

57
Cont’d
 Whose jurisdiction is it to legislate on the law
of civil procedure in Ethiopia? Federal? State,
or concurrent power? Check out Article 55 of
the FDRE Constitution.

58
CHAPTER –TWO
JUDICIAL SYSTEMS IN ETHIOPIA AND
JURISDICTION OF COURTS

Under this chapter:

 Past and present Ethiopian courts structure ;
 Jurisdiction of courts;
 Conflicts of Jurisdiction will be discussed in

detail.

59
The Ethiopian Judicial System : past
&present
The Unitary Court Structure:
Historical Background
 there was no adequately and formally
institutionalized system of administration of
justice in Ethiopia until the end of the 19th
century.
 the country had substantially been marked by

greatly diversified customary practices and

traditional administrative structures.

60
cont’d
 local leaders, tribal chiefs and community elders
resolved controversies amicably through the age-
old customary institutions.
 grievances of the discontented parties could further
be taken from the informal local institution to the
lowest administrative authorities-the governors.
 The decisions of the governors could also be
reviewed upon by ‘Womber-Rasses’ representatives
of each provinces in Ethiopia-and presiding over
the central court situated in Addis Ababa.
 Furthermore, appeals from the decisions of the
Womber-Rasses would be submitted to the ‘Age-
Negus
61
Cont’d
 It was thus only the 1931 ever written Constitution of the country that could
safely be considered as marking the beginning of a new era in the
establishment of the modern judicial system.
 Having constituted the Supreme Imperial Court, the Constitution envisaged
for the establishment of such other subordinate courts with their
respective powers. Pursuant to the stipulation of the Constitution, hence,
Proclamation No 2/1942 (formally called the Administration of Justice
Proclamation, Proc., No. 2/1942, Neg., Gaz., Year 1, No. 1) was enacted.
Accordingly, ,
 six levels of courts, the first three, namely, the Supreme Imperial Court, the
High Court, and the Provincial (Teklay-Gizat) Courts were set up: The
remaining subordinate courts; i.e., the Awraja –Gizat Court, Woreda-Gizat
Court and the Mikitil-woreda Gizat Court were also subsequently instituted.
 Nevertheless, as the Mikitil-Woreda Courts and the Teklay-Gizat Courts
were later on devoid of their jurisdiction by subsequent laws, they were, for
all practical purposes, abolished-thereby, relegating the then judicial
structure to the remaining solely four levels. 62
Cont’d
 Moreover, in the later days, other laws were also
enacted-with a view to strengthening the judicial
structure and the administration of justice
in general.in 1962 courts proclamation
no.195 abolushed mikitil woreda gizat
court & teklay High
Supreme gizatCourt court. Provincial (Teklay-Gizat
Imperial Court

Mikitil- Woreda-Gizat the Awraja –Gizat

woreda Gizat Court Court,
Court

Unitary court structure as procl.no.2/1942

63
Cont’d
 the 1965 Civil Procedure Code in turn,
established four levels of courts:

Awradja Guezat
the Woreda
Court,
Guezat Court,

UnitarySupreme
courtImperial
structure asHigh
per civ.p.c up to fall
Court
and
down of PDRECourt Government.

64
Cont’d
 the Ethiopian judicial system had been
strongly unified and firmly centralized.
The Present Dual Court Structure
 after the fall of the unitary Dergue regime the
system of administration of justice were
radically changed.
 The 1991 Transitional Charter, marked the

establishment of a new system.

 1995 FDRE Constitution, thus, constituted a

federal - state structure.

65
Cont’d
 the Constitution proclaim that judicial power,
both at the Federal and State levels, is vested
in the courts.
 it also provides for the establishment of
courts at the Federal and State level.
 both the Federal and the Regional
Governments are endowed with their
respective structure of courts-tiered along
three layers-the supreme, the high and the
first instance.

66
 Cont’d
 while the Federal Supreme Court sits solely in Addis
Ababa, the Federal High and First Instance Courts sit in
Addis Ababa, Dirre-Dawa and in places as may be
deemed necessary by the HPR. Proclamation no.322/03
 Otherwise, if and when these Courts are not so
established, the Constitution declares their jurisdiction
are delegated to and exercised by the States’ supreme
and high courts, respectively.
 the Constitution recognizes religious and customary
courts and envisages their establishment by law, it
does not only exclusively vest judicial power both at
the Federal and States levels on regular courts and
institutions so empowered, but also strictly forbids the
establishment of special or ad hoc courts.
67
Cont’d
 there are adjudicative bodies that are
constituted to review administrative decisions
like, the ‘Labour Relation Board’, ‘Tax Appeal
Commission’,’ Civil Service Tribunal’ and the’
Privatization Agency’ and its ‘Board’.
 Though such tribunals are not properly so-

called courts they may safely fall within the

second category of the judiciary-constitutionally
coined as “legally empowered institutions”.
 the constitutionality of the so-called Kebele-

Social Courts Addis Ababa and other City

Courts ?
68
Contemporary judicial structure
Regular Courts

Federal courts State courts

Federal State
Supreme supreme
court court
Federal High State High
Court Court

Federal First State First

Instance Instance
Court court

69
Jurisdiction of Courts
 refers to the power of courts, to hear and
determine a case; thereby, rendering a
binding judgement.
 there are three essential elements of
jurisdiction of courts;
1. judicial jurisdiction,
2. material jurisdiction and
3. local jurisdiction

70
Judicial Jurisdiction
 refers to the legal competence of the courts
of a particular nation or state to adjudicate a
law suit and render a judgment binding an
individual, or his property involved therein.
 arises when there is a ‘foreign element’ in a

case appearing before a court of a given

state.
 foreign element: if either of the parties is a

foreigner to that state or the transaction or

property, which is the subject matter of the
suit, is occurred or is situated outside of the
territorial boundaries of that state.
71
 Cont’d
for instance, Ethiopia, USA or France, etc., as a
state, is legitimately competent to subject a
particular foreigner or his property to its judicial
powers.
 In most of cases court of a state is held to
possess judicial jurisdiction if it has sufficient
contact with either the defendant or property that
is involved in the suit.
 judicial jurisdiction has to do with the
enforcement of the judgement of a court against
a foreign defendant who does not usually possess
property in the country where the case is heard
and finally determined.
72
 cont’d
 Foreign judgement may be enforced in another
country on the basis of bilateral or multilateral
treaties. The need for a concession of reciprocity is
also the other factor.
 the court of a state to which a judgement is sent for
execution will consider only whether the court that
gave the judgement possessed judicial jurisdiction. If
it finds that there was such a jurisdiction, the
judgement will thus be recognized forth with & give
effect.no review of its merit.
 the issue of judicial jurisdiction is, in practice, a
procedural matter, it is, in most countries it is
treated as one of private international law, and the
rules governing it are found in the procedural laws.
73
Cont’d
 formally speaking, there is no law in Ethiopia
that specifically govern the issues of judicial
jurisdiction.
types of judicial jurisdiction
 In personam/over a person judicial
jurisdiction
 In rem/over a thing

Their difference:
Type of action brought and nature relief sought

74
 Jurisdiction in Personam
 An action in Personam is brought against a person,
natural or legal, and seeking a relief against the person
of the defendant, i.e., the claim is made for an order
requiring the defendant to do or refrain from doing an
act.eg suit for payment of damages, injunction
BASIS OF JUDICIAL JURISDICTION:
 the defendant is an Ethiopian national or domiciliary;
or,
 the defendant has consented (expressly or impliedly) to
the exercise of jurisdiction by the Ethiopian court; or,
 the act which is the subject matter of the suit occurred
or is situated in Ethiopia.
 If either of these basis exist Ethiopian courts can
assume judicial jurisdiction.
75
1.Nationality/domicile
 The 1st basis and most common
 Article 6 FDRE constitution : birth is the main
mode of acquiring Ethiopian nationality. By virtue
of Art 6 of the FDRE Constitution, an Ethiopian
national is any person of either sex whose-both
or either-parent is an Ethiopian.
 Ethiopian domiciliary is one who, while not an
Ethiopian national nor has otherwise acquired its
nationality, has established the principal seat of
his business and of his interests in Ethiopia with
the intention of residing here permanently; or,
more realistically, for an indefinite period of
time. article 183-191 of civil code.
76
Cont’d
 It is defendant’s status that determines judicial
jurisdiction. Why not plaintiff? Why not foreign
defendant? If a defendant is foreigner he/s may be
unwilling to defend in this country. He can demand
submission to jurisdiction of courts of his state.
 if both parties are Ethiopian nationals, the issue of
judicial jurisdiction would not arise as Ethiopian
courts have the jurisdiction over them.no foreign
element.
 As physical person are subject to judicial jurisdiction
in state of their nationality or domicile, legal persons
are subject to suit in the state w/c created
them(under laws by w/c they acquired personality.

77
Cont’d
 if both parties are foreigners (and, the
transaction has also occurred abroad), here
comes the relevance of domicile (of the
defendant), for an Ethiopian court to exercise
judicial jurisdiction.
 a foreign corporate body (created under the

law of another state and/or situated

elsewhere) would normally be subjected to
the Ethiopian judicial jurisdiction with respect
to suits arising out of its activities carried out
here in Ethiopia.(See, Arts 545-549 of the
Civil Code)
78
2.The Doing of an Act
 The second factor that establishes judicial
jurisdiction for Ethiopian courts in the
absence of the first bases.
 whether the act, which is the cause of the

suit, occurred in Ethiopia; In other words, if

the subject matter of the suit occurred in
Ethiopia, an Ethiopian court will have judicial
jurisdiction-even-though the defendant is a
foreigner or not an Ethiopian domiciliary.
eg.conclusion of contract/performance of it In
Ethiopia b/n foreigners.

79
3.Consent of Parties
 When the defendant or transaction has no
contact with Ethiopia, courts are to secure the
consent of the defendant so as to exercise
jurisdiction over him.(right to defence and
heard)
 In so doing, he undertakes an obligation to

submit to the jurisdiction of the courts.

 Consent may be express or implied.

80
Cont’d
 It is said to be express if it is orally (verbally) made
or written. The parties may make their consent part
and parcel of the terms of the contract between the
two or they may reduce it in writing after the
conclusion of the main contract.e.g.. Two Kenyans
may conclude a contract in their home land and may
agree resolution of disagreement by courts of other
countries.
Or a Italian national and domiciliary is sued in Ethiopia
for breach of a contract made therein Italy. If he
appears and starts defending himself without raising
any objection on the grounds of judicial jurisdiction; it
amounts to be consented by implication…article
244(2) &(3)
81
Jurisdiction in Rem
 essentially directed against property and the relief
sought is with respect to the property itself-
without reference to the title of individual claims or
specific person.
 the plaintiff does not seek such an order as binding
the person of the defendant although an individual
may be named as a defendant in the proceeding.
 a judgement in rem settles the destiny of the res
(property) itself (or of some interest therein) not
merely as between the parties themselves; but, as
against all whom it might concern. E.g.. Suits
concerning ownership of immovable…transfer of
ownership.
82
Cont’d
 in rem’ jurisdiction refers to the power of the
court to pass a valid judgement against the
property (movable or immovable; tangible or
intangible) of the parties and not as such
against the person of the parties themselves.
 such an action is established in the courts of the

place/state where the thing i.e. the subject

matter of the suit-is located.
 the ‘situs of property’, has jurisdiction over the

case whereby the relief is sought with respect to

the property itself.

83
2. material Jurisdiction

 Refers to the power of the court to hear the kind of a case brought
before it.
 It involves identification of the matters/cases falling within and
outside the regular court structure; if it falls under jurisdiction of
regular courts:
 whether it is Federal’ subject matter and ‘State’ subject
matter.
 Which level of federal or state courts should hear the
case is the concern of it.(pecuniary amount or type of
cases )
 So it has two aspects which is subject matter and
pecuniary jurisdiction.
Subject matter-jurisdiction
84
Matters outside the Jurisdiction of
Courts
 Which matters are outside court jurisdiction?
How and Why?
 Is there a circumstances by which they might be

brought before regular court? At first

instance/appellate jurisdiction?
Article 37(1) FDRE constitution says that Everyone
has the right to bring a justiciable matter to, and
to obtain a decision or judgment by, a court of
law or any other competent body with judicial
power. on the other hand article 79(1) says that
Judicial powers, both at Federal and State levels,
are vested in the courts.
85
Cont’d
From both constitutional provisions:
 What is justiciable matter?
 Is there a contradiction between the articles?

Why/not?
Regular courts may not have material jurisdiction
at all.Article 37 of the FDRE Constitution).
It is only Justiciable matters which it entertains,
may broadly be defined as inclusive of all cases
unless the law provides otherwise.
Black’s law Dictionary defined it as a case or
dispute properly brought before a court of
justice; capable of being disposed of judicially.
86
Cont’d
 there are certain issues identified by law to be
treated by other tribunals entrusted to decide
on some conflicts related to administrative
activities and functions of the government.
For instance:
 the Tax Appeal Commission-sees cases related

to tax complaints;
 the Civil Service Tribunal-entertains grievances

concerning civil servants; and

 the Labor Relations Board-entertains
employee-employer /collective labor disputes…

87
Cont’d
 some personal and family matters involving
Muslims (such as issues of marriage; divorce;
maintenance; succession, etc.) may also fall
outside court jurisdiction when both Muslim
parties agree to get their case decided by
Sharia Courts, and referred it thereto.
 disputes settled by arbitration or compromise

are also outside the ambit of the regular

courts.
 Certain matters of purely political or
administrative nature are also considered to
be non-justiciable.
88
Cont’d
 conflicts arising from the respective activities of
these institutions will thus be within the
primary jurisdiction of these tribunals.
 party may not directly file his case to a regular

court before exhausting all the available

remedies in that system. Yet, an appeal is
allowed to be taken to the regular court from
the decision of these tribunals; particularly on
issues of law.

89
 Federal Vs. Regional Subject-Matter Distinction
 the approach taken by the Constitution concerning
power division in general is listing down,
exhaustively, the powers of the Federal
Government; and, then, leaving out all the residual
powers that are not expressly granted to the
Federal Government-to the Regional Governments
 FDRE Constitution established dual court structure.
article 79(1)
 Article 80(1 &2):The Federal Supreme Court shall
have the highest and final judicial power over
Federal matters. State Supreme Courts shall have
the highest and final judicial power over State
matters.
90
Cont’d
 The constitution is too broad as to what constitutes
federal and state matters.
 specific subsidiary laws among them Federal Courts
Establishment Proclamation, Proclamation No
25/1996 lists down, under its Art 5, the civil
subject-matter jurisdiction of the Federal Courts by
employing three separate parameters so as to
determine the material (subject-matter) jurisdiction
of the Federal Courts on a given law-suit. These are:
the nature and status of the law on which the case is
based; the place where the case arose; the parties to
a case and, under article of proc.25/96 the
nature/type of the suit itself is other parameter.
91
Subject matter jurisdiction of
Federal courts
1. laws on the basis of which the case is instituted.
 if the case is based on the Federal Constitution,
Federal laws, or, international agreements
(treaties), then, it falls under the Federal Courts’
subject-matter jurisdiction.
 Federal’ laws are laws which are enacted by the
Federal law-making organs i.e. (the Federal
legislature namely the House of Peoples’
Representatives and the Federal Government-
executive agencies)-on matters that fall within the
powers of the Federal Government. Article 51 and
55.

92
Cont’d
 international agreements-as they are adopted by
the Federal legislative organ, (HPR), they are
treated as Federal laws.
 Federal laws? What if cases arises under federal

laws? For instance cases arise under commercial

code in states?
2.Status of Parties
If either or both of the parties to a law-suit is a
federal organ or official (employee); or, if it is
between parties permanently residing in different
Regional States; or, if one of the parties is a foreign
national, then it shall be considered by the Federal
Courts.(See, Art 5(1)-(4) of Proc No 25/96),
93
Cont’d
3. Place
If disputes arising in either of Addis Ababa or
Dire Dawa,it would be within the competence of
the Federal Courts-regardless of the identity of
the parties-as in the earlier case.
4. nature or type of the case
Article 5(5)- (10) of proclamation no 25/96

94
State subject matter jurisdiction
 Matters which arises under state laws may be the
subject matter jurisdiction of state courts but not always
true b/c parties to the case may be those stated under
procl.25/96 or may arise in Addis Ababa and Dire Dawa.
Here if no federal courts established there state courts
entertain by delegation.
 Those which are not categorized under Federal cases?
 State laws are laws that are proclaimed by the legislative
bodies or executive bodies of the Regional States-as the
case may be on those so-called ‘residual powers’ or
remaining areas. Article 52 ,55(5&6) FDRE constitution.
 What if the claim arise under federal and state laws ?
under laws of d/t states?

95
Jurisdictional Limits of Courts:
Pecuniary Amount Vs. Types of Cases

 after a case is determined as a Federal or

State subject matter, the next step will be
identifying whether the Federal, First
Instance from among federal courts or High
Courts or from state courts whether, the
State’s First Instance or High Court will
handle the case .
 The jurisdictional division, is primarily meant

to apportion the judicial business among the

various levels of courts in the hierarchy-on
the bases of the amount of money involved in
the proceeding or the nature/complexity of
the case/sensitivity or complexity of cases.
96
Cont’d
 The theory of material jurisdiction is that the
more important cases should be heard by the
courts higher in the hierarchy and in the
absence a better method the importance of a
case is determined based on the amount of
money involved in the case.
 rules that are provided under Proclamation

No. 25/96 and civil procedure determine the

jurisdictional limits of the Federal Courts, the
ones stipulated in the Civil Procedure Code
and state laws establish the jurisdictional
limits of the State Courts.
97
1.Pecuniary Amount
Federal Vs. States’ Courts Jurisdictional
Limits
A. Federal Courts: General Vs. Limited
Jurisdiction
article 3,5,11 and 14 of proclamation no.25/96
Federal High Court:
 on civil case involving an amount which exceed

500,000 birr concerning federal matters…

article 11(1)
 cases regarding private international law,
nationality, enforcement of foreign judgment,
change of venue from FFIC to another FFIC or
to itself…article 11(2)
98
Cont’d
Federal First Instance Court:
Article 14 of proclamation no.25/96
 Cases involving amount of money which is

equal or does not exceed 500,000 birr on

federal matters.
 Civil cases which cannot be expressed in

terms of money. e.g. application for habeas

corpus.
 the amount of money involved in is gathered

from the plaintiff’s suit and determines where

a case should be filed.

99
 States Courts: Original Vs. Appellate
Jurisdiction
 States which did not enact laws which determines
their respective court jurisdiction may apply article
13 of 1965 civil procedure code.
 Accordingly, Woreda courts will have first instance
Jurisdiction over claims that involve up to 5,000 Birr
for movable properties, and up to 10,000 Birr for
immovable properties;
 State High Courts also handle cases that involve
claims exceeding 5,000 Birr for movables and
exceeding Birr 10,000 for immovable.
 Those enacted new proclamation apply their own
laws to decide their courts jurisdictional limits.
10
0
Cont’d
 For instance as per Amhara Courts re-establishment
proclamation woreda courts have first instance
Jurisdiction over claims that involve up to 50,000
Birr for movable properties, and up to 100,000 Birr
for immovable properties while High courts on
claims which involve over 50,000 for movables and
100,000 for immovables ,according to Oromia
Courts re-establishment proclamation No.141/2000
woreda courts have first instance jurisdiction
involving cases which involve movables and
immovable up to 30,000 and 50,000 respectively.

10
1
Determination of Amount in Controversy

 the amount of money a case involves is gathered from the statement

of claim of the plaintiff.
 As a rule, the plaintiff is expected to specifically describe the monetary
value or type of the case with a view to describing that the court has
jurisdiction over the case.
 Art. 16(2) of the 1965 Civil Procedure Code states that, in deciding
whether it has pecuniary jurisdiction, the court shall have regard to
the amount of claim stated in the statement of claim.
 Arts. 226-228 of the Civil Procedure Code governs the amount to be
stated in the statement of claim.
 a plaintiff seeking for a recovery of money should indicate the precise
amount in his statement of claim; or the estimated amount of the case.
 Besides, if a plaintiff is seeking the recovery of a specific thing, he has
to indicate the actual value of the thing in the statement of claim.
 The plaintiff is required to estimate the value of the thing he is claiming
to identify the court that has material jurisdiction. 10
2
2.Type of cases:Exclusive
Jurisdiction
 the jurisdictional limits of courts are
determined either on the monetary value or
the nature of the case.
 Exclusive jurisdiction means that a
jurisdiction given to the court irrespective of
the pecuniary amount involved therein.
 the Federal High Court has exclusive
jurisdiction in all cases mentioned under Art
11(2) of Proclamation No 25/96.

10
3
Cont’d
According to Art 11 (2) of the Proclamation, the
Federal High Court shall have exclusive First
Instance Jurisdiction over issues related with:
Cases regarding private international law,
Nationality,
Application regarding the enforcements of foreign
judgment, or
Applications for change of venue, from one first
instance court to another or to itself, in accordance
with the law.

10
4
Appellate jurisdiction of Federal
courts
 Over cases delegated to RHC and RSC?
 What is the effect of absence of judicial or

material jurisdiction?

10
5
3.Local Jurisdiction
 Refers to the case to a particular court
convenient for the parties and their
witnesses, particularly, the defendant
primarily. Incidentally, inherent to the nature
of the process, the rules also accomplish
another significant task of curbing
inconveniences which may arise from certain
purposely calculated ‘forum-shopping’
tendencies of some litigants.(The practice of
choosing the most favourable or court in
which a claim might be heard).

10
6
Local Jurisdiction
 Specific area of Ethiopia in which the case is
to be tried.
 It is the question about which Woreda courts,

High courts, supreme courts of each states

shall hear the case, or which High court or
FFIC shall hear the case.
 The rules relating to it exist primarily for

convenience of the parties.

10
7
The basic place of local jurisdiction
 The most important place for local jurisdiction
is the basic place of local jurisdiction.
What is the basic place for local jurisdiction?
 the place where local jurisdiction lies unless it
is prohibited by law to exercise local
jurisdiction there or authorizes the exercise of
local jurisdiction in a court sitting in another
place.
 Which law prohibit/authorize exercising local
jurisdiction?
 Relates suit against individuals /persons
involving not immovables.
10
8
Local…
 Art 19(1) of the civil procedure Code
stipulates that the basic place of local
jurisdiction.it is a general rule.
 According to this provision the basic place of

local jurisdiction lies with “…the court of the

place where the defendant actually resides or
carries on business or personally works for
gain.”
 Why defendant/ Why not plaintiff?

10
9
Cont’d
Actual Residence:
 What is residence? Article 174 and the
following provisions of civil code: a place
where a person normally resides for more than
three months.
 A defendant may have several Read article

177 civil code. It may have the character of

principal and secondary residence. residences.
so which one is the basic place for local
jurisdiction in light of article 19 civil p.c?

11
0
Cont’d
 a person’s primary residence would be the
place where he actually resides for purposes
of local jurisdiction, which probably is the
place where it is convenient for one to defend
a suit brought against him.
carrying on business
 a person may run his business at the
same/different place where he resides.

11
1
Cont’d
 the fact of owning interest in the business
and enjoying profits therefrom matters here.
 a person, while living in a given place,

conducts business in a different place

through an agent; he is subject to suits at the
place where the agent runs the business on
his behalf. (See Art.58 (b) of C.P.C)
 What if joint defendants residing/run
business/personally work for gain at different
places? Article 19(2) c.p.c

11
2
Cont’d
 What if the defendant has unproven residence?
Article 176 civil code says that a place where a
person is shall be deemed his residence unless
the contrary is proved.
 What if the defendant does not reside, or, carry

on business or work for gain in Ethiopia? Article

20(1) c.p.c. gives preference for plaintiff to sue
at any place unless the suit relates to an
immovable property of the defendant.
 What if the suit relates to immovable property?

Which court has local jurisdiction?

11
3
Cont’d
 What if foreigner residing , carrying on
business or personally works in Ethiopia?
 Article 20(2) : if he owns movable/ immovables

a court of the place where that property is

situate has jurisdiction.
 What if that foreign defendant has no either

movable or immovable property?

What is body corporate? Article 394 civil code
and the ff
all kinds of legal persons including Business
organization and associations are body
corporate.
11
4
Cont’d
 An association is a grouping formed between
two or more persons with a view to obtaining
a result other than securing or sharing of
profits Whereas business organization is
formed with a view to securing or sharing
profits; cooperative and other groupings which
formed to satisfy the financial interests of
their members by placing them in a position to
save money are considered as business
organization. Article 404 and ff civil code.

11
5
Cont’d
 Suits against body corporate? 22 c.p.c
 At the court of place of head office or branch

office for Business organization.

 For associations the court of place of
formation/registration.
 For officers of body corporate… at the court

of place where wrong was done or as per

article 19 of civil procedure code.

11
6
 Cont’d
Suits regarding state …article 21 c.p.c
 The State is regarded by law as a person ;as such it can

have and exercise, through its organs, all the rights

which are consistent with its nature…article 394 civil
code.
 applies a different approach in defining local jurisdiction

for cases instituted against the Government.

 regard is given to the plaintiff’s convenience. The

plaintiff’s residence or work place is taken as a base for

determining local jurisdiction.
 The rationale behind of such stipulation could
supposedly be the fact that the Government, as a
defendant, can suitably defend itself every wherein the
country.

11
7
Cont’d
Suits Regarding successions…article 23 c.p.c
 According to Art 23 of the Cv. Pr. Co., suits
regarding succession, which is being liquidated,
shall be instituted in the court of the place
where the succession was opened.
 Where a person dies, the succession of such

person, called the deceased, shall open at the

place where he had his principal residence at the
time of his death article 826 of civil code.
 What if the deceased had his secondary
residence before his death?

11
8
 Cont’d
Suits Regarding Contracts… article 24 of c.p.c
 Suits regarding Contracts generally: 24(1) at the
place where the contract was made or executed
unless some other place is mentioned in the
contract-in the discretion of the plaintiff or as
per article 19 of C.P.C
 Suits regarding Contracts of carriage:24(2)

A contract of carriage is a contract whereby a

person, called the carrier, undertakes for reward
to carry persons, baggage or goods and to convey
them to a specified place. commercial code article
561
11
9
Cont’d
 Carriage may be on land, by see or by air.
 In each case, suits will be instituted in accordance with their

respective laws. Accordingly provisions of the Maritime

Code, the Commercial Code will determine suits regarding
contracts of carriage by sea , air and on land respectively.
Article 563,54 and 55 of comm.code.
 Carraige on land is road is o carry persons, baggage or

goods by land, in particular by road,railway or inland

waterways such as rivers, canals or lakes
647(1) commercial code. - Jurisdiction.
( 1) Any claim for damages under contract of carriage by air
may be brought, in the discretion of the plaintiff, either before
the court of the place where the carrier is domiciled, has his
principal place of business or has an agent who made the
contract or before the court of the place of destination. For
contract of carriage by air.
12
0
Cont’d
 Article 601 commercial code :Where a dispute
arises as to goods or registered baggage, the
court within whose area of jurisdiction the
goods or baggage are, may on application
allow the calling of expert evidence.( for
carriage on land)
 According to Art.208 of the Maritime Code,

suits involving contracts of carriage by sea

are to be instituted at the court sitting at the
port of arrival of the good.

12
1
Cont’d
 Suits regarding Contracts of Insurance: article
24(3) c.p.c.
May be instituted in the court of the place where
the head office of the insurance company is
situated or registered or where the object insured
is situated.
 Suits regarding Contracts of pledge, deposit, or

bailment:article 24(4) c.p.c (uSÁ¹&u}kTß&u›Å^

¾}cÖ)
May be instituted in the court of the place where
the property is located.
Read article 24(1,3,4) with 19 of civ. P.C
12
2
 Cont’d
Suits Involving Immovable Property…article 25 &26 c.p.c
 suits involving immovable property must be instituted

at the place where the immovable property exists. Why?

 Such property cannot be transferred from place to

place; it will be difficult for a court other than the court

where the property is situated to view if it finds it
necessary.
 In cases where dispute is on boundary matters, that

may necessitate measurement of the boundary, or

essential document about the property are found in the
place where the property exists.
 Where the case is defendant upon the testimony of

witnesses, such witnesses probably reside at the place

where the immovable is situated. Therefore, such suits
must be instituted at the situs and not elsewhere.
12
3
Cont’d
 Where in a suit to obtain relief regarding or
compensation for wrongs to immovable and
if the relief sought can be obtained through
personal obedience of defendant/by ordering
defendant personally/ the suit may be
instituted as per article 19 or where such
property situates.
What if immovable property situate between the
boundaries of d/t courts? Any court within local
limits of any portion of the property is
situate.article 26(1) c.p.c

12
4
 Cont’d
 What if it is uncertain within local limits of the
jurisdiction of which of several courts ?
Article 26(2): any of such courts may try the case.
 What if the subject matter of the suit doesn’t fall

within the material jurisdiction of these courts?

Article 26(3) civil procedure code?
Suits for Wrong Done to Persons or Movable
Property…article 27
 A court of the place where such wrong was done

or according to article 19 c.p.c?

 Suits regarding collisions at sea shall be instituted

according to article 237 maritime code.

12
5
Cont’d
 Suits upon Several Causes of Action…article 29
Where a suit is based upon several causes of
action arising in deferent places, the suit may be
instituted in any court that has jurisdiction over
one of the causes of action.
However, it is important to make note of the fact
that the rule on joinder of causes of action is
subject to the provision of Article 25. That is, the
plaintiff is not allowed to join suits involving
immovable property where the property is situated
within the local jurisdiction of different court.
article 218 of C.P.C
12
6
 CONT’D
 Suits regarding bankruptcy ….article 28
civ.p.c :principal place of bankrupt business is
situate.
Accessary claim and counter-claim…article 30 c.p.c
 Accessary/counter-claim shall be filed in court

having jurisdiction to try principal claim.

 That court should have material jurisdiction to try

such accessary/counter-claim. article 17(3) c.p.c

 Even if principal claim is dismissed,struck out or

withdrawn the court shall remain competent to

try counter claim.

12
7
Cont’d
Want of local jurisdiction….article 10 c.p.c
 Effect of claim filed in court not having local

jurisdiction…article 231
 The ground that another court has also local

jurisdiction nay not reject statement of claim.

 the court to which the claim brought decide an

objection raised in relation to local jurisdiction

raised under article 244 c.p.c.
 No order made, judgment given or decree

passed concerning local jurisdiction may not be

invalidated unless such objection was taken
and the decision thereon has caused a failure
of justice. 12
8
Change of Venue (Transfer of Suit)
and Removal of Judges
 there could be conditions whereby the place
stated as a basic place of local jurisdictions
may not be convenient for either or all of the
litigating parties for certain reasonable
grounds.
 The Civil Procedure Code has provided, under

its Art 31 solutions for such problem. In this

regard, there are two closely related legal
practices: transfer of suits, or, change of
forum, and removal of judges.

12
9
Change of venue
 Article 31 is amended by proclamation
no.2/1974…before the evidence is
produced…
 If the case filed in lower court, an application

for change of forum must be made to the

next higher court. proclamation no.25/96
article 8(3),11(2)(d)
 An application for transfer of suit cannot be

made to the court in which the suit has been

instituted.

13
0
Cont’d
 Grounds of transfer of suit:
 when there is an allegation that a fair and

impartial trial cannot be made in the court

where the suit was instituted. impartiality of a
court is one of the fundamental procedural
principles; and, hence, a court considering a
case must be impartial in the process.
Reasonably, therefore, where the impartiality
of a court is in question, that would warrant
the concerned party to request for the
transfer of the case.

13
1
Cont’d
 The other reason is where a party contends
that the court in which the case is pending
cannot properly handle the proceeding since
the case involves some question of law of
unusual difficulty. the case is very problematic
and it may give rise to some complicated
issues of law which cannot be resolved by the
court treating it.
 the third rationale is where the court seized of

the case is found to be inconvenient to the

party so demanding(forum non conveniens)…if
the plaintiff intend to harass defendant wich
disable him to defend himself.
13
2
Cont’d
 a transfer of suit should not be permitted for
the sole fact that a party preferred to have his
case tried somewhere else.
 Transfer is from the court which has the

jurisdiction to which has no jurisdiction but

that court should be equally/more competent
to entertain the case transferred.
 What is the difference b/n transfer of suit and

withdrawal of judges?

13
3
Cont’d
Removal/withdrawal of Judge
 a judge may withdraw or be removed from a bench
essentially to achieve impartiality of the court.
 reasons that may lead to the removal or withdrawal of
judges from a bench are listed down by Proclamation No
25/96 Art 27 : If the judge:
 has some relations to a party or an advocate; or,
 was a tutor or legal representative of a party; or,
 has some prior connection with the case; or,
 has a pending case somewhere else with a party or
advocate thereof; he shall withdraw as soon as he aware
of those issues. The reasons mentioned here are not
exhaustive and any other sufficient reasons may be added
to the list.

13
4
Conflicts of Jurisdiction
 conflicts of jurisdiction may emerge between
courts, for instance, the Federal and State Courts;
or, within a single judicial structure between
courts of the Federal or States’ judicial structure-
where a court alleges that the matter falls within
its jurisdiction while the other contends that it
has the competence over the same case.
 Which court determines on such conflict of
jurisdiction ?if between state vs. Federal courts,
or b/n state courts? Article 244(2)(c)
c.p.c ,proclamation No 25/96 article 5(2).
 priority, Pendency and Consolidation of Cases

13
5
Cont’d
 Article 7 & 8 deals with conflicts of jurisdiction.
 As a rule, a suit arising from a single cause of
action may not be instituted and/or tried by more
than one court at a time. This is basically meant to
avoid the possibility of inconsistent judgements
that may be rendered on a single case; thereby,
making its enforceability practically impossible.
 With a view to resolving problems resulting from
such circumstances, the Civil Procedure Code treats
the matter through the rules of priority, pendency
and consolidation.

13
6
Cont’d
A. Priority
 The question of priority arises when a

plaintiff institutes two or more suits on the

same cause of action in different courts.
 the rule of priority takes into account the

time of submission of the case to a court of

law-whereby, the court in which the suit is
filed first will have priority to consider the
case; and, consequently, the second file in
the other court shall thus be dismissed.
Which court dismiss it?

13
7
 Cont’d

B. Pendency
 As a matter of rule, no court shall try any suit in

which the matter in issue is also directly and

substantially in issue in a previously instituted suit
between the same parties in another court in
Ethiopia having jurisdiction.
 Thus, if, while a suit is pending in a court, another

suit is also filed in another court over the same

cause, that would give rise to the problem of
pendency, and serve as one of the grounds for
preliminary objection as per Art 244(2) of the Code,
whereby a party may oppose the second suit.
 To avoid this problem, the Civil Procedure Code has

provided a rule on pendency.

13
8
Cont’d
 When the court is aware that another similar
case is already instituted in another court
between the same parties, it will dismiss the
suit or it may direct the parties to apply for
consolidation. However, that Ethiopian court
is not prevented from entertaining a case that
is already pending in a foreign court. ( Art. 7
of the Cv. Pr. Cd)

13
9
Cont’d
C. Consolidation of Suits
 consolidation of suits-is a situation where the claims of

both parties are separate while the matter in issue in one

suit is closely related to a suit pending in another court.
 Such instance may happen, for instance, in a suit for

recovery of a property by one claiming a right to

possession and a suit by the possessor claiming that the
plaintiff in the other action has committed a trespass to
the same property.
 In both cases, the issue is the same: who is entitled to

the property? In such a situation, either party can make

an application to a higher court that the cases be
consolidated for trial under Art 11-whereby the higher
court will direct one of the subordinate courts to try the
case.
14
0
Cont’d
 Consolidation is thus a procedure that is applied
when two or more suits pending in different
courts or the same court and between the same
parties give rise to similar issues and are to be
decided in different courts.
 In other words, where two or more suits which

involve the same parties and similar issues in

different courts or where there is a question of
pendency, then, both suits will be consolidated
under the procedure of consolidation.

14
1
CHAPTER THREE
PARTIES TO AND DIMENSION OF SUITS

 In a civil suit, one party initiates the proceeding against another if

they are not in a position to resolve their disputes by the
mechanisms at their disposal.
Under this chapter the following issues will be addressed:
 Parties to a civil suit and causes of action
 Requirements to be parties in civil suit.
 Representation in Civil Suits

 Joinder of Parties
 scope of litigation
 Intervention
 Third Party Practice.
 Change of Parties
14
2
Parties to a Civil Suit
 The parties to a civil suit which is being
considered by a court that is exercising its first
instance jurisdiction are known as plaintiff and
defendant. Whereas parties to a suit considered
by appellate court using its appellate
jurisdiction are called appellant and
respondent.
 Plaintiff is a party who makes an allegation
and initiates proceedings in a court of law;
whereas, defendant is a person subject to a
claim, i.e., a party against whom a claim is
filed.
14
3
 Cont’d
General Requirements:
There is a requirement that applies to a party plaintiff
and party defendant as well as to parties that are
brought into a pending suit as intervener, third party
defendant, etc.
A. Capacity: article 33(1) C.P.C
Capacity is the power or ability to perform juridical act.
capacity to sue or be sued refers to an individual’s
ability to represent his interest in a law- suit without
the assistance of another.
Who Are Persons Those Lack Personal Qualification To
Sue Or Be Sued?
Why incapable person cannot sue or be sued?
14
4
Cont’d
 Every person is presumed to have capacity to perform
all juridical acts unless provided otherwise by law.
Article 192 cc
 Read article 33(1) CPC and 192 Civ. Code?
 who disprove this presumption?
 Incapacity is divided into two.
 One is based on physio-psychological condition,
which is referred to as general sources of incapacity
under article 193 of the Civil Code. Those who lack
capacity because of their physical or psychological
condition include minors, insane and infirm persons
and persons subject to criminal sentence and
deprived of some of their civil rights.
14
5
Cont’d
 Another type of incapacity is due to the
status or special function of a person. Those
who lack capacity because of this, include, for
instance, agents? Unless the law declares
persons as incapable, every person is
presumed to possess capacity to perform
juridical acts. Thus, every person can be a
party to a civil suit unless he falls in either of
the categories of incapable persons.
 every person can be a party to a civil suit

unless he falls in either of the categories of

incapable persons.
14
6
 Cont’d
 Incapable persons cannot sue or be sued in their own
names.
 How those incapable persons can sue or be sued? article

34(2) civ.p.c
 Incapacity is one ground of preliminary objection…article

244(2)(d)
Party Plaintiff and Party Defendant
A. Party Plaintiff
 Plaintiff is a party who brings action.

 To be plaintiff, the first requirement is to possess

capacity to perform juridical acts in general and the other

requirement is that a person must be the real party in
interest with regard to the particular claim or allegation
he brings to a court of law against another party.
14
7
Cont’d
 Any person capable under the law may be a party
to the suit.i.e He files the suit in his own name.
 Any incapable person cannot sue in their own
names but must file representative suit…through
legal representative.
 plaintiff must be real party in interest.Why?
 a civil suit concerns individual interest/ right. It is
up to a concerned party only to either litigate or
abandon a claim. Hence, no other person could
decide to bring action for a real party with interest
in a suit.
 to prevent two suits against a defendant for a
single suit.
14
8
Cont’d
 plaintiff should possess the right required to
be enforced under the governing substantive
law. Only someone with legal title to the right
affected by the defendant’s conduct could
sue at law.
 If interest is transferred, a person who

transfer have to sue.

How we can determine whether a person
appearing as plaintiff may have a vested
interest or not? indication of cause of action in
plaintiff’s claim in light of substantive laws.

14
9
Cont’d
 Effect of lack of capacity?
Effects of Lack of Vested Interest
 Article 244(2) civ.p.c:it is a ground of
preliminary objection
 Article 231 civ.p.c: dismisssal of suit
 Article 40 civ.p.c:addition or substitution of

parties

15
0
CONT’D

Party Defendant:
Are there requirements to be party defendant
like that of plaintiff?
There should be allegations …article 33(3)
against defendant.
Could persons be sued for wrongs of others?
How incapable persons become defendants?
What if a given person wrongly sued?

15
1
Representation in Civil Suits
 Representative suit is a suit in which others
represent real parties to a suit.
 Article 65 civ.p.c: parties to a civil case need

not appear in person to undertake activities

in a court of law unless a court orders
appearance in person.
 Representation is a rule; appearance in

person an exception.
 What is the justification for representation?

15
2
Types of Representation
 a situation in which the representatives act
for the interest of the real parties to a suit.
Article 34,57-64 of Civ.p.c.
 a situation where the representatives
represent the interest of others as well their
own interest.article 38 civ.p.c: class action
 Legal Representation: article 34 c.p.c: in case

of capacity incapable person may be affected

 Representative Class Suits: article 38 c.p.c.:is

inconvenient for such a group of persons to

proceed with a case individually.

15
3
 requirements for the representation
in class suit
 the parties should have the same interest in a
suit;
 they to agree to be represented; and
 the number of parties should be more than two

since the provision demands the number of

parties to be several.
Same interest:as plaintiffs, they must demand the
same relief against the defendant for the same
wrong committed against all of them; as defendants
they must be invoking the same defense against the
plaintiff on the same cause of action.
15
4
Cont’d
 common interest, that all have a common
grievance, and that the relief they demand is
beneficial to them all.
 it does not mean that the claim of parties has a

single cause or that it arises from the same

transaction only.
 A person not willing to be represented can

bring his own separate suit.

 Once proper representation is made and the

court accepts it, the parties represented are

bound by a decision of a court.

15
5
 Cont’d
 Agents and Pleaders :article 57
 A legal representative is a person authorized by
operation of law to act on behalf of a party to a
suit.
 Representation by agent is one where a person is
authorized to act on behalf of a party to a suit.
 A pleader is a person who holds an advocate’s
license, and no person may appear in this
capacity unless he holds such a license. A
pleader has to produce his license together with
a letter of authorization from a person who
authorized him. (See, Art 63 of the Cv. Pr. C)
15
6
 Joinder of Parties and Causes of
Action
1.Joinder of Parties
 Joining parties and causes of action makes

parties to use their resources together and

enables them to share costs of pursuing a suit.
 It relieves a burden of court by resolving cases

involving many persons or causes of action by a

single suit/in one file.
 it avoids the possibility of making conflicting

decisions.
 On the other hand, joinder is disfavored since it

expands the scope of litigation and consequently

causes delay of proceedings.
157
Cont’d
 In addition, it results in embarrassment of the defendant
and makes him not to be able to properly defend
himself. For these two reasons, joinder should not be
granted.
 Thus, one interest is in favor and the other is against
joinder of parties and causes of action. The rule under
Article 221 of the Civil Procedure Code tries to strike a
balance between these two conflicting interests toward
joinder.
 If joinder of causes of actions in a statement of claim
results in a delay of proceedings or embarrassment of
defendant, the court may order separate suits.
 In all other cases, joinder is allowed as o long as it does
not bring about delay of proceedings or embarrassment
to a defendant.
15
8
Forms and Types of Joinder of
Parties
 Forms :
◦ joinder of plaintiffs
◦ Joinder of defendants
◦ Joinder of plaintiffs and joinder
of defendants
Types
Permissive joinder of parties
Mandatory

15
9
 Permissive Joinder of parties
 Articles 35 and 36 of the Civil Procedure Code.
 Here the parties choose between joint actions or

separate suits.
 parties are not obliged to bring a joint action or

defense.
1. joinder of plaintiffs: Article 35
Two requirements have to be fulfilled.
 the right to relief must arise from the same/series

of transaction/s whether jointly, severally or in the

alternative, and
 existence of common question of law or fact that

would arise if such persons made separate suits.

16
0
 Cont’d
 Same transaction is not to mean parties’ same
interest but common source of claim.
Eg. work force Reduction, termination of
employment contract two or more individuals.
The remedy they sought may differ.
What if they have same interest? article 38 of Civ.
P.c
series of transaction’ means a series of acts that
cause damage to some person.
For instance…car hits houses of different persons
of individuals , the house burnt, individuals died.

16
1
Cont’d
2. joinder of defendants: article 36(1,2,5)
 refers to a situation where two or more persons are

jointly sued by a single or more plaintiffs.

 There is one requirement that applies to the joinder of

defendants, unlike that of joinder of plaintiffs. There

must be a common question of law or fact, if separate
suits were filed against the defendants.
 There is no requirement that the reason why the

persons sued together arises from the same transaction.

The question is that the two suits must involve the same
issues of law or of fact.
 Article 36(2) makes an exception to Article 36(1) in the

sense that there is no requirement of common question

of law or fact.

16
2
 Cont’d
It applies where a cause of action emanates from a
contract, including parties to a negotiable instrument. For
example, if “A” issues a cheque to “B”. “B” endorses it to
“C”, who also endorses it to “D”. If “D” goes to a bank and
presents a cheque to the bank and that the bank refused
to pay the money on the ground that “A” does not have a
sufficient amount of money in the Bank, (informed him
that there is no money that covers the amount stated on
the cheque) “D” can join all “A”, “B”, and “C”, together
since they are jointly and severally liable as provided
under Article 36(2).
 Article 36(5) provides an instance whereby the plaintiff

does not know who caused the damage to him-from

among several persons-and who is to pay him.
What is common question of law or fact?
16
3
Effect of Misjoinder and Non-Joinder of Parties
article 39 Civ.p.code
What is misjoinder and non-joinder of parties ?
It is joining parties improperly who couldn’t
have been joined and failure to join a parties
who ought to have been joined.
 In case of permissive joinder misjoinder and

non-joinder of parties don’t result in

dismissal of the case but drop a party
improperly joined and demand substitution,
and proceed with the parties before a court or
to proceed with separate suits.

16
4
mandatory joinder of parties
(joinder of indispensable parties)
 parties are under obligation to bring a joint
action or defense. There is no choice given to
parties other than a joint action or defense.
 applies to both plaintiff and defendant.
 Article 36(3&4):mandatory joinder of
defendants
 Mandatory joinder of plaintiffs : stated in

substantive laws rather in procedural laws.

16
5
Cont’d
 It is the rules of substantive law that require
that a right should not be exercised otherwise
than by or against all persons concerned.
 Mandatory joinder applies to certain categories

of persons. for instance joint owners, joint

creditors or debtors, husband and wife over
common property, etc
 the interest and claim belongs to all of them

but not only one of them.

16
6
Cont’d
 The absence of one will necessarily affect one’s
right. The other category comprises of those
who can be affected by a decision given in their
absence.
 it includes, for example, persons who are

entitled to oppose the judgment under Article

358 of civ.p.c.
What is the effect of nonjoinder of indispensable
parties?

16
7
Cont’d
Effect of non-joinder of indispensable party
defendant
 the case is not dismissed. The court shall

order the joinder of such party.

 the rule under Article 39 & 40(2),(5?)

Effect of non-joinder of party plaintiff

Article 40(2) may be applied.
 the court may, by its own motion or upon

application of one party, add him a party to a

suit subject to his consent.

16
8
Cont’d
 What is the reason for requiring the consent of
plaintiff?
 What if persons refused to be a party plaintiff?

Adding as defendant, proceeding with the case in

the absence of that party or dismissing the case?
which relevant law, provision support us?
Can we apply article 39 of Civ.p.c?

16
9
Joinder of causes of action: article
217
 Civil procedure fails to define cause action.
 Cause of action is one legal requirement

which result in dismissal if statement of claim

does not indicate it clearly.
 It is the facts or occurrences that give rise to

a claim for relief.

 Parties are allowed to join even unrelated

claims as long as joining of causes does not

bring about delay of proceeding or
embarrassment to a defendant. Article
217,221

17
0
Cont’d
 As a rule unrestricted joinder of causes of action
by a single plaintiff or plaintiffs of joint interest
against the same defendant or same defendants
of joint interest except claims for recovery of
immovable property and claims against a person
his representative capacity.
 The limitation on joinder of causes of action
arises from the nature of the cause of action and
from the position of the person by or against the
claim is made.
 the rule applies to only claims for recovery but
not suits for declaration of ownership, injunction
of trespass ?
17
1
Cont’d
 Article 218 and 219 is an exception of article 217
civ.p.c
 claims for the recovery of immovable property
may not be joined with other kinds of claims
except those involving such property…art 218
 A claim by or against an executor, administrator,
or heir in his representative capacity cannot be
joined with a claim by or against him in his
personal capacity. representative cannot sue or
be sued in his different capacity.it would be a suit
against two different persons on unrelated
causes of action.
 It is to avoid conflict of interest.
17
2
 Interventions
 Intervention is a mechanism by which a third
party is brought into a pending case to
present a claim or defense.
What is its difference from joinder of parties?
Joinder is an issue that comes at the beginning
of a suit, while intervention is a question that
comes after a suit undergoes some steps.

17
3
Cont’d
Types of intervention:
 Intervention made by an application of a third party

himself, which is provided under Article 41 of the Civil

Procedure Code.
 intervention as of obligation provided under Article 42.

intervention of the Public Prosecutor in some civil cases.

Article 41 civil procedure code
 A party shall file a written application in which he is

expected to state reasons justifying his intervention.

 The application shall be filed at any time before a

decision is given.
 To intervene,a party must be interested in suit between

other parties. party’s interest is to be affected,intervener

has to gain or lose by operation of judgment.
17
4
Cont’d
 It settles a case involving many persons by a
single decision.
 Intervention makes a court to rule on cases

involving many persons concerned by a single

decision rather than entertaining separate
suits on essentially one cause of action.
 intervention is allowed if it is requested by an

indispensable party.
 Intervention may also be allowed to persons

likely to be affected by a decision given in

their absence.

17
5
Cont’d
 Effect of rejection and grant of intervention?
Article 42:intervention by public prosecutor in civil
cases.
 Civil cases do not involve the interest of the

public at large? what requires intervention of

p/prosecutor? pp intervene when the law requires
 Substantive law prescribes all of the cases

demanding the intervention of the Public

Prosecutor.
 Cases related to civil status, incapacity, marriage

and bankruptcy are cases that give rise to the

intervention of the Public Prosecutor.

17
6
Third-Party Practice [Impleader]
art 43 cpc
 is the procedural device enabling the
defendant in a lawsuit to bring into a suit an
additional party who may be liable for all or
part of the original plaintiff’s claim against
the defendant.
 It is a mechanism by which a defendant

brings a third party into a suit on the ground

that if he, the defendant, is found to be liable
to plaintiff, third party defendant will be
liable to him.

17
7
Cont’d
 Used to settle claims involving the same cause of
action/ transaction in a single suit. It aims at
avoiding separate suits over the same cause of
action/transaction.
 the defendant is not under obligation to bring a
third party into a suit. It is entirely optional and
that the defendant may claim against the third
party in a separate suit.
 The court adjudicates the claim of plaintiff
against defendant, claim of defendant against
third party defendant. Is adjudication b/n plaintiff
and third party defendant possible? If plaintiff get
permission of court to add as per article 40(2).
17
8
Requirements
 the defendant shall demand a court for the third party
practice in his statement of defense.
 In his application, the defendant is supposed to indicate
the reasons why he demands the intervention of the
third party.
 The reasons provided by defendant must indicate that
he is entitled to contribution or indemnity from such
third party.
 the defendant should mention the extent of contribution
or indemnity to be made or covered by such third party.
It means that the defendant shall state the amount of
indemnity or contribution of the third party.

17
9
Cont’d
 What if third party defendant fails to appear on the date
fixed for appearance? Article 76.
 Contribution refers to the situation where more than
one person has committed the same wrong against the
plaintiff or has the same obligation to him.eg.joint
debtors,creditors
 Indemnity refers to the situation whereby a party who is
to pay a claim is entitled to recover the amount to be
paid from another partly or wholly.eg.insurance
company,principal for agent,actors of wrong in case of
vicarious liability,suretyship etc.
 Substantive law determines whether someone is entitled
to contribution or indemnity. Interpret art.2161(1) Civ.
C &685 com.c in light of article 43 cpc?

18
0
Cont’d
 Practically, if defendant is found liable to the
plaintiff, and third party defendant to
defendant, third party defendant may pay
directly to original plaintiff. But a decree is in
favor of plaintiff against original defendant.in
favor of defendant against third party
defendant. So save time, resource why not
infavor of plaintiff against both defendants?

18
1
 Cont’d
Change of Parties:
Article 48 and the following provisions
 in civil cases death of one of the parties does not

automatically cause the termination of a suit. There is

a possibility that others can replace the deceased party
and the suit continues.
 Whether or not the right to sue survives depends on

the provisions of substantive law.

 Unless the subject of a suit is related to a personal

obligation of the deceased person, a suit is said to

have survived a person’s death.
 if one of the parties dies after the hearing of the case

is concluded and what remains is giving a decision…

article 53
18
2
Cont’d
 the change of parties may take place if one of
the parties to a pending suit assigns the
subject matter of the suit to another person.
Questions
 When we say that the right to sue survives?
 What if one of several plaintiffs or defendants

died when the right to sue survives to/against

plaintiff/defendant? what if the right to sue
does not survive?

18
3
Cont’d
 Substantive laws have to be consulted to
determine whether a right to survives.
 Article 1986 civil code: heirs of a party shall

be substituted for him … unless it flows from

nature of the contract.
 personal performance of contract by
deceased?
 Professional duties? Advocacy,medical care,…
 Claim for moral damage of deceased by heirs

which has not been initiated by the victim

during his lifetime? Article 2144 of civil code.
 Suit for injunction of defamatory words ?2044

18
4
Cont’d
 What is the effect of abatement/dismissal of
suit? Article 55
 No fresh suit shall be brought on the same

cause of action.
 Within six months of abatement/dismissal if

application has been brought to set aside it

proceeding may be continued when there is
sufficient cause for failure to continue the
suit.

18
5
Interpleader…article 293 and the ff
provision of Civ.p.c
 Interpleader is special procedure followed
where a plaintiff is confronted with a problem
that he may be liable to more than one
person on the same claim.
 A procedure provided by which a plaintiff can

force the claimants to litigate their respective

claims by bringing a suit in interpleader.
 What is suit in interpleader? Article 294

18
6
Cont’d
 It is a suit wherein a person in possession of property
or owing money which is or may be claimed adversely
by two or more persons to one or other of whom
alone he can be liable seeks to be relieved from
liability to the claimants ,or either of them, with
regards to the disposition of such property or money.
Conditions for interpleader
 Plaintiff must not claim any interest but charges,costs

 Claims must expose the plaintiff to multiple liability

on a single obligation.claims made by defendants

severally.
 There must be no collusion between plaintiff and

defendants…plaintiff must admit the obligation

18
7
Cont’d
 Restricted actions: article 298
 Procedure in interpleader:

1. Plaintiff initiate an action by filing statement

of claim.
2. Court serve copies of statement of claim on
defendants and set a date for the first
hearing.
3. Court can declare that plaintiff is discharged
from all liability award him costs,if any, and
dismiss him from the suit.

18
8
CHAPTER FOUR
PLEADINGS AND PRE-TRIAL PROCEEDINGS

Under this chapter:

 Definition of pleading
 Sufficiency of pleadings
 Types of pleadings
 Failure to plead and its consequences
 Alternative and Subsequent Pleadings
 Amendment of Pleadings
 Pretrial proceedings will be discussed

189
Cont’d
 Pleadings mean all formally written statements filed
to a court of law by parties to a suit with respect to
their respective claims and/or replied thereto.
 Branch of legal science which deals with the
principles of governing formal written statements
made to the court by parties to a suit of their
respective claims and defenses as to the suit.
 is there oral statements of claim…?
 Article 80 civil procedure code: Pleadings shall
mean a statement of claim, statement of defense,
counter claim, memorandum of appeal, application,
or petition, and any other document originating
proceedings or filed in reply thereto
19
0
Purposes of pleadings…
 provide the defendant with notice of the suit and enable
him to prepare his defenses accordingly
 provide a summary of the claims and defenses of

parties to a court, which enables a court to frame the

appropriate and relevant issues that need decision.
 Fix/determine the issues to be decided, and

in a way, limit the scope of litigation between

parties and determine the evidences to be
used by the parties. Article 248 civ.p.c.

19
1
Cont’d
 guide the parties and the court in the
conduct of cases.
 try to expedite litigation when rules of

pleading properly applied.

General Pleading Rules:
Requirements and Effects of Non-Compliance
Requirements : relates to preparation, form
and content.
 The requirement can be divided into
technical and legal

19
2
Technical requirements…
 relate mainly to the preparation and format of
pleadings.
 The registrar of a court examines these

requirements.
 The technical requirements are provided

under Articles 80(2), 222, 223,234,327-330,

etc.
 Pleading :-

19
3
Technical requirements…
 they shall be handwritten in ink, printed, or
typewritten on the prescribed paper.
 they shall be prepared in accordance with the

form prescribed by the Civil Procedure Code.

 they shall be made as concise as possible and

contain a statement of material facts on which

a party relies for his claim or defense. i.e
 legal provisions and arguments shall not be

incorporated in pleadings; a party should not

include facts on proof in his pleading.

19
4
Technical…
 Pleading shall be verified as per article 92
civ.p.c
 they shall be signed by the party or person

authorized to verify the pleading as per

article 93
 annexes must accompany some pleadings.

Articles 223 and 234; petitions and

applications filed for special proceedings that
are to be accompanied by affidavit.

19
5
Cont’d
Non-compliance with technical sufficiency:
 article 229,238,338 civ.p.c: the
registrar/legal officers reject it.
 What is the effect of rejection? Article
232,238(2)
Legal requirements:
 Article 231 CPC.

If pleading is found technically sufficient, its

legal sufficiency is determined by court.

19
6
Cont’d
 Jurisdiction and cause of action shall be
clearly indicated in statement of claim
whereas legally sufficient defense has to be
disclosed in statement of defense. article 254
 Pleading jurisdiction: article 231(1)(b),226-

228,9,10.
 Should statement of claim disclose any facts

establishing judicial jurisdiction? should the

court reject it for lack of local jurisdiction for
its failure to disclose it?

19
7
Cont’d
Pleading cause of action: article 231(1)(a)
 Pleading facts entitling the plaintiff to relief

under the law.

For claim of maintenance : relationship, ability
to earn livelihood…must be disclosed.
 Pleading conclusions rather than facts :no

cause of action.. Defendant negligently

caused injury…./defendant/driver drank
alcohol, fails to check his car,…

19
8
Cont’d
 Pleading facts negating the claim: if the
plaintiff alleges facts which affirmatively show
that he is not entitled to recover under the
law or that a defendant has a good defence.
…defendant harbours plaintiff’s wife while I was
beating her…attacked me when I attacked him
 Pleading a legally sufficient defence

For claim brought by plaintiff, if police officer

raised defense that he a police and he can do
that…254….substantive laws have to be
consulted.

19
9
Effect of legal insufficiency
 Article 232,238(2) civ.p.c,9
&10,245(3&(4),330
Major Types of Pleadings
1. Statement of Claim
 pleading submitted to a court by plaintiff. It

is also known as a complaint.

 Article 222-228: have five basic

I. Caption: the name and place of the court in

which the suit is filed, the title of the suit,

20
0
Cont’d
II. Parties : the names of the parties including their
description and address and the capacity in which
plaintiff sues.
III. statement constituting a cause of action
IV. the jurisdiction: Article 224-226 ;
 judicial and local jurisdiction can be waived.

V. Relief
Annexes
Plaintiff shall annex the following to statement of claim :
1. List of witnesses

2. List of documents

3. Original and copy of any document in his possession.

20
1
Cont’d
2.Statement of Defense
 is a pleading produced by the defendant. It is

the pleading that contains material facts on

which the defendant relies for his defense.
 Governed by Article 80(2) and 223 cpc.

Defendant may do three things in statement of

defenses:
 He must deal with factual allegations of

statement of claim
 He may raise affirmative grounds of defenses
 He may also raise counter-claim or set-off.

20
2
Cont’d
 form prescribed by the Civil Procedure Code for
the statement of defense has to be applied.
 The content of statement of defense is given

under Article 234.

 has many parts like statement of claim.

a. One is caption in which the defendant is

supposed to state the name and place of the
court to which he submits his defense, and the
number of the suit.
b. parties
c. The other part is the statement showing the
points of defense.
20
3
Cont’d
 In this part, the defendant is expected to
raise affirmative grounds of defense, which
include facts showing that the claim of the
plaintiff is inadmissible on the ground that he
is incapable, or that the court lacks
jurisdiction or that the action is barred by
period of limitation, etc
 In addition, the defendant can raise a
counterclaim or set off against the claim of
the plaintiff.

20
4
Cont’d
 the defendant must respond to each
allegation of the facts made in the statement
of claim whether he admits or denies them.
 The denial he makes must be put in a direct

manner. evasive/general denial amounts to

admission except person under disability…
article 235(2)
 Allegations not denied are deemed admitted

except damages.
 General admission is not permitted except

the damages.
 If it does not fulfill legal and technical

requirements article 229 and 238 apply. 20

5
Cont’d
 If the statement of defense is rejected, the
court shall proceed with the trail of the case.
The rejection does not mean that the case is
to be decided for the plaintiff.
 even if it is rejected, the defendant could

defend himself orally under Article 241

 What will be the consequence if the
defendant does not appear on the date fixed
for the opening of a suit, or if he appears
without statement of defense? Article 233
civil procedure code.

20
6
Cont’d
Article 236:set off:
 For a suit for recovery of money the
defendant may set-off against the plaintiff’s
demand any ascertained sum of money …it
must be liquidated…claim for money and
damage for personal injury cannot be set-off
 The sum claimed must not exceed the

pecuniary limits of the court’s jurisdiction.

 Both parties must fulfill the same character as

they fill in the plaintiff’s suit. i.e.Individidual-

individual capacity;not individual –
representative capacity.
20
7
Cont’d
Claim of counter-claim: article 234(1)(f),17(3)
The jurisdiction of the court shall depend on
the value of higher value.it is to mean that a
defendant can file a counter-claim in an
amount in excess of the jurisdiction of the court
in which the original claim was filed.
Article 238 and 239 applies for both setoff and
counter-claim
Where statement of defense contains set-off
and counter claim its legal sufficiency has to be
examined.

20
8
 Effects of Failure to Plead
variance:
 The primary purpose of pleading is to develop issues for trial.

issues are framed from allegation in pleadings.

 Failure to plead means that the plaintiff omits some facts he

could have alleged.

 The remedy for failure to plead at the beginning is to request

an amendment of pleading. In the absence of permission to

amend the pleading, the plaintiff is not allowed to raise new
issues at a trial and introduce evidence unless the court
frames issues by its own motion using the power given to it
under Article 251 &251
 Failure to plead produces effect if the defendant raises it.

However, if the defendant fails to object to a new issue raised

by the plaintiff at a trial, it means that he consents to the trial
of that issue

20
9
Cont’d
 No amount of evidence can be introduced upon
a plea which was never put forward.
 Where evidence introduced of a fact which was
not put in issue, there is a variance and it is one
ground of objection.no evidence should
produced at trial on the issue which was not
notified.
 Regarding claim of damage which arises from
contracts;if it is found that there was a
contract,no evidence may be introduced on non-
contractual liability.
 The doctrine of variance is applicable if only if
objection is raised by opposing party.
21
0
Cont’d
Failure to Deny:
 Failure to deny means that the defendant is

not replying to some points of defense

against the claim of the plaintiff. Denial
should be specific. If the defendant fails to
respond to every allegation contained in the
statement of defense, it means that he is
indirectly admitting it. Hence, if certain points
of defense are not raised by the defendant in
the statement of defense, he cannot raise
them at a trial.

21
1
Cont’d
 If defendant does not contest, no issue arises as
to that allegation.at trial plaintiff would not be
required to introduce evidence to prove that
allegations.
 Failure to deny does not amount to admission for
persons under disability. article 235
 The court may require any fact deemed admitted
to be proved at the trial stage.
 Claim relates to damage…defendant may not
know whether allegation is true or not; no way of
investigating the truth….so evidence need to be
introduced but does not tantamount to admission.
article 82
21
2
 Alternative and Subsequent Pleadings
Alternative pleadings:
 Article 224 &237
 does not mean that the plaintiff is entitled to

double recovery for the same harm.

 He is merely basing his claim on optional

grounds in order to maximize such claims or

defenses.
Subsequent pleading:
 is also known as further pleading. It means

pleading again on the same issue on which the

pleading already been made. article 239

21
3
Cont’d
 Further pleading is allowed when the statement
of defense contains counter-claim or set- off
against the claim of the plaintiff.
 As per article 215 court fee has to paid for a
defense containing counter-claim.
 eg. , the plaintiff could plead that there is
breach of contract and that he demands damage
or that there is unlawful /unjust enrichment if
no contract is found to exist. Similarly, the
defendant could put forward a defense saying
that there is no valid contract or that its
performance is prohibited by force meajure.

21
4
Amendment of Pleadings
 Article 91 and 251 ,90
 Ordered by motion of a court or by the

application of a party.
 amendment presupposes technical and legal

sufficiency.
 There may be defect in terms of what has

been claimed or stated ad it is to rectify

defects in pleadings

21
5
Cont’d
 when a party tries to produce evidence on
something which is not included in the
pleading or that the evidences produced do
not prove the contents of pleading or that a
party comes across new facts that he should
have included in his pleadings, etc
amendment may be allowed.
 the amendment is made when it is necessary

for the purpose of determining the real issues

in dispute between the parties (article 91 and
251)

21
6
Cont’d
 it causes delay of proceedings; on the other
side it protects a party from losing his
substantive rights or being affected as a
result of pleading error.
How to strike a balance between these two
interests:
 Article 91 &251: it is necessary for the

purpose of determining the real question in

dispute.
 imposition of damage on a party who
requested the amendment of pleadings

21
7
Cont’d
there is a liberal approach toward
amendment and that the request for
amendment should be taken into account in
liberal manner that permits amendment.
Pre-Trial Proceedings
Service of Process( art.94 and the ff)
If statement of claim fulfills technical and legal
requirements, the court notify the opposite
party of the fact that a suit is made against him
by issuing and serving summons or notice on
him.

21
8
Cont’d
 summon refers to a formal mechanism by
which a defendant is notified of a suit made
against him and called upon to appear on a
fixed time and date before a designated court
to answer a complaint/allegation made by the
plaintiff against him.
 It informs the defendant that a suit is made

against him.
 It also provides the defendant with an

opportunity to be heard and present his

version of a suit.

21
9
Modes of Service
 The mode of service of summons used
determines its legal sufficiency.
 Service is legally sufficient if the mode of

service used is reasonable under a given

circumstance. If the mode employed is,
however, not deemed to be sufficient, the
court cannot proceed with the case and make
a valid decision since it affects the
opportunity to be heard that is available to
the defendant.

22
0
 Cont’d
1. Personal service:
 Summon is said to be served in personal mode

if it is received by the defendant himself from

the hands of a serving officer
 it is the best mode of service
 when it is practically impossible to use personal

service that other mode of service is to be used.

22
1
Cont’d
 Another mode of service is one that is similar to
personal service, in which summon is not
actually served on the defendant in person but
Somebody else receives it but the law treats it as
if service is made on defendant in
person.96(1,2)
2. Constructive service: Article 99
When the defendant does not reside within the
local limits of a court’s jurisdiction but has an
agent who carries business on his behalf, service
can be made on the agent. The agent referred to
here is not authorized to receive summons unlike
in the mode of personal service .
22
2
Cont’d
 when summons is served on an agent in
charge of immovable property. This service is
possible if the defendant cannot be served
personally and that he does not have agent
empowered to accept service. This service is
applicable only if the suit relates to
immovable property. Article 100.
 service on the adult member of defendant’s

family; is used when the defendant cannot be

found for the service of summon and that he
does not have agent to receive summon.
Article 101.
22
3
3.substituted mode of service
 This mode of service is considered to be the least
effective mode of service.
 It is the final mode of service used when all other
modes of service are not applicable.
 This mode of service includes service by affixing a
copy of summons in public areas, publication in
newspaper, post etc.
 It is a mode used where all other modes cannot be
applicable.
 This is implied in the rule under Articles 103 and
105,106. If the serving officer cannot serve, he
shall return it to a court. Then the court orders a
substituted mode of service.
22
4
Cont’d
 The serving officer is under obligation to request
the person served to sign an acknowledgment that
he received the summons. The person served
must, in his part, sign an acknowledgement of
service. Article 102 (1) and (2).
Refusal to acknowledge? Art.103 and 105(2).
 The court orders a fresh summons or substituted

service or the court may consider that the person

is properly served and proceeds with the case.
 This is when the serving officer returned the
summons to the court and produced an affidavit as
to the facts that prevented him from serving the
summons.
22
5
cont’d
 What if after duly served, defendant fails to
appear before the court or appeared without
statement of defense on the date fixed for
submission of statement of defense?
o Article 233,70(d) civil procedure code.
o What type of order is to be given?
o Is the order to be given relies on plaintiff’s effort to
serve summon?

22
6
 part two
Under this part
1. Pre-Trial Proceedings
2. procedure to be followed on the production of evidence
and how judgments and decrees are rendered
3. Review of judgment
4. Execution of decrees
5. Res judicata and splitting of claims will be discussed.

227
Chapter one: pre-trial proceedings
1. First hearing:241-256
What are the tasks carried out by court
 Examination of parties
 Giving judgment on admissions, if any
 Decision on preliminary objections, if any
 Framing of issues
 adjudicate the case at the first hearing

without requiring a full-scale trial.

228
 Pre-trial…
I. Non -Appearance of parties
 After statement of defense brought the court holds first
hearing.
 Appearance in person is no mandatory.
 What if parties fails to appear on the first
hearing?
1. What measures are taken if both parties fail
to appear?
2. What if defendant appeared plaintiff fails to
appear?, after and on submission of
statement of defense
3. What if plaintiff appeared and defendant fails?
4. What if third party defendant fails to appear? 229
Cont’d
Action upon non appearance
Action taken depends on the party who fails to
appear?
a. dismissal
b. struck out
c. ex-parte proceeding
d. Default proceeding and default judgment

23
0
Cont’d
1. Dismissal
 If both appellant and respondent fail to appear( article

69(2))…no need of adjournment unlike India Code of

civil procedure.
 If respondent fails to appear due to negligence or

default of appellant to serve a summon ( article 70(d)

Exception if respondent appeared on the date of
presentation of appeal.
 If defendant appeared and denied claim and plaintiff

fails to appear. article 73.what if defendant raised

counter-claim or claim of set off? The court will proceed
to hear that part of the case and rules of non-
appearance of defendant applies b/c defendant occupies
a position of plaintiff as to the counter-claim or set off.

23
1
 Cont’d
2. Striking out
 What if respondent appeared and appellant fails

to appear? Art 73,cassation decision v.8 f/no

38181
 When neither defendant nor plaintiff
appeared(art.69(2)…no need of adjournment.
 If plaintiff appeared and defendant fails to

appear due to negligence or default of plaintiff

to serve summon(70(d)
 Eg If modes service have not been applied

properly when it feasible to apply.

23
2
Cont’d
3. Ex-parte proceeding
 Literally ex-parte is to mean on one side. The court

hears the plaintiff’s case and evidence and render ex-

parte decree but does not grant judgment in favor of
him on the ground of non-appearance of defendant.
 If it is proved that defendant has served duly and after

duly served if he fails to appear and when plaintiff

appeared.
 If the court is satisfied with the mode of service to the

defendant, it automatically orders Ex-parte

proceeding. (Art.70 (a)).
 It is the duty of plaintiff to convince the court whether

defendant has been served duly. the non-appearing

party will not have the right to participate in the
process of litigation.
23
3
Cont’d
 What is the difference between article 70(a) and
233?
 the Federal supreme Court decision file
No.15835,v-1, f/no 24111, 24775,v.2, 36380
v.8
What if plaintiff/appellant fails to appear on the
date of submission of statement of
defense/response as the case may be?v.1
f/no.14184
Article 199(1&2) is relevant provision.
What if defendant fails to appear on the date
fixed for submission of statement of defense?
23
4
Cont’d
 Is it possible to take an appeal on decision of
court on ex-parte order/decree? Cassation
decision v.8 f/no.36412,art 78
Default judgment/decree: a judgment rendered
against a party because of his non-appearance.
Article 43: if a third party defendant summoned
to appear fails to appear, he is deemed to admit
validity of the decree passed against defendant
and his own liability to defendant.

23
5
Cont’d
4. Default proceeding…article 233
 If defendant fails to appear on the date fixed

for submission of statement of defense, the

court order default proceeding.
 Defendant precluded from submitting written

statement of defenses and evidences.

 On the next adjournment, defendant may

appear and argue orally.

 Non-appearance of a plaintiff has no effect

here but if it prevents the adjournment to be

carried out article 192-199 shall apply.

23
6
Effect of Non-appearance
1.effect of struck out
 the plaintiff may as of right bring a fresh

action on the payment of full court fees.

 if he satisfies the court that there was a

sufficient cause for his/her non-appearance,

the original suit may continue and the
plaintiff is relieved from payment of court
fee.

23
7
Cont’d
2.Effect of Dismissal
 Appellant/plaintiff will be precluded from
bringing a fresh suit in respect of the same
cause of action. However, if there is good cause
for his non-appearance within one month from
the dismissal, the court may, after giving notice
of application to the opposite party, order
setting aside the dismissal upon such terms
and costs as it thinks fit.
 Accordingly, the court shall appoint a day for

proceeding with the existing suit.

23
8
Cont’d
3.Effect of Ex-parte-proceeding
 the court will proceed to adjudicate the suit in the

absence of the non-appearing party. The very effect

of such order is not default decree.
 the non-appearing party will not have the right to

participate in the process of litigation. Whereas, if a

third party defendant does not appear, the court
enters a default decree.
 However, the defendant against whom an order

made ex-parte or third party defendant against

whom a decree is passed may, within one month
from the day he became aware of such action, apply
to have it set aside. Article 78 Civil Procedure Code

23
9
 Cont’d
 There is a possibility that the defendant may not be
aware of the decree until the plaintiff tries to enforce
it against him, i.e., at the execution stage.
 If the defendant does not apply within that time, or if
the court finds that the summon was duly served and
that there was not sufficient cause for non-
appearance, the decree is valid and it will be
enforced against the defendant notwithstanding that
he never presented his defense. He had the
opportunity to appear and cannot have the case
responded to give him another chance.
 A party against whom ex-parte order or decree
passed may take an appeal.

24
0
Cont’d
 In case of several defendants, if the decree is
such that it cannot be set aside only against the
non-appearing defendant entitled to have it set
aside, it may be set aside against the other
defendants also. The court is doing this because
the defendants are indispensable parties. In such
case a decree against some alone cannot stand.
However, the decree against the other defendant
or defendants should be set aside only where the
decree is necessarily indivisible. Where separate
judgments can be entered against each
defendant, there is no need to set aside the
decree against the others.
24
1
 Cont’d
4.Effect of Default proceeding
 non-appearing party/the defendant, should not be

refused to be a party to the litigation.

 The only effect of such order is that he will be

precluded to exercise the procedural rights that

should be exercised on the date of his non-
appearance. he cannot exercise his right to submit
his written statement of defense.
 the non-appearing party can exercise his right to be

a part to the litigation from the date he appears in

court of law, but he loses to be benefited from those
procedural rights that should be exercised during his
non-appearance.
24
2
Cont’d
 Article 72: in India defendant has an absolute right to
appear on adjourned hearing; Sufficient cause is to
retrace his steps. But in case our Code defendant cannot
appear and participate as of right and has shown good
cause for his nonappearance to involve in the litigation.
 Article 75:proceeding with the case, dismissing or struck
out or ex-parte….against one who fails to appear or
against all.
 An action to be taken and setting aside actions shall
apply for all if it involves indispensable parties or where
a decree is necessarily indivisible. In other cases the
court can take actions which it deems necessary.
 What about non-appearance of third party defendant?
Legal provision which supports us to take an action and
its effects?
24
3
 Class work
Hypothetical case
Mr. Werku sued Mr Girmaye and Mr.Abebe jiontly to
recover a money taken away by them unlawfully.
1. What action will be taken if Mr Werku appeared and
mr. Girmaye and Abebe fail to submit statement of
defense?
2. Assume that after submitted statement of defenses.
What action will be taken if mr. Werku appeared and
mr. Girmaye and abebe fail to appear at the next
adjournment?
3. What if only mr. Girmaye appeared ?

4. What if after duly served defendants fail to appear

while plaintiff appeared?
24
4
Pre-trial…
Examination of parties : article 241
 Verification of identity of parties
 Reading pleadings
 Ask the parties for clarification of pleadings
 Asking whether each party admits or denies the

allegations of fact in the pleading of the other

party that have not otherwise been denied.
 If admitted ,the court pronounce judgment on

it.
The main purpose of the examination at the first
hearing is to help the court clarify and develop
the issues for trial
24
5
 Cont’d
Ruling On Preliminary Objection: article 244,245
 It is an objection not going to the merits of the

case that is, not involving the question of whether

the defendant is liable to the plaintiff under the
substantive law.
 court will hear the opposite party, order the

production of such evidence as may be necessary

and render a decision on the objection.
 The decision may be either dismissal or striking

out suit or rejection of objection.

if the objection is overruled, the court will proceed
on the suit.
24
6
Cont’d
 any preliminary objection not raised at the earliest
possible opportunity is deemed waived unless the
ground of objection is due to reasons such as to
prevent a valid judgment from being given.eg.
Lack of material jurisdiction.
 if a court sustains an objection, the effect on the
suit may be dismissal of the suit or the suit may
only be struck out.
 If the preliminary objection sustained is res
judicata or period of limitation, the suit will be
dismissed in other cases the suit will be struck out.
 Effect of dismissal plaintiff has no opportunity to
file a fresh suits.
24
7
 Cont’d
 The striking out of the suit shall not of its own
force preclude the institution of a fresh suit with
respect to the same cause of action.
Framing of issues
 Issue is a point on which parties disagree and on

which the right decision of the case appears to

depend.
 The issue may be either issue of law or fact.

Sources of issue:
 the allegations in the pleadings,
 the contents of the documents produced by either

party, and
 the oral allegations
24
8
Cont’d
 The advantage of framing issues is to limit
the scope of litigation of the parties during
the trial proceedings.
 if the court fails to frame correct issues, delay

and inconvenience are likely to result.

24
9
Adjudication without Trial

Under previous sessions we have seen that:

 Under article 231 statement of claim may be

rejected if it does not constitute cause of a

action (at pleading stage)
 At the first hearing the court may give judgment

on admissions (article 242)

 Where the decision in the case may depend on a

question of law
In other cases there are three devices provided by
which a case may be adjudicated without a full
scale trial.
25
0
Cont’d
 Agreement on issue: article 252
 Parties not at issue: article 254(1)

 Disposition of issues at the first hearing: article

255
1. Agreement on issue
 Parties may state the question in the form of

issue and may agree to accept decision of the

court on that issue.
 Under article 252: defendant may admit liability

but may deny amount of damages and may agree

to accept the decision of the court.
 regarding the form of a contract if parties may

agree to accept decision of the court. 25

1
Cont’d
2.Parties not at issue
 Article 254:if statement of defense alleges

facts that does not constitute a legally

sufficient defenses; if he has not joined issue
with a plaintiff, if defendant may allege facts
which may deprive him of the defense.
Eg. Publication of defamatory words which are
true with intention of injury. Truth cannot be a
defense.
The issue framed and agreed by parties have to
be single.

25
2
Cont’d
3.Disposition of issues at the first hearing
 Under article 255 parties may be at issue, but

may be resolved by evidences produced by

court without any further evidences.
 Entirely/primarily where the resolution of the

case/issue relies on documentary evidences

brought.
 Evidence which may be produced is which

parties can produce at the first hearing or

where the issue raised is question of law.

25
3
Cont’d
• Where the issues framed could be determined
without argument or evidence other than which
the parties produced ,if no injustice would result
from this proceeding.
• The court may hear additional evidence but it must

be evidence that parties can produce at the first

hearing.
• Where the issue involved is issue of law.

Generally,in determining whether the issue may be

resolved at the first hearing, the crucial question is
whether all the evidence that both parties can
produce on that issue is available at that time.

25
4
Compromise and withdrawal
A case may be discontinued by a party by way of
compromise or withdrawal.
Compromise : article 274 cpc,3307 CC
 the civil code defines compromise which
includes agreement before the institution of the
suit, civil Procedure code is restricted only on
the compromise that will be made after the suit
has been instituted.
 If the parties have compromised and files a suit,

the defendant may assert it as a defense by

filing a preliminary objection.
25
5
Cont’d
 the court will consider whether a valid
compromise has been effected in accordance
with the civil code, and finds that such a
compromise has been effected, it should
enter a judgment in terms of the
compromise.
 The judgment will be Res Judicata and will

prevent a further suit by the plaintiff on the

claim
 The court has to be satisfied that terms of

compromise are moral and lawful.

25
6
 Cont’d
Valid requirements of compromise agreement: (Art.
276)
 The name and place of the court in which the suit is

pending
 The title of the action and the number of the suit
 The name, description, place of residence and address

for service of the parties; and

 The matter to which the agreement relates

It may also settle accessory matters such as costs,

damages and execution

25
7
Contents of compromise agreement

 The name and place of the court in which the

case is pending
 Title of action and number of the suit
 name, description, place of residence,
address of service of parties
 Subject matter to which agreement relates.

Compromise may settle accessory matters such

as costs, damages and execution.

25
8
Cont’d
Withdrawal of suit( article 278 )
 a party may withdraw the suit or abandon any of
his claims against any or all defendants.
 withdrawal of suit can be made with the
permission of the court or out of court permission.
types of withdrawal of suit
withdrawal with leave (Art. 278(2)(a)&(b))
 with the permission of the court
 if a suit must fail by reason of some formal

defect/procedural; or that there are other

sufficient grounds for allowing the plaintiff to
institute a fresh action for the subject matter of a
suit or part of a claim, 25
9
Cont’d
 it may grant the plaintiff permission to withdraw
from such suit or abandon such part of a claim
 plaintiff has a right to institute a fresh action in

respect of the subject matter of the suit.

 the plaintiff shall be bound by the law of

limitation in the same manner as if the first suit

had not been instituted.
 What is formal defect?

Eg. Article 36(1) joinder of defendants where there

is no common question of law or fact; mis-jionder
of plaintiffs or failure to join indispensible parties.

26
0
Cont’d
 Suit by body corporate against directors
without resolution of General meeting .article
365(1) commercial code: no proceedings
shall be instituted against the directors
without a resolution of a general meeting to
this effect.
 Exception

 If plaintiff requested to leave to present a

better case on one day when proceeding

reached trial stage knowing that crucial
evidence was unavailable
 If plaintiff wants to bring a new suit on

different theory 26
1
Cont’d
 What if the court has no material,local and
judicial jurisdiction, the case is barred by
limitation… or technical defects?
 What if from several plaintiffs some of them

seek withdrawal? Article 279(2)

 What of one indispensable plaintiff seeks to

withdraw? Article 40(2)

26
2
 Cont’d
withdrawal without leave:out of court permission
 where the plaintiff suggested to the court for
permission to withdraw fail to satisfy and the party
decide to withdraw regardless of the decision of the
court on it.
 if the party simply withdraws the suit without asking
any permission to the court on that issue the suit
may be withdrawn.
 the ultimate outcome of withdrawal without leave to
file a fresh suit is clear i.e., he/she cannot institute a
fresh suit in respect to the cause of action but will
not necessarily prevent him from filing a 2nd suit
against the same defendants even though the second
suit is related to the first.
26
3
Cont’d
 Can the plaintiff institute a fresh suit against the
defendant on the same subject matter with
different claim?
 Eg. mr rent his house to Mr.B. lessee fails to give
due care. A brought claim and withdrew without
leave. On another next days mr B. fails to take
care of premise. Can bring fresh suit?
 When a cause a of action cease to
exisst/extinguished plaintiff should withdraw the
suit.
 Suit for performance of sale building…if the
building demolished.

26
4
 26
CHAPTER TWO 5

THE TRIAL AND OTHER

PROCEDURES  Ordinary proceedings
 the production of  Summary proceedings
evidence,
 Accelerated proceedings
 the conduct of trial, and

 the giving of the

judgment and passing

the decree will be dealt
with.
Know your rights and the
.
method of enforcing it.
 Trial proceeding
1. Trial distinguished from First Hearing:
• The purpose of first hearing is to frame iss
but the purpose of trial is to resolve that iss
• At first hearing the court examines/hears
parties with a view to understanding the iss
at trial the court hears the evidences of
parties with a view to resolving that issue.

2
6
6
cont’d
•
At first hearing the parties may not argue on the merit
of their case, or the strength of their evidence and the
weakness of the evidence of their opponent, but at trial
parties make opening and closing arguments on the
merit of their respective cases and evidence (Art 259)
• At first hearing parties answer questions about their
pleadings which the judge wants to understand, but at
trial they argue their cases, i.e. a lot is expected of
them at trial.
• First hearing is judge-dominated; judge
questions, parties answer them, trial stage is
litigants-dominated.

26
7
Cont’d
◦ No hearing of evidence on issues not
framed during the first hearing; see Art 90
 evidence is something, which serves to prove

or disprove the existence or non-existence of

an alleged fact.
 Evidence is produced to prove factual
allegation/s that is/are affirmed by one party
and denied by the other.

26
8
Cont’d
Purposes of procedural laws
 Entrenching expedite trial by eliminating

worthless evidence.
 exclusion of prejudicing and inherently
unreliable information from trial.
 protecting the privacy of the parties on learning the
truth for purposes of litigation: communication
privileges that protect conversations between
individuals who are in a special relationship.

26
9
Cont’d
Ordiary proceeding
The Hearing of Evidence at Trial
Documentary evidences are already in the file;
see arts 223, 137(3), 256
 Note that at the time of trial all documentary
evidences are already in the file annexed under
Art 223 or produced by the order of the court
under Art 145.
 No documentary evidence is to be produced at
trial (see Arts. 137(3), 256)
 But see Art 137(4) which allows the production
of documents at a trial stage to impeach a
witness, to rebut defendant’s affirmative
defense, & to refresh the memory of a witness.
27
0
Cont’d
 parties have primarily responsibility for
presenting their cases, the court shall issue the
summons in its own motion only in exceptional
circumstances, that is, only where a witness
who is likely to be able to give crucial
testimony has not been called by either party.
article 264
 Article 112 …payment of sum of money
do you send summons to the witnesses of both parties
at the same time or do you make one after the other
and if so whose witness first?


27
1
Cont’d
Summoning and Attendance of Witnesses
 Art. 223[1][a] and 234[1]…annexes
• Presumably, those witnesses will voluntarily
appear at the trial, and they may testify
without any further formalities.
• when some witnesses so named in the
pleading will not appear voluntarily or when
subsequent to the filing of the pleadings, a
party discovers another person who can give
testimony, the court will issue summon to that
witness.
27
2
Cont’d
 Order of Proceeding under Arts 258-259: Begin
by hearing the witness of a party who has the
burden of proving the issues; the other party is
required to enter defense and rebut only if the
first satisfies burden of proof (of production
and of persuasion)
 Do we have to hear all the witnesses of a party at the
same time? What if some of the witnesses failed to
appear and others not? Are we to adjourn the case or
shall we proceed hearing the witness who has
appeared?
 Remember: a proponent has to cover all the costs of
witnesses and procedure is required to cut costs of
litigation.
27
3
Cont’d
• Court should not order both parties to
produce their witnesses at the same
time; only when a party who has to
begin first i.e. the one who has the
burden of proof satisfies his burden
that the other party should be
instructed to produce his rebuttal
evidence.
• No need for a rebuttal evidence when
burden of proof is not satisfied.
27
4
Cont’d
 Article 111: witness whose name appear in list
annexed to the pleading may appear without any
summon.
 But the court may issue summon to a person whose
attendance is required,249,257,345.
 A person may be summoned to give evidence or to
produce evidence.
 The purpose of summoning witnesses is to examine
what they testify as to what they know.
 A party applying for summon has to pay costs which
defray travelling and other expenses of witnesses.
 If it is insufficient the court may order to pay
additional expenses.

27
5
Cont’d
 What if a party applying fail to pay costs ?
 What if a witness fail to appear?
 Is substituted service applicable in case of

witness?
 What if a witness whose testimony is
necessary cannot be brought before the
court?
Examination on commission
 is the examination of a witness by a person

specifically authorized to examine the

witness.

27
6
Cont’d
 For instance the witness may be physically incapable to
attend the court proceeding or he may be far from the
jurisdiction of the court or he may be about to depart
from the jurisdiction of the court before the hearing.
 Parties requested examination on witness has to pay
expenses.
 the parties are required to appear before the
commissioner in person or through their
representatives.
 Where the witness resides outside the local limits of
the court issuing the commission, the commissioner
may apply to any court within the local limits of whose
jurisdiction the witness resides for the issuance of
process against that witness.
27
7
 Cont’d
Testimony By Affidavit …article 203 -206
 another way of hearing or admitting the testimony of a witness
if such witness is required by neither party to be examined, he
may be permitted by the court to give his testimony by affidavit.
 a witness may put what he knows about the fact in issue by an
affidavit and submit the same to the court.
 if either party bona fide desires the production of a witness for
cross-examination, and that such witness can be produced,
affidavit may not be given.
 Note here that where evidence is given by affidavit, the witness
is not present for cross-examination or examination by the
court, the court or the parties would not have a chance to
observe his demeanor and other factors that affect his
credibility.
 the court should use its power of allowing a witness to testify
by affidavit in rare and exceptional cases.
[Art. 204]
27
8
Cont’d
 Art. 205 stipulate that affidavit shall be
confined to such facts as the deponent is able
by his own knowledge to prove, but on an
interlocutory application, example on the
application of a temporary injunction, they may
include facts that the deponent believes to be
true.
 In such a case it must be made clear how much
of the affidavit is based on the deponent’s
knowledge and how much is based on facts that
he believes to be true. The sources on which his
belief is based should also be disclosed.

27
9
Cont’d
 affidavits can be employed in two situations.
The first is that the party proved the facts to
the best of his knowledge, and the second is
that the party may prove some fact by
affidavit where he believes that the facts are
happening or will happen.
 Art 468 –pauperism
 Article 154:temporary injunction

28
0
Cont’d

 It is not therefore necessary to produce other

evidence or witnesses on matters that are to
be proved by affidavits. however, it does not
mean that a fact proven by affidavit is
irrefutable. In other words, it can be
challenged and disproved.

28
1
 Ordinary Proceedings

 Defendant has automatic right to appear

and defend the suit; see Art 233, 234
 Doesn’t discriminate b/n cases; can be used
almost for all cases
 Divided into several stages: pleading stage,
pre-trial hearing stage, trial stage.

28
2
Cont’d
2. Summary Proceeding (arts 284-292)
 Fast-track, avoids full-scale trial
 Right to appear and defend isn’t automatic; leave of
court is required (art 285), else judgment is for the
plaintiff
 Leave may be denied (art 287)
 If leave is granted, case turns on ordinary procedure;
art 291
 Only a claim for liquidated money is actionable under
it (art 284)
 Additional formalities such as affidavit to support
claims which isn’t typical
 the plaintiff has the option to employ it, but he/she is
not obliged to do so when a procedure is available.

28
3
 Cont’d
3. Accelerated Procedure (arts 300-314)
• Applies only to expressly listed cases, which
normally don’t involve the direct payment of money
from one party to the other as a relief
• Some cases mayn’t have defendants; non-
contentious cases
• in a number of cases, there is no provision by which
an interested party has the opportunity to appear
and oppose the granting of the application.
• a number of cases in which an application is
authorized involve only one party, and where
another party would be interested, he could move
the court to modify or set aside its order granting
the application
• Judgment not appealable, save exceptions; or has to
be made in 10 days (shorter than the 60 days
normal); see Art 306
• Appeal stays Execution (by operation of the law )see
Art 306 vs 332 28
4
Evidence consists oral testimony and real
proof(documentary and demonstrative
evidences)
Documentary Evidences
 Parties must include with his pleading original

and copies of any document in his possession

on which he relies.
 Parties must produce all remaining
documentary evidence at the first hearing,if
not it cannot be produced at trial stage except
the court ordered. art 257 &264
28
5
Documentary evidence…cont’d
 If a document is in the possession a party and a
party who has been ordered to produce a
document fails to do so the court may pronounce
judgment against him. Article 267
 What if a person who is not a party fails to produce
document fails to produce? Article 268: rules of
attendance of witness apply. document to be
produced must be described accurately in the
summon. Article 111,114,115,119
 Rules applied for documentary evidence also
govern production of demonstrative
evidences/recording,exhibits,photographes/article
146
28
6
Cont’d
 The court may send Record of any other suit
or proceeding from its own files or from files
of another court. article 145(1)
 Here sending record of any suit is if the party

seeking it cannot by himself without

unreasonable delay or expense duly
authenticated copy of record or part of it or
original record is required.145(2)
 But if the party has unauthenticated copy and

opponent admits its validity ,there is no need

to send original record.a rticle 139(1)
28
7
Cont’d
 primary responsibility for attendance of
witnesses and production of evidence relies
on parties but the court may also order
attendance and production when it thinks
necessary.
 Authentication and best evidence rules are

the two rules those govern admissibility of

documents.
 What the rule of authentication?
 What is the rule of best evidence rule?

28
8
 Authentication is a mechanism of ascertaining
authorship of the document (who author of a
document is?) and genuineness of the
document sought to be introduced.
 Unless a documented is authenticated it may

not be admitted as proof.

 It is for its reliability

Modes of athentication:
 proof by signature,handwriting,admission by

writer

28
9
Best evidence rule
 states that the contents of a document can

only be proved by adducing the original

document itself.
 secondary evidence, such as a copy or exact

copy of original/facsimile/, will be not

admissible if an original document is
available.

29
0
Cont’d
Conduct of The Trial: Order of Proceeding
Burdon of proof:
 refers to the obligation to prove allegations, which are

presented, in a legal action.

 refers to an obligation in a particular context to defend a

position against a prima facie other position.

 the obligation to provide evidence necessary to establish

a disputed fact or a degree of belief in the mind of the

court.
 Two concepts are involved under burden of proof: burden

of persuasion and burden of production/going forward

with the evidence.
 Burden of persuasion is the ultimate burden of convincing

the court of an issue, and it does not shift during the

trial.
29
1
 The burden of going forward with the
evidence is on the plaintiff at the beginning
of the trial. But this burden may shift to the
defendant if defendant admits the allegations
of the statement of claim and has raised what
we have called affirmative defenses.
 Or it consists legal burden and evidentiary

burden

29
2
Cont’d
1.Burden of Production
 A party who has a claim or an allegation bears

the burden of producing evidence to enable

the court believe that there is an issue in the
case.
 A party who asserts has a burden of
production.
 It is the obligation of a party to introduce
evidence sufficient to avoid a ruling against
him on the issue.
 the person shouldering the burden bears risk
of losing the case.
29
3
Cont’d
Burden of persuasion
 it is adducing enough evidence to raise an

issue must be distinguished from the burden

imposed on a party to persuade the tier of
fact to find for him/her any particular issue.
 This burden of persuasion is beyond
reasonable doubt in criminal cases and by
preponderance of Evidence in civil
actions/they are standard of proofs/
 Preponderance of evidence:

29
4
Cont’d
 the general rule is that the party who has
burden of proof has the right to begin.in
other words, the party who is entitled by law
to begin the proceeding shoulders the burden
of proving the issue in the case.
 Who begin the proceeding? As a rule plaintiff.
 The defendant also bears burden of proof as

to the grounds of defense he has already

raised.

29
5
Cont’d
 Burden of proof:
 dependent up on the issue to be proved or the
allegation (claim) rose by the party.
 It is to mean that as the issue in a case varies the
burden to proof shifts from one party to the
other. Where the plaintiff is entitled to begin the
proceeding, he/she is the one to prove the issue
so that he/she bears the burden of proof.
However, in case of affirmative defense where
the defendant is entitled to begin, he shoulders
the burden of proof on the grounds he may raise
as a defense.
29
6
Cont’d
Production of Evidence by the Parties
 The primary responsibility for the
examination of witnesses rests with the
parties, though the court has broad power
with respect to the examination of witnesses.
manner of examining witnesses
Witness? A person who testify orally what he
saw, heard,…
Testimony: evidence given under aoth by
witness

29
7
Cont’d
there are three stages to examination of witnesses.
These are:
 The examination-in-chief;
 The cross-examination and
 The re-examination

During examination in chief the proponent tries to

develop the testimony of the witness in the light most
favorable to him, during-cross-examination, the
opponent tries to discredit/destroy that testimony, and
during re-examination, the proponent tries to
minimize the effect of cross-examination.
Proponent/opponent?

29
8
Cont’d
Examination in chief
 the question put in examination-in-chief shall only relate to

facts, which are relevant to the issue to be decided and to such

facts of which the witness has direct or indirect knowledge.
 Is hearsay admissible in Eth? Lack of cross examination and

oath of declarant if that witness referred to him. Principles and

exceptions of it?
Cross-examination
 is the method by which a party to an action probes the

credibility of an adverse witness.

 is an absolute right and not merely a privilege

 Cross-examination is a constitutional right more in criminal

case.
 described as the greatest legal engine invented for the

discovery of truth.
29
9
Cont’d
Re-examination
 to repair/cure any damage done to evidence-

in-chief by asking further question on the

matters which arose during cross-
examination.
 results from the interaction between
examination-in-chief and cross-examination.
 confined to issues that were covered in

cross-examination

30
0
 Cont’d
 The purpose of the rule forbidding leading questions
on examination-in-chief [and by implication in re-
examination] is to prevent a witness who is quick to
adopt the suggestion of the examiner from saying
something that he would not say otherwise and the
very purpose of cross examination is used to
destroy the credibility of witness of the other.
 The testimony must be that of the witness and not
the examiner; the examiner cannot put words in the
mouth of the witness, so to speak.
 In other words, this is managed to limit the
proponent in his examination of the witness and
ensure that the testimony is genuinely of the
witness.
30
1
Cont’d
 there is no hard and fast rule as what
constitutes to leading question but could be
determined by the form of the question and
the tone in which it is asked
 it is only where the question itself suggests

the answer which the examiner wishes to

receive that it is considered to be leading.
 the most common example of leading
question is one where the examiner
concludes with a positive suggestion such as
“didn’t you?” or “weren’t you?”.

30
2
Cont’d
The court may permit asking of leading questions at any
time(article 263(2). Where the court permit?
 When the witness is being examined as to what

introductory matters such as name, age, occupation and

address, and to save time, the examiner can simply
start “your name is……, isn’t it?” this is not
objectionable, since the substance of the witness’s
testimony is not involved.
 where the witness cannot remember some or all of the

matters as to which the testimony is sought.

 to assist child witnesses who have difficulty in
testifying.
 To examine hostile witnesses:witness who give evidence

against his proponent.

30
3
Power of the court before and
during production of evidences
systems of litigation
 although Ethiopia adopted adversarial system of litigation
and party presentation Civil procedure code empowered
to examine witnesses and order production of documents
at trial.
 the primary responsibility for the examination of
witnesses rests on the parties, but the court is also given
broad power with respect to the examination of witnesses.
 under the adversarial system of litigation, the role of the
court is minimal in relation to examination of witness.
 Ethiopia has adopted the adversarial system of litigation
and the principle of party presentation but modified by
giving the judge a potential degree of control over the
conduct of the litigation.
30
4
Cont’d
 The principle of party presentation which is one
of the hallmarks of the adversarial system is
modified in our code as follows.
THE POWER COURT
 to order amendment of pleadings on its own
motion,
 to frame issues for trial.
 the court has the power to put a question to a
witness at any time during the examination.
 the court has the power to call witnesses, which is
not mentioned by either party. Article 264(2)

305
Cont’d
 Can order any person to produce
documents
 Rehearing/recalling a witness, Art 266
 Inspecting property in dispute, Art 272
 Local investigation, Art 132
 Investigation of Accounts, Art 134
 Verification, Art 136:
rights of parties
 Open/public trial(261(3),evidence should
not be heard secretly. decision of the court
has to rely evidence heard publicly.
 Interpretation of working languages of the
court… article 262
30
6
Cont’d
Methods of impeaching credibility of witnesses
 the witness is biased in favor of the
proponent or against the opponent,
 he has made prior statements inconsistent

with his testimony in court,

 he has a poor reputation for telling the truth,
 he has been convicted of certain criminal

offences reflecting on his trustworthy.

30
7
Judgment and decree :
art. 273,180-191.
 What is judgment? the official and authentic decision of
a court of justice upon the respective rights and claims
of the parties to an action or suit therein litigated and
submitted to its determination.
 final decision of the court resolving the dispute and
determining the rights and obligations of the parties. It
can also be defined as a decision or sentence of the law
given by court of justice or other competent tribunal as
a result of proceedings instituted therein".
 What is a decree? operative part of judgment which is
executable
 Final stage of civil suit which culminates it.
 After the suit has been heard, the court pronounce
judgment in open court.
30
8
Basic features…
 It should be a decision given on the basis of
the law and pronounced publicly (officially).
 It should be given after the litigating parties

submit their case for determination at the

disposal of the body giving judgment.
 Judgment should also be given by the
competent tribunal to dispose the particular
case before hand.
 It should contain a determination as to the

respective rights and duties of the disputing

parties.
 Judgment is the final adjudication of a case

30
9
contents
 Judgment shall be in written, signed and
pronounced by judge/presiding judge.
 Where the case has been heard by more than
one judge the decision of the majority shall be
the judgment of the court.
 Requires skill and knowledge of law.so
judgment writing is an art.
 Decree is the last part of the judgment,
embodies as to who should bear costs and
expenses, mention as to the right of the party
who is favored by the judgment.
31
0
Generally, Ethiopian courts which give judgments at
their first instance jurisdiction exhibit the following
format.
 Name of the court rendering the judgment and its

bench (at the left top corner)

 Number of the file and date at which judgment is

entered(at the right top corner)

 Name of the judge(s) presiding over the bench (at

the middle).
 Name of the plaintiff and his/her attorney (if there

is any)
 Name of the defendant and his/her attorney (if

there is any)
31
1
Cont’d
 The judgment, Which should necessarily include:-
◦ Summary of the case
◦ The issue(s) framed for determination.
◦ Mention as to the hearing of the parties and their
evidences
◦ Mention as to analysis of facts, evidences and the
relevant laws
◦ Application of the pertinent legal provision to the case.
◦ Decision of the court along with the reasons for making
the decision.
 The Decree which among other things should
necessarily make mention of the respective rights
and duties of the parties involved in the case.
31
2
Cont’d
 In case of decision by appellate court the same
format may be followed except of the name of
the parties, but In relation history of the case
there may be d/ce.
In relation cassation decision the following format
followed.
 File number of the cassation judgment
 Date on which the judgments is rendered.
 Names of the five judges
 Name of the parties and their attorney, if there is any.
 The judgment-which, among others, incorporates

31
3
Cont’d
◦ A sentence with a view to introducing the overall nature of
the case in a manner that the case directly relate to some
area of law.
◦ A brief story of the case.
◦ The relief sought and the decision of the court which first
entertained the case along with its reasoning.
◦ Decision of the appellate court with its reasoning
◦ Grounds of appeal stipulated by the applicant in relation to
basic error of law.
◦ The reaction/response of the bench with panel of three
judges with in the cassation division as to the reason why
the case needs to be reviewed by the cassation bench. (This
includes the area of law which should be investigated by the
panel of five judges in connection to the factual background
provided in the case, i.e. the legal issue that needs scrutiny
by the cassation bench (panel of five)).
31
4
Cont’d
◦ A detailed analysis of the relevant area of law and
mention of the pertinent provision of the law and
the manner of interpreting same.
◦ Critique on the decision and reasoning of lower
courts separately or collectively.
◦ Decision of the court of cassation.


 Decree, which usually includes:-



◦ Mention as to the affirmation, modification

reversal or remand of the lower court's decision
separately or collectively
◦ Mention as to costs and expenses

31
5
Cont’d
◦ Mention as to the closure of the file and order as
to the return of the file to the archives
◦ Mention as to which court should take the
responsibility of executing the decision of the
cassation bench.
◦ Mention as to the dismissal of any temporary
order given by the cassation court.

31
6
FEATURES OF GOOD AND BAD
JUDGMENTS AND JUDGMENT
Features of good judgment writing
 Clarity
 Comprehensiveness
 Relevancy and Irrelevancy of Facts; Evidence

and Law
 Logical progression coherence
 Organizational structure
 Citing documents ,evidences and laws
 Not missing Issue framed:
 Judgment on the basis of evidence/authority

31
7
Features of bad judgment writing
 Hypothetical cases
 Absence of Balance
 Laconic Judgments: too short which lack

necessary history and other elements of

judgment
 Lopsidedness
 too long judgment which incorporates all

proceedings
 Language to be sober and temperate.
 Acronyms and abbreviations

31
8
Provisional Remedies
 They remedies/procedures which come when
a proceeding is initiated by the plaintiff and
the plaintiff and the defendant demand a
temporary relief until the case is disposed.
1. Arrest and Attachment before Judgment
 The former one security for appearance and
the latter one security for production of
property before judgment.
 What is there difference? what purposes are

served by the?

31
9
 Cont’d
Arrest before Judgment [ article 147 ]
 applicable only to suits not involving immovable
property. why ?
 If the suit involves immovable property, the
defendant’s interest in such property may be
considered sufficient security for his appearance.
 a warrant of arrest may be issued against the
defendant where the court is satisfied that
conditions stated under article 147(1) fulfilled
 If defendant pays to officer entrusted with
execution of the warrant, he shall not be arrested.
 Defendant may not be detained for more than six
months if fails to furnish security.
32
0
Cont’d
 the purpose of these provisions is to require
the defendant to furnish security rather than
to detain him.
Attachment before judgment ( article 151)
 The rules related to security for production of

property are designed to prevent the

defendant from disposing of or removing his
property so as to prevent execution.
 the action is taken entirely against the
property, and it is applicable to all suits,
including those involving immovable property.

32
1
Cont’d
 Such action is to be taken where the court is satisfied
that the defendant, with the intent to obstruct or delay
the execution of any decree that may be passed
against him, is about to dispose of the whole or any
part of his property or is about to remove such
property from the local limits of the court’s jurisdiction
 Differences of article 147 and 151
 Absconding vs. disposing of property
 Suit involves only Movables vs. all movable and
immovable
 Action is against person vs. against property
 Security for appearance vs. security for production of
property

32
2
Cont’d
 attachment before judgment does not affect
the rights existing before the attachment of
persons not parties to the suit, nor does it bar
any person’s holdings a decree against the
defendant from applying for the sale of the
property under attachment in execution of his
decree against the defendant.
Temporary injunction ( article 154)
 An injunction is an order restraining a party

form doing a particular act or requiring him to

do such an act.

32
3
Cont’d
 If any property in dispute is in danger or
threatens to remove or dispose of his
property.
Interlocutory orders
 any order that the court considers necessary

or expedient to be made pending the

determination of the suit.
 Interim sale
 Other orders
 Appointment of receivers

32
4
Cont’d
Habeas Corpus
 It is literally a Latin word. In Latin, Habeas is
to mean, "You have the body".
 A Habeas Corpus petition is a petition filed

with a court by a person who objects to his

own or another's detention or imprisonment.
 Civil procedure code article 177,15(2)(i)
 Proclamation no.25/96 art 5(10)
 FDRE constitution article 19(4): if the police

or law enforcer fails to bring timely & to

provide reason

32
5
 Cont’d
 ICCPR: Article 9(1):Everyone has the right to liberty
and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds
and in accordance with such procedure as are
established by law.
9 (4):Anyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings
before a court, in order that that court may decide
without delay on the lawfulness of his detention and
order his release if the detention is not lawful.
 Art 177 CIV.P.C : who restrained otherwise than civil

and criminal procedure .

32
6
Cont’d
 the procedure by which a person illegally
detained may obtain release from such
detention.
 It is a civil remedy.
 Article 8(1) civil code: Every physical person

shall enjoy the rights of personality and the

liberties guaranteed by the Ethiopian
Constitution.

32
7
Cont’d
Procedure in Arbitration : article 315-319
Arbitration is a dispute resolution process in which
the disputing parties present their case to a third
party intermediary (or a panel of arbitrators) who
examine all the evidence and then make a decision
for the parties.
decision is usually binding. Like court-based
adjudication, arbitration is adversarial. The
presentations are made to prove one side right, the
other wrong.
Thus, the parties assume that they are working
against each other, not cooperatively.

32
8
Cont’d
 Arbitration is generally not as formal as court
adjudication, however,the rules can be
altered to some extent to meet the parties’
needs.
 Arbitration can be either voluntary or
mandatory and can be either binding or non-
binding.
 it has both advantage and disadvantage.
 it takes less time going through arbitration

than going to court.

32
9
Cont’d
 may help to preserve the business
relationship and increases the level of
confidentiality.
 the ability to select a decision-maker with

requisite levels of experience, knowledge and

skill.
Drawbacks
 Arbitration is adversarial: it does nothing to

create win-win solutions or improve

relationships.

33
0
Cont’d
 arbitration takes decision-making power
away from the parties.
 there are issues that are not subject to

arbitration.
 Article 315(2) of the Ci.Pr.C states that:

administrative contracts as defined in Art.

3132 of the Civil Code or in any other case
where it is prohibited by law are not subject
to Arbitration.

33
1
Cost : article 462-466
 court litigation requires cost. This cost includes all
expenses which the court litigation requires which
related with payment of court fee, attorney fee,
transportation fee, clerical expenses and other
costs, which are directly related with the very
existence of the litigation.
 it is the judgment creditor who claims for recovering
the costs of litigation but not all the time that the
judgment creditor succeeds to get what he claimed.
 it is the discretionary power of the court to decide
as to whom or out of property and to what extent
such costs are to be paid.

33
2
Cont’d
 if the judgment debtor is ordered to pay the
costs, judgment creditor shall prepare an
itemized bill of costs showing the expenses he
has incurred in the suit.
 The court then fixes the cost to be paid, after

giving the other party to challenge the claim.

 like the judgment decision on cost is
appealable.
 Unsuccessful party pays if the court ordered
payment of costs.
Is it on original file or new file is opened to
decide cost?
33
3
 Chapter three
Review of judgment

 Parties to the litigation may dissatisfy with

decisions of the courts.so they may seek the
mechanisms of review of those decisions.
 there are three ways of reviewing a judgment.

These are reviewing before the court which

rendered the judgment, before an appellate
court and before the court of cassation.

334
Cont’d
Reviews by Court of Rendition
 the conditions whereby the court of
rendition /which rendered judgment revises
its own judgment.
Bases of review by court of rendition
 Procedural Irregularity( article 207-212)
 Newly Discovered Evidence ( article 6) ,and
 Opposition( article 358)

33
5
Cont’d
1. Procedural Irregularities
What is the difference b/n it and mistakes?
Mistakes:
 The court may; on its own motion or on motion

of the parties, correct any clerical or

arithmetical mistakes in the summons,
judgment, decree or order or any errors arising
in those documents from any accidental slip or
omission, and
 such mistakes or errors do not constitute
irregularities.

33
6
Cont’d
 Such error can easily be corrected and do not
affect the validity of the proceedings.
 But procedural irregularities are non-compliance
with the provisions of the Code and it affects the
validity of the proceeding.
 If it has occurred prior to the taking of the
preliminary objections or during the course of the
proceedings, the party affect­ed must raise his
objection at that time.
 In order to review its judgment; such irregularity
must substantially affect the decision of the case
on the merits but procedural irregularity itself
doesn’t guarantee revision.
33
7
Cont’d
 even if the irregularity might have affected the
judgment that was given, the proceedings will
not be set aside if the irregularity can be
corrected.eg. Claim and set off…failure to
enter a judgment for balance.
 where the proceedings are set-aside in part,

any step taken prior to the occurrence of the

irregularity shall not be affected.
 unless an application to set aside the
proceedings on grounds of irregularity has
been made to the trial court, the occurrence of
the irregularity may not be taken as a ground
of appeal.
33
8
Cont’d
 The exception would be an irregularity arising
from an alleged lack of material jurisdiction or
one alleged to exist in the judgment or decree.
 Appellate court may correct irregularities which
may occur in the proceedings in w/c judgment
appealed from was given.
 But where irregularity prevents a valid judgment
from being given appellate court may quash those
proceeding and shall order retrial of the case.
 Any irregularity is deemed to have been validated
where no appeal is taken from the judgment or
where the judgment is confirmed by the appellate
court.
33
9
Cont’d
2. Newly Discovered Evidence
 Discovering new evidence by itself is not

enough for someone to claim for revision of

the judgment of the trial court.
 Where no appeal taken from the
judgment/decree/order from which an appeal
lies or no appeal lies aggrieved party may
apply to court of rendition.
 An application for review by the court of

rendition cannot be filed if an appeal has been

taken.
34
0
Cont’d
 An application could not be filed even if the
appeal were filed too late and were thus
dismissed.
 if an appeal was taken and dismissed on the

ground that an appeal did not lay from the

decision, an application for review could be
filed, since such an application is authorized
whenever an appeal cannot be taken.
What if new evidence discovered after an appeal
has been preferred? After decided by appellate
court?
34
1
Cont’d
 An application shall contain the same
particulars as memorandum of Appeal.
 Shall be filed within one month of discovery of

the grounds
 It shall be supported by an affidavit
 On granting it ,a notice has to be given to

opposite party to enable him to appear and

heard.
 The court may order rehearing or may make

other orders
 No appeal shall lie from any decision granting

or rejecting an application
34
2
Cont’d
Criterion :
 the evidence must be discovered after the

judgment is rendered,
 the newly discovered evidence must affect the

decision, and
 the evidence must be of such nature as to

suggest improper conduct, which tainted the

judgment with fraud. i.e., forgery, perjury,
bribery or the like.

34
3
Cont’d
3. Opposition
 Opposition can be raised by a person who,

though not a party, is affected by the

judgment.
 Any person who should or could have been

made a party to a suit and whose interests

are affected by a judgment in the suit may, if
he was not a party to the suit, file opposition
to the judgment before the judgment is
executed.

34
4
Cont’d
 indispensable parties, persons who are the real
parties in interest, and persons who, as a result
of the decree, will be liable for contribution or
indemnity to the unsuccessful party may file an
opposition.
 filing of opposition is to enable a person who is

affected by the judgment, but who was

probably unaware of it at the time of rendition,
to prevent the interference with his interests
that will result if the judgment is executed.

34
5
Cont’d
 An opposition shall be in the form of petition.
 A petition shall be accompanied by an affidavit

of the truth of facts stated in it.

 An application for stay of execution may be filed

with an application.
Effects:
 The court fix the date of hearing

 Parties to the previous case summoned and copy

of petition served.
 Confirmation,variation or set asidal of the
judgment opposed to.

34
6
Reviews by Appeal to a Higher Court
 An appeal may be defined as an application by a
party to a higher, or as it is called, an appellate
court, asking that court to set aside or revise a
decision of a subordinate court.
 If lower courts committed errors appellate court
may reverse its decision,if no error committed it
confirms the decision and in some cases the
error is such that it can be corrected by varying
the judgment.
 An appeal, then, means a review of the case and
not a retrial of the case by the appellate court.
34
7
Cont’d
Right to appeal.
 Either party may appeal against any final

judgment.
 The party taking the appeal is called the
appellant, and the party against whom the
appeal is lodged is called the respondent.
 both parties may be dissatisfied with the

decision and if so, both may appeal. If a party

in favor of whom the court decides take an
appeal his appeal cross appeal, so that party is
cross-appellant, and the other one is cross
respondent.
34
8
Cont’d
 A party may only appeal where he has been
adversely affected by the judgment, with
which he is challenging the decision of the
trial court.eg. Defendant pleaded alternatively
as there is no contract ;if there was a contract
it wasn’t performed due to Force majeure. If
court ruled that there was a contract but
nonperformance was due to force majeure.
 The judgment appealed from is presumed to

be correct, and the burden is on the appellant

to show that it should be reversed or varied
34
9
Cont’d
 Where an appeal lies, but a remedy is available
in the court, which gave the judgment or
order, no appeal may be lodged until such
remedy has been exhausted.
 There is one appeal as of right.
 Where the appellate court confirms the
judgment, a further appeal does not lie. how­
ever, If the judgment is varied or reversed, a
second appeal lies to the next highest court.
 There is no provision for a third appeal…if
cases begin from social courts
35
0
Cont’d
 an applicant who has exhausted his rights of
appeal may petition to the court of Cassation for
revision
Types of Appeal
 There are Appeal on Judgment and Appeal on

Orders (Interlocutory Appeal).

1. Appeal on judgment
 any application for appeal on merit of the case;

any application for review of orders made by the

court at any level of the litigation is not
considered as appeal on judgment unless it is
proved that such judgment is on the merit of the
case;
35
1
Cont’d
2.Appeal on Orders (Interlocutory Appeal)
 an appeal from an interlocutory matter, a

matter on which the court has rendered a

decision, but the decision does not finally
dispose of the case.
 an order on a motion for adjourn­ment, a

decision on preliminary objections, a ruling

on the admissibility of evidence and a
decision on an application to sue as a pauper
may be interlocutory orders.

35
2
Cont’d
 interlocutory appeals are not permitted but any
such decision or order may be raised as a ground of
appeal when an appeal is made against the final
judgment.
 Exceptionally a person may appeal from any order
directing his arrest or detention, or transferring
property from one party to another or refusing to
grant an application for Habeas Corpus.
 b/c they do involve restraint of a person or
deprivation of property, and it was decided that a
person should be entitled to an immediate ruling on
the validity of the detention or transfer.

35
3
Cont’d
Grounds of Appeal
 In the memorandum of appeal, the appellant

must set forth his grounds of appeal, the

grounds on which he objects to the judgment
from which the appeal is taken.
 must be stated concisely and without
argument;
 where there is more than one ground, each

ground shall be set forth separately and

numbered consecutively.

35
4
Cont’d
 the appellate court, in deciding the appeal, is
not confined to the grounds of objection set
forth in the memorandum of appeal or argued
by leave of court. It may decide the case on any
ground.
 But, the respondent must have been given the
oppor­tunity to contest the ground of objection
on which the court is basing its deci­sion.
 except where the court permits the introduction
of new evidence, the appellant may not raise any
fact, which was not in evidence( facts , issues or
objections) in the subordinate court.

35
5
Cont’d
 the appellant may not raise new issues for the
first time on appeal.
 trial is limited those issues framed at the first

hearing or subsequently by amendment, and

the only evidence introduced at trial relates to
those issues.
 certain objections are waived if not raised

during the trial court, i.e., at the first hearing,

and, of course, they cannot be raised on
appeal.

35
6
Cont’d
 review on appeal is to be restricted to the
questions that have been decided in the
subordinate court.
 exceptions to the general rule: lack material

jurisdiction and failure to join indispensable

parties and new legal arguments may be
raised at appeal.

35
7
Instituting Memorandum of Appeal
a. Memorandum of appeal: article 327 and 328
b. Time of appeal: art 323: 60 days and as per substantive laws
labor law allows 30 days to take an appeal in relation to
labor dispute

 Article 154(1),138(3) proc.no.377/2004

to appealed out of time: leave to appeal within 10 days. If
application granted memorandum of appeal has to be instituted
within 10 days.

35
8
Cont’d
Cross objection:340
 no substantive distinction between a cross-

objection and a cross-appeal, and the same

grounds of attack may be raised by both
methods.
 the filing of a cross-objection is merely the

device by which a respondent who did not file

a cross-appeal may attack the decree after
the unsuccessful party has taken his appeal.


35
9
Cont’d
Additional parties :
 The appellate court has the power with

respect to persons who were parties to the

original suit but who were not made parties
to the appeal.
 Where it concludes that such a person is

interested in the result of the appeal, it may

direct that he be made a respondent.article
40(5)

36
0
Cont’d
Stay of execution: article 332-334
 Taking an appeal does not operate to stay the

proceed­ings or to prevent execution of the

decree.
 can be stayed only upon a showing that
substantial loss will result if the stay is not
granted and that appellant's furnishing security
for the performance of the decree.
 A stay of execution may be ordered by the

appellate court or by the court or by the president

of the court, which rendered the decree

36
1
Cont’d
 the subordinate court should only order a
stay if an appeal has not been taken.
 after the decree has been executed, an

application for a stay of execution cannot be

entertained.
 there are two approaches to the granting of a

stay: granting a Stay as of course and

granting a stay only in exceptional cases.
 the Civil Procedure Code adopts the latter

approach.

36
2
Cont’d
Procedure on Appeal
Hearing: fixes the date of hearing appellant. it may dismiss

the appeal without calling on the respondent to appear if it

agrees with the judgment of the subordinate
court.art.3337
If not dismissed: summon with copy of MoA o respondent…
art 338.Appellant begin, respondent reply and finally
appellant address the case.
Written reply and counter reply may be ordered…art 339.
framing issues,

additional evidences,

review of finding fact,

judgment on appeal:reversal,remand,confirmation

Pronouncement of judgment

36
3
Framing issues: article 343
 If, during hearing the appeal, the appellate
court concludes that the sub­ordinate court has
omitted to frame or try an issue or to determine
any question of fact which is necessary for the
decision of the suit on the merits, the appellate
court may frame those issues and refer them to
the subordinate court, which is to take the
evidence on those issues.
 The subordinate court does not review its
decision in the case; it merely takes the
evidence, makes findings, and submits the
evidence and finding to the appellate court
36
4
Additional Evidence :art 345
 The general rule is that the parties are not permitted to
produce such evidence. All issues must be raised at the
trial so that the court can render a final judg­ment on
the merits.
 there are three situations where the introduction of new

evidence on appeal is authorized.

These are:
 the subordinate court refused to admit evidence that

ought to have been admitted;

 the appellate court requires and document to be or any

witness to be examined to enable it to pronounce

judgment; or
 there is ‘substantial cause,’ justifying the production of

the evidence. article 345of the Cv.Pr.C

365
Review of Findings of Fact
 there are two approaches on this issue. The first
approach is, that the appellate court will be
dependent on the findings of fact made by the
subordinate court. The other approach is, the
appellate court may determine on the findings of
facts.
 In Ethiopia, the appellate court is not bound to accept
all findings of fact made by the subordinate court.
 the appeal is not to be a retrial of the case, it follows
that to some extent, the appellate court must accept
the subordinate court's findings of fact.

36
6
Cont’d
 Ordinarily the appellate court will not have
heard the witnesses and must base its
decision on the record and any documentary
evidence.
 where the findings of lower court rest on

written evidence or undisputed oral evidence

and the question is what inferences shall be
drawn from the evidence, the appellate court
is in as good position to draw those
inferences and should not be bound by the
findings of the subordinate court.
36
7
Judgment on Appeal
Reversal for substantial error: art 348
 the decree should only be reversed or varied

if the subordinate court committed

"substantial error," which affected its
decision.
 decree should be reversed because of
procedural errors only where those errors
affected the power of the trial court to hear
the case or denied a party a fair trial.

36
8
Cont’d
Remand: article 341
 Remand is a legal term which has two related but distinct

usages. Its source is from the Latin re- and mandare,

literally "to order." It evolved in Late Latin to remandare,
or "to send back word." It appears in Middle French as
remander and in Middle English as remaunden, both with
essentially the same meaning, "to send back.
 Remand is, therefore, an action by an appellate court in
which it remands, or sends back, a case to the trial court
or lower appellate court for action. before the appellate
court ordering remand, it must have concluded that the
decision on preliminary point should be reversed.
 It must also conclude that the disposition of the case ,as
a result of the decision on the preliminary point, was
erroneous

36
9
Powers of Appellate Court
 It determine the case notwithstanding that its
decision proceeds on a different basis than to
decision of the subordinate court. article 342 of
the Cv.Pr.C.
 may pass any decree or order, which ought to
have been made by the subordinate court and
may make any order or decree that the case may
require.
 under Art. 40(5) to join as a respondent any
person who was a party to the original
proceedings, but who was not a party to the
appeal.
37
0
Cont’d
 the court may reverse or vary the decree in
favor of a person who is not a party to the
appeal. If the decree appealed from proceeded
on a ground common to all.
Pronouncement of judgment
 the judgment must contain the points for

determination, i.e. the grounds of appeal as

set forth in the memorandum of appeal and
the further questions, if any, de­veloped by the
appellate court, the decision, and the reasons
for the decision.
37
1
Cont’d
 the operative part of the judgment must be reduced to a
decree
 the appellate court may either give the necessary
direction for execution itself or may delegate the
execution to the subordinate court.article 183(1) (f) of
the Cv.Pr.C.
 Certified copies of the judgment or decree or both are
to be furnished to the parties on application. A certified
copy of the judgment and decree also are to be sent to
the court, which passed the decree appealed from.
There they must file with the original proceedings in the
suit, and an entry of the judgment the appellate court
will be made in the register of civil suits.

37
2
The Second Appeal

 it is to mean that it is an appeal against the judgment

of the appellate court, which varied or reversed the
judgment appealed from. If the appellate court
confirmed the judgment of the first instance court,
although on a different ground, a second appeal does
not lie.
 No provision clearly govern it.
 is to be a review of the decision of the first appellate
court varying the judgment appealed from and not a
review of the decision of the trial court.
 should be limited to that aspect of the decision of the
appellate court varying or reversing the judgment of
the first court.

37
3
Restitution : art 349

 the taking of an appeal does not prevent execution of

the decree unless a stay is ordered for sufficient
cause. It may be, then, that the judgment in favor of
one party will have been executed, and, on appeal,
that judgment will have been reversed. In such a case
the successful appellant is entitled to restitution, and
he must make his application for restitution in the
court of first instance. That court must cause such
restitution to be made, as will, so far as possible,
place the parties in the same position as they would
have occupied but for the decree or part of the decree
that has been varied or reversed.

37
4
Cont’d
 where the appellate court has required the
respondent to post security for restitution, it
would seem that the application for
restitution should be made to the appellate
court

37
5
Revision in Court of Cassation
 According to Art. 80 (1) & (2) of the Federal
Constitution of Ethiopia, the Federal Supreme
Court and the State Supreme Courts have the
highest and final judicial power over Federal and
State matters, respectively. Besides, sub 3(a) of
the same Article empowered the Federal Supreme
Court to exercise power of Cassation over any
final court decision containing a basic error of
law. The State Supreme Court also has given the
same power on State matters by Article 80(b) of
the Constitution.
 Proclamation no. 454/2005

37
6
Cont’d
 a party may take an application for revision in
Court of Cassation, only after he/she has
exhausted all his rights of appeal
 unlike the appellate court, the court of

cassation only reviewed the decision of the

lower courts if it has an error of law, not error
of fact. The parties to the court of cassation
are named as “applicant,” the one who claims
reviewing of the judgment of the lower court,
and “respondent,” the other litigant party.

37
7
Cont’d
 Procedures: of cassation not specifically
raised in CPC.
 there is a hearing on the petition, and this

hearing would be held before the court of

cassation. If the court believes that the
petition is without merit, it will dis­miss it. If it
believes that it should be granted, the court
of cassation declares the petition admitted
and gives notice to the respondent.

37
8
Cont’d
 Do you think that the power of Federal
Supreme Court extends to exercise its power
of Cassation over cases that are State subject
matter? Should the State Supreme Court have
power to exercise its court of Cassation?
 Cassation decision given by five judges, first

three judges determine whether it is qualified

for cassation or not.

37
9
EXECUTION OF DECREES
 the judgment debtor wishes to review the
judgment, if there is such possibility, the
judgment creditor becomes interested to
execute the judgment, if there is something
to be executed.
 execution’ may be defined as the process by

which a decree, the operative part of the

judgment, is enforced against a person who
has failed to comply with its terms.

380
Cont’d
Jurisdiction in Execution
 Normally, the court, which passed the decree,
has a jurisdiction to execute such decree.
However, in certain circumstances, it may be
transferred for execution to another court.
 Transfer for Execution: article 372
 Powers of the Court upon Execution: article

374-377

38
1
Cont’d
Proceedings in Execution
 Application for Execution: art 378

Who apply for execution?

 single decree holders/judgment creditor
application by joint decree holders: art 380
 Application by transferees: art 381
Against whom an application made?
Against judgment a debtor/s
against sureties and representatives: art
382,383,349,
E.g. In case of Death , restitution

38
2
Cont’d
limitation : art 384
• the application shall be filed within ten years from the
date of the decree sought to be executed or from the
default when the date has been specified.
• if an application made for execution once fresh
application cannot be made after 10 years.it shall be
made within ten years from application made.
• What is the date on which the decree sought to have
been executed? Amharic ( date of judgment) and English
V.
 for how many times that an application may be made?
 Is there a time limitation for the First application ? For
fresh application?

38
3
 Process of Execution
 Receipt of application and examination of the judgment-
debtor: art 385
 An application may admitted or rejected or allow the
defect to be remedied.
 if admitted a copy is served on the judgment-debtor
together with a summons requiring him to appear
before the court on a day fixed in the summons to show
causes why the decree should not be executed. what if
causes/objections raised and sustained? what if
judgment debtor is about or likely to abscond?
 What if he fails to appear? If appeared shows no cause
for satisfaction?
 Examination of judgment debtor
 Issuance of process for execution, arrest if any
38
4
 Modes of Execution
1. Decree for payment of money: art 394May be by
attachment and sale
2. Execution of cross- decrees art 397
 It may be that an application is made by a decree-

holder against the judgment-debtor for execution

of a decree for the payment of money at the same
time that the judgment-debtor has applied for
execution of a decree for the payment of money
against the decree-holder, which was obtained in a
separate suit.
 Where both parties have made such applications,

their decrees are called cross-decrees

38
5
Condition to be satisfied for execution of cross decrees:

o Both decree-holders must make application to

the same court for execution of their decrees
o The decrees must be obtained in separate suits;
o Both decrees must be for the payment of definite
sums of money.
o The parties must be the same in the sense that
the decree-holder in one of the suits was the
judgment-debtor in the other suit and the parties
were involved in both suits in the same capacities;
o Both decrees are capable of execution at the
same time by the court

38
6
Cont’d
3. Execution of other decrees
 Execution in case of cross claims under the same

decrees …art 398

 Decree for specific movable property …art 399:

seizure and delivery

 Decree for specific performance or injunction

Art 400: attachment and sale of his property and

may award compensation
389: arrest and detention
4. Decree for delivery of immovable property …art
402… by delivering possession or by removing any
person bound by decree who refuses to vacate it.

38
7
Cont’d
 Where the decree is for the joint possession of
immovable property, physical possession is not
delivered. Instead, a copy of the decree is
affixed in some conspicuous part of the
property and the substance of the decree is
proclaimed.
 if judgment debtor resist the court, instead of
ordering such attachment and sale, may order
the arrest or detention of the judgment-debtor
if he is not already under arrest in the civil
prison. But, the maximum period of detention
should not exceed six months
38
8
 Rateable distribution… art.403
 It is a procedure applied for execution of decree for
payment of money passed against the same
judgment debtor and when more than one persons
applied before receipt of assets held under by or
under authority of the court and those persons have
not obtained satisfaction of the decree .
 The court deduct the cost of realization
 Shall distribute among all persons in the prescribed
manner. i.e according to the amount that each is
entitled to receive at the time of distribution and
each decree holder should receive prorata share of
the proceeds.(proportion of the proceeds that his
decree bears to the other decrees.
38
9
Conditions to be satisfied…
 Assets must be held by or under the authority
of the court
 Prior receipt of asset more than one person

must have applied for execution

 Application must be for the execution of

decrees for the payment money rendered

against the same judgment debtor
 Decree must be unsatisfied

39
0
Cont’d
e.g. Tola has a decree against Gada for
1000.Abdi 2000 and chaltu for 3000.asset
under court authority worth 3000.
What is the share of each decree holders?

39
1
Attachment and Sale

 the best remedy for the judgment holder to

secure its decree is to attach the judgment
debtor’s property and sale it for the
satisfaction of the decree.
Properties exempted from attachment and sale:
art 404
 Why exempted ? the judgment-debtor will

not be deprived of the necessities of life and

the opportunity to earn a livelihood.

39
2
Cont’d
 Attachment of movable property: by actual
seizure : art 406
Exception agricultural produce
 Attachment of agricultural produce: art 407: by

affixing a copy of warrant of attachment

 Attachment of property not in the hand of

judgment debtor: art 409 …

 Debt not secured by negotiable instrument, debt

owing to judgment debtor by another decree by

written order prohibiting creditor from
recovering the debt and debtor from making
payment.
39
3
Cont’d
 Share in the capital of corporation
 Any other movables and sum of money
 Attachment of share in movables: by
notice( art 410)
 Attachment of salary …art 411: by order to

withhold
 Attachment of negotiable instrument : by

actual seizure…art 412

 Attachment of property in custody of court or

public officer: art 413…by notice to that court

requesting to hold the property.

39
4
 Cont’d
 Attachment of immovable property: art 414
By order prohibiting judgment debtor from transferring or
charging.
Removal of attachment… 415
 when the amount decreed with costs and all charges and

expenses resulting from the attachment of the property have

been paid into court; or
 when satisfaction of the decree is otherwise made through

the court or certified to the court; or

 when decree which is the subject of the attachment is set

aside or reversed. In case of immovable property, the

withdrawal must be proclaimed, if the judgment-debtor so
desires and at his expense, in the same manner as was the
attachment.

39
5
Cont’d
Objections to attachment: 418
 Objection or claim arise regarding exemption

from attachment or it is not the property of

judgment debtor.
 only the judgment-deb­tor can raise the

objection that the property is exempted from

attachment, since the exemption is for his
benefit but the judgment-debtor should not
be able to prefer a claim to the property on
behalf of a third party. He should notify the
third party, who can then file his own claim.

39
6
Cont’d
 Upon receipt of the application, the court
proceeds to in­vestigate the claim or objection
 if the court is satisfied either for the reason

stated in the application or for any other

reason, the property is not subject to
attachment, It is to release the property, wholly
or to the extent it thinks fit, from the
attachment. If it is satisfied that the property is
subject to attachment, it will disallow the claim
or objection. article 419 of the Cv.Pr.C.

39
7
Cont’d
 An applicant or objector against whom the
court decided regarding claims or objection
brought concerning attachment may institute a
claim to establish a right or to property in
dispute.
 but the order of the court shall be conclusive

until the result of the claim is known.

 Article 421

39
8
 Sale of property

 General rules… article 422- 431

 Rues of Sales of movable property… art 432-

438
 Rues Sales of immovable property… 439- 449
 Resistance to delivery of possession: 450-455

39
9
Sale of property
 Once a property has been attached and, in
case of objection or claims overruled the
court proceeds to order the sale of the
property of such portion to satisfy the
amount of the decree the proceeds of the
sale, will be paid to the decree-holder.
General rules
 all sales must be made by public auction by
an officer of the court or a person appointed
for this purpose unless otherwise directed.

40
0
General…
e.g. as per article 422 after hearing the decree-
holder, may authorize a sale by private contract
at the request of or with the consent of the
judgment-debtor.
 The decree-holder has to make an application

for an order of sale.

Here an application must be accompanied by a
statement signed and verified and containing,
insofar as they are known or can be ascertained,
the matters required to be specified in the
proclama­tion of sale. Art 424
40
1
 General…
 Where the sale is to be by public auction, the court must
cause a proclamation of sale to be made.
Proclamation of sale drawn after notice has been notice to
the decree-holder and the judgment-debtor must state the
time and place of sale and must specify:
 the property to be sold and the estimated value thereof;
 any encumbrance to which the property is liable;
 the amount for the recovery of which the sale is
ordered;
 the terms and conditions of the sale and the
manner in which and the time within the purchase price
shall be paid; and
 all other information which the court con­siders material

for a purchaser to know in order to judge the nature and

value of the property. Art 423
40
2
General…
 No sale may take place, without the consent in
writing of the judgment-debtor, until at least 30
days after publication of the proclamation in the
case of immovable property, and 15 days after
publication in the case of movable property.
exception if where the property is subject to
decay or is of a kind that must be stored at a cost
in excess of its value. Article 426
The date is calculated from the time when the
copy of the proclamation is affixed on the
courthouse door or the date of proclamation in
the newspaper.
40
3
General …
The purpose of this requirement is to give
prospective bidders sufficient time to be advised of
the sale and to decide to bid.
Why the consent of judgment debtor is needed?
What is the effect of sale made before 30 and 15
days? Conducted without the consent of judgment
debtor?
the judgment-debtor may waive the requirement.
However, a sale held before the time is not
rendered void, but is treated as an irregularity. As
long as there has been a proclamation which has
been published, the sale is not void.

40
4
 General…
 The decree-holder may not bid at the sale without the
written permission of the court, and a copy of the
order granting permission must be given by the court
to the auctioneer. Why restricted? to enable the court
to im­pose conditions on the decree-holder if it" thinks
fit.article 430 of the Cv.Pr.C.
 At any time before the property is knocked down, that
is, before the auctioneer hammers the sale to a close
and declares the highest bid, the sale must be stopped
if the debt and costs, including the costs of the sale,
are tendered to the auctioneer or proof is given to his
satisfaction that this amount has been paid into the
court which ordered the sale. article 427of the Cv.Pr.C

40
5
General …
Where the highest bid does not reach a sum
equal to the value specified in the proclamation
of sale, the property is not to be sold but a
second sale by auction must be held after the
issuance of a fresh proclamation in accordance
with the prescribed rules. At the second sale,
the highest bid, whatever its amount, must be
accepted and the property is sold.
article 428(1) of the Cv.Pr.C\
What if no bidders
What is the initial bid for the first and second
auction if public auction is to be conducted?
40
6
Sale of Movable Property
 Where the property to be sold is agricultural
produce, the sale is to be held in certain
places. article 432of the Cv.Pr.C
 If the produce is a growing crop, the sale is to
be held on or near the land on which the crop
has grown.
 If the crop has been cut or gathered, it must
be held at or near the threshing floor or place
for treading out grain or the like or fodder
stack on or in which it is deposited.

40
7
 Movables…
rules which govern the delivery and transfer of the property to the
purchaser.

 Where the movable property has actually been seized, it is simply

delivered to the purchaser after the sale.
 Where it is in the possession of some person other than the
judgment-debtor, the delivery is made by giving notice to that
person prohibiting him from delivering possession of the
property to anyone except the purchaser.
 In the case of a sale of a share in corporation, delivery is effected
by a written order of the court prohibiting the person in whose
name the share may be standing from making any transfer of the
share to anyone except the purchaser, or receiving payment of
any dividend or interest; the order will also prohibit the manager,
secretary or other proper officer from permitting such transfer or
making such payment to anyone except the purchaser.
40
8
 Movables…
 Where the execution of a document or the endorsement
of the party in whose name a negotiable instrument or a
share in a corporation stands is required to transfer such
instrument or share, the endorsement may be made by
the execution officer or other officer appointed by the
court in accordance with the provisions of Art. 401 (4).
 In the case of any movable property not otherwise
provided for, the court is to make an order vesting the
property in the purchaser. The purchaser is then
considered as the owner, and the order operates as
proof of ownership, enabling him to bring a suit to
recover the property and to resist a suit by another to
obtain the property from him. articles 436-438 of the
Cv.Pr.C
40
9
 Sale of Immovable Property

These rules or procedures for selling these properties are

designed to achieve the following purposes.
 To enable the judgment-debtor to "save" the property if at

all possible;
 To protect the interests of all persons having a claim to

the property;
 To protect persons who would be adversely affected by a

fraudulent o improper sale of the property;

 To establish the ownership of the property in the

purchaser;
 To enable the purchaser to gain possession of the

property without the necessity of a separate suit;

 To determine all claims to possession of the property

expeditiously.
41
0
Immovable…
Setting Aside the Sale
 The most significant difference between a sale

of immovable property and movable property is

that in certain circumstances a sale of
immovable property can be set aside.
 There are three situations where sale of
immovable properties can be set aside:
i. The judgment-debtor has no saleable interest
in the property; purchaser and decree holder,if
permitted to sale

41
1
Immovable…
i. Another person has an interest in the
property;
 a transferee of the property from the
judgment-debtor before the sale, the holder
of a contract for sale made prior to the
execution sale or a prior mort­gage may have
the sale set aside under this rule.
i. There is material irregularity or fraud in the
conduct of the sale, resulting in substantial
injury to the applicant.

41
2
Immovable…
 "person whose interests are affected by the
sale’’ applies
 A material irregularity may be said to have

occurred, where there has been a failure to

comply with the provisions of the Code
designed to insure and the best price is
realized upon the sale and that prospective
buyers have all the information necessary to
make a pro­per bid.
 the applicant must prove that he suffered

substantial injury as a result of such

irregularity or fraud
41
3
Immovable…
Confirmation, Delivery of Possession and Resistance
 Where no application to set aside is made within two

months from the date of the sale or if an application

to set aside is made and is rejected, the court shall
make an order confirming the sale and thereupon
the sale shall become absolute.
 Where a sale of immovable property has becomes

absolute, that is, where no application to set aside

has been made within the two month period or
application has been made, but disallowed, the
court must issue a certificate specifying the property
sold, the name of the purchaser and the date on
which the sale came absolute. articles 447(1-3) cpc.
41
4
Cont’d
 Where an application to set aside the sale is
granted, the court must make an order to that
effect.
 Such an order is not to be made, i.e., the sale is
to be set aside, unless notice of the application
to set aside has been given to persons affected
thereby. articles 446(4)of the Cv.Pr.C
 What if sale set aside without giving notice to
persons affected by it?
 After application has been made within two
months and notice given sale may be set aside.

41
5
Cont’d
Delivery of possession of immovable
 immovable property cannot be seized physically.

Procedures :
 After the certificate indicating that the sale has become

absolute and has been issued, the purchaser may make

application for delivery and the court will order delivery by
putting the purchaser or his appointee into possession, and
if necessary, by removing any person who refuses to vacate
the property Or
 If the purchaser agrees with the judgment debtor that the

latter could remain in possession of the property or a part

thereof, the judgment debtor may call this to the attention
of the court and the court will not direct his removal.
articles 448 of the Cv.Pr.C

41
6
Cont’d
 If the property is in possession of other person
entitled to possession, delivery is effected after
the certificate has been granted and on
application of the purchaser, the court will order
delivery to be made by affixing a copy of the
certificate in some conspicuous place on the
property and proclaiming by beat of drum other
customary mode, at some convenient place that
the interest of the judgment debtor has been
transferred to the purchaser. articles 449 of the
Cv.Pr.C

41
7
Cont’d
Putting into Possession
 the one who is ordered by the court to surrender
his possession may refuse to deliver.
 whenever possession is resisted or obstructed,
the decree holder for the possession of
immovable property has to put an application to
the court of complaining of such resistance or
obstruction.
 The court shall fix a day for investigating the
matter and shall summon the person against
whom the application has been made to appear
and answer the charge. articles 450 of the Cv.Pr.C
41
8
Cont’d
 After investigation if the court is satisfied that
the resistance or obstruction was occasioned
without good cause by the judgment-debtor or
some other person at his instigation, it will
direct that the applicant be put in the
possession of the property;
 if the applicant is still resisted or obstructed, in

obtaining possession, it may at his instance,

also order that the judgment-debtor or some
other person at his instigation be detained in a
civil prison for a period not exceeding thirty
days. articles 451 of the Cv.Pr.C

41
9
Cont’d
 if the court is satisfied that the resistance or
obstruction was occasioned by a person other
than the judgment-debtor, claiming in good faith
to be in possess­ion on his own account or on
account of some person other than the
judgment-debtor, the court shall make an order
dismissing the application.
 As long as the court is satisfied that the claimant
is asserting a bona fide claim to possess­ion
independent of the claim of the judgment-
debtor, it may not put the decree-holder or
purchaser into possession.articles 452 of the
Cv.Pr.C
42
0
RES JUDICATA AND SPLITTING OF CLAIMS

 Res Judicata is a Latin term which literally means

“the matter having been litigated.”
 The principle is that once a matter has been

litigated, it may not be re-litigated, and issues

that have been determined once may not be
determined again in subsequent suit.
 A party to a suit may seek review of the
judgment in accordance with the law, but in the
absence of such review, the judgment and the
decision on the issue in the suit is final.
 What is the difference between the principle of

res judicata and principle of pendency.

42
1
Cont’d
 the rule of res judicata operates as a defense
for the person in whose favor the previous
suit or issue was decided.
 If defendant fails to raise as preliminary

objection the defense will be deemed to have

been waived.
 If raised and well founded the suit will be

dismissed.

42
2
Cont’d
Former suit includes:
 suit in which an ex parte or default decree was

rendered.
 A suit that has been withdrawn with leave does

not constitute a suit in which the matter was

decided.
 A decision on an interlocutory matter operates

as res judicata as to the issue involved.

 a criminal proceeding is not a “Former suit". Art

2149 civil code. what if both civil and criminal

cases entertained together ? can we consider
decision on civil matter as a former suit?
42
3
Cont’d
 Where the two suits were brought in Ethiopia
on the same subject matter between the
same parties and were not consolidated the
decision in the case that was determined first
must operate as res judicata.

42
4
 Cont’d
Persons Bound
A. Parties to suit
 the former suit have to involve the same parties
or parties under whom the parties in the
subsequent suit claim.
 all parties in the first and subsequent suit must
be litigating under the same title.
 where persons litigate in good faith in respect to
public or private rights claimed in common for
themselves and others, all persons interested in
the right are deemed to claim under the persons
litigating in the original suit.
42
5
Cont’d
 a party who withdraws or whose name is struck off
ceases to be a party, and is not bound by the
judgment.
 a party who dies and as to whom the suit abates, even
though his name erroneously remains on the record ;a
person who was not named in the suit is not a party,
although his rights may have been asserted.
 Where the suit has been filed or defended by a
representative, the decision is binding on the person
so represented.
 What if the minor was not represented in accordance
with the law? Is the decision in the former suit will
operate as res judicata?

42
6
Cont’d
 Res judicata may also apply between co-
defendants where:
 there is conflict of interest between
them,
 it is necessary to resolve that conflict in
order to give the plaintiff appropriate
relief, and
 there is actually a decision of the
question as between the co-defendants.

42
7
 Cont’d
B. Persons Claiming Under the Parties to Prior Suit
claiming under and litigating under the same title
 the party claiming the benefit of the prior judgment

or sought to be bound by it must be in priority with a

party to the former suit.
 In order for a person to be bound as a priority, he

must have acquired an interest in the subject matter

of the suit by inheritance, or purchase subsequently
to the former suit or must hold the interest
subordinately in the sense that his interest is entirely
dependent on the interest of the superior holder and
automatically comes to an end after the interest is
extinguished.
42
8
Cont’d
 the heir is bound by any decision involving
the property in a suit by or against the
ancestor;
 the purchaser is bound by any decision

involving the property in a suit by or against

the seller prior to the time of purchase.
 the lessee is bound by any decision involving

the property rendered in a suit by or against

the lessor, since his interest is dependent on
the interest of the lessor.

42
9
Cont’d
c. Other Situations
 whether a party who has raised a matter once may re-

litigate the same matter in the subsequent suit

involving a different party is a question .
 a party who has litigated a question once should not

be able to litigate the same question again in a

subsequent suit even against a different party.
 such a result is not clearly authorized by Art 5, and it

is questionable whether the courts will apply this

expanded concept.
 E.g customer sue a manufacturer for defective product

caused a damage. But the court ruled that a product

did not cause an injury. In the subsequent suit can he
sue others concerning this is issue?

43
0
Cont’d
 Article 5(4):where persons have litigated
rights claimed in common for themselves and
others the decision in such case is binding on
all persons interested in that right, who are
deemed to claim under the persons who
litigated the original suit.
 Article 38 cpc
 Where persons represent interest of others

decision is binding on those who have been

represented.

43
1
Cont’d
Matters Directly and Substantially in Issue
 The principle of res judicata is applicable only

where the matter directly and substantially in

issue in the subsequent suit was also directly
and substantially in issue in the former suit.
 matters which ought to have been raised in the

first suit are deemed to have been raised, and

consequently cannot be raised in the
subsequent suit.

43
2
Cont’d
 res judicata operates only as to the issues
decided in the first suit, it follows that where a
suit is dismissed on a ground not related to the
merits of the plaintiff’s claim, a subsequent suit
on the same claim is not barred by res judicata.
 Does failure to raise counter claim and set off
bar subsequent suit? What if raised as defense
and failed?
 where the facts giving rise to the defendant’s
claim were not necessarily involved in the prior
suit, the subsequent suit may be maintained

43
3
Cont’d
 the decision on certain kinds of issues might
not operate as res judicata because of the
nature of the issue; for instance claim for
maintenance the extent of the obligation
depends on various conditions, which may
change, a decision on that question in a suit
for maintenance could not operate as res
judicata in subsequent suit; the same is true
regarding custody of the children during
divorce.

43
4
Cont’d
Matters Which Has Been Heard and Finally Decided
 Issues Decided by the Court
 if an issue has been raised, but has not been

decided, that issue is not res judicata

irrespective of the result of the suit.
 the appellate court may decide the case on a

ground different from the ground on which

the lower court decided it, and if it does so,
only its decisions on that ground are res
judicata.

43
5
Cont’d
 Res Judicata and Issues of Law
The general principle is that once an issue has
been decided, it cannot be re-litigated in a
subsequent suit by parties bound by the prior
decision notwithstanding that the law is
changed or the prior decision is found to be
erroneous.
Repeal of laws, appellate court changed the
issue?

43
6
Cont’d
 once an issue of law has been decided, the
decision operates as res judicata with respect
to the cause of action involved in the suit in
which it was rendered.
 However, it is not res judicata in a subsequent
suit between the same parties involving a
different cause of action.
 a change in the law or the interpretation of
the law on which a decision on an issue was
based does not affect the operation of the rule
of res judicata.
43
7
The Scope of Res Judicata
 First, any matter which might and ought to
have been made a ground of defense or
attack in the suit shall be deemed to have
been substantially and materially in issue.
 Secondly, any relief claimed in the suit which

has not been expressly granted by the decree

passed in the suit shall be deemed to have
been refused. Or shortly
 matters to be raised
 Relief not granted

43
8
Matters to be raised…
 the parties are deemed to have asserted all such
grounds, which might and ought to have been
asserted. Therefore, res judicata applies not only
to the issues that were expressly decided, but
also to the issues that would have been decided if
raised by the parties. The failure to raise such
grounds in a former suit means that they cannot
be raised in any subsequent suit.
 In effect, they are deemed to have been decided
adversely to the party seeking to raise them in
subsequent suit, and a case may not be re-
opened to permit a party to raise a new claim or
defense that he would have raised in the first suit.
43
9
Cont’d
 By the same token, a defendant who could
have asserted a defense and fails to do so
may not assert the defense when a
subsequent suit is brought on the same
cause of action.
 in order for parties to be bound by the

judgment in a former suit, they must be

litigating under the same title in the
subsequent suit

44
0
Cont’d
 Finally, it should be observed that the failure to
assert a claim of counterclaim or set-off by the
defendant does not bar his doing so in a
subsequent suit. By definition, the defendant
has an option in this regard: he may assert the
claim or may raise it in an independent suit.
Since he has this option, a claim of counter
claim or set-off does not constitute a “matter
which ought to have been made a ground of
defense” within the meaning of the rule.

44
1
Cont’d
 Note, however, that where the defendant has
asserted the facts giving rise to the counter
claim or set-off as a defense to the plaintiff’s
claim and the issue created by the facts is
revolved against the defendant, he may not
subsequently bring a suit on the claim.

44
2
 Splitting of Claims
 every suit shall as far as practicable be framed so
as to afford ground for final decision upon the
subjects in the dispute and to prevent further
litigation concerning them.
 This purpose is implemented by rules of res
judicata and prohibiting splitting of cause of
action.
 Every suit must include the whole of the claim,
which the plaintiff is entitled to make with respect
to the cause of action. If the plaintiff omits to sue
in respect of any portion of his claim, he may not
afterward sue with respect to the portion so
omitted.
44
3
Cont’d
 a plaintiff may not split his cause of action. In
this regard, the rule is designed to prevent
the courts from being burdened by multiple
suits on what is essentially one wrong and to
protect the defendant from harassment by
repeated suits.
 as to a party entitled to more than one relief

with respect to the same cause of action, he

must sue for all those reliefs in one suit, and
if he fails to do so, he may not afterwards do
so for the relief omitted.

44
4
Cont’d
there are two aspects to the rule against splitting
a cause of action:
 the plaintiff must include the whole of his claim

with respect to the cause of action on which he

sues, and
 the plaintiff must seek all the relief to which he

is entitled under that cause of action.

 The plaintiff may intentionally relinquish a

portion of his claim so as to bring it within the

jurisdiction of a particular court. But if he does
so, he may not subsequently sue with respect to
the portion of the claim that was relinquished.

44
5
Cont’d
 A plaintiff may unite several causes of action against
a single defendant but he is not required to do so.
 The rule only prohibits splitting of a single cause of
action.
 The rule refers to “omitting a portion of his claim.”
So long as the plaintiff was aware of the claim, the
omission of a portion, even if unintentional, bars a
subsequent suit with respect to that portion.
 the prohibition is against the bringing of a
subsequent suit with respect to the omitted portion.
It does not prohibit the plaintiff from asserting an
omitted portion of a claim as a defense in a
subsequent suit

44
6
Cont’d
 Is it applicable for execution of decrees ? At
once? By installments? Costs?
The Whole of the Claim with Respect to the Cause of
Action
 Where the facts could give rise to only one
cause of action, if the plaintiff has not
included the whole of the claim in the prior
suit, he may not subsequently sue on the rest
of his claim.
 The rule against splitting of claims is not

affected by the fact that the claim is due in

installments.
44
7
Cont’d
Single and Multiple Causes of Action
 If there are two causes of action, then the failure

to claim the relief to which the party would be

entitled under the second cause of action does
not amount to a splitting of his claim since he
was not making a claim with respect to the
second cause of action.
 However, the mere fact that separate properties

are involved does not necessarily mean that

there are two causes of action. If both properties
were injured by a single act, it would be a single
cause of action.
448
Cont’d
 the rule only prohibits the splitting of a claim
which the plaintiff is entitled to make with
respect a single cause of action.
Omitting of Relief
 A party may be entitled to more than one relief
with respect to the same cause of action. In such
a case, he may sue for all or any of such reliefs.
But if he omits, except with the leave of the
court, to sue for all such reliefs, he shall not
afterwards sue for any relief so omitted.

449
Cont’d
 The court has no discretion to permit a
plaintiff to omit part of his claim, but may, in
appropriate cases, permit a plaintiff to omit
to sue for some of the relief to which he is
entitled. With that exception, the rule
prohibiting the splitting of relief is the same
as the rule of prohibiting the splitting of
claims, and some cases may involve both
questions.

450
Cont’d
 the court must determine whether the relief
sought in the subsequent suit existed with
respect to the cause of action on the plaintiff
sued previously. If it did, and the plaintiff
failed to ask for it at that time, he may not do
so in the subsequent suit.
 Moreover, a party may be entitled to certain

relief at one time and to other relief at

another time.

451
 Cont’d
 If he was only entitled to certain relief at the time of
the former suit, he is not barred from seeking the
relief to which he has subsequently become entitled
in the later suit.
 The court may do so even if the pecuniary value of
the relief allowed to be omitted exceeds its pecuniary
jurisdiction. However, before the court do so, it
should be convinced that there are very valid reasons
for granting such leave and should not permit the
plaintiff to avoid the provisions of the code relating
to relinquishment of the claim in order to bring the
case within the jurisdiction of a particular court.

452
Cont’d

 Leave should only be given in situations

where the plaintiff is entitled to alternative
reliefs and may legitimately wish to exercise
one such relief first.
 The granting of leave to sue for omitted relief

should be done sparingly so as not to defeat

the purpose of the rule requiring all reliefs to
which the plaintiff is entitled to be sought in
a single suit

453
GREAT THANKS!
GLORY TO GOD !
GOD BLESS US !!

454