Ethiopian Civil Procedure lecture notes-

Law Of
Law Of
Civil
Civil
Procedure I
Procedure I

Chapter I
Chapter I: Introduction To Civil
: Introduction To Civil
Procedure: Conceptual And Historical
Procedure: Conceptual And Historical
Background (6hrs)
Background (6hrs)
1.
1. The Nature : Definitional Aspects
The Nature : Definitional Aspects
2.
2. Function and objectives of Civil Procedure
Function and objectives of Civil Procedure
Law
Law
3.
3. Fundamental Procedural Rules
Fundamental Procedural Rules
4.
4. The Two Models of Civil Procedure
The Two Models of Civil Procedure
5.
5. Civil Procedure Law in Ethiopia: Historical
Civil Procedure Law in Ethiopia: Historical
Development, Whose Jurisdiction is it any
Development, Whose Jurisdiction is it any
way? Federal or State?
way? Federal or State?

Chapter Two: Judicial Systems In
Chapter Two: Judicial Systems In
Ethiopia And Jurisdiction Of Courts (9
Ethiopia And Jurisdiction Of Courts (9
Hrs)
Hrs)
The Ethiopian Judicial Systems: Past and
The Ethiopian Judicial Systems: Past and
Present
Present
Jurisdiction of Courts: Essential Elements
Jurisdiction of Courts: Essential Elements
Judicial Jurisdiction
Judicial Jurisdiction
Material /Subject-Matter Jurisdiction
Material /Subject-Matter Jurisdiction
 Local Jurisdiction
Local Jurisdiction

 Chapter Three: Parties To And The
Chapter Three: Parties To And The
Dimensions Of Suits (12 Hrs)
Dimensions Of Suits (12 Hrs)
 Parties to a Civil Suit: General
Parties to a Civil Suit: General
Requirements
Requirements
 Party Plaintiff and Party Defendant
Party Plaintiff and Party Defendant
 Representation in Civil Suits: Types and
Representation in Civil Suits: Types and
Requirements
Requirements
 Joinder of Parties and Causes of Action
Joinder of Parties and Causes of Action
 Interventions: Conditions and Types
Interventions: Conditions and Types
 Third- Party Practice (Imp leader): Purpose,
Third- Party Practice (Imp leader): Purpose,
Requirements and Consequences…
Requirements and Consequences…
 Change of Parties
Change of Parties

Chapter Four: Pleadings And Pre-trial
Chapter Four: Pleadings And Pre-trial
Proceedings (18hrs)
Proceedings (18hrs)
Pleadings
Pleadings
Pre-Trial Proceedings
Pre-Trial Proceedings
Service of Process
Service of Process
 Effects of Non-Appearance of Parties
Effects of Non-Appearance of Parties

Chapter I: Introduction To
Chapter I: Introduction To
Civil Procedure: Conceptual
Civil Procedure: Conceptual
And Historical Background
And Historical Background
(6hrs)
(6hrs)

The Nature & Functions of Civil
The Nature & Functions of Civil
Procedure Law
Procedure Law
A.
A. The Nature of Civil Procedure Law
The Nature of Civil Procedure Law
• Civil procedure is that body of law which
Civil procedure is that body of law which
deals with the
deals with the processes
processes of adjudicating
of adjudicating a
a
civil case
civil case before a court of law
before a court of law
• Civil procedure law tells us the
Civil procedure law tells us the “processes”
“processes”
we need to employ to enforce our rights &
we need to employ to enforce our rights &
obligations defined by
obligations defined by the substantive law
the substantive law.
.
• What are these
What are these “processes”
“processes” of
of
adjudication?
adjudication?

These include, but not limited to:
These include, but not limited to:
Determination of court of jurisdiction
Determination of court of jurisdiction
The form & contents of pleadings
The form & contents of pleadings
The hearing of parties and their evidences
The hearing of parties and their evidences
The form & contents of judgments &
The form & contents of judgments &
decrees
decrees
Reviews of decisions
Reviews of decisions
Execution of decrees, etc.
Execution of decrees, etc.
‘
‘justice rushed is justice crushed
justice rushed is justice crushed!’,
!’,
‘
‘justice delayed
justice delayed is
is ‘justice denied’,
‘justice denied’,

It is a ‘
It is a ‘means to an end’; not an end in itself-
means to an end’; not an end in itself-
the end being the enforcement of rights
the end being the enforcement of rights and
obligations.
obligations.
 It is an “adjective” law-lacks its own
It is an “adjective” law-lacks its own
independent existence.
independent existence.
 You don’t have it for the sake of it
You don’t have it for the sake of it
 You don’t apply its rules for the sake of
You don’t apply its rules for the sake of
nicety, for the sake of formality
nicety, for the sake of formality
Substantive vs procedure
Substantive vs procedure
Civil case vs Criminal case
Civil case vs Criminal case

Substantive Vs Procedural Laws:
Substantive Vs Procedural Laws:
 One Way of
One Way of classifying laws
classifying laws
 substantive
substantive and
and adjective
adjective.
.
Adjective rules
Adjective rules
procedural
procedural and
and evidence
evidence laws
laws
 Substantive laws,
Substantive laws,
 define rights, duties, privileges and
define rights, duties, privileges and
liabilities of persons and
liabilities of persons and
 set out regulatory norms for their mutual
set out regulatory norms for their mutual
relations in their ordinary course of life
relations in their ordinary course of life
and seek to avoid disputes between and
and seek to avoid disputes between and
among individuals and groups in a society.
among individuals and groups in a society.

 They intend to achieve this by
They intend to achieve this by
 carefully delimiting their respective legal
carefully delimiting their respective legal
spheres;
spheres;
 by, primarily, predefining their rights and
by, primarily, predefining their rights and
the corresponding duties in an intelligibly
the corresponding duties in an intelligibly
ascertainable manner- adjusting human
ascertainable manner- adjusting human
conducts
conducts

 prescription without application is
prescription without application is
nothing but pretence.
nothing but pretence.
 the rights and duties envisaged by the
the rights and duties envisaged by the
laws would mean nothing unless they are
laws would mean nothing unless they are
fully enforced
fully enforced;
; most importantly, when
most importantly, when
they are breached or violated.
they are breached or violated.
 one may comfortably conclude that
one may comfortably conclude that
procedural rules, in essence,
procedural rules, in essence, give effect
give effect
(“life”) to the ends sought to be
(“life”) to the ends sought to be
achieved by substantive laws.
achieved by substantive laws.

 The law of procedural rules, unlike
The law of procedural rules, unlike
substantive laws, is commonly deemed
substantive laws, is commonly deemed
operative from the day of their coming
operative from the day of their coming
into effect
into effect to all
to all cases
cases pending in such very
pending in such very
day and there after (Art 1 of the Cv. Pr).
day and there after (Art 1 of the Cv. Pr).
 laws affecting substantive rights are, in
laws affecting substantive rights are, in
principle, construed to be non-retroactive
principle, construed to be non-retroactive
in effect;
in effect;

The other broad criterion for
The other broad criterion for
distinguishing between the two areas of
distinguishing between the two areas of
rules is connected
rules is connected to their respective
to their respective
contents (purposes)
contents (purposes) and the
and the functional
functional
correlations
correlations between them.
between them.
Rights and duties, remedial mechanism
Rights and duties, remedial mechanism
Conduct outside and inside court room
Conduct outside and inside court room

 Court To Consider Procedural Rules By Its
Court To Consider Procedural Rules By Its
Own Initiation
Own Initiation
 Art 1856(2) ,period of limitations should be
Art 1856(2) ,period of limitations should be
pleaded by the parties;
pleaded by the parties;
 Civil procedure code Art. 78, 49,…….court
Civil procedure code Art. 78, 49,…….court

Civil Vs Criminal Cases
Civil Vs Criminal Cases
 The nature of the legal interests to be
The nature of the legal interests to be
preserved:
preserved:
 violations of legal interests recognized and
violations of legal interests recognized and
protected by law -are considered to be
protected by law -are considered to be
legal wrongs
legal wrongs thereby
thereby entailing liabilities
entailing liabilities
and
and incurring legal sanctions
incurring legal sanctions upon the
upon the
wrongdoer.
wrongdoer.
 These wrongs and the attending liabilities
These wrongs and the attending liabilities
are, considered to have either
are, considered to have either private
private or
or
public
public nature.
nature.

The breaches of private rights, affecting
The breaches of private rights, affecting
individual interest-----civil injuries
individual interest-----civil injuries;
;
violations of
violations of public interests
public interests, affecting
, affecting
the society as a whole----
the society as a whole----crimes
crimes.
.

 The purpose of initiating a law suit and
The purpose of initiating a law suit and
the nature of the relief
the nature of the relief
criminal law
criminal law
Purpose
Purpose maintenance of peace and
maintenance of peace and
order of the general public
order of the general public
Relief
Relief focus’s basically
focus’s basically on punishing
on punishing
or rehabilitating the wrongdoer.
or rehabilitating the wrongdoer.
civil Law
civil Law
 purpose repairing the wrong---
purpose repairing the wrong---
the remedy given by courts in
the remedy given by courts in are
are
damages, injunction, ….etc
damages, injunction, ….etc

The Nature Of The Parties Instituting The
The Nature Of The Parties Instituting The
Legal Action
Legal Action
Criminal actions must be initiated by the
Criminal actions must be initiated by the
government, and
government, and
Civil actions can be filed by
Civil actions can be filed by the aggrieved
the aggrieved
party himself
party himself (or his legal pleader);
(or his legal pleader);
A physical person against another
A physical person against another
physical person”; or,
physical person”; or,
“
“A physical person against a legal
A physical person against a legal
person “, or,
person “, or,
“
“A legal person against another legal
A legal person against another legal
person
person

 Availability Of Alternative Dispute
Availability Of Alternative Dispute
Settling Mechanism
Settling Mechanism
civil cases are subject to negotiations;
civil cases are subject to negotiations;
the parties are not at liberty to negotiate
the parties are not at liberty to negotiate
in
in criminal case
criminal case
prosecutions, are free of cost to the
prosecutions, are free of cost to the
aggrieved party;
aggrieved party;
Civil actions are not free of cost to the
Civil actions are not free of cost to the
aggrieved party;
aggrieved party;

B.
B. The Functions of Civil Procedure Law
The Functions of Civil Procedure Law
 General function: enforcement of
General function: enforcement of
substantive rights & obligations-its
substantive rights & obligations-its
ultimate objective
ultimate objective
 The difference between good and bad
The difference between good and bad
handling of procedure can make the
handling of procedure can make the
difference between winning and losing.
difference between winning and losing.
 Rights are meaningless without
Rights are meaningless without
remedies. Procedural law is the law of
remedies. Procedural law is the law of
remedies.
remedies.

 So Civil Procedure Law:
So Civil Procedure Law:
1.
1. Ensures that the “
Ensures that the “outcomes
outcomes of judicial
of judicial
proceedings (judgments & decrees) are
proceedings (judgments & decrees) are
consistent with the rules of substantive
consistent with the rules of substantive
laws
laws
2.
2. Ensures that the
Ensures that the “processes”
“processes” of
of
adjudication is fair;
adjudication is fair;
 the losing party must feel he has had
the losing party must feel he has had
his ‘day in court’, i.e. the opportunity to
his ‘day in court’, i.e. the opportunity to
defend his rights even if he lost the
defend his rights even if he lost the
case
case

 The Objective of Civil Procedure Law
The Objective of Civil Procedure Law
the overriding objective serves as
the overriding objective serves as ‘ a
‘ a
compass to guide courts and litigants
compass to guide courts and litigants and
and
legal advisers as to their general course
legal advisers as to their general course
The overriding objective, is to ‘enable the
The overriding objective, is to ‘enable the
court to
court to deal with cases justly
deal with cases justly’, which
’, which
includes, so far as is practicable:
includes, so far as is practicable:
(a) ensuring that the parties are on an
(a) ensuring that the parties are on an
equal footing;
equal footing;
(b) saving expense;
(b) saving expense;

 (c) dealing with the case in ways which are
(c) dealing with the case in ways which are
proportionate to the amount of money
proportionate to the amount of money
involved, the importance of the case, the
involved, the importance of the case, the
complexity of the issues, and the financial
complexity of the issues, and the financial
position of each party
position of each party;
;
 (d) ensuring that the case is dealt with
(d) ensuring that the case is dealt with
expeditiously and fairly; and
expeditiously and fairly; and
 (e) allotting to the case an appropriate
(e) allotting to the case an appropriate
share of the court’s resources, while taking
share of the court’s resources, while taking
into account the need to allot resources to
into account the need to allot resources to
other cases.
other cases.

 Court to ‘seek to give effect to the
Court to ‘seek to give effect to the
overriding objective when it
overriding objective when it
 (a)
(a) exercises any power given to it by the
exercises any power given to it by the
Rules, or
Rules, or
 (b)
(b) interprets any rule’.
interprets any rule’.
 ‘
‘Dealing with cases justly’ is exemplified by the
Dealing with cases justly’ is exemplified by the
principle that a litigant should
principle that a litigant should not be
not be
prevented from pursuing his claim merely
prevented from pursuing his claim merely
because he is technically in breach of a
because he is technically in breach of a
procedural rule.
procedural rule.

 ‘
‘Doing justice’ means that the courts ought
Doing justice’ means that the courts ought to
to
decide claims as far as possible on their
decide claims as far as possible on their
merits, and not reject them on grounds of
merits, and not reject them on grounds of
procedural default.
procedural default.
 where a party commences with the wrong
where a party commences with the wrong
form, or
form, or
 relies on a wrong statutory provision, or
relies on a wrong statutory provision, or
 makes an error in quantifying his claim so
makes an error in quantifying his claim so
that the amount claimed is a serious
that the amount claimed is a serious
underestimate of his loss,
underestimate of his loss,
 permission to amend should readily be
permission to amend should readily be
given, especially where the defendant has
given, especially where the defendant has
not been misled by the errors
not been misled by the errors

 Is any objective expressly stated in the
Is any objective expressly stated in the
Ethiopian Civil Procedure Code?,
Ethiopian Civil Procedure Code?,
 If not, can you deduce its objective from its
If not, can you deduce its objective from its
nature?
nature?
 The efficient and effective administration of
The efficient and effective administration of
civil justice?
civil justice?
 Efficient in term of time, energy, money
Efficient in term of time, energy, money
(cost) involved in litigation-cost cutting
(cost) involved in litigation-cost cutting
 Effective in terms of decisions in line with
Effective in terms of decisions in line with
substantive law rules.
substantive law rules.

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

 The Overriding Objective And Methods Of
The Overriding Objective And Methods Of
Interpretation
Interpretation
 It is perhaps self-evident – but is
It is perhaps self-evident – but is
nevertheless worth stating expressly – that
nevertheless worth stating expressly – that
one effect of the overriding objective will be
one effect of the overriding objective will be
a more purposive approach to the
a more purposive approach to the
interpretation of the new rules.
interpretation of the new rules.
 Questions of construction of the CPR will, or
Questions of construction of the CPR will, or
should be, approached with the overriding
should be, approached with the overriding
objective in mind, rather than as a matter of
objective in mind, rather than as a matter of
narrow and detailed syntactical analysis.
narrow and detailed syntactical analysis.
 ‘
‘For the letter killeth, but the spirit giveth
For the letter killeth, but the spirit giveth
life.’
life.’

 How do you think should our Rules of civil
How do you think should our Rules of civil
procedure be interpreted?
procedure be interpreted?

 ICCPR 14(1) defines the right to a fair trial.
ICCPR 14(1) defines the right to a fair trial.
 It recognizes that ‘
It recognizes that ‘all persons’ are ‘equal
all persons’ are ‘equal’
’
before the courts and are entitled to a
before the courts and are entitled to a ‘fair
‘fair
and public hearing’
and public hearing’ in the determination
in the determination
of any ‘criminal charge’ or of ‘rights and
of any ‘criminal charge’ or of ‘rights and
obligations in a suit at law’
obligations in a suit at law’ by a
by a
‘competent, independent and impartial’
‘competent, independent and impartial’
tribunal
tribunal ‘
‘established by law
established by law

1
1. Fair Hearing of a Suit/ Impartiality of the
. Fair Hearing of a Suit/ Impartiality of the
Courts
Courts
Neutrality of the Presiding Judge
Neutrality of the Presiding Judge
Personal Bias………
Personal Bias……… impartial justice
impartial justice
without fear or favor, free of bias
without fear or favor, free of bias
Pecuniary/ Subject-Matter Bias--
Pecuniary/ Subject-Matter Bias-- No one
No one
should be a judge in his own case,
should be a judge in his own case,
conflict of interests
conflict of interests

The Right to be Heard
The Right to be Heard
Notice
Notice has to be given to the party
has to be given to the party
before the proceedings start and,
before the proceedings start and,
A party has to be given an adequate and
A party has to be given an adequate and
reasonable (effective) opportunity to
reasonable (effective) opportunity to
explain
explain

Equality of Treatment
Equality of Treatment
each party to a law suit should be
each party to a law suit should be
treated equally without discrimination of
treated equally without discrimination of
any sort
any sort
getting legal aids (services)
getting legal aids (services)
Rule Equality, Same issues should be
Rule Equality, Same issues should be
resolved through similar legal rules
resolved through similar legal rules
Outcome Equality ,Similar issues,
Outcome Equality ,Similar issues,
under same circumstances, should
under same circumstances, should
have similar outcomes
have similar outcomes

 The right to a fair trial requires judges to
The right to a fair trial requires judges to
be impartial.
be impartial.
 “
“impartiality” is the state of mind of a judge
impartiality” is the state of mind of a judge
towards a case and the parties to it, implies:
towards a case and the parties to it, implies:
judges must not harbour preconceptions
judges must not harbour preconceptions
about the matter put before them, and
about the matter put before them, and
that they must not act in ways that
that they must not act in ways that
promote the interests of one of the
promote the interests of one of the
parties
parties
judges have no interest or stake in a
judges have no interest or stake in a
particular case and do not hold
particular case and do not hold
preformed opinions about it or the
preformed opinions about it or the
parties.
parties.

Cases must only be decided impartially;
Cases must only be decided impartially;
“on the basis of judge’s conscience and
“on the basis of judge’s conscience and
their interpretation of facts and in
their interpretation of facts and in
accordance with the law, without any
accordance with the law, without any
restriction”.
restriction”.
The concept of impartiality creates a
The concept of impartiality creates a
correlative duty for judges to step down
correlative duty for judges to step down
from cases in which they think they will
from cases in which they think they will
not be able to impart justice impartially or
not be able to impart justice impartially or
when their actual impartiality may be
when their actual impartiality may be
compromised.
compromised.

Minimum Requirements Of A Fair
Minimum Requirements Of A Fair
Hearing.
Hearing.
 Adequate opportunity (time and space) to
Adequate opportunity (time and space) to
prepare their case; the right to present
prepare their case; the right to present
arguments and evidence; and meet
arguments and evidence; and meet
opposing arguments and evidence, either
opposing arguments and evidence, either
in writing, orally or by both means;
in writing, orally or by both means;
 The right to be tried in his presence; to
The right to be tried in his presence; to
defend himself in person or through legal
defend himself in person or through legal
assistance of his own choice during all
assistance of his own choice during all
stages of the proceedings; and to be
stages of the proceedings; and to be
informed, if he does not have legal
informed, if he does not have legal
assistance, of this right;
assistance, of this right;

 Decision based solely on evidence known to
Decision based solely on evidence known to
the parties to the proceedings;
the parties to the proceedings;
 The opportunity to have a decision rendered
The opportunity to have a decision rendered
without undue delay
without undue delay and to which the
and to which the
parties are
parties are provided adequate notice and
provided adequate notice and
the reason thereof;
the reason thereof;
 The right, except in the case of the final
The right, except in the case of the final
appellate court, to appeal or seek leave to
appellate court, to appeal or seek leave to
appeal, decisions to a higher judicial tribunal;
appeal, decisions to a higher judicial tribunal;
 Deprivation of liberty must be in accordance
Deprivation of liberty must be in accordance
with law
with law
 An interpreter; if s/he cannot understand or
An interpreter; if s/he cannot understand or
speak the language used in the courts;
speak the language used in the courts;

 The right to have legal assistance assigned
The right to have legal assistance assigned
to him, in any case where the interests of
to him, in any case where the interests of
justice so requires; and, without payment
justice so requires; and, without payment
by him in any such case if he does not
by him in any such case if he does not
have sufficient means to pay for it;
have sufficient means to pay for it;
Possible in civil case?
Possible in civil case?
 The right to examine, or have examined,
The right to examine, or have examined,
the witnesses against him;
the witnesses against him;
 The right to obtain the attendance and
The right to obtain the attendance and
examination of witnesses on his behalf
examination of witnesses on his behalf
under the same conditions as witnesses
under the same conditions as witnesses
against him.
against him.

2. Public Hearing of a Suit
2. Public Hearing of a Suit
 Justice must not only be done but must
Justice must not only be done but must
also be seen being done
also be seen being done
 In principle when the court undertakes
In principle when the court undertakes
such a hearing, the public at large, must
such a hearing, the public at large, must
have access to the litigation process
have access to the litigation process
(court-room) without, of course, negating
(court-room) without, of course, negating
exceptional situations of inherently
exceptional situations of inherently
confidential nature-wherein courts may
confidential nature-wherein courts may
consider cases in a closed chamber (“in
consider cases in a closed chamber (“in
Camera”).
Camera”).

3. Independence Vis-a-Vis Accountability of
3. Independence Vis-a-Vis Accountability of
the Judiciary
the Judiciary
I. Judicial Independence
I. Judicial Independence
 In general terms, “independence” refers to
In general terms, “independence” refers to
the autonomy of a given judge or tribunal
the autonomy of a given judge or tribunal
to decide cases applying the law to the facts
to decide cases applying the law to the facts
 “
“Independence” requires that neither the
Independence” requires that neither the
judiciary nor the judges who compose it be
judiciary nor the judges who compose it be
subordinate to the other public powers.
subordinate to the other public powers.
 Public confidence in the judiciary
Public confidence in the judiciary
 Independence is necessary precondition to
Independence is necessary precondition to
impartiality
impartiality

 Judicial independence is not a privilege or
Judicial independence is not a privilege or
prerogative of the individual judge
prerogative of the individual judge.
.
 It is the responsibility imposed on each
It is the responsibility imposed on each
judge to enable him or her to adjudicate a
judge to enable him or her to adjudicate a
dispute honestly and impartially on the
dispute honestly and impartially on the
basis of the law and the evidence, without
basis of the law and the evidence, without
external pressure or influence and without
external pressure or influence and without
fear of interference from anyone.
fear of interference from anyone.
 The core of the principle of judicial
The core of the principle of judicial
independence is the complete liberty of
independence is the complete liberty of
the judge to hear and decide the cases
the judge to hear and decide the cases
that come before the court;
that come before the court;

 no outsider – be it government, pressure
no outsider – be it government, pressure
group, individual or even another judge
group, individual or even another judge
should interfere, or attempt to interfere,
should interfere, or attempt to interfere,
with the way in which a judge conducts a
with the way in which a judge conducts a
case and makes a decision
case and makes a decision
 Judicial independence refers to both the
Judicial independence refers to both the
individual and the institutional
individual and the institutional
independence required for decision-making.
independence required for decision-making.
 Judicial independence is, therefore, both a
Judicial independence is, therefore, both a
state of mind and a set of institutional and
state of mind and a set of institutional and
operational arrangements.
operational arrangements.
 The former is concerned with the judge’s
The former is concerned with the judge’s
independence in fact;
independence in fact;

 the latter with defining the r/n ships b/n
the latter with defining the r/n ships b/n
the judiciary and others, the other
the judiciary and others, the other
branches of government, so as to assure
branches of government, so as to assure
both the reality and the appearance of
both the reality and the appearance of
independence
independence
 The r/n ship b/n these two aspects of
The r/n ship b/n these two aspects of
judicial independence is that an individual
judicial independence is that an individual
judge may possess that state of mind, but
judge may possess that state of mind, but
if the court over which he or she presides
if the court over which he or she presides
is not independent of the other branches
is not independent of the other branches
of government in what is essential to its
of government in what is essential to its
functions, the judge cannot be said to be
functions, the judge cannot be said to be
independent
independent

 A. Institutional Independence
A. Institutional Independence
The Bangalore Principles of Judicial
Conduct
 All international human rights instruments
All international human rights instruments
refer to a fair trial by “an
refer to a fair trial by “an independent
independent
and impartial tribunal”.
and impartial tribunal”.
 The principle of an independent judiciary
The principle of an independent judiciary
derives from the basic principles of the
derives from the basic principles of the
rule of law, in particular the principle of
rule of law, in particular the principle of
separation of powers
separation of powers
 “
“there exists an inseparable bond between
there exists an inseparable bond between
the principle of legality, democratic
the principle of legality, democratic
institutions and the rule of law”.
institutions and the rule of law”.

 According to this principle, the executive, the
According to this principle, the executive, the
legislature and the judiciary constitute three
legislature and the judiciary constitute three
separate and independent branches of
separate and independent branches of
government.
government.
 Different organs of the State have exclusive and
Different organs of the State have exclusive and
specific responsibilities, it is not permissible for
specific responsibilities, it is not permissible for
any branch of power to interfere into the others’
any branch of power to interfere into the others’
sphere
sphere
 The principle of the separation of powers is the
The principle of the separation of powers is the
cornerstone of an independent and impartial
cornerstone of an independent and impartial
justice system
justice system
 In fact, having a judiciary that is independent of
In fact, having a judiciary that is independent of
the other branches of government is a necessary
the other branches of government is a necessary
condition for the fair administration of justice as
condition for the fair administration of justice as
well as intrinsic to the rule of law.
well as intrinsic to the rule of law.

 This notion means that the judiciary has to be
This notion means that the judiciary has to be
independent of the other branches of government,
independent of the other branches of government,
namely the executive and parliament, which, like all
namely the executive and parliament, which, like all
other State institutions, have a duty to respect and
other State institutions, have a duty to respect and
abide by the judgments and decisions of the
abide by the judgments and decisions of the
judiciary.
judiciary.
 This constitutes a safeguard against
This constitutes a safeguard against
disagreements over rulings by other institutions
disagreements over rulings by other institutions
and their potential refusal to comply with them.
and their potential refusal to comply with them.
 Such independence as to decision-making is
Such independence as to decision-making is
essential for upholding the rule of law and
essential for upholding the rule of law and
human rights.
human rights.

 The
The UN Basic Principles on the
UN Basic Principles on the
Independence of the Judiciary lay out
Independence of the Judiciary lay out
The independence of the judiciary shall be
The independence of the judiciary shall be
guaranteed by the State and enshrined in
guaranteed by the State and enshrined in
the Constitution or the law of the country.
the Constitution or the law of the country.
It is the duty of all governmental and other
It is the duty of all governmental and other
institutions to respect and observe the
institutions to respect and observe the
independence of the judiciary”.
independence of the judiciary”.
Such independence is spelt out in black and
Such independence is spelt out in black and
white by the Constitution (Art. 79);
white by the Constitution (Art. 79);
The notion of institutional independence
The notion of institutional independence
is related to several issues.
is related to several issues.

 Financial Autonomy And Sufficient
Financial Autonomy And Sufficient
Resources
Resources
 The judiciary needs adequate resources to
The judiciary needs adequate resources to
discharge its functions appropriately
discharge its functions appropriately
Inadequate resources may render the judiciary
Inadequate resources may render the judiciary
vulnerable to corruption, which could result in a
vulnerable to corruption, which could result in a
weakening of its independence and impartiality
weakening of its independence and impartiality
 Another factor that undermines judicial
Another factor that undermines judicial
independence and impartiality is the lack of
independence and impartiality is the lack of
participation of the judiciary in the elaboration of
participation of the judiciary in the elaboration of
its budget.
its budget.
 A further requirement regarding financial
A further requirement regarding financial
autonomy dictates that the judiciary should be
autonomy dictates that the judiciary should be
autonomous to decide how to allocate its
autonomous to decide how to allocate its
resources.
resources.

 In Ethiopia:
In Ethiopia:
 Courts have full authority over their internal
Courts have full authority over their internal
and, financial affairs;
and, financial affairs;
 such as, the power of drawing up and
such as, the power of drawing up and
implementation the administrative budget and
implementation the administrative budget and
management of its personnel (Art 79 (6) of the
management of its personnel (Art 79 (6) of the
Constitution and Art 16. of Proc .No.25/96) : and,
Constitution and Art 16. of Proc .No.25/96) : and,
 the right to salary and pension
the right to salary and pension
 The 1995 Constitution declares the
The 1995 Constitution declares the
independence of the judicial branch and
independence of the judicial branch and
articulates the structure and powers of the
articulates the structure and powers of the
courts.
courts.

 Conditions Of Tenure And Promotion
Conditions Of Tenure And Promotion
 Conditions Of Tenure
Conditions Of Tenure
 lack of adequate security of tenure for judges
lack of adequate security of tenure for judges
have an adverse effect on the independence of
have an adverse effect on the independence of
the judiciary
the judiciary
 Unless judges have long-term security of tenure,
Unless judges have long-term security of tenure,
they are susceptible to undue pressure from
they are susceptible to undue pressure from
different quarters, mainly those in charge of
different quarters, mainly those in charge of
renewing their posts
renewing their posts
 Judges shall have guaranteed tenure until a
Judges shall have guaranteed tenure until a
mandatory retirement age or the expiry of their
mandatory retirement age or the expiry of their
term of office
term of office

The Constitution(Art. 81) prohibits the
The Constitution(Art. 81) prohibits the
removal of judges before retirement age
removal of judges before retirement age
except for violation of disciplinary rules,
except for violation of disciplinary rules,
gross incompetence or inefficiency, or illness
gross incompetence or inefficiency, or illness
that prevents the judge from carrying out his
that prevents the judge from carrying out his
responsibilities.
responsibilities.
 Such determinations are made by the State
Such determinations are made by the State
and Federal Judicial Administration
and Federal Judicial Administration
Commissions, which likewise decide issues
Commissions, which likewise decide issues
of
of

One of the most common practices that
One of the most common practices that
affects judges’ tenure is that of appointing
affects judges’ tenure is that of appointing
“provisional judges”, i.e. judges who not
“provisional judges”, i.e. judges who not
enjoy security of tenure in their positions
enjoy security of tenure in their positions
and can be freely removed or suspended.
and can be freely removed or suspended.
Another way to impinge on judges’ tenure
Another way to impinge on judges’ tenure
is to make them undergo a rectification
is to make them undergo a rectification
procedure at certain intervals in order to
procedure at certain intervals in order to
determine whether they can continue in
determine whether they can continue in
office.
office.

 Promotion For Judges.
Promotion For Judges.
 Another way of guaranteeing the independence
Another way of guaranteeing the independence
of the judiciary is by establishing a clear system
of the judiciary is by establishing a clear system
of promotion for judges.
of promotion for judges.
 Promotion of judges, wherever such a system exists,
Promotion of judges, wherever such a system exists,
should be based on objective factors, in particular
should be based on objective factors, in particular
ability, integrity and experience
ability, integrity and experience

 APPOINTMENT
APPOINTMENT
 lack of any independent mechanism responsible
lack of any independent mechanism responsible
for the recruitment and discipline of judges
for the recruitment and discipline of judges
limits the independent of the judiciary
limits the independent of the judiciary
 through strict selection criteria and in a
through strict selection criteria and in a
transparent manner.
transparent manner.
 Unless judges are appointed and promoted on
Unless judges are appointed and promoted on
the basis of their legal skills, the j judiciary runs
the basis of their legal skills, the j judiciary runs
the risk of not complying with its core function:
the risk of not complying with its core function:
imparting justice independently and impartially.
imparting justice independently and impartially.
 Thus, there are two crucial issues related to the
Thus, there are two crucial issues related to the
appointment of judges.
appointment of judges.
 appointment criteria
appointment criteria and
and
 appointment
appointment body and procedure
body and procedure

 Appointment Criteria
Appointment Criteria
In order to avoid appointments that would
In order to avoid appointments that would
seriously undermine the independence
seriously undermine the independence
and impartiality of the judiciary,
and impartiality of the judiciary,
International law specifically excludes
International law specifically excludes
selection criteria such as a person’s
selection criteria such as a person’s
political views, race or colour.
political views, race or colour.
These motives are irrelevant to the judicial
These motives are irrelevant to the judicial
function, the exception being the
function, the exception being the
requirement for a person to be a national
requirement for a person to be a national
of the State concerned
of the State concerned

 Under the Constitution, (Art.81(1-3))
Under the Constitution, (Art.81(1-3))
 the President and Vice-President of the
the President and Vice-President of the
Federal Supreme Court are appointed by
Federal Supreme Court are appointed by
the HPR upon the recommendation of the
the HPR upon the recommendation of the
Prime Minister;
Prime Minister;
 other federal judges are appointed by the
other federal judges are appointed by the
House of Peoples’ Representatives from a
House of Peoples’ Representatives from a
list of candidates selected by the Federal
list of candidates selected by the Federal
Judicial Administration Commission.
Judicial Administration Commission.
 The State Council shall, upon
The State Council shall, upon
recommendation by the Chief Executive of
recommendation by the Chief Executive of
the State, appoint the President and Vice-
the State, appoint the President and Vice-
President of the State Supreme Court.
President of the State Supreme Court.

 State Supreme and High Court judges
State Supreme and High Court judges
shall, upon recommendation by the State
shall, upon recommendation by the State
Judicial Administration Council, be
Judicial Administration Council, be
appointed by the State Council.
appointed by the State Council.
 The State Judicial Administration Council,
The State Judicial Administration Council,
before submitting nominations to the
before submitting nominations to the
State Council, has the responsibility to
State Council, has the responsibility to
solicit and obtain the views of the Federal
solicit and obtain the views of the Federal
Judicial Administration Council on the
Judicial Administration Council on the
nominees and to forward those views
nominees and to forward those views
along with its recommendations.
along with its recommendations.

 If the Federal Judicial Administration Council
If the Federal Judicial Administration Council
does not submit its views within three
does not submit its views within three
months, the State Council may grant the
months, the State Council may grant the
appointments.
appointments.
 Is the view of Federal Judicial
Is the view of Federal Judicial
Administration Council
Administration Council binding on the
binding on the
State Council ?Or simply advisory?
State Council ?Or simply advisory?
 Does the constitution provide its effect?
Does the constitution provide its effect?
 if we look from the point of view of state
if we look from the point of view of state
sovereignty ,wouldn’t it amount to
sovereignty ,wouldn’t it amount to
interference?
interference?
 W/t about from function of state high and
W/t about from function of state high and
supreme courts? Delegation?
supreme courts? Delegation?

A federal and State judge can be
A federal and State judge can be (
(Article
Article
79(4) of the constitution)
79(4) of the constitution)
 any Ethiopian who “is loyal to the
any Ethiopian who “is loyal to the
Constitution;
Constitution;
 has legal training or acquired adequate
has legal training or acquired adequate
legal skill through experience;
legal skill through experience;
 has a good reputation for his diligence,
has a good reputation for his diligence,
sense of justice and good conduct;
sense of justice and good conduct;
 consents to assuming judgeship; and
consents to assuming judgeship; and
 is not under 25 years of age
is not under 25 years of age

 The
The UN Basic Principles establish that:
UN Basic Principles establish that:
“
“Persons selected for judicial office shall be
Persons selected for judicial office shall be
individuals of integrity and ability with
individuals of integrity and ability with
appropriate training or qualifications in law.
appropriate training or qualifications in law.
 Any method of judicial selection shall
Any method of judicial selection shall
safeguard against judicial appointments for
safeguard against judicial appointments for
improper motives.
improper motives.
 In the selection of judges, there shall be no
In the selection of judges, there shall be no
discrimination against a person on the
discrimination against a person on the
grounds of race, colour, sex, religion,
grounds of race, colour, sex, religion,
political or other opinion, national or social
political or other opinion, national or social
origin, property, birth or status,
origin, property, birth or status,

 except that a requirement, that a
except that a requirement, that a
candidate for judicial office must be a
candidate for judicial office must be a
national of the country concerned, shall
national of the country concerned, shall
not be considered discriminatory.
not be considered discriminatory.

 Appointment
Appointment Procedure
Procedure
it is preferable for judges to be elected by
it is preferable for judges to be elected by
their peers or by a body independent from
their peers or by a body independent from
the executive and the legislature.
the executive and the legislature.
The authority taking the decision on the
The authority taking the decision on the
selection and career of judges should be
selection and career of judges should be
independent of the government and the
independent of the government and the
administration.
administration.
In order to safeguard its independence, rules
In order to safeguard its independence, rules
should ensure that, for instance, its members
should ensure that, for instance, its members
are selected by the judiciary and that the
are selected by the judiciary and that the
authority decides itself on its procedural
authority decides itself on its procedural
rules
rules

 In Ethiopia
In Ethiopia Proclamation 24/1996.
Proclamation 24/1996.
 Judicial Administration Commissions have
Judicial Administration Commissions have
been established by legislation at all levels
been established by legislation at all levels
of government
of government
 These commissions have extensive powers
These commissions have extensive powers
and duties to recommend candidates to fill
and duties to recommend candidates to fill
judicial positions, issue and enforce
judicial positions, issue and enforce
disciplinary and ethical standards,
disciplinary and ethical standards,
investigate disciplinary complaints, and
investigate disciplinary complaints, and
decide issues concerning the transfer,
decide issues concerning the transfer,
salary, allowance, promotion, suspension,
salary, allowance, promotion, suspension,
medical benefits, assignment, and
medical benefits, assignment, and
termination of judges
termination of judges

 The independence of the judiciary
The independence of the judiciary
requires it to have exclusive jurisdiction
requires it to have exclusive jurisdiction
over all issues of judicial nature and to
over all issues of judicial nature and to
decide whether an issue before it is of
decide whether an issue before it is of
judicial nature.
judicial nature.
 As a corollary, judicial decisions cannot be
As a corollary, judicial decisions cannot be
changed by a non-judicial authority,
changed by a non-judicial authority,
except for cases of mitigation or
except for cases of mitigation or
commutation of sentences and pardons
commutation of sentences and pardons

 Fundamental Freedoms
Fundamental Freedoms
 members of the judiciary are like other citizens
members of the judiciary are like other citizens
entitled to freedom of expression, belief, association
entitled to freedom of expression, belief, association
and assembly;
and assembly;
 provided, however, that in exercising such rights,
provided, however, that in exercising such rights,
judges shall always conduct themselves in such a
judges shall always conduct themselves in such a
manner as to preserve the dignity of their office and
manner as to preserve the dignity of their office and
the impartiality and independence of the judiciary
the impartiality and independence of the judiciary
 This reaffirms the importance of these freedoms
This reaffirms the importance of these freedoms
as a means for judges to protect their
as a means for judges to protect their
independence
independence

 Eg. Freedom of association
Eg. Freedom of association
 play an essential role in ensuring that the
play an essential role in ensuring that the
independence of the judiciary and the rule
independence of the judiciary and the rule
of law are respected.
of law are respected.
 bring judges together and allow them to
bring judges together and allow them to
organise themselves in order to defend
organise themselves in order to defend
their independence and that of the judicial
their independence and that of the judicial
profession more effectively
profession more effectively

 B. Functional Independence/Personal
B. Functional Independence/Personal
Independence
Independence
 For a trial to be fair, the judge or judges
For a trial to be fair, the judge or judges
sitting on the case must be independent
sitting on the case must be independent
 apart from any system of appeal, a judge
apart from any system of appeal, a judge
deciding a case does not act on any order
deciding a case does not act on any order
or instruction of a third party- inside or
or instruction of a third party- inside or
outside the judiciary.
outside the judiciary.
 in the process of discharging their judicial
in the process of discharging their judicial
tasks, judges should be free, internally,
tasks, judges should be free, internally,
from their own colleagues and/or from the
from their own colleagues and/or from the
influence of superior courts;
influence of superior courts;

 or, externally, from any kind of outside
or, externally, from any kind of outside
intrusion, fear or influence; and they should
intrusion, fear or influence; and they should
solely be bound and guided by the law.
solely be bound and guided by the law.
 the irremovability of judges by the executive
the irremovability of judges by the executive
must in general be considered as a corollary
must in general be considered as a corollary
of their independence
of their independence
 The judiciary shall decide matters before
The judiciary shall decide matters before
them impartially, on the basis of facts and in
them impartially, on the basis of facts and in
accordance with the law,
accordance with the law,
 without any restrictions, improper
without any restrictions, improper
influences, inducements, pressures, threats
influences, inducements, pressures, threats
or interferences, direct or indirect, from any
or interferences, direct or indirect, from any
quarter or for any reason”.
quarter or for any reason”.

 A judge must act irrespective of popular
A judge must act irrespective of popular
acclaim or criticism
acclaim or criticism
 Outside influences must not colour
Outside influences must not colour
judgment
judgment
 Any attempt to influence a judgment must
Any attempt to influence a judgment must
be rejected
be rejected
 A judge must be independent of other
A judge must be independent of other
judges
judges
 Judge not obliged to report on merits of a
Judge not obliged to report on merits of a
case
case
 Attempts to undermine judicial
Attempts to undermine judicial
independence should be resisted
independence should be resisted

 II. Accountability of the Judges
II. Accountability of the Judges
 it is a well established fact that if left
it is a well established fact that if left
unregulated and unguided
unregulated and unguided power
power is
is
liable to be abused.
liable to be abused.
 independence should not be left without
independence should not be left without
restraint, there has to be credible means
restraint, there has to be credible means
of safeguarding those cherished human
of safeguarding those cherished human
values.
values.
 Independence of the judiciary should not
Independence of the judiciary should not
be taken as a special privilege of the judge
be taken as a special privilege of the judge
himself.
himself.

 , litigants should be offered
, litigants should be offered reasonably
reasonably
adequate appellate opportunities
adequate appellate opportunities;
;
 judicial proceedings have to be
judicial proceedings have to be
transparent and open
transparent and open to the general
to the general
public; and, judges should be ready and
public; and, judges should be ready and
bold enough to
bold enough to receive criticisms
receive criticisms on their
on their
decisions
decisions
 While judicial independence forms an
While judicial independence forms an
important guarantee,
important guarantee, it also has the
it also has the
potential to act as a shield behind which
potential to act as a shield behind which
judges have the opportunity to conceal
judges have the opportunity to conceal
possible unethical behaviour.
possible unethical behaviour.

 For this reason, judges must conduct
For this reason, judges must conduct
themselves according to ethical guidelines.
themselves according to ethical guidelines.
In order to provide judges with clear rules of
In order to provide judges with clear rules of
conduct, several countries have approved
conduct, several countries have approved
codes of ethics to regulate judicial behaviour
codes of ethics to regulate judicial behaviour
 In the international sphere, the
In the international sphere, the Bangalore
Bangalore
Principles of Judicial Conduct
Principles of Judicial Conduct contain the set
contain the set
of values that should determine judicial
of values that should determine judicial
behaviour.
behaviour.
 These values, which are reflected in most
These values, which are reflected in most
codes of conduct, are: independence,
codes of conduct, are: independence,
impartiality, integrity, propriety, equality,
impartiality, integrity, propriety, equality,
competence and diligence.
competence and diligence.

 As a general rule, judges can only be
As a general rule, judges can only be
removed for serious misconduct, disciplinary
removed for serious misconduct, disciplinary
or criminal offence or incapacity that renders
or criminal offence or incapacity that renders
them unable to discharge their functions.
them unable to discharge their functions.
 States have a duty to establish clear grounds
States have a duty to establish clear grounds
for removal and appropriate procedures to
for removal and appropriate procedures to
this end.
this end.
 The determination as to whether the
The determination as to whether the
particular behaviour or the ability of a judge
particular behaviour or the ability of a judge
constitutes a cause for removal must be
constitutes a cause for removal must be
taken by an independent and impartial body
taken by an independent and impartial body
pursuant to a fair hearing.
pursuant to a fair hearing.

4. Establishment of the Courts by Law
4. Establishment of the Courts by Law
 In the fundamental principles of
In the fundamental principles of
administration of justice, an item which, in
administration of justice, an item which, in
reality, no less weighty than others, is the
reality, no less weighty than others, is the
requisite for courts to be established by
requisite for courts to be established by
law.
law.
 , the
, the structures
structures of the courts; their
of the courts; their
hierarchical relations
hierarchical relations and their
and their
comparable jurisdictions
comparable jurisdictions have to be
have to be
explicitly constituted by law; and,
explicitly constituted by law; and,
 only courts so established can assume
only courts so established can assume
judicial function.
judicial function.

 inherent in this premise is that
inherent in this premise is that special or
special or
temporary
temporary bodies that take away
bodies that take away
judicial powers from regular courts;
judicial powers from regular courts;
 and by and large, do not follow
and by and large, do not follow
procedures prescribed by law ought not
procedures prescribed by law ought not
to be set up.
to be set up.
 Judicial power should principally and
Judicial power should principally and
solely be vested in the regular courts.
solely be vested in the regular courts.
 This is without negating the existence of
This is without negating the existence of
the so-called
the so-called ‘administrative tribunals’-
‘administrative tribunals’-
which are constituted by law and
which are constituted by law and
entrusted with some quasi-judicial
entrusted with some quasi-judicial
(delegated) power
(delegated) power

Assignment
Assignment
 How much of these fundamental
How much of these fundamental
procedural principles are expressly or
procedural principles are expressly or
impliedly incorporated or recognized by
impliedly incorporated or recognized by
our laws;
our laws;
 particularly,
particularly,
by the FDRE constitution,
by the FDRE constitution,
the Civil Procedure Code and
the Civil Procedure Code and
other relevant laws?
other relevant laws?

The Two Models of Civil
The Two Models of Civil
Procedure
Procedure
 A legal “system,” “is an operating set of
A legal “system,” “is an operating set of
legal institutions, procedures, and rules,”
legal institutions, procedures, and rules,”
 while a legal “tradition” is “a set of deeply
while a legal “tradition” is “a set of deeply
rooted, historically conditioned attitudes
rooted, historically conditioned attitudes
about the nature of law, the role of law in
about the nature of law, the role of law in
the society and the polity, the proper
the society and the polity, the proper
organization and operation of a legal
organization and operation of a legal
system, and the way law is or should be
system, and the way law is or should be
made, applied, studied, perfected, and
made, applied, studied, perfected, and
taught.
taught.

 Thus, while it is difficult to speak of a
Thus, while it is difficult to speak of a
singular and unvarying adversarial or
singular and unvarying adversarial or
inquisitorial “system,”
inquisitorial “system,”
 we can speak of two distinct traditions,
we can speak of two distinct traditions,
each marked by a particular approach and
each marked by a particular approach and
theory of law
theory of law

A.
A. The Adversarial Model
The Adversarial Model
• Common law system
Common law system
• Parties lead the proceedings
Parties lead the proceedings
• Judge acts as a neutral arbiter
Judge acts as a neutral arbiter
• His position is passive :doesn’t
His position is passive :doesn’t
undertake any independent
undertake any independent
investigation into the subject matter of
investigation into the subject matter of
the dispute
the dispute
• The trial procedure has to offer equal
The trial procedure has to offer equal
chances to the parties competing for
chances to the parties competing for
their right before a jury.
their right before a jury.

 This system is much more competitive
This system is much more competitive
than the judicial system according to the
than the judicial system according to the
continental legal systems
continental legal systems
 His role is not to find the ultimate truth
His role is not to find the ultimate truth
 His duty is to oversee the proceedings and
His duty is to oversee the proceedings and
to ensure that all aspects of the procedure
to ensure that all aspects of the procedure
are respected
are respected
 He doesn’t himself interrogate the
He doesn’t himself interrogate the
witnesses, his main task is to ensure that
witnesses, his main task is to ensure that
the questions put by the parties are
the questions put by the parties are
relevant
relevant
 At the end, he decides the case according
At the end, he decides the case according
to the more convincing evidence.
to the more convincing evidence.

 “
“Common Law: England and America
Common Law: England and America
 After the last pleading is served pleading is said
After the last pleading is served pleading is said
to be closed.
to be closed. This is the pleading Stage
This is the pleading Stage
 If defense not served default judgment is given;
If defense not served default judgment is given;
 Future procedural steps begins from the date of
Future procedural steps begins from the date of
closing of pleading.
closing of pleading.
 The rules on this future timetable are called
The rules on this future timetable are called
directions; timed as from close of pleading
directions; timed as from close of pleading
 The crts lays down w/t future procedural steps
The crts lays down w/t future procedural steps
are to be taken in action and a time table for
are to be taken in action and a time table for
those steps
those steps
 It covers procedural steps applicable between
It covers procedural steps applicable between
the period of closure of pleading and trial;
the period of closure of pleading and trial; The
The
Directions Stage
Directions Stage

Summons For Directions Before Master-
Summons For Directions Before Master-
(England) Pre-trail
(England) Pre-trail Conference- (America)
Conference- (America)
 Discovery ---
Discovery ---
 Discovery is designed to serve as the
Discovery is designed to serve as the
principal
principal mechanism by which mutual
mechanism by which mutual
knowledge of all relevant facts, except
knowledge of all relevant facts, except
privileged evidences, will be achieved.
privileged evidences, will be achieved.
 The overriding purpose of discovery is
The overriding purpose of discovery is
nothing less than
nothing less than to promote the
to promote the
ascertainment of the truth and ultimate
ascertainment of the truth and ultimate
disposition of the lawsuit
disposition of the lawsuit in accordance
in accordance
therewith.
therewith.

 The combination of strict rules of pleading
The combination of strict rules of pleading
and compulsory disclosure further reduces
and compulsory disclosure further reduces
the necessity of additional exchange of
the necessity of additional exchange of
evidence
evidence
 Under the civil law there is no discovery as
Under the civil law there is no discovery as
such.
such.
 However, a party has a right to request
However, a party has a right to request
the court to interrogate a witness or to
the court to interrogate a witness or to
require the opposing party to produce a
require the opposing party to produce a
document
document
 ‘
‘litigant-driven’
litigant-driven’ fact-finding process
fact-finding process

Purposes And Effects Of Discovery
Purposes And Effects Of Discovery
Procedures
Procedures
 Obtaining Factual Information
Obtaining Factual Information
To go to trial with the best evidence
To go to trial with the best evidence
available to prove his contentions and
available to prove his contentions and
with good knowledge of the
with good knowledge of the
presentation that his adversary will
presentation that his adversary will
make
make
Surprise and delay are thus avoided
Surprise and delay are thus avoided
The chance that the judgment will
The chance that the judgment will
rest on accurate findings of fact is
rest on accurate findings of fact is
enhanced.
enhanced.

 Narrowing The Issues
Narrowing The Issues
Makes it unnecessary to rely heavily up
Makes it unnecessary to rely heavily up
on pleadings for exchanging
on pleadings for exchanging
information, narrowing issues, or
information, narrowing issues, or
disposing untenable claims or defenses
disposing untenable claims or defenses
It helps to eliminate fictitious issues,
It helps to eliminate fictitious issues,
claims, or defense by revealing over
claims, or defense by revealing over
whelming evidence on one side, there
whelming evidence on one side, there
by paving the way for stipulations,
by paving the way for stipulations,
settlements, and summary disposition
settlements, and summary disposition
To secure ,if possible, an admission of
To secure ,if possible, an admission of
facts in the aid of proof, to supply the
facts in the aid of proof, to supply the
want of it and to avoid expenses.
want of it and to avoid expenses.

 Promoting Settlements And Just Results
Promoting Settlements And Just Results
 Facilitate more and earlier settlements by
Facilitate more and earlier settlements by
providing each side fuller knowledge of
providing each side fuller knowledge of
the strength and weaknesses of its case.
the strength and weaknesses of its case.
Promote just settlement
Promote just settlement

 Inspection-
Inspection---
--Request For Inspection Of
Request For Inspection Of
Document & Other Things
Document & Other Things
 -
-of documents referred to in pleadings and
of documents referred to in pleadings and
affidavit
affidavit
 A party can request and entitle to obtain
A party can request and entitle to obtain
documents, premises, electronically stored
documents, premises, electronically stored
information and tangible things in the
information and tangible things in the
possession or control of the other party.
possession or control of the other party.

 Exchange of Expert reports
Exchange of Expert reports–
–Physical or
Physical or
Mental Examination
Mental Examination
 disclose the expert witness’s report on the
disclose the expert witness’s report on the
matter ,since if not agreed up on an expert
matter ,since if not agreed up on an expert
may be called on trial, e.g.. Medical report
may be called on trial, e.g.. Medical report
filed with statement of claim
filed with statement of claim
 examined by a suitably credentialed
examined by a suitably credentialed
expert if physical or mental condition of
expert if physical or mental condition of
the person is in issue)
the person is in issue)

Request For Admission
Request For Admission
 Request may be for genuineness of
Request may be for genuineness of
documents, the truth of factual
documents, the truth of factual
allegations, or the applicability of legal
allegations, or the applicability of legal
concepts to specific fact in issue,
concepts to specific fact in issue,
 This device resembles pleadings in that it
This device resembles pleadings in that it
isn’t to discover new information but to
isn’t to discover new information but to
establish facts,
establish facts,
 Unless the recipient party denies the
Unless the recipient party denies the
request they are deemed admitted for the
request they are deemed admitted for the
purpose of litigation.
purpose of litigation.

 Interrogatories
Interrogatories
 Written Qs to be answered by the party
Written Qs to be answered by the party
under oath,
under oath,
 Only to a party to an action.
Only to a party to an action.

 Depositions ,
Depositions ,Exchange of Witness
Exchange of Witness
statement
statement—
—
 disclose the factual details of what your
disclose the factual details of what your
witness are going to testify on trial in the
witness are going to testify on trial in the
form of written report ; dated and signed
form of written report ; dated and signed
by the witness
by the witness
 Unlike interrogations, this means that the lawyer
Unlike interrogations, this means that the lawyer
can follow up responses to obtain more
can follow up responses to obtain more
information,
information,
 The witness is usually represented by a lawyer
The witness is usually represented by a lawyer
who can object questions,
who can object questions,
 The testimony is recorded and may be used as
The testimony is recorded and may be used as
evidence at trial,
evidence at trial,

 Interlocutory applications by affidavit
Interlocutory applications by affidavit…….
…….
 amendment of pleading and Request for
amendment of pleading and Request for
further and better particulars of the
further and better particulars of the
pleadings
pleadings
 The value of the action-----if disputed
The value of the action-----if disputed
 Application for an order of extension of
Application for an order of extension of
time for carrying out a procedure
time for carrying out a procedure
 Application for setting aside of default
Application for setting aside of default
judgment
judgment

 Application for Summary judgment……
Application for Summary judgment……
where the plaintiff can show, affidavit
where the plaintiff can show, affidavit
evidence, that the defendant has no
evidence, that the defendant has no
arguable defence ;to obtain early or
arguable defence ;to obtain early or
speedy judgment before the trial.
speedy judgment before the trial.
 Interim payments and security for costs
Interim payments and security for costs

 Further procedures for obtaining evidence
Further procedures for obtaining evidence
and information(Other Directions)
and information(Other Directions)
 Detention and preservation of property
Detention and preservation of property
 Interrogatories
Interrogatories
 Notice to admit facts
Notice to admit facts
 Discovery and inspection of documents and
Discovery and inspection of documents and
property in the possession of non-parties
property in the possession of non-parties
 Photographs, sketches, and police accident
Photographs, sketches, and police accident
report books----disclose where relevant
report books----disclose where relevant
 Interlocutory injunction---in urgent cases, b/n
Interlocutory injunction---in urgent cases, b/n
commencement of proceeding and trial.
commencement of proceeding and trial.

 Settlement Of Actions----ADR
Settlement Of Actions----ADR
 Examining parties
Examining parties
 Discussing with parties and look for better
Discussing with parties and look for better
strategy
strategy
 Discuss as to ADR
Discuss as to ADR
 Clarifying what is not clear—amendment
Clarifying what is not clear—amendment
 Fixing a date for trial-
Fixing a date for trial----
---and Trial
and Trial

Pleading Rules
Pleading Rules
 The pleading requirement in most
The pleading requirement in most
common-law systems requires that the
common-law systems requires that the
claimant state the claim with reasonable
claimant state the claim with reasonable
particularity as to facts concerning
particularity as to facts concerning
persons, place, time, and sequence of
persons, place, time, and sequence of
events involved in the relevant transaction.
events involved in the relevant transaction.
 This pleading rule is essentially similar to
This pleading rule is essentially similar to
the Code Pleading requirement that
the Code Pleading requirement that
governed in most American states prior to
governed in most American states prior to
adoption of the Federal Rules of Civil
adoption of the Federal Rules of Civil
Procedure in 1938.9
Procedure in 1938.9

 This rule was abandoned in federal courts
This rule was abandoned in federal courts
in the United States in 1938 and replaced
in the United States in 1938 and replaced
by Notice Pleading, which required a much
by Notice Pleading, which required a much
less detailed pleading.
less detailed pleading.
 The Principles and Rules require that
The Principles and Rules require that
pleading be in detail with particulars as to
pleading be in detail with particulars as to
the basis of claim and that the particulars
the basis of claim and that the particulars
reveal a set of facts that, if proved, would
reveal a set of facts that, if proved, would
entitle the claimant to a judgment.
entitle the claimant to a judgment.

 Presentation Of Evidence.
Presentation Of Evidence.
 It is well known that in the civil-law
It is well known that in the civil-law
tradition the evidence is developed by the
tradition the evidence is developed by the
judge with suggestions from the
judge with suggestions from the
advocates,
advocates,
while in the common-law tradition the
while in the common-law tradition the
evidence is presented by the advocates
evidence is presented by the advocates
with supervision and supplementation
with supervision and supplementation
by the judge.
by the judge.
 Furthermore, in many civil-law systems the
Furthermore, in many civil-law systems the
evidence is usually taken in separate
evidence is usually taken in separate
stages according to availability of
stages according to availability of
witnesses,
witnesses,

 while in the common-law system it is
while in the common-law system it is
usually taken in a consecutive hearing
usually taken in a consecutive hearing
for which the witnesses must adjust
for which the witnesses must adjust
their schedules.
their schedules.
 More fundamentally, the basic conception
More fundamentally, the basic conception
of the plenary hearing in the civil-law
of the plenary hearing in the civil-law
system has been that of an inquiry by the
system has been that of an inquiry by the
judge that is monitored by advocates on
judge that is monitored by advocates on
behalf of the parties,
behalf of the parties,
while the conception of a trial in the
while the conception of a trial in the
common-law systems is that of
common-law systems is that of
juxtaposed presentations to the court by
juxtaposed presentations to the court by
the parties through their advocates.
the parties through their advocates.

 Common Law civil procedure is
Common Law civil procedure is
necessarily a very flexible and complex
necessarily a very flexible and complex
system.
system.
 Because rules of procedure are often
Because rules of procedure are often
written in broad language and place only
written in broad language and place only
modest limits on the court's power or
modest limits on the court's power or
creativity, the American judge has
creativity, the American judge has
considerable discretion in decision-
considerable discretion in decision-
making.
making.
 Moreover, the American judge also wields
Moreover, the American judge also wields
extensive control over the proceedings,
extensive control over the proceedings,
parties, attorneys, and third parties.
parties, attorneys, and third parties.

 The American judiciary has a broad social
The American judiciary has a broad social
and political role.
and political role.
 Judges often create substantive public
Judges often create substantive public
policy and social regulation through
policy and social regulation through
precedents announced in the decision of
precedents announced in the decision of
private litigation.
private litigation.

 The Jury System
The Jury System
 Although the judge plays a central role in
Although the judge plays a central role in
the American legal system, the systemic
the American legal system, the systemic
effects of a jury system must also be
effects of a jury system must also be
considered in order to understand its
considered in order to understand its
technical procedural rules.
technical procedural rules.
 the jury system, which necessarily
the jury system, which necessarily
interjects an element of amateur legal
interjects an element of amateur legal
administration and consequently a degree
administration and consequently a degree
of unpredictability and often high damage
of unpredictability and often high damage
awards..
awards..

 Division Of Proceedings Into Pre-trial And
Division Of Proceedings Into Pre-trial And
Trial Phases
Trial Phases
 Jury trial and concentrated final hearing also
Jury trial and concentrated final hearing also
require extensive pre-trial preparation in order
require extensive pre-trial preparation in order
to avoid surprise and delay at trial.
to avoid surprise and delay at trial.
 The structural division of proceedings into pre-
The structural division of proceedings into pre-
trial and trial phases allowed development of a
trial and trial phases allowed development of a
system of discovery, which, in turn, justified the
system of discovery, which, in turn, justified the
relaxation of the rules of pleading
relaxation of the rules of pleading
 Trials may be dramatic, but the reality is that
Trials may be dramatic, but the reality is that
most cases settle.
most cases settle.

 The standard of proof in civil actions
The standard of proof in civil actions
 The standard of proof in civil actions is the
The standard of proof in civil actions is the
'preponderance of the evidence,' which
'preponderance of the evidence,' which
makes it comparatively easier for plaintiffs
makes it comparatively easier for plaintiffs
to satisfy their burden of proof than the
to satisfy their burden of proof than the
civil-law standard.
civil-law standard.
 From a comparative perspective, the
From a comparative perspective, the
system as a whole is notably plaintiff-
system as a whole is notably plaintiff-
oriented.
oriented.

 Critics
Critics
 lawyer-dominated system of civil
lawyer-dominated system of civil
procedure has often been criticized both
procedure has often been criticized both
for its incentives to distort evidence and
for its incentives to distort evidence and
for the expense and complexity of its
for the expense and complexity of its
modes of discovery and trial.“
modes of discovery and trial.“
 Discovery, has a double edge: it facilitates
Discovery, has a double edge: it facilitates
truth-finding, but can also result in
truth-finding, but can also result in
burdensome and expensive proceedings in
burdensome and expensive proceedings in
complex cases.
complex cases.
 It leaves to partisans the work of gathering
It leaves to partisans the work of gathering
and producing the factual material upon
and producing the factual material upon
which adjudication depends.
which adjudication depends.

2.
2. The Inquisitorial Model
The Inquisitorial Model
 A Civil Law System
A Civil Law System
 Judge leads the proceedings,
Judge leads the proceedings,
 plays more active role by questioning
plays more active role by questioning
witnesses and formulating issues
witnesses and formulating issues
 His main role is establishing the
His main role is establishing the
material truth on the basis of
material truth on the basis of
available evidence
available evidence
 Most civil law systems include a
Most civil law systems include a
judge that is proactive in managing
judge that is proactive in managing
the case, promoting settlement,' and
the case, promoting settlement,' and
interrogating witnesses.‘
interrogating witnesses.‘

 Civil law procedure is a rigid and
Civil law procedure is a rigid and
formalistic system
formalistic system.
.
 Rules of procedure are written in
Rules of procedure are written in
elaborate detail and leave little room for
elaborate detail and leave little room for
judicial discretion in procedural matters.
judicial discretion in procedural matters.
 Under the presupposition that codes are
Under the presupposition that codes are
coherent and exhaustive, court decisions
coherent and exhaustive, court decisions
are made with strict reference to rules and
are made with strict reference to rules and
principles, with policy considerations and
principles, with policy considerations and
"external values" left to the legislature
"external values" left to the legislature
 As a result, the law is relatively simple and
As a result, the law is relatively simple and
straightforward and leaves little room for
straightforward and leaves little room for
judicial precedent.
judicial precedent.

 Civil law civil procedure is more systematic,
Civil law civil procedure is more systematic,
logical, structured and 'scientific
logical, structured and 'scientific‘
‘ than
than
American civil procedure
American civil procedure,
,
 it favors consistency and specificity rather
it favors consistency and specificity rather
than flexibility and generality.
than flexibility and generality.
 A common misconception among common
A common misconception among common
law lawyers is the notion that the civil law
law lawyers is the notion that the civil law
judge exercises great power over the
judge exercises great power over the
conduct of proceedings.
conduct of proceedings.
 On the contrary, civil-law codes of civil
On the contrary, civil-law codes of civil
procedure largely dictate the proceedings to
procedure largely dictate the proceedings to
be followed and neither the judge nor the
be followed and neither the judge nor the
parties have much room to deviate from it.
parties have much room to deviate from it.

 Rules Of Pleading
Rules Of Pleading
Most countries require plaintiffs to provide,
Most countries require plaintiffs to provide,
in their initial pleadings,
in their initial pleadings,
substantial factual allegations to support
substantial factual allegations to support
their legal claims and
their legal claims and
often also evidence to support those
often also evidence to support those
factual allegations.
factual allegations.
Even the more liberal French system
Even the more liberal French system
requires the plaintiff to provide a statement
requires the plaintiff to provide a statement
of the facts on which she justifies her claim
of the facts on which she justifies her claim
The plaintiff's lawyer commences a lawsuit in
The plaintiff's lawyer commences a lawsuit in
Germany
Germany with a complaint.
with a complaint.

Like its American counterpart, the German
Like its American counterpart, the German
pleading
pleading
narrates the key facts,
narrates the key facts,
sets forth a legal theory,
sets forth a legal theory,
asks for a remedy in damages or specific
asks for a remedy in damages or specific
relief, and
relief, and
 does not permit mere notice pleading..
does not permit mere notice pleading..
Japan is similar, as is Italy.
Japan is similar, as is Italy.

 Evidence Gathering
Evidence Gathering
 Unlike an American complaint, however,
Unlike an American complaint, however,
the German document proposes means of
the German document proposes means of
proof for its main factual contentions.“
proof for its main factual contentions.“
 The major documents in the plaintiff's
The major documents in the plaintiff's
possession that support his claim are
possession that support his claim are
scheduled and often appended;
scheduled and often appended;
 other documents (for example, hospital files
other documents (for example, hospital files
or government records such as police
or government records such as police
accident reports or agency files) are
accident reports or agency files) are
indicated; witnesses who are thought to
indicated; witnesses who are thought to
know something helpful to the plaintiff's
know something helpful to the plaintiff's
position are identified.
position are identified.

 It should be emphasized, that neither
It should be emphasized, that neither
plaintiff's nor defendant's lawyer will have
plaintiff's nor defendant's lawyer will have
conducted any significant search for
conducted any significant search for
witnesses or for other evidence unknown
witnesses or for other evidence unknown
to his client.
to his client.
 Digging for facts is primarily the work of
Digging for facts is primarily the work of
the judge
the judge
 the court rather than the parties' lawyers
the court rather than the parties' lawyers
takes the main responsibility for gathering
takes the main responsibility for gathering
and sifting evidence, although the lawyers
and sifting evidence, although the lawyers
exercise a watchful eye over the court's
exercise a watchful eye over the court's
work.
work.

 He doesn’t have to wait for the counsels
He doesn’t have to wait for the counsels
to present evidence, but he can actively
to present evidence, but he can actively
initiate introducing evidence and may
initiate introducing evidence and may
order a party to disclose evidence in his
order a party to disclose evidence in his
possession
possession
assigning judges rather than lawyers to
assigning judges rather than lawyers to
investigate the facts.
investigate the facts.
Judge’s duty is not only deciding the
Judge’s duty is not only deciding the
case according to the stronger evidence,
case according to the stronger evidence,
but also
but also to
to ascertain the truth
ascertain the truth and then
and then
to
to make a just decision
make a just decision

 Social And Political Role
Social And Political Role
 the judiciary in civil law systems has,
the judiciary in civil law systems has,
comparatively, a limited social and
comparatively, a limited social and
political role and, in principle, does not
political role and, in principle, does not
create public policy or social regulation
create public policy or social regulation
through the litigation of private
through the litigation of private
controversies.
controversies.
 E.g. by precedents
E.g. by precedents

 Pre-trial and Trial
Pre-trial and Trial
 there is no distinction between pre trial
there is no distinction between pre trial
and trial, between discovering evidence
and trial, between discovering evidence
and presenting it.
and presenting it.
 Trial is not a single continuous event.
Trial is not a single continuous event.
 Rather, the court gathers and evaluates
Rather, the court gathers and evaluates
evidence over a series of hearings, as
evidence over a series of hearings, as
many as the circumstances require.
many as the circumstances require.
 "The whole procedure up to judgment
"The whole procedure up to judgment
may therefore be viewed as being
may therefore be viewed as being
essentially a series of oral conferences."
essentially a series of oral conferences."

 Judicial Preparation.
Judicial Preparation.
 The judge to whom the case is entrusted
The judge to whom the case is entrusted examines
examines
these pleadings and appended documents.
these pleadings and appended documents.
 He routinely sends for relevant public records.
He routinely sends for relevant public records.
 These materials form the beginnings of the
These materials form the beginnings of the
official dossier, the court file.
official dossier, the court file.
 All subsequent submissions of counsel, and all
All subsequent submissions of counsel, and all
subsequent evidence-gathering, will be entered
subsequent evidence-gathering, will be entered
in the dossier, which is open to counsel's
in the dossier, which is open to counsel's
inspection continuously.
inspection continuously.
 When the judge develops a first sense of the
When the judge develops a first sense of the
dispute from these materials, he will schedule a
dispute from these materials, he will schedule a
hearing and notify the lawyers.
hearing and notify the lawyers.

Hearing.
Hearing.
 The circumstances of the case dictate the
The circumstances of the case dictate the
course of
course of the hearing.
the hearing.
 Sometimes the court will be able to resolve
Sometimes the court will be able to resolve
the case
the case by
by discussing it with the lawyers
discussing it with the lawyers
and parties and suggesting avenues of
and parties and suggesting avenues of
compromise.
compromise.
 If the case remains contentious and
If the case remains contentious and
witness testimony needs to be taken, the
witness testimony needs to be taken, the
court will have learned enough about the
court will have learned enough about the
case to determine a sequence for
case to determine a sequence for
examining witnesses.
examining witnesses.

 Examining And Recording.
Examining And Recording.
 The judge serves as the examiner in-
The judge serves as the examiner in-chief.
chief.
 At the conclusion of his interrogation of
At the conclusion of his interrogation of
each witness, counsel for either party may
each witness, counsel for either party may
pose additional questions, but counsel are
pose additional questions, but counsel are
not prominent as examiners.
not prominent as examiners.
 Witness testimony is seldom recorded
Witness testimony is seldom recorded
verbatim;
verbatim;
 rather, the judge pauses from time to
rather, the judge pauses from time to
time to dictate a summary of the
time to dictate a summary of the
testimony into the dossier."
testimony into the dossier."

 The lawyers sometimes suggest
The lawyers sometimes suggest
improvements in the wording of these
improvements in the wording of these
summaries, in order to preserve or to
summaries, in order to preserve or to
emphasize nuances important to one side
emphasize nuances important to one side
or the other
or the other
 civil law jurisdictions are becoming more
civil law jurisdictions are becoming more
open to certain "American" adversarial-
open to certain "American" adversarial-
based procedures, such as party-driven
based procedures, such as party-driven
witness examinations
witness examinations

Expertise.
Expertise.
 If an issue of technical difficulty arises on
If an issue of technical difficulty arises on
which the court or counsel wishes to
which the court or counsel wishes to
obtain the views of an expert, the court-in
obtain the views of an expert, the court-in
consultation with counsel-will select the
consultation with counsel-will select the
expert and define his role.
expert and define his role.

 Further Contributions Of Counsel.
Further Contributions Of Counsel.
 After the court takes witness
After the court takes witness testimony or
testimony or
receives some other infusion of evidence,
receives some other infusion of evidence,
counsel have the opportunity to comment
counsel have the opportunity to comment
orally or in writing.
orally or in writing.
 Counsel use these submissions in order to
Counsel use these submissions in order to
suggest further proofs or to advance legal
suggest further proofs or to advance legal
theories.
theories.

Judgment.
Judgment.
 After developing the facts and hearing the
After developing the facts and hearing the
adversaries‘
adversaries‘ views, the court decides the
views, the court decides the
case in a written judgment that must
case in a written judgment that must
contain full findings of fact and make
contain full findings of fact and make
reasoned application of the law
reasoned application of the law

Critics
Critics
Non adversarial system-one in which
Non adversarial system-one in which
litigants would be remitted to faceless
litigants would be remitted to faceless
bureaucratic adjudicators and denied the
bureaucratic adjudicators and denied the
safeguards that flow from lawyerly
safeguards that flow from lawyerly
intermediation.
intermediation.

Discussion Question:
Discussion Question:
 what is the underlying theory that
what is the underlying theory that
explains the d/c in the role of court b/n
explains the d/c in the role of court b/n
common law and civil law systems?
common law and civil law systems?
 Whose duty is it to help find truth?
Whose duty is it to help find truth?

Rules of Civil Procedure in
Rules of Civil Procedure in
Ethiopia: Historical Development
Ethiopia: Historical Development
 Rules of Civil Procedure in Ethiopia: A
Rules of Civil Procedure in Ethiopia: A
Brief Historical Overview
Brief Historical Overview
Sources of civil procedure law in
Ethiopia
 Salient Features of the 1965
Salient Features of the 1965 Civil
Civil
Procedure Code
Procedure Code

 Rules Of Civil Procedure In Ethiopia:
Rules Of Civil Procedure In Ethiopia:
A Brief Historical Overview
A Brief Historical Overview
 Up until the end of the 19
Up until the end of the 19th
th
century
century
 customary and informal procedural rules
customary and informal procedural rules
 Ethiopia was identified with the absence of
Ethiopia was identified with the absence of
a systematically organized judicial process
a systematically organized judicial process
or uniformly applied procedural laws.
or uniformly applied procedural laws.

 the absence of competent expertise-
the absence of competent expertise-
which, the implementation of modern
which, the implementation of modern
procedural laws indispensably demands
procedural laws indispensably demands
 there was no adequately articulated
there was no adequately articulated
and/or formally institutionalized system of
and/or formally institutionalized system of
administration of justice
administration of justice
 in practice- dispute were resolved
in practice- dispute were resolved
adversarial contentions as the “
adversarial contentions as the “Tattayaq-
Tattayaq-
muget
muget”.
”.
 culminating in the royal institution of the
culminating in the royal institution of the
emperor: known as the “
emperor: known as the “Zufan Chilot”
Zufan Chilot”
which is literally interpreted as the ‘Crown-
which is literally interpreted as the ‘Crown-
Court’
Court’

 a litigant could not get his case resolved to
a litigant could not get his case resolved to
the best of his satisfaction at the informal
the best of his satisfaction at the informal
village tribunal,
village tribunal,
 he would go to the lowest level official
he would go to the lowest level official
adjudicator- known as the “
adjudicator- known as the “Chiqa-Shum
Chiqa-Shum”-
”-
the next higher official-the ‘Deputy-
the next higher official-the ‘Deputy-
Governor’
Governor’
the decision of the Deputy-Governor,
the decision of the Deputy-Governor,
would go to the Governor of the district
would go to the Governor of the district
whose decision could, in turn, be reviewed
whose decision could, in turn, be reviewed
upon by other higher officials called
upon by other higher officials called
“
“Womber Rases
Womber Rases

 The litigation process could also be extended
The litigation process could also be extended
as far and high as the
as far and high as the “Afe-Negus
“Afe-Negus”,
”,
 The marathon appellate procedure would
The marathon appellate procedure would
however come to an end only after having
however come to an end only after having
reached, the apex of the judicial structure; as
reached, the apex of the judicial structure; as
a final resort, to request a review by the
a final resort, to request a review by the
Imperial Majesty’s Bench which was
Imperial Majesty’s Bench which was
presided by the Emperor himself.
presided by the Emperor himself.
 Zufan- Chilot’
Zufan- Chilot’
 a thinking which found its way even in the
a thinking which found its way even in the
country’s procedural laws (Art 138 of the Cr.
country’s procedural laws (Art 138 of the Cr.
Pr. Cd. and Art.322 of the CV. Pr. Cd
Pr. Cd. and Art.322 of the CV. Pr. Cd

 Proc.No.2/1942
Proc.No.2/1942
 called the ‘Administration of Justice Proclamation’
called the ‘Administration of Justice Proclamation’
 which attempted to curtail the number of appellate
which attempted to curtail the number of appellate
rights to, only, one: whereby each court would hear
rights to, only, one: whereby each court would hear
an appeal from the next lower court.
an appeal from the next lower court.
 establish the country’s judicial structure
establish the country’s judicial structure
 is the law that had laid down the very foundation for
is the law that had laid down the very foundation for
the development of procedural laws in Ethiopia.
the development of procedural laws in Ethiopia.
 constituting the ever modern court structure in the
constituting the ever modern court structure in the
judicial history of this country, also entrusted the
judicial history of this country, also entrusted the
judiciary to issue regulation that would be employed
judiciary to issue regulation that would be employed
in court proceedings, subject, of course, to the
in court proceedings, subject, of course, to the
approval of the then Ministry of Justice.
approval of the then Ministry of Justice.

 In 1943
In 1943,
,
 the first ever written procedural law (called,
the first ever written procedural law (called,
‘Court Procedure Rules’) was promulgated as
‘Court Procedure Rules’) was promulgated as
‘Leg. Not. No .33/1943’.
‘Leg. Not. No .33/1943’.
 , the ‘Rule’, which encompassed 99 articles of
, the ‘Rule’, which encompassed 99 articles of
both civil and criminal procedures,
both civil and criminal procedures,
 The material source of the law is said to have
The material source of the law is said to have
been the Indian procedural laws,
been the Indian procedural laws,
 British judges who were working in the judiciary
British judges who were working in the judiciary
rendered assistance in the drafting of the law
rendered assistance in the drafting of the law
 In 1951
In 1951
 a rule relating to appeals to the Imperial
a rule relating to appeals to the Imperial
Supreme Court was issued as ‘Leg. Not. No
Supreme Court was issued as ‘Leg. Not. No
155/1951’.
155/1951’.

 Until promulgation of the 1965 Civil Procedure
Until promulgation of the 1965 Civil Procedure
Code, a number of other laws of procedural
Code, a number of other laws of procedural
nature were also made. These include
nature were also made. These include:
:
 Proc. No. 130/1953 (and the amending Proc. No.
Proc. No. 130/1953 (and the amending Proc. No.
135/1954) for the establishment of judicial power;
135/1954) for the establishment of judicial power;
 Leg. Not. No. 177/1953, on the enforcement of
Leg. Not. No. 177/1953, on the enforcement of
judicial relief;
judicial relief;
 Leg. Not. No. 176/1953 (and the amending Leg.
Leg. Not. No. 176/1953 (and the amending Leg.
Not. No. 179/1954) on the execution of judicial
Not. No. 179/1954) on the execution of judicial
decrees;
decrees;
 State Leg. Not. No. 176/1954, on Insolvency and
State Leg. Not. No. 176/1954, on Insolvency and
Advocates’ fees; and,
Advocates’ fees; and,
 Leg. Not. No. 195/1963, for the Determination of
Leg. Not. No. 195/1963, for the Determination of
Material Jurisdiction of Courts.
Material Jurisdiction of Courts.

 Civil Procedural Code of 1965
Civil Procedural Code of 1965
 was drafted by the Ministry of Justice,
was drafted by the Ministry of Justice,
 was issued as a Decree in 1965.
was issued as a Decree in 1965.
 encoding every rules relating to civil matters
encoding every rules relating to civil matters
under one and single document, all procedural
under one and single document, all procedural
rules concerning matters now covered by the
rules concerning matters now covered by the
Code,
Code,
 Proc No 51/1975,
Proc No 51/1975,
 reduced the number (rights) of appeals to only
reduced the number (rights) of appeals to only
one;
one;
 Proc No 84/1975
Proc No 84/1975 ,
,
 amended Art 31/1 of the Code to the effect that
amended Art 31/1 of the Code to the effect that
an application for change of venue could only be
an application for change of venue could only be
admitted before the hearing of evidence.
admitted before the hearing of evidence.

 What are the Sources of civil procedure
What are the Sources of civil procedure
law in Ethiopia Today ?
law in Ethiopia Today ?
A.
A. The FDRE Constitution
The FDRE Constitution: on matters of:
: on matters of:
 The type and structure of courts,
The type and structure of courts,
 The division of judicial power b/n federal
The division of judicial power b/n federal
and state,
and state,
 The relationship between federal and
The relationship between federal and
state courts
state courts

B.
B. The Civil Procedure Code, 1965
The Civil Procedure Code, 1965
 have embodied comprehensive rules that
have embodied comprehensive rules that
apply to civil litigations of any sort,
apply to civil litigations of any sort,
 it is also concise in a sense that it
it is also concise in a sense that it
contains only 483 articles-divided into
contains only 483 articles-divided into
chapters and paragraphs.
chapters and paragraphs.
 Indian origin ; verbatim copies of the
Indian origin ; verbatim copies of the
1908 Indian Civil Procedure Code
1908 Indian Civil Procedure Code
 Basically adversarial
Basically adversarial
 Meant for the then unitary gov’t
Meant for the then unitary gov’t
 Difficulties to apply it to the current
Difficulties to apply it to the current
federal arrangement
federal arrangement

 An Imperial Decree- No clear legislative
An Imperial Decree- No clear legislative
history
history
 there could arise a problem relating to the
there could arise a problem relating to the
approach to be taken in the process of
approach to be taken in the process of
interpreting its provisions.
interpreting its provisions.
 The problem here is that, since the Code was
The problem here is that, since the Code was
not promulgated by the parliament,
not promulgated by the parliament,
 there are no documents containing
there are no documents containing
legislative debates (“travox preparatory”) on
legislative debates (“travox preparatory”) on
the drafts of its provisions, there is no thing
the drafts of its provisions, there is no thing
published, indicating the drafters intent i.e.
published, indicating the drafters intent i.e.

 the background policy explaining the
the background policy explaining the
contents of the legal rules and prescribing
contents of the legal rules and prescribing
guidelines for interpretation.
guidelines for interpretation.
 In such instances, it is suggested that a more
In such instances, it is suggested that a more
practice-oriented mode of interpretation
practice-oriented mode of interpretation
would best facilitate the proceeding and
would best facilitate the proceeding and
help ensure the general purpose of the rules
help ensure the general purpose of the rules
of procedure.
of procedure.

 It encompasses rules on, among others,
It encompasses rules on, among others,
 jurisdiction of courts;
jurisdiction of courts;
 framing of issues;
framing of issues;
 parties to and scope of litigation;
parties to and scope of litigation;
service of summons;
service of summons;
 pre –trial and trial proceedings;
pre –trial and trial proceedings;
 revision of decisions and
revision of decisions and
 modes of executions.
modes of executions.

 the four schedules of forms governing
the four schedules of forms governing
pleading process,
pleading process, miscellaneous matters
miscellaneous matters
and execution,
and execution, stipulated at the end most
stipulated at the end most
part of the Code
part of the Code
 Art. 80(2) of the Amharic text make the use
Art. 80(2) of the Amharic text make the use
of the forms indispensably
of the forms indispensably mandatory,
mandatory,
 while such a strict prescription is missing
while such a strict prescription is missing
from the English version.
from the English version.
 Art 244(4) of the Amharic Code stipulates
Art 244(4) of the Amharic Code stipulates
that non- observance of formal
that non- observance of formal
requirements cannot be a ground for a
requirements cannot be a ground for a
preliminary objection
preliminary objection

 The master texts of the Code, being
The master texts of the Code, being
originally drafted in English, and,
originally drafted in English, and,
 then, translated into Amharic, the
then, translated into Amharic, the
inconsistencies are supposedly attributed
inconsistencies are supposedly attributed
to the Amharic mistranslations.
to the Amharic mistranslations.
 In such instances, some lawyers suggest
In such instances, some lawyers suggest
that it would
that it would be profitable to consult the
be profitable to consult the
English version the primary source
English version the primary source
material
material; and,
; and,
 if accessible,
if accessible, the relevant provisions of
the relevant provisions of
the Indian Civil Procedure Code
the Indian Civil Procedure Code, the
, the
original source document of the latter.
original source document of the latter.

 In the enforcement of the laws, as the
In the enforcement of the laws, as the
provisions of the Civil Procedure Code are
provisions of the Civil Procedure Code are
to be read in conjunction with and
to be read in conjunction with and
interpreted (when the need arises) in the
interpreted (when the need arises) in the
spirits of the substantive laws, the latter
spirits of the substantive laws, the latter
would undoubtedly have an appreciable
would undoubtedly have an appreciable
effect on the former.
effect on the former.

 the Code had empowered the then
the Code had empowered the then
Ministry of Justice:
Ministry of Justice:
 to issue regulations, concerning any matter
to issue regulations, concerning any matter
which under the Code may or shall be
which under the Code may or shall be
prescribed; and,
prescribed; and,
 to make rules so as to add or amend the
to make rules so as to add or amend the
provisions of the Code
provisions of the Code
Normal law making process
Normal law making process
Less credit is given for procedural law??/
Less credit is given for procedural law??/
Does it apply in present federal Ethiopia?
Does it apply in present federal Ethiopia?

C.
C. Federal and state laws
Federal and state laws
 Examples:
Examples:
 Federal courts Proc. No.25/96, W/h
Federal courts Proc. No.25/96, W/h
amended proc. 40/92 establishing
amended proc. 40/92 establishing
federal courts in Dire dawa and AA
federal courts in Dire dawa and AA
 Oromia courts Proc. No. 141/2008
Oromia courts Proc. No. 141/2008
 They deal with the structure &
They deal with the structure &
jurisdiction of their respective courts- a
jurisdiction of their respective courts- a
subject for civil pro.
subject for civil pro.

D.
D. Other substantive laws,
Other substantive laws,
 rules of procedural nature in the Civil
rules of procedural nature in the Civil
Code,
Code,
 rules of procedural nature in the
rules of procedural nature in the
Commercial Code,
Commercial Code,
 rules of procedural nature in Labour
rules of procedural nature in Labour
laws,
laws,
 rules of procedural nature in Land laws,
rules of procedural nature in Land laws,
 rules of procedural nature in the Family
rules of procedural nature in the Family
Code, etc
Code, etc

E. Judicial decisions,
E. Judicial decisions,
 e.g. per Proc. No.454/2005
e.g. per Proc. No.454/2005
 which re-amended Proc No 25/96) ---
which re-amended Proc No 25/96) ---
 with the prescription that the legal
with the prescription that the legal
interpretation reached upon by the
interpretation reached upon by the
Cassation Bench of the Federal Supreme
Cassation Bench of the Federal Supreme
Court, shall be binding upon the courts,
Court, shall be binding upon the courts,

Effects of
Effects of Proc. No. 454/2005
Proc. No. 454/2005
 ,
, እንግዲህ ተግባራዊ የመለኪያ ሚዛንን ለጊዜው ወደ ጎን
እንግዲህ ተግባራዊ የመለኪያ ሚዛንን ለጊዜው ወደ ጎን
እንተወውና ወጥነት የአዋጁ ዋና ዓላማና ግብ ነው ብለን
እንተወውና ወጥነት የአዋጁ ዋና ዓላማና ግብ ነው ብለን
እንነሳ፡፡ ችግሩ ግን ከዚሁ ይጀምራል፡፡ አዋጅ ቁጥር
እንነሳ፡፡ ችግሩ ግን ከዚሁ ይጀምራል፡፡ አዋጅ ቁጥር
454/1997
454/1997 ወጥነትን እንደ ዋና ሆነ ተጓዳኝ ዓላማና
ወጥነትን እንደ ዋና ሆነ ተጓዳኝ ዓላማና
ግብ ይዞ ስለመነሳቱ በግልጽ የሚነግረን ነገር የለም፡፡
ግብ ይዞ ስለመነሳቱ በግልጽ የሚነግረን ነገር የለም፡፡
በአዋጁ መግቢያ ላይ እንደተመለከተው የፌደራል ፍርድ
በአዋጁ መግቢያ ላይ እንደተመለከተው የፌደራል ፍርድ
ቤቶች አዋጅን እንደገና ለማሻሻል የወጣው አዋጅ ቁጥር
ቤቶች አዋጅን እንደገና ለማሻሻል የወጣው አዋጅ ቁጥር
454/1997
454/1997 ሊወጣ የቻለው ስለፌደራል ፍርድ ቤቶች
ሊወጣ የቻለው ስለፌደራል ፍርድ ቤቶች
የወጣውን አዋጅ ቁጥር
የወጣውን አዋጅ ቁጥር 25/88 (
25/88 (እንደተሻሻለ
እንደተሻሻለ)
) እንደገና
እንደገና
ማሻሻል አስፈለጊ ሆኖ በመገኘቱ ነው፡፡ የአስፈላጊነቱ
ማሻሻል አስፈለጊ ሆኖ በመገኘቱ ነው፡፡ የአስፈላጊነቱ
መሰረት ምን እንደሆነ በግልጽ የተመለከተ ነገር የለም፡፡
መሰረት ምን እንደሆነ በግልጽ የተመለከተ ነገር የለም፡፡

አዋጁ ዝምታን ቢመርጥም የሰበር ውሳኔ አስገዳጅነት
አዋጁ ዝምታን ቢመርጥም የሰበር ውሳኔ አስገዳጅነት
እንዲኖረው የሚደነግገው ህግ ሊያሳካ የፈለገው
እንዲኖረው የሚደነግገው ህግ ሊያሳካ የፈለገው
አንደኛው ግብ የአገሪቱ ፍርድ ቤቶች በተመሳይ ጉዳይ
አንደኛው ግብ የአገሪቱ ፍርድ ቤቶች በተመሳይ ጉዳይ
የሚሰጧቸው ውሳኔዎች ወጥነት እንዲኖራቸውና ተገማች
የሚሰጧቸው ውሳኔዎች ወጥነት እንዲኖራቸውና ተገማች
እንዲሆኑ ለማስቻል እንደሆነ ታሳቢ አድርገን እንነሳለን፡፡
እንዲሆኑ ለማስቻል እንደሆነ ታሳቢ አድርገን እንነሳለን፡፡
እንግዲህ ወጥነትና ተገማችነት የአገሪቱ የፍትህ ስርዓት
እንግዲህ ወጥነትና ተገማችነት የአገሪቱ የፍትህ ስርዓት
ዋነኛው ገጽታ እንዲሆን ከታለመ ከብዙ ነገሮች መሐል
ዋነኛው ገጽታ እንዲሆን ከታለመ ከብዙ ነገሮች መሐል
ቢያንስ የሚከተሉት ሁለቱ ተሟልተው ይገኙ ዘንድ ግድ
ቢያንስ የሚከተሉት ሁለቱ ተሟልተው ይገኙ ዘንድ ግድ
ይላል ፡፡
ይላል ፡፡
 1.
1. በሰበር ችሎቱ በራሱ የሚሰጡ ውሳኔዎች ወጥነት
በሰበር ችሎቱ በራሱ የሚሰጡ ውሳኔዎች ወጥነት
ሊኖራቸው ይገባል
ሊኖራቸው ይገባል ምንም እንኳን የሰበር ችሎቱ በሌላ
ምንም እንኳን የሰበር ችሎቱ በሌላ
ጊዜ በተመሳሳይ ጭብጥ የተለየ ትርጉም ሊሰጥ
ጊዜ በተመሳሳይ ጭብጥ የተለየ ትርጉም ሊሰጥ
እንዲሚችል በአዋጁ ላይ የተመለከተ ቢሆንም
እንዲሚችል በአዋጁ ላይ የተመለከተ ቢሆንም

ድንጋጌው በጠባቡ ብቻ ሳይሆን ከመርፌ ቀዳዳ በጠበበ
ድንጋጌው በጠባቡ ብቻ ሳይሆን ከመርፌ ቀዳዳ በጠበበ
ሁኔታ ካልተተገበረ የሰበር ውሳኔ በስር ፍርድ ቤቶች ሊኖረው
ሁኔታ ካልተተገበረ የሰበር ውሳኔ በስር ፍርድ ቤቶች ሊኖረው
የሚገባውን የተሰሚነትና የተቀባይነት ደረጃ በእጅጉ ዝቅ
የሚገባውን የተሰሚነትና የተቀባይነት ደረጃ በእጅጉ ዝቅ
ያደርገዋል፡፡
በአንድ ጭብጥ ላይ በጊዜው የሚቀያየር የሰበር ውሳኔ በስር
በአንድ ጭብጥ ላይ በጊዜው የሚቀያየር የሰበር ውሳኔ በስር
ፍርድ ቤቶች ዘንድ ተፈጻሚነቱ አጠያያቂ ነው፡፡ አሁንም
ፍርድ ቤቶች ዘንድ ተፈጻሚነቱ አጠያያቂ ነው፡፡ አሁንም
በተግባር እንደሚታየው የስር ፍርድ ቤቶች አብዛኛውን ጊዜ
በተግባር እንደሚታየው የስር ፍርድ ቤቶች አብዛኛውን ጊዜ
የሰበርን ውሳኔ የሚጠቅሱት መጀመሪያውኑ የሚያምኑበትን
የሰበርን ውሳኔ የሚጠቅሱት መጀመሪያውኑ የሚያምኑበትን
አቋም የሚያጠናክርና የሚደግፍ ሆኖ ሲያገኙት ነው፡፡
አቋም የሚያጠናክርና የሚደግፍ ሆኖ ሲያገኙት ነው፡፡
ፈጽሞ መዘንጋት የሌለብን ነገር የስር ፍርድ ቤቶች ህግን
ፈጽሞ መዘንጋት የሌለብን ነገር የስር ፍርድ ቤቶች ህግን
እንደሚተረጉሙት ሁሉ የውሳኔውንም ይዘት ለመተርጎም ሰፊ
እንደሚተረጉሙት ሁሉ የውሳኔውንም ይዘት ለመተርጎም ሰፊ
ስልጣን አላቸው፡፡
ስልጣን አላቸው፡፡

ስለሆነም በአንድ ጭብጥ ላይ ወዲያው ወዲያው በሰበር
ስለሆነም በአንድ ጭብጥ ላይ ወዲያው ወዲያው በሰበር
ችሎት የአቋም ለውጥ በሚኖር ጊዜ የስር ፍርድ ቤቶችን
ችሎት የአቋም ለውጥ በሚኖር ጊዜ የስር ፍርድ ቤቶችን
ከማደናገሩም በላይ የውሳኔውን የተሰሚነት ደረጃ ዝቅተኛ
ከማደናገሩም በላይ የውሳኔውን የተሰሚነት ደረጃ ዝቅተኛ
ስለዚህም
ስለዚህም
 በተመሳሳይ ጭብጥ የተለየ ትርጉም መስጠት እጅግ
በተመሳሳይ ጭብጥ የተለየ ትርጉም መስጠት እጅግ
አስፈላጊ የሚያደር ሁኔታዎች ወይም ምክንያቶች
አስፈላጊ የሚያደር ሁኔታዎች ወይም ምክንያቶች
መኖራቸው እስካልተረጋገጠ ድረስ አንድ ጊዜ የተሰጠ
መኖራቸው እስካልተረጋገጠ ድረስ አንድ ጊዜ የተሰጠ
ውሳኔ ፀንቶ ሊቆይ ይገባል
ውሳኔ ፀንቶ ሊቆይ ይገባል
 የተለየ ትርጉም ሲያስፈልግ ለውጥ ማድረግ
የተለየ ትርጉም ሲያስፈልግ ለውጥ ማድረግ
የተፈለገበትን ምክንያት በአዲሱ ውሳኔ ላይ በግልጽ
የተፈለገበትን ምክንያት በአዲሱ ውሳኔ ላይ በግልጽ
ማመልከትና የበፊቱን ውሳኔ በማያሻማ መልኩ በግልጽ
ማመልከትና የበፊቱን ውሳኔ በማያሻማ መልኩ በግልጽ
መሻር ያስፈልጋል
መሻር ያስፈልጋል

2.
2. በሰበር የተሰጠ ውሳኔ በብርሀን ፍጥነት በአገሪቱ
በሰበር የተሰጠ ውሳኔ በብርሀን ፍጥነት በአገሪቱ
ውስጥ የሚገኙ ፍርድ ቤቶችና ለሕዝቡ መድረስ
ውስጥ የሚገኙ ፍርድ ቤቶችና ለሕዝቡ መድረስ
አለባቸው ቅጽ እስኪዘጋጅ ከዓመት በላይ እየተጠበቀ
አለባቸው ቅጽ እስኪዘጋጅ ከዓመት በላይ እየተጠበቀ
ውጤት ለማግኘት የሚታሰብ አይደለም
ውጤት ለማግኘት የሚታሰብ አይደለም
3.
3. የፌደራል ጠቅላይ ፍርድ ቤት ከአምስት ያላነሱ
የፌደራል ጠቅላይ ፍርድ ቤት ከአምስት ያላነሱ
ዳኞች በተሰየሙበት የሰበር ችሎት የሚሰጥ የህግ
ዳኞች በተሰየሙበት የሰበር ችሎት የሚሰጥ የህግ
ትርጉም ለበታች የክልልና የፌደራል ፍርድ ቤቶች
ትርጉም ለበታች የክልልና የፌደራል ፍርድ ቤቶች
አስገዳጅነት ኖሮት በዚህም ወጥነትና ተገማችነት
አስገዳጅነት ኖሮት በዚህም ወጥነትና ተገማችነት
ያለው ብሎም ሁሉን አቀፍ በሆነ መልኩ የዳበረ
ያለው ብሎም ሁሉን አቀፍ በሆነ መልኩ የዳበረ
“
የፍትህ ስርዓት ሊኖር የሚችለው ከአምስት ያላነሱት
“
የፍትህ ስርዓት ሊኖር የሚችለው ከአምስት ያላነሱት
”
ዳኞች ሁሌም ቋሚ የችሎቱ ዳኞች ሆነው ሲገኙ ብቻ
”
ዳኞች ሁሌም ቋሚ የችሎቱ ዳኞች ሆነው ሲገኙ ብቻ
ነው፡፡
ነው፡፡

ቁጥራቸው
ቁጥራቸው 5
5 ሆነ
ሆነ 50
50 ዋናው አስፈላጊ ነገር በችሎት ላይ
ዋናው አስፈላጊ ነገር በችሎት ላይ
የሚቀመጡት ዳኞች እስከመጨረሻው እነዛው ዳኞች ብቻ
የሚቀመጡት ዳኞች እስከመጨረሻው እነዛው ዳኞች ብቻ
ሊሆኑ ይገባል፡፡
ሊሆኑ ይገባል፡፡
ይህ ባልሆነበት ሁኔታ በተመሳሳይ ጭብጥ ተቃራኒና
ይህ ባልሆነበት ሁኔታ በተመሳሳይ ጭብጥ ተቃራኒና
እርስ በርሱ የሚጋጭ ውሳኔ መኖሩ አይቀሬ ነው፡፡
እርስ በርሱ የሚጋጭ ውሳኔ መኖሩ አይቀሬ ነው፡፡

Part Two: Current Judicial System
Part Two: Current Judicial System
&
&
The Division Of Judicial Power In
The Division Of Judicial Power In
Federal Ethiopia And Jurisdiction
Federal Ethiopia And Jurisdiction
Of Courts
Of Courts (9 Hrs)
(9 Hrs)

 The Unitary Court Structure
The Unitary Court Structure
 the Ethiopian judicial system had been
the Ethiopian judicial system had been
strongly unified and firmly centralized.
strongly unified and firmly centralized.
 the 1965 Civil Procedure Code-which, in
the 1965 Civil Procedure Code-which, in
turn, established four levels of courts:
turn, established four levels of courts:
 the Woreda Guezat Court,
the Woreda Guezat Court,
 Awradja Guezat Court,
Awradja Guezat Court,
 High Court and
High Court and
 Supreme Imperial Court.
Supreme Imperial Court.

 The Present Dual Court Structure
The Present Dual Court Structure
 The 1991 Transitional Charter, uprooted
The 1991 Transitional Charter, uprooted
the trend in the country’s constitutional
the trend in the country’s constitutional
history by marking the establishment of a
history by marking the establishment of a
new system-as a fore-state of the ethno-
new system-as a fore-state of the ethno-
linguistic federalism.
linguistic federalism.
 The 1995 FDRE Constitution is the highest
The 1995 FDRE Constitution is the highest
law of the land just as the constitution in
law of the land just as the constitution in
each state is the highest law of that state.
each state is the highest law of that state.
 the courts were created by the constitution
the courts were created by the constitution
 It constituted a federal state structure
It constituted a federal state structure
whereby powers are divided between the
whereby powers are divided between the
Federal and Regional Governments.
Federal and Regional Governments.

one can say that Ethiopia came to have a
one can say that Ethiopia came to have a
double layer of sovereignty.
double layer of sovereignty.
Is it a Dual/parallel or ‘mixed’
Is it a Dual/parallel or ‘mixed’
structurally?
structurally?
 ‘
‘mixed’ b/c of the jurisdictional relation
mixed’ b/c of the jurisdictional relation
under Art.78:2?
under Art.78:2?

 A Dual or parallel court Structure
A Dual or parallel court Structure
 the federal principle of division of power
the federal principle of division of power
strictly, not only are legislative and
strictly, not only are legislative and
executive functions divided between the
executive functions divided between the
federal government and the states, but
federal government and the states, but
judicial authority too is divided.
judicial authority too is divided.
 This would lead to a dual set of courts:
This would lead to a dual set of courts:
federal courts applying and interpreting
federal courts applying and interpreting
federal laws and another set of state
federal laws and another set of state
courts applying and interpreting the laws
courts applying and interpreting the laws
of each state.
of each state.
 That seems to be the case with the USA
That seems to be the case with the USA
and Ethiopia.
and Ethiopia.

Dual system of federal and state courts
Dual system of federal and state courts
means that almost everyone in any of the
means that almost everyone in any of the
states is simultaneously within the
states is simultaneously within the
jurisdiction, or reach, of two judicial
jurisdiction, or reach, of two judicial
systems, one state and the other federal.
systems, one state and the other federal.
Under a dual federalism model, federal
Under a dual federalism model, federal
officers may not exercise state power and
officers may not exercise state power and
state officers may not exercise federal
state officers may not exercise federal
power
power

 Where separate court systems exist it is
Where separate court systems exist it is
assumed that judicial power should be
assumed that judicial power should be
divided between them in line with the rest
divided between them in line with the rest
of the federal arrangement.
of the federal arrangement.
 There is a fear that state courts might not
There is a fear that state courts might not
fully enforce and implement federal
fully enforce and implement federal
policies. This view remains skeptical about
policies. This view remains skeptical about
the competence of state courts.
the competence of state courts.
 There is some distrust in state courts in
There is some distrust in state courts in
adjudicat
ing federal laws.
adjudicat
ing federal laws.
 Besides there is the need for maintaining
Besides there is the need for maintaining
uniformity in the interpreta
tion of federal
uniformity in the interpreta
tion of federal
laws.
laws.

 The USA Constitution provides that the
The USA Constitution provides that the
judicial power shall be vested in one
judicial power shall be vested in one
Supreme Court and in such inferior courts
Supreme Court and in such inferior courts
as the Congress may from time to time
as the Congress may from time to time
ordain and establish.
ordain and establish.
 As a result, two types of federal court are
As a result, two types of federal court are
established: the constitutional courts, also
established: the constitutional courts, also
called Article III courts and the legislative
called Article III courts and the legislative
courts also called Article I courts.
courts also called Article I courts.
 The former are established by Congress
The former are established by Congress
under Article III of the US Constitution
under Article III of the US Constitution
while the latter owe their existence to
while the latter owe their existence to
Article I of the same Constitution
Article I of the same Constitution

 Because of this duality, the state courts
Because of this duality, the state courts
administer state law and federal courts
administer state law and federal courts
administer federal law
administer federal law
 the Supreme Court is not the highest court
the Supreme Court is not the highest court
of appeals over the state judiciary, which is
of appeals over the state judiciary, which is
quite inde
pendent from the federal
quite inde
pendent from the federal
judiciary
judiciary
 At state level, each state has its own
At state level, each state has its own
independent judicial system.
independent judicial system.
 The highest court in each state is the
The highest court in each state is the
ultimate authority on what the law is with
ultimate authority on what the law is with
regard to state law from the state’s point
regard to state law from the state’s point
of view
of view

 In Germany
In Germany
 in contrast to the situation in the United
in contrast to the situation in the United
States, most matters involving federal
States, most matters involving federal
law are litigated initially in state courts
law are litigated initially in state courts
subject only to ultimate and limited
subject only to ultimate and limited
federal appellate review
federal appellate review

 The Indian constitution
The Indian constitution
 sets up a federal judiciary consisting
sets up a federal judiciary consisting
only of the Supreme Court without any
only of the Supreme Court without any
inferior courts in the federal judicial
inferior courts in the federal judicial
system.
system.
 Unlike the United States, there is a
Unlike the United States, there is a
single integrated system of courts for
single integrated system of courts for
the union as well as the states that
the union as well as the states that
enforce and interpret both the Union
enforce and interpret both the Union
and state laws and at the head of the
and state laws and at the head of the
entire system stands the Supreme Court
entire system stands the Supreme Court
of India.
of India.

 The Ethiopian Constitution states that:
The Ethiopian Constitution states that:
 supreme federal judicial authority is
supreme federal judicial authority is
vested in the federal Supreme Court and
vested in the federal Supreme Court and
 reserves for the HoPR to decide by a two-
reserves for the HoPR to decide by a two-
third-majority vote to establish inferior
third-majority vote to establish inferior
federal courts as it deems necessary,
federal courts as it deems necessary,
nationwide or in some parts of the
nationwide or in some parts of the
country
country
 Art.79:1, Cons: ‘
Art.79:1, Cons: ‘judicial powers are
judicial powers are
vested in the courts
vested in the courts’);
’);
 see also Art.4 of the C.Pro.Code
see also Art.4 of the C.Pro.Code

The Constitution
The Constitution
 provides for the establishment of two sets
provides for the establishment of two sets
of courts: at the Federal and State level.
of courts: at the Federal and State level.
 both the Federal and the Regional
both the Federal and the Regional
Governments are endowed with their
Governments are endowed with their
respective structure of courts-
respective structure of courts-

 In Ethiopia Three-tired:
In Ethiopia Three-tired:
 First Instance
First Instance (trial and appeal courts)
(trial and appeal courts)
both at Federal & state levels.
both at Federal & state levels.,
,;
;
 High Courts
High Courts (trial and appeal courts)
(trial and appeal courts)
both at Federal & state levels.,&
both at Federal & state levels.,&
 Supreme courts (
Supreme courts (appeal court)
appeal court) at Federal
at Federal
levels.
levels.
 State Supreme courts (
State Supreme courts (appeal court) on
appeal court) on
state matter
state matter.
.
 State Supreme courts
State Supreme courts (trial and appeal
(trial and appeal
courts)on federal matters
courts)on federal matters .
.

Recently parliament to establish inferior
Recently parliament to establish inferior
federal courts a full-fledged dual court
federal courts a full-fledged dual court
structure is on its way,
structure is on its way,
Proc. No. 322/2003, FHC Esta. Proc., A Proc.
Proc. No. 322/2003, FHC Esta. Proc., A Proc.
to Provide for the Establishment of Federal
to Provide for the Establishment of Federal
High Court in some Regions,
High Court in some Regions, Fed.
Fed. Neg.Gazeta
Neg.Gazeta,
,
9
9th
th
Year No. 42, Addis Ababa, 8 April 2003.
Year No. 42, Addis Ababa, 8 April 2003.
Proc. 322/2003,Article 2, the Federal High
Proc. 322/2003,Article 2, the Federal High
Court has been established to enforce
exclusive federal matters in some selected
states mainly the SNNPRS, Gambela,
Benishangul-Gumuz, Somali and Afar.
Benishangul-Gumuz, Somali and Afar.

All the state constitutions stipulate that the
All the state constitutions stipulate that the
judiciary of the regional state shall be
judiciary of the regional state shall be
organized and comprise the regional
organized and comprise the regional
supreme, high and first instance courts.
supreme, high and first instance courts.
 E.g., Art. 67-69 of Amhara, 72-77 of SNNPS,
E.g., Art. 67-69 of Amhara, 72-77 of SNNPS,
62-67 of Tigray and 61-66 of Oromia State
62-67 of Tigray and 61-66 of Oromia State
Constitutions.
Constitutions.
 SO the Ethiopian judicial system
SO the Ethiopian judicial system
theoretically speaking is organized on a dual
theoretically speaking is organized on a dual
basis in which there are two parallel court
basis in which there are two parallel court
systems, the federal courts and the state
systems, the federal courts and the state
courts with their own independent
courts with their own independent
structures and administrations .
structures and administrations .

 However, until the enactment of the new
However, until the enactment of the new
laws the operation of the federal and state
laws the operation of the federal and state
courts was an integrated one.
courts was an integrated one.
 One probable reason for the original
One probable reason for the original
design of the dual but delegated court
design of the dual but delegated court
structure under Article 78(2) was the lack
structure under Article 78(2) was the lack
of trained legal experts when it was set up
of trained legal experts when it was set up
in 1995.
in 1995.
 However, after 10 years of experience it
However, after 10 years of experience it
appears that the delegated function of
appears that the delegated function of
state courts has brought some
state courts has brought some
inadequacies in the enforcement of
inadequacies in the enforcement of
federal laws
federal laws

 A Mixed court Structure
A Mixed court Structure Shared Judicial
Shared Judicial
Power
Power
 the dual structure of courts, one set of
the dual structure of courts, one set of
courts interpreting federal laws and
courts interpreting federal laws and
another set of courts enforcing state law.
another set of courts enforcing state law.
 Ethiopia too seems to follow the same
Ethiopia too seems to follow the same
pattern.
pattern.
 But this parallel system does not
But this parallel system does not
necessarily imply that each set of courts
necessarily imply that each set of courts
exercises jurisdiction that is completely
exercises jurisdiction that is completely
exclusive of the other
exclusive of the other

 Judicial powers in USA can be:
Judicial powers in USA can be:
 exclusively federal….. which the federal
exclusively federal….. which the federal
legislature may provide to be exercised
legislature may provide to be exercised
exclusively by federal courts
exclusively by federal courts
 exclusively state and
exclusively state and
 shared judicial powers…. which state courts
shared judicial powers…. which state courts
have a concurrent jurisdiction with that of
have a concurrent jurisdiction with that of
the federal courts
the federal courts
In concurrent judicial powers b/n the federal
In concurrent judicial powers b/n the federal
and state judiciary, mechanisms should be
and state judiciary, mechanisms should be
installed to resolve conflict of jurisdiction.
installed to resolve conflict of jurisdiction.
 There may be confusion for litigants as to
There may be confusion for litigants as to
where to file their case.
where to file their case.

 By virtue of the Constitutional
By virtue of the Constitutional
stipulations,
stipulations,
 The establishment of federal courts save
The establishment of federal courts save
the Federal supreme court w/h sits solely
the Federal supreme court w/h sits solely
in AA, is not mandatory by the
in AA, is not mandatory by the
constitution;
constitution;
 Federal High and First Instance Courts sit
Federal High and First Instance Courts sit
in AA, Dirre-Dawa and
in AA, Dirre-Dawa and in such other
in such other
places as may be deemed necessary by
places as may be deemed necessary by
the HPR
the HPR.
.
their jurisdiction are delegated to and
their jurisdiction are delegated to and
exercised by the States’ supreme and
exercised by the States’ supreme and
high courts, respectively.
high courts, respectively.

 The Constitution,
The Constitution,
 Prohibits ‘
Prohibits ‘ad hoc’ or ‘special’
ad hoc’ or ‘special’ courts
courts
outside the regular court system and,
outside the regular court system and,
 ’
’ explicitly recognizes religious and
explicitly recognizes religious and
customary courts and envisages their
customary courts and envisages their
establishment by law
establishment by law –
–
whose power is limited to personal or
whose power is limited to personal or
family matters-may be established or
family matters-may be established or
given official recognition.
given official recognition.

 it not only exclusively vest judicial power
it not only exclusively vest judicial power
both at the Federal and States levels on
both at the Federal and States levels on
regular courts and institutions so
regular courts and institutions so
empowered,
empowered,
‘
‘the phrase “… institutions legally
the phrase “… institutions legally
empowered to exercise judicial functions…”
empowered to exercise judicial functions…”
under Art 78(4) of the FDRE Constitution, is
under Art 78(4) of the FDRE Constitution, is
said to have been included to denote and
said to have been included to denote and
encompass administrative tribunals such as
encompass administrative tribunals such as
the ‘Labor Relations Board,
the ‘Labor Relations Board, ‘Tax Appeal
‘Tax Appeal
Commission’,’ Civil Service Tribunal’ ; the’
Commission’,’ Civil Service Tribunal’ ; the’
Privatization Agency
Privatization Agency ’, ‘and others…..’.
’, ‘and others…..’.

 But there are controversial tribunals
But there are controversial tribunals
introduced from time to time by the federal
introduced from time to time by the federal
legislature and they do seem to dismantle
legislature and they do seem to dismantle
the courts jurisdiction.
the courts jurisdiction.
 The clause of prohibition is understandable
The clause of prohibition is understandable
in light of the terrible experience under the
in light of the terrible experience under the
military that used to set up many such
military that used to set up many such
special courts for summarily executing
special courts for summarily executing
political suspects and the clause appears to
political suspects and the clause appears to
be a significant departure in this regard.
be a significant departure in this regard.
 While this was the background, recent
While this was the background, recent
developments seem to cast some doubt on
developments seem to cast some doubt on
the workability of this principle.
the workability of this principle.

Slowly, important powers are being taken
Slowly, important powers are being taken
away from the regular judiciary to special
away from the regular judiciary to special
tribunals within the various ministerial
tribunals within the various ministerial
offices
offices
The trouble in Ethio
pia is that such tribunals
The trouble in Ethio
pia is that such tribunals
are neither autonomous nor subject to
are neither autonomous nor subject to
review at a higher level.
review at a higher level.

However, legally speaking, there seem to be
However, legally speaking, there seem to be
ambiguity and imprecision, with regard to
ambiguity and imprecision, with regard to
‘Kebele Social Courts’ and municipal courts
‘Kebele Social Courts’ and municipal courts
(Art.78:5&4, FDRE Cons)operating in Addis
(Art.78:5&4, FDRE Cons)operating in Addis
Ababa, Dire Dawa and in the Regional States.
Ababa, Dire Dawa and in the Regional States.
There are two lines of arguments:
There are two lines of arguments:
 Supporters of the first one say these
Supporters of the first one say these
Organs Are considered as judicial branch
Organs Are considered as judicial branch
of the administrations-they are not
of the administrations-they are not
tribunals
tribunals
 The second one, say even if they are not
The second one, say even if they are not
tribunals we have to broadly define
tribunals we have to broadly define
tribunal;
tribunal;

 ‘
‘tribunals’ - are actually empowered with
tribunals’ - are actually empowered with
judicial function; i.e., they have taken the
judicial function; i.e., they have taken the
jurisdiction of regular courts to that extent
jurisdiction of regular courts to that extent
and they do not necessarily follow a legally
and they do not necessarily follow a legally
ascertained procedure in their processes
ascertained procedure in their processes .
.
 unless a broad interpretation of the
unless a broad interpretation of the
provision is made so as to embrace them
provision is made so as to embrace them
within the domain of Art 78 (4), they seem
within the domain of Art 78 (4), they seem
to be falling, in the strict sense of the law,
to be falling, in the strict sense of the law,
within the category of courts whose
within the category of courts whose
establishment is categorically outlawed by
establishment is categorically outlawed by
the Constitution.
the Constitution.

Activities
Activities
With respect to the legitimacy of ‘kebele’
With respect to the legitimacy of ‘kebele’
social courts, which line of interpretation do
social courts, which line of interpretation do
you endorse? Why?
you endorse? Why?
Where do we fit social courts and municipal
Where do we fit social courts and municipal
courts? Are they part of the regular ct
courts? Are they part of the regular ct
system? Or are they part of the executive? Or
system? Or are they part of the executive? Or
neither here nor there?
neither here nor there?
Jurisdictional dispute: rule of interpretation-
Jurisdictional dispute: rule of interpretation-
presumption in favor of regular courts;
presumption in favor of regular courts;
courts have ‘
courts have ‘inherent power’
inherent power’ over civil case
over civil case
unless otherwise clearly provided
unless otherwise clearly provided

 Whose jurisdiction is it to legislate on the law
Whose jurisdiction is it to legislate on the law
of civil procedure in Ethiopia? Federal? State,
of civil procedure in Ethiopia? Federal? State,
or concurrent power?
or concurrent power?
 Check out Article 55 of the FDRE
Check out Article 55 of the FDRE
Constitution?
Constitution?
States have power to legislate their own
States have power to legislate their own
code of civil procedure should they desire?
code of civil procedure should they desire?

Judicial power and
Judicial power and
Jurisdiction Of
Jurisdiction Of
Courts
Courts

Judicial power
Judicial power
 Judicial power
Judicial power is the authority vested in
is the authority vested in
courts and judges to hear and decide
courts and judges to hear and decide
cases and controversies
cases and controversies in conformity with
in conformity with
the law
the law and by methods established by the
and by methods established by the
law and
law and to make binding judgments on
to make binding judgments on
them
them
 the power to construe and apply the law
the power to construe and apply the law
when controversies arise over what has
when controversies arise over what has
been done or not done under it.
been done or not done under it.

A power conferred on a public officer
A power conferred on a public officer
involving the exercise of judgment and
involving the exercise of judgment and
discretion in deciding questions of right in
discretion in deciding questions of right in
specific cases affecting personal and
specific cases affecting personal and
proprietary interests.• In this sense, the
proprietary interests.• In this sense, the
phrase is contrasted with
phrase is contrasted with ministerial power.
ministerial power.

 Jurisdiction
Jurisdiction
 A court's power to decide a case or issue a
A court's power to decide a case or issue a
decree
decree
 "Rules of jurisdiction in a sense speak from
"Rules of jurisdiction in a sense speak from
a position outside the court system and
a position outside the court system and
prescribe the authority of the courts within
prescribe the authority of the courts within
the system.
the system.
 They are to a large extent constitutional
They are to a large extent constitutional
rules.
rules.

 The provisions of the U.S. Constitution
The provisions of the U.S. Constitution
specify the outer limits of the subject-
specify the outer limits of the subject-
matter jurisdiction of the federal courts
matter jurisdiction of the federal courts
and authorize Congress, within those
and authorize Congress, within those
limits, to establish by statute the
limits, to establish by statute the
organization and jurisdiction of the federal
organization and jurisdiction of the federal
courts.
courts.
 Thus, Article III of the Constitution defines
Thus, Article III of the Constitution defines
the judicial power of the United States to
the judicial power of the United States to
include cases arising under federal law
include cases arising under federal law
and cases between parties of diverse state
and cases between parties of diverse state
citizenship as well as other categories.
citizenship as well as other categories.

 The U.S. Constitution, particularly the Due
The U.S. Constitution, particularly the Due
Process Clause, also establishes limits on
Process Clause, also establishes limits on
the jurisdiction of the state courts.
the jurisdiction of the state courts.
 These due process limitations traditionally
These due process limitations traditionally
operate in two areas: jurisdiction of the
operate in two areas: jurisdiction of the
subject matter and jurisdiction over
subject matter and jurisdiction over
persons.
persons.
 Within each state, the court system is
Within each state, the court system is
established by state constitutional
established by state constitutional
provisions or by a combination of such
provisions or by a combination of such
provisions and implementing legislation,
provisions and implementing legislation,
which together define the authority of the
which together define the authority of the
various courts Within the system.
various courts Within the system.

Jurisdiction Of Courts
Jurisdiction Of Courts
 one of the fundamental procedural
one of the fundamental procedural
principles stipulates that courts which
principles stipulates that courts which
entertain disputes must only be the ones
entertain disputes must only be the ones
constituted by law.
constituted by law.
 Accordingly, the law which establishes
Accordingly, the law which establishes
the courts grants them the power to
the courts grants them the power to
handle law suits.
handle law suits.
 Thus, what we call ‘jurisdiction’ of courts,
Thus, what we call ‘jurisdiction’ of courts,
in this respect, refers to the power of
in this respect, refers to the power of
courts, to hear and determine a case;
courts, to hear and determine a case;
thereby, rendering a binding judgement.
thereby, rendering a binding judgement.

 There are three essential elements that
There are three essential elements that
establish jurisdiction of courts; namely,
establish jurisdiction of courts; namely,
 judicial jurisdiction,
judicial jurisdiction,
 material jurisdiction and
material jurisdiction and
 local jurisdiction.
local jurisdiction.

 Judicial Jurisdiction refers to the legal
Judicial Jurisdiction refers to the legal
competence of the courts of a particular
competence of the courts of a particular
nation or state to exercise a judicial power
nation or state to exercise a judicial power
 i.e., to adjudicate a law suit and render
i.e., to adjudicate a law suit and render
a judgment binding an individual, or his
a judgment binding an individual, or his
property involved therein.
property involved therein.
 the issue of judicial jurisdiction is, in
the issue of judicial jurisdiction is, in
practice, a procedural matter but, in most
practice, a procedural matter but, in most
countries treated as one of private
countries treated as one of private
international law, and the rules governing
international law, and the rules governing
it are found in the latter area.
it are found in the latter area.

 The issue of judicial jurisdiction normally
The issue of judicial jurisdiction normally
arises when there is a ‘
arises when there is a ‘foreign element
foreign element’ in a
’ in a
case appearing before a court of a given
case appearing before a court of a given
state.
state.
 A case is said to have involved a foreign
A case is said to have involved a foreign
element,
element,
 if either of the parties is a foreigner to
if either of the parties is a foreigner to
that state or
that state or
 the
the transaction
transaction or
or property
property , which is the
, which is the
subject matter of the suit, occurs outside
subject matter of the suit, occurs outside
of the territorial boundaries of that state.
of the territorial boundaries of that state.

judicial jurisdiction has to do with the
judicial jurisdiction has to do with the
enforcement of the judgement of a court
enforcement of the judgement of a court
against a foreign defendant who does not
against a foreign defendant who does not
usually possess property in the country
usually possess property in the country
where the case is heard and finally
where the case is heard and finally
determined.
determined.
on the basis of bilateral or multilateral
on the basis of bilateral or multilateral
treaties.
treaties.
 on the bases of a concession of
on the bases of a concession of
reciprocity
reciprocity

 the court of a state to which a judgement
the court of a state to which a judgement
is sent for execution will consider only
is sent for execution will consider only
whether the court that gave the
whether the court that gave the
judgement possessed judicial jurisdiction
judgement possessed judicial jurisdiction
 unless an objection was raised on
unless an objection was raised on
grounds of judicial jurisdiction, the courts
grounds of judicial jurisdiction, the courts
would assume that the jurisdiction exists
would assume that the jurisdiction exists
and entertained the case in the usual
and entertained the case in the usual
business of the court.
business of the court.
 a court of a state is held to possess judicial
a court of a state is held to possess judicial
jurisdiction if it has sufficient contact with
jurisdiction if it has sufficient contact with
either the defendant or property that is
either the defendant or property that is
involved in the suit.
involved in the suit.

the factors that establish judicial jurisdiction
the factors that establish judicial jurisdiction
are determined by relevant legislations of
are determined by relevant legislations of
states.
states.
In our case, the draft document of the 1965
In our case, the draft document of the 1965
CC had included such provisions in its
CC had included such provisions in its
section that dealt with as issues of private
section that dealt with as issues of private
international law,
international law,
that portion of the bill was not approved
that portion of the bill was not approved
by the then legislature, it could not
by the then legislature, it could not
become part of the finally adopted Code.
become part of the finally adopted Code.
 Hence, that there is no, law in Ethiopia
Hence, that there is no, law in Ethiopia
that specifically govern the issues of
that specifically govern the issues of
judicial jurisdiction
judicial jurisdiction

In spite of the absence of the relevant legal
In spite of the absence of the relevant legal
rules on judicial jurisdiction, cases involving
rules on judicial jurisdiction, cases involving
foreign elements have appeared before the
foreign elements have appeared before the
court and the grounds would be determined
court and the grounds would be determined
on the basis of
on the basis of
the general legal principles developed by
the general legal principles developed by
foreign laws and applicable to the case
foreign laws and applicable to the case
under consideration.
under consideration.
on the basis of the nature of the action
on the basis of the nature of the action
brought
brought
 the type of the relief sought by the
the type of the relief sought by the
plaintiff,
plaintiff,

Thus the grounds for exercising judicial
Thus the grounds for exercising judicial
jurisdiction are distinctively put as
jurisdiction are distinctively put as
 ‘
‘in Personam’(over a person) and
in Personam’(over a person) and
 ‘
‘in Rem’(over a thing) jurisdiction.
in Rem’(over a thing) jurisdiction.

Jurisdiction in Personam
Jurisdiction in Personam
An action in Personam,
An action in Personam,
is brought against a person, natural or
is brought against a person, natural or
legal, and seeking a relief against the
legal, and seeking a relief against the
person of the defendant,
person of the defendant,
the claim is made for an order
the claim is made for an order
requiring the defendant to do
requiring the defendant to do
(payment of compensation) or
(payment of compensation) or
refrain from doing an act(requesting
refrain from doing an act(requesting
an order prohibiting the defendant
an order prohibiting the defendant
from doing an act) would thus be an
from doing an act) would thus be an
in Personam suit;
in Personam suit;

 On the grounds of the general legal
On the grounds of the general legal
principles, and the usual court practices,
principles, and the usual court practices,
Ethiopian courts are held to assume judicial
Ethiopian courts are held to assume judicial
jurisdiction in Personam where either of the
jurisdiction in Personam where either of the
following requirements are fulfilled:
following requirements are fulfilled:
 the defendant is an Ethiopian national or
the defendant is an Ethiopian national or
domiciliary;
domiciliary; or,
or,
 the defendant has consented (expressly or
the defendant has consented (expressly or
impliedly) to the exercise of jurisdiction by
impliedly) to the exercise of jurisdiction by
the Ethiopian court;
the Ethiopian court; or,
or,
 the act which is the subject matter of the
the act which is the subject matter of the
suit occurred or is situated in Ethiopia.
suit occurred or is situated in Ethiopia.

 Jurisdiction in Rem
Jurisdiction in Rem
 Latin term ‘in rem’ means, ‘against the
Latin term ‘in rem’ means, ‘against the
thing/property’;
thing/property’;
 An ‘action in rem’ is, thus, one, essentially
An ‘action in rem’ is, thus, one, essentially
directed against property and the relief
directed against property and the relief
sought pertains to the property itself-
sought pertains to the property itself-
without reference to the title of individual
without reference to the title of individual
claims or specific person as such.
claims or specific person as such.
 . Besides, the plaintiff does not seek such
. Besides, the plaintiff does not seek such
an order as binding the person of the
an order as binding the person of the
defendant although an individual may be
defendant although an individual may be
named as a defendant in the proceeding.
named as a defendant in the proceeding.

A judgement in rem is a judgement
A judgement in rem is a judgement
declaratory of the status of some subject-
declaratory of the status of some subject-
matter,
matter,
 a judgement in rem settles the destiny of
a judgement in rem settles the destiny of
the res (property) itself (or of some
the res (property) itself (or of some
interest therein) not merely as b/n the
interest therein) not merely as b/n the
parties themselves;
parties themselves;
 but, as against ‘the entire world’; and,
but, as against ‘the entire world’; and,
 thus, binds all persons claiming an
thus, binds all persons claiming an
interest in the property inconsistence with
interest in the property inconsistence with
the judgement-even though pronounced
the judgement-even though pronounced
in their absence
in their absence

 Material Jurisdiction
Material Jurisdiction
 Subject Matter
Subject Matter
Jurisdiction of the subject matter is the
Jurisdiction of the subject matter is the
power to hear and decide cases of a given
power to hear and decide cases of a given
type and it is important for this reason:
type and it is important for this reason:
Defects in the court’s jurisdiction of the
Defects in the court’s jurisdiction of the
subject matter cannot be waived and can
subject matter cannot be waived and can
be raised at any time, even when the case
be raised at any time, even when the case
is on appeal.
is on appeal.
 If the court finds that it lacks subject
If the court finds that it lacks subject
matter jurisdiction, it must dismiss the
matter jurisdiction, it must dismiss the
case.
case.

 In determining subject matter jurisdiction
In determining subject matter jurisdiction
basically three issues that need to be
basically three issues that need to be
cleared from the outset
cleared from the outset.
.
 1st, whether the case is not one falling
1st, whether the case is not one falling
outside the judicial power of ordinary
outside the judicial power of ordinary
courts and are meant to be dealt with by
courts and are meant to be dealt with by
other tribunals
other tribunals
 2nd, a distinction has to be made
2nd, a distinction has to be made
horizontally between the Federal and
horizontally between the Federal and
Regional/States matters (jurisdiction).
Regional/States matters (jurisdiction).
 3
3rd
rd
, it has to be decided as to which level
, it has to be decided as to which level
of court is competent, pecuniary juris
of court is competent, pecuniary juris
diction
diction

Matters outside the Jurisdiction of Courts
Matters outside the Jurisdiction of Courts
 courts are given the power to decide cases
courts are given the power to decide cases
and settle disputes in accordance with the
and settle disputes in accordance with the
law.
law.
 such a judicial power does not make them
such a judicial power does not make them
competent to see all kinds of cases
competent to see all kinds of cases
referred to them.
referred to them.
 so long as only they are justiciable ones
so long as only they are justiciable ones
(Art 37 of the FDRE).
(Art 37 of the FDRE).

 Justiciable matters,
Justiciable matters,
 for this purpose, may broadly be defined
for this purpose, may broadly be defined
as inclusive of all cases unless the law
as inclusive of all cases unless the law
provides otherwise.
provides otherwise.
 the Constitution guarantees every citizen
the Constitution guarantees every citizen
right of access to justice.
right of access to justice.
 It is stated ‘every one has the right to bring
It is stated ‘every one has the right to bring
a justiciable matter to and to obtain a
a justiciable matter to and to obtain a
decision or judgment by, a court of law or
decision or judgment by, a court of law or
any other competent body with judicial
any other competent body with judicial
power.
power.

 This seems to define broadly the scope of
This seems to define broadly the scope of
judicial power.
judicial power.
 It suggests that not all disputes are within
It suggests that not all disputes are within
the scope of judicial power.
the scope of judicial power.
 Judges or other bodies with judicial power
Judges or other bodies with judicial power
decide only justiciable matters, those that
decide only justiciable matters, those that
arise from actual cases and are capable of
arise from actual cases and are capable of
settlement by legal methods. Art. 37 (1).
settlement by legal methods. Art. 37 (1).

State and Federal
State and Federal
Subject matter
Subject matter

A. The Division of Judicial Power in Federal
A. The Division of Judicial Power in Federal
Ethiopia
Ethiopia
 Art 80(1) of the Constitution provides that
Art 80(1) of the Constitution provides that
the Federal Supreme Court has the final
the Federal Supreme Court has the final
say on Federal matters
say on Federal matters
 Art 80(2) of same, stipulates that Regional
Art 80(2) of same, stipulates that Regional
Supreme Courts shall have the final
Supreme Courts shall have the final
authority, and, hence, gives final decision
authority, and, hence, gives final decision
on regional matters.
on regional matters.
 Though the Constitution purports to lay a
Though the Constitution purports to lay a
clear distinction between the ‘Federal
clear distinction between the ‘Federal
matters’ and the ‘Regional mattes’,
matters’ and the ‘Regional mattes’,

 it is not , nonetheless, of much
it is not , nonetheless, of much
significance, in definitively specifying as
significance, in definitively specifying as
to what constitutes Federal or Regional
to what constitutes Federal or Regional
matters-so as to enable one in precisely
matters-so as to enable one in precisely
determining the respective powers of the
determining the respective powers of the
courts.
courts.
 There are two conceivable ways of
There are two conceivable ways of
looking at the issue under consideration
looking at the issue under consideration
in order to determine the respective
in order to determine the respective
competence of the Federal and Regional
competence of the Federal and Regional
courts.
courts.

 The first technique attempts to solve the
The first technique attempts to solve the
problem on the basis of the power-sharing
problem on the basis of the power-sharing
method of the Constitution itself
method of the Constitution itself.
.
 in consonant with the theory of
in consonant with the theory of
‘federalism’,
‘federalism’,
 the FDRE Constitution, defines the powers
the FDRE Constitution, defines the powers
and functions of both the Federal and
and functions of both the Federal and
Regional governments
Regional governments
 It is the source of power allocation (Art.
It is the source of power allocation (Art.
50(8) b/n the centre and the units; don’t
50(8) b/n the centre and the units; don’t
look else where to assert your power
look else where to assert your power
 The same formula shall apply with respect
The same formula shall apply with respect
to judicial power allocation
to judicial power allocation

 Mode of power allocation under the
Mode of power allocation under the
Constitution:
Constitution:
 Federal power exhaustively listed;
Federal power exhaustively listed;
 It doesn’t define ‘federal matters’ for
It doesn’t define ‘federal matters’ for
purpose of division of judicial power
purpose of division of judicial power
b/n the centre and the periphery;
b/n the centre and the periphery;
 It enumerates only federal executive
It enumerates only federal executive
and legislative power; see Arts. 51, 52
and legislative power; see Arts. 51, 52
&55 of the FDRE Constitution
&55 of the FDRE Constitution
 Concurrent powers defined
Concurrent powers defined
 Residual powers left for the states
Residual powers left for the states

 Implication of the mode of power
Implication of the mode of power
division for judicial power allocation
division for judicial power allocation
 You can’t confer jurisdiction upon federal
You can’t confer jurisdiction upon federal
courts by way of implication/tacitly
courts by way of implication/tacitly
 State matter is defined in the negative:
State matter is defined in the negative:
something not federal is state; an
something not federal is state; an
indirect way of ascertaining state matter
indirect way of ascertaining state matter
 Power not expressly listed as federal
Power not expressly listed as federal
matter automatically falls under state
matter automatically falls under state
matter unless otherwise listed as
matter unless otherwise listed as
concurrent jurisdiction
concurrent jurisdiction
 judicial power is the corollary of
judicial power is the corollary of
legislative power
legislative power

 In USA according to Article III, federal judicial
In USA according to Article III, federal judicial
power extends to:
power extends to:
(1) cases arising under the Constitution, the
(1) cases arising under the Constitution, the
laws , and treaties made by USA;
laws , and treaties made by USA;
(2) admiralty and maritime cases;
(2) admiralty and maritime cases;
(3) controversies between two or more states;
(3) controversies between two or more states;
(4) controversies to which the USA is a party,
(4) controversies to which the USA is a party,
even where the other party is a state;
even where the other party is a state;
(5) suits between citizens of different states;
(5) suits between citizens of different states;
(6) cases begun by a state against a citizen of
(6) cases begun by a state against a citizen of
another state or against another country.
another state or against another country.

Article III, "The judicial Power of the United
Article III, "The judicial Power of the United
States, shall be vested in one supreme Court,
States, shall be vested in one supreme Court,
and in such
and in such inferior Courts as the Congress
inferior Courts as the Congress
may from time to time ordain and
may from time to time ordain and
establish
establish
Congressional power to define the
Congressional power to define the
jurisdiction of the federal courts
jurisdiction of the federal courts within the
within the
limits of Article III
State courts have concurrent jurisdiction
State courts have concurrent jurisdiction
over cases within the federal judicial
over cases within the federal judicial
power except when Congress specifically
power except when Congress specifically
prohibits it (exclusive jurisdiction).
prohibits it (exclusive jurisdiction).

 In America under the constitution (Art.3)
In America under the constitution (Art.3)
state and federal courts have concurrent
state and federal courts have concurrent
jurisdiction;
jurisdiction;
 Federal exclusive subject matter is
Federal exclusive subject matter is
authorized by federal statute
authorized by federal statute
 Except these matters exclusively
Except these matters exclusively
allocated to federal courts state
allocated to federal courts state
courts
courts have concurrent jurisdiction
have concurrent jurisdiction
over federal matters despite the
over federal matters despite the
establishment of federal courts in
establishment of federal courts in
states
states
 There is no such thing as delegation.
There is no such thing as delegation.

 Concurrent Jurisdiction:
Concurrent Jurisdiction: Jurisdiction that
Jurisdiction that
might be exercised simultaneously by
might be exercised simultaneously by
more than one court; litigant chooses
more than one court; litigant chooses
where to file.
where to file.
 Exclusive Jurisdiction.
Exclusive Jurisdiction. A court's power to
A court's power to
adjudicate an action or class of actions to
adjudicate an action or class of actions to
the exclusion of all other courts
the exclusion of all other courts

Discussion
Discussion Exercise
Exercise
So what is the subject matter jurisdiction of
So what is the subject matter jurisdiction of
federal courts in Ethiopia?
federal courts in Ethiopia?
Is it corollary of legislative power?
Is it corollary of legislative power?
If it is corollary, what is the jurisdiction of
If it is corollary, what is the jurisdiction of
state courts over federal matters arising in
state courts over federal matters arising in
their states?
their states?
Approaches to Arts. 78(2) & 80(1&2)
Approaches to Arts. 78(2) & 80(1&2)
 is it ‘delegated’ or ‘original’? ‘revocable’
is it ‘delegated’ or ‘original’? ‘revocable’
or ‘non-revocable’?
or ‘non-revocable’?
 Delegated vs concurrent powers over
Delegated vs concurrent powers over
the so-called ‘federal matters’
the so-called ‘federal matters’

 Do federal courts have jurisdiction over
Do federal courts have jurisdiction over
civil cases arising in the states where no
civil cases arising in the states where no
federal ct is yet to be established?
federal ct is yet to be established?
 Or is it the ‘exclusive’ jurisdiction of the
Or is it the ‘exclusive’ jurisdiction of the
states themselves until a federal ct is
states themselves until a federal ct is
established there?
established there?
 The implication of Proc No.322/2003?
The implication of Proc No.322/2003?

B. Jurisdictional Relationship Under The
B. Jurisdictional Relationship Under The
constitution
constitution
There are two views as far as the Ethiopian
There are two views as far as the Ethiopian
court structure of shared judicial power is
court structure of shared judicial power is
concerned.
concerned.
 On the one hand there are those who hold
On the one hand there are those who hold
that the dual court structure is strictly
that the dual court structure is strictly
taken both under the constitution and the
taken both under the constitution and the
proclamations issued and
proclamations issued and
 as a result contend that civil or criminal
as a result contend that civil or criminal
cases fall either before an exclusively
cases fall either before an exclusively
federal court or an exclusively state court;
federal court or an exclusively state court;

hence there is no case of shared/concurrent
hence there is no case of shared/concurrent
judicial power.
judicial power.
One indication of this is the fact that
One indication of this is the fact that
Proclamation 25/96 has not openly provided
Proclamation 25/96 has not openly provided
for the existence of shared judicial powers.
for the existence of shared judicial powers.
Proc. 25/96; Proc. 254/2001; Proc. 321/2003.
Proc. 25/96; Proc. 254/2001; Proc. 321/2003.

The other view, despite the law’s silence
The other view, despite the law’s silence
there still remains a concurrent judicial
there still remains a concurrent judicial
power. E.g.:
power. E.g.:
 labour cases ,as per Art. 55(3) of the
labour cases ,as per Art. 55(3) of the
Constitution that are federal law matter.
Constitution that are federal law matter.
 The commercial code too is a federal law
The commercial code too is a federal law
by virtue of Article 55(4) of the Constitution
by virtue of Article 55(4) of the Constitution
and
and
 the same holds true for the penal code
the same holds true for the penal code
(Art. 55(5)).
(Art. 55(5)).
the state courts do adjudicate criminal cases
the state courts do adjudicate criminal cases
in the regular discharge of judicial duties,
in the regular discharge of judicial duties, not
not
in their delegated powers
in their delegated powers

The fact that the federal Supreme Court
The fact that the federal Supreme Court
does also review state cases when it
does also review state cases when it
discovers errors of law also suggests the
discovers errors of law also suggests the
existence of shared judicial powers.
existence of shared judicial powers.
As a result despite the apparent parallel
As a result despite the apparent parallel
existence of courts, like other powers, there
existence of courts, like other powers, there
are shared judicial powers.
are shared judicial powers.

 Besides the federal and state constitutions
Besides the federal and state constitutions
incorporate a huge number of rights and
incorporate a huge number of rights and
freedoms.
freedoms.
 It is declared that ‘All federal and state
It is declared that ‘All federal and state
legislature, executive and judicial organs
legislature, executive and judicial organs
at all levels shall have the responsibility
at all levels shall have the responsibility
and duty to respect and enforce the
and duty to respect and enforce the
provisions of this chapter [chapter three].
provisions of this chapter [chapter three].
 It must be emphasized also that it is a duty
It must be emphasized also that it is a duty
imposed on the judiciary at all levels, apart
imposed on the judiciary at all levels, apart
from the other branches.
from the other branches.

 ‘
‘respecting and enforcing’ fundamental rights
respecting and enforcing’ fundamental rights
and freedoms by the judiciary is meaningless,
and freedoms by the judiciary is meaningless,
unless the judiciary is involved in interpreting
unless the judiciary is involved in interpreting
the scope and limitation of those rights and
the scope and limitation of those rights and
freedoms which it is bound to enforce.
freedoms which it is bound to enforce.
 In this respect, contrary to popular thinking,
In this respect, contrary to popular thinking,
the federal and state courts are not prohibited
the federal and state courts are not prohibited
from interpreting the constitution,
from interpreting the constitution,
 This adds to the view that that there is shared
This adds to the view that that there is shared
judicial power although the final say as far as
judicial power although the final say as far as
constitutional interpretation of parliamentary
constitutional interpretation of parliamentary
legislation is concerned, is reserved to the HoF.
legislation is concerned, is reserved to the HoF.

 Provisions of the constitution uses
Provisions of the constitution uses
“delegation “ and “concurrent”
“delegation “ and “concurrent”
interchangeably;
interchangeably;
 Art. 78: Independence of the Judiciary
Art. 78: Independence of the Judiciary
 2. ..
2. ..Unless decided in this manner, the
Unless decided in this manner, the
jurisdictions of the FHC and of the FFIC
jurisdictions of the FHC and of the FFIC
are hereby
are hereby delegated to the State
delegated to the State
courts
courts.
.
 Amharic version
Amharic version ”…..lekillin firdbeetoch
”…..lekillin firdbeetoch
tesetuwal
tesetuwal” doesn’t indicate delegation
” doesn’t indicate delegation

 Art. 79: Judicial Powers
Art. 79: Judicial Powers
 7. …The HPR
7. …The HPR shall allocate compensatory
shall allocate compensatory
budgets for States
budgets for States whose Supreme and
whose Supreme and
High courts
High courts concurrently exercise the
concurrently exercise the
jurisdictions of the
jurisdictions of the FHC and FFIC .
FHC and FFIC .
 Budget is allocated for what is
Budget is allocated for what is
indicated as “delegation “ under Art.
indicated as “delegation “ under Art.
78(2) and “
78(2) and “concurrent” under Art. 79(7);
concurrent” under Art. 79(7);
 Since the heading of Art. 79 is about
Since the heading of Art. 79 is about
judicial power and its Amharic version
judicial power and its Amharic version
says
says “….darribew lemiserut
“….darribew lemiserut…”, not
…”, not
“..bewikilinnaa…”
“..bewikilinnaa…”
 Thus this power is concurrent,
Thus this power is concurrent,

 Art. 80: Concurrent Jurisdiction of
Art. 80: Concurrent Jurisdiction of
Courts---
Courts--- exercising the jurisdiction on
exercising the jurisdiction on
Federal matters
Federal matters
 2. State Supreme Courts shall have the
2. State Supreme Courts shall have the
highest and final judicial power over State
highest and final judicial power over State
matters.
matters. They shall also exercise the
They shall also exercise the
jurisdiction of the Federal High Court.
jurisdiction of the Federal High Court.
 4. State High Courts shall,
4. State High Courts shall, in addition to State
in addition to State
jurisdiction, exercise the jurisdiction of the
jurisdiction, exercise the jurisdiction of the
Federal First-Instance Court.
Federal First-Instance Court.
It indicates
It indicates Concurrent or original
Concurrent or original
jurisdiction
jurisdiction and state may claim jurisdiction
and state may claim jurisdiction
in the presence of federal courts
in the presence of federal courts

 Art. 80: Concurrent Jurisdiction of
Art. 80: Concurrent Jurisdiction of
Courts-
Courts-----
----appeal ability
appeal ability
 5. Decisions rendered
5. Decisions rendered by a State High
by a State High
Court exercising the jurisdiction of the
Court exercising the jurisdiction of the
Federal First-Instance Court
Federal First-Instance Court are
are
appealable to the State Supreme Court
appealable to the State Supreme Court.
.
 6.
6. Decisions rendered by a State Supreme
Decisions rendered by a State Supreme
Court on Federal matters
Court on Federal matters are
are appealable
appealable
to the Federal Supreme Court.
to the Federal Supreme Court.

 Made FSC a final appellate judicial
Made FSC a final appellate judicial
authority, but limited to:
authority, but limited to:
 federal matters originally decided by state
federal matters originally decided by state
supreme court
supreme court
 federal matters decided by state supreme
federal matters decided by state supreme
courts in their appellate jurisdiction in
courts in their appellate jurisdiction in
variation of state high courts decisions
variation of state high courts decisions
 federal matters decided by state supreme
federal matters decided by state supreme
courts in their appellate jurisdiction
courts in their appellate jurisdiction
affirming state high courts decisions is not
affirming state high courts decisions is not
appealable to FSC
appealable to FSC
 Shows concurrent
Shows concurrent

 If we say delegation it can be taken away
If we say delegation it can be taken away
when federal courts are established;
when federal courts are established;
 This can be the case if the constitution is
This can be the case if the constitution is
upholding the principle of Exclusive
jurisdiction with regard to federal subject
jurisdiction with regard to federal subject
matter
matter
Only federal courts are allowed to
Only federal courts are allowed to
adjudicate cases arising under the law;
 Our constitution does not expressly empower
Our constitution does not expressly empower
HPR to determine federal Exclusive
HPR to determine federal Exclusive
jurisdiction
jurisdiction
 It is not clear as to whether under proc. 25/96
It is not clear as to whether under proc. 25/96
there is federal Exclusive jurisdiction or state
there is federal Exclusive jurisdiction or state
Exclusive jurisdiction over federal matters;
Exclusive jurisdiction over federal matters;

 The HPR has the power of Establishing federal
The HPR has the power of Establishing federal
high and first instance courts per Art. 78:2 of
high and first instance courts per Art. 78:2 of
the Constitution
the Constitution
 This mandate :
This mandate :
 Defining their jurisdiction ‘vertically’, Not
Defining their jurisdiction ‘vertically’, Not
to divide judicial power b/n federal and
to divide judicial power b/n federal and
state courts ‘horizontally’ ;
state courts ‘horizontally’ ;
 the horizontal allocation of judicial power
the horizontal allocation of judicial power
b/n the centre and the units is the
b/n the centre and the units is the
business of the Constitution, not that of
business of the Constitution, not that of
the Parliament through a subsidiary
the Parliament through a subsidiary
legislation!!
legislation!!

 In USA Federal and state
In USA Federal and state judicial power
judicial power
(
(matters) are distinguished under Art.
matters) are distinguished under Art. III of
III of
the constitution
the constitution
Our constitution does not
Our constitution does not
 Congressional power to define the exclusive
Congressional power to define the exclusive
jurisdiction of the federal courts
jurisdiction of the federal courts within the
within the
 the Constitution must initially authorize
the Constitution must initially authorize
Congress to enact a particular law;
Congress to enact a particular law;
 No express empowerment of HPR under our
No express empowerment of HPR under our
constitution
constitution

 But the
But the the constitution clearly
the constitution clearly
enumerated powers between the national
enumerated powers between the national
and state governments
and state governments
 So any controversy wh/r a given case is fed.
So any controversy wh/r a given case is fed.
or state should be resolved only by reference
or state should be resolved only by reference
to the Constitution, not to Proc. No. 25/96
to the Constitution, not to Proc. No. 25/96
 Therefore concurrent power===appealable
Therefore concurrent power===appealable
to federal supreme court;
to federal supreme court; State exclusive is
State exclusive is
not appealable..
not appealable.. Abebe’s position
Abebe’s position
 A state supreme court decision on a federal
A state supreme court decision on a federal
matter, not exclusive, could be final and
matter, not exclusive, could be final and
binding without resort to the federal
binding without resort to the federal
Supreme Court except by way of cassation.
Supreme Court except by way of cassation.

a decision of a state supreme court on shared,
a decision of a state supreme court on shared,
not delegated powers, as a matter of
not delegated powers, as a matter of practice
practice
can’t be appealed before the fed.l Supreme
can’t be appealed before the fed.l Supreme
Court and the latter does not seem to have
Court and the latter does not seem to have
realized that it is divested from reviewing all
realized that it is divested from reviewing all
federal cases arising from federal laws
federal cases arising from federal laws
The appellate power of the FSC is explicitly
The appellate power of the FSC is explicitly
stated under Art. 80(6) ‘decision rendered by a
stated under Art. 80(6) ‘decision rendered by a
state Supreme Court on federal matters are
state Supreme Court on federal matters are
appealable to the FSC’ and appeal cases from
appealable to the FSC’ and appeal cases from
state courts exercising
state courts exercising delegated
delegated federal
federal
jurisdiction to a higher court in the hierarchy
jurisdiction to a higher court in the hierarchy
are stipulated under Article 80 (4) and (5).
are stipulated under Article 80 (4) and (5).

Discussion
Discussion Exercise
Exercise
 Is allocation of judicial power b/n the centre
Is allocation of judicial power b/n the centre
and the units is the business of Proc. No.
and the units is the business of Proc. No.
25/96?
25/96?
 So what is the status of the proclamation?
So what is the status of the proclamation?
Vertical ??
Vertical ??
 Does HPR has the power to determine and
Does HPR has the power to determine and
allocate judicial power between federal and
allocate judicial power between federal and
states?
states?

despite the lack of definition of what
despite the lack of definition of what
constitutes a federal matter ‘we can
constitutes a federal matter ‘we can
presume that all cases that arise or claims
presume that all cases that arise or claims
that are based on federal law may be called
that are based on federal law may be called
a federal matter and the rest may be
a federal matter and the rest may be
categorized as state matter
categorized as state matter
Accordingly, all laws enacted by virtue of
Accordingly, all laws enacted by virtue of
Article 55 of the federal Constitution by the
Article 55 of the federal Constitution by the
HoPR are federal laws
HoPR are federal laws

Yet this rules out the possibility of
Yet this rules out the possibility of shared
shared
judicial power
judicial power
This rather vaguely stated principle of
This rather vaguely stated principle of
federal and state matter is somehow defined
federal and state matter is somehow defined
under the proclamation that establishes
under the proclamation that establishes
federal courts.
federal courts.

 HPR’s understanding of ‘Federal matters’
HPR’s understanding of ‘Federal matters’
 Article 3 of Prc.No.25/96 federalizes
Article 3 of Prc.No.25/96 federalizes
three matters:
three matters:
a)
a) Source of cause of action-a look at
Source of cause of action-a look at
the substantive law defining rights &
the substantive law defining rights &
obligations
obligations
b)
b) Identity of parties involved in the
Identity of parties involved in the
suit
suit
c)
c) Place of cause of action
Place of cause of action

a)
a) Sources of ‘cause of action’
Sources of ‘cause of action’:
:
i.
i. FDRE Constitution.
FDRE Constitution.
ii.
ii. Federal laws
Federal laws
iii.
iii. International treaties.
International treaties.
 certain kinds of cases may be heard by
certain kinds of cases may be heard by
the federal courts because of the
the federal courts because of the
nature of the
nature of the subject matter
subject matter of the
of the
litigation.
litigation.
 we look at the
we look at the ‘cause of action’
‘cause of action’ of the
of the
plaintiff, not at the
plaintiff, not at the ‘defense’
‘defense’ of the
of the
defendant even if it arises under these
defendant even if it arises under these
sources to federalize a case.
sources to federalize a case.

Discussion
Discussion Exercise
Exercise
Do you think that these cases are truly
Do you think that these cases are truly
‘federal matters’ in the spirit of the
‘federal matters’ in the spirit of the
Constitution, if not in express terms of
Constitution, if not in express terms of
same?
same?

Cases is based on
Cases is based on Constitution and
Constitution and
International treaties
International treaties
Is there any civil case that can directly arise
Is there any civil case that can directly arise
from this source?
from this source?

 Cases Arising Under Federal Laws
Cases Arising Under Federal Laws
 Federal courts have subject matter
Federal courts have subject matter
jurisdiction over “all civil actions arising
jurisdiction over “all civil actions arising
under the Constitution, laws, or treaties” - -
under the Constitution, laws, or treaties” - -
federal question jurisdiction.
federal question jurisdiction.
This , in USA, means that if your cause of
This , in USA, means that if your cause of
action is based on a federal statute, you
action is based on a federal statute, you
can sue in federal court.
can sue in federal court.
 This jurisdiction is not exclusive; you are
This jurisdiction is not exclusive; you are
not
not required to
required to sue in federal court
sue in federal court
merely because your case is based on a
merely because your case is based on a
federal statute.
federal statute.

 Federal’ laws are:
Federal’ laws are:
 laws which are enacted by the HPRs
laws which are enacted by the HPRs
 Regulations and directives enacted by
Regulations and directives enacted by
council of ministers
council of ministers
 international agreements adopted by the
international agreements adopted by the
HPR are treated as Federal laws.
HPR are treated as Federal laws.

 State law causes of action:
State law causes of action:
 Each state has its own legislators and
Each state has its own legislators and
appellate judges, each with their own
appellate judges, each with their own
opinions about what the law should be,
opinions about what the law should be,
and each free to legislate accordingly.
and each free to legislate accordingly.
 each state would always apply its own
each state would always apply its own
substantive law
substantive law
 But a part of the substantive law of each
But a part of the substantive law of each
state consists of “choice of law” laws,
state consists of “choice of law” laws,
which may require a given case to be
which may require a given case to be
decided under the substantive laws of
decided under the substantive laws of
some other state!
some other state!

 There are conditions whereby cases arising
There are conditions whereby cases arising
under State Laws be regarded as Federal
under State Laws be regarded as Federal
subject matter:
subject matter:
 where the parties to the litigation are
where the parties to the litigation are
those listed under Art. 5(1)-(4) of Proc No
those listed under Art. 5(1)-(4) of Proc No
25/96;
25/96;
 in Addis Ababa or Dire Dawa (Art 80 of the
in Addis Ababa or Dire Dawa (Art 80 of the
Constitution and Arts 11(1) (b) and 14(2) of
Constitution and Arts 11(1) (b) and 14(2) of
Proc No 25/96).
Proc No 25/96).
 Consequently, State cases are cases that
Consequently, State cases are cases that
arise on the cases of State Law and that are
arise on the cases of State Law and that are
not categorized under Federal cases.
not categorized under Federal cases.

 Discussion
Discussion Question
Question
 what about lawsuits in which you assert
what about lawsuits in which you assert
some causes of action based on federal
some causes of action based on federal
statutes and others based on state law?
statutes and others based on state law?
 Does including a state law cause of action
Does including a state law cause of action
in an otherwise federal case deprive the
in an otherwise federal case deprive the
federal court of subject matter
federal court of subject matter
jurisdiction?
jurisdiction?

In general, no. If there is at least one valid
In general, no. If there is at least one valid
federal cause of action, the federal court is
federal cause of action, the federal court is
said to have
said to have pendent jurisdiction over the
pendent jurisdiction over the
appended state law
appended state law causes of action.
causes of action.
In fact, it is commonplace for lawsuits in
In fact, it is commonplace for lawsuits in
federal court to include both federal and
federal court to include both federal and
state causes of action
state causes of action

 State law causes of action in federal court
State law causes of action in federal court:
:
 consider what happen when the plaintiff
consider what happen when the plaintiff
sues in federal district court on a cause of
sues in federal district court on a cause of
action based on state substantive law.
action based on state substantive law.
 Can this happen?
Can this happen?
 Certainly; by definition, federal diversity
Certainly; by definition, federal diversity
jurisdiction cases involve causes of action
jurisdiction cases involve causes of action
based on state substantive law; otherwise
based on state substantive law; otherwise
they would be federal question cases.
they would be federal question cases.
W/h substantive law should apply?
W/h substantive law should apply?
W/h procedural law? ;If have d/t laws,
W/h procedural law? ;If have d/t laws,

 In USA:
In USA:
 In diversity cases, federal courts apply
In diversity cases, federal courts apply
federal
federal procedural law
procedural law (the federal rules as
(the federal rules as
interpreted by the federal courts), but the
interpreted by the federal courts), but the
substantive law is the law of the
substantive law is the law of the state in
state in
which the court sits,
which the court sits,
 In other words, a federal district court
In other words, a federal district court
sitting in state X should, in theory,
sitting in state X should, in theory,
determine substantive law issues exactly
determine substantive law issues exactly
as if it were a state court in state X
as if it were a state court in state X

As a practical matter, in federal district
As a practical matter, in federal district
court, we can generalize and say that
court, we can generalize and say that
except in rare instances:
except in rare instances:
1. Any issue covered by the Fed. Rules of
1. Any issue covered by the Fed. Rules of
Civ.Proc. is procedural, and the rules
Civ.Proc. is procedural, and the rules
control.
control.
2. Any cause of action involving a federal
2. Any cause of action involving a federal
statute is
statute is a federal question, and federal
a federal question, and federal
substantive law (including federal appellate
substantive law (including federal appellate
court interpretations) controls.
court interpretations) controls.
3. On any other issues, state law controls,
3. On any other issues, state law controls,
as interpreted
as interpreted by the state appellate courts
by the state appellate courts
of the state in which the district court sits.
of the state in which the district court sits.

 In Ethiopia:
In Ethiopia:
 Cause of action arises under state law:
Cause of action arises under state law:
federal cts apply state law in their forum,
federal cts apply state law in their forum,
 Substantive Laws to be Applied by Federal
Substantive Laws to be Applied by Federal
Courts:
Courts:
 Art. 6(1)(a)--
Art. 6(1)(a)-- Federal laws and
Federal laws and
international treaties;
international treaties;
 Article 6(1)(b)--
Article 6(1)(b)-- Regional laws where the
Regional laws where the
cases relate to same;
cases relate to same;
 Article (2)==
Article (2)== Regional laws to be applied
Regional laws to be applied
shall not be applicable where they are
shall not be applicable where they are
inconsistent with‘ Federal laws…….
inconsistent with‘ Federal laws…….

 The federal supremacy issue: is it the case
The federal supremacy issue: is it the case
in Ethiopia?
in Ethiopia?
 Do federal laws take precedence over
Do federal laws take precedence over
state laws in case of conflict?
state laws in case of conflict?
 No express provision in the FDRE
No express provision in the FDRE
Constitution establishing federal
Constitution establishing federal
supremacy
supremacy
 Article 6(2) of Proc. No. 25/95:
Article 6(2) of Proc. No. 25/95:
 The bad example of family laws
The bad example of family laws
 The good example of rural land laws on
The good example of rural land laws on
issues of succession
issues of succession

Discussion
Discussion Exercise
Exercise
 Does the subject matter jurisdiction of
Does the subject matter jurisdiction of
federal courts extend to and congruent with
federal courts extend to and congruent with
areas covered by the laws issued by the
areas covered by the laws issued by the
federal parliament (HPR)?
federal parliament (HPR)? ART. 3????
ART. 3????
 Not really per the practice of federal courts;
Not really per the practice of federal courts;
they limit themselves to cases under Art. 5(1-
they limit themselves to cases under Art. 5(1-
10) of Proc. No.25/96
10) of Proc. No.25/96

The mismatch b/n Arts. 3(1) & 5 of Proc.
The mismatch b/n Arts. 3(1) & 5 of Proc.
No.25/96
No.25/96
 Art.3(1) covers every federal law, but Art.5
Art.3(1) covers every federal law, but Art.5
enumerates only few federal laws such as
enumerates only few federal laws such as
nationality law,
nationality law, and few matters under
and few matters under
the Commercial Code (e.g,
the Commercial Code (e.g, negotiable
negotiable
instruments & insurance
instruments & insurance),
), intellectual
intellectual
property, and habeas corpus
property, and habeas corpus
In USA the federal courts also have
In USA the federal courts also have exclusive
exclusive
jurisdiction over bankruptcy, patent and
jurisdiction over bankruptcy, patent and
copyright law.
copyright law.

 Exercise Question:
Exercise Question:
 what about the rest of federal laws not listed
what about the rest of federal laws not listed
under Art.5?
under Art.5?
 The question then is whether what is defined
The question then is whether what is defined
under Proclamation No. 25/96 is only
under Proclamation No. 25/96 is only
exclusive
exclusive federal jurisdiction and as to
federal jurisdiction and as to
whether there is a shared/concurrent judicial
whether there is a shared/concurrent judicial
power between federal and state courts?
power between federal and state courts?
 What does the practice look like?
What does the practice look like?

the phrase ‘federal laws’ is given a very wide
the phrase ‘federal laws’ is given a very wide
definition under Article 2(3) of Proclamation
definition under Article 2(3) of Proclamation
25/96 as ‘laws of the federal government
25/96 as ‘laws of the federal government
include all previous laws in force which are
include all previous laws in force which are
not inconsistent with the constitution and
not inconsistent with the constitution and
relating to matters that fall within the
relating to matters that fall within the
competence of the federal government as
competence of the federal government as
specified in the constitution.’
specified in the constitution.’
the proclamation that defines the civil and
the proclamation that defines the civil and
criminal jurisdiction of federal courts lists
criminal jurisdiction of federal courts lists
only a fraction
only a fraction of the offences or cases to be
of the offences or cases to be
adjudicated by federal courts
adjudicated by federal courts

one can’t conclude that the proc.
one can’t conclude that the proc.
exhaustively enumerated the jurisdiction of
exhaustively enumerated the jurisdiction of
fed. Courts
fed. Courts
 It is certain that state courts do adjudicate
It is certain that state courts do adjudicate
cases arising from federal laws in their
cases arising from federal laws in their
competence as state courts, not in their
competence as state courts, not in their
delegated function.
delegated function.
what power state courts have on the rest
what power state courts have on the rest
of federal laws not listed under Art.5?
of federal laws not listed under Art.5?

 1
1st
st
position: exclusive state jurisdiction
position: exclusive state jurisdiction
 Abebe argues that those fed. cases not
Abebe argues that those fed. cases not
mentioned by Proc. 25/96 belong to
mentioned by Proc. 25/96 belong to
‘exclusive state jurisdiction
‘exclusive state jurisdiction b/se a fed.
b/se a fed.
matter by virtue of this proc. is narrowly
matter by virtue of this proc. is narrowly
defined
defined
 The rest of the federal laws, w/h are not
The rest of the federal laws, w/h are not
enumerated, are then understood to be
enumerated, are then understood to be
within the jurisdiction of state courts.
within the jurisdiction of state courts.
 It indicates original jurisdiction and state
It indicates original jurisdiction and state
may claim jurisdiction in the presence of
may claim jurisdiction in the presence of
federal courts
federal courts

2
2nd
nd
: position:
: position: Concurrent powers
Concurrent powers
 The point, however, is that it is difficult to
The point, however, is that it is difficult to
think federal courts are prohibited from
think federal courts are prohibited from
adjudicating what is inherently their
adjudicating what is inherently their
subject matter.
subject matter.
 Not every case arising from federal law, as
Not every case arising from federal law, as
the Constitution suggests, is within the
the Constitution suggests, is within the
jurisdiction of federal courts.
jurisdiction of federal courts.
 what is stated in the proc. constitutes
what is stated in the proc. constitutes
exclusive fed. powers, the balance rightly
exclusive fed. powers, the balance rightly
is adjudicated by the state courts as they
is adjudicated by the state courts as they
do exercise shared powers but not as
do exercise shared powers but not as
exclusive state powers.
exclusive state powers.

 The appellate power of the FSC (Art.
The appellate power of the FSC (Art.
80(6))----‘decision rendered by a state Sup.
80(6))----‘decision rendered by a state Sup.
Court on fed. matters are appealable to the
Court on fed. matters are appealable to the
FSC’ ;
FSC’ ;
 appeal cases from state courts exercising
appeal cases from state courts exercising
delegated
delegated federal jurisdiction to a higher
federal jurisdiction to a higher
court in the hierarchy are stipulated under
court in the hierarchy are stipulated under
Article 80 (4) and (5).
Article 80 (4) and (5).
 a decision of a state sup. court on shared,
a decision of a state sup. court on shared,
not delegated powers, as a matter of
not delegated powers, as a matter of practice
practice
can’t be appealed before the FSC and the
can’t be appealed before the FSC and the
latter does not seem to have realized that it
latter does not seem to have realized that it
is divested from reviewing all fed.l cases
is divested from reviewing all fed.l cases
arising from fed. laws
arising from fed. laws

 The notion of exclusive state power, in
The notion of exclusive state power, in
the context suggested by Abebe, rules out
the context suggested by Abebe, rules out
what is inherent jurisdiction of federal
what is inherent jurisdiction of federal
courts.
courts.
 Hence the better view is to consider the
Hence the better view is to consider the
bulk of federal cases adjudicated by state
bulk of federal cases adjudicated by state
courts as shared, not as exclusive state
courts as shared, not as exclusive state
matter and what is defined by
matter and what is defined by
Proclamation 25/96 is the exclusive federal
Proclamation 25/96 is the exclusive federal
matter
matter
Which line of argument Do you agree
Which line of argument Do you agree
with?
with?

 Would Proc 25/96 Art. 5 be federal
Would Proc 25/96 Art. 5 be federal
statute setting out federal exclusive
statute setting out federal exclusive
jurisdiction in civil cases?
jurisdiction in civil cases?
 Since there is no federal court is yet to
Since there is no federal court is yet to
be established in states what jurisdiction
be established in states what jurisdiction
they have on matters enumerated under
they have on matters enumerated under
Art. 5 of the procl. ?
Art. 5 of the procl. ?
 exclusive’ ?,concurrent?, delegated?
exclusive’ ?,concurrent?, delegated?
 The implication of Proc No.322/2003?
The implication of Proc No.322/2003?

 1
1st
st
, Not Federal Exclusive, Not state
, Not Federal Exclusive, Not state
delegation, but concurrent power
delegation, but concurrent power
 In USA Federal and state
In USA Federal and state judicial power
judicial power
(
(matters) are distinguished under Art.
matters) are distinguished under Art. III of
III of
the constitution
the constitution
 Congressional power to define the exclusive
Congressional power to define the exclusive
jurisdiction of the fed. crts
jurisdiction of the fed. crts within this limits.
within this limits.
 Except these matters exclusively
Except these matters exclusively
allocated to federal courts state courts
allocated to federal courts state courts
have concurrent jurisdiction over federal
have concurrent jurisdiction over federal
matters despite the establishment of
matters despite the establishment of
federal courts in states
federal courts in states

 This can be the case if the constitution is
This can be the case if the constitution is
jurisdiction with regard to fed. subject
jurisdiction with regard to fed. subject
matter
matter
Only federal courts are allowed to
Only federal courts are allowed to
 Our constitution does not expressly
Our constitution does not expressly
empower HPR to determine federal
empower HPR to determine federal
Exclusive jurisdiction
Exclusive jurisdiction
 It is not clear as to whether under proc.
It is not clear as to whether under proc.
25/96 there is federal Exclusive
25/96 there is federal Exclusive
jurisdiction or state Exclusive
jurisdiction or state Exclusive
jurisdiction over federal matters;
jurisdiction over federal matters;

 The HPR has the power of Establishing
The HPR has the power of Establishing
FHC and FFIC per Art. 78:2 of the
FHC and FFIC per Art. 78:2 of the
Constitution
Constitution
 This mandate :
This mandate :
 Defining their jurisdiction ‘vertically’, Not
Defining their jurisdiction ‘vertically’, Not
to divide judicial power b/n fed. and state
to divide judicial power b/n fed. and state
courts ‘horizontally’ ;
courts ‘horizontally’ ;
 the horizontal allocation of judicial
the horizontal allocation of judicial
power b/n the centre and the units is
power b/n the centre and the units is
the business of the Constitution,
the business of the Constitution,
 not that of the Parliament through a
not that of the Parliament through a
subsidiary legislation!!
subsidiary legislation!!

 So any controversy wh/r a given case is
So any controversy wh/r a given case is
fed. or state should be resolved only by
fed. or state should be resolved only by
reference to the Constitution, not to Proc.
reference to the Constitution, not to Proc.
No. 25/96
No. 25/96
 So matters enumerated under Art. 5 are
So matters enumerated under Art. 5 are
not federal exclusive, therefore ,are
not federal exclusive, therefore ,are
concurrent power of state and federal
concurrent power of state and federal
 Therefore ,fed. matters not enumerated
Therefore ,fed. matters not enumerated
under Art. 5 are state exclusive and are
under Art. 5 are state exclusive and are
not appealable to FSC
not appealable to FSC

 2
2nd
nd
, Federal Exclusive, State Delegation
, Federal Exclusive, State Delegation
 the Constitution speaks of delegation until
the Constitution speaks of delegation until
the HoPR decides to set up lower fed.
the HoPR decides to set up lower fed.
courts across the country, implying the
courts across the country, implying the
revocable position of the delegated power.
revocable position of the delegated power.
 The Amharic version, however, is less
The Amharic version, however, is less
explicit implying a given authority, not
explicit implying a given authority, not
necessarily a delegated one.
necessarily a delegated one.
 On the other hand Article 79(7) speaks of
On the other hand Article 79(7) speaks of
concurrent power rather than a delegated
concurrent power rather than a delegated
one, and the same term is employed under
one, and the same term is employed under
Article 80 which outlines rather more the
Article 80 which outlines rather more the
concept stipulated under Article 78(2).
concept stipulated under Article 78(2).

 Despite the apparent confusion in the use
Despite the apparent confusion in the use
of terms delegated or concurrent power,
of terms delegated or concurrent power,
 the delegated function of state courts is
the delegated function of state courts is
restricted to exclusive federal matters
restricted to exclusive federal matters
rather than to shared federal powers.
rather than to shared federal powers.
 Until such time as the HoPR establishes
Until such time as the HoPR establishes
fed. courts throughout, state courts have
fed. courts throughout, state courts have
delegated power to adjudicate exclusive
delegated power to adjudicate exclusive
fed. cases as defined by the proc..
fed. cases as defined by the proc..
 But state courts have concurrent/shared,
But state courts have concurrent/shared,
not delegated power over other fed.
not delegated power over other fed.
matters not mentioned under the proc.
matters not mentioned under the proc.

 For shared power they do not need
For shared power they do not need
delegation.
delegation.
 Proc. 322/2003,Article 2, the Federal High
Proc. 322/2003,Article 2, the Federal High
Benishangul-Gumuz, Somali and Afar. …..
Benishangul-Gumuz, Somali and Afar. …..
implies revocable delegation
implies revocable delegation
 the original design of the dual but
the original design of the dual but
delegated court structure under Article
delegated court structure under Article
78(2)
78(2)
Which of the above arguments have
Which of the above arguments have
legal ground and reasonable?
legal ground and reasonable?

b)
b) Identity of Parties
Identity of Parties
 The Constitution makes
The Constitution makes no express
no express
reference
reference to any single person or entity
to any single person or entity
that can federalize a case.
that can federalize a case.
 Art.5 lists some groups: check
Art.5 lists some groups: check
constitutionality!
constitutionality!
1.
1. Federal Gov’t organ-(Art.5(1))
Federal Gov’t organ-(Art.5(1))
 Does it include private face?
Does it include private face?
 Since under Art.5(1)) there is no
Since under Art.5(1)) there is no
provision “
provision “ in connection with their
in connection with their
official responsibilities or duties” like in
official responsibilities or duties” like in
Art. 5(3) does it includes private face?
Art. 5(3) does it includes private face?

 the public/sovereign face; its private face
the public/sovereign face; its private face
may fall under state jurisdiction
may fall under state jurisdiction
2. Federal employees acting in their official
2. Federal employees acting in their official
capacities;
capacities; Art.5(3)
Art.5(3)
 personal capacity falls under state
personal capacity falls under state
jurisdiction
jurisdiction
3. Foreign nationals-
3. Foreign nationals- Art.5(4)
Art.5(4)
 to send positive image
to send positive image

4. suits b/n persons permanently residing in
4. suits b/n persons permanently residing in
different regions’;
different regions’; ‘
‘Diversity Jurisdiction’
Diversity Jurisdiction’
of Federal Courts
of Federal Courts
 Art.5(2) of Proc.25/96: ‘
Art.5(2) of Proc.25/96: ‘if the case involves
if the case involves
parties who are permanent residents of
parties who are permanent residents of
different states, the case will be held
different states, the case will be held
under the jurisdiction of Federal Courts.
under the jurisdiction of Federal Courts.
 The idea here is that the
The idea here is that the federal courts
federal courts
should provide an impartial forum for
should provide an impartial forum for
suits between residents of different states.
suits between residents of different states.

Discussion
Discussion Question
Question
 Any clue in the Constitution?
Any clue in the Constitution?
 The Traditional American justifications
The Traditional American justifications
 Suits b/n residents of Addis/Dire Dawa
Suits b/n residents of Addis/Dire Dawa
and of the states, example, Addis vs
and of the states, example, Addis vs
Oromia:
Oromia:

 What does it mean for an action to be
What does it mean for an action to be
between citizens of different states?
between citizens of different states?
 Citizenship as used here
Citizenship as used here means “domicile ,
means “domicile ,
 Residence is a less exact term; in this text, we
Residence is a less exact term; in this text, we
will use it to mean the same as domicile
will use it to mean the same as domicile
 For purposes of procedural law, citizenship of
For purposes of procedural law, citizenship of
a state and domicile in a state are the same
a state and domicile in a state are the same
thing.
thing.
 A corporation is considered to be a citizen
A corporation is considered to be a citizen
of any state in which it is incorporated and
of any state in which it is incorporated and
also of the state in which its principal place
also of the state in which its principal place
of business is located.
of business is located.

 What about more complex disputes in
What about more complex disputes in
which there may be a number of plaintiffs
which there may be a number of plaintiffs
and defendants?
and defendants?
 In USA:
In USA:
 For there to be federal diversity jurisdiction,
For there to be federal diversity jurisdiction,
there must be “complete diversity.”
there must be “complete diversity.”
 That is, there can be no defendant who is a
That is, there can be no defendant who is a
resident of the same state as any plaintiff.
resident of the same state as any plaintiff.
 if there is any state that appears on both
if there is any state that appears on both
lists, there can be no federal diversity
lists, there can be no federal diversity
jurisdiction.
jurisdiction.
 Does this apply in Ethiopia?
Does this apply in Ethiopia?

 The Q is how should Art 3 (1) and (2) of the
The Q is how should Art 3 (1) and (2) of the
Proc. be understood-vis-à-vis Art 5(2)
Proc. be understood-vis-à-vis Art 5(2)
 Specifically Article 3(1) ….. a case based on
Specifically Article 3(1) ….. a case based on
federal laws, …….federal subject matter;
federal laws, …….federal subject matter;
 Art. 3(2) …
Art. 3(2) … parties specified in Federal Laws
parties specified in Federal Laws.
.
 The question is, whether the ‘Federal Laws’
The question is, whether the ‘Federal Laws’
and the parties thereto under
and the parties thereto under Art 3(2)
Art 3(2) could
could
be included under the ‘Federal Laws’
be included under the ‘Federal Laws’
mentioned in
mentioned in Art .3(1)
Art .3(1) ?
?
 Where parties indicated under Art. 5(2) are
Where parties indicated under Art. 5(2) are
parties specified in federal laws as per the
parties specified in federal laws as per the
principle under Art. 3(2)?
principle under Art. 3(2)?

 There is no contradiction between articles 3(1)
There is no contradiction between articles 3(1)
& 3(2) of the Proclamation. This is because:
& 3(2) of the Proclamation. This is because:
 while in articles 3(1) the base for
while in articles 3(1) the base for
jurisdiction is the issue of litigation, in
jurisdiction is the issue of litigation, in
articles 3(2), the base for jurisdiction is the
articles 3(2), the base for jurisdiction is the
identity of the parties, not the issue that
identity of the parties, not the issue that
they raise.
they raise.
 Therefore,, Federal Courts will have subject
Therefore,, Federal Courts will have subject
matter jurisdiction over cases arising from
matter jurisdiction over cases arising from
Federal Laws as well as on issues (though
Federal Laws as well as on issues (though
based on states laws) between parties who
based on states laws) between parties who
have been specified in Federal Laws.
have been specified in Federal Laws.

 According to Art 5(2) of the Proclamation, if
According to Art 5(2) of the Proclamation, if
the case involves parties who are permanent
the case involves parties who are permanent
residents of different states, the case will be
residents of different states, the case will be
held under the jurisdiction of Federal Courts
held under the jurisdiction of Federal Courts
 The requirement here is, their place of
The requirement here is, their place of
residence, not necessarily the issue they
residence, not necessarily the issue they
raise.
raise.

c.
c. Place of Cause of Action
Place of Cause of Action
 Art.3(3) ‘places specified in the
Art.3(3) ‘places specified in the
Constitution or Federal Laws’.
Constitution or Federal Laws’.
 Has the Constitution named any place?
Has the Constitution named any place?
 Can HPR simply name a place and
Can HPR simply name a place and
federalize any case arising from that
federalize any case arising from that
place?
place?
 Arts.11 &14 of Proc.25/96 ‘ civil cases
Arts.11 &14 of Proc.25/96 ‘ civil cases
arising in Addis Ababa & Dire Dawa’
arising in Addis Ababa & Dire Dawa’

Discussion
Discussion Question
Question
 Overlapping jurisdictions in Addis:
Overlapping jurisdictions in Addis:
 federal vs Oromia;
federal vs Oromia;
 whose jurisdiction is it to see cases
whose jurisdiction is it to see cases
involving the ‘interests of Oromia’ in
involving the ‘interests of Oromia’ in
Addis?
Addis?

Federal review of state court’s decision
Federal review of state court’s decision
 On federal matters (art.80:6) of FDRE
On federal matters (art.80:6) of FDRE
Constitution;…
Constitution;… Review by appeal
Review by appeal
 Decisions rendered by a State Supreme
Decisions rendered by a State Supreme
Court on Federal matters are appealable
Court on Federal matters are appealable
to the FSC.
to the FSC.
 That given by state supreme court in
That given by state supreme court in
its first instance jurisdiction? or
its first instance jurisdiction? or
 Its appellate jurisdiction----
Its appellate jurisdiction----reversed
reversed
or amended??
or amended?? Or
Or affirmed by state
affirmed by state
supreme court????
supreme court????
 Review by cassation, Art,80:3
Review by cassation, Art,80:3

 On state matters (art. 80:3a of FDRE
On state matters (art. 80:3a of FDRE
Constitution;…..
Constitution;….. Review by cassation
Review by cassation
 The issue of double cassation: for &
The issue of double cassation: for &
against federal review of state
against federal review of state
matters(art.80: 3&6)
matters(art.80: 3&6)
 The developing practice of
The developing practice of
precedent(Proc.No.454/2005
precedent(Proc.No.454/2005

Discussion Question
Discussion Question
 What if state courts refuse to recognize
What if state courts refuse to recognize
and execute federal court decisions or vice
and execute federal court decisions or vice
versa?
versa?
 How about the case as b/n the states
How about the case as b/n the states
themselves?
themselves?

The full faith & credit issue
The full faith & credit issue
 Full Faith and Credit shall be given in each
Full Faith and Credit shall be given in each
State to the public Acts, Records, and
State to the public Acts, Records, and
Judicial Proceedings of every other State.
Judicial Proceedings of every other State.
 Congress may by general Laws prescribe
Congress may by general Laws prescribe
the manner in w/h such Acts, Records, &
the manner in w/h such Acts, Records, &
Proceedings shall be proved,& the Effect
Proceedings shall be proved,& the Effect
thereof.
thereof.
 This “
This “Full Faith and Credit Clause”
Full Faith and Credit Clause” gives
gives
Congress what amounts to enforcement
Congress what amounts to enforcement
authority over the required recognition by
authority over the required recognition by
each state of the judgments, records, and
each state of the judgments, records, and
legislation of other states.
legislation of other states.

 No express constitutional answer
No express constitutional answer
 Article 50(8) of the Constitution requires
Article 50(8) of the Constitution requires
only comity
only comity
 The one-way-traffic of Article 35(1) of Proc.
The one-way-traffic of Article 35(1) of Proc.
25/95
25/95

Summary: Discussion Questions
Summary: Discussion Questions
 How far do you think HPR’s
How far do you think HPR’s
understanding and definition of ‘federal
understanding and definition of ‘federal
matter’ is consistent with the
matter’ is consistent with the
Constitution?
Constitution?
 How clear and neat is the boundary that
How clear and neat is the boundary that
divides judicial power as b/n states and
divides judicial power as b/n states and
federal in Ethiopia?
federal in Ethiopia?
 In whose favor does the presumption
In whose favor does the presumption
exist in the event of jurisdictional
exist in the event of jurisdictional
confusion?
confusion?

 How far federal courts exercise restraint so
How far federal courts exercise restraint so
that their power is kept within its
that their power is kept within its
constitutional limit? Or how aggressive they
constitutional limit? Or how aggressive they
are in federalizing and usurping power?
are in federalizing and usurping power?
 How comfortable the states are in
How comfortable the states are in
relinquishing or retaining judicial power vis-
relinquishing or retaining judicial power vis-
à-vis their federal counterparts? How
à-vis their federal counterparts? How
nationalist or federalist they are?
nationalist or federalist they are?

Jurisdictional
Jurisdictional Limits
Limits of Courts
of Courts:
:
 General , Limited and Exclusive subject
General , Limited and Exclusive subject
matter jurisdiction.
General subject matter jurisdiction.
General subject matter jurisdiction.
A court of general original subject
A court of general original subject
matter jurisdiction is a trial court with
matter jurisdiction is a trial court with
the power to hear any type of action.
the power to hear any type of action.
courts, we assume that the court has
courts, we assume that the court has
subject matter jurisdiction over
subject matter jurisdiction over
everything, except where there is some
everything, except where there is some
law that makes an exception
law that makes an exception

 Limited subject matter jurisdiction
Limited subject matter jurisdiction
 Their jurisdiction extends only to
Their jurisdiction extends only to a few
a few
specific categories of cases for which
specific categories of cases for which
legislature has passed laws allowing suits
legislature has passed laws allowing suits
in some court.
in some court.
 Federal courts, in contrast to the state
Federal courts, in contrast to the state
courts, are courts of
courts, are courts of limited subject
limited subject
 Exclusive Jurisdiction
Exclusive Jurisdiction,
,
 Cases which must be filed in a particular
Cases which must be filed in a particular
court
court

 Original Jurisdiction vs Appellate
Original Jurisdiction vs Appellate
Jurisdiction
Jurisdiction
Original
Original or trial
or trial Jurisdiction
Jurisdiction
you can only originate a lawsuit in a
you can only originate a lawsuit in a
court that has original jurisdiction over
court that has original jurisdiction over
it.
it.
For most types of federal cases, the first
For most types of federal cases, the first
instance court has original jurisdiction
instance court has original jurisdiction
and the high Court and Supreme Court
and the high Court and Supreme Court
have only appellate jurisdiction— that is,
have only appellate jurisdiction— that is,
they have the power to hear only
they have the power to hear only
appeals.
appeals.

 Appellate Jurisdiction
Appellate Jurisdiction
 Appellate courts review the trial court
Appellate courts review the trial court
record, hear oral arguments, and research
record, hear oral arguments, and research
the law to arrive at their decisions to either
the law to arrive at their decisions to either
affirm or reverse the decision of the trial
affirm or reverse the decision of the trial
court.
court.
 They focus on issues of law and can
They focus on issues of law and can
review issues of fact only to the extent
review issues of fact only to the extent
they decide that the trial court’s decision
they decide that the trial court’s decision
was reasonably based on the evidence
was reasonably based on the evidence
presented at trial.
presented at trial.

 Jurisdictional
Jurisdictional Limits
Limits of Courts
of Courts:
: Pecuniary
Pecuniary
Jurisdiction
Jurisdiction Vs Types of Cases
Vs Types of Cases
 The civil jurisdiction of the Federal First
The civil jurisdiction of the Federal First
Instance and High Court are treated,
Instance and High Court are treated,
under its Arts 11 and 14 respectively.
under its Arts 11 and 14 respectively.
 The two grounds the Proclamation
The two grounds the Proclamation
employed to determine the jurisdictional
employed to determine the jurisdictional
limit of the Federal Courts are: the amount
limit of the Federal Courts are: the amount
of money and the type of the case.
of money and the type of the case.
 FFIC= not exceeding Birr 500,000.00
FFIC= not exceeding Birr 500,000.00
 FHC= in excess of Birr 500,000.00,
FHC= in excess of Birr 500,000.00,

States Courts:
States Courts:
 E.g.. Proc. 141/2000 of Oromia
E.g.. Proc. 141/2000 of Oromia
Woreda–
Woreda– claims that involve
claims that involve up to
up to
30,000.00 for movables, and up to
30,000.00 for movables, and up to
50,000.00 for immovable
50,000.00 for immovable
 Other states civil code
Other states civil code Art 13 or their
Art 13 or their
respective courts establishment
respective courts establishment
proclamation
proclamation

 The Nexus B/N The Proc 25/96 And The
The Nexus B/N The Proc 25/96 And The
Civil Code
Civil Code
 Art. 7,“
Art. 7,“.Civ. Pro. C. as well as other
.Civ. Pro. C. as well as other
relevant laws in force shall apply with
relevant laws in force shall apply with
respect to
respect to
matters
matters not provided for
not provided for under this
under this
Proclamation
Proclamation
 insofar as they
insofar as they are not inconsistent
are not inconsistent
therewith
therewith
 Eg. Filiations,
Eg. Filiations,
 Under FFIC or FHC? Can it be valued?
Under FFIC or FHC? Can it be valued?
Is it covered? Inconsistent?
Is it covered? Inconsistent?

Determination of Amount in Controversy
Determination of Amount in Controversy
 litigant has to make valuation of the suit.
litigant has to make valuation of the suit.
 Valuation decides forum of the suit as courts are
Valuation decides forum of the suit as courts are
separated into hierarchy of different pecuniary
separated into hierarchy of different pecuniary
limits.
limits.
 Pecuniary jurisdiction goes on increasing as we
Pecuniary jurisdiction goes on increasing as we
move up in the ladder of hierarchy of courts.
move up in the ladder of hierarchy of courts.
 Litigant is not free to assign any arbitrary value to
Litigant is not free to assign any arbitrary value to
the suit for the purpose of choosing the forum.
the suit for the purpose of choosing the forum.
 The court has power to require the litigant to
The court has power to require the litigant to
prove that the valuation is proper.
prove that the valuation is proper.
 However, in practice, most of the time the
However, in practice, most of the time the
valuation made by litigant in respect to the suit is
valuation made by litigant in respect to the suit is
accepted.
accepted.

 In Ethiopia ;Art. 16(2) the Code provide that,
In Ethiopia ;Art. 16(2) the Code provide that,
In deciding under Art. 131 whether it bas
In deciding under Art. 131 whether it bas
pecuniary jurisdiction, the court shall have
pecuniary jurisdiction, the court shall have
regard to the amount stated in the
regard to the amount stated in the
statement of claim in accordance with Arts.
statement of claim in accordance with Arts.
226-228
226-228.
.
Kwt.226;
Kwt.226; particulars as to amount of
particulars as to amount of
claim in general.
claim in general.
 Kwt.227
Kwt.227 Claim relating to periodical dues.
Claim relating to periodical dues.
Definite and Indefinite
Definite and Indefinite…
…
Kwt.228;
Kwt.228; Establishment, enforcement, or
Establishment, enforcement, or
termination of right.
termination of right.

 W/t is d/ce b/n Art. 228 Vs
W/t is d/ce b/n Art. 228 Vs Claim which
Claim which
can’t be expressed in money (Art.18)
can’t be expressed in money (Art.18)?
?
 under Art. 228
under Art. 228 though the actual value of
though the actual value of
the right to be established, enforced or
the right to be established, enforced or
terminated can’t be indicated, but there is
terminated can’t be indicated, but there is
a consequent pecuniary benefit.
a consequent pecuniary benefit.
 it is not about the case which can’t at all
it is not about the case which can’t at all
have monetary value.
have monetary value.

 Claim w/h can’t be expressed in money
Claim w/h can’t be expressed in money :-
:-
 No any pecuniary benefit immediately
No any pecuniary benefit immediately
resulted.
resulted.
the whole purpose of the action must be
the whole purpose of the action must be
for recognition or otherwise of a pure title.
for recognition or otherwise of a pure title.
it may be a step to be taken towards a
it may be a step to be taken towards a
benefit to result from still another action.
benefit to result from still another action.

 Art.16(3)
Art.16(3) Where part of the claim is admitted
Where part of the claim is admitted
at "any time before evidence is produced
at "any time before evidence is produced
and the amount or value of the subject-
and the amount or value of the subject-
matter of the suit is accordingly reduced, the
matter of the suit is accordingly reduced, the
court
court
 may try the suit or
may try the suit or
 of its own motion order the transfer of the
of its own motion order the transfer of the
suit to such subordinate court as has
suit to such subordinate court as has
pecuniary jurisdiction with regard to the
pecuniary jurisdiction with regard to the
amount or value thus reduced.
amount or value thus reduced.

 Art. 16(4)
Art. 16(4) Where a suit has been instituted in
Where a suit has been instituted in
a court competent under the provision of
a court competent under the provision of
this Chapter, such court shall remain
this Chapter, such court shall remain
competent not- Withstanding that the
competent not- Withstanding that the
amount or value of the subject-matter of the
amount or value of the subject-matter of the
suit Decreases or is reduced in consequence
suit Decreases or is reduced in consequence
or changes in economic circumstances.
or changes in economic circumstances.

 Plurality Of Claims
Plurality Of Claims
Art.
Art.17(1),-several claims united,
17(1),-several claims united,
aggregate
aggregate.
.
Art.
Art. 17(1) and 11(4), Consolidation,
17(1) and 11(4), Consolidation, as
as
ordered
ordered.
.
Art.
Art. 17 (2), principal and accessory claims,
17 (2), principal and accessory claims,
and alternative claims,
and alternative claims, higher value.
higher value.
Art.
Art. 17(3) – counter claims,
17(3) – counter claims, higher claim
higher claim.
.

 NO WAIVER OF JURISDICTION –
NO WAIVER OF JURISDICTION –
 In principle subject matter jurisdiction
In principle subject matter jurisdiction
cannot be conferred by consent or waiver,
cannot be conferred by consent or waiver,
and judgment rendered without subject-
and judgment rendered without subject-
matter jurisdiction is
matter jurisdiction is absolutely void
absolutely void
 But it should be clearly indicated under the
But it should be clearly indicated under the
law,
law,
 Does it indicated under our law? Art. 211,
Does it indicated under our law? Art. 211,
231, 9…….??
231, 9…….??
 What would be the effect of judgment
What would be the effect of judgment
given without subject-matter jurisdiction
given without subject-matter jurisdiction
in Ethiopia?
in Ethiopia?

Ethiopian Civil Procedure lecture notes-

Local Jurisdiction
Local Jurisdiction
The concept of jurisdiction allows us to
The concept of jurisdiction allows us to
answer the question, “Would a court in this
answer the question, “Would a court in this
state have the power to render a binding
state have the power to render a binding
decision in this case?”
decision in this case?”
 Jurisdiction does not, however, answer an
Jurisdiction does not, however, answer an
important related question: “
important related question: “Is this court a
Is this court a
reasonable and convenient place in which to
reasonable and convenient place in which to
litigate
litigate this case?”
this case?”

Venue is a further limitation on the place
Venue is a further limitation on the place
of suit,
of suit, based on convenience.
based on convenience.
 Even if a given court has jurisdiction over
Even if a given court has jurisdiction over
our suit, we cannot proceed there if venue
our suit, we cannot proceed there if venue
is not proper.
is not proper.
 In theory, the venue rules are designed to
In theory, the venue rules are designed to
channel each lawsuit into the court that
channel each lawsuit into the court that
can hear it most efficiently, preferably
can hear it most efficiently, preferably
without making the parties and witnesses
without making the parties and witnesses
travel great distances.
travel great distances.
 In practice, venue rules are made by
In practice, venue rules are made by
legislatures
legislatures

 The Basic Place of Local Jurisdiction
The Basic Place of Local Jurisdiction
 Art 19(1)
Art 19(1) Without prejudice to the
Without prejudice to the
provisions of the following Articles
provisions of the following Articles and
and
to such special places of jurisdiction as
to such special places of jurisdiction as
may be provided for by any law every suit
may be provided for by any law every suit
shall be instituted in the court of the place
where
where
the defendant actually resides or
the defendant actually resides or
carries on business or
carries on business or
 personally works for gain.”
personally works for gain.”

 Art 19(1)
Art 19(1) Without prejudice to the
Without prejudice to the
provisions of the following
provisions of the following
Articles…..
Articles….. ..
..Indetexebeqe honoo….
Indetexebeqe honoo….
 and to
and to such special places of jurisdiction
such special places of jurisdiction
as may be provided for by any law………….
as may be provided for by any law………….
Leeloch firdbeetooch baleelaa higgi silxaan
Leeloch firdbeetooch baleelaa higgi silxaan
kaltesexaachew baqar.....
kaltesexaachew baqar.....
 Is equal status given for provisions
Is equal status given for provisions
following Art. 19 and special laws?
following Art. 19 and special laws?
 W/t is the difference between Amharic
W/t is the difference between Amharic
and English versions?
and English versions?

 When do you think would Art. 19 is
When do you think would Art. 19 is
applicable?
applicable?
 Would it be applicable in the presence of the
Would it be applicable in the presence of the
following article?
following article?
 Positions
Positions
 Applicable…
Applicable…Without prejudice….
Without prejudice….indicates
indicates
 Not applicable…cross-reference of Art. 27
Not applicable…cross-reference of Art. 27
to Art. 19
to Art. 19
 Applicable where the provision are
Applicable where the provision are
permissive and not where they are
permissive and not where they are
mandatory; Art.
mandatory; Art. 10(1)
10(1)

 A. “…actually resides…”
A. “…actually resides…”
 Indian civ. procedure is not as such
Indian civ. procedure is not as such
concerned with the legal residence of the
concerned with the legal residence of the
defendant; but, it merely requires his
defendant; but, it merely requires his
voluntary and actual residence.
voluntary and actual residence.
 thus, the fact of having, ancestral home at
thus, the fact of having, ancestral home at
a place and paying an occasional visit to it,
a place and paying an occasional visit to it,
may not suffice to endow it the status of
may not suffice to endow it the status of
an ‘actual and voluntary’ residence.
an ‘actual and voluntary’ residence.
 our Civil Code has envisioned one place as
our Civil Code has envisioned one place as
a ‘principal’ residence, and considering all
a ‘principal’ residence, and considering all
the remaining as ‘secondary’ ones.
the remaining as ‘secondary’ ones.

 primary residence is one in which
primary residence is one in which
someone stays more normally or more
someone stays more normally or more
frequently, or for the longest period.
frequently, or for the longest period.
 if it is observed that one spends almost
if it is observed that one spends almost
equal amount of time at all the places;
equal amount of time at all the places;
then, all of them may reasonably be
then, all of them may reasonably be
considered as the residence of the person
considered as the residence of the person
concerned.
concerned.

B. “…carries on business…”
B. “…carries on business…”
 one may reside within the jurisdiction of
one may reside within the jurisdiction of
one Court, and owns a business in
one Court, and owns a business in
another-whereby one would be subjected
another-whereby one would be subjected
to both jurisdictions.
to both jurisdictions.
 The test of “…carrying on business…”, is
The test of “…carrying on business…”, is
determined neither on the bases of the
determined neither on the bases of the
continuity or intermittence of the
continuity or intermittence of the
business, nor on the physical appearance
business, nor on the physical appearance
or effort of the individual concerned.
or effort of the individual concerned.
 Rather, it is the fact of owning interest in
Rather, it is the fact of owning interest in
the business and enjoying profits there
the business and enjoying profits there
from, which matters most.
from, which matters most.

 This means, having a share in the profit or
This means, having a share in the profit or
the loss and a voice (some control) over
the loss and a voice (some control) over
the business is an important factor.
the business is an important factor.
 This would practically be apparent where,
This would practically be apparent where,
a person, while living in a place, conducts
a person, while living in a place, conducts
business in a different place through an
business in a different place through an
agent(Art.58 (b) of C.P.C).
agent(Art.58 (b) of C.P.C).
 Art 19 (1) A suit against joint defendants may
Art 19 (1) A suit against joint defendants may
be instituted in the ,court of any of the
be instituted in the ,court of any of the
places where any of the defendants resides
places where any of the defendants resides
or carries on business or personally works
or carries on business or personally works
for gain.
for gain.

 Art. 20.- Defendant residing abroad
Art. 20.- Defendant residing abroad
 There are two positions as application of Art.
There are two positions as application of Art.
20(1 and 2)
20(1 and 2)
Position 1---
Position 1---
 Art. 20 (1) – Ethiopian national defendant
Art. 20 (1) – Ethiopian national defendant
not residing, carrying on business or
not residing, carrying on business or
personally working for gain in Ethiopia
 Art.20(2) defendant is a foreigner not
Art.20(2) defendant is a foreigner not
residing, carrying on business or
residing, carrying on business or

 Position 2
Position 2
 Art. 20 (1) – applicable to
Art. 20 (1) – applicable to all non-resident
all non-resident
defendants)
defendants) ,
,
 Art.20(2) , is simply to explain Art. 20 (1)
Art.20(2) , is simply to explain Art. 20 (1)
and for security of execution
and for security of execution
 Which line argument is plausible?
Which line argument is plausible?
 If we say Art. 20(1) is applicable only to
If we say Art. 20(1) is applicable only to
Ethiopian nationals w/h court would have
Ethiopian nationals w/h court would have
local jurisdiction on a foreigner not residing,
local jurisdiction on a foreigner not residing,
carrying on business or personally working
carrying on business or personally working
for gain in Ethiopia and
for gain in Ethiopia and does not own
does not own
movable or immovable property in Ethiopia
movable or immovable property in Ethiopia
but
but consented to our judicial jurisdiction
consented to our judicial jurisdiction

 Suits against the State, Art. 21
Suits against the State, Art. 21
 Suits against the State or a Government
Suits against the State or a Government
department or agency may in the
department or agency may in the
discretion of the plaintiff be instituted in
discretion of the plaintiff be instituted in
the court of the place where:
the court of the place where:
(a)the plaintiff resides, carries on
(a)the plaintiff resides, carries on
business or personally works for gain;
business or personally works for gain;
(b) the contract to which the suit relates
(b) the contract to which the suit relates
was made or was to be executed; or
was made or was to be executed; or
(c) the act giving rise to liability
(c) the act giving rise to liability
occurred.
occurred.

 Art. 22.-
Art. 22.- Suit against body corporate
Suit against body corporate
 (I) Suits against a business organization
(I) Suits against a business organization
where the head office ,or branch against
where the head office ,or branch against
which the suit is made is situate.
which the suit is made is situate.
 (2) Suit against an association committee.
(2) Suit against an association committee.
trust or endowment shall be instituted in
trust or endowment shall be instituted in
the court of the place where such
the court of the place where such
association committee, trust or
endowment was formed or where such
endowment was formed or where such
endowment requires by law to be
endowment requires by law to be
registered, at such place of registration.
registered, at such place of registration.

 (3) 'Suits regarding the liability of an officer
(3) 'Suits regarding the liability of an officer
of a body corporate may be instituted in
of a body corporate may be instituted in
accordance with the provisions of this Article
accordance with the provisions of this Article
or those of Art. 27 (1).
or those of Art. 27 (1).
 Art. 27 (1) ….be instituted in the court of
Art. 27 (1) ….be instituted in the court of
the place where sum wrong was done or-
the place where sum wrong was done or-
in accordance with the provisions of Art.
in accordance with the provisions of Art.
19.
19.
Art. 19.. place where
Art. 19.. place where
• the defendant actually resides or
the defendant actually resides or
• carries on business or
carries on business or
• personally works for gain
personally works for gain

 Art. 23.-
Art. 23.- Suits regarding successions
Suits regarding successions
 Suits regarding a succession which is
Suits regarding a succession which is
being liquidated shall be instituted in the
being liquidated shall be instituted in the
court- of the place where the succession
court- of the place where the succession
was opened.
was opened.

 Suits Regarding Contracts
Suits Regarding Contracts
 Art 24(1), Contracts generally
Art 24(1), Contracts generally,-- place of
,-- place of
formation, execution, place mentioned in
formation, execution, place mentioned in
the contract; Art 19
the contract; Art 19
 Contracts of carriage
Contracts of carriage,
,
 Art.208 of the Maritime Code, suits
Art.208 of the Maritime Code, suits
involving contracts of carriage by sea
involving contracts of carriage by sea
are to be instituted at the court sitting at
are to be instituted at the court sitting at
the port of arrival of the good
the port of arrival of the good
suits concerning contracts of carriage by
suits concerning contracts of carriage by
air are to be instituted according to Art
air are to be instituted according to Art
647 of the Commercial Code.
647 of the Commercial Code.

 Art. 24(3) Contracts of Insurance
Art. 24(3) Contracts of Insurance,
,
 may be instituted in the court of the
may be instituted in the court of the
plaice where the head office of the
plaice where the head office of the
insurance company is situated or
insurance company is situated or
registered or where the object insured is
registered or where the object insured is
situated
situated
 24(4)
24(4) Contracts of pledge, deposit, or
Contracts of pledge, deposit, or
bailment.
bailment.
are instituted in the court of the place
are instituted in the court of the place
where the property is located.
where the property is located.
Practically the issue is as whether
Practically the issue is as whether provision
provision
relating to Contracts generally
relating to Contracts generally applicable to
applicable to
the special contracts under Art. 24(2, 3, &4)
the special contracts under Art. 24(2, 3, &4)

 Art. 25, Suits Involving Immovable
Art. 25, Suits Involving Immovable
Property
Property
 must be instituted at the place where the
must be instituted at the place where the
immovable property exists.
immovable property exists.
 suits
suits Involving Immovable Property: Suits
Involving Immovable Property: Suits
for the recovery of immovable property
for the recovery of immovable property
with or without rent or mense profits;
with or without rent or mense profits;
for partition;
for partition;
for determination of any right to or
for determination of any right to or
interest in immovable property; and
interest in immovable property; and
for compensation for wrong to
for compensation for wrong to
immovable property.
immovable property.

 Practical problems
Practical problems
 Suits involving immovable vs
Suits involving immovable vs Suits
Suits
Regarding Successions
Regarding Successions
 Suits involving immovable vs
Suits involving immovable vs Suits
Suits
Regarding family matters
Regarding family matters

 Art. 27 ,Suits for Wrong Done to Persons
Art. 27 ,Suits for Wrong Done to Persons
or Movable Property
or Movable Property
 It is the question of local jurisdiction in
It is the question of local jurisdiction in
case of extra contractual liability.
case of extra contractual liability.
 such suits may be instituted in the court of
such suits may be instituted in the court of
the place where the wrong was done or in
the place where the wrong was done or in
accordance with the provisions of art 19.
accordance with the provisions of art 19.
 Practically whether Art. 27 or Art. 24 is
Practically whether Art. 27 or Art. 24 is
applicable in case of wrong to a person in
applicable in case of wrong to a person in
a car for transportation of persons?
a car for transportation of persons?

 Change of Venue (Transfer of Suit) and
Change of Venue (Transfer of Suit) and
Removal of Judges
Removal of Judges
 Change of Venue (Transfer of Suit)
Change of Venue (Transfer of Suit)
 the transfer is to be ordered where there
the transfer is to be ordered where there
exists a problem with the proceedings in the
exists a problem with the proceedings in the
court where the case is originally instituted.
court where the case is originally instituted.
 the rules on local jurisdiction are primarily
the rules on local jurisdiction are primarily
designed to achieve handiness for the
designed to achieve handiness for the
parties.
parties.
 Consequently, transfer of suits from a court
Consequently, transfer of suits from a court
to another is basically meant for the
to another is basically meant for the
suitability of the parties; particularly, the
suitability of the parties; particularly, the
defendant.
defendant.

 the plaintiff might have trickily chosen a court
the plaintiff might have trickily chosen a court
with a view to making it painstakingly
with a view to making it painstakingly
intractable and unreasonably expensive for
intractable and unreasonably expensive for
the defendant to defend himself properly.
the defendant to defend himself properly.
 such inconvenient court is known as ‘forum
such inconvenient court is known as ‘forum
non-convenient’-inconvenient forum.
non-convenient’-inconvenient forum.
’
’ if it is found to be insurmountable for the
if it is found to be insurmountable for the
defendant to gather relevant evidences so
defendant to gather relevant evidences so
as to sufficiently defend himself; and,
as to sufficiently defend himself; and,
 exposes him to incur unreasonably high
exposes him to incur unreasonably high
costs to pursue the case and to bring his
costs to pursue the case and to bring his
witnesses to the court.
witnesses to the court.

 Under Art 31 of the Code, there are three
Under Art 31 of the Code, there are three
grounds that justify such transfer.
grounds that justify such transfer.
 The first factor is when there is an
The first factor is when there is an
allegation that a fair and impartial trial
allegation that a fair and impartial trial
cannot be made in the court where the
cannot be made in the court where the
suit was instituted.
suit was instituted.
 the court in which the case is pending
the court in which the case is pending
cannot properly handle the proceeding
cannot properly handle the proceeding
since the case involves some question of
since the case involves some question of
law of unusual difficulty.
law of unusual difficulty.
 the third rational is where the court seized
the third rational is where the court seized
of the case is found to be inconvenient to
of the case is found to be inconvenient to
the party so demanding.
the party so demanding.

 The rule on the transfer of suits is an
The rule on the transfer of suits is an
exception to the general principle,
exception to the general principle,
 Thus narrow interpretation should be
Thus narrow interpretation should be
adopted when the need arises.
adopted when the need arises.
 This means, a transfer should not
This means, a transfer should not
haphazardly be permitted for the sole fact
haphazardly be permitted for the sole fact
that a party preferred to have his case
that a party preferred to have his case
tried somewhere else.
tried somewhere else.
 If it is broadly interpreted, a party may
If it is broadly interpreted, a party may
raise every bit of conceivable reasons
raise every bit of conceivable reasons
thereby making judicial proceedings
thereby making judicial proceedings
intolerably tedious and too costly.
intolerably tedious and too costly.

 Though not articulated under Art 31,
Though not articulated under Art 31,
there is also another ground which could
there is also another ground which could
cause the transfer of suits
cause the transfer of suits.
.
 This could be implied from Art 91 of the
This could be implied from Art 91 of the
Code.
Code.
 when a pleading submitted to a court is
when a pleading submitted to a court is
amended and this makes the case to fall
amended and this makes the case to fall
under the jurisdiction of a higher court,
under the jurisdiction of a higher court,
the court that was holding the case shall
the court that was holding the case shall
transfer it to the higher competent court.
transfer it to the higher competent court.

 Proc No 84/1975 ,
Proc No 84/1975 , application before the
application before the
hearing of evidence.
hearing of evidence.
 amended Art 31/1 of the civil procedure
amended Art 31/1 of the civil procedure
Code to the effect that an application for
Code to the effect that an application for
change of venue could only be admitted
change of venue could only be admitted
before the hearing of evidence.
before the hearing of evidence.

 Removal of Judges
Removal of Judges
 On the other hand, a judge may withdraw
On the other hand, a judge may withdraw
or be removed from a bench essentially to
or be removed from a bench essentially to
achieve impartiality of the court.
achieve impartiality of the court.
 Unlike the transfer of suits, reasons that
Unlike the transfer of suits, reasons that
may lead to the removal or withdrawal of
may lead to the removal or withdrawal of
judges from a bench are listed down by
judges from a bench are listed down by
Proc No 25/96.
Proc No 25/96.

 Art 27 of the Proc., if the judge:
Art 27 of the Proc., if the judge:
 has some relations to a party or an
has some relations to a party or an
advocate; or,
advocate; or,
 was a tutor or legal representative of a
was a tutor or legal representative of a
party; or,
party; or,
 has some prior connection with the case;
has some prior connection with the case;
or,
or,
 has a pending case somewhere else with a
has a pending case somewhere else with a
party or advocate thereof;
party or advocate thereof;
 he shall withdraw as soon as he aware of
he shall withdraw as soon as he aware of
those issues.
those issues.
 the reasons mentioned there are not
the reasons mentioned there are not
exhaustive and any other sufficient reasons
exhaustive and any other sufficient reasons

 Conflicts of Jurisdiction: Priority,
Conflicts of Jurisdiction: Priority,
Pendency and Consolidation of Cases
Pendency and Consolidation of Cases
 There is a possibility for conflicts of
There is a possibility for conflicts of
jurisdiction to emerge between courts
jurisdiction to emerge between courts
-where a court alleges that the matter
-where a court alleges that the matter
falls within its jurisdiction while the
falls within its jurisdiction while the
other contends that it has the
other contends that it has the
competence over the same case.
competence over the same case.
where two or more courts dismiss a
where two or more courts dismiss a
case on the ground that it does not fall
case on the ground that it does not fall
within their respective jurisdiction.
within their respective jurisdiction.

 The power to determine on such conflict of
The power to determine on such conflict of
jurisdiction is conferred upon the Federal
jurisdiction is conferred upon the Federal
Supreme Court.
Supreme Court.
 As a rule, a suit arising from a single cause
As a rule, a suit arising from a single cause
of action may not be instituted and/or tried
of action may not be instituted and/or tried
by more than one court at a time.
by more than one court at a time.
 to avoid the possibility of inconsistent
to avoid the possibility of inconsistent
judgements that may be rendered on a
judgements that may be rendered on a
single case;
single case;
 thereby, making its enforceability practically
thereby, making its enforceability practically
impossible.
impossible.

 However, this may sometimes happen where,
However, this may sometimes happen where,
 parties might have filed separate suits that
parties might have filed separate suits that
actually involve the same claim.
actually involve the same claim.
 there could be a possibility for two or more
there could be a possibility for two or more
courts to assume jurisdiction over the same
courts to assume jurisdiction over the same
cause of action.
cause of action.
 It would thus be such instances that could
It would thus be such instances that could
give rise to the problem of conflict of
give rise to the problem of conflict of
jurisdiction.
jurisdiction.
 With a view to resolving problems resulting
With a view to resolving problems resulting
from such circumstances, the Code treats the
from such circumstances, the Code treats the
matter through
matter through the rules of priority,
the rules of priority,
pendency and consolidation.
pendency and consolidation.

 A. Priority
A. Priority
 The question of priority arises when a
The question of priority arises when a
plaintiff institutes two or more suits on the
plaintiff institutes two or more suits on the
same cause of action in different courts.
same cause of action in different courts.
 It will result in the harassment of the
It will result in the harassment of the
defendant to defend his case in both areas.
defendant to defend his case in both areas.
 the two courts could give inconsistent
the two courts could give inconsistent
judgments.
judgments.
 it will be difficult to execute the inconsistent
it will be difficult to execute the inconsistent
judgments.
judgments.
 To avoid this problem, the rule of priority is
To avoid this problem, the rule of priority is
provided under Article 7 of the Code.
provided under Article 7 of the Code.

 the rule of priority takes into account the
the rule of priority takes into account the
time of submission of the case to a court of
time of submission of the case to a court of
law-whereby, the court in which the suit is
law-whereby, the court in which the suit is
filed first will have priority to consider the
filed first will have priority to consider the
case; and,
case; and,
 consequently, the second file in the other
consequently, the second file in the other
court shall thus be dismissed.
court shall thus be dismissed.

 B. Pendency
B. Pendency
 Article 8 covers the problem of pendency.
Article 8 covers the problem of pendency.
 As a rule, no court shall try any suit in
As a rule, no court shall try any suit in
which the matter in issue is also directly
which the matter in issue is also directly
and substantially in issue in a previously
and substantially in issue in a previously
instituted suit between the same parties in
instituted suit between the same parties in
another court in Ethiopia having
another court in Ethiopia having
jurisdiction.
jurisdiction.
 Thus, if, while a suit is pending in a court,
Thus, if, while a suit is pending in a court,
another suit is also filed in another court
another suit is also filed in another court
over the same cause, that would give rise
over the same cause, that would give rise
to the problem of pendency,
to the problem of pendency,

 serve as one of the grounds for preliminary
serve as one of the grounds for preliminary
objection as per Art 244(2) of the Code,
objection as per Art 244(2) of the Code,
whereby a party may oppose the second suit.
whereby a party may oppose the second suit.
 To avoid this problem, the Code has provided
To avoid this problem, the Code has provided
a rule on pendency.
a rule on pendency.
 When the court is aware that another similar
When the court is aware that another similar
case is already instituted in another court
case is already instituted in another court
between the same parties, it will dismiss the
between the same parties, it will dismiss the
suit or it may direct the parties to apply for
suit or it may direct the parties to apply for
consolidation.
consolidation.
 Ethiopian court is not prevented from
Ethiopian court is not prevented from
entertaining a case that is already pending in
entertaining a case that is already pending in
a foreign court(Art. 7)
a foreign court(Art. 7)

 C. Consolidation of Suits
C. Consolidation of Suits
 Consolidation is a procedure that is applied
Consolidation is a procedure that is applied
when two or more suits pending in different
when two or more suits pending in different
courts or the same court and between the
courts or the same court and between the
same parties give rise to similar issues and
same parties give rise to similar issues and
are to be decided in different courts.
are to be decided in different courts.
the matter in issue in one suit is closely
the matter in issue in one suit is closely
related to a suit pending in another court
related to a suit pending in another court
 In such a situation, either party can make an
In such a situation, either party can make an
application to a higher court that the cases
application to a higher court that the cases
be consolidated for trial under Art 11-
be consolidated for trial under Art 11-
whereby the higher court will direct one of
whereby the higher court will direct one of
the subordinate courts to try the case.
the subordinate courts to try the case.

 Thus where there is a question of
Thus where there is a question of
pendency, then, both suits will be
pendency, then, both suits will be
consolidated under the procedure of
consolidated under the procedure of
consolidation.
consolidation.
 For instance, in a suit for recovery of a
For instance, in a suit for recovery of a
property by one claiming a right to
property by one claiming a right to
possession and a suit by the possessor
possession and a suit by the possessor
claiming that the plaintiff in the other
claiming that the plaintiff in the other
action has committed a trespass to the
action has committed a trespass to the
same property.
same property.
 In both cases, the issue is the same: who
In both cases, the issue is the same: who
is entitled to the property?
is entitled to the property?

Chapter III: Parties To
Chapter III: Parties To
And Dimension Of
And Dimension Of
Suits
Suits (12 Hrs)
(12 Hrs)

 Parties To A Civil Suit: General
Parties To A Civil Suit: General
Requirements
Requirements
 The people who are suing or being sued
The people who are suing or being sued
are referred to as the
are referred to as the parties to the suit.
parties to the suit.
 The parties to a civil suit in first instance
The parties to a civil suit in first instance
jurisdiction are known as plaintiff and
jurisdiction are known as plaintiff and
defendant.
defendant.
 Plaintiff is a party who makes an allegation
Plaintiff is a party who makes an allegation
and initiates proceedings in a court of law;
and initiates proceedings in a court of law;
 whereas, defendant is a person subject to
whereas, defendant is a person subject to
a claim, i.e., a party against whom a claim
a claim, i.e., a party against whom a claim
is filed.
is filed.

 In appellate court are called appellant and
In appellate court are called appellant and
respondent.
respondent.
 When a procedural rule refers to any party, it
When a procedural rule refers to any party, it
does not mean any person—it means anyone
does not mean any person—it means anyone
who is a plaintiff or defendant in the lawsuit
who is a plaintiff or defendant in the lawsuit
in question
in question
 There is a requirement that applies to a
There is a requirement that applies to a
party plaintiff and party defendant as well
party plaintiff and party defendant as well
as to parties that are brought into a
as to parties that are brought into a
pending suit as intervener, third party
pending suit as intervener, third party
defendant, etc
defendant, etc

 First, all parties participating in a civil suit
First, all parties participating in a civil suit
should have capacity.
should have capacity. Art. 33(1)
Art. 33(1)
Capacity is the power or ability to perform
Capacity is the power or ability to perform
juridical act.
juridical act.
 Being a party to a suit is one of the
Being a party to a suit is one of the
juridical acts.
juridical acts.
capacity to sue or be sued is an
capacity to sue or be sued is an
individual’s ability to represent his interest
individual’s ability to represent his interest
in a lawsuit without the assistance of
in a lawsuit without the assistance of
another.
another.
Every person is presumed to have capacity
Every person is presumed to have capacity
to perform juridical acts unless provided
to perform juridical acts unless provided
otherwise by law., Art. 192 of the C.C.
otherwise by law., Art. 192 of the C.C.

 Incapable persons cannot be parties to a
Incapable persons cannot be parties to a
suit,
suit,
 Incapacity is divided into two.
Incapacity is divided into two.
 One is based on physio-psychological
One is based on physio-psychological
condition, (Art. 193 of the Code).
condition, (Art. 193 of the Code).
 minors, insane and infirm persons and
minors, insane and infirm persons and
persons subject to criminal sentence and
persons subject to criminal sentence and
deprived of some of their civil rights.
deprived of some of their civil rights.
 Incapacity due to the status or special
Incapacity due to the status or special
function of a person.
function of a person.
 for instance, agents
for instance, agents

Incapable persons cannot sue or be sued
Incapable persons cannot sue or be sued
in their
in their own names
own names (Art. 33(1).
(Art. 33(1).
• E.g., a person below 18 years of age
E.g., a person below 18 years of age
 Their legal representatives shall represent
Their legal representatives shall represent
them.
them.
 If one of the parties is an incapable person,
If one of the parties is an incapable person,
the court can, by its own motion or by the
the court can, by its own motion or by the
application of another party, suspend the
application of another party, suspend the
litigation until a proper representation is
litigation until a proper representation is
made
made ( Art. 34(2) of the Code )
( Art. 34(2) of the Code )
 Incapacity is one of the grounds of
Incapacity is one of the grounds of
preliminary objection under Art. 244(2) of
preliminary objection under Art. 244(2) of
the Code.
the Code.

 Party Plaintiff
Party Plaintiff
 Plaintiff is a party who brings action.
Plaintiff is a party who brings action.
 To be plaintiff, the first requirement is to
To be plaintiff, the first requirement is to
possess capacity to perform juridical acts
possess capacity to perform juridical acts
in general.
in general.
 The other requirement is that a person
The other requirement is that a person
must be the real party interest with regard
must be the real party interest with regard
to the particular claim or allegation he
to the particular claim or allegation he
brings to a court of law against another
brings to a court of law against another
party.
party.

 Vested Interest,
Vested Interest, Article 33(2),
Article 33(2),
 It means plaintiff should possess the right
It means plaintiff should possess the right
required to be enforced under the
required to be enforced under the
governing substantive law.
governing substantive law.
 Only someone with legal title to the right
Only someone with legal title to the right
affected by the defendant’s conduct could
affected by the defendant’s conduct could
sue at law.
sue at law.
 The requirement is not that the person is
The requirement is not that the person is
the one who will ultimately benefit from
the one who will ultimately benefit from
the successful decision made in his favor
the successful decision made in his favor
 It must be a person who has an
It must be a person who has an
immediate stake at a time of filing a case.
immediate stake at a time of filing a case.

 At a time of filing a case, he should show
At a time of filing a case, he should show
that he has a vested interest in the subject
that he has a vested interest in the subject
matter of a suit.
matter of a suit.
 The reason why the law attaches this
The reason why the law attaches this
requirement to party plaintiff are:
requirement to party plaintiff are:
 because a civil suit concerns individual
because a civil suit concerns individual
interest/ right
interest/ right
 It is up to a concerned party only to
It is up to a concerned party only to
either litigate or abandon a claim.
either litigate or abandon a claim.
 no other person could decide to bring
no other person could decide to bring
action for a real party with interest in a
action for a real party with interest in a
suit.
suit.

 to avoid defendant facing two suits over a
to avoid defendant facing two suits over a
single cause of action.
single cause of action.
 The person who has an original interest
The person who has an original interest
and another person pursuing his right
and another person pursuing his right
could bring two suits at different times
could bring two suits at different times
and this exposes defendant to two suits.
and this exposes defendant to two suits.
 The determination of whether a person
The determination of whether a person
appearing as plaintiff may have a vested
appearing as plaintiff may have a vested
interest depends on cases appearing before
interest depends on cases appearing before
a court.
a court.
 One cannot provide an exhaustive list of
One cannot provide an exhaustive list of
cases containing a vested interest here.
cases containing a vested interest here.

 in all cases plaintiffs are expected to indicate
in all cases plaintiffs are expected to indicate
a cause of action in their statement of claim
a cause of action in their statement of claim
as per Articles 222 and 231 of Code.
as per Articles 222 and 231 of Code.
 It is from what is stated in plaintiff’s claims
It is from what is stated in plaintiff’s claims
that whether or not a plaintiff has a vested
that whether or not a plaintiff has a vested
interest in a case can be decided.
interest in a case can be decided.
 E.g., a contract of assignment gives rise to
E.g., a contract of assignment gives rise to
issues of a person with a vested interest.
issues of a person with a vested interest.
 A question of vested interest is also raised in
A question of vested interest is also raised in
suits based on loss of support as a result of
suits based on loss of support as a result of
the death of a person ,
the death of a person ,Article 2095
Article 2095

 Effects of Lack of Vested Interest
Effects of Lack of Vested Interest
 If an action is brought by a plaintiff who
If an action is brought by a plaintiff who
does not have a vested interest, an
does not have a vested interest, an
opposite party should raise this as an
opposite party should raise this as an
objection .
objection .
 Absence of a vested interest in a suit is a
Absence of a vested interest in a suit is a
ground of preliminary objection under
ground of preliminary objection under
Article 244(2) of the Code.
Article 244(2) of the Code.

 On the basis of the objection of the other
On the basis of the objection of the other
party, the court may order the
party, the court may order the
substitution or addition of a party as a
substitution or addition of a party as a
plaintiff.
plaintiff.
 The court makes the substitution or
The court makes the substitution or
addition if a suit is made by such plaintiff
addition if a suit is made by such plaintiff
through a
through a genuine mistake as per the rule
genuine mistake as per the rule
under Article (40) 1 of the Code
under Article (40) 1 of the Code.
.

 W/t if a suit is made by a plaintiff
W/t if a suit is made by a plaintiff
deliberately to benefit from a claim in
deliberately to benefit from a claim in
w/h he knows that he doesn’t have a
w/h he knows that he doesn’t have a
vested interest
vested interest?
?
 The Code does not provide any rule, answer,
The Code does not provide any rule, answer,
 The remedy is to dismiss his case and
The remedy is to dismiss his case and
impose penalty on him for creating
impose penalty on him for creating
inconvenience to defendant, and he could
inconvenience to defendant, and he could
also face criminal liability.
also face criminal liability.
 This is to be inferred from Art 481 of the
This is to be inferred from Art 481 of the
Code and Art 452 of the Penal Code-w/h can
Code and Art 452 of the Penal Code-w/h can
extend to a suit made deliberately to obtain
extend to a suit made deliberately to obtain
benefit without having a vested interest.
benefit without having a vested interest.

 The substitution or addition can also be
The substitution or addition can also be
made by a court’s owns initiative.
made by a court’s owns initiative.
 Without relying on the objection of a
Without relying on the objection of a
defendant,
defendant,
 the court may order the substitution or
the court may order the substitution or
addition of party plaintiff by looking at a
addition of party plaintiff by looking at a
claim made by wrong plaintiff.
claim made by wrong plaintiff.
 If the defendant fails to raise objection
If the defendant fails to raise objection
and a decision is made for a party without
and a decision is made for a party without
vested interest, can he object to a second
vested interest, can he object to a second
suit made by a real party with interest?
suit made by a real party with interest?
 If no w/t would be a remedy for the
If no w/t would be a remedy for the
defendant?
defendant?

 the defendant cannot object to a second suit
the defendant cannot object to a second suit
made by a real party with interest.
made by a real party with interest.
 What he or she should do in such case is to
What he or she should do in such case is to
satisfy the claim of the real party with a
satisfy the claim of the real party with a
vested interest and
vested interest and
 bring a suit against the other party on the
bring a suit against the other party on the
basis of the provisions of the law of
basis of the provisions of the law of
unlawful enrichment to recover what he
unlawful enrichment to recover what he
has already paid for him.
has already paid for him.

Party Defendant: Allegations
 Art. 33(3);
Art. 33(3);No person may be a defendant
No person may be a defendant
unless the plaintiff alleges some claim
unless the plaintiff alleges some claim
against him.
against him.
 A person sued must be the one responsible
A person sued must be the one responsible
for the wrongs committed and claims arising
for the wrongs committed and claims arising
there from.
there from.
 Thus, a plaintiff should state the claim he is
Thus, a plaintiff should state the claim he is
demanding against defendant,
demanding against defendant, Art. 224
Art. 224
 This is because courts are thereto settle real
This is because courts are thereto settle real
disputes and, hence, if no claim is made
disputes and, hence, if no claim is made
against the defendant, he cannot be made a
against the defendant, he cannot be made a
defendant in a suit.
defendant in a suit.

 The claim made against plaintiff can be in
The claim made against plaintiff can be in
the form of payment of money or a request
the form of payment of money or a request
that a defendant should do or not do
that a defendant should do or not do
something, etc.
something, etc.
 The suit must show relations between
The suit must show relations between
parties and wrongs done to plaintiff and
parties and wrongs done to plaintiff and
claims made by him.
claims made by him.

 Representation in Civil Suits: Types and
Representation in Civil Suits: Types and
Requirements
Requirements
 Representative suit is a suit in which others
Representative suit is a suit in which others
represent real parties to a suit.
represent real parties to a suit.
 Representation is allowed in civil cases Art.
Representation is allowed in civil cases Art.
65 Code.
65 Code.
 parties to a civil case need not appear in
parties to a civil case need not appear in
person to undertake activities in a court of
person to undertake activities in a court of
law unless a court orders appearance in
law unless a court orders appearance in
person.
person.
Appearance in person is limited to some
Appearance in person is limited to some
cases where
cases where a court believes it is necessary
a court believes it is necessary
for the proper determination of the suit
for the proper determination of the suit.
.

 This means representation is a rule in most
This means representation is a rule in most
civil cases, and appearance in person is an
civil cases, and appearance in person is an
exception.
exception.
 The types of representation can be
The types of representation can be
categorized generally into two.
categorized generally into two.
 The First type involves
The First type involves a situation in
a situation in
which the representatives act for the
which the representatives act for the
interest of the real parties to a suit.
interest of the real parties to a suit.
 They act on behalf of real parties and do
They act on behalf of real parties and do
not have their interest at stake in a suit.
not have their interest at stake in a suit.
 This category includes the
This category includes the
representations specified under Articles
representations specified under Articles
34, 57-64.
34, 57-64.

 The second one relates
The second one relates to a situation
to a situation
where the representatives represent the
where the representatives represent the
interest of others as well their own
interest of others as well their own
interest.
interest.
 They serve two interests here.
They serve two interests here.
 This category applies to the
This category applies to the
representation under Article 38 of the
representation under Article 38 of the
Code.
Code.

 Legal Representation: Types and
Legal Representation: Types and
Requirements
Requirements
 The representation under Article 34 is
The representation under Article 34 is
known as legal representation.
known as legal representation.
 A legal representative represents persons
A legal representative represents persons
under incapacity.
under incapacity.
 Since incapable persons cannot be parties
Since incapable persons cannot be parties
to civil suits, their legal representatives
to civil suits, their legal representatives
should represent them.
should represent them.
 Their legal representatives are their
Their legal representatives are their
organs of protection.
organs of protection.

 Representative Class Suits: Requirements
Representative Class Suits: Requirements
 is provided under Article 38 of the Code
is provided under Article 38 of the Code
 The reason for this representation is that a
The reason for this representation is that a
suit involves several persons is inconvenient
suit involves several persons is inconvenient
for all concerned to be parties.
for all concerned to be parties.
 is inconvenient for such a group of persons to
is inconvenient for such a group of persons to
proceed with a case individually.
proceed with a case individually.
 'a class action is the action brought by a
'a class action is the action brought by a
representative plaintiff (collective standing), in
representative plaintiff (collective standing), in
protection of a right that belongs to a group of
protection of a right that belongs to a group of
people (object of the suit), which judgment will
people (object of the suit), which judgment will
bind the group as a whole (res judicata).
bind the group as a whole (res judicata).

 Class Action
Class Action (art 38) & art 37(2) of the FDRE
(art 38) & art 37(2) of the FDRE
Constitution,
Constitution,
 Class action vs. joinder of plaintiffs. Why
Class action vs. joinder of plaintiffs. Why
class action?
class action?
 Requirements:
Requirements:
a)
a) Large number of persons vs several
Large number of persons vs several
persons
persons
b)
b) Homogeneous/sameness of interests
Homogeneous/sameness of interests
c)
c) Consent of interested persons; how do
Consent of interested persons; how do
we secure this if the class size is so large?
we secure this if the class size is so large?

a)
a) Leave of court
Leave of court
b)
b) Who has the standing to sue? Should
Who has the standing to sue? Should
s/he be a member of the class
s/he be a member of the class
necessarily? See Art 37(2:b)
necessarily? See Art 37(2:b)

 Large number of persons vs several
Large number of persons vs several
persons
persons

 What does the phrase “same interest”
What does the phrase “same interest”
mean here?
mean here?
 No definition is given to it.
No definition is given to it.
 It is interpreted to mean that all the
It is interpreted to mean that all the
members of a group to be represented
members of a group to be represented
have a common interest, that all have a
have a common interest, that all have a
common grievance, and that the relief
common grievance, and that the relief
they demand is beneficial to them all.
they demand is beneficial to them all.
 By the same interest it does not mean that
By the same interest it does not mean that
the claim of parties has a single cause or
the claim of parties has a single cause or
that it arises from the same transaction
that it arises from the same transaction
only.
only.

 By the same interest, it means that as
By the same interest, it means that as
plaintiffs, they must demand the same
plaintiffs, they must demand the same
relief against the defendant for the same
relief against the defendant for the same
wrong committed against all of them;
wrong committed against all of them;
 as defendants they must be invoking the
as defendants they must be invoking the
same defense against the plaintiff on the
same defense against the plaintiff on the
same cause of action.
same cause of action.
 Thus, same interest means some thing
Thus, same interest means some thing
more than same cause of action (same
more than same cause of action (same
transaction) under Article 35, which we will
transaction) under Article 35, which we will
discuss in this unit.
discuss in this unit.

 An example where a representative class
An example where a representative class
suit is allowed is where a local
suit is allowed is where a local
administrative body decides to give a
administrative body decides to give a
residential area for investor and persons
residential area for investor and persons
living there are to be transferred to
living there are to be transferred to
another place.
another place.
 If persons claim that a decision is unlawful
If persons claim that a decision is unlawful
and challenges the decision itself, they are
and challenges the decision itself, they are
considered to have the same interest.
considered to have the same interest.

 Parties Should Consent To Be Represented
Parties Should Consent To Be Represented
 Another requirement under Article 38 is
Another requirement under Article 38 is
that the parties should consent to be
that the parties should consent to be
represented.
represented.
 A person not willing to be represented
A person not willing to be represented
can bring his own separate suit.
can bring his own separate suit.
 After representation is agreed upon by all
After representation is agreed upon by all
concerned, any person on whose behalf a
concerned, any person on whose behalf a
suit is filed or defended may apply to a
suit is filed or defended may apply to a
court to be made a party.
court to be made a party.
 It means that he can intervene.
It means that he can intervene.

 Once proper representation is made and
Once proper representation is made and
the court accepts it, the parties
the court accepts it, the parties
represented are bound by a decision of a
represented are bound by a decision of a
court.
court.
 They are considered to have litigated
They are considered to have litigated
through their representatives and, hence,
through their representatives and, hence,
they cannot bring a suit or be sued after a
they cannot bring a suit or be sued after a
decision is made.
decision is made.
 The decision is res judicata against them.
The decision is res judicata against them.

 Agents and Pleaders
Agents and Pleaders
 provided under Art.57 of the Code.
provided under Art.57 of the Code.
 any appearance, application or act in or to
any appearance, application or act in or to
any court, required or authorized to be
any court, required or authorized to be
made or done by a party in such court may
made or done by a party in such court may
be made or done by the party in person
be made or done by the party in person
or:
or:

his legal representative
his legal representative,
,
 by his agent or
by his agent or
 by a pleader able to answer all material
by a pleader able to answer all material
questions relating to the suit or
questions relating to the suit or
accompanied by a person able so to answer.
accompanied by a person able so to answer.

 Representation by agent
Representation by agent
 This is provided under Article 58(a).
This is provided under Article 58(a).
 is one where a person is authorized to act
is one where a person is authorized to act
on behalf of a party to a suit.
on behalf of a party to a suit.
 Family members of a person (spouse,
Family members of a person (spouse,
brother
brother sister
sister, son, father,
, son, father, mother
mother or
or
grandfather or
grandfather or grandmother
grandmother can be
can be
agents if they appear in a suit without
agents if they appear in a suit without
receiving remuneration or reward .
receiving remuneration or reward .
 the agent for the government is a person
the agent for the government is a person
authorized to act for the government with
authorized to act for the government with
respect to judicial proceedings (Art. 59 and
respect to judicial proceedings (Art. 59 and
60).
60).

 Art. 61 and 62 of the Code provided agents
Art. 61 and 62 of the Code provided agents
for members of the Armed Forces and
for members of the Armed Forces and
prisoners.
prisoners.
 Any person can serve as their agent if they
Any person can serve as their agent if they
produce a written authorization to that
produce a written authorization to that
effect.
effect.

 A person can also be represented by his
A person can also be represented by his
pleader/advocate.
pleader/advocate. Art 63 of the Cv. Pr. C)
Art 63 of the Cv. Pr. C)
 A pleader is a person who holds an
A pleader is a person who holds an
advocate’s license, and
advocate’s license, and
 no person may appear in this capacity
no person may appear in this capacity
unless he holds such a license.
unless he holds such a license.
 A pleader has to produce his license
A pleader has to produce his license
together with a letter of authorization from a
together with a letter of authorization from a
person who authorized him.
person who authorized him.

 Joinder of Parties and cause of Action
Joinder of Parties and cause of Action
 Why joinder?
Why joinder?
 Procedural efficiency
Procedural efficiency
 avoid multiple suits --- thereby
avoid multiple suits --- thereby
avoids the possibility of making
avoids the possibility of making
conflicting decisions.
conflicting decisions.
 save time, energy, money
save time, energy, money
 protection of interests
protection of interests

 Some Are Against This Procedure;
Some Are Against This Procedure;
 joinder of parties multiplies the number of
joinder of parties multiplies the number of
parties and widens the scope of litigation
parties and widens the scope of litigation
and consequently causes delay of
and consequently causes delay of
proceeding
proceeding
 it results in embarrassment of the
it results in embarrassment of the
defendant and makes him not to be able to
defendant and makes him not to be able to
properly defend himself
properly defend himself
 Art. 221 tries to strike a balance between
Art. 221 tries to strike a balance between
these two conflicting interests toward joinder.
these two conflicting interests toward joinder.
 If it results in a delay of proceedings or
If it results in a delay of proceedings or
embarrassment of defendant, the court
embarrassment of defendant, the court
may order separate suits.
may order separate suits.

 Types of Joinder of Parties
Types of Joinder of Parties
 Permissive
Permissive Joinder of Parties
Joinder of Parties
 Here the motion of parties makes the
Here the motion of parties makes the
joinder.
joinder.
 The parties entitled to join can choose
The parties entitled to join can choose
between joint actions or separate suits.
between joint actions or separate suits.
 They are not obliged to bring a joint
They are not obliged to bring a joint
action or defence.
action or defence.
 This joinder is provided under Articles 35,
This joinder is provided under Articles 35,
and 36(1,2,3,4,5,6) of the Code
and 36(1,2,3,4,5,6) of the Code

1.
1. Joinder of Plaintiffs
Joinder of Plaintiffs (CPC.art 35)
(CPC.art 35)
• The requirements:
The requirements:
a)
a) A right to relief
A right to relief (vested interest/cause of
(vested interest/cause of
action).
action).
 Each plaintiff must have a right to relief.
Each plaintiff must have a right to relief.
 It could exist in the form of a
It could exist in the form of a joint right
joint right,
,
a
a separate right
separate right, or as an
, or as an alternative
alternative.
.
 It means that each person has a right
It means that each person has a right
that exists independently of the right of
that exists independently of the right of
others &he can bring separate suit on it.
others &he can bring separate suit on it.

 A right to relief is alleged to exist jointly,
A right to relief is alleged to exist jointly,
severally or in the alternative,
severally or in the alternative,
jointly,
jointly,
severally or
severally or
 in the alternative,
in the alternative,

b)
b) The
The right to relief of each plaintiff
right to relief of each plaintiff must arise
must arise
from
from ‘same transaction’
‘same transaction’ or
or ‘series of
‘series of
transactions
transactions…’.
…’.
 Transaction’
Transaction’
 is not equivalent to ‘juridical acts’ such as
is not equivalent to ‘juridical acts’ such as
contracts.
contracts.
 It refers to circumstances, events,
It refers to circumstances, events,
situations…
situations…
 same transaction’ is not ‘same cause of
same transaction’ is not ‘same cause of
action’;
action’;
 the same transaction can give rise to
the same transaction can give rise to
different right to relief or causes of action.
different right to relief or causes of action.

 the identity of a cause of action and the
the identity of a cause of action and the
sameness of the specific relief sought are
sameness of the specific relief sought are
not requirements;
not requirements;
 each plaintiff may have a distinct cause of
each plaintiff may have a distinct cause of
action d/t from a co-plaintiff
action d/t from a co-plaintiff
 The parties may claim different remedies.
The parties may claim different remedies.
 What matters here is the source of claim.
What matters here is the source of claim.

 series of transactions
series of transactions…’.
…’.

c)
c) Common issue of law or fact
Common issue of law or fact
 Not all issues to be decided have to be
Not all issues to be decided have to be
common;
common;
 single issue which cuts across all seems
single issue which cuts across all seems
enough.
enough.

2.
2. Joinder of Defendants (art36)
Joinder of Defendants (art36)
 The requirements of sub.1 of art 36:
The requirements of sub.1 of art 36:
a)
a) The right to relief (plaintiff’s cause of
The right to relief (plaintiff’s cause of
action) is enforceable against several
action) is enforceable against several
defendants
defendants
 who may be liable jointly, severally or
who may be liable jointly, severally or
alternatively).
alternatively).
 His right to relief against each is
His right to relief against each is
maintainable separately if he wishes
maintainable separately if he wishes
 defendants’ liability may not have to
defendants’ liability may not have to
arise from same transaction.
arise from same transaction.
 Can you imagine?
Can you imagine?

 it is less likely that there will be a
it is less likely that there will be a
common question of law or fact if the
common question of law or fact if the
suits arise from separate transactions.
suits arise from separate transactions.
 B. Common issue of law or fact;
B. Common issue of law or fact;
 is it possible to have cases arising from d/t
is it possible to have cases arising from d/t
transaction giving rise to a common issue
transaction giving rise to a common issue
of law or fact?
of law or fact?

 Article 36(2)
Article 36(2)
 makes an exception to Ar.36(1) in the
makes an exception to Ar.36(1) in the
sense that there is no requirement of
sense that there is no requirement of
common question of law or fact.
common question of law or fact.
 It applies where a cause of action
It applies where a cause of action
emanates from a contract, including
emanates from a contract, including
parties to a negotiable instrument
parties to a negotiable instrument

 Article 36(5) provides
Article 36(5) provides
 where the plaintiff does not know who
where the plaintiff does not know who
caused the damage to him-from among
caused the damage to him-from among
several persons-and who is to pay him.
several persons-and who is to pay him.
 In such instance, he can join them.
In such instance, he can join them.

Effect of Misjoinder and Non-Joinder of
Effect of Misjoinder and Non-Joinder of
Parties
Parties
 What will happen if there is a mis
What will happen if there is a mis
joinder or non-joinder of parties?
joinder or non-joinder of parties?
 Article 39
Article 39
If the joinder is a permissive type, the
If the joinder is a permissive type, the
mis-joinder or non-joinder does not
mis-joinder or non-joinder does not
result in the defeat of a suit.
result in the defeat of a suit.
a court does not dismiss a case
a court does not dismiss a case
 drop a party improperly joined and
drop a party improperly joined and
demand substitution
demand substitution

Indian Experience
Indian Experience
 If a party suing in representative capacity
If a party suing in representative capacity
fails to proceed the suit / defence with due
fails to proceed the suit / defence with due
diligence, the court substitutes it with any
diligence, the court substitutes it with any
other person having the same interest in
other person having the same interest in
the suit.
the suit.
 Courts are empowered to make addition
Courts are empowered to make addition
and substitution of the parties to the suit
and substitution of the parties to the suit
after the action has been brought or strike
after the action has been brought or strike
out the name of any party improperly
out the name of any party improperly
joined at any stage of the proceedings
joined at any stage of the proceedings

 either upon application of the parties or
either upon application of the parties or
suo-motu
suo-motu in appropriate cases and on such
in appropriate cases and on such
terms and conditions as appear to be just.
terms and conditions as appear to be just.
 In the absence of necessary parties no
In the absence of necessary parties no
decree can be passed.
decree can be passed.

Mandatory Joinder Of Parties
Mandatory Joinder Of Parties
 which is usually known as joinder of
which is usually known as joinder of
indispensable parties.
indispensable parties.
 parties are under obligation to bring a
parties are under obligation to bring a
joint action or defense.
joint action or defense.
 There is no choice given to parties other
There is no choice given to parties other
than a joint action or defense.
than a joint action or defense.
 Mandatory joinder applies to both plaintiff
Mandatory joinder applies to both plaintiff
and defendant.
and defendant.
joint owners, joint creditors or debtors,
joint owners, joint creditors or debtors,
husband and wife over common
husband and wife over common
property,
property,

 All of them are concerned.
All of them are concerned.
 That is why they are considered to be
That is why they are considered to be
indispensable party.
 The absence of one will necessarily affect
The absence of one will necessarily affect
one’s right.
one’s right.
 those who can be affected by a decision
those who can be affected by a decision
given in their absence.
given in their absence.
 If a decision affects persons who are
If a decision affects persons who are
not made a party to a suit, such persons
not made a party to a suit, such persons
are considered to be important for
are considered to be important for
making a decision and should be made a
making a decision and should be made a
party from the very beginning.
party from the very beginning.

 Discussion Questions
Discussion Questions
 Is there mandatory joinder of parties,
Is there mandatory joinder of parties,
whether plaintiffs or defendants?
whether plaintiffs or defendants?
 What will be the effect of non-joinder of a
What will be the effect of non-joinder of a
necessary party? See art 40(2)
necessary party? See art 40(2)
 Is it procedural or jurisdictional? See Art 39
Is it procedural or jurisdictional? See Art 39
 Does the CPC of Ethiopia recognize an
Does the CPC of Ethiopia recognize an
‘indispensable party’?
‘indispensable party’?

 Except for Art. 36(3) & (4)
Except for Art. 36(3) & (4) (J/defdts
(J/defdts) the Code
) the Code
doesn’t have rule on mandatory joinder of
doesn’t have rule on mandatory joinder of
pff.
pff.
 because mandatory joinder is a question of
because mandatory joinder is a question of
substantive law than procedural rules.
substantive law than procedural rules.
It is the rules of substantive law that require
It is the rules of substantive law that require
that a right should not be exercised
that a right should not be exercised
otherwise than by or against all persons
otherwise than by or against all persons
concerned.
concerned.

 Article 36
Article 36(3)
(3)
 a suit concerning property administered
a suit concerning property administered
by several trustees, executors or
by several trustees, executors or
administrators,
administrators,
 all such persons shall be made parties to a
all such persons shall be made parties to a
suit against one or more of them,
suit against one or more of them,
 Article 36(4)----
Article 36(4)----
 Where the pff sues for the recovery of
Where the pff sues for the recovery of
immovable property free of occupants,
immovable property free of occupants,
such occupants, whatever their title, shall
such occupants, whatever their title, shall
all be made parties to the suit.
all be made parties to the suit.

Discussion Questions
 What will be the effect of non-joinder of
What will be the effect of non-joinder of
an indispensable party? art 40(2)
an indispensable party? art 40(2)
 Does it lead to failure of a suit?
Does it lead to failure of a suit?
 Does the rule under Article 39 apply in
Does the rule under Article 39 apply in
this case?
this case?

 The Effect Of Non-joinder Of An
The Effect Of Non-joinder Of An
Indispensable Party
Indispensable Party
If the mandatory joinder is related to a
If the mandatory joinder is related to a
defendant, there is no problem .
defendant, there is no problem .
 the case is not dismissed.
the case is not dismissed.
 The court shall order the joinder of such
The court shall order the joinder of such
party, by issuing summon on him.
party, by issuing summon on him.
 Thus, in case of non- joinder of a party
Thus, in case of non- joinder of a party
defendant, the rule under Article
defendant, the rule under Article 39
39 40(2)
40(2)
applies and the court makes him a party.
applies and the court makes him a party.

 However, when it comes to the non-joinder
However, when it comes to the non-joinder
of a party plaintiff there is a problem.
of a party plaintiff there is a problem.
 There is no clear provision dealing with a
There is no clear provision dealing with a
non-joinder of a party plaintiff and its effect.
non-joinder of a party plaintiff and its effect.
 Article 40(2) can be considered to have an
Article 40(2) can be considered to have an
application to the non-joinder of an
application to the non-joinder of an
indispensable party plaintiff.
indispensable party plaintiff.
 This is because it says that a court may
This is because it says that a court may
order joinder of a party as plaintiff or
order joinder of a party as plaintiff or
defendant if it believes that such party is
defendant if it believes that such party is
necessary for the proper determination of a
necessary for the proper determination of a
case.
case.

 A plaintiff or a defendant who ought to
A plaintiff or a defendant who ought to
have been joined (indispensable)
have been joined (indispensable)
 A defendant or a plaintiff whose presence
A defendant or a plaintiff whose presence
is necessary for the determination of all
is necessary for the determination of all
the question involved in the suit is
the question involved in the suit is
if there is a non-joinder of a party plaintiff,
if there is a non-joinder of a party plaintiff,
the court may, by its own motion or upon
the court may, by its own motion or upon
application of one party, add him a party
application of one party, add him a party
to a suit subject to his consent.
to a suit subject to his consent.

 It means that if there is non-joinder of a
It means that if there is non-joinder of a
party plaintiff, the court should first secure
party plaintiff, the court should first secure
his consent before adding him as a party
his consent before adding him as a party
plaintiff as per the rule of Article 40(2),
plaintiff as per the rule of Article 40(2),
which says: “
which says: “No person shall be added as
No person shall be added as
plaintiff without his consent“.
plaintiff without his consent“.
 This is because it is the right of a person
This is because it is the right of a person
to sue and, thus, one should not be
to sue and, thus, one should not be
compelled to appear as a party plaintiff.
compelled to appear as a party plaintiff.
 It is up to a party to file a suit or abandon
It is up to a party to file a suit or abandon
it, since rights of civil matters can be
it, since rights of civil matters can be
abandoned.
abandoned.

Discussion Questions
What will happen if a plaintiff who is an
What will happen if a plaintiff who is an
indispensable party does not consent to be a
indispensable party does not consent to be a
party to a particular suit?
party to a particular suit?
Can the rule of Article 39 be of help here?
Can the rule of Article 39 be of help here?
Is the court entitled to proceed with the case
Is the court entitled to proceed with the case
in the absence of such party?
in the absence of such party?
Jildii 8ffaa L.G. 39540, 47
Jildii 8ffaa L.G. 39540, 47
Jildii 9ffaa, L.G. 43424,p.277
Jildii 9ffaa, L.G. 43424,p.277
Dh/Ijj/M/M/W/F.p.152 (J.6ffaa)
Dh/Ijj/M/M/W/F.p.152 (J.6ffaa)

 the rule under article 39 is not applicable to
the rule under article 39 is not applicable to
cases of an indispensable party because
cases of an indispensable party because
parties are supposed to be joined as a
parties are supposed to be joined as a
matter of obligation.
matter of obligation.
 There are two options available to a court if
There are two options available to a court if
an indispensable party plaintiff is not willing
an indispensable party plaintiff is not willing
to join a suit as a named party plaintiff.
to join a suit as a named party plaintiff.
 One is to proceed with the case regardless
One is to proceed with the case regardless
of the absence of such party, since it is
of the absence of such party, since it is
unfair to deny the parties who brought
unfair to deny the parties who brought
action the remedies they are seeking from
action the remedies they are seeking from
a court for the sole reason that a party
a court for the sole reason that a party
refuses to become a party.
refuses to become a party.

 Hence, rather than dismissing a case, the
Hence, rather than dismissing a case, the
court shall make such party a defendant.
court shall make such party a defendant.
 This makes the court to proceed with the
This makes the court to proceed with the
case, protects the parties who present a
case, protects the parties who present a
case before a court, and allow him to
case before a court, and allow him to
appeal, since he is appearing as a party
appeal, since he is appearing as a party
defendant.
defendant.
 As a defendant, he is merely on a record
As a defendant, he is merely on a record
of court and does not have any
of court and does not have any
responsibility to defend unlike a proper
responsibility to defend unlike a proper
named defendant.
named defendant.

Another option available is to dismiss a case
Another option available is to dismiss a case
if a party plaintiff refuses to be added as a
if a party plaintiff refuses to be added as a
party plaintiff.
party plaintiff.
This is because it is an indispensable party
This is because it is an indispensable party
that is not joined and hence non- joinder in
that is not joined and hence non- joinder in
such instance should not produce similar
such instance should not produce similar
effect as in the case of non-joinder of
effect as in the case of non-joinder of
permissive party plaintiff.
permissive party plaintiff.
Thus, according to this option, the parties
Thus, according to this option, the parties
are not under obligation to exercise their
are not under obligation to exercise their
rights jointly, and if one does not join or
rights jointly, and if one does not join or
refuses to be joined, the case shall be
refuses to be joined, the case shall be
dismissed.
dismissed.

Joinder of Causes of Action
Joinder of Causes of Action
 The Civil Procedure Code failed to define
The Civil Procedure Code failed to define
what a cause of action is.
what a cause of action is.
 The provision of Article 231 says that a
The provision of Article 231 says that a
statement of claim shall be rejected if it
statement of claim shall be rejected if it
does not indicate a cause of action.
does not indicate a cause of action.
 Parties are allowed to join as many causes
Parties are allowed to join as many causes
of action as possible so long as joining of
of action as possible so long as joining of
causes does not bring about delay of
causes does not bring about delay of
proceeding or embarrassment to a
proceeding or embarrassment to a
defendant. Parties are allowed to join even
defendant. Parties are allowed to join even
unrelated claims. Art. 217
unrelated claims. Art. 217

 An exception is provided under Art. 218,
An exception is provided under Art. 218,
 claims for the recovery of immovable
claims for the recovery of immovable
property may not be joined with other
property may not be joined with other
kinds of claims except those involving such
kinds of claims except those involving such
property.
property.
 Another is provided under Art. 219.
Another is provided under Art. 219.
 A claim by or against an executor,
A claim by or against an executor,
administrator, or heir in his representative
administrator, or heir in his representative
capacity cannot be joined with a claim by
capacity cannot be joined with a claim by
or against him in his personal capacity
or against him in his personal capacity

 With the exceptions of these cases, a single
With the exceptions of these cases, a single
plaintiff or plaintiffs with a joint interest may
plaintiff or plaintiffs with a joint interest may
unite any number of claims against the same
unite any number of claims against the same
defendant or the same defendants jointly,
defendant or the same defendants jointly,
 so far as such joinder does not result in
so far as such joinder does not result in
delay of considering a case or an
delay of considering a case or an
embarrassment to defendant. (See, Art 221
embarrassment to defendant. (See, Art 221
of Cv. Pr. C)
of Cv. Pr. C)

Intervention of third Parties(Art. 41
Intervention of third Parties(Art. 41)
)
 Intervention is a procedure where by
Intervention is a procedure where by
 a non party, up on timely application,
a non party, up on timely application,
present a claim or defense in pending
present a claim or defense in pending
action in order to protect his interests and
action in order to protect his interests and
become a party for that purpose,
become a party for that purpose,
 Intervention
Intervention is a procedure which
is a procedure which
Counter balances the many devices that
Counter balances the many devices that
afford protection and give pff or defendant
afford protection and give pff or defendant
choice in the selection of parties to the suit
choice in the selection of parties to the suit
Regulates the progression of application
Regulates the progression of application
until determination on the application
until determination on the application

Types of Intervention
Types of Intervention
 Intervention of right---divided in to two
Intervention of right---divided in to two
 by statute
by statute
Intervention is granted as a matter of
Intervention is granted as a matter of
right where a statute confers an
right where a statute confers an
unconditional light to intervene
unconditional light to intervene
E.g. In USA in suit in w/h the constitution
E.g. In USA in suit in w/h the constitution
of an set of compress is in Q,
of an set of compress is in Q,

 to protect intervener’s interest
to protect intervener’s interest
Is granted where the applicant claims an
Is granted where the applicant claims an
interest relating to the property or
interest relating to the property or
transaction that is the subject of the
transaction that is the subject of the
action and
action and
 is so situated that the disposition of the
is so situated that the disposition of the
action may, as a practical matter, impair
action may, as a practical matter, impair
or impede the applicant’s ability to
or impede the applicant’s ability to
protect that interests
protect that interests
Eg, USA; Fed. Rule of C. pro. 24(a) (2)
Eg, USA; Fed. Rule of C. pro. 24(a) (2)

 Permissive Intervention
Permissive Intervention
 The court has discretion to permit a non
The court has discretion to permit a non
party to intervene if;
party to intervene if;
A statute confers a conditional right to
A statute confers a conditional right to
intervene
intervene
A question of law or fact in common
A question of law or fact in common
with the main action is part of the
with the main action is part of the
applicant’s claim or defense
applicant’s claim or defense
The standard for permissive
The standard for permissive
intervention corresponds to that of
intervention corresponds to that of
permissive joinder.
permissive joinder.

 In order to establish that his presence is
In order to establish that his presence is
desirable,
desirable, the intervener should show an
the intervener should show an
arguable claim against an existing party
arguable claim against an existing party
to the suit, though the court retains a
to the suit, though the court retains a
complete discretion whether or not to
complete discretion whether or not to
permit the proposed joinder.
permit the proposed joinder.
 So intervention is not a matter of
So intervention is not a matter of
absolute right in this case.
absolute right in this case.
 Ours is also permissive
Ours is also permissive

 Purposes of Intervention
Purposes of Intervention
1.
1. the plaintiff have an interest in having
the plaintiff have an interest in having
forum if there is no alternative forum
forum if there is no alternative forum
available, then his/her interest will be
available, then his/her interest will be
satisfied);
satisfied);
2.
2. the defendant may properly wish to avoid
the defendant may properly wish to avoid
multiple litigation or inconsistent relief, or
multiple litigation or inconsistent relief, or
sole responsibility for a liability he shares
sole responsibility for a liability he shares
with another;
with another;

3. The interest of the outsider whom it
3. The interest of the outsider whom it
would have been desirable to join will be
would have been desirable to join will be
determined as a practical matter.
determined as a practical matter.
 protecting the interest of third party
protecting the interest of third party
intervener-the outcome of the
intervener-the outcome of the
proceeding will affect him/her.
proceeding will affect him/her.
4. It is the interest of the court, and the
4. It is the interest of the court, and the
public in complete, consistent and
public in complete, consistent and
efficient settlement of claims.
efficient settlement of claims.

Standards Intervention
Standards Intervention
substantive standards
substantive standards
Procedural Standards
Procedural Standards
Whether intervention is allowed depends on
Whether intervention is allowed depends on
the balancing of two conflicting policies:
the balancing of two conflicting policies:
That the plaintiff should be allowed to be “ master
That the plaintiff should be allowed to be “ master
of his action”, in the sense of joining such parties
of his action”, in the sense of joining such parties
with him or against him as he wishes; and
with him or against him as he wishes; and
That other interested parties and the court has an
That other interested parties and the court has an
interest in avoiding multiplicity of litigation or
interest in avoiding multiplicity of litigation or
inconsistency of results, w/h may require
inconsistency of results, w/h may require
overriding the plaintiff’s choice of parties.
overriding the plaintiff’s choice of parties.

Substantive Standards
Substantive Standards
 1
1st
st
:
: Substantive right or interest
Substantive right or interest relating
relating
to the property or transaction
to the property or transaction that is the
that is the
subject of the action
subject of the action
 Substantive right or interest
Substantive right or interest
 Legally protectable ,Economic or non
Legally protectable ,Economic or non
economic interest, Art 33
economic interest, Art 33
 Nature and sufficiency of interest
Nature and sufficiency of interest
• “
“Significantly legally protectable
Significantly legally protectable
interest”
interest”
• direct, substantial, and legally
direct, substantial, and legally
protectable interests
protectable interests

 Relating To
Relating To The Pending Action
The Pending Action
 Intervention is not an independent
Intervention is not an independent
proceeding rather accessory to pending
proceeding rather accessory to pending
original action,
original action,
 An intervention will be allowed only if it
An intervention will be allowed only if it
is connected to the claims of the parties
is connected to the claims of the parties
by a sufficient link.
by a sufficient link.
 This prohibit him from raising issues
This prohibit him from raising issues
that are not evident from the action,
that are not evident from the action,
 This is because there is no room of
This is because there is no room of
protecting interests unless that interest
protecting interests unless that interest
is going to be adjudicated by pending
is going to be adjudicated by pending
action,
action,

 Should not be independent claim
Should not be independent claim
 Those who have right or liability which can
Those who have right or liability which can
be enforced or defended independently
be enforced or defended independently
should not be allowed
should not be allowed
 s/he can intervene on either side or
s/he can intervene on either side or
adverse to them.
adverse to them.
 Joinig plaintiff in claiming what is sought
Joinig plaintiff in claiming what is sought
by the complaint
by the complaint
 By uniting the defendant by resisting the
By uniting the defendant by resisting the
claim of plaintiff
claim of plaintiff
 Adversely to both
Adversely to both

2
2nd
nd
: Outcome of litigation may impair
: Outcome of litigation may impair
intervener’s interest
intervener’s interest
 This is not limited to legally binding
This is not limited to legally binding
effects, such as resjudicata, but looks to
effects, such as resjudicata, but looks to
the practical impact of resolution of the
the practical impact of resolution of the
litigation on the intervener’s interest.
litigation on the intervener’s interest.

 E.g. Plaintiff sued trade and Industry
E.g. Plaintiff sued trade and Industry
ministers claiming it was improperly
ministers claiming it was improperly
allowing the state to issues licenses to run
allowing the state to issues licenses to run
soap factory W/O first requiring preparation
soap factory W/O first requiring preparation
of implemental impact statements.
of implemental impact statements.
 Companies with licenses application
Companies with licenses application
pending were allowed to intervene
pending were allowed to intervene
 Rationale:- As a practical matter, such
Rationale:- As a practical matter, such
applicants would be affected by the
applicants would be affected by the
outcome of the litigation if it cause the
outcome of the litigation if it cause the
state agency to alter its mode of operation
state agency to alter its mode of operation
and require of applicants for licenses.
and require of applicants for licenses.

 3
3rd
rd
:Intervener not adequately represented
:Intervener not adequately represented
by present parties.
by present parties.
If the intervener claims the right kind of
If the intervener claims the right kind of
interest and shows a threat of practical
interest and shows a threat of practical
requirement intervention would be denied
requirement intervention would be denied
on the ground that the intervener’s
on the ground that the intervener’s
interests adequately represented by the
interests adequately represented by the
present parties.
present parties.
The burden of demonstrating in adequacy
The burden of demonstrating in adequacy
of representation is minimal
of representation is minimal

Factors to be considered in evaluating
Factors to be considered in evaluating
adequacy of representation
adequacy of representation
The amount at stake for the intervener
The amount at stake for the intervener
and the present parties,
and the present parties,
The ability and resources of the present
The ability and resources of the present
parties to litigate effectively, and
parties to litigate effectively, and
The existence of any conflicts of
The existence of any conflicts of
interests b/n the present party and the
interests b/n the present party and the
interveners.
interveners.
Parties must be in similar situation
Parties must be in similar situation

Discussion question
Discussion question
 Are there clear substantive standards for
Are there clear substantive standards for
intervention under Art. 41?
intervention under Art. 41?
 Under Art. 41 (1) and (2) an applicant
Under Art. 41 (1) and (2) an applicant
may only be permitted to intervene
may only be permitted to intervene
where he or she shows facts that justify
where he or she shows facts that justify
he or she is interested person in
he or she is interested person in
pending suit.
pending suit.
 What sort of interest is sufficient to
What sort of interest is sufficient to
invoke Art. 41 ?
invoke Art. 41 ?

 Under Art. 41(1) it is stipulated that:
Under Art. 41(1) it is stipulated that:
 English version
English version; “…
; “…Any person interested
Any person interested
in a suit b/n other parties……
in a suit b/n other parties……’
’’
’
 Amharic version
Amharic version ‘
‘’…..
’….. …
በጉደዩ የገባኛል የሚል …
በጉደዩ የገባኛል የሚል .
.
”
”
 So what does the phrase “interested in a
So what does the phrase “interested in a
suit” mean?
suit” mean?
 Can we interpret it so as to accommodate
Can we interpret it so as to accommodate
the above standards?
the above standards?

 In legal science the phrase “interested
In legal science the phrase “interested
in ..” has got two meanings:
in ..” has got two meanings:
 The First Meaning
The First Meaning ;
; Having substantive
Having substantive
right or interest relating to the property or
right or interest relating to the property or
transaction that is the subject of the action
transaction that is the subject of the action
Right directly or substantially connected
Right directly or substantially connected
to the original pending action
to the original pending action
•Same issue
Same issue
•the interest of the intervening party is
the interest of the intervening party is
the interest of a person who was the
the interest of a person who was the
party to the suit
party to the suit
•Not independent cause of action
Not independent cause of action

 The Second Meaning
The Second Meaning of the phrase Is
of the phrase Is :
:
 directly affected by the outcome of the
directly affected by the outcome of the
controversy;
controversy;
 postulates that the person concerned
postulates that the person concerned
must have some direct interest”
must have some direct interest”
 Indian CP C Art.89:
Indian CP C Art.89:
 the disposition of the action in the
the disposition of the action in the
absence of the applicant would impair
absence of the applicant would impair
his interest or,
his interest or,
will directly affect his or her proprietary
will directly affect his or her proprietary
or pecuniary interest.
or pecuniary interest.

Discussion Question
Discussion Question
1. There is a debate as whether we can
1. There is a debate as whether we can
develop substantive standards using the
develop substantive standards using the
above two meanings of the phrase.
above two meanings of the phrase.
 Some argue as it is a way out legal
Some argue as it is a way out legal
interpretation;
interpretation;
 Others argue as it is not interpretation
Others argue as it is not interpretation
but law making, since judges do not
but law making, since judges do not
have this power in our legal system
have this power in our legal system
there is no remedy except amendment
there is no remedy except amendment
of the provision
of the provision
 Which of these arguments best serve the
Which of these arguments best serve the
justice?
justice?

2.W/t does the statement “
2.W/t does the statement “the disposition
the disposition
of the action ……, will directly affect his
of the action ……, will directly affect his
proprietary interest
proprietary interest‘’ indicate as to the
‘’ indicate as to the
relief sought by the applicant?
relief sought by the applicant?
 Is intervention invoked for protection
Is intervention invoked for protection
of interest which would be
of interest which would be
jeopardized by judgment on original
jeopardized by judgment on original
action or judgment that he is entitled
action or judgment that he is entitled
to property or transaction w/h is the
to property or transaction w/h is the
subject matter to the action?
subject matter to the action?
 If for judgment, how do you see with
If for judgment, how do you see with
payment of court fee?
payment of court fee?
 Cases on civ.pro., p.1-3
Cases on civ.pro., p.1-3

 In USA
In USA judgment rendered subsequent to
judgment rendered subsequent to
intervention is binding on the intervening
intervention is binding on the intervening
party as if she had originally been a party,
party as if she had originally been a party,
and h/she has a similar right of appeal
and h/she has a similar right of appeal
 Would this be equally applicable in our
Would this be equally applicable in our
legal system?
legal system?

3. When do you think can we say
3. When do you think can we say the
the
disposition of the action
disposition of the action ……
……will directly
will directly
affect his proprietary interest
affect his proprietary interest?
?
 Judgment on pending action would have
Judgment on pending action would have
resjudicata effect on the applicant?
resjudicata effect on the applicant?
 Judgment directly be executed on the
Judgment directly be executed on the
applicant?
applicant?
 Sedler “…
Sedler “… gain or lose by direct legal
gain or lose by direct legal
operation and effect of the judgment …”
operation and effect of the judgment …”
 Sedler says these parties are
Sedler says these parties are
Indispensable parties
Indispensable parties

 Discussion Question
Discussion Question
 Does this mean other parties would not be
Does this mean other parties would not be
affected by the disposition of any pending
affected by the disposition of any pending
action?
action?
 What is the difference between
What is the difference between
indispensable parties and other parties?
indispensable parties and other parties?
 Do you think the procedure of intervention
Do you think the procedure of intervention
be strictly interpreted so as cover only
be strictly interpreted so as cover only
indispensable parties or be broadly
indispensable parties or be broadly
construed so as to include other parties
construed so as to include other parties?
?

 Indispensable parties
Indispensable parties:- are parties who are
:- are parties who are
interested in the controversy and the court cannot
interested in the controversy and the court cannot
do complete justice with out them and
do complete justice with out them and the
the
litigation cannot go for ward
litigation cannot go for ward.
.
 Necessary parties;
Necessary parties; are parties so interested in the
are parties so interested in the
controversy that they should normally be made
controversy that they should normally be made
parties in order to enable the court to do complete
parties in order to enable the court to do complete
justice, yet if their presence in the suit cannot
justice, yet if their presence in the suit cannot
obtained the
obtained the litigation will continue with out
litigation will continue with out
them.
them.
 proper parties:-
proper parties:- are those in whose absence an
are those in whose absence an
effective order can be passed whose presence is
effective order can be passed whose presence is
not needed for a complete and effective
not needed for a complete and effective
adjudication.
adjudication.

Intervention And Mandatory Joinder
Intervention And Mandatory Joinder
Intervention more flexible than mandatory
Intervention more flexible than mandatory
joiner.
joiner.
Their grounds are analogous
Their grounds are analogous
But does not mean that the litigation
But does not mean that the litigation
should not proceed unless similarly
should not proceed unless similarly
situated non parties are joined.
situated non parties are joined.
W/t is needed in intervention are
W/t is needed in intervention are
protected and threatened interests.
protected and threatened interests.

The adequacy of the present parties to
The adequacy of the present parties to
protect the interests of the non parties
protect the interests of the non parties
does not relieve the court of the duty to
does not relieve the court of the duty to
add mandatory parties.
add mandatory parties.
In case of intervention representation is
In case of intervention representation is
adequate, treatment as a class action
adequate, treatment as a class action
may be in order.
may be in order.

American Supreme court supporting the
American Supreme court supporting the
Indian practice says
Indian practice says
“
“the interest test for intervention in
the interest test for intervention in
suits is by involving as many apparently
suits is by involving as many apparently
concerned persons as is compatible with
concerned persons as is compatible with
efficiency and due process”
efficiency and due process”.
.
An Indian scholar also says“
An Indian scholar also says“
Intervention should be concerned with the
Intervention should be concerned with the
view of assisting parties in obtaining
view of assisting parties in obtaining
justice and protecting their rights;
justice and protecting their rights;
this procedure recognize the importance
this procedure recognize the importance
of joining parties to protect interests at
of joining parties to protect interests at
stake
stake…”
…”

 Modern Trend to permit intervention:
Modern Trend to permit intervention:
 many America states are becoming more
many America states are becoming more
liberal in permitting intervention
liberal in permitting intervention
 English rule had established that the court
English rule had established that the court
should give a wide interpretation to the power
should give a wide interpretation to the power
to allow intervention.
to allow intervention.
 the court s’d be mindful that ‘one of the
the court s’d be mindful that ‘one of the
purposes of joinder of parties is to ensure
purposes of joinder of parties is to ensure that
that
there is not a multiplicity of actions
there is not a multiplicity of actions’, and
’, and
 a mere commercial interest in the outcome of
a mere commercial interest in the outcome of
the action, such as that of a creditor, was not
the action, such as that of a creditor, was not
sufficient to entitle such person to intervene,
sufficient to entitle such person to intervene,
 Does this apply to our case?
Does this apply to our case?

 Procedural Standards
Procedural Standards
 1. Pending Action
1. Pending Action
 For intervention to be allowed there has to
For intervention to be allowed there has to
be Pending Action
be Pending Action
 The question is whether the pending action
The question is whether the pending action
is that between two parties or one party
is that between two parties or one party
proceeding?
proceeding?
 Position 1: Two party proceeding, Art
Position 1: Two party proceeding, Art.
.
41(1),
41(1),
English
English;“…..in suit b/n other parties ..”
;“…..in suit b/n other parties ..”
Amharic
Amharic;
; ”
ተከራካሪ ወገኖች በክርክር ላይ ባሉበት ጊዜ”
ተከራካሪ ወገኖች በክርክር ላይ ባሉበት ጊዜ
Both are in plural
Both are in plural

 Position 2: One party proceeding
Position 2: One party proceeding
Of course Art. 41 is general; But since Art.
Of course Art. 41 is general; But since Art.
32(1)…is mandatory it derogates Art. 41
32(1)…is mandatory it derogates Art. 41
Art. 32(1),
Art. 32(1),The provisions of this Book shall
The provisions of this Book shall
apply in any proceeding under this Code.
This book is… Book II. Parties To Suits
This book is… Book II. Parties To Suits
Art. 41 is one provision of the book
Art. 41 is one provision of the book
One party proceeding is a proceeding
One party proceeding is a proceeding
under this Code.
under this Code.
Therefore, Art. 41 applies in one party
Therefore, Art. 41 applies in one party
proceeding
proceeding
 Which position is plausible?
Which position is plausible?

 2.Making Of Application , Art. 41(2)
2.Making Of Application , Art. 41(2)
 Is annex necessary?
Is annex necessary?
 Position one: Not
Position one: Not
Art. 41(2) does not indicate the content
Art. 41(2) does not indicate the content
and form of the application
and form of the application
It does not refer to Art. 222 and Art. 223
It does not refer to Art. 222 and Art. 223
 Position two: Yes
Position two: Yes
According to Art. 80(1) it is pleading
According to Art. 80(1) it is pleading
Acc. to Art. 80(1) pleading
Acc. to Art. 80(1) pleading …made in …
…made in …
Form in the First Schedule to this Code
Form in the First Schedule to this Code
The schedule requires annex
The schedule requires annex
 Which position is plausible?
Which position is plausible?

 3. Procedure in permitting Intervention,
3. Procedure in permitting Intervention,
Art. 41(3)
Art. 41(3)
 After serving the original parties or before
After serving the original parties or before
that?
that?
 Only judges consider it ?
Only judges consider it ?
 Oral litigation?
Oral litigation?
 Statement of defences by the original
Statement of defences by the original
parties on the application?
parties on the application?

 Why after intervention is allowed the
Why after intervention is allowed the
parties served with a copy of the
parties served with a copy of the
statement of the intervening party?
statement of the intervening party?
Simply for the purpose of notice?
Simply for the purpose of notice?
For statement of defence? On the merit?
For statement of defence? On the merit?
Or the permitted intervention?
Or the permitted intervention?
Would permission to intervene be
Would permission to intervene be
revised for the last time?
revised for the last time?
What if the court is erred in considering
What if the court is erred in considering
the standards? The right to be heard??
the standards? The right to be heard??

4. Time To Intervene
4. Time To Intervene
 Art.41(1)…
Art.41(1)…a suit
a suit…
…before judgment
before judgment.
.
 Intervention is possible before judgment is
Intervention is possible before judgment is
given
given on the suit;
on the suit;
 deadline
deadline for intervention is entry of
for intervention is entry of
judgment;
judgment;
 Judgment can be given at trial or appellate
Judgment can be given at trial or appellate
stage. The
stage. The question is
question is
does judgment include that given at
does judgment include that given at
appellate stage?
appellate stage?
What does the word “suit” imply?
What does the word “suit” imply?
Does it include appeal?
Does it include appeal?

 Position One: Art. 41 Is Applicable On
Position One: Art. 41 Is Applicable On
Appeal
Appeal
Art.
Art. 32(1) …t
32(1) …the provisions of Book II shall
he provisions of Book II shall
Art. 41 is under book II
Art. 41 is under book II
Appeal is a proceeding under this
Appeal is a proceeding under this
Code.
Code.
Therefore, Art. 41 applies on Appeal
Therefore, Art. 41 applies on Appeal
Art. 32(2)…. Confirms that….In applying
Art. 32(2)…. Confirms that….In applying
the provisions of this Book to appeals……
the provisions of this Book to appeals……
the word
the word "suit“ shall be held to include
"suit“ shall be held to include
an appeal
an appeal

 Position Two: Art. 41 Is Not Applicable On
Position Two: Art. 41 Is Not Applicable On
Appeal
Appeal
 An intervening party is
An intervening party is a party for
a party for
regarding a claim or defense he presents,
regarding a claim or defense he presents,
One can only be a party in courts of first
One can only be a party in courts of first
instance, Art. 33(2) and (3)
instance, Art. 33(2) and (3)
 Art. 32(2)…. Suit is held to be appeal……
Art. 32(2)…. Suit is held to be appeal…… so
so
far as may be,…..which means where
far as may be,…..which means where
appropriate
appropriate
With regard to Art. 41 it is not
With regard to Art. 41 it is not
appropriate
appropriate
 Art. 320
Art. 320

 Art. 320--
Art. 320--the plaintiff or the defendant
the plaintiff or the defendant
may, ….., appeal against any final
may, ….., appeal against any final
judgment.
judgment.
 Intervening party is not a plaintiff or
Intervening party is not a plaintiff or
defendant
defendant
 Art. 329…the appellant may not raise any
Art. 329…the appellant may not raise any
fact which was not …..in the lower court
fact which was not …..in the lower court
 Since he was not a party it is highly
Since he was not a party it is highly
probable that Intervening party will
probable that Intervening party will
raise new thing for the first time
raise new thing for the first time

 Art. 40(5) ……only a person who was a
Art. 40(5) ……only a person who was a
party to the suit in the court from whose
party to the suit in the court from whose
decree the appeal is preferred, ……would
decree the appeal is preferred, ……would
be made a party to the appeal,…….
be made a party to the appeal,…….
Indicates a person who was not a party
Indicates a person who was not a party
at lower court can be a party at appeal
at lower court can be a party at appeal
 Under Indian Civil Procedure it is provided
Under Indian Civil Procedure it is provided
as “suit is proceeding in action in courts of
as “suit is proceeding in action in courts of
first instance as distinguished from
first instance as distinguished from
proceedings in appellate courts” .
proceedings in appellate courts” .
 Which line argument is practical? Has
Which line argument is practical? Has
Legal ground?
Legal ground?

 5. Intervention and The Right Of Appeal
5. Intervention and The Right Of Appeal
 Appeal is taken after all issues involved in
Appeal is taken after all issues involved in
the suit have finally be determined by trial
the suit have finally be determined by trial
court
court
 Appeal on interlocutory matter is possible
Appeal on interlocutory matter is possible
if fall under exception of Art.320(4)
if fall under exception of Art.320(4)
 Does intervention fall under this?
Does intervention fall under this?
 Is there any difference between denial and
Is there any difference between denial and
permit ion of application for intervention?
permit ion of application for intervention?
 If we say it should wait final judgment,
If we say it should wait final judgment,
what if proceeding take long time and
what if proceeding take long time and
time appeal lapses? 60 days
time appeal lapses? 60 days

If appeal is possible what would be the
If appeal is possible what would be the
remedy for the applicant for the original
remedy for the applicant for the original
proceeding will get judgment while appeal
proceeding will get judgment while appeal
on denial of application for intervention is
on denial of application for intervention is
pending?
pending?
Does Art. 332 stand to solve such problem?
Does Art. 332 stand to solve such problem?

 Intervention Of The Public
Intervention Of The Public
Prosecutor ,Art. 42.
Prosecutor ,Art. 42.
 The Public Prosecutor is under obligation
The Public Prosecutor is under obligation
to intervene, if parties concerned in such
to intervene, if parties concerned in such
types of suit have initiated a suit.
types of suit have initiated a suit.
 Substantive law prescribes all of the cases
Substantive law prescribes all of the cases
demanding the intervention of the Public
demanding the intervention of the Public
Prosecutor.
Prosecutor.
 Cases related to civil status, incapacity,
Cases related to civil status, incapacity,
marriage and bankruptcy are cases that
marriage and bankruptcy are cases that
give rise to the intervention of the Public
give rise to the intervention of the Public
Prosecutor.
Prosecutor.

The draft Civil Procedure Code made a
The draft Civil Procedure Code made a
modification to Article 42 of the existing Civil
modification to Article 42 of the existing Civil
Procedure Code.
Procedure Code.
 The draft says that the public prosecutor
The draft says that the public prosecutor
shall intervene in cases where his
shall intervene in cases where his
intervention is prescribed by law.
intervention is prescribed by law.
 Rather than listing cases in which the
Rather than listing cases in which the
Public Prosecutor intervenes, it makes the
Public Prosecutor intervenes, it makes the
intervention subject to rules of substantive
intervention subject to rules of substantive
law.
law.

Impleader/Third Party Practice ,
Impleader/Third Party Practice ,
Art 43:
Art 43:
 It is a mechanism by which a defendant
It is a mechanism by which a defendant
brings into a suit a third party on the ground
brings into a suit a third party on the ground
that such third party covers or shares the
that such third party covers or shares the
whole or part of claim of plaintiff
whole or part of claim of plaintiff
 Third party practice, which is also known as
Third party practice, which is also known as
impleader, is the procedural device enabling
impleader, is the procedural device enabling
the defendant in a lawsuit to bring into a suit
the defendant in a lawsuit to bring into a suit
an additional
an additional party who may be liable for
party who may be liable for
all or part of the original plaintiff’s claim
all or part of the original plaintiff’s claim
against the defendant.
against the defendant.

 Plaintiff’s Claim As Against The
Plaintiff’s Claim As Against The
Defendant.
Defendant.
 hhh
hhh

The purpose of third party practice is
The purpose of third party practice is
 to settle claims involving the same cause
to settle claims involving the same cause
of action/ transaction in a single suit avo
of action/ transaction in a single suit avo
 avoiding multiplicity of suits.
avoiding multiplicity of suits.
 Defendant’s claim against 3rd party can be
Defendant’s claim against 3rd party can be
seen in the same suit where the plaintiff’s
seen in the same suit where the plaintiff’s
claim against him is being considered.
claim against him is being considered.
 advantages of third party practice claim
advantages of third party practice claim
are:
are:
 (a) Speedier determination of the claim or
(a) Speedier determination of the claim or
issue against the third party;
issue against the third party;

 (b) Avoidance of the costs of a second
(b) Avoidance of the costs of a second
hearing; and
hearing; and
 (c) Avoidance of the risk of conflicting
(c) Avoidance of the risk of conflicting
decisions from different judges on
decisions from different judges on
essentially similar issues.
essentially similar issues.
 It is optional and that the defendant may
It is optional and that the defendant may
claim against the third party in a separate
claim against the third party in a separate
suit.
suit.
Under Art. 43(1) the defendant shall
Under Art. 43(1) the defendant shall
demand a court for the third party
demand a court for the third party
practice in his statement of defense.
practice in his statement of defense.

 The questions are:
The questions are:
 whether the application for third party
whether the application for third party
practice is subject to a time limit; and
practice is subject to a time limit; and
 If he fails at this time, w/r he is precluded
If he fails at this time, w/r he is precluded
from doing so at a later stage
from doing so at a later stage
 The English version of Art. 43(1)
The English version of Art. 43(1) says
says
“…
“…in his statement of defense
in his statement of defense ..”
..”
But it is not indicated under Art.234 as
But it is not indicated under Art.234 as
content of statement of defense
content of statement of defense
Does this make this version questionable?
Does this make this version questionable?

 The Amharic Version
The Amharic Version of Art. 43(1) :
of Art. 43(1) :
 “…
“….
.ሦስተኛ ወገን በክስ ውስጥ ይግባልኝ ብሎ
ሦስተኛ ወገን በክስ ውስጥ ይግባልኝ ብሎ
በመግለፅ ማመልከቻውን ለፍርድ ቤት ማቅረብ
በመግለፅ ማመልከቻውን ለፍርድ ቤት ማቅረብ
ይችላል
ይችላል፡፡
፡፡
 Indicates that the demand for third party
Indicates that the demand for third party
defendant is made by filling of a separate
defendant is made by filling of a separate
application containing all grounds;
application containing all grounds;
 But it does not indicate that it is filed along
But it does not indicate that it is filed along
with statement of defense or after that,
with statement of defense or after that,
 Under Indian C.P.C. it is provided as
Under Indian C.P.C. it is provided as “ …
“ …
along with the statement of defense …
along with the statement of defense …”
”
 Which means separate application but
Which means separate application but
presented along with statement of defense
presented along with statement of defense

 In both cases there is no as such difference
In both cases there is no as such difference
regarding their effects (w/r in or along
regarding their effects (w/r in or along
statement of defense)
statement of defense)
 But from the above we understand that:
But from the above we understand that:
 The defendant should raise it as soon as
The defendant should raise it as soon as
he appears before a court to make a
he appears before a court to make a
defense against a claim of the plaintiff.
defense against a claim of the plaintiff.
 It means that he should file an application
It means that he should file an application
during the first hearing of a suit.
during the first hearing of a suit.
 If he fails to demand the third party
If he fails to demand the third party
practice at this time, he is precluded from
practice at this time, he is precluded from
doing so at a later stage of the
doing so at a later stage of the
proceedings.
proceedings.

 Requirements
Requirements
 The defendant has to indicate the reasons
The defendant has to indicate the reasons
why he demands the joinder of the third
why he demands the joinder of the third
party in his statement of defense.
party in his statement of defense.
that he is entitled to
that he is entitled to contribution or
contribution or
indemnity
indemnity from such third party.
from such third party.
the
the extent of contribution or
extent of contribution or
indemnity
indemnity to be made or covered by
to be made or covered by
such third party
such third party
 Substantive requirement: derivative liability
Substantive requirement: derivative liability
b/n principal defendant (third party
b/n principal defendant (third party
plaintiff) and third party defendant,
plaintiff) and third party defendant,
‘contribution or indemnity’
‘contribution or indemnity’

 Contribution
Contribution
 Contribution refers to the situation where
Contribution refers to the situation where
more than one person has committed the
more than one person has committed the
same wrong against the plaintiff or has
same wrong against the plaintiff or has
the same obligation to him.
the same obligation to him.
 Joint creditors, joint debtors, joint owners,
Joint creditors, joint debtors, joint owners,
etc. share liability and,
etc. share liability and,
 hence, there is a contribution relationship
hence, there is a contribution relationship
between/among them.
between/among them.
 A defendant may assert A third party liable
A defendant may assert A third party liable
to the plaintiff and he is not; even if he is
to the plaintiff and he is not; even if he is
liable the action of another toward plaintiff
liable the action of another toward plaintiff
entitles him to contribution
entitles him to contribution

 Indemnity
Indemnity
 Indemnity refers to the situation whereby a
Indemnity refers to the situation whereby a
party who is to pay a claim is entitled to
party who is to pay a claim is entitled to
recover the amount to be paid from another
recover the amount to be paid from another
partly or wholly.
partly or wholly.
 Contract of insurance against liability, agency
Contract of insurance against liability, agency
and principal relation, are some of the main
and principal relation, are some of the main
relations that give rise to indemnity.
relations that give rise to indemnity.
 Indemnity involves the transfer of whole or
Indemnity involves the transfer of whole or
part of a defendant’s liability to a third party.
part of a defendant’s liability to a third party.
 That although he is liable to the plaintiff he
That although he is liable to the plaintiff he
has a right over against a third party for any
has a right over against a third party for any
recovery had against him,
recovery had against him,

 If the defendant is seeking a contribution or
If the defendant is seeking a contribution or
indemnity,
indemnity,
 the ancillary claim is dependent on the
the ancillary claim is dependent on the
main claim in the sense that the defendant
main claim in the sense that the defendant
is seeking to pass on to a third party the
is seeking to pass on to a third party the
liability to the claimant, and if the
liability to the claimant, and if the
claimant’s claim fails, there is no liability to
claimant’s claim fails, there is no liability to
pass on.
pass on.
 Accordingly, in cases of contribution and
Accordingly, in cases of contribution and
indemnity, a distinction must be drawn
indemnity, a distinction must be drawn
between:
between:
 (a) cases where the claimant’s claim is
(a) cases where the claimant’s claim is
settled
settled,
,

 the effect of which is that the ancillary
the effect of which is that the ancillary
proceedings will continue despite the
proceedings will continue despite the
settlement,
settlement,
 because there will still be a live issue as to
because there will still be a live issue as to
whether the third party should contribute
whether the third party should contribute
to the settlement; and
to the settlement; and
 (b) cases where the claimant’s claim is
(b) cases where the claimant’s claim is
dismissed or struck out
dismissed or struck out,
,
 the effect of which is that there is nothing
the effect of which is that there is nothing
left to litigate between the defendant and
left to litigate between the defendant and
the third party, other than costs.
the third party, other than costs.

 If these requirements are fulfilled
If these requirements are fulfilled,
,
 the court issues summon on the third
the court issues summon on the third party
party
together with a copy of the statement of
together with a copy of the statement of
claim and the statement of defense and
claim and the statement of defense and
require him to appear at a fixed date.
require him to appear at a fixed date.
 On such a day, the third party should appear
On such a day, the third party should appear
and raise any objection he may make to his
and raise any objection he may make to his
intervention demanded by the defendant.
intervention demanded by the defendant.
 even if the requirements for the third party
even if the requirements for the third party
practice are fulfilled, it may not be allowed
practice are fulfilled, it may not be allowed
 where it may unduly complicate the
where it may unduly complicate the
original suit or result in delaying its
original suit or result in delaying its
resolution.
resolution.

 If the third party fails to appear on the date
If the third party fails to appear on the date
 Its effects is provided underArt.76,
Its effects is provided underArt.76,
 he is supposed to appear, he is deemed to
he is supposed to appear, he is deemed to
have admitted the existence of
have admitted the existence of
contribution or indemnity between him
contribution or indemnity between him
and the defendant.
and the defendant.
 His mere absence amounts to admission
His mere absence amounts to admission
of such relation.
of such relation.

 If the defendant appears and raises
If the defendant appears and raises
objection, the court considers and decides on
objection, the court considers and decides on
it.
it.
If it is not well found, it orders joinder and
If it is not well found, it orders joinder and
this makes him 3rd party defendant.
this makes him 3rd party defendant.
Then, he proceeds like a defendant in a
Then, he proceeds like a defendant in a
normal action.
normal action.
He can make a counter claim or set-off
He can make a counter claim or set-off
against the original defendant (third party
against the original defendant (third party
plaintiff).
plaintiff).
 The question whether the third party
The question whether the third party
defendant can fight with the plaintiff.
defendant can fight with the plaintiff.
 Different opinions
Different opinions

 Position 1;should not fight
Position 1;should not fight
 Art.43(2) Amharic version says” …
Art.43(2) Amharic version says” …u¡c< ¬eØ
u¡c< ¬eØ
እንዳለ
እንዳለ ÃqÖ^M...
ÃqÖ^M...
“ but does not indicate with
“ but does not indicate with
whom.
whom.
 Art. 43(2) English version; the phrase “ …
Art. 43(2) English version; the phrase “ …
the claims as b/n the defendant and third
the claims as b/n the defendant and third
party ..”shows that the fight is only with
party ..”shows that the fight is only with
the defendant.
the defendant.
 R.A.Sedler “
R.A.Sedler “There is no provision in the
There is no provision in the
civil proc. code authorizing 3
civil proc. code authorizing 3rd
rd
party
party
defendant to make a claim against
defendant to make a claim against
plaintiff.
plaintiff.

 Joining the suit for the benefit of
Joining the suit for the benefit of
defendant; how can he fight against the
defendant; how can he fight against the
plaintiff with out being duly sued by him?
plaintiff with out being duly sued by him?
 It contradicts the purpose of the
It contradicts the purpose of the
procedure;
procedure;
 In India as a principle
In India as a principle“… be a party to the
“… be a party to the
suit as if he has been duly sued by the
suit as if he has been duly sued by the
defendant …
defendant …”.
”.
 But exceptionally“
But exceptionally“ if the 3
if the 3rd
rd
party desires
party desires
to dispute the plaintiff’s claim, he may
to dispute the plaintiff’s claim, he may
apply for leave to defend…
apply for leave to defend… “
“
 Nothing provided under our CPC like this
Nothing provided under our CPC like this

 The English version of Art. 76(1) provides the
The English version of Art. 76(1) provides the
effects of third party defendants failure to
effects of third party defendants failure to
appear , not the procedure to be followed
appear , not the procedure to be followed
when he appears
when he appears
 The Amharic version of Art. 76(1) supports
The Amharic version of Art. 76(1) supports
this position
this position

Position 2: Can fight with the plaintiff.
Position 2: Can fight with the plaintiff.
The English version of Art. 76(1)
The English version of Art. 76(1).
.
Art.43(2) the phrase”…
Art.43(2) the phrase”…በክሱ ውስጥ እንዳለ ሆኖ
በክሱ ውስጥ እንዳለ ሆኖ
”
ይቆጠራል ፡፡”
ይቆጠራል ፡፡ shows that he is a party to the suit,
shows that he is a party to the suit,
If he is a party to the suit he can fight with all
If he is a party to the suit he can fight with all
parties to the suit
parties to the suit
Artt.43(2)the phrase”….
Artt.43(2)the phrase”…. shall be deemed to be
shall be deemed to be
in the same position as a defendant… “ shows
in the same position as a defendant… “ shows
that he is considered as original defendant.
that he is considered as original defendant.
In India it is provided like this but qualified
In India it is provided like this but qualified
Which position is reasonable and logical?
Which position is reasonable and logical?

 The third-party defendant may assert
The third-party defendant may assert
against the plaintiff any defences which the
against the plaintiff any defences which the
third-party plaintiff has to the plaintiff’s
third-party plaintiff has to the plaintiff’s
claim.
claim.
 He may also assert any claim against the pff
He may also assert any claim against the pff
arising out of the transaction or occurrence
arising out of the transaction or occurrence
that is the subject matter of the plaintiff’s
that is the subject matter of the plaintiff’s
claim against the third-party plaintiff.
claim against the third-party plaintiff.
 The pff may assert any claim against the
The pff may assert any claim against the
third-party defendant arising out of the
third-party defendant arising out of the
transaction or occurrence that is the subject
transaction or occurrence that is the subject
matter of the pff’s claim against the third-
matter of the pff’s claim against the third-
party plaintiff, and the third-party defendant
party plaintiff, and the third-party defendant
thereupon shall assert any defences
thereupon shall assert any defences

 The 3rd party defendant fights two cases:
The 3rd party defendant fights two cases:
 his own liability towards the principal
his own liability towards the principal
defendant & the liability of the principal
defendant & the liability of the principal
defendant towards the principal plaintiff;
defendant towards the principal plaintiff;
see Art.76(1)
see Art.76(1)
 Is the third party defendant liable to the
Is the third party defendant liable to the
plaintiffs? See Art 76(2)
plaintiffs? See Art 76(2)
 Can a court give an execution order
Can a court give an execution order
directly against third party defendant?
directly against third party defendant?
 Does Art. 76(2) shows that judgment and
Does Art. 76(2) shows that judgment and
order should only against the original
order should only against the original
defendant?
defendant?

 A proclamation to provide for vehicles
A proclamation to provide for vehicles
insurance against third party risks
insurance against third party risks
No.559/2008 Art.18(1) ’
No.559/2008 Art.18(1) ’’Where the judgment is
’Where the judgment is
rendered against the insured person..the insurer
rendered against the insured person..the insurer
shall…pay to the judgment creditors any sum
shall…pay to the judgment creditors any sum
payable under the judgment….’’
payable under the judgment….’’
 Art.18(2)
Art.18(2) The court…..shall issue execution
The court…..shall issue execution
order accordingly.
order accordingly.
 Does it contradict with Art.76(2)? Or simply
Does it contradict with Art.76(2)? Or simply
affirms that Art.76(2) is a principle?
affirms that Art.76(2) is a principle?
 Does the proc. applicable to all third party
Does the proc. applicable to all third party
defendants or only in insurance cases? If not
defendants or only in insurance cases? If not
can we say Art.76(2) applies in all other cases?
can we say Art.76(2) applies in all other cases?

Chapter IV: Pleadings
Chapter IV: Pleadings
And Pre-trial
And Pre-trial
Proceedings
Proceedings (18hrs)
(18hrs)

Law Of Pleadings
Law Of Pleadings

 Much of the activity in a lawsuit consists of
Much of the activity in a lawsuit consists of
written documents, prepared by the
written documents, prepared by the
parties, which are
parties, which are filed with the court.
filed with the court.
 Papers are filed
Papers are filed by delivering them to the
by delivering them to the
office of the clerk of the court, where they
office of the clerk of the court, where they
are added to the court’s permanent file of
are added to the court’s permanent file of
the lawsuit.
the lawsuit.
 people refer to court papers generically as
people refer to court papers generically as
pleadings, although, technically, the
pleadings, although, technically, the
term
term pleadings
pleadings includes only certain
includes only certain
papers such as the complaint and answer
papers such as the complaint and answer

 Pleadings: Definition
Pleadings: Definition
 Pleadings mean all formally written
Pleadings mean all formally written
statements filed to a court of law by
statements filed to a court of law by
parties to a suit with respect to their
parties to a suit with respect to their
respective claims and/or defenses.
respective claims and/or defenses.
 Art. 80(1) defines pleadings indirectly
Art. 80(1) defines pleadings indirectly
by enumerating, formally written
by enumerating, formally written
statements that constitute them,
statements that constitute them,
St/claim, st/defense,
St/claim, st/defense, counter-claim,
counter-claim,
memorandum of appeal,
memorandum of appeal, application or
application or
petition and
petition and any other document
any other document
originating proceedings or filed in
originating proceedings or filed in
reply thereto.
reply thereto.

 What is proceedings?
What is proceedings? When a document
When a document is
is
said to originate
said to originate proceedings?
proceedings?
 Proceeding
Proceeding also termed
also termed action at la w
action at la w
 “
“ An action ,to be an ordinary proceeding
An action ,to be an ordinary proceeding
in a court of justice by which one party
in a court of justice by which one party
prosecutes another party for the
prosecutes another party for the
enforcement or protection of a right, the
enforcement or protection of a right, the
redress or prevention of a wrong.
redress or prevention of a wrong.
 It is said to originate….if it is made with a
It is said to originate….if it is made with a
view to getting enforcement of right or
view to getting enforcement of right or
claim.
claim.
 Those filed in reply thereto are pleadings
Those filed in reply thereto are pleadings

 In all legal systems there is a constant tension
In all legal systems there is a constant tension
between two competing goals as W/r or not
between two competing goals as W/r or not
pleading highly formalized document that
pleading highly formalized document that
had to conform to very specific rules.
had to conform to very specific rules.
 On one hand, we want the system to be
On one hand, we want the system to be
flexible—we consider it unjust for someone
flexible—we consider it unjust for someone
to lose his case because he failed to follow
to lose his case because he failed to follow
some trivial bureaucratic rule.
some trivial bureaucratic rule.
 On the other hand, we want justice to be
On the other hand, we want justice to be
uniform and predictable; we do not want
uniform and predictable; we do not want
the outcome of a case to depend on the
the outcome of a case to depend on the
whim of the judge who happens to decide
whim of the judge who happens to decide
it.
it.

Purposes Of Pleading
Purposes Of Pleading
 Pleadings is the task in w/h each party to the
Pleadings is the task in w/h each party to the
suit is required to state w/t the dispute is
suit is required to state w/t the dispute is
about and w/t he wants the court to do.
about and w/t he wants the court to do.
 define exactly what issues the court is being
define exactly what issues the court is being
asked to decide.
asked to decide.
 To frame the issues for the entire lawsuit; no
To frame the issues for the entire lawsuit; no
party is allowed to delve into issues that are
party is allowed to delve into issues that are
outside the scope of the pleadings.
outside the scope of the pleadings.
 It
It forces all parties to specify, on the written
forces all parties to specify, on the written
record, exactly what the dispute is about.
record, exactly what the dispute is about.
 Specific purposes…..next
Specific purposes…..next

 Notice
Notice
 provide the defendant with notice of the
provide the defendant with notice of the
suit and enable him to prepare his
suit and enable him to prepare his
defenses.
defenses.
 provide a summary of the claims and
provide a summary of the claims and
defenses of parties to a court, which
defenses of parties to a court, which
enables a court to frame the appropriate
enables a court to frame the appropriate
and relevant issues that need decision.
and relevant issues that need decision.
 Limit The Scope Of Litigation
Limit The Scope Of Litigation
 They fix the issues to be decided, and
They fix the issues to be decided, and
determine the evidences to be used by the
determine the evidences to be used by the
parties and in a way, limit the scope of
parties and in a way, limit the scope of
litigation between parties .
litigation between parties .

 The court cannot create issues of its own
The court cannot create issues of its own
and then pass decision.
and then pass decision.
 It is based mainly on pleadings of parties
It is based mainly on pleadings of parties
that the court tries to frame issues; Art.
that the court tries to frame issues; Art.
248.
248.
 They guide the parties and the court in
They guide the parties and the court in
the conduct of cases.
the conduct of cases.
 A litigant cannot prepare for trial unless
A litigant cannot prepare for trial unless
he has been informed adequately of the
he has been informed adequately of the
opponent’s contentions.
opponent’s contentions.
 There is no way that a court can control a
There is no way that a court can control a
suit unless it knows the nature of the
suit unless it knows the nature of the
parties’ allegations.
parties’ allegations.

 They Try To Expedite Litigation.
They Try To Expedite Litigation.
 realized when the rules on pleading are
realized when the rules on pleading are
employed properly by parties and the
employed properly by parties and the
court.
court.
 all the rules on pleadings shall be used to
all the rules on pleadings shall be used to
achieve this purpose.
achieve this purpose.
 But the substantive rights of parties
But the substantive rights of parties
should also be taken into account when
should also be taken into account when
there is an improper pleading.
there is an improper pleading.

 Basic Rules Of Pleadings
Basic Rules Of Pleadings
 The requirements relate to their
The requirements relate to their
preparation, format, and content.
preparation, format, and content.
 They can be divided into technical and
They can be divided into technical and
legal ones.
legal ones.

Technical Sufficiency
Technical Sufficiency
 relate mainly to the preparation and format
relate mainly to the preparation and format
of pleadings.
of pleadings.
 The technical requirements are provided
The technical requirements are provided
under Articles 80(2), 222, 223,234,327-330,
under Articles 80(2), 222, 223,234,327-330,
 The registrar of a court examines them:
The registrar of a court examines them:
 First ,they shall be handwritten in ink,
First ,they shall be handwritten in ink,
printed, or typewritten
printed, or typewritten on the prescribed
on the prescribed
paper. Art.
paper. Art. 80(2).
80(2).

 The second requirement
The second requirement is that they shall
is that they shall
be prepared in accordance with the form
be prepared in accordance with the form
prescribed by the Civil Procedure Code
prescribed by the Civil Procedure Code.
.
 The forms of pleadings are found at the
The forms of pleadings are found at the
back of the Civil Procedure Code.
back of the Civil Procedure Code.
 The Civil Procedure Code contains sample
The Civil Procedure Code contains sample
forms for different types of pleadings,
forms for different types of pleadings,
depending on the types of suits.
depending on the types of suits.

 The third requirement
The third requirement Pleading must only
Pleading must only
state Material Facts In Concise Form
state Material Facts In Concise Form
 Only Facts
Only Facts
Something that actually exists; an aspect
Something that actually exists; an aspect
of reality
of reality
Facts include not just tangible things,
Facts include not just tangible things,
actual occurrences, and relationships,
actual occurrences, and relationships,
but also states of mind such as
but also states of mind such as
intentions and opinions.
intentions and opinions.
 An actual or alleged event or
An actual or alleged event or
circumstance, as distinguished from its
circumstance, as distinguished from its
legal effect, consequence, or
legal effect, consequence, or
interpretation
interpretation

 No legal argument
No legal argument
arguments shall not be incorporated in
arguments shall not be incorporated in
pleadings.
pleadings.
b/se the purpose of pleadings is to
b/se the purpose of pleadings is to
furnish the court and the party with
furnish the court and the party with
information as regards the facts of a
information as regards the facts of a
case.
case.
it is the business of a court to look for
it is the business of a court to look for
the relevant provisions of the law
the relevant provisions of the law
applying to facts stated by parties
applying to facts stated by parties

 Does that mean citing any legal
Does that mean citing any legal
provisions is prohibited?
provisions is prohibited?
 Points of law
Points of law
 Apart from pleading the facts on which his
Apart from pleading the facts on which his
claim is based, the claimant can also
claim is based, the claimant can also plead
plead
a point of law.
a point of law.
 Although they are not obliged to plead it, it
Although they are not obliged to plead it, it
would be good practice to do so, if it
would be good practice to do so, if it
would
would assist in identifying the real issues
assist in identifying the real issues
in dispute
in dispute between the parties and
between the parties and give
give
the defendant early notice of the legal
the defendant early notice of the legal
basis of the claimant’s claim.
basis of the claimant’s claim.

 No evidence
No evidence
 that the parties should not include issues
that the parties should not include issues
of evidences in pleadings.
of evidences in pleadings.
 Facts as regards evidences are to be
Facts as regards evidences are to be
raised at a trial stage,
raised at a trial stage,
 Legal or factual conclusions
Legal or factual conclusions

 Material Facts
Material Facts
 material facts which the party relies for his
material facts which the party relies for his
claim or defence
claim or defence
 those facts essential to the party's claim or
those facts essential to the party's claim or
defence, and not the subordinate facts
defence, and not the subordinate facts
that are the means of proving them.
that are the means of proving them.
 A fact that is significant or essential to the
A fact that is significant or essential to the
issue or matter at hand.
issue or matter at hand.
 *allegations of fact that the party
*allegations of fact that the party
proposes to prove at trial (but not the
proposes to prove at trial (but not the
evidence by which they are to be proved)
evidence by which they are to be proved)
and stating the remedy (if any) that the
and stating the remedy (if any) that the
party claims in the action.
party claims in the action.

 In Concise Form
In Concise Form
 By a concise statement of material facts is it
By a concise statement of material facts is it
mean that they shall state what is demanded
mean that they shall state what is demanded
in clear, precise and plain language.
in clear, precise and plain language.
 it is because pleadings are read by a court as
it is because pleadings are read by a court as
they stand, and a party is not allowed to add
they stand, and a party is not allowed to add
claims or defenses at a later stage.
claims or defenses at a later stage.
Too short, with no enough detail to
Too short, with no enough detail to
understand what the case is about.
understand what the case is about.
 Too long, and the reader will lose interest.
Too long, and the reader will lose interest.
 If prepared in line with the forms given by
If prepared in line with the forms given by
the Code, they become definitely concise.
the Code, they become definitely concise.

 Certain facts, however, are necessary in
Certain facts, however, are necessary in
every case. Here are some of them:
every case. Here are some of them:
1
1. The names of the parties you are suing.
. The names of the parties you are suing.
2. The state and residence of the
2. The state and residence of the parties
parties you
you
are suing.
are suing.
In the case of corporations and other
In the case of corporations and other
entities, you need to know at least the
entities, you need to know at least the
state in w/h the entity is incorporated or
state in w/h the entity is incorporated or
created and
created and
may also need to know the state in
may also need to know the state in
which the entity has its principal place of
which the entity has its principal place of
business.
business.

3. The main facts that led to the injury for which
3. The main facts that led to the injury for which
your client is suing.
your client is suing.
4. The place where the injury to your client
4. The place where the injury to your client
occurred,
occurred, and the date on which it occurred.
and the date on which it occurred.

 The fourth requirement is that they shall
The fourth requirement is that they shall
be verified
be verified.
.
 The verification is made by signature or
The verification is made by signature or
mark as the case may be.
mark as the case may be.
 By verification it is mean that facts alleged
By verification it is mean that facts alleged
in the pleadings are true and correct.
in the pleadings are true and correct.
 If the facts are found out to be false
If the facts are found out to be false
allegations, the party is held responsible
allegations, the party is held responsible
 The fifth condition is that they shall be
The fifth condition is that they shall be
signed by the party or person authorized
signed by the party or person authorized
to verify the pleading. Art. 93
to verify the pleading. Art. 93

 The sixth requirement is that
The sixth requirement is that
annexes ;Art. 223 and 234
annexes ;Art. 223 and 234
 Annexes shall accompany, for instance, a
Annexes shall accompany, for instance, a
statement of claim and statement of
statement of claim and statement of
defense
defense
 The same is true for petitions and
The same is true for petitions and
applications filed for special proceedings
applications filed for special proceedings
that are to be accompanied by affidavit.
that are to be accompanied by affidavit.
 What measure can the registrar take if
What measure can the registrar take if
one of these requirements is not complied
one of these requirements is not complied
with?
with?

 Art. 229 ;the registrar can reject a
Art. 229 ;the registrar can reject a
statement of claim where:
statement of claim where:
 it is not in the form provided for by Article 222;
it is not in the form provided for by Article 222;
 it is not accompanied by the annexes provided
it is not accompanied by the annexes provided
for by Article 223; or,
for by Article 223; or,
 it is not verified in the manner provided for by
it is not verified in the manner provided for by
Article 92.
Article 92.
 This Art. does not indicate what the registrar
This Art. does not indicate what the registrar
should do if a statement of claim is not
should do if a statement of claim is not
signed.
signed.
 What will be the effect/consequence of
What will be the effect/consequence of
rejection of pleadings by the registrar?
rejection of pleadings by the registrar?

 Art. 232
Art. 232
 Rejection by the registrar does not prohibit
Rejection by the registrar does not prohibit
a party from bringing a fresh pleading.
a party from bringing a fresh pleading.
 if the party corrects the defects, he can
if the party corrects the defects, he can
submit fresh pleading.
submit fresh pleading.
 The registrar shall provide reasons for
The registrar shall provide reasons for
rejection of pleadings.
rejection of pleadings.
 A party unsatisfied by such reasons can
A party unsatisfied by such reasons can
apply to the bench to review the decision
apply to the bench to review the decision
of the registrar.
of the registrar.
 The application shall be filed within five
The application shall be filed within five
days after the registrar made a decision.
days after the registrar made a decision.

Statement of Claim
Statement of Claim
 A civil lawsuit is begun by the plaintiff filing
A civil lawsuit is begun by the plaintiff filing
a
a complaint with an appropriate
complaint with an appropriate court.
court.
 The complaint is a formal, written
The complaint is a formal, written
statement in which the plaintiff describes,
statement in which the plaintiff describes,
in summary fashion, what the dispute is
in summary fashion, what the dispute is
about, and what plaintiff wants the court to
about, and what plaintiff wants the court to
do.
do.
 The statements in a pleading in which a
The statements in a pleading in which a
party lays out his version of what
party lays out his version of what
happened to cause the dispute are called
happened to cause the dispute are called
allegations.
allegations.

 In addition to general rules of pleading, a
In addition to general rules of pleading, a
statement of claim shall contain certain
statement of claim shall contain certain
items that are listed under Article 222
items that are listed under Article 222
 By looking at these items, one can divide
By looking at these items, one can divide
the parts of the statement of
the parts of the statement of claim into
claim into
five parts
five parts as clearly grasped from the
as clearly grasped from the
schedule(in your module it says four
schedule(in your module it says four
parts).
parts).

The first Part: caption or Title.
The first Part: caption or Title.
 pleadings begin with a caption, w/h serves
pleadings begin with a caption, w/h serves
the same function as a title page in a book.
the same function as a title page in a book.
 In the caption, the plaintiff must state the:
In the caption, the plaintiff must state the:
 name of the court in which the suit is filed,
name of the court in which the suit is filed,
 place where the court sit (hear cases)
place where the court sit (hear cases)
 title of the suit (
title of the suit (complaint or answer)
complaint or answer), and
, and
 the names of the parties
the names of the parties including their
including their
description and address.
description and address.
The mentioning of title of suit and address of
The mentioning of title of suit and address of
the parties determine, among others,
the parties determine, among others,
whether or not the court has jurisdiction
whether or not the court has jurisdiction

The Second Part: Description of
The Second Part: Description of
parties /Jurisdiction and Parties
parties /Jurisdiction and Parties
 If the plaintiff is under disability or
If the plaintiff is under disability or
bringing action in a representative
bringing action in a representative
capacity or by advocate , this shall be
capacity or by advocate , this shall be
stated;
stated;
 It means that the capacity in which the
It means that the capacity in which the
plaintiff is suing shall be indicated.
plaintiff is suing shall be indicated.
 If a person files it as an agent or advocate,
If a person files it as an agent or advocate,
the relevant documents shall be produced
the relevant documents shall be produced
by such person to show that they are
by such person to show that they are
authorized to act on behalf of the plaintiff.
authorized to act on behalf of the plaintiff.

 The plaintiff must allege facts showing
The plaintiff must allege facts showing
that the court has jurisdiction
that the court has jurisdiction
 If the party has some relationship with
If the party has some relationship with
another party in the suit—husband, wife,
another party in the suit—husband, wife,
employer, etc.—the relationship should be
employer, etc.—the relationship should be
stated.
stated.
 the complaint include “a short and plain
the complaint include “a short and plain
statement of the grounds upon which the
statement of the grounds upon which the
court’s jurisdiction depends.
court’s jurisdiction depends.
 It is also necessary, somewhere in the
It is also necessary, somewhere in the
complaint, to identify the parties.
complaint, to identify the parties.

 If the party is an entity, such as a
If the party is an entity, such as a
corporation or
corporation or partnership, you should say
partnership, you should say
what the party is and what state’s laws it is
what the party is and what state’s laws it is
organized under.
organized under.
 If the entity does business in the state in
If the entity does business in the state in
which suit is being filed, that should be
which suit is being filed, that should be
mentioned as well.
mentioned as well.

The Third Part:
The Third Part: Body Of Pleading
 The third part of the statement of claim is
The third part of the statement of claim is
the statement disclosing a cause of action
the statement disclosing a cause of action
and prayer for relief.
and prayer for relief.
 The statement of claim shall state the facts
The statement of claim shall state the facts
constituting a cause of action and when
constituting a cause of action and when
and where it arose.
and where it arose.
 In the body of the complaint, you must
In the body of the complaint, you must
give “a short and plain statement of the
give “a short and plain statement of the
claim showing that [plaintiff] is entitled to
claim showing that [plaintiff] is entitled to
relief”;
relief”;

 To do this, you must accomplish two main
To do this, you must accomplish two main
goals:
goals:
(1) Give a short summary of the facts of
(1) Give a short summary of the facts of
your case, i.e., tell what happened to pff;
your case, i.e., tell what happened to pff;
and
and
(2) state the particular facts necessary to
(2) state the particular facts necessary to
establish each of the elements of each
establish each of the elements of each
cause of action.
cause of action.
 The complaint ends with a
The complaint ends with a prayer for relief,
prayer for relief,
a concluding section stating specifically
a concluding section stating specifically
what
what plaintiff wants the court to do
plaintiff wants the court to do
typically, award a money judgment for
typically, award a money judgment for
damages.
damages.

 A party shall state the value of the subject
A party shall state the value of the subject
matter of a suit
matter of a suit
 Thus, the fact that a court has jurisdiction
Thus, the fact that a court has jurisdiction
is also to be dependent on the content of
is also to be dependent on the content of
the statement of claim, particularly on the
the statement of claim, particularly on the
cause of action stated by the plaintiff.
cause of action stated by the plaintiff.
 The statement of claim shall state the
The statement of claim shall state the
demand for the relief to which the pleader
demand for the relief to which the pleader
believes he or she is entitled to., Article
believes he or she is entitled to., Article
224.
224.
 The plaintiff shall state specifically the
The plaintiff shall state specifically the
relief that the he or she claims
relief that the he or she claims

 plaintiff requests that the Court enter
plaintiff requests that the Court enter
judgment in favour of plaintiff and against
judgment in favour of plaintiff and against
defendants and each of them as follows:
defendants and each of them as follows:
 1. For general and special damages in the
1. For general and special damages in the
amount of $100,000.00.
amount of $100,000.00.
 2. For plaintiff’s reasonable costs and
2. For plaintiff’s reasonable costs and
attorney’s fees incurred herein.
attorney’s fees incurred herein.
 3. For such other and further relief as to the
3. For such other and further relief as to the
Court seems just in the premises.
Court seems just in the premises.
 It is customary for the allegations
It is customary for the allegations of a
of a
complaint to be organized in numbered
complaint to be organized in numbered
paragraphs so that they can be easily referred
paragraphs so that they can be easily referred
to in the answer and in other court papers.
to in the answer and in other court papers.

 The Fourth Part:
The Fourth Part: verification and
verification and
signature
signature
 The complaint concludes with the standard
The complaint concludes with the standard
date and signature lines used in all court
date and signature lines used in all court
papers
papers
 “
“Every pleading . . . shall be signed by at
Every pleading . . . shall be signed by at
least one attorney . . . ” (except, of course,
least one attorney . . . ” (except, of course,
when the party has no attorney).
when the party has no attorney).
 when an attorney signs a complaint, he or
when an attorney signs a complaint, he or
she is certifying to the court that he or she
she is certifying to the court that he or she
has made a reasonable inquiry and believes
has made a reasonable inquiry and believes
that the allegations are supportable and
that the allegations are supportable and
proper.
proper.

 In other words, the attorney’s signature
In other words, the attorney’s signature
on the complaint gives the court a weapon
on the complaint gives the court a weapon
with which to enforce the ethical
with which to enforce the ethical
requirements
requirements
 in addition to the attorney’s signature, the
in addition to the attorney’s signature, the
client furnish a sworn affidavit attesting to
client furnish a sworn affidavit attesting to
the truth of the allegations of the
the truth of the allegations of the
complaint
complaint
 The party and the party’s attorney have
The party and the party’s attorney have
reasonable grounds to believe a statement
reasonable grounds to believe a statement
is true and do believe it is true, but cannot
is true and do believe it is true, but cannot
prove it at this point
prove it at this point

 The Fifth Part:
The Fifth Part: Annexes ;Art. 223 And 234
Annexes ;Art. 223 And 234
 Accompanying Papers
Accompanying Papers
 For the clerk of the court to accept your
complaint for filing, you must present, in
addition to the complaint itself (including
any exhibits that you have incorporated by
reference
 A number of copies of the complaint at least
A number of copies of the complaint at least
equal to the number of defendants upon
equal to the number of defendants upon
whom you will be serving process, plus one
whom you will be serving process, plus one
for your own file.
for your own file.

 Documentary Evidence
Documentary Evidence
 Art. 223(1)(b) & 234(1), pff and defdt shall
Art. 223(1)(b) & 234(1), pff and defdt shall
attach to the their respective pleadings :
attach to the their respective pleadings :
List documents the original and a copy
List documents the original and a copy
of any document in his possession upon
of any document in his possession upon
which he sues;
which he sues;
If not in their possession, specifying in
If not in their possession, specifying in
whose possession or power such
whose possession or power such
documents are;
documents are;
where he has no witnesses or
where he has no witnesses or
documents to produce, a declaration to
documents to produce, a declaration to
that effect, Art. 223(1)( c)
that effect, Art. 223(1)( c)

Documentary Evidence When To Be
Documentary Evidence When To Be
Produced
Produced
 filed with the pleading ,Art. 223, 234 &
filed with the pleading ,Art. 223, 234 &
137(3)
137(3)
 annexed to the pleading ,Art.137(3)—
annexed to the pleading ,Art.137(3)—
period between filing pleadings and first
period between filing pleadings and first
hearing
hearing
 at the first hearing of the suit, Art. 137(1)
at the first hearing of the suit, Art. 137(1)

Which has not already been filed in
Which has not already been filed in
court, and
court, and
all documents which the court may
all documents which the court may
order to be produced.
order to be produced.

 Art. 137(3) Without prejudice to the
Art. 137(3) Without prejudice to the
provisions of Art. 256, no document which
provisions of Art. 256, no document which
should be
should be but is not annexed to
but is not annexed to or
or filed
filed
with the pleading
with the pleading or
or produced at the first
produced at the first
hearing
hearing shall be received at a later stage in
shall be received at a later stage in
the suit on behalf of the party who should
the suit on behalf of the party who should
have so annexed, filed or produced it.
have so annexed, filed or produced it.
Do you think those to be produced at first
Do you think those to be produced at first
hearing are only those listed in the
hearing are only those listed in the
pleading?
pleading?
What does Art. 137(2) imply?
What does Art. 137(2) imply?

When is Art. 145 is applicable?
When is Art. 145 is applicable?
Only from other court or from the record
Only from other court or from the record
of the ordering court? Or Other
of the ordering court? Or Other
governmental offices?
governmental offices?
Court by its own motion?;
Court by its own motion?;
if yes according to Art. 137(1) only those
if yes according to Art. 137(1) only those
in whose possession or power such
in whose possession or power such
documents are specified?
documents are specified?
If we say only those specified is it fair to
If we say only those specified is it fair to
interpret those to be produced at first
interpret those to be produced at first
hearing under Art. 137(3) and (2)are also
hearing under Art. 137(3) and (2)are also
include unlisted?
include unlisted?

Examination By The Registrar
Examination By The Registrar
 If the st/claim fulfils all the technical
If the st/claim fulfils all the technical
requirements, the registrar shall proceed as
requirements, the registrar shall proceed as
per Art. 230
per Art. 230
 gives number to a suit and register it on the
gives number to a suit and register it on the
register of civil suit.
register of civil suit.
 examines and compares the original and
examines and compares the original and
copy of document attached to the statement
copy of document attached to the statement
of claim and gives the original to the plaintiff.
of claim and gives the original to the plaintiff.
 order the party to pay the court fee.
order the party to pay the court fee.
 Finally, the registrar shall submit the
Finally, the registrar shall submit the
statement of claim and annexes to the court.
statement of claim and annexes to the court.

 Statement of Defences
Statement of Defences
 Statement of defense is a pleading
Statement of defense is a pleading
produced by the defendant.
produced by the defendant.
 It is the pleading that contains material
It is the pleading that contains material
facts on which the defendant relies for his
facts on which the defendant relies for his
defense.
defense.
 The statement of defense is subject to the
The statement of defense is subject to the
rule under Article 80(2) and 223.
rule under Article 80(2) and 223.
 There is a form prescribed by the Civil
There is a form prescribed by the Civil
Procedure Code for the statement of
Procedure Code for the statement of
defense.
defense.

 The content of statement of defense is
The content of statement of defense is
given under Article 234.
given under Article 234.
 The statement of defense has mainly two
The statement of defense has mainly two
parts.
parts.
 One is caption in which the defendant is
One is caption in which the defendant is
supposed to state the name of the court to
supposed to state the name of the court to
which he submits his defense, and the
which he submits his defense, and the
number of the suit.
number of the suit.
 The other part of the statement of defense
The other part of the statement of defense
is the statement showing the points of
is the statement showing the points of
defense.
defense.

 Respond to Allegations of Complaint
Respond to Allegations of Complaint
 In stating his facts of defense, the
In stating his facts of defense, the
defendant must respond to each
defendant must respond to each
allegation of the facts made in the
allegation of the facts made in the
statement of claim whether he admits or
statement of claim whether he admits or
denies them.
denies them.
 Admission
Admission
• A Simple Admission—
A Simple Admission—
• Admit in Part, Deny in Part—
Admit in Part, Deny in Part—
• Admit/Deny Plus Add New Allegations
Admit/Deny Plus Add New Allegations

 Denial
Denial
 The denial he makes must be put in a
The denial he makes must be put in a
direct manner.
direct manner.
 Evasive denial does not amount to a
Evasive denial does not amount to a
defense under Article 235 rather it
defense under Article 235 rather it
amounts to admittance.
amounts to admittance.
• A Simple Denial
A Simple Denial
• A Denial for Lack of Information—
A Denial for Lack of Information—

 Affirmative Grounds Of Defense,
Affirmative Grounds Of Defense,
 In the answer, the defendant may also add
In the answer, the defendant may also add
any factual allegations that defendant
any factual allegations that defendant
thinks plaintiff has omitted.
thinks plaintiff has omitted.
 An affirmative defence is one in which,
An affirmative defence is one in which,
instead of denying plaintiff’s allegations,
instead of denying plaintiff’s allegations,
defendant offers some independent reason
defendant offers some independent reason
why defendant cannot be found liable.
why defendant cannot be found liable.
 is a defence that relies on factual issues not
is a defence that relies on factual issues not
raised in the complaint.
raised in the complaint.
 Affirmative defences have elements, and
Affirmative defences have elements, and
defendant must allege facts supporting
defendant must allege facts supporting
each element in the answer.
each element in the answer.

 To do so, it is necessary to know what the
To do so, it is necessary to know what the
required elements are for each affirmative
required elements are for each affirmative
defence being asserted.
defence being asserted.
 Affirmative defences specific to that
Affirmative defences specific to that
cause of
cause of action (for example, privilege or
action (for example, privilege or
justification as a defence to false
justification as a defence to false
imprisonment).
imprisonment).
 Affirmative defences that may apply to
Affirmative defences that may apply to
the entire lawsuit,
the entire lawsuit, rather than to individual
rather than to individual
causes of action, such as
causes of action, such as incapacity, or that
incapacity, or that
the court lacks jurisdiction or that the action
the court lacks jurisdiction or that the action
is barred by period of limitation,
is barred by period of limitation, failure to
failure to
state a claim
state a claim ..etc.
..etc.,
,

 Procedural Defences should be considered
Procedural Defences should be considered
in every lawsuit:
in every lawsuit:
 jurisdiction of the person,
jurisdiction of the person,
 jurisdiction of the subject matter,
jurisdiction of the subject matter,
 venue,
venue,
 sufficiency of service of process, and
sufficiency of service of process, and
 indispensable parties
indispensable parties
 res judicata.
res judicata.
 Pendency
Pendency
 arbitration and Compromise,
arbitration and Compromise,

 Affirmatively Alleges The Defences Of
Affirmatively Alleges The Defences Of
 accord and satisfaction,
accord and satisfaction,
 assumption of risk,
assumption of risk,
 contributory negligence,
contributory negligence,
 discharge in bankruptcy,
discharge in bankruptcy,
 duress, fraud, illegality
duress, fraud, illegality
 failure of consideration,
failure of consideration,
 , injury by fellow servant,
, injury by fellow servant,
 license, payment, release, and
license, payment, release, and

 Third Party Claims
Third Party Claims
 The answer is also the place where the
The answer is also the place where the
defendant can raise any claims against the
defendant can raise any claims against the
plaintiff or against third parties.
plaintiff or against third parties.
 If the defendant believes that there is
If the defendant believes that there is
someone whom plaintiff has not sued who
someone whom plaintiff has not sued who
should be involved, defendant may also
should be involved, defendant may also
bring
bring third-party claims,
third-party claims, which are the
which are the
equivalent of defendant suing someone
equivalent of defendant suing someone
else
else

 Counterclaims and cross-claims
Counterclaims and cross-claims
 a counterclaim is,
a counterclaim is, a lawsuit by the
a lawsuit by the
defendant against the plaintiff
defendant against the plaintiff.
.
 The allegations of a counterclaim are
The allegations of a counterclaim are
written in the same way as if the
written in the same way as if the
defendant were preparing a complaint
defendant were preparing a complaint
against the plaintiff.
against the plaintiff.
 The answer may also include
The answer may also include cross-claims
cross-claims
—
—claims by one defendant against
claims by one defendant against
another defendant
another defendant.
.
 Counterclaims and cross-claims are tacked
Counterclaims and cross-claims are tacked
on at the end of the answer, rather than
on at the end of the answer, rather than
put into a separate filing.
put into a separate filing.

 In the caption, we title the document
In the caption, we title the document
“Answer and Counterclaim” or “Answer
“Answer and Counterclaim” or “Answer
and Cross-claim” instead of merely
and Cross-claim” instead of merely
“Answer.”
“Answer.”
 defendant— the person who is asserting
defendant— the person who is asserting
the counterclaim—becomes the
the counterclaim—becomes the
counterclaimant, and the plaintiff is
counterclaimant, and the plaintiff is
referred
referred to as the
to as the counter defendant.
counter defendant.
 Similarly, in a
Similarly, in a cross-claim, the defendant
cross-claim, the defendant
who is asserting the claim is the
who is asserting the claim is the cross-
cross-
claimant and the other defendant
claimant and the other defendant
against whom it is asserted is the
against whom it is asserted is the cross-
cross-
defendant.
defendant.

 Examination of Statement Of Defense
Examination of Statement Of Defense
 If statement of claim is found to be sufficient
If statement of claim is found to be sufficient
in terms of fulfilling legal requirements, the
in terms of fulfilling legal requirements, the
court issues summons on the defendant.
court issues summons on the defendant.
 On the date fixed in the summons, both the
On the date fixed in the summons, both the
plaintiff and defendant are supposed to
plaintiff and defendant are supposed to
appear before a court for the opening of the
appear before a court for the opening of the
hearing of the suit.
hearing of the suit.
 It is on this date that the statement of
It is on this date that the statement of
defense is examined by the court
defense is examined by the court
 The court can reject the statement of
The court can reject the statement of
defense if it does not sufficiently fulfill the
defense if it does not sufficiently fulfill the
requirements it is supposed to comply with.
requirements it is supposed to comply with.

 The same rule under Article 229 shall apply
The same rule under Article 229 shall apply
to the statement of defense. Art. 238
to the statement of defense. Art. 238
 If the statement of defense is rejected, the
If the statement of defense is rejected, the
court shall proceed with the trail of the case.
court shall proceed with the trail of the case.
 If he appears with no statement of defense,
If he appears with no statement of defense,
also the court shall proceed with the case.
also the court shall proceed with the case.
 The rejection or appears with no statement
The rejection or appears with no statement
of defense does not mean that the case is to
of defense does not mean that the case is to
be decided for the plaintiff.
be decided for the plaintiff.
 This is because even if it is rejected, the
This is because even if it is rejected, the
defendant could defend himself orally
under Art. 241
under Art. 241

Discussion Question
Discussion Question
1. On your module
1. On your module it is indicated that “..even
it is indicated that “..even
if statement of defense is rejected, the
if statement of defense is rejected, the
under Art. 241..”.
under Art. 241..”.
 How do you think he will do so?
How do you think he will do so?
 By presenting documentary and
By presenting documentary and
testimonial evidences?
testimonial evidences?
 No statement of defense , no list of
No statement of defense , no list of
evidences of both kinds; no annex of
evidences of both kinds; no annex of
documentary evidence?
documentary evidence?
 Only cross examining pff’s witness?
Only cross examining pff’s witness?

2. Also in your module
2. Also in your module If he appears with no
If he appears with no
statement of defense, also the court shall
statement of defense, also the court shall
proceed with the case;
proceed with the case;
 Do they mean the same thing? Rejection
Do they mean the same thing? Rejection
for not fulfilling the requirements and
for not fulfilling the requirements and
failure to file?
failure to file?
 Art. 233 and Art.238
Art. 233 and Art.238

Legal Sufficiency
Legal Sufficiency
 After the registrar shall submit the
After the registrar shall submit the
statement of claim and annexes to the
statement of claim and annexes to the
bench,
bench,
 the judge examines the statement of claim
the judge examines the statement of claim
to establish whether or not it fulfills the
to establish whether or not it fulfills the
legal requirements. Art. 231
legal requirements. Art. 231
Jurisdiction
Jurisdiction
Cause Action
Cause Action

 Cause of Action
Cause of Action
 What is a cause of action?
What is a cause of action?
 You can win a lawsuit against someone
You can win a lawsuit against someone
only if you prove that they did something
only if you prove that they did something
that the law recognizes as an actionable
that the law recognizes as an actionable
wrong;
wrong;
 To pursue a cause of action, a plaintiff
To pursue a cause of action, a plaintiff
pleads or
or alleges facts in a
facts in a complaint, the
, the
pleading that initiates a lawsuit.
 The points a plaintiff must prove to win a
The points a plaintiff must prove to win a
given type of case are called the
given type of case are called the
"elements" of that cause of action.
"elements" of that cause of action.

 W/t is the d/ce b/n these three terms?
W/t is the d/ce b/n these three terms?
 claim,
claim,
 cause of action, and
cause of action, and
 theory of liability—
theory of liability—
 are often used somewhat interchangeably.
are often used somewhat interchangeably.
 All involve a single concept, namely, a way of
All involve a single concept, namely, a way of
testing a specific set of facts to see whether
testing a specific set of facts to see whether
it is appropriate for the court to step in and
it is appropriate for the court to step in and
make someone pay.
make someone pay.
 A claim
A claim is an
is an assertion of liability
assertion of liability based on a
based on a
single
single cause of action
cause of action and made in an actual
and made in an actual
lawsuit.
lawsuit.

 In the law, a
In the law, a cause of action
cause of action (a
(a claim
claim) is a
) is a
set of facts sufficient to justify a right to sue.
set of facts sufficient to justify a right to sue.
 The fact or combination of facts that
The fact or combination of facts that
gives a person the right to seek judicial
gives a person the right to seek judicial
redress or
or relief against another.
against another.
 Also, the legal theory forming the basis of a
Also, the legal theory forming the basis of a
lawsuit.
lawsuit.
 The phrase may refer to the legal
The phrase may refer to the legal
theory upon which a plaintiff brings suit
theory upon which a plaintiff brings suit
(such as
(such as breach of contract,
, battery, or
, or
false imprisonment).
).

 A cause of action generally encompasses
A cause of action generally encompasses
both the
both the legal theory (the legal wrong the
(the legal wrong the
plaintiff claims to have suffered) and the
plaintiff claims to have suffered) and the
remedy (the relief a court is asked to grant).
(the relief a court is asked to grant).
 There are a number of specific causes of
There are a number of specific causes of
action, including:
action, including:
 contract-based actions;
-based actions;
 statutory causes of action;
statutory causes of action;
 torts such as
torts such as assault,
, battery,
,
invasion of privacy,
, fraud,
, slander,
,
negligence,
,
intentional infliction of emotional distress

 Eg. the cause of action for negligence has
Eg. the cause of action for negligence has
four elements: duty, breach of duty,
four elements: duty, breach of duty,
causation, and damages.
causation, and damages.
 Thus, to state a cause of action for
Thus, to state a cause of action for
negligence against Shalala Hotel, Regasa’s
negligence against Shalala Hotel, Regasa’s
complaint might allege that
complaint might allege that
 (1) the hotel had a duty to provide safe
(1) the hotel had a duty to provide safe
accommodations for guests;
accommodations for guests;
 (2) the hotel breached that duty by
(2) the hotel breached that duty by
knowingly allowing the room doors to fall
knowingly allowing the room doors to fall
into a poor state of repair so that they do not
into a poor state of repair so that they do not
close properly;
close properly;

 (3) the hotel’s failure to maintain the doors
(3) the hotel’s failure to maintain the doors
properly caused Regasa to be injured; and
properly caused Regasa to be injured; and
 (4) Regasa was injured and lost money as
(4) Regasa was injured and lost money as
a result.
a result.

 Dismiss For Failure To State A Cause Of
Dismiss For Failure To State A Cause Of
Action Or defences
Action Or defences
 The cause of action is the heart of the
The cause of action is the heart of the
that initiates a lawsuit.
 Without an adequately stated cause of action
Without an adequately stated cause of action
the pff's case can be dismissed at the
the pff's case can be dismissed at the outset.
outset.
 It is not sufficient merely to state that certain
It is not sufficient merely to state that certain
events occurred that entitle the pff to relief.
events occurred that entitle the pff to relief.
 All the elements of each cause of action must
All the elements of each cause of action must
be detailed in the complaint.
be detailed in the complaint.
 The claims must be supported by the facts,
The claims must be supported by the facts,
the law, and a conclusion that flows from the
the law, and a conclusion that flows from the
application of the law to those facts.
application of the law to those facts.

 Analysis question for Examination as to
Analysis question for Examination as to
Whether Statement Of Claim State A
Whether Statement Of Claim State A
Cause Of Action .
Cause Of Action .
 Analysis question: For each claim being
Analysis question: For each claim being
asserted in the complaint,
asserted in the complaint,
 (1) does the law recognize a cause of
(1) does the law recognize a cause of
action?
action?
 (2) are all elements of that cause of
(2) are all elements of that cause of
action properly alleged?
action properly alleged?

 Example:
Example:
 The complaint alleges a cause of action for
The complaint alleges a cause of action for
the tort of battery,
the tort of battery,
 but fails to include any allegation that
but fails to include any allegation that
defendant made a harmful or offensive
defendant made a harmful or offensive
physical contact with plaintiff.
physical contact with plaintiff.
 Since “harmful or offensive touching” is an
Since “harmful or offensive touching” is an
element of the tort of battery,
element of the tort of battery,
 the complaint, on its face, fails to state a
the complaint, on its face, fails to state a
valid cause of action for battery.
valid cause of action for battery.
 Defendant can move to dismiss the cause
Defendant can move to dismiss the cause
of action for battery.
of action for battery.

 Analysis question for Examination as to
Analysis question for Examination as to
Whether Statement Of Defence State A
Whether Statement Of Defence State A
Cause Of defences
Cause Of defences
 Analysis question: For each affirmative
Analysis question: For each affirmative
defence alleged in the answer,
defence alleged in the answer,
 (1) does the law recognize the defence
(1) does the law recognize the defence
as valid ?
as valid ?
 (2) is the defences correctly pleaded?
(2) is the defences correctly pleaded?

In India there are two basic ways in which a
In India there are two basic ways in which a
claim or defences can be subject to attack by
claim or defences can be subject to attack by
motion:
motion:
 1. There can be an inherent defect in the
1. There can be an inherent defect in the
way that
way that the claim or defence has been
the claim or defence has been
pleaded—that is, one or more of the
pleaded—that is, one or more of the
elements of the claim or defences can be
elements of the claim or defences can be
incorrectly stated or missing; or
incorrectly stated or missing; or
 2. The claim or defence can be correctly
2. The claim or defence can be correctly
pleaded,
pleaded, with all of its elements correctly
with all of its elements correctly
alleged, but the evidence supporting one
alleged, but the evidence supporting one
or more elements is not sufficient to
or more elements is not sufficient to
create a “genuine issue of material fact.”
create a “genuine issue of material fact.”

 Some say ,in our legal system ,it is not
Some say ,in our legal system ,it is not
necessary to consider evidences in order
necessary to consider evidences in order
to determine whether or not the
to determine whether or not the
statement of claim discloses a cause of
statement of claim discloses a cause of
action.
action.
 Does Indian experience is of some help?
Does Indian experience is of some help?
 Do you agree?
Do you agree?

 Effects of Failure to Plead
Effects of Failure to Plead
 A party pleading is supposed to plead all
A party pleading is supposed to plead all
the claims arising from a single cause of
the claims arising from a single cause of
action.
action.
 Issues are framed on the basis of
Issues are framed on the basis of
allegations made in the statement of
allegations made in the statement of
claim; if not included in the pleading, it is
claim; if not included in the pleading, it is
not put in issue by a court.
not put in issue by a court.
 the plaintiff is not entitled to raise this at a
the plaintiff is not entitled to raise this at a
trial stage and produce evidence to prove
trial stage and produce evidence to prove
it.
it.
 b/se the other party is not aware of such
b/se the other party is not aware of such
issue and cannot challenge it.
issue and cannot challenge it.

 Failure to plead means that the plaintiff
Failure to plead means that the plaintiff
omits some facts he could have alleged.
omits some facts he could have alleged.
 The remedy for failure to plead at the
The remedy for failure to plead at the
beginning is to request an amendment of
beginning is to request an amendment of
pleading.
pleading.
 In the absence of permission to amend the
In the absence of permission to amend the
pleading, the plaintiff is not allowed to
pleading, the plaintiff is not allowed to
raise new issues at a trial and introduce
raise new issues at a trial and introduce
evidence unless the court frames issues by
evidence unless the court frames issues by
its own motion using the power under Art.
its own motion using the power under Art.
252.
252.
 Failure to plead produces effect
Failure to plead produces effect if the
if the
defendant raises it
defendant raises it

 Failure to deny
Failure to deny
 Denial should be specific.
Denial should be specific.
 Failure to deny
Failure to deny means that the defendant
means that the defendant
is not replying to some points of defense
is not replying to some points of defense
against the claim of the plaintiff.
against the claim of the plaintiff.
 If the defendant fails to respond to every
If the defendant fails to respond to every
allegation in the statement of claim, it
allegation in the statement of claim, it
means that he is indirectly admitting it.
means that he is indirectly admitting it.
 he cannot raise them at a trial.
he cannot raise them at a trial.
 Unless those which prevent a court from
Unless those which prevent a court from
giving valid judgment.
giving valid judgment.

 Alternative and Subsequent Pleadings
Alternative and Subsequent Pleadings
 Alternative Pleadings
Alternative Pleadings
 An alternative pleading is optional grounds
An alternative pleading is optional grounds
of claims or defenses relied on by a party.
of claims or defenses relied on by a party.
 It does not mean, that the plaintiff is entitled
It does not mean, that the plaintiff is entitled
to double recovery for the same harm.
to double recovery for the same harm.
 He is merely basing his claim on optional
He is merely basing his claim on optional
grounds in order to maximize such claims.
grounds in order to maximize such claims.
 E,g. ,the defendant ---there is no valid
E,g. ,the defendant ---there is no valid
contract---if there is performed----if not is
contract---if there is performed----if not is
prohibited by force majeure….if not no
prohibited by force majeure….if not no
damage….if there is exaggerated
damage….if there is exaggerated

 The possibility of alternative pleading by
The possibility of alternative pleading by
the defendant is provided under Art. 237.
the defendant is provided under Art. 237.
 the defendant may state different and
the defendant may state different and
separate grounds of defense in a single
separate grounds of defense in a single
statement of defense.
statement of defense.
 There is no limitation as to the ground of
There is no limitation as to the ground of
defense that is invoked by the defendant.
defense that is invoked by the defendant.
 Art. 224(1) states the application of
Art. 224(1) states the application of
alternative pleading to the plaintiff.
alternative pleading to the plaintiff.

 Subsequent Pleading
Subsequent Pleading
 is also known as further pleading.
is also known as further pleading.
 It means pleading again on the same issue
It means pleading again on the same issue
on which the pleading already been made.
on which the pleading already been made.
 The procedure is that once the court fixed
The procedure is that once the court fixed
a date for the hearing of a suit and
a date for the hearing of a suit and
conducted a pre-trial proceeding, it shall
conducted a pre-trial proceeding, it shall
proceed to a full-scale hearing of a suit
proceed to a full-scale hearing of a suit
since the pleading stage is completed.
since the pleading stage is completed.
 However, further pleading is allowed in
However, further pleading is allowed in
certain instances before the trial of a case.
certain instances before the trial of a case.
 This is provided under Article 239.
This is provided under Article 239.

 Further pleading is allowed when the
Further pleading is allowed when the
statement of defense contains counter-
statement of defense contains counter-
claim or set- off against the claim of the
claim or set- off against the claim of the
plaintiff.
plaintiff.
 If it does not contain, further pleading is
If it does not contain, further pleading is
not be allowed unless an amendment is
not be allowed unless an amendment is
allowed by the court.
allowed by the court.
 Here a court should first ask the plaintiff
Here a court should first ask the plaintiff
as to whether he wants to reply to the
as to whether he wants to reply to the
defendant’s claim.
defendant’s claim.
 If not ,the court should not order further
If not ,the court should not order further
pleading to be made by the plaintiff
pleading to be made by the plaintiff

Amendments Of Pleadings, Nature
Amendments Of Pleadings, Nature
And Purpose
And Purpose
 An amendment is the correction of an error
An amendment is the correction of an error
or the supplying of an omission in the
or the supplying of an omission in the
process or pleadings.
process or pleadings.
might have been well pleaded ……,but
might have been well pleaded ……,but
which through error or inadvertence was
which through error or inadvertence was
omitted or misstated.
omitted or misstated.
 It is allowed to rectify defects in pleadings.
It is allowed to rectify defects in pleadings.
 If allowed, it introduces a modification to the
If allowed, it introduces a modification to the
content of the pleading already submitted to
content of the pleading already submitted to
a court.
a court.

 The question of amendment is raised when a
The question of amendment is raised when a
party tries
party tries
to produce evidence on something which
to produce evidence on something which
is not included in the pleading or
is not included in the pleading or
that the evidences produced do not prove
that the evidences produced do not prove
the contents of pleading or
the contents of pleading or
that a party comes across new facts that
that a party comes across new facts that
he should have included in his pleadings,
he should have included in his pleadings,
etc.
etc.
 The provisions of Article 91 and 252 deal
The provisions of Article 91 and 252 deal
with amendment of pleadings.
with amendment of pleadings.

Grounds and the Process
Grounds and the Process
 It should be merely technical-where raised merely
It should be merely technical-where raised merely
for the purpose of enabling to raise a purely
for the purpose of enabling to raise a purely
technical objection i.e. waive able objections.
technical objection i.e. waive able objections.
 It should be useful and of substance: Where it would
It should be useful and of substance: Where it would
help in substantiating claim or supporting defense.
help in substantiating claim or supporting defense.
 Should not introduce a totally new and different
Should not introduce a totally new and different
case.
case.
 It should not change the case to that w/h require
It should not change the case to that w/h require
further evidence to be adduced by the opponent.
further evidence to be adduced by the opponent.
 Should not change specific legal relation on w/h the
Should not change specific legal relation on w/h the
claim was based , cause of action and title.
claim was based , cause of action and title.
 The ultimate test is “ can the amendment be allowed
The ultimate test is “ can the amendment be allowed
with out injustice to the other side or not”
with out injustice to the other side or not”

 The amendment is ordered by the motion of
The amendment is ordered by the motion of
a court or by the application of a party.
a court or by the application of a party.
 by the motion of a court is limited to cases
by the motion of a court is limited to cases
where the error in pleading is likely to
where the error in pleading is likely to
affect the substantive rights of a party.
affect the substantive rights of a party.
 In other cases, ordered on the basis of the
In other cases, ordered on the basis of the
application of a party.
application of a party.
 Under to Art. 91 and 252, it is made when
Under to Art. 91 and 252, it is made when
necessary for the purpose of determining the
necessary for the purpose of determining the
real issues in dispute between the parties.
real issues in dispute between the parties.
 This means that the amendment has a
This means that the amendment has a
bearing on deciding the issues between
bearing on deciding the issues between
the parties.
the parties.

 Jildii 12ffaa, L.G.
Jildii 12ffaa, L.G. 63699
63699 አፓኖ ኢንጂነሪንግ
አፓኖ ኢንጂነሪንግ
ኮንስትራክሽን ዴርጅት እና አቶ ጥሩነህ ይመር
ኮንስትራክሽን ዴርጅት እና አቶ ጥሩነህ ይመር ሏምላ
ሏምላ
15/2003
15/2003
ግሌጽነት የጏዯሇው
ግሌጽነት የጏዯሇው ክስ
ክስ /
/አቤቱታ
አቤቱታ/
/ በቀረበ ጊዜ ክሱ
በቀረበ ጊዜ ክሱ
በተከራካሪዎች አነሳሽነት ወይም ፌ
በተከራካሪዎች አነሳሽነት ወይም ፌ/
/ቤቱ በራሱ ክሱ
ቤቱ በራሱ ክሱ
እንዱሻሻሌ ሳይዯረግ በዯፇናው የቀረበን የይገባኛሌ
እንዱሻሻሌ ሳይዯረግ በዯፇናው የቀረበን የይገባኛሌ
ጥያቄ ሊይ የሚሰጥ ፌርዴ ተገቢነት የላሇው ስሇመሆኑ
ጥያቄ ሊይ የሚሰጥ ፌርዴ ተገቢነት የላሇው ስሇመሆኑ
የፌ
የፌ/
/ብ
ብ/
/ሥ
ሥ/
/ሥ
ሥ/
/ህ
ህ/
/ቁ
ቁ. 91/1/
. 91/1/

 Jildii 12ffaa, L.G.
Jildii 12ffaa, L.G. 55973
55973 ወ
ወ/
/ሮ አፀዯ ኤድ እና
ሮ አፀዯ ኤድ እና
አቶ ትኩ ዋቅሹም
አቶ ትኩ ዋቅሹም የካቲት
የካቲት 21/2003
21/2003
በመጀመሪያ በቀረበ የክስ መከሊከያ መሌስ ያሌተካተተን
በመጀመሪያ በቀረበ የክስ መከሊከያ መሌስ ያሌተካተተን
የመጀመሪያ ዯረጃ መቃወሚያ መሌስ እንዱሻሻሌ በሚሌ
የመጀመሪያ ዯረጃ መቃወሚያ መሌስ እንዱሻሻሌ በሚሌ
ፌ
ፌ/
/ቤት በሰጠው ትዕዛዝ መነሻነት ተካትቶ ሲቀርብ
ቤት በሰጠው ትዕዛዝ መነሻነት ተካትቶ ሲቀርብ
ተቀባይነት ሉያገኝ የሚችሌበት የህግ አግባብ የላሇ
ተቀባይነት ሉያገኝ የሚችሌበት የህግ አግባብ የላሇ
ስሇመሆኑ የፌ
ስሇመሆኑ የፌ/
/ብ
ብ/
/ሥ
ሥ/
/ሥ
ሥ/
/ህ
ህ/
/ቁ
ቁ. 91, 244
. 91, 244 የፌ
የፌ/
/ብ
ብ/
/ህ
ህ/
/ቁ
ቁ.
.
1856
1856

 Effects and Related Issues
Effects and Related Issues
 Amendment
Amendment
 on one hand may cause delay of
on one hand may cause delay of
proceedings.
proceedings.
 On the other hand, amendment protects a
On the other hand, amendment protects a
party from losing his substantive rights or
party from losing his substantive rights or
being affected as a result of pleading
being affected as a result of pleading
error.
error.
 The phrase in Art. 91 and 252, which says”
The phrase in Art. 91 and 252, which says”
necessary for the purpose of determining
necessary for the purpose of determining
the real question in dispute” aims at
the real question in dispute” aims at
striking a balance between these two
striking a balance between these two
interests.
interests.

 Another factor for striking such a balance
Another factor for striking such a balance
is the imposition of damage on a party
is the imposition of damage on a party
who requested the amendment of
who requested the amendment of
pleadings.
pleadings.
 the tendency in most legal systems is
the tendency in most legal systems is
toward allowing amendment….a liberal
toward allowing amendment….a liberal
approach.
approach.
 Is an amendment allowed to produce new
Is an amendment allowed to produce new
evidence that was not originally annexed
evidence that was not originally annexed
to a pleading?
to a pleading?

 the introduction of new evidences does
the introduction of new evidences does
not fall under Art. 91(1) and that there is a
not fall under Art. 91(1) and that there is a
separate procedure on the production of
separate procedure on the production of
evidences.
evidences.
 Hence, the introduction of new evidence
Hence, the introduction of new evidence
could not serve as a ground for the
could not serve as a ground for the
amendment of pleading.
amendment of pleading.
 A party can request amendment at any
A party can request amendment at any
time before a court renders decision.
time before a court renders decision.

Pre-Trial
Pre-Trial
Proceedings
Proceedings

 Issuance of Summons
Issuance of Summons
 Summons refers to a formal mechanism by
Summons refers to a formal mechanism by
w/h a defendant is notified of a suit made
w/h a defendant is notified of a suit made
against him and called upon to appear on a
against him and called upon to appear on a
fixed time and date before a designated
fixed time and date before a designated
court to answer an allegation made by the
court to answer an allegation made by the
plaintiff against him.
plaintiff against him.
 The authority to issue summons is invested
The authority to issue summons is invested
in either the judge or the registrar of a
in either the judge or the registrar of a
court, Art. 94(3), 233&338 of CPC
court, Art. 94(3), 233&338 of CPC
 If the number of defendants is more than
If the number of defendants is more than
one, the summons shall be issued and
one, the summons shall be issued and
served on each defendant
served on each defendant

 Why serve summons on the defendant?
Why serve summons on the defendant?
 Basic Policy:
Basic Policy: Reasonable notice must be
Reasonable notice must be
given.
given.
 Constitutional
Constitutional due Process
due Process:
: No one
No one
should be affected by a judicial proceeding
should be affected by a judicial proceeding
without being given fair hearing
without being given fair hearing
 No jurisdiction without summons (art 78
No jurisdiction without summons (art 78
CPC; an
CPC; an ex parte
ex parte decree can be set aside if
decree can be set aside if
there was no due service)
there was no due service)

 Modes Of Service In Their Order Of
Modes Of Service In Their Order Of
Importance
Importance:
:
A.
A. Personal Service
Personal Service-
-
 direct on the defendant (Art 95(3),
direct on the defendant (Art 95(3),
 on the defendant’s agent who is
on the defendant’s agent who is
authorized to accept service (Article
authorized to accept service (Article
96(1)).
96(1)).
 on the defendant’s pleader / advocate,
on the defendant’s pleader / advocate,
Art. 96(2).
Art. 96(2).
 most effective
most effective

B. Constructive Service
B. Constructive Service
 -indirectly through others, such as agents
-indirectly through others, such as agents
& pleaders (Arts. 96-101).
& pleaders (Arts. 96-101).
 It is as good as personal service (Art 96(1))
It is as good as personal service (Art 96(1))

C. Substituted service (Art.105(1)
C. Substituted service (Art.105(1)
 including but not limited to affixing on
including but not limited to affixing on
courthouse & defendant’s last known
courthouse & defendant’s last known
address, postage, newspapers, etc.
address, postage, newspapers, etc.
 It is as good as personal service (Art.
It is as good as personal service (Art.
105(3))
105(3))

Summons has to be effective in order to
Summons has to be effective in order to
produce legal consequences
produce legal consequences;
;
 What constitutes effective summons, then?
What constitutes effective summons, then?
mode
mode (Art 70(a) CPC requires
(Art 70(a) CPC requires ‘
‘due service’
due service’
and
and
 time
time (Art 70 (c) requires
(Art 70 (c) requires ‘
‘sufficient time’
sufficient time’ for
for
the defendant).
the defendant).
Choose the most effective mode of service
Choose the most effective mode of service
available under the circumstances, but
available under the circumstances, but
watch out the order of importance.
watch out the order of importance.

 Which type of substituted service do you
Which type of substituted service do you
commonly use in your courts? Affixing?
commonly use in your courts? Affixing?
Newspapers? Postage, any other means?
Newspapers? Postage, any other means?
Under Art 105(1) it appears that a judge is
Under Art 105(1) it appears that a judge is
free to choose any instrument he wishes, but
free to choose any instrument he wishes, but
this discretion is not absolute. The judge
this discretion is not absolute. The judge
must choose the one which is most effective
must choose the one which is most effective
in accessing the defendant.
in accessing the defendant.

 Discussion issues
Discussion issues:
:
i.
i. TheTegegn Ingida case: court published
TheTegegn Ingida case: court published
notice in
notice in Addis Zemen
Addis Zemen as defendant wasn’t
as defendant wasn’t
found at his physical address. Court refused
found at his physical address. Court refused
to set aside ex parte decree under Art 78
to set aside ex parte decree under Art 78
holding that substituted service is as good as
holding that substituted service is as good as
personal service per Art 105 (3). How
personal service per Art 105 (3). How
effective is the newspapers, especially gov’t
effective is the newspapers, especially gov’t
owned ones? Literacy, distribution,
owned ones? Literacy, distribution,
readership issues, etc
readership issues, etc
ii.
ii. Elisabeth Gessesse Case :Court affixed
Elisabeth Gessesse Case :Court affixed
summons only on its room without affixing it
summons only on its room without affixing it
on defendant’s house despite clear address.
on defendant’s house despite clear address.

 Proof of Service of Summons
Proof of Service of Summons: See arts
: See arts
102, 104 &103 CPC
102, 104 &103 CPC
 Art 70(a): plaintiff has to prove that
Art 70(a): plaintiff has to prove that
defendant was
defendant was duly served
duly served for the suit to be
for the suit to be
heard
heard ex parte
ex parte at first hearing.
at first hearing.
 What is
What is “due service”
“due service” and
and how do we prove
how do we prove
it?
it?

 A summons is said to be duly served if it
A summons is said to be duly served if it
complies with the
complies with the mode prescribed
mode prescribed by law
by law
and
and ordered by the court.
ordered by the court.
 The Proofs
The Proofs:
:
a)
a) Signed acknowledgment of receipt of
Signed acknowledgment of receipt of
service by the defendant, agent, pleader,
service by the defendant, agent, pleader,
Art 102(1) &110(1).
Art 102(1) &110(1).
b)
b) Endorsement on the original summons
Endorsement on the original summons
stating the time & manner of service as
stating the time & manner of service as
well as the name and address of witnesses
well as the name and address of witnesses
present, Art 104.
present, Art 104.

 What if defendant refuses to sign receipt
What if defendant refuses to sign receipt
of service?
of service?
 Options available (Arts. 102(2), 103, 105(2);
Options available (Arts. 102(2), 103, 105(2);
see Art 103 Amharic version
see Art 103 Amharic version
1.
1. Issue fresh summons, (Arts 94, 95),or
Issue fresh summons, (Arts 94, 95),or
2.
2. Order substituted service, (Art 105(1), or
Order substituted service, (Art 105(1), or
3.
3. Consider summons
Consider summons duly served(Art.102/2)
duly served(Art.102/2)
and proceed
and proceed ex parte
ex parte per Art 70(a)
per Art 70(a)

Which option do you take, & why?
Which option do you take, & why? For
For
example, when do you consider that summons
example, when do you consider that summons
is deemed served and avoid fresh issue or
is deemed served and avoid fresh issue or
substituted service? Note that the law under Art
substituted service? Note that the law under Art
102(2) as a matter of principle does not deem a
102(2) as a matter of principle does not deem a
defendant who refused to acknowledge receipt
defendant who refused to acknowledge receipt
of service as duly served; this is rather an
of service as duly served; this is rather an
exception. The rule is that the judge has to
exception. The rule is that the judge has to
choose b/n issuing fresh summons or ordering
choose b/n issuing fresh summons or ordering
substituted service as Art 102(2) first calls Art
substituted service as Art 102(2) first calls Art
103 into application, and the latter calls in Art
103 into application, and the latter calls in Art
105(2) which requires either fresh summons or
105(2) which requires either fresh summons or
substituted service.
substituted service.

• But check Art 103 Amharic version where ex
But check Art 103 Amharic version where ex
parte is automatic.
parte is automatic. Which version do you
Which version do you
think better serves the interest of justice?
think better serves the interest of justice?
Which one is more risky &burdensome?
Which one is more risky &burdensome?
• What is the practice in you respective
What is the practice in you respective
benches?
benches?

 What if the defendant is not found at
What if the defendant is not found at
his address?
his address?
 Art. 103 covers cases where both
Art. 103 covers cases where both
personal and constructive services
personal and constructive services
proved impossible despite due diligence.
proved impossible despite due diligence.
1.
1. Plaintiff must return summons with
Plaintiff must return summons with
affidavit stating what prevented him
affidavit stating what prevented him
from serving, &
from serving, &
2.
2. Court issues either fresh summons or
Court issues either fresh summons or
orders substituted service pursuant to
orders substituted service pursuant to
Art 105(2)
Art 105(2)

Timeliness of service of Summons
Timeliness of service of Summons
 Due service is a necessary but not
Due service is a necessary but not
sufficient condition to proceed
sufficient condition to proceed ex parte
ex parte,
,
Art 70(a&c)
Art 70(a&c)
Adjourn hearing even if there is due
Adjourn hearing even if there is due
service but “not in sufficient time” Art
service but “not in sufficient time” Art
70(c).
70(c).
Due Process: he must be given
Due Process: he must be given adequate
adequate
opportunity
opportunity to consult lawyer, collect
to consult lawyer, collect
evidence and prepare his defense- fair
evidence and prepare his defense- fair
hearing.
hearing.

 To determine whether service was timely
To determine whether service was timely
or not the evidence of due service must
or not the evidence of due service must
indicate the exact date of service.
indicate the exact date of service.
What span of time is considered sufficient
What span of time is considered sufficient
for purpose of Art 70(c)? The law fixes no
for purpose of Art 70(c)? The law fixes no
number of days; use the analogy of Art
number of days; use the analogy of Art
338(2), something missed under Art 233.
338(2), something missed under Art 233.
The 10 days of Art 240 are irrelevant.
The 10 days of Art 240 are irrelevant.

• The Role of Courts:
The Role of Courts:
1)
1) They must choose the most effective mode
They must choose the most effective mode
under the circumstances
under the circumstances
2)
2) They must allow sufficient time for the
They must allow sufficient time for the
defendant to prepare his defense and
defendant to prepare his defense and
travel to court
travel to court
3)
3) They must remain vigilant as to proof of
They must remain vigilant as to proof of
service
service

Concluding Remarks:
Concluding Remarks:
 Fair Trial
Fair Trial→
→ right to be heard
right to be heard→ summons
→ summons
 Summons has to be due and timely
Summons has to be due and timely
 No jurisdiction, i.e. you can’t bind the defendant
No jurisdiction, i.e. you can’t bind the defendant
with your decision without effective summons
with your decision without effective summons
 Constructive and substituted service are as
Constructive and substituted service are as
good as personal service→ ex parte decree
good as personal service→ ex parte decree
may not be set aside per Art 78 for want of due
may not be set aside per Art 78 for want of due
service.
service.
 Judicial vigilance is indispensable.
Judicial vigilance is indispensable.

Appearance of Parties and
Appearance of Parties and
consequences of non-
consequences of non-
appearance
appearance

 When is the date of appearance? On the date of first
When is the date of appearance? On the date of first
hearing
hearing
 What is the objective of first hearing? preparing the case
What is the objective of first hearing? preparing the case
for an
for an orderly trial
orderly trial.
.
 What does it take to prepare a case for an orderly trial?
What does it take to prepare a case for an orderly trial?
See next slide
See next slide

Topic 3: Appearance of Parties …cont’d
 Major activities on first hearing
Major activities on first hearing: mainly
: mainly
based on pleadings filed
based on pleadings filed
1.
1. Check appearance of parties Art 241(Arts 69-
Check appearance of parties Art 241(Arts 69-
78)
78)
2.
2. Identify preliminary objections, if any, and
Identify preliminary objections, if any, and
settle them under Art 245(1)
settle them under Art 245(1)
3.
3. Secure clarity over the substance of the
Secure clarity over the substance of the
dispute by checking denials and admissions,
dispute by checking denials and admissions,
& frame issues; see Arts 241 & 246(1)
& frame issues; see Arts 241 & 246(1)

1.
1. Checking the Appearance of Parties on first
Checking the Appearance of Parties on first
hearing
hearing:
:
• Appearance can be personal or through duly
Appearance can be personal or through duly
authorized agent, pleader Art 65
authorized agent, pleader Art 65
• Give appropriate ruling when both or one of the
Give appropriate ruling when both or one of the
parties fails to make appearance (Arts 69, 70, 73,
parties fails to make appearance (Arts 69, 70, 73,
76, 77): striking out or dismissal of suits
76, 77): striking out or dismissal of suits
• Remedial measures available for a party affected
Remedial measures available for a party affected
by ruling on non-appearance (Art 71,72, 74, 78):
by ruling on non-appearance (Art 71,72, 74, 78):
re-opening, fresh suits, setting aside
re-opening, fresh suits, setting aside

2.
2. Ruling on Preliminary Objection (s), if
Ruling on Preliminary Objection (s), if
any
any
• Plaintiff files no counter reply to the
Plaintiff files no counter reply to the
statement of defense. How does he then
statement of defense. How does he then
join issue with the defendant on
join issue with the defendant on
preliminary objection? If plaintiff wants to
preliminary objection? If plaintiff wants to
deny those objections, how can he go
deny those objections, how can he go
about it if there is no right to file a written
about it if there is no right to file a written
counter reply?
counter reply?
• Art 245-hearing of parties and their
Art 245-hearing of parties and their
evidence to rule on preliminary objection.
evidence to rule on preliminary objection.

3.
3. Framing of Issue (s) on the Merit of the
Framing of Issue (s) on the Merit of the
Case
Case
• Nature and types of issues, Art 247: points
Nature and types of issues, Art 247: points
of disagreement, but not all; factual vs.
of disagreement, but not all; factual vs.
legal issues
legal issues
• Sources of from which issues can be
Sources of from which issues can be
framed, Art 248-249
framed, Art 248-249
• How do you frame issue when there an
How do you frame issue when there an
affirmative defense and plaintiff hasn’t file
affirmative defense and plaintiff hasn’t file
written counter reply? How can he deny
written counter reply? How can he deny
affirmative defense? Oral reply.
affirmative defense? Oral reply.

Issues need be framed and recorded,
Issues need be framed and recorded,
Art 246. what is its implication? The
Art 246. what is its implication? The
scope of trial is limited to the issue
scope of trial is limited to the issue
framed, helps you reject irrelevant
framed, helps you reject irrelevant
evidences and arguments.
evidences and arguments.
Party autonomy on issues: they can
Party autonomy on issues: they can
agree on the issue and give it to court,
agree on the issue and give it to court,
Art 253
Art 253

First hearing is judge-dominated; judge
First hearing is judge-dominated; judge
questions, parties answer them
questions, parties answer them
Simple cases can be disposed of at first
Simple cases can be disposed of at first
hearing stage
hearing stage

The First Hearing Day: its significance?
The First Hearing Day: its significance?
Arts 69-74 attach consequences for non-
Arts 69-74 attach consequences for non-
appearance
appearance
The closure of Pleading Stage and the
The closure of Pleading Stage and the
beginning of First Hearing (arts 94(1),
beginning of First Hearing (arts 94(1),
233,238, 239(2), 69, 241)
233,238, 239(2), 69, 241)
When is the date of receiving statement of
When is the date of receiving statement of
defense & conducting first hearing? Does
defense & conducting first hearing? Does
the law require different dates for first
the law require different dates for first
hearing and receiving statement of
hearing and receiving statement of
defense? Shell Eth. Case; Urgessa Tadesse
defense? Shell Eth. Case; Urgessa Tadesse

(mis)conception about ‘
(mis)conception about ‘ex parte
ex parte’; it doesn’t
’; it doesn’t
mean defendant is no longer a party nor
mean defendant is no longer a party nor
does it mean his right to participate in the
does it mean his right to participate in the
proceeding is lost; it means court will hear
proceeding is lost; it means court will hear
the plaintiff’s version alone-nothing more;
the plaintiff’s version alone-nothing more;
nothing less.
nothing less.
See Shell Ethiopia for
See Shell Ethiopia for ‘wrong definition’
‘wrong definition’
The discrepancy b/n Amharic and English
The discrepancy b/n Amharic and English
versions of Art 72; they are
versions of Art 72; they are
complementary than contradictory
complementary than contradictory

Topic 5: Trial of a Civil Case
Topic 5: Trial of a Civil Case
 Involves the hearing of evidence and
Involves the hearing of evidence and
arguments on the issues framed and
arguments on the issues framed and
recorded at the first hearing
recorded at the first hearing
No hearing of evidence on issues not
No hearing of evidence on issues not
framed during the first hearing; see Art 90
framed during the first hearing; see Art 90
Production of evidence:
Production of evidence:
Documentary evidences are already in the
Documentary evidences are already in the
file; see arts 223, 137(3), 256
file; see arts 223, 137(3), 256

Note that at the time of trial
Note that at the time of trial all
all
documentary evidences are already in
documentary evidences are already in
the file
the file annexed under Art 223 or
annexed under Art 223 or
produced by the order of the court
produced by the order of the court
under Art 145.
under Art 145.
No documentary evidence is to be
No documentary evidence is to be
produced at trial (see Arts. 137(3), 256)
produced at trial (see Arts. 137(3), 256)
But see Art 137(4) which allows the
But see Art 137(4) which allows the
production of documents at a trial stage
production of documents at a trial stage
to impeach a witness, to rebut
to impeach a witness, to rebut
defendant’s affirmative defense, & to
defendant’s affirmative defense, & to
refresh the memory of a witness.
refresh the memory of a witness.

1.
1. Trial distinguished from First Hearing:
Trial distinguished from First Hearing:
• The purpose of first hearing is to frame
The purpose of first hearing is to frame
issue, but the purpose of trial is to
issue, but the purpose of trial is to
resolve that issue
resolve that issue
• At first hearing the court examines/hears
At first hearing the court examines/hears
the parties with a view to understanding
the parties with a view to understanding
the issue, at trial the court hears the
the issue, at trial the court hears the
evidences of the parties with a view to
evidences of the parties with a view to
resolving that issue.
resolving that issue.

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

2.
2. The Hearing of Evidence at Trial
The Hearing of Evidence at Trial
• At the conclusion of the first hearing,
At the conclusion of the first hearing,
i.e. on the framing of issue, the court
i.e. on the framing of issue, the court
orders
orders the production of evidence.
the production of evidence.
• No hearing of evidence on issues not
No hearing of evidence on issues not
framed during the first hearing; see
framed during the first hearing; see
Art 90
Art 90
• Whose evidence is to be heard first?
Whose evidence is to be heard first?
• The order of production of evidence
The order of production of evidence
depends on the burden of proof; the
depends on the burden of proof; the
court has to order the evidence of a
court has to order the evidence of a
party who begins first per Arts 258
party who begins first per Arts 258
&259.
&259.

Topic 5: Trial…cont’d
 Order of Proceeding under Arts 258-259:
Order of Proceeding under Arts 258-259:
Begin by hearing the witness of a party who
Begin by hearing the witness of a party who
has the burden of proving the issues; the
has the burden of proving the issues; the
other party is required to enter defense and
other party is required to enter defense and
rebut only if the first satisfies burden of proof
rebut only if the first satisfies burden of proof
(of production and of persuasion)
(of production and of persuasion)

Witnesses: do you send summons to
Witnesses: do you send summons to
the witnesses of both parties at the
the witnesses of both parties at the
same time or do you make one after the
same time or do you make one after the
other and if so whose witness first?
other and if so whose witness first?

• Court should not order both parties to
Court should not order both parties to
produce their witnesses at the same
produce their witnesses at the same
time
time; only when a party who has to
; only when a party who has to
begin first i.e. the one who has the
begin first i.e. the one who has the
burden of proof satisfies his burden that
burden of proof satisfies his burden that
the other party should be instructed to
the other party should be instructed to
produce his rebuttal evidence.
produce his rebuttal evidence.
• No need for a rebuttal evidence when
No need for a rebuttal evidence when
burden of proof is not satisfied.
burden of proof is not satisfied.

Do we have to hear all the witnesses of
Do we have to hear all the witnesses of
a party at the same time? What if some
a party at the same time? What if some
of the witnesses failed to appear and
of the witnesses failed to appear and
others not? Are we to adjourn the case
others not? Are we to adjourn the case
or shall we proceed hearing the witness
or shall we proceed hearing the witness
who has appeared?
who has appeared?
Remember: a proponent has to cover all
Remember: a proponent has to cover all
the costs of witnesses and procedure is
the costs of witnesses and procedure is
required to cut costs of litigation.
required to cut costs of litigation.

3.
3. The Role of the Court in Proof of
The Role of the Court in Proof of
Facts: Is your duty to ‘truth’ or
Facts: Is your duty to ‘truth’ or
‘justice’?
‘justice’?
• Some of the powers of the court in
Some of the powers of the court in
relation to proof of fact include:
relation to proof of fact include:
1.
1. Ordering additional evidence, Art
Ordering additional evidence, Art
264(2)
264(2)
2.
2. Rehearing a witness, Art 266
Rehearing a witness, Art 266
3.
3. Inspecting property in dispute, Art 272
Inspecting property in dispute, Art 272
4.
4. Local investigation, Art 132
Local investigation, Art 132
5.
5. Investigation of Accounts, Art 134
Investigation of Accounts, Art 134
6.
6. Verification, Art 136
Verification, Art 136

Topic 6: Proceedings before First Instance
Topic 6: Proceedings before First Instance
Courts
Courts
1
1. Ordinary Proceeding:
. Ordinary Proceeding:
 Defendant has automatic right to
Defendant has automatic right to
appear and defend the suit; see Art 233,
appear and defend the suit; see Art 233,
234
234
 Doesn’t discriminate b/n cases; can be
Doesn’t discriminate b/n cases; can be
used almost for all cases
used almost for all cases
 Divided into several states: pleading
Divided into several states: pleading
stage, pre-trial hearing stage, trial stage
stage, pre-trial hearing stage, trial stage

Topic 6: Proceedings before…cont’d
2.
2. Summary Proceeding (arts 284-292)
Summary Proceeding (arts 284-292)
 Fast-track, avoids full-scale trial
Fast-track, avoids full-scale trial
 Right to appear and defend isn’t automatic; leave of
Right to appear and defend isn’t automatic; leave of
court is required (art 285), else judgment is for the
court is required (art 285), else judgment is for the
plaintiff
plaintiff
 Leave may be denied (art 287)
Leave may be denied (art 287)
 If leave is granted, case turns on ordinary
If leave is granted, case turns on ordinary
procedure; art 291
procedure; art 291
 Only a claim for liquidated money is actionable
Only a claim for liquidated money is actionable
under it (art 284)
under it (art 284)
 Additional formalities such as affidavit to support
Additional formalities such as affidavit to support
claims which isn’t typical
claims which isn’t typical

3.
3. Accelerated Procedure (arts 300-314)
Accelerated Procedure (arts 300-314)
• Applies only to expressly listed cases, which
Applies only to expressly listed cases, which
normally don’t involve the direct payment of
normally don’t involve the direct payment of
money from one party to the other as a
money from one party to the other as a
relief
relief
• Some cases mayn’t have defendants; non-
Some cases mayn’t have defendants; non-
contentious cases
contentious cases
• Judgment not appealable, save exceptions;
Judgment not appealable, save exceptions;
or has to be made in 10 days (shorter than
or has to be made in 10 days (shorter than
the 60 days normal); see Art 306
the 60 days normal); see Art 306
• Appeal stays Execution (by
Appeal stays Execution (by operation of the
operation of the
law
law )see Art 306 vs 332
)see Art 306 vs 332

Topic 7: Res Judicata (Art 5)
Topic 7: Res Judicata (Art 5)
1.
1. Principle
Principle
2.
2. Justifications
Justifications
3.
3. Exception to the Rule
Exception to the Rule

Topic 7: Res Judicata …cont’d
Topic 7: Res Judicata …cont’d
1.
1. The Principle: Once decided, decided for
The Principle: Once decided, decided for
ever
ever
2.
2. Justification: There should be end to
Justification: There should be end to
litigation, why?
litigation, why?
• Defendant should not be vexed for ever
Defendant should not be vexed for ever
• Public resource should be used
Public resource should be used
equitably; you don’t have take more
equitably; you don’t have take more
than your share of the resource that
than your share of the resource that
runs the judiciary
runs the judiciary

Topic 7: Res Judicata…cont’d
 The requirements of Art 5 of the CPC:
The requirements of Art 5 of the CPC:
 Art 5(1):
Art 5(1):
1.
1. The Requirements of Res Judicata, Art 5:
The Requirements of Res Judicata, Art 5:
• Identity of issues
Identity of issues
• Sameness of parties
Sameness of parties
• Finality of former decision
Finality of former decision
• Competence of former court
Competence of former court

Matter
Matter: directly and substantially in issue
: directly and substantially in issue
both in former case and the case at hand;
both in former case and the case at hand;
Parties
Parties: same (those who derive their
: same (those who derive their
right from them) & acting in the same
right from them) & acting in the same
title as before
title as before
Heard
Heard &
& finally decided
finally decided by ct of
by ct of
jurisdiction; matter is no longer pending;
jurisdiction; matter is no longer pending;
decision was ‘actual’
decision was ‘actual’
Art 5(2): you could have raised it as a
Art 5(2): you could have raised it as a
defense in earlier suit; so you can’t make
defense in earlier suit; so you can’t make
it a ground of claim in a subsequent suit.
it a ground of claim in a subsequent suit.
Decision wasn’t
Decision wasn’t actual
actual, but
, but constructive
constructive

Topic 7:Res Judicata…cont’d
Topic 7:Res Judicata…cont’d
Art 5(3): relief not granted is deemed
Art 5(3): relief not granted is deemed
denied; so you can’t re-litigate the case,
denied; so you can’t re-litigate the case,
nor can you invoke art 208 to have the
nor can you invoke art 208 to have the
mistake corrected
mistake corrected
Art 5(4): res judicata effect of class
Art 5(4): res judicata effect of class
judgment on class members; see art
judgment on class members; see art
38(1&2)-opt out (deny your consent by
38(1&2)-opt out (deny your consent by
notice to the court), or directly
notice to the court), or directly
participate in the suit
participate in the suit

3.
3. The Exception (Art 6): re-litigate the matter
The Exception (Art 6): re-litigate the matter
• Public Policy
Public Policy: No tolerance to ‘corrupt’ decision
: No tolerance to ‘corrupt’ decision
• Ground
Ground of re-opening under Art 6:Discovery of
of re-opening under Art 6:Discovery of
evidence proving “
evidence proving “new and important matter
new and important matter,
, such
such
as
as forgery, perjury &bribery
forgery, perjury &bribery→ excludes new
→ excludes new
evidence on the substance of the case.
evidence on the substance of the case.
• Scope
Scope: Party-related impropriety;
: Party-related impropriety; does it include
does it include
judicial impropriety, e.g. a bribed judge?
judicial impropriety, e.g. a bribed judge?
• Effect:
Effect: decision would have been different had it
decision would have been different had it
not been for the forgery, perjury, bribery
not been for the forgery, perjury, bribery
→prejudicial error, result-oriented approach
→prejudicial error, result-oriented approach
• Time
Time: no specific time is fixed under art 6; does it
: no specific time is fixed under art 6; does it
mean such decision is open for attack for ever??
mean such decision is open for attack for ever??

 Procedural issue under Art 6:
Procedural issue under Art 6:
 The effect of appeal: when does it bar re-
The effect of appeal: when does it bar re-
opening? while pending? or even after appeal
opening? while pending? or even after appeal
is over?
is over?
 Act before you appeal, if appealable
Act before you appeal, if appealable
 Once you appeal, bring it to the attention of
Once you appeal, bring it to the attention of
the appellate ct itself: The Ijigayehu case;
the appellate ct itself: The Ijigayehu case;
appeal abandoned to invoke art 6
appeal abandoned to invoke art 6
 If you discover evidence after appeal &even
If you discover evidence after appeal &even
cassation, art 6 is still available! Public Policy
cassation, art 6 is still available! Public Policy
of zero tolerance to such decisions. The
of zero tolerance to such decisions. The
Ijigayehu case reversed by Tirhas Fisahayie
Ijigayehu case reversed by Tirhas Fisahayie

Topic 8: Appeal
Topic 8: Appeal
1.
1. Additional evidence on appeal (Art
Additional evidence on appeal (Art
345, 346)
345, 346)
2.
2. Remand to lower court (Art 341, 211(1
Remand to lower court (Art 341, 211(1
&2), 343,344,)
&2), 343,344,)
3.
3. Stay of execution on appeal (Arts 332-
Stay of execution on appeal (Arts 332-
336)
336)

Topic 8: Appeal…cont’d
1.
1. Additional evidence on appeal (Art
Additional evidence on appeal (Art
345, 346)
345, 346)
 The nature of appeal:
The nature of appeal:
a.
a. Scope
Scope: It’s a review of the
: It’s a review of the record of the
record of the
lower court
lower court; we don’t normally create
; we don’t normally create
new record on appeal (Art 342&329(1))
new record on appeal (Art 342&329(1))
b.
b. Purpose
Purpose: remedial & there is
: remedial & there is
presumption of correctness
presumption of correctness in favor of
in favor of
lower court (Art 212).
lower court (Art 212).

Topic:8 Appeal…cont’d
Topic:8 Appeal…cont’d
• Thus, burden of rebuttal is on the appellant:
Thus, burden of rebuttal is on the appellant:
1)
1) a prejudicial error must
a prejudicial error must exist as the purpose of
exist as the purpose of
appeal is not to make sure that no error has
appeal is not to make sure that no error has
been committed by a judge.
been committed by a judge.
2)
2) 2)
2) Error must be pleaded by the appellant
Error must be pleaded by the appellant (Art
(Art
328(1&2) ; court doesn’t have to look for errors
328(1&2) ; court doesn’t have to look for errors
as proceeding is adversarial, but see art
as proceeding is adversarial, but see art
328(3)& 182(2 second limb)
328(3)& 182(2 second limb)

Topic: Appeal…cont’d
Topic: Appeal…cont’d
 The Exception
The Exception: new record/additional
: new record/additional
evidence on appeal
evidence on appeal
 Reason for admission (Art 345(2)?
Reason for admission (Art 345(2)? Art 345(1):
Art 345(1):
a)
a) Lower court rejected an otherwise
Lower court rejected an otherwise
admissible/relevant
admissible/relevant,
, material
material and
and timely offered
timely offered
evidence under Art 223(Annex to pleadings
evidence under Art 223(Annex to pleadings
b)
b) Evidence on the record isn’t sufficient to lead
Evidence on the record isn’t sufficient to lead
to a just decision
to a just decision
c)
c) Any other substantial cause? E.g. Art.6 issue
Any other substantial cause? E.g. Art.6 issue

2.
2. Remand to lower court
Remand to lower court (Art 341, 211(1 &2),
(Art 341, 211(1 &2),
343,344,)
343,344,)
a)
a) Remand under Art 341(1) Cf to the Amharic
Remand under Art 341(1) Cf to the Amharic
version which talks only ‘
version which talks only ‘preliminary
preliminary
objections only’.
objections only’.
• Scope
Scope:
: The meaning of ‘
The meaning of ‘preliminary point:
preliminary point:
i.
i. upon a
upon a preliminary objection
preliminary objection without going
without going
into the substance of the case, or
into the substance of the case, or
ii.
ii. Upon a
Upon a substantive point
substantive point but without
but without
addressing all the issues e.g. Arts 247(4)
addressing all the issues e.g. Arts 247(4)
&182(3)
&182(3)

 Discretion to remand “…Appellate court may if it
Discretion to remand “…Appellate court may if it
thinks fit…remand the case…” see Art 341,
thinks fit…remand the case…” see Art 341,
meaning it mayn’t always necessary to remand.
meaning it mayn’t always necessary to remand.
 When decision was only on a preliminary
When decision was only on a preliminary
objection, remand is a must as you neither the
objection, remand is a must as you neither the
evidence nor the decision on the merit of the
evidence nor the decision on the merit of the
case; you have no record developed to review.
case; you have no record developed to review.
 When decision was on the merit, you may or
When decision was on the merit, you may or
may not remand the case.
may not remand the case.

 How do you decide, then?
How do you decide, then?
 If the matter left undecided by the lower
If the matter left undecided by the lower
court can be decided by the appellate court,
court can be decided by the appellate court,
that is, if it doesn’t need any further record on
that is, if it doesn’t need any further record on
the matter, it should not remand the case!
the matter, it should not remand the case!
 If the matter, however, requires evidence it
If the matter, however, requires evidence it
has to remand so that the trial court hears
has to remand so that the trial court hears
and determines the case on that matter.
and determines the case on that matter.

b.
b. Remand under Arts 343 &211(2) ?
Remand under Arts 343 &211(2) ?
• Fundamentally different from the case
Fundamentally different from the case
under Art 341:
under Art 341:
i.
i. Art 343 is compelled by the prior
Art 343 is compelled by the prior
reversal
reversal of the decision of the lower
of the decision of the lower
court whereas under Art 343 the
court whereas under Art 343 the
appellate court is yet to take position
appellate court is yet to take position
and needs further record to do so.
and needs further record to do so.

• The court isn’t in a position to confirm, vary or
The court isn’t in a position to confirm, vary or
reverse the lower court’s decision under Art 343
reverse the lower court’s decision under Art 343
b/c some issues are neglected, and/or a
b/c some issues are neglected, and/or a
procedural irregularity was committed (Art 211(2)
procedural irregularity was committed (Art 211(2)
ii.
ii. Under Art 341 lower court will finally decide the
Under Art 341 lower court will finally decide the
case once again, while under Art 343(2) it doesn’t
case once again, while under Art 343(2) it doesn’t
dispose of the case-it hears evidence on issues
dispose of the case-it hears evidence on issues
and sends its records to the appellate court; the
and sends its records to the appellate court; the
latter then takes position
latter then takes position

iii.
iii. Stay of Execution and Appeal
Stay of Execution and Appeal
• Appeal no bar to execution in ordinary
Appeal no bar to execution in ordinary
& summary proceedings (Art 332)
& summary proceedings (Art 332)
• Who orders stay of execution
Who orders stay of execution?
?
1.
1. Court of rendition (Art 333)
Court of rendition (Art 333)
2.
2. President of court of rendition (Art 334)
President of court of rendition (Art 334)
3.
3. President of court of appeal (Art 334)
President of court of appeal (Art 334)
4.
4. Court of appeal (Art 332)
Court of appeal (Art 332)

 Conditions to grant stay (Art 335)
Conditions to grant stay (Art 335)
a)
a) Imminent substantial/irreparable damage
Imminent substantial/irreparable damage
b)
b) Diligence-don’t wait until creditor is
Diligence-don’t wait until creditor is
plunged into cost of execution; it is not a
plunged into cost of execution; it is not a
dilatory tactic.
dilatory tactic.
c)
c) Sufficient security must be offered
Sufficient security must be offered
d)
d) Hearing of both creditor & debtor;
Hearing of both creditor & debtor; ex
ex
parte
parte is possible but doesn’t totally
is possible but doesn’t totally
obviate hearing altogether (Art335(2))
obviate hearing altogether (Art335(2))

 The ‘neglected classic’ of shifting the burden
The ‘neglected classic’ of shifting the burden
to the judgment creditor (Art 336):
to the judgment creditor (Art 336):
 Right to restitution of property taken by
Right to restitution of property taken by
decree under Art 349
decree under Art 349
 Demand security from your creditor so that
Demand security from your creditor so that
he will restitute your property if you win on
he will restitute your property if you win on
appeal; if he fails to post security, execution
appeal; if he fails to post security, execution
should stay; an indirect way of obtaining stay
should stay; an indirect way of obtaining stay
of execution
of execution
 The last weapon when stay of execution is
The last weapon when stay of execution is
denied and judgment debtor is ordered to
denied and judgment debtor is ordered to
comply with the terms of the decree
comply with the terms of the decree

Topic 9: Execution of Decree
Topic 9: Execution of Decree
Ratable Distribution (Art 403)
Ratable Distribution (Art 403)
Third Parties in Relation to Execution
Third Parties in Relation to Execution
(co-sharers and others)
(co-sharers and others)
Second Auction
Second Auction
Setting Aside of the Sale of Immovable
Setting Aside of the Sale of Immovable

1.
1. Execution of Money Judgments:
Execution of Money Judgments:
• Attachment and Sale of Debtor’s property
Attachment and Sale of Debtor’s property
and Procedural safeguards
and Procedural safeguards
• Exempted property, Art 404
Exempted property, Art 404
• Proportionality test, Art 394(2)
Proportionality test, Art 394(2)
• Manner & time of auction sale, 422-426
Manner & time of auction sale, 422-426
• Auction sale may not be a must; privately
Auction sale may not be a must; privately
negotiated sale, or other ways of raising
negotiated sale, or other ways of raising
the money Art 439
the money Art 439

1.
1. Third Parties in Relation to Execution
Third Parties in Relation to Execution
 Objections to Attachment, Art 418-
Objections to Attachment, Art 418-
421(Before property is sold)
421(Before property is sold)
 Resistance to Delivery of Possession to
Resistance to Delivery of Possession to
the buyer at auction (Art 450-455)
the buyer at auction (Art 450-455)

Adjournment: Once court starts hearing
Adjournment: Once court starts hearing
of a suit, it is continued till the final
of a suit, it is continued till the final
 disposal of the suit, day to day and the
disposal of the suit, day to day and the
adjournment is granted only for
adjournment is granted only for
unavoidable reasons.506 The grant or
unavoidable reasons.506 The grant or
refuse of adjournment is in the discretion
refuse of adjournment is in the discretion
of the court.
of the court.
 There are no guidelines laid down by the
There are no guidelines laid down by the
Code in this regard, but courts grant
Code in this regard, but courts grant
adjournments in cases of: sickness of a
adjournments in cases of: sickness of a
party, his witness or his counsel, non-
party, his witness or his counsel, non-
service of summons, reasonable time for
service of summons, reasonable time for
preparation of a case,
preparation of a case,

 withdrawal of appearance by a counsel at
withdrawal of appearance by a counsel at
the last moment, liability of the counsel to
the last moment, liability of the counsel to
conduct a case, inability of a party to
conduct a case, inability of a party to
engage another counsel, etc.
engage another counsel, etc.
 However, if the party fails to appear even
However, if the party fails to appear even
on the adjourned day, the court either
on the adjourned day, the court either
proceed to dispose of the suit
proceed to dispose of the suit ex-parte /
ex-parte /
dismiss the suit in case of the
dismiss the suit in case of the plaintiff / fix
plaintiff / fix
any other day for proceedings with the
any other day for proceedings with the
suit / proceed with a case even in absence
suit / proceed with a case even in absence
of a party where evidence of such party has
of a party where evidence of such party has
already been recorded as if such party were
already been recorded as if such party were
present / make any other suitable order
present / make any other suitable order

Ethiopian Civil Procedure lecture notes-

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Ethiopian Civil Procedure lecture notes-