Law Civil Procedure I ppt -Lecture Note

Lecture Note PPt
By Girma K.
January .2025
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Course Introduction
Procedural rules are primarily established to govern
how, where and when claims of persons are prepared,
presented, determined, and, finally enforced-in the
process of administration of justice.
To this end, Procedural Rules give "life" to the aims and
purposes sought to be achieved by substantive laws. For
this reason they are usually coined as "means to an end,
and not an end in themselves”.
The LCP is a branch of procedural rules that is a
constituted of rules setting forth the methods and
mechanisms through which civil litigations are conducted
in a court of law.
It is designed, for all purposes and intents, to secure a
fair, speedy and inexpensive disposition of civil litigations.

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Objectives of the Course
After successful completion of the Course, the students will be able
to:
understand the very of purpose and significance of procedural
rules in general; and, appreciate the normative framework and
institutional structure of the Ethiopian judicial system in particular;
 prepare pleadings ;holistically realize and thoroughly internalize
the view that the rules of civil procedure should always be read and
applied in such a manner as to ensure the primary end sought to be
achieved thereby.
Understand what First Hearing is and explain the proceedings
applied in it.
Differentiate what ordinary and special procedures are
Discuss on how evidences will be produced to the court of law;
Explain the rules on review of judgment;
Find out different possibilities for execution of judgment.

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Objectives of the Course
After successful completion of the Course, the students will be able
to:
understand the very of purpose and significance of procedural
rules in general; and, appreciate the normative framework and
institutional structure of the Ethiopian judicial system in particular;
 prepare pleadings ;holistically realize and thoroughly internalize
the view that the rules of civil procedure should always be read and
achieved thereby.
Understand what First Hearing is and explain the proceedings
applied in it.
Differentiate what ordinary and special procedures are

Chapter Objectives:
After completion of this chapter , students will
be able to:
accurately point out the relations between procedural
and substantive rules;
make distinctions between civil and criminal cases and
identify the scope of application of civil procedure;
sufficiently comprehend the significance of rules of civil
procedure;
properly appreciate the ultimate objectives that the
rules of civil procedure are designed to serve; and,
describe and apprehend the past and present
administration of justice in Ethiopia-from the perspective
of civil proceedings.
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1.1. Civil Procedure: Nature and Purpose
1.1.1.The Nature of civil Procedure :Definitional
Aspects
Laws: Classification-Substantive Vs Procedural Laws
1. Substantive law -deals with the rights ,duties and
privileges ,liabilities of persons .It is sub-categorized
into
A. Private law-regulates the relationship between
individual citizens. e.g. Law of persons, Contracts ,
property, succession ,family etc….
 Private law is sub-divided in to private national
&Private international law.
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B.Public law-regulates the r/ship between
society (government )& individual citizens.
eg. Criminal law, Constitutional law,
Administrative law.
 Public law-Public national & public
international law
2. Adjective law-deals with the mechanism
of enforcing substantive laws in case
where dispute arises . It is sub-divided
into:
A. Evidence law-concerned with admissibility
of evidence , Burden of proof.
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B.Procedural Law- a means to enforce rights, duties
&privileges arise from substantive laws . laws. It is
classified in to:
Law of Civil Procedure- a means to enforce
substantive rights that emanates from civil
laws/private laws.
Law of Criminal procedure- a meanse to enforce
substantive rights that emanates from criminal
laws.
Thus, laws of Civil procedure is a procedure
employed in civil matters to enforce rights , duties
& privileges arising from civil laws .
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1.1.1.1.Substantive Vs Procedural laws :Significance
Substantive law
Significance-sets out regulatory norms for mutual
relations in ordinary course of life.
Material source-civil code ,family code, criminal code,
commercial code etc.
Ultimate objective- i.e. seeks to avoid disputes
between & among individuals and groups in a society in
delimiting their respective spheres ; by primarily
,predefining their rights &the corresponding duties
clearly.
Sphere of application-substantive laws determine
individual conducts & regulates their interaction within
the society at large &deal with civil matters falling 10

Out side court room. Substantive law is “law at rest”
Procedural laws -a means to the end contemplated by
substantive.
Significance-to govern how claims of persons are
prepared ,where and when presented ;&how determined
finally enforced by court of law.
give effect(life)to the end sought to be achieved by
substantive laws.
Prescription without application is noting but
pretence-a false claim.
In other words, the rights and duties stipulated by
the substantive laws would mean nothing unless they
are fully endorsed through procedural law.
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Material source-Code of Civil Procedure,Code of
Criminal Procedure,Proclamtion 1234/2021 etc
Ultimate objective-to avail remedial measures
for the dispensation of justice –i.e. Deal with the
manner of framing law suits ,determining their
place of institutions ;and governing the way they
are considered and finally enforced .In other
words, to secure the just, speedy and inexpensive
disposition of civil cases in the administration of
justice.
Law of procedure in general and civil procedure
in particular is the means to the end sought to be
achieved by substantive laws. 12

Sphere of application –procedural laws govern
the process of litigation ;regulate the conduct of
relations between litigants and the court with
respect to the proceedings and is called “law of
action”/”law of Motion” reflecting the dynamic
aspect of the rules of substantive laws.
Thus, material source(the constitute
document),the ultimate objective the rule is
meant to serve and its functional sphere are the
three general yard sticks through which a
distinction b/n procedural and substantive rules
are tested.
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1.1.1.2.Civil Vs.Criminal Procedures :Scope of
Application
The Civil and criminal procedures are:
The nature of Parties involved : a civil case is
naturally initiated by private person(exceptionally
by government when it acts in its private capacity)
claiming redress for some wrong alleged to have
been committed against him/her by another,
where as criminal case is initiated by public
prosecutor who represent the state as a plaintiff
and individual suspect as defendant except
offenses upon complaint.
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 The purpose of initiating and the nature of relief
sought- in civil case ,the relief demanded is mostly
payment of money exceptionally specific
relief(forced/personal performance or deprivation
of liberty for a period not exceeding six months
per Arts.147-150 Civ.Pro.C); where as criminal case
is the concern of public at large and has the
ultimate aim of ensuring the overall peace and
security of the nation as a whole whose result
could be acquittal or conviction(punishment)
The basis of remedial liability is stated in the legal
maxim ” ubi jus ibi remedium” which means where
there is a right , there must be a remedy. 15

 The availability of alternative dispute settlement
mechanism - civil case is subject to negotiation as
stated under law of civil procedure; where as
criminal case is subject to such alternative dispute
resolution mechanism.
1.1.2.The purpose of civ.Procedure Vis-a-vis
Fundamental Procedural rules
The 1965 Civ.Pro. Code does not expressly sets
forth the purpose it aspires to achieve except
under its preamble which states -the desire for
betterment and furtherance of legal rules regarding
the administration of justice.
How ever, there are certain fundamental values 16

and legitimate interest that procedural rules ,in a
legal system , aim to protect and serve a certain
purposes.
Thus ,the purposes of law of procedure in
general and that of civil procedure in particular are
to secure the just(treating the parties to a law suit
equally) ,speedy(decision within a reasonably fair
and quick time for justice delayed –denied,
rushed-crushed)and inexpensive (economically –
compliance with the governing rule)disposition of
cases.
How ever, the indeterminable number and
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complexities of the procedural steps followed in
the litigation process; lack of procedural
transparency; the great uncertainty of the
governing rules and the irreconcilably divergent
inconsistencies in the application of the law are
some of the distinguishing features of our judicial
process.
These resulted in the intolerably sluggish(slow) ,
inefficient ,unpredictable and costly litigation
processes. More over, the pleading practice is both
a torture to write and a torture to read-brings
miscarriage of justice.
The cardinal procedural principles which serve as
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the essential ingredients of justice are:
1. Fair hearing of the suit(impartiality of the
courts)
 The major factors against which the impartiality
of the court is evaluated are:
A. Neutrality of the presiding judge –the judge
must be able to bear an impartial and objective
mind the question in controversy. i.e. he/she
should impart justice without fear or favour-free
from bias.
 Impartiality –Subjective(impartiality of the
judge himself ) or objective(impartiality of the
tribunal/court) 19

 Common sources of bias that should disqualify
a person from acting as a judge:
Personal bias-friendship relationship(personal or
professional) or hostility against either of the
parties or negativity from personal prejudices or
political competition.
Pecuniary Bias/bias as to the subject matter-a
legal maxim: “nemo judex incause sua” –which
means no one should be a judge in his own
case.Solution-withdrawal(Art.33
,Pro.No.1234/2021)or may be removed upon
application by one of the parties(Art.33)
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B.Right to be heard
The governing maxim:”alter am par tem”- hear
the other side-i.e. give notice reasonable and
adequate opportunity to defend him self- No one
should be condemned unheard.
C.Equality of treatment every one is prima-facie
equal before the law-procedural fairness
Parties to a law suit should be treated equality
without discrimination of any sort-race ,political
out look, religion etc..
The fundamental test by which procedural
fairness evaluated are:
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B.Right to be heard
The governing maxim:”alter am par tem”- hear
the other side-i.e. give notice reasonable and
adequate opportunity to defend him self- No one
should be condemned unheard.
C.Equality of treatment every one is prima-facie
equal before the law-procedural fairness
Parties to a law suit should be treated equality
without discrimination of any sort-race ,political
out look, religion etc..
The fundamental test by which procedural
fairness evaluated are:
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I. Equipage equality-equality between the parties
in preparing their respective pleadings,
searching evidences eg.Art.91 Civ.p.c
II. Rule equality-under similar circumstances ,each
party should be subjected to and protected by
similar rules.eg.art 58 Civ.p.c.-representation
allowed for brother must also be applicable for
sister
III. Outcome equality –similar issues ,under same
ground ,should have similar out come.
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I.
2.Public hearing of the suit:- justice must not only
be done but must also be seen being done.
In principle –open court-public hearing-Reason-
Art.12 of FDRE Constitution-Accountability to
secure acceptability and reliability(credibility) of
the judiciary
• Exception-closed(camera.
3.Independence of the judiciary and accountability
of the judge-correlative
I. Judicial independence-consists of :
 Institutional independence-ensured through
legal basis i.e. Declaring it legally through
law(Arts 78 &79 of FDRE Constitution), 24

independence to administer internal affair-free
from interference of executive branch.
 Functional /personal independence-a judge
deciding a case should not act on any order or
instruction of third party.
 Functional independence either internal or
external.
II. Accountability of judges
 independence should not left without restrain,
it must be regulated for unregulated and
unguided power corrupts and is liable to be
abused .Thus, independence should not be
taken as a special privilege of a judge himself. 25

 Independence does not mean and should not
lead to irresponsibility and arbitrariness.
 It should not be manipulated as an incentive for
laziness, corrupt motives ,or for tremendous
degree of discretion so as to end up in ‘the rule
of the judge’.
 Judges are to interpret and implement the law to
the best of his abilities and in accordance with
the dictates of the spirit of the law. Thus, the
judiciary has to be amenable to the law . Judges
are to be held responsible for their decision. i.e.
they are not allowed to act as a free riders.
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 The principle of independence presupposes
the existence of the burden of accountability.
4.Establishment of court of law
 The structure of courts, their hierarchical
relations and their comparable jurisdictions
have to be explicitly constituted by law, and
only courts so established can assume judicial
function .i.e. special or temporary bodies that
do not follow a process prescribed by law , take
away judicial powers from regular courts should
not set up. Thus ,judicial power should be
principally vested in the regular court. But
exceptionally administrative tribunals – 27

constituted by law can be entrusted with quasi –
judicial(delegated) power.
 The reason d’etre for creation of quasi judicial
bodies are:
 To share burden of the case loads of the courts
 Cheaper-less expensive than courts
 Speedy justice
 It can be manned.
 Ad hoc or special courts outside the regular
court system are prohibited.
 Religious or customary courts –whose power is
limited to personal or family matters may be
established or given official recognition. 28

 Art.78(4) of the FDRE constitution ,is said to
have been included and encompass
administrative tribunals such as”
 Labour relation board
 Tax appeal commission
 civil servant tribunals
 Board of privatization agency
 Kebele social courts operating in Addis Ababa,
Diredawa and in regional states seem to be
ambiguous as to their constitutionality in light
of Article 78(4) of FDRE Constitution.
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1.1.3.Rules of Procedure Vis-a-Vis modes of
proceedings
 In the process of arriving at the truth about the
relevant facts and the pertinent laws applied
thereto, the laws of procedural rules in any
country chiefly adopt either the ‘Adversarial’ or
the ‘Inquisitorial’ modes of fact- finding.
1.1.3.1. The Adversarial Mode of Proceeding
 traced to Anglo-Saxon court proceedings and is
the typical feature of English ,USA, Australia and
New Zealand judicial process.
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 the parties themselves (or represented by
advocates) shoulder the burden of initiating,
shaping and fixing the scope of the litigation.
 the system advocates that truth is most likely
to emerge as a bi-product of the vigorous
combat between intensely partisan
advocates.
 The advocates are not supposed, at least as a
matter of fact; to see the resolution of the case
as a question of what might be best for the
society as a whole. Rather, their ultimate goal
is to see the possible disposition of the
controversy in terms of their clients’ best 31

interest-taking a “win-at-all-costs” attitude
 a ‘litigant-driven’ fact-finding process
 judges play a relatively passive role whose
function is limited to regulating the proper
conduct (smooth flow) of process.
 the judge is merely there as an impartial
umpire to see to it that the rules of the game
are evenly and properly observed by the
players.
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1.1.3.2.The inquisitorial Mode of Proceeding
originally tied to the traditional function of a
strong and absolute government, namely the
maintenance of public order and the suppression
of crimes.
chiefly employed in the Continent Europe
(France and Germany …).
Judges play a more active role in the
proceedings than the parties and thus occupy a
centerpiece in the ‘fact-finding’ process as
opposed in contrast to the neutral umpire of the
adversarial judge.
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Hence the prime difference between the two
modes of litigations lies mainly on the degree of
the roles played by the judge vis-à-vis the actual
parties to the case.
The Ethiopian Civil procedure is a hybrid of the
two mode of proceedings.
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Introduction:
Jurisdiction is the power of a court to hear and render a binding
decision. This chapter , thus, deals with the essential elements
that constitute jurisdiction and the effects that the absence of
either or all of them entails on court proceedings, the
identification of appropriate level of courts that should consider
justiciable cases of civil nature. In order to be able to pass a
legitimately binding decision, courts should first of all, have
jurisdiction over the case submitted to them.
Moreover, it also touches upon some of the matters falling outside
the jurisdiction of regular courts; and, touches upon issues related
to transfer of suits and removal of judges form benches.
Furthermore, attributable to the current dual court structure, the
relations between Regional and Federal judicial structures and
mechanisms of resolving jurisdictional conflicts between or among
courts will also be explored.
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Objectives:
By the end of this Chapter, students would be able to:
explain the historical development of Ethiopian judicial system;
understand the nature of the existing judicial structure in Ethiopia;
define what jurisdiction of courts means;
identify the basic elements that set-up jurisdiction;
take appropriate measures in instances wherein jurisdiction is
missing;
Explain the relationship between Regional and Federal courts
describe the types of cases entertained by Federal courts and
State courts;
figure out grounds that could cause the transfer of suits and
factors for the removal of judges;
analyze and determine issues of jurisdictional conflicts;
develop the skill in raising abjection and responses on jurisdiction
 explain the procedural concepts of pendency, priority and
consolidation; 3

2.1. The Ethiopian Judicial System: Past and Present
2.1.1. The Unitary Court Structure: Historical Background
no adequately formally institutionalized system of
administration of justice in Ethiopia until the end of the 19th
century
marked by greatly diversified customary practices and
traditional administrative structures.
Disputes were handled by respected figures; local leaders, tribal
chiefs and community elders resolved controversies amicably
through the age-old customary institutions.
grievances of the discontented parties could further be taken
from the informal local institution to the lowest administrative
authorities-the governors.
The decisions of the governors could also be reviewed upon by
‘Womber-Rasses’ representatives of each provinces in Ethiopia-
and presiding over the central court situated in Addis Ababa.
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appeals from the decisions of the Womber-Rasses would be
submitted to the ‘Afe-Negus’; and, as a final resort, the litigation
would come to an end after having reached the apex of the
judicial structure, i.e.: the Emperor himself-who was considered
as fountain of justice.
before the end of the 19th century, there was no formally
established and systematically institutionalized judicial structure
in Ethiopia.
It was thus only the 1931 ever written Constitution of the
country that could safely be considered as marking the beginning
of a new era in the establishment of the modern judicial system.
This constitution constituted the Supreme Imperial Court and
such other subordinate courts with their respective powers.
Proclamation No 2/1942(the Administration of Justice
Proclamation, Proc., No. 2/1942, Neg., Gaz., Year 1, No. 1) was
enacted. It established a new judicial order in post liberation of Et.
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This Proclamation ,Pro.N0. 2/1942 established six levels of courts :
the Supreme Imperial Court ,
the High Court, The 1st three courts established
the Provincial (Teklay-Gizat) ,
the Awraja –Gizat Court,
 the Woreda-Gizat Court and The remaining subordinate
the Mikitil-Gizat Court . Courts established subsequently
the Mikitil-Woreda Courts and the Teklay-Gizat Courts were later
abolished-thereby, relegating the then judicial structure to the
remaining solely four levels.
Moreover, in the later days, other laws were also enacted-with a
view to strengthening the judicial structure and the administration of
justice in general ,for instance the 1965 Civil Procedure Code-which,
in turn, established four level of Courts:
 the Woreda Guezat Court,
 Awradja Guezat Court,
High Court and Supreme Imperial Court .
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Thus, the Ethiopian judicial system had been strongly unified and
firmly centralized (in the past before the promulgation of the FDRE
Constitution).
2.1.2. The Present Dual Court Structure
After the fall of the unitary Dergue regime, radical change of the
form of the government and the system of administration of justice.
The 1991 Transitional Charter, which was promulgated shortly after
the collapse of the PDRE Government, uprooted the trend in the
country’s constitutional history by marking the establishment of a
new system-as a fore-state of the ethno-linguistic federalism.
The 1995 FDRE Constitution, constituted a federal state structure
whereby powers are divided between the Federal and Regional
Governments.
The FDRE Constitution:
proclaims that judicial power, both at the Federal and State levels is
vested in courts.
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Establishes two sets of courts: one at the Federal and the other at
the State level.
Allows both the Federal and the Regional Governments with their
respective structure of courts-tiered along three layers-the supreme,
the high and the first instance courts-each having distinctive
jurisdictions of their own and different places of sittings.
The Federal Supreme Court sits solely in Addis Ababa, the Federal
High and First Instance Courts sit in Addis Ababa, Dirre-Dawa and in
such other places as may be deemed necessary by the HPR
Otherwise, if and when these Courts are not so established, the
Constitution declares their jurisdiction are delegated to and
exercised by the States’ supreme and high courts, respectively.
The disparity of nomenclature of the courts i.e. the inconsistency
lies with the naming of the States’ courts as between the Federal
Constitution and the practices of the States’ laws ,while the
Constitution refers to as the ‘States First Instance Courts’ the state
laws name them as ‘Woreda Courts’ in the States- unconstitutional -
demanding for a renaming. 8

Recognizes establishment of religious and customary courts by
law
Judicial power both at the Federal and States levels are
exclusively vest on regular courts and institutions so empowered.
Strictly forbids the establishment of special or ad hoc courts-which
deprive of the regular courts of their constitutional power.
Adjudicative bodies /tribunals that are constituted to review
administrative decisions like, the ‘Labour Relation Board’, ‘Tax
Appeal Commission’,’ Civil Service Tribunal’ and the’ Privatization
Agency’ and its ‘Board’ are “legally empowered institutions”.
What about the constitutionality of the so-called Kebele-Social
Courts, Addis Ababa City Courts and the issue of the jurisdiction of
the regular courts and the rules of procedure applying to them ?
9

2.2. Jurisdiction of Courts: Essential Elements
Individual disputes may be resolved either through the
contentious court litigation method or out of court amicable ways.
The existing Ethiopian judicial system has a dual court structure:
one, at the Federal, another, at the States level and, that each
structure has, in turn, three layers of courts with their distinctive
judicial powers.
Once an individual has decided to have his case resolved in a court
of law, what he should, first of all, determine is as to where his case
is to be brought i.e., as to which of the above described courts are
competent enough to handle such a case, and, finally pass a valid and,
hence, an enforceable decision.
Thus, a person can legitimately institute a law suit only in a court so
empowered i.e. one of the fundamental procedural principles
stipulates that courts which entertain disputes must only be the ones
constituted by law. Accordingly, the law which establishes the courts
grants them the power to handle law suits. 10

Therefore, jurisdiction of courts is the power of courts, to hear and
determine a case; thereby, rendering a binding judgement.
2.2.1.Essential Elements of Jurisdiction
There are three essential elements that establish jurisdiction of
courts; namely:
Judicial Jurisdiction,
Material Jurisdiction and
Local Jurisdiction.
2.2.1.1. Judicial Jurisdiction
JJ is the legal competence of the courts of a particular nation or
state to exercise a judicial power i.e., to adjudicate a law suit &render
a judgment binding an individual, or his property involved therein.
The issue of judicial jurisdiction normally arises when there is a
‘foreign element’ in a case appearing before a court of a given state.
A case is said to have involved a foreign element, if either of the
parties is a foreigner to that state or the transaction or property , w/c
is the subject matter of the suit, is occurs or is situated outside of the
territorial boundaries of that state. 11

the primarily question that must be addressed is whether, for
instance, Ethiopia, USA or France, etc, as a state, is legitimately
competent to subject a particular foreigner or his property to its
judicial powers.
A court of a state is held to possess judicial jurisdiction if it has
sufficient contact (also called centre of gravity doctrine or
significant r/ship theory) with:
either the defendant or
property that is involved in the suit.
 judicial jurisdiction has to do with the enforcement of the
judgement of a court against a foreign defendant who does not
usually possess property in the country where the case is heard
and finally determined.
 A court’s judgement of a given country may be enforced in
another country on the basis of bilateral or multilateral treaties.
The need for a concession of reciprocity is also the other factor
in this respect. 12

Alhough , the issue of judicial jurisdiction is, in practice, a
procedural matter, in most countries it is treated as one of private
international law, and the rules governing judicial jurisdiction are
found in the area of private international law.
In Ethiopia case, though the draft document of the 1965 Civil
Procedure Code had included such provisions in its section that
dealt with as issues of private international law, for that portion of
the bill was not approved by the then legislature, it could not
become part of the finally adopted Code.
Hence, one may safely state that there is no, formally speaking,
law in Ethiopia that specifically govern the issues of judicial
jurisdiction. Moreover, though the conditions for granting
permissions to the execution of foreign judgements are put forth
by the Civil Procedure Code, the existence of judicial jurisdiction
with the court that rendered the decision not expressly required
as such.
13

Instead, the Ethiopian courts ordered to, principally, identify the
presence of any international conventions to that effect, or, ensure
reciprocal duties/ commitment from the country in which the
judgement was given. But still, further requirements could also be
gathered by cumulatively reading the pertinent provisions of the
Code of Civil Procedure (See, Arts 485-61).
In spite of the absence of the relevant legal rules on judicial
jurisdiction, cases involving foreign elements have been appearing
before the court right since the early times of the country’s judicial
practices.
In such instances, unless an objection was raised on grounds of
judicial jurisdiction, the courts would assume that the jurisdiction
exists and entertained the case in the usual business of the court.
Otherwise, the grounds would be determined on the basis of the
general legal principles developed by foreign laws and applicable to
the case under consideration.
14

 Hence, on the basis of the nature of the action brought & the
type of the relief sought by the plaintiff, the grounds for exercising
judicial jurisdiction are categorized as:
in Personam (over a person) and
 in Rem (over a thing) jurisdiction.
2.2.1.1.1. Jurisdiction in Personam
An action in Personam is brought against a person, natural or
legal, and seeking a relief against the person of the defendant, i.e.,
the claim is made for an order requiring the defendant to do or
refrain from doing an act. For instance ,a suit filed for damages
(demanding for the payment of compensation) or one for an
injunction (requesting an order prohibiting the defendant from
doing an act) would thus be an in Personam suit; and, the power of
the court in this regard is jurisdiction in Personam.
Thus, a judgement in Personam, although it might concern a res
(the subject-matter), merely determines the rights of the litigants
inter se to the res. 15

On the grounds of the general legal principles, and the usual court
practices, Ethiopian courts are held to assume judicial jurisdiction in
Personam where either of the following requirements are fulfilled:
the defendant is an Ethiopian national or domiciliary; or,
the defendant has consented (expressly or impliedly) to the
exercise of jurisdiction by the Ethiopian court; or,
the act which is the subject matter of the suit occurred or is
situated in Ethiopia.
These factors are optional or alternative grounds. Hence, it is
considered to be sufficient for Ethiopian courts to exercise personal
jurisdiction if one of them is present in a given case.
A.Nationality or Domiciliary of Defendant: Factor that warrant the
Ethiopian courts assume judicial jurisdiction is whether the
defendant is an Ethiopian :
national or
domiciliary.
16

Thus ,a defendant who possesses either of such status is subject
to Ethiopia's judicial jurisdiction even though the transaction which
gave rise to the suit occurred outside of Ethiopia.
In other words, the defendant's status matters; i.e., it is irrelevant
whether the plaintiff is an Ethiopian national or, is domiciled here.
Put differently, if the defendant is not an Ethiopian national or
domiciliary (and not otherwise subject to the Ethiopian courts), the
Ethiopian court cannot assume judicial jurisdiction on him simply
because the plaintiff possesses such a status.
If both parties are Ethiopian nationals, no issue of judicial
jurisdiction –Ethiopian courts would have the power.
Hence, at least, one of the parties, specially the defendant, has to
be a foreigner for a question of judicial jurisdiction to arise.
If both parties are foreigners (and, the transaction has also
occurred abroad), here comes the relevance of domicile (of the
defendant), for an Ethiopian court to exercise judicial jurisdiction i.e
17

i.e.Ethiopian courts can only entertain for instance, a case between a
Kenyan plaintiff and a Sudanese defendant-provided that the latter
is domiciled here.
Pursuant to the FDRE Constitution, and the new proclamation that
repealed and replaced the 1930 citizenship law i.e. Proclamation
No.378/2003 ), birth is the main mode of acquiring Ethiopian
nationality.
By virtue of Art 6 of the FDRE Constitution, an Ethiopian national is
any person of either sex whose-both or either-parent is an
Ethiopian.
Thus, a person born of both Ethiopian parents or an Ethiopian
mother or father will automatically acquire an Ethiopian nationality
without any additional conditions attached therewith.
There is, of course, a procedure (known as naturalization) by
which foreigners may acquire Ethiopian nationality.
18

On the other hand, Ethiopian domiciliary is one who, while not an
Ethiopian national nor has otherwise acquired its nationality, has
established the principal seat of his business and of his interests in
Ethiopia with the intention of residing in here permanently; or, more
realistically, for an indefinite period of time.
Hence, a foreigner who satisfies these conditions of domiciliary
can thus be subjected to the jurisdiction of Ethiopian courts. (See
Arts 183-191 of the Civil Code for rules on domicile).
Just as physical persons are subject to judicial jurisdiction in the
state of their nationality or domicile, legal persons (corporate
bodies) are also subject to the courts of the state which created
them.
Therefore, any association, a company or an NGO that is
established, (registered and hence acquired personality), in
accordance with the pertinent Ethiopian laws, is subject to the
judicial jurisdiction of Ethiopia, even though the transaction on
which the suit is brought occurred elsewhere. 19

Nevertheless, a foreign corporate body (created under the law of
another state and/or situated elsewhere) would normally be
subjected to the Ethiopian judicial jurisdiction with respect to suits
arising out of its activities carried out here-in Ethiopia.(See, Arts
545-549 of the Civil Code)
B.The Doing of an Act: is the second ground that establishes judicial
jurisdiction for Ethiopian courts i.e. in the absence of the first
grounds of judicial jurisdiction-nationality or domiciliary of the
defendant-the second ground that the Ethiopian court should look
for is whether the act, which is the cause of the suit, occurred in
Ethiopia.
In other words, if the subject matter of the suit occurred in
Ethiopia, an Ethiopian court will have judicial jurisdiction-even-
though the defendant is a foreigner or not an Ethiopian domiciliary.
Similarly, an Ethiopian court will have personal jurisdiction over a
foreign defendant on a suit that had been concluded outside of
Ethiopia but was performed here. 20

C.Consent of Parties : Where either of the above mentioned factors
cannot be established, courts are to secure the consent of the
defendant so as to exercise jurisdiction over him. .
Consent may be express or implied.
express if it is orally (verbally) made or written. To this end, the
parties may make their consent part and parcel of the terms of the
contract between them,
consent can be gathered, by implication, from the behaviour of
the defendant. For instance , a defendant sued at Ethiopian court
but failed to object.Such an objection is, as a rule, deemed to have
been waived if not raised at the earliest possible opportunity i.e.
before proceeding with the trial/merits of the suit (See, Art 244(2) &
(3) of the Cv Pr C)
2.2.1.1.2. Jurisdiction in Rem
‘in rem’ – a latin term which means, ‘against the thing/property’
An ‘action in rem’ is, thus, one, essentially directed against
property and the relief sought pertains to the property itself-without
21

-reference to the title of individual claims or specific person as such.
Besides, the plaintiff does not seek such an order as binding the
person of the defendant although an individual may be named as a
defendant in the proceeding.
A judgement in rem is a judgement declaratory of the status of
some subject-matter, whether this is a person or a thing i.e. a
judgement in rem settles the destiny of the res (property) itself (or
of some interest therein) not merely as between the parties
themselves; but, as against all whom it might concern or, i.e. ‘the
entire world’; and, thus, binds all persons claiming an interest in the
property inconsistence with the judgement-even though
pronounced in their absence
Thus, an ‘in rem’ jurisdiction is the power of the court to pass a
valid judgement against the property (movable or immovable;
tangible or intangible) of the parties and not as such against the
person of the parties themselves.
22

 Moreover, such an action is established in the courts of the place
where the thing i.e. the subject matter of the suit-is located.
Consequently, it will only be the courts of the state wherein the
property is situated that can exercise in rem jurisdiction. Put another
way, the ‘situs of property’, has jurisdiction over the case whereby
the relief is sought with respect to the property itself.
Exercise
What is the nature of a decree establishing or dissolving a
marriage (i.e., is it a judgement in rem or in Personam? Explain.
The discussion continues..................
23

2.2.2. Material /Subject-Matter Jurisdiction
MJ is the power of a particular court of a state to determine the
type or kind of a dispute involved in a case i.e. which level of court
vertically is competent court from among the judicial structure in
the hierarchy of courts in the country.
Hierarchy /level of courts in FDRE: FIC,FHC,FSC
The issue of material jurisdiction pertain to which level of courts in
Ethiopia has competence to entertain a given case?
There are two broad criteria commonly employed to determine
the material jurisdiction of courts in Ethiopia. These are:
‘Subject Matter’ jurisdiction ,and
‘Pecuniary’ jurisdiction.
2.2.2.1.Subject Matter Jurisdiction: depends on the ‘type’ of the
case, i.e. involves the making of an identification of matters
falling within and outside the regular court structure, and the
drawing of a further distinction between ‘Federal’ subject matter
and ‘State’ subject matter. 24

2.2.2.1.1.Matters outside the Jurisdiction of Courts
 Matters are:
Justiciable or
Non justifiable
As one of the branch of the government, courts are given the
power to decide cases and settle disputes in accordance with the
law.i.e .only justifiable matters -as inclusive of all cases unless the
law provides otherwise. (Art 37 of the FDRE Constitution).
Regular courts has to make sure that the case instituted therein
is not one of the nature made to fall under other tribunals-
entrusted with delegated, quasi-judicial power-so as to decide on
some conflicts related to administrative activities and functions of
the government.
In such cases courts will not have material jurisdiction on
the case and, hence, cannot render a validly enforceable
decision.
25

Administrative tribunals established in Ethiopia are :
the Tax Appeal Commission-sees cases related to tax complaints;
the Civil Service Tribunal-entertains grievances concerning civil
servants; and
the Labour Relations Board-competent to deal with employee-
employer (labour) disputes.
In this case , party may not directly file his case to a regular court
from the decision of the tribunals before exhausting all the available
remedies in that system.
But an appeal is allowed to be taken to the regular court from the
decision of these tribunals; particularly on issues of law.
Some personal and family matters involving Muslims (such as
issues of marriage; divorce; maintenance; succession, etc.)
may also fall outside the jurisdiction of regular courts.
Sharia Courts (though their jurisdiction is entirely consensual) are
empowered, pursuant to Proc No 188/99) to see such family
matters. 26

 Accordingly, when and if both Muslim parties agree to get their
case decided by Sharia Courts, and referred it thereto, the sharia
Court will pass a final decision which cannot be reviewed and hence
falls outside the jurisdiction of the regular courts.
Likewise, disputes settled by arbitration or compromise are also
outside the ambit of the regular courts.
Certain matters of purely political or administrative nature are also
known as non-justiciable & cannot be entertained by regular court.
2.2.2.1.2.Federal Vs Regional Subject-Matter Distinction
In a harmony with the theory of ‘federalism',the FDRE
Constitution defines the powers and functions of both the Federal
and Regional governments.
The power-division between the Federal and Regional
governments, simultaneously divides, or, at least, helps in fixing the
specific powers of the courts of the two governments.
In this respect, the approach taken by the Constitution is listing
down, exhaustively, the powers of the Federal 27

Government; and, then, leaving out all the residual powers that are
not expressly granted to the Federal Government-to the Regional
Governments.
Art 80(1) FDRE Constitution provides that the Federal Supreme
Court has the final authority on Federal matters.
Likewise Art 80(2) FDREC, stipulates that Regional Supreme Courts
shall have the final authority, and, hence, gives final decision on
regional matters.
Pursuant to Proc. No 1234/2021,the division of judicial power to
determine material /subject-matter jurisdiction between the
Federal government & Regional government is based on some
parameters. These are:
the parties- (Art.5(1)(f));
the laws-cases based on FDRE Constitution & Federal laws(
The place-(Art.5(1)(h))
the nature/type of the case-(Art.5(1)(a,b,c,d,g,i,k,l,m,n,o etc))
28

Accordingly, the subject matter jurisdiction of the federal courts
are stipulated under Art.5(1)(a-p) of proclamation No.1234/2021:
Cases of private international law, (Art.5(1)(a));
Application regarding execution of foreign judgement,
(Art.5(1)(b));
Matters of nationality, (Art.5(1)(c));
Issues of bankruptcy, (Art.5(1)(d))
Cases of international agreement or treaty to which Ethiopia is a
party, (Art.5(1)(e));
Cases to which a federal organ is a party, (Art.5(1)(f));
cases involving property of federal government, (Art.5(1)(g));
cases arising between persons permanently residing in different
regions, regions &Addis Ababa city , regions & Dire-Dawa, Dire-
Dawa or Addis Ababa(Art.5(1)(h))
Cases involving liability of officials or employees of the federal
government in connection with their official duties (Art.5(1)(i))
cases in which foreigner is a plaintiff or a defendant, (Art.5(1)(j);;29

cases involving business organization and associations registered
with or established by federal government organ (Art.5(1)(k));
cases involving negotiable instruments, (Art.5(1)(l));
Cases arising out of patent, literary and artistic ,ownership rights,
(Art.5(1)(m));
Cases involving insurance policy or contracts , (Art.5(1)(n))
Application for Habeas corpus, (Art.5(1)(o));
Also read (Art.5(1)(p)) &(Art.5(1)(q))
In sum, therefore, the laws, parties, the place and type of the suit
are general distinguishing factors that determine cases falling within
the jurisdiction of the Federal Courts.
State laws (laws that are proclaimed by the legislative bodies of
the Regional States-on ‘residual powers’ or remaining areas.)
Thus, a claim which is based on State law would be within the
subject matter of the State, and under the jurisdiction of state
courts.
30

However , there are instances whereby cases arising under State
Laws be regarded as Federal subject matter. These are:
1.Where the parties to the litigation are those listed under Art.
5(1)(h) of Proc No 1234/2021
2.Cases arising between persons permanently residing in different
regions, regions &Addis Ababa city , regions & Dire-Dawa, Dire-
Dawa or Addis Ababa
3.Cases arising in Addis Ababa or Dire Dawa (See, Art 80 of the FDRE
Constitution and Proc No 1234/2021 i.e.
Arts 11(1) (b) -civil cases arising in Addis Ababa and Dire dawa &
Art.14(2)-without prejudice to judicial power vested in other
organs by law, other civil cases arising in Addis Ababa &Dire Dawa]
In sum, material jurisdiction is one of the three basic requirements
of jurisdiction and has two aspects :
subject matter jurisdiction; and
pecuniary jurisdiction.
31

The subject matter aspect defines the type of the case as between
Federal or State subject matters.
As per Proclamation No 1234/2021,Federal Courts have
jurisdiction where :
cases involving a foreign national or
one of the parties to the suit is a permanent residents of different
Regional States, or
one of the parties is a Federal Government organ or official.
In principle, State subject matter is a matter that arises on the
basis of State Law.
However, there are conditions where issues raised on the basis of
State Law may be categorized under the jurisdiction of Federal
Courts. In such a case, State Courts will handle the Federal case
through delegation.
In a state where the Federal High Court is not established, the
States Supreme Courts are delegated to see Federal High Court cases
while the States High Courts are delegated to see FIC cases. 32

The pecuniary aspect of material jurisdiction is to be determined
on the grounds of the amount of controversy or the pecuniary
amount involved in the case. i.e. the identification of the
appropriate level of court from among the Federal, First Instance or
High Courts.
2.2.2.2.Jurisdictional Limits of Courts: Pecuniary Amount Vs Types
of Cases
Material jurisdiction is the power of a court to see the kind of
controversy/dispute involved in a law-suit.
The jurisdictional division, in this regard, is primarily meant to
apportion the judicial business among the various levels of courts in
the hierarchy-on the bases of the amount of money involved in the
proceeding or the nature/complexity of the case.
In fact, both the Civil Procedure Code and the Federal Courts
Establishment Proclamation, Proc No 1234/2021, deal with the
division of material jurisdiction among the three levels of courts.
33

While the rules that are provided under Proc No 1234/21
determine the jurisdictional limits of the Federal Courts, the ones
stipulated in the Civil Procedure Code establish the jurisdictional
limits of the State Courts where state has not yet enacted their own
court establishment proclamation.
2.2.2.2.1.Pecuniary Amount :Federal Vs States’ Courts
Jurisdictional Limit
A. Federal Courts: General Vs Limited Jurisdiction
with respect to types of cases –Civil cases that fall under the
Federal courts jurisdiction are stipulated under Art.3 & 5 of
proc.No.1234/2021 :
Civil Cases that fall under the Federal Court Jurisdiction pursuant
to Art.3 Proc.1234/2021
Cases arising under the FDRE Constitution, Federal Laws and
international treaties accepted and ratified by Ethiopia,
PParties specified in Federal Laws ,
places specified in the FDRE Constitution or by Federal Laws . 34

Civil Cases that fall under the jurisdiction of Federal Courts
pursuant to Art 5 -proc.1234/2021 are:
Cases of private international laws,
Application regarding execution of foreign judgement,
Matters of nationality,
Issues in relation to bankruptcy,
Cases to which a Federal government organ is a party,
Cases involving the property of a Federal Government,
Cases arising between persons permanently residing in different
regions ,regions and Addis Ababa ,regions and Dire Dawa ,Addis
Ababa or Dire Dawa,
Cases of involving the liability of officials or employee of the
Federal government in connection with their official duties,
Cases in which foreigner is plaintiff or defendant,
Cases involving business organizations and associations registered
with or established by federal government organs,
Cases involving negotiable instruments, 35

Cases arising out of patent , literary & artistic ownership rights,
Cases involving insurance policy,
Application for habeas corpus,
Money Contract and loan with exception to Art.5(1)(p))-Addis
Ababa City Court .
 The civil cases that fall under the Federal Courts Jurisdiction as
provided under Arts.3&5 of proc.No.1234/2021 are treated as
those that fall under the jurisdiction of the Federal High
Court(Art.11 ) First Instance (Art. 14).
 The two grounds the Proclamation employed to determine the
jurisdictional limit of the Federal Courts are:
the amount of money and
the type of the case.
Accordingly, Federal High Court First Instance jurisdiction- are
stipulated under (Art.11(1)(a-b)+Art.11(2)(a-c),Art.11(3),Art.11(4):
With respect to the amount of money- civil cases which involve an
amount in excess of Birr 10,000,000.00–Art.11(1) pro.1234/2021 36

Federal First Instance Court First Instance Jurisdiction(Art. 14(1)
with respect to the amount of money
civil cases which involve an amount not in excess of Birr
10,000,000.00, (ten million birr)
with respect of types of cases
not withstanding Art.11 of this proc., Federal Courts Civil cases
submitted pursuant to Art.3 & 5 of proc.No.1234/2021,
without prejudice to judicial power vested in other organs Civil
cases arising in the cities of Addis Ababa or Dire Dawa.
 Thus,the amount of money a case involves-which is to be gathered,
from the plaintiff’s suit-determines where a case should be filed.
On the other hand , the type of the case aspect exists where cases
that cannot be valued in monetary terms are to be entertained either
by Federal High Court of Federal First Instance court.
Such cases are cases of private international law nationality, the
enforcement of foreign judgements, change of venue, issues in
relation to bankruptcy ; 37

cases of which foreign ambassadors , consuls, representative of
international organizations ,foreign states are held liable(Art.5(1)(a-
e) are within the jurisdiction of the Federal High Court.
Others fall under the jurisdiction of Federal First Instance
Court(Art.5(1)(f-p).
B. States Courts: Original (FIJ) Vs Appellate Jurisdiction
Inconsistency b/n the rules of the Civil Procedure Code on material
jurisdiction & with those of the proclamation, and, hence,
considered to be inapplicable.
The jurisdictional limits of States Courts are determined based on
the provisions of Art 13 Civ Pr C in states where state court
establishment has not yet enacted as follows:
Accordingly ,the Woreda courts will have first instance Jurisdiction
over claims that involve up to 5,000 Birr for movable properties, and
up to 10,000 Birr for immovable properties;
State High Courts also handle cases that involve claims exceeding
5,000 Birr for movables and exceeding Birr 10,000 for immovable pp
38

However ,State Supreme Courts do not have first instance or
original jurisdiction as per the provision of the 1965 Ethiopian Civil
Procedure.
For those regions who has enacted their own court establishment
,for instance Oromia(Megelta Oroma,Proc.No.216/2021),Amhara
(Zekerehigi proc.No.169/2010), the jurisdiction of courts are based
on types of cases and pecuniary amount as stipulated under their
respective court establishment proclamation.
(Please access those regional proclamations and compare them with
the Federal Court establishment proclamation ,Proc.No.1234/2021.)
C. Determination of Amount in Controversy
As a rule, the plaintiff is expected to specifically describe the
monetary value or type of the case with a view to show that the
court has jurisdiction over the case.
Art. 16(2) of the 1965 Civ PrC provide that, in deciding whether it
has pecuniary jurisdiction, the court shall have regard to the amount
of claim stated in the statement of claim. 39

(Arts. 226-228 of the 1965 Ethiopian Civil Procedure Code governs
the amount to be stated in the statement of claim.
Pursuant to Art 226 CivPrC, a plaintiff seeking for a recovery of
money should indicate the precise amount in his statement of claim;
or the estimated amount of the case.
Besides, if a plaintiff is seeking the recovery of a specific thing,
he/she has to indicate the actual value of the thing in the statement
of claim.
The plaintiff is required to estimate the value of the thing he is
claiming to identify the court that has material jurisdiction.
2.2.2.2.2.Type of Cases: Exclusive Jurisdiction
The jurisdictional limits of courts are determined either on the
monetary value or the nature of the case.
However, there are instances whereby jurisdiction is vested in a
court irrespective of those parameters on the basis of the sensitivity
or complexity of cases.
40

Exclusive jurisdiction is a jurisdiction given to the court irrespective
of the pecuniary amount involved therein.
For instance, as per Art 11 (2) Pro.No 1234/21 , the Federal High
Court shall have exclusive First Instance Jurisdiction over issues
related with cases of
private international law, or
Nationality, or
Application regarding the enforcements of foreign judgment, or
Applications for change of venue, from one FIC to another or to
itself, in accordance with the law.
Put differently, the FHC has exclusive jurisdiction in all cases
mentioned under Art 11(2) of Proclamation No 1234/21.
2.2.3. Local Jurisdiction
What does local Jurisdiction mean?
LJ is an area where a case shall be tried i.e., take us to the specific
court to which a law-suit is to be submitted; and, in effect allocate cases among the
same level of courts (say, the Federal First Instance Courts) within a given court
structure.) 41

2.2.3.1.Purpose of the rules on local jurisdiction
to primarily enable a party to refer the case to a particular court
convenient for the parties and their witnesses, particularly, the
defendant.
To curb inconveniences which may arise from certain purposely
calculated ‘forum-shopping tendencies of some litigants’
(attempting to file a law suit in or have it transferred to the
jurisdiction most favourable to the party filling the suit’
To serve the main purpose of Civil Procedure(Speed
justice,fairness & economic disposition of cases)
2.2.3.2. The Basic Place of Local Jurisdiction
Art 19(1) Civ.Pro.Cd stipulates that the basic place of local
jurisdiction lies with “…the court of the place where the defendant
actually resides or carries on business or personally works for gain.”
A. “…actually resides…”
In a similar fashion, in our law, the issue of residence is treated
very flexibly. 42

Accordingly, every individual is considered to have a residence-
even if it has to finally be the place-where he is at a specific moment.
However, as a matter of fact, a person may happen to be at
different places at different times; wherein there might arise a need
to determine as to which of these places should be taken for the
purpose and within the meaning of Art 19.
One way of looking at the point would be observing the length of
time one might stay at a place. And, if it is observed that one spends
almost equal amount of time at all the places; then, all of them may
reasonably be considered as the residence of the person concerned.
Though such interpretation of the issue may justifiably be
considered sound, in reality, however, the matter does not commonly
happen that way.
Cognizant of those instances, our Civil Code has envisioned
resolving the matter by characterizing one of those places as a
‘principal’ residence, and considering all the remaining as ‘secondary’
ones. 43

In the classification, thus, it might be considered that the primary
residence is one in which someone stays more normally or more
frequently, or for the longest period.
To this end , a person’s primary residence would, thus, be the place
where he actually resides for purposes of local jurisdiction-which
probably is the place where it is convenient for one to defend a suit
brought against him.
Thus, on the bases of such interpretation, if, for instance, one has a
house in Addis Ababa, where he spends most of his time, but,
regularly goes to Adama to visit his parents every weekend, the
former would, thus, be deemed, within the meaning of Art 19, the
place where he resides.
B.“…carries on business…”
where a person, while living in a place, conducts business in a
different place through an agent, in such a case, he is subject to suits
at the place where the agent runs the business on his behalf. (See
Art.58 (b) of Civ.P.C) 44

In a case involving joint defendants, suits may be instituted in the
court of any of the places where any of the defendants resides or
carries on business or personally works for gain.
In a situation where the defendant does not reside, or, carry on
business or work for gain in Ethiopia , Art 20(1) provides that the suit
may be instituted in any court in Ethiopia where the plaintiff prefers;
unless the suit relates to an immovable property of the defendant; in
which case it is the court of the place where the property is located.
With respect to the rules regarding the local jurisdiction of suits
against legal persons , the civil Procedure code provides that suits
against a business organization are to be instituted at the place
where the head office or the branch office against which the suit is
made is situated.
The Ethiopian Civil Code uses the term ‘body corporate’ to refer to
all kinds of legal persons including associations and business
organizations.
45

 Nevertheless, the ‘legal persons’, mentioned under Art 22(2) are
somewhat different from those described under Art 22(1).
While the body corporate or legal persons stated under Art 22(1)
are basically established to make profits; the ones under Art 22(2)
are formed for non-profit purposes.
Thus, when a suit is instituted against such legal persons, it may be
brought at the place where the legal person was formed or at the
place where the law requires it to be registered. However, the place
of formation and registration would usually be one and the same.
As per Article 21 Cv Pro Code, local jurisdiction for cases
instituted against the Government gives regard to the plaintiff’s
convenience .i.e., the plaintiff’s residence or work place is
taken as a base for determining local jurisdiction.
The justification for such stipulation could be the fact that the
Government, as a defendant, can suitably defend itself every
wherein the country.
46

2.2.3.2.1. Suits Regarding Contracts
Article 24 provides four mutually exclusive rules on suits regarding
contracts.
Generally, there are four types of contracts, which are categorized
for the purpose of determining local jurisdiction. These are:
Contracts generally,
Contracts of carriage,
Contracts of Insurance,
Contracts of pledge, deposit, or bailment.
A. Suits Regarding Contracts in General
Pursuant to Art 24(1), suits arising from contracts, in general, may
be instituted at the place where the :contract was made or executed
unless some other place is mentioned in the contract-in the
discretion of the plaintiff.
This indicates that the place of local jurisdiction of contracts of any
type (other than the remaining three namely, contracts of carriage,
insurance, pledge, deposit or bailment) would, thus, be the place
47

2.2.3.2.1. Suits Regarding Contracts
Article 24 provides four mutually exclusive rules on suits regarding
contracts.
Generally, there are four types of contracts, which are categorized
for the purpose of determining local jurisdiction. These are:
Contracts generally,
Contracts of carriage,
Contracts of Insurance,
Contracts of pledge, deposit, or bailment.
A. Suits Regarding Contracts in General
Pursuant to Art 24(1), suits arising from contracts, in general, may
be instituted at the place where the :contract was made or executed
unless some other place is mentioned in the contract-in the discretion
of the plaintiff.
This indicates that the place of local jurisdiction of contracts of any
type (other than the remaining three namely, contracts of carriage,
insurance, pledge, deposit or bailment) would, thus, be the place
where the contract was made or was to be executed. 48

 In addition, a place where the defendant resides, works for gain or
carries on business,( Art 19 Civ pro Code),except when agreed in the
contract that, law-suits arising there from will be brought in another
place, then the plaintiff has to institute the action in such specified
place.
B.Suits regarding contracts of carriage
There are two types of suits regarding contracts of carriage i.e.,
carriage by sea and carriage by air.
In each case, suits will be instituted in accordance with their
respective laws. Accordingly, while suits regarding contracts of
carriage by sea are instituted based on the provisions of the
Maritime Code, the Commercial Code will determine suits regarding
contracts of carriage by air.
Art.208 of the Maritime Code, suits involving contracts of carriage
by sea are to be instituted at the court sitting at the port of arrival of
the good whereas, suits concerning contracts of carriage by air are to
be instituted according to Art 647 (1)of the Commercial Code i.e.,. 49

i.e.in the discretion of the plaintiff either before the court of the
place where the carrier is domiciled ,has his principle place of
business or has an agent who made the contract or before the court
of the place of destination.
C. Suits regarding Contract of Insurance
 may be instituted in the court of the place where the head office
of the insurance company is situated or registered or where the
object insured is situated. (See to Art. 24(3) CivPC.
D. Suits Regarding Pledge, Deposit or Bailment
Suits concerning pledges, deposits and bailment are instituted in
the court of the place where the property is located.
E. Suits Involving Immovable Property
 Art.25 of CivPC provides that suits involving immovable property
must be instituted at the place where the immovable property exists.
Accordingly, the following suits should only be instituted in the
court of the place where the immovable property is situated:
Suits for the recovery of immovable property with or without rent or menses
profits;
50

Suits for partition;
Suits for determination of any right to or interest in immovable
property; and
Suits for compensation for wrong to immovable property.
The reasons for the rule are:
Such property cannot be transferred from place to place; it will be
difficult for a court other than the court where the property is
situated to view if it finds it necessary.
In cases where dispute is on boundary matters, that may
necessitate measurement of the boundary, or essential document
about the property are found in the place where the property exists.
Where the case is dependant upon the testimony of witnesses,
such witnesses probably reside at the place where the immovable is
situated. Therefore, such suits must be instituted at the situs and not
elsewhere.i.e.instituted in the court of the place where the property
is situated.
51

F.Suits for Wrong Done to Persons or Movable Property
As per Art 27(1), such suits may be instituted in the court of the
place where the wrong was done or in accordance with the Art 19.
G.Suits Regarding Successions
Suits regarding succession, which is being liquidated, shall be
instituted in the court of the place where the succession was
opened.
H.Suits upon Several Causes of Action
Where a suit is based upon several causes of action arising in
deferent places, the suit may be instituted in any court that has
jurisdiction over one of the causes of action.
However, it is important to make note of the fact that the rule on
joinder of causes of action is subject to Article 25.i.e., the plaintiff is
not allowed to join suits involving immovable property where the
property is situated within the local jurisdiction of different court.
52

2.2.3.3. Change of Venue (Transfer of Suit) and Removal of Judges
Where a place of local jurisdictions, may not be convenient for
either or all of the litigating parties for certain reasonable grounds,
there are way outs to such problem:
transfer of suits, or,
change of forum, and
removal of judges.
As a general rule, a case should be instituted in a court that has
jurisdiction over it. In other words, a case which is filed in a court
that lacks jurisdiction shall be rejected.
 As per Art 31Civ.Pro.Co,, the three grounds that justify transfer of
suits are:.
when there is an allegation that a fair and impartial trial cannot be
made in the court where the suit was instituted due to impartiality
of a court -one of the fundamental procedural principles; and, hence,
a court considering a case must be impartial in the process.
53

where a party contends that the court in which the case is pending
cannot properly handle the proceeding since the case involves some
question of law of unusual difficulty.i.e., the case is very problematic
and it may give rise to some complicated issues of law which cannot
be resolved by the court treating it.
where the court entertaining the case is found to be inconvenient
to the party so demanding-‘forum non-convenient’-inconvenient
forum.i.e.,a court which is holding a case is considered to be ‘forum
non-convenient’ if it is found to be insurmountable for, particularly,
the defendant to gather relevant evidences so as to sufficiently
defend himself; and, exposes him to incur unreasonably high costs to
pursue the case and to bring his witnesses to the court.
As the rule on the transfer of suits is an exception to the general
principle, narrow interpretation should be adopted only when the
need arises.
On the other hand, a judge may withdraw or be removed from a
bench essentially to achieve impartiality of the court.` 54

Unlike the transfer of suits, reasons that may lead to the removal
or withdrawal of judges from a bench are listed down by Proc No
1234/2021 i.e.,pursuant to Art 33 of the Proclamation, if the judge:
is related to one of the parties or the advocate thereof by
consanguinity ; or
the dispute relates to a case for whom the judge act/s/ed as a tutor
or legal representative or advocate to one of the disputant party; or,
he has acted as judge or mediator or a arbitrator in connection
with the case or the subject matter of the dispute .However
,exceptionally ,this limitation is not applicable where the judge has
previously acted as a judge of the lower courts or appellate court in
the process of remand;
he has a pending case somewhere else with a party or advocate
thereof; he shall withdraw as soon as he aware of those issues.
other reasons other than listed under Art.33(1)(a-d)i.e. the
reasons mentioned there are not exhaustive and any other sufficient
reasons may be added to the list. 55

2.2.3.3.Conflicts of Jurisdiction: Priority,Pendency & Consolidation
of Cases
There is a possibility for conflicts of jurisdiction to emerge between
courts, for instance, the Federal and State Courts; or, within a single
judicial structure between courts of the Federal or States’ judicial
structure-where a court alleges that the matter falls within its
jurisdiction while the other contends that it has the competence over
the same case.
The power to determine on such conflict of jurisdiction is
conferred upon the Federal Supreme Court.
The same rule applies in instances where two or more courts
dismiss a case on the ground that it does not fall within their
respective jurisdiction.
As a rule, a suit arising from a single cause of action may not be
instituted and/or tried by more than one court at a time. This is
basically meant to avoid the possibility of inconsistent judgements
that may be rendered on a single case; thereby, making its
enforceability practically impossible.
56

However, this may sometimes happen where, for instance,
parties might have filed separate suits that actually involve the
same claim.
it may arise due to the fact that there could be a possibility for two
or more courts to assume jurisdiction over the same cause of action.
It would thus be such instances that could give rise to the problem
of conflict of jurisdiction.
With a view to resolving problems resulting from such
circumstances, the Civil Procedure Code treats the matter through
the rules of priority, pendency and consolidation
A. Priority
This arises when a plaintiff institutes two or more suits on the
same cause of action in different courts. This will result in the
harassment of the defendant to defend his case in both areas;
the two courts could give inconsistent judgments;
 To avoid this problem, the rule of priority is provided under Art.
7CivPC. 57

Article 7 Priority
1)One&the same civil suit may not be instituted in more than one civil
court.
2)Where a suit may be instituted in anyone of several courts, the
court in which the statement of claim was first filed should have
jurisdiction and the suit shall be pending in such court.
Thus , as per 7 Civ.Pro.Co, the rule of priority takes into account
the time of submission of the case to a court of law-whereby, the
court in which the suit is filed first will have priority to consider the
case; and, consequently, the second file in the other court shall thus
be dismissed
B. Pendency
if, while a suit is pending in a court, another suit is also filed in
another court over the same cause, that would give rise to the
problem of pendency, and serve as one of the grounds for
preliminary objection as per Art 244(2) Civ Pro Code, whereby a
party may oppose the second suit. 58

when the court is aware that another similar case is already
instituted in another court between the same parties, it will dismiss
the suit or it may direct the parties to apply for consolidation.
However, that Ethiopian court is not prevented from entertaining a
case that is already pending in a foreign court. (See, Art. 7 of the Cv.
Pr. Cd)
C. Consolidation of Suits
is a situation where the claims of both parties are separate while
the matter in issue in one suit is closely related to a suit pending in
another court.
Such instance may happen, for instance, in a suit for recovery of a
property by one claiming a right to possession and a suit by the
possessor claiming that the plaintiff in the other action has
committed a trespass to the same property.
In both cases, the issue is the same: who is entitled to the
property?
59

In such a situation, either party can make an application to a higher
court that the cases be consolidated for trial under Art 11-whereby
the higher court will direct one of the subordinate courts to try the
case.
Consolidation is thus a procedure that is applied when two or
more suits pending in different courts or the same court and
between the same parties give rise to similar issues and are to be
decided in different courts.
In other words, where two or more suits which involve the same
parties and similar issues in different courts or where there is a
question of pendency, then, both suits will be consolidated under the
procedure of consolidation.
60

Exercise 2:Carefully read the following case and answer the
questions that follow.
#Case
Zemzem an Ethiopian went to Saudi Arabia and was working there in
a Restaurant for five years. Then she came back to Ethiopia. One day
she saw her Saudi employer in Addis Ababa while he was a tour. She
immediately filed a civil suit against her Saudi employer claiming Birr
1,000,000. She said that her employer did not pay her a five-year
wages which amounts to be Br. 1,000,000.
#Questions
1.Can Zemzem sue the Saudi in Ethiopia? If yes,which court has
jurisdiction?
2.If you were the lawyer of Zemzem what would you advise her?
3.If you were the lawyer for the Saudi,what objections would you
raise?
4What would be your ruling if you were the judge?
61

Chapter 3:Parties to & Dimension of Suits
Introduction:
Every person is not entitled to be a party in a particular suit. This
in turn implies that the civil procedure code governs the situations
where a person could be a party to a suit. In short, rules of the civil
procedure code provide who could be a party to a suit and who
could not .Thus,this chapter deals with who could be a real party in
interest, representative suits, joinder of parties,joinder of cause of
action, third party practice and the provisional remedies.
Objectives:
By the end of this Chapter, students would be able to:
Relate the substantive and the procedural law to identify the real
party in interest.
Identify who can be a plaintiff and who can be a defendant.
Apply the procedure in adding or substituting parties in interest in
lieu of the wrong ones.
Identify who can represent who in a civil action. 1

3.1. Parties to a Civil Suit: General Requirements
At court of First Instance Jurisdiction , parties to a civil suit are
called plaintiff and defendant.
At Appellate Jurisdiction, parties to a suit are called appellant
and respondent.
Plaintiff is a party who makes an allegation and initiates
proceedings in a court of law; whereas, defendant is a person
subject to a claim, i.e., a party against whom a claim is filed.
Requirements to be a party in a civil dispute:
Capacity -all parties participating in a civil suit should have
capacity as per Art.33(1) Civ,Pc
Capacity is the power to perform juridical act. Being a party to a
suit is one of the juridical acts. Hence, capacity to sue or be sued
refers to an individual’s ability to represent his interest in a law-
suit without the assistance of another.
2

This rule reflects rules concerning certain categories of
persons who are deemed to lack the personal qualifications
necessary to litigate.Hence, incapable persons cannot be parties to
a suit, and, thus, they cannot sue or be sued in their own names (Art.
33(1))
The rule with respect to capacity to be a party to a civil suit is
derived from the rule on capacity to perform juridical acts in general.
Every person is presumed to have capacity to perform all juridical
acts unless provided otherwise by law. (Art.192 CC)
Incapacity is divided into two:
General sources of incapacity (Art.193CC)- based on physical or
physio-psychological condition eg. Minors , insane and infirm persons
and persons subject to criminal sentence and deprived of some of
their civil rights.
Special incapacity: incapacity is due to the status or special
function of a person. Eg , agents.
3

Unless the law declares persons as incapable, every person
is presumed to possess capacity to perform juridical acts. Thus,
every person can be a party to a civil suit unless he falls in
either of the categories of incapable persons.
Incapable persons cannot sue or be sued in their own names.
For example, a person below 18 years of age is incapable and
may not sue or be sued in his own name, since he is
considered to be not mature enough to handle his case and
pursue his right. Their legal representatives shall represent
them.
 If one of the parties is found to be an incapable person, the
court can, by its own motion or by the application of another
party, suspend the litigation until a proper representation is
made in accordance with the relevant provisions of the Civil
Code.(Art.34/2 Civ,Pc )
4

Incapacity is one of the grounds of preliminary objection specified
under Article 244(2) of the Civil Procedure Code.
A person under incapacity does not qualify to act in the
proceedings. His organs of protection represent him.
Capacity applies to all parties taking part in a suit, plaintiff,
defendant, intervener, etc.
3.2. Party Plaintiff and Party Defendant
3.2.1. Requirements to be Party Plaintiff
to possess capacity to perform juridical acts in general.
to have vested interest(Art.33(2)Civ.Pr.C)-a person must be
the real party in interest with regard to the particular claim or
allegation he brings to a court of law against another party. i.e.
the named plaintiff should possess the right required to be
enforced under the governing substantive law.
As per Art. 33(2) Civ .P. c, no person may be a plaintiff unless he has
a vested interest in the subject matter of the suit.
5

Justification to attach this requirement to party plaintiff:
a civil suit concerns individual interest/ right.
to avoid defendant facing two suits over a single cause of action.
In all cases plaintiffs are expected to indicate a cause of action in
their statement of claim as per Arts 222 and 231 Civ.P.C .
Effects of Lack of Vested Interest
a ground of preliminary objection pursuant to 244(2) (d) Civ,pc.-
non qualification-or addition of a party as a plaintiff is ordered by
court as per Art. 40(1) Civ,pr,c.
Without relying on the objection of a defendant, the court may by
its own initiation order the substitution or addition of party plaintiff
by looking at a claim made by wrong plaintiff.
If the defendant fails to raise objection on the ground of lack of
vested interest and a decision is made for a party without vested
interest, the defendant cannot object to a second suit made by a real
party with interest.
6

What he or she should do in such case is to satisfy the claim of the
real party with a vested interest and bring a suit against the other
party on the basis of the provisions of the law of unlawful
enrichment to recover what he has already paid for him.
recover what he has already paid for him.
3.2.2. Requirements to be a Party Defendant
Capacity
Allegation
To be a defendant, there must be an allegation made against a
person.
Pursuant to Art. 33(3) Civ.pr.c.,no person may be a defendant unless
the plaintiff alleges some claim against him”. Put differently, a person
sued must be the one responsible for the wrongs committed and
claims arising there from.
Thus, a plaintiff should state the claim he is demanding against
defendant.To this end, Art.224 Civ.Pr.c requires that the statement of
claim shall state specific relief that the plaintiff claims.
7

The suit must show relations between parties and wrongs done to
plaintiff and claims made by him.
3.3. Representation in Civil Suits: Types and Requirements
Representative suit is a suit in which others represent real parties
to a suit. As per Art.65 Civ.Pr.Code, parties to a civil case need not
appear in person to undertake activities in a court of law unless a
court orders appearance in person.
In other words, representation is a rule in most civil cases, and
appearance in person is an exception. Appearance in person is limited
to some cases where a court believes it is necessary for the proper
determination of the suit.
There are two types of representation:.
1.The one in w/ch the representative represent the interest of others :
A situation in which the representative acts for the interest of the real
parties to a suit. He/she acts on behalf of real parties and do not have
their interest at stake in a suit. Representations specified under Arts.
34, 57-64 Civ.Pr.C., is a good example.
8

Art. 34 Civ.Pr.C., is known as legal representation. A legal
representative represents persons under incapacity. Since incapable
persons cannot be parties to civil suits, their legal representatives
should represent them. Their legal representatives are their organs of
protection i.e. the reason why representation is made here is merely
the incapacity of persons concerned to be parties to a suit.
2.A situation where the representatives represent the interest of
others as well their own interest: The representative serve two
interests.
Art 38 Civ.Pr.C., known as representative class suits
Justification for allowing class suit
a suit involves several persons and that it is inconvenient for all
concerned to be parties.
 It is inconvenient for such a group of persons to proceed with a
case individually.
9

The Requirements for a representative class suit under Art.38 are:
-------that the number of parties is more than two…several in
number…
…..the parties should have the same interest in a suit;
…….that they agree to be represented; and
Court permission
Example :
Plane crush giving rise to:
Death & injury of passengers as well as pedestrian
Damages to houses, animals & agricultural products
Does it fall under Art.38?
Over release of power EELPA destroying :
TV, Radio, Refrigerators of certain persons
Does this fall under Art.38?
How do you define the ‘same interest’ under Art.38 Civ,pr.c?
10

For existence of ‘same interest’ according to Indian RUle of Civil
Procedure, there should be:
Same cause of action
Same grievance (common question of law & fact)
Same relief
The same interest does not mean that the claim of parties has a
single cause or that it arises from the same transaction only.i.e.the “
same interest” means that as plaintiffs, they must demand the same
relief against the defendant for the same wrong committed against
all of them; as defendants they must be invoking the same defense
against the plaintiff on the same cause of action. Eg:Right of way
Thus, same interest means something more than same cause of
action (same transaction) under Art. 35 Civ.Pr.C,
For instance , assume that Asela City Administration decides to give
a residential area for Arsi University lectures and persons living there
are to be transferred to another place. If persons claim that a decision
is unlawful and challenges the decision itself, they are considered to
have the same interest. 11

In this case, representative class suit is allowed
3.4.3. Agents and Pleaders
As per Art.57 Civ.Pr.C, is a person authorized by operation of law to
act on behalf of a party to a suit. A legal representative, agent or
pleader of a person may make any appearance, application or act in
or to any court. The requirement is that such representatives are able
to answer all the material questions relating to a suit.
Art.58(a)- representation to be made by organ of protection of an
incapable person. Representation by agent is one where a person is
authorized to act on behalf of a party to a suit. Family members of a
person (spouse, brother sister, son, father, or grandfather or mother
can be agents if they appear in a suit without receiving remuneration
or reward from a person to be represented.
Art.59 – agent - a person authorized to act on behalf of the
government with respect to judicial proceedings.
Art.61(1)- if the government is to act as a defendant for its public
servant, the government pleader must appear and present to the
court his authority to answer the statement of defense . 12

Art.62 -agents for members of the Armed Forces and for prisoners.
Any person can serve as their agent if they produce a written
authorization to that effect.
A person can also be represented by his pleader/advocate.
A pleader is a person who holds an advocate’s license, and no
person may appear in this capacity unless he holds such a license.
A pleader has to produce his license together with a letter of
authorization from a person who authorized him. The mere fact that a
person has an advocate’s license does not entitle him to represent
any person unless he is authorized in writing to act on behalf of such
person. (Art 63 Cv. Pr. C)
3.5. Joinder of Parties and Causes of Action
Concerns with multiplication of parties and causes of action i.e. how
two or more plaintiffs bring action against a single or more
defendants, and how many causes of actions can be made subject to
a single suit.
13

3.5.1. Joinder of Parties
Purpose
two conflicting views:
In favor of joinder:
It makes parties to pool their resources together and enables them
to share costs of pursuing a suit.
It relieves a burden of court in a sense that a court resolves cases
involving many persons or causes of action by a single suit
It avoids the possibility of making conflicting decisions.
Disfavor of joinder:
It expands the scope of litigation and consequently causes delay of
proceedings.
It results in embarrassment of the defendant and makes him not to
be able to properly defend himself.
Thus, one interest is in favor and the other is against joinder of
parties and causes of action.
14

 The rule under Art. 221 Civ.Pr.C. tries to strike a balance between
these two conflicting interests toward joinder.
If joinder of causes of actions in a statement of claim results in a
delay of proceedings or embarrassment of defendant, the court may
order separate suits.
In all other cases, joinder is, therefore, allowed so long as it does
not bring about delay of proceedings or embarrassment to a
defendant.
Forms and Types of Joinder of Parties
Different forms:
Two or more plaintiffs called joinder of plaintiffs bring action
against a single defendant; or eg A issued a cheque for B&c
a single plaintiff brings action against two or more defendants
called joinder of defendants; or
two or more plaintiffs file a suit against two or more defendants
called joinder of plaintiffs and joinder of defendants
15

Types joinder of parties:
Permissive joinder: parties are entitled to join -can choose between
joint actions or separate suits
Permissive joinder of plaintiff- deals with how two or more
plaintiffs bring a single suit. i.e. Art. 35, and 36(1,2,3,4,5,6) Civ.Pr.C
Plaintiffs could bring a joint action if two requirements are met:
 the right to relief must arise from the same transaction whether
jointly, severally or in the alternative, and
that there is a common question of law or fact that would arise if
such persons made separate suits,
the existence of same transaction or series of transactions,
indicates that the claims of persons to join must be related in the
sense that they should arise from the same source.
Here, by the ‘same transaction’ it does not mean that the parties to
join should have the same interest unlike the requirement under
Article 38. The parties may claim different remedies. What matters
here is the source of claim.
16

‘series of transaction’ means a series of acts that cause damage to
some person. For instance, a car hit electric poll which caused fire,
which in turn, resulted in the burning of houses. The owners of the
houses burnt can bring a joint action against the owner of a car since
the owner is responsible for hitting the electric poll that caused the
burning of houses.
Common question of law or fact means that all the parties share at
least one common litigation interest in the form of an issue of law or
fact. It refers to those questions of law or fact arising out of the claims
in a particular case before the court.
Permissive joinder of Defendants (Art.36)-refers to a situation
where two or more persons are jointly sued by a single or more
plaintiffs.
There is one requirement that applies to the joinder of defendants,
unlike that of joinder of plaintiffs.
There must be a common question of law or fact, if separate suits
were filed against the defendants.
17

Article 36(2) makes an exception to Article 36(1) in the sense that
there is no requirement of common question of law or fact. It applies
where a cause of action emanates from a contract, including parties
to a negotiable instrument. For example, if “A” issues a cheque to “B”.
“B” endorses it to “C”, who also endorses it to “D”. If “D” goes to a
bank and presents a cheque to the bank and that the bank refused to
pay the money on the ground that “A” does not have a sufficient
amount of money in the Bank, (informed him that there is no money
that covers the amount stated on the cheque) “D” can join all “A”, “B”,
and “C”, together since they are jointly and severally liable as
provided under Article 36(2).
Art. 36(5) provides an instance whereby the plaintiff does not know
who caused the damage to him-from among several persons-and who
is to pay him. In such instance, he can join them. One of the
defendants is liable to him, but he does not know who is to be
ultimately held liable. Example 3 cars collided
18

Effect of Misjoinder and Non-Joinder of Parties
What will happen if there is a mis joinder or non-joinder of parties?
Art. 39 Civ.Pr.C. deals with the effects of mis-joinder or non-joinder
of parties relating to a permissive type of joinder. In this case ,the mis-
joinder or non-joinder does not result in the defeat of a suit. It means
that a court does not dismiss a case for the reason that there is mis-
joinder or non-joinder of parties.
Thus,if a party is not joined or is improperly joined, the appropriate
measure is not to dismiss a case but to drop a party improperly joined
and demand substitution, and proceed with the parties before a
court. If there is non-joinder, the court shall proceed with the case
irrespective of such non-joinder. If there is improper joinder of
defendants, the plaintiff should be given the option to drop the
defendants improperly joinded or to proceed with separate suits.
Mandatory joinder of parties:
known as joinder of indispensable parties.
parties are under obligation to bring a joint action or defense.
19

There is no choice given to parties other than a joint action or
defense.
Applies to both plaintiff and defendant. Except for Article 36(3) and
(4), which applies to joinder of defendants applies to certain
categories of persons.
The first category consists of persons required by substantive law to
exercise their rights jointly at a time. For example, joint owners, joint
creditors or debtors, husband and wife over common property, etc. In
all of these cases, the interest and claim belongs to all of them and
not to one of them only. All of them are concerned. That is why they
are considered to be indispensable party. The absence of one will
necessarily affect one’s right.
The second category comprises of those who can be affected by a
decision given in their absence. If a decision affects persons who are
not made a party to a suit, such persons are considered to be
important for making a decision and should be made a party from the
very beginning. This includes, for example, persons who are entitled
to oppose the judgment under Art.358. 20

3.5.2. Joinder of Causes of Action:
Cause of action is a facts or occurrences that give rise to a claim for
relief without particular reference to the substantive law to be
applied, or the nature of relief sought.
Parties are allowed to join as many causes of action as possible so
long as joining of causes does not bring about delay of proceeding or
embarrassment to a defendant.
Parties are allowed to join even unrelated claims. For instance, a
plaintiff could join cases over contract with tort and bring a single
action against a defendant.
The same applies to parties entitled to join.Art.217 Civ.p.c.
Exceptionally : Art. 218 Civ.Pr.C provides that claims for the
recovery of immovable property may not be joined with other kinds
of claims except those involving such property.
Art. 219 Civ.Pr.C. -A claim by or against an executor, administrator,
or heir in his representative capacity cannot be joined with a claim by
or against him in his personal capacity.
21

With the exceptions of these cases, a single plaintiff or plaintiffs
with a joint interest may unite any number of claims against the same
defendant or the same defendants jointly, so far as such joinder does
not result in delay of considering a case or an embarrassment to
defendant. (See, Art 221 of Cv. Pr. C)
3. 6. Interventions:
Intervention is a mechanism by which a party is brought into a
pending case to present a claim or defense .
Joinder (an issue that comes at the beginning of a suit) Vs.
Intervention(a question that comes into picture after a suit undergoes
some steps)
Two types of intervention:
One that is made by an application of a third party himself (Art.41
Civ.Pr.C).i.e, a party approaches a court to intervene in a suit.
Another type of intervention is as of obligation(Art.42 Civ.Pr.C) .In
this case the Public Prosecutor is under obligation to intervene in
some civil cases.
22

3.7.Third-Party Practice [Impleader]: Purposes, Requirements and
Consequences
Third party practice, also known as impleader, is the procedural
device enabling the defendant in a lawsuit to bring into a suit an
additional party who may be liable for all or part of the original
plaintiff’s claim against the defendant.
It is a mechanism by which a defendant brings into a suit a third
party on the ground that such third party covers or shares the whole
or part of claim of plaintiff. It is initiated by a defendant. For example,
“A” brings action against “B” only. “B” could demand the intervention
of “C” who is not sued by “A”, if there is a relation between “B” and
“C”.
 The purpose of third party practice is to settle claims involving the
same cause of action/ transaction in a single suit.i.e. aims at avoiding
separate suits over the same cause of action/transaction. It is entirely
optional and that the defendant may claim against the third party in a
separate suit.
23

Requirements for the application of the third party practice under
Article 43 Civ.Pr.C. is that the defendant shall demand the court in
his statement of defense indicating that he is entitled to :
contribution or
indemnity from such third party. It is either of these two
relationships only that could cause the intervention of third party.
should mention the extent of contribution or indemnity to be
made or covered by such third party i.e.the defendant shall state the
amount of indemnity or contribution of the third party.
If these requirements are fulfilled, the court issues summon on the
third party together with a copy of the statement of claim and the
statement of defense and require him to appear at a fixed date.
On such a day, the third party should appear and raise any
objection he may make to his intervention demanded by the
defendant.If he raises objection, the court considers & decides on it.
If the court believes that the objection made by the third party is
not well found, it orders his intervention and this makes him third
party defendant. 24

Once he is ordered to be a party, he proceeds like a defendant in a
normal action. He can make a counter claim or set-off against the
original defendant (called third party plaintiff.
If the third party fails to appear on the date he is supposed to
appear, he is deemed to have admitted the existence of contribution
or indemnity between him and the defendant. His mere absence
amounts to admission of such relation as per Art.76 Civ.Pr.C.
The application for third party practice is subject to a time limit.
The defendant should raise it as soon as he appears before a court
to make a defense against a claim of the plaintiff. It means that he
should file an application during the first hearing of a suit. If he fails to
demand the third party practice at this time, he is precluded from
doing so at a later stage of the proceedings.
3. 8. Change of Parties
In civil suits, there is a possibility that others can replace the original
parties upon death of one of them.i.e, in civil cases death of one of
the parties does not automatically cause the termination of a suit.
25

There is a possibility that others can replace the deceased party
and the suit continues. (Art.48(1) Civ.Pr.C)
However,there is no change of parties if the court concludes the
hearing of a case and adjourns the case to make a decision even if
one of the parties dies as provided under Article 53 of the Civil
Procedure Code. This means that if one of the parties dies after the
hearing of the case is concluded and what remains is giving a
decision. In such case, the court is not prohibited from making a
decision. This is because the only thing that remains after the
conclusion of hearing of cases is to pass decision.
26

Chapter 4: Pleadings ,Institution of Suits and Service of
Process
Introduction:
This unit deals with issues to do with how parties to a suit are
supposed to reduce their claims, defenses, petitions, applications,
etc. in writing and bring them to the attention of a court. Without
pleadings, courts are not in a position to see cases and decide on
them. It also focuses on how summon is served and its effects.
Objectives:
By the end of this Chapter, students would be able to:
prepare pleadings ;holistically realize & thoroughly internalize the
view that the rules of civil procedure should always be read &
achieved thereby.
explain the proceedings applied in pretrial proceedings.
Understand the different summon service process ,
Explain how summon is served and its effects, 1

4.1. Pleadings
The proceedings in a court of law are set in motion when a
court accepts the pleadings filed by a plaintiff and orders the
defendant to appear and defend.
The Ethiopian Civil Procedure Code does not define pleadings in
a direct way.However,Ar.80(1) Civ.Pr.C. states that pleading shall
mean a statement of claim, statement of defense, counter claim,
memorandum of claim, appeal, application or petition and any
other documents originating proceedings in a court of law and
make replies thereto.
In order to be considered as pleadings, a document filed to a
court must be one that originated proceedings in a court.i.e.
those that do not make a response thereto are not pleadings.
This definition by way of listing what falls in the category of
pleadings is not an exhaustive one. So long as it is related to the
subject matter of a suit, any formally written statement submitted
to a court is considered to be pleadings. 2

Thus, Pleadings can be defined as all formally written statements
filed to a court of law by parties to a suit with respect to their
respective claims and/or defenses.
Purposes:
Pleadings serve various purposes. These are:
To notify the defendant with the suit and enable him to prepare his
defenses accordingly ,
To a summary of the claims and defenses of parties to a court,
which enables a court to frame the appropriate and relevant issues
that need decision. The court looks into the content of both the
statement of claim and statement of defense; and, then, frame
appropriate issues that need to be resolved by the court at the trial
of the case.
To fix the issues to be decided, and in a way, limit the scope of
litigation between parties and determine the evidences to be used
by the parties. The court cannot create issues of its own and then
pass decision. 3

The main source for the framing of issues is the pleadings
submitted to a court by parties(Art.248 Civ.Pr.C)
To guide the parties and the court in the conduct of cases. A litigant
cannot prepare for trial unless he has been informed adequately of
the opponent’s contentions. There is no way that a court can control
a suit unless it knows the nature of the parties’ allegations.
To expedite litigation-through properly prepared pleading.
General Requirements of Valid pleadings and Effects of Non-
Compliance
The requirements relate to their preparation, format, and content.
can be divided into:
Technical Requirements and
 Legal Requirements
A. Technical Requirements
relate mainly to the preparation and format of pleadings.
Examined by the registrar of a court.
4

the technical requirements are provided under Art. 80(2), 222,
223,234,327-330, etc
shall be handwritten in ink, printed, or typewritten on the
prescribed paper. Art.80(2)
shall contain and contain only a statement in a concise form of the
material facts(no legal provision ,no argument, no proof ) on which
the party relies for his claim –what is demanded or defense and
shall be in a form as near as may be to the appropriate Form in the
First Schedule to this Code.-sample form
shall be verified (Art.92(1) -Alleging false statements is a crime
punishable pursuant to Article 452 of the Criminal Code. Eg I hereby
declare that the facts stated in this claim/defense are true to the best
of my knowledge and belief.
Shall be signed by the party or person authorized to verify the
pleading. Art.93CPC
shall be accompanied by annexes as provided under Arts.
223(claim) and 234(defense) Civ.Pr.C.
5

Petitions and applications filed for special proceedings are to be
accompanied by affidavit.
The registrar checks the fulfillment of its technical sufficiency.
The registrar rejects a statement of claim technically insufficient.
As per Art. 229 Civ.Pr.C. statement of claim is technecally
insufficient where:
it is not in the form provided for by Article 222;
it is not accompanied by the annexes provided for by Article 223; or,
it is not verified in the manner provided for by Article 92.
Effect of Rejection
Rejection by the registrar does not prohibit a party from bringing a
fresh pleading for it means that there is an error in the technical
requirements of pleadings, and if the party corrects the defects, he
can submit fresh pleading on the same cause of action(Art.232)
The registrar shall provide reasons for which he rejected pleadings.
unsatisfied party can apply to the court for review the reason for
rejection.
6

The application shall be filed within five days after the registrar
made a decision.
If all the technical requirements are fulfilled, the registrar shall hand
the pleadings over to a judge.
B. Legal Requirements:
Checked by the judge
4.1.1. Major Types of Pleadings
4.1.1.1. Statement of Claim: Requirements and Contents
Statement of claim also known as a complaint is a pleading
submitted to a court by plaintiff.
Every statement of claim shall contain four parts:
A. Caption
 here the plaintiff states the name of the court in which the suit is
filed, the title of the suit, and the names of the parties including
their description and address. If the plaintiff is under disability,
this shall be stated; if the plaintiff is bringing action in a
representative capacity, this shall also be stated.
7

It means that the capacity in which the plaintiff is suing shall be
indicated. For instance, if he is an agent or advocate, this shall be
mentioned.
If a person files it as an agent or advocate, the relevant documents
shall be produced by such person to show that they are authorized to
act on behalf of the plaintiff.
The mentioning of title of suit and address of the parties
determine, among others, whether or not the court has jurisdiction.
B. Cause of action
the statement of claim shall state the facts constituting a cause of
action and when and where it arose.
The presence of statements showing cause of action is considered
to be the legal requirement to be met by the statement of claim as
per Art.231 Civ.Pr.C
C. Jurisdiction
The plaintiff must allege facts showing that the court has
jurisdiction.
8

Such fact is to be dependent on the content of the statement of
claim, particularly on the cause of action stated by the plaintiff. A
party shall state the value of the subject matter of a suit.
If, however, it cannot be stated in monetary terms, he shall state
the nature of the suit. By looking at the cause of action, value of the
subject matter of a suit or the type of a suit, a court can determine
that it has jurisdiction.
The amount of money stated in the statement of claims is to be
confirmed on the basis of the rules under Art. 224-226 Civ.Pr.C.
D.Relief sought
the statement of claim shall state the demand for the relief to
which the pleader believes he or she is entitled to (Ar.224 Civ.Pr.C).
4.1.1.2. Statement of Defense: Purposes and Contents
a pleading produced by the defendant.
contains material facts on w/h the defendant relies for his defense.
subject to the rule under Art.80(2)&223CPC. There is a form
prescribed by the Civil Procedure Code for the statement of defense.
9

The content of statement of defense is given under Art.234. which
states:
(1) Every statement of defense, to which there shall be attached the
annexes mentioned in Article 223, shall contain:
a) the name and place of the court in which the defense is filed;
b) the number of the suit;
c) the facts, if any, showing that the claim is inadmissible on grounds
of want of capacity or jurisdiction, or limitation;
d) a concise statement of the material facts on which the defendant
relies for his defense and generally of any ground of defense
which, if not raised, would be likely to take the opposite party by
surprise or, to raise issues of fact not arising out of the sc;
e) a specific denial of any fact stated in the sc which is not admitted;
f) precise details of the counter-claim, if any, in which case the
provisions of Article 224 shall apply by analogy.
(2) The provisions of Article 223(3) shall apply by analogy in
appropriate cases.
10

The statement of defense has mainly two parts:
caption in which the defendant is supposed to state the name of
the court to which he submits his defense, and the number of the
suit.
the statement showing the points of defense. In this part, the
defendant is expected to raise affirmative grounds of defense, which
include facts showing that the claim of the plaintiff is inadmissible on
the ground that he is incapable, or that the court lacks jurisdiction or
that the action is barred by period of limitation, etc. Apart from these
grounds, the defendant can raise any ground of objections to a suit.
 In addition, the defendant can raise a counterclaim or set off
against the claim of the plaintiff.
In stating his facts of defense, the defendant must respond to each
allegation of the facts made in the statement of claim whether he
admits or denies them. The denial he makes must be put in a direct
manner. Evasive denial does not amount to a defense under Article
235 rather it amounts to admittance.
11

Evasive denial is a denial in general terms. For instance, saying that,
“I am not responsible or I am not liable” is considered to be an
evasive denial. However, such defenses are not considered to be
admission if they are made by persons under disability as provided
under Article 235. This shows the protection the law tries to provide
to persons under disability.
If the statement of defense is rejected, the court shall proceed with
the trail of the case. The rejection does not mean that the case is to
be decided for the plaintiff. This is because even if it is rejected, the
defendant could defend himself orally under Article 241, which will be
discussed later on.
4.1.4. Effects of Failure to Plead
A party pleading is supposed to plead all the claims arising from a
single cause of action.
Issues are framed on the basis of allegations made in the statement
of claim. If a claim is not included in the pleading, it is not put in issue
by a court.
12

Hence, the plaintiff is not entitled to raise this at a trial stage and
produce evidence to prove it.This is because the other party is not
aware of such issue and cannot get the chance to challenge it.
 If the plaintiff raises a new issue at a trial, the defendant is entitled
to object to it.
Failure to plead means that the plaintiff omits some facts he could
have alleged.
The remedy for failure to plead at the beginning is to request an
amendment of pleading. In the absence of permission to amend the
pleading, the plaintiff is not allowed to raise new issues at a trial and
introduce evidence unless the court frames issues by its own motion
using the power given to it under Article 252.
13

4.1.5.Alternative & Subsequent Pleadings (Art.237 Civ.Pr.C)
An alternative pleading is optional grounds of claims or defenses
relied on by a party.
 It is a pleading that aims at maximizing the grounds of claim or
defense. For instance, the plaintiff could plead that there is breach of
contract and that he demands damage or that there is unlawful
/unjust enrichment if no contract is found to exist.
Similarly, the defendant could put forward a defense saying that
there is no valid contract or that its performance is prohibited by
force meajure.
Subsequent/further pleading (Ar. 239 ) –exists when the statement
of defense contains counter-claim or set- off against the claim of the
plaintiff.
When the statement of defense contains either counter claim or set
off, which is not dismissed by a court, the court shall ask the plaintiff
whether he wants to reply to such counter claim or set off claimed by
the defendant.
14

The obligation imposed on a court is to ask the plaintiff as to
whether he wants to reply to the defendant’s claim. If the plaintiff
does not want to respond to such counter claim or set off, the court
should not order further pleading to be made by the plaintiff.
Also note that unless the statement of defense contains either set
off or counter claim, the court should not allow further pleading for
any other defense made by the defendant unless an amendment is
allowed by the court.
When the defendant raises counter claim in his statement of
defense, he becomes plaintiff. This is because he is raising a new
claim against the claim made by the plaintiff. That is why the rule
under Article 215(2) says that the defendant shall pay court fee.
Article 215(2) says that “The prescribed court fee shall be paid upon
the filing of a statement of defense containing a counter claim.
The claim raised by way of counter claim can be filed as an
independent suit.
15

4.1.6. Amendment of Pleadings
4.1.6.1. Nature and Purpose
Amendment of pleading presupposes that a technically and legally
sufficient pleading has already been filed and that it is found to be
defective in terms of what has been claimed or stated.
The amendment is allowed to rectify defects in pleadings. If
allowed, an amendment introduces a modification to the content of
the pleading already submitted to a court.
The question of amendment is raised when a party tries to produce
evidence on something which is not included in the pleading or that
the evidences produced do not prove the contents of pleading or that
a party comes across new facts that he should have included in his
pleadings, etc. (Art. 91 and 252 Civ.Pr.C) - amendment of pleadings.
4.1.6.2. Grounds and the Process
As per Art. 91 and 252 Civ.Pr.C , the amendment is made when it is
necessary for the purpose of determining the real issues in dispute
between the parties. i.e. the amendment has a bearing on deciding
the issues between the parties. 16

4.1.6.3. Effects
Amendment brings into picture the consideration of two interests:
it causes delay of proceedings i.e. if it is permitted, the proceedings
will start as a fresh one.
protects a party from losing his substantive rights or being affected
as a result of pleading error.
The phrase in Articles 91 and 252, which says” necessary for the
purpose of determining the real question in dispute” aims at striking
a balance between these two interests.
Another factor for striking such a balance is the imposition of
damage on a party who requested the amendment of pleadings.
In trying to strike a balance between these two interests the
tendency in most legal systems is toward allowing amendment.
It means that there is a liberal approach toward amendment and
that the request for amendment should be taken into account in
liberal manner that permits amendment.
17

Thus, it can be held that it is an abuse of discretion for the court to
deny leave to amend unless there is a demonstrable indication of
prejudice to an opposing party.
A party can request amendment at any time before a court renders
decision. In otherwords,so long as it is necessary to determine the
real dispute between the parties, it can be demanded and allowed by
the court at any time.
4.2. Service of Summon
4.2.1. Service of Process
A statement of claim filed to a court is to be examined by the
registrar as well as the judge.
If it passes the scrutiny of the Registrar and judge, which means
that it fulfills both technical and legal requirements, the court
proceeds to notify the opposite party of the fact that a suit is made
against him.
This notice is made possible by issuing and serving summons or
notice on him.
18

4.2.1.1. Issuance of Summons
Summons, is a formal mechanism by which a defendant is notified
of a suit made against him and called upon to appear on a fixed time
and date before a designated court to answer a complaint/allegation
made by the plaintiff against him.
Purpose of Summon:
informs the defendant that a suit is made against him.
provides the defendant with an opportunity to be heard and
present his version of a suit.
The authority to issue summons is vested in either the judge or the
registrar of a court.
 Either the Registrar or judge can sign on it and cause it to be sent
to a defendant. This is the rule provided under Article 94(3).
4.2.1.2. Modes of Service
After summons is issued, it is collected from a court and served on
defendant by the serving officer –authorized by court (Art. 95(1)
Civ.Pr.C)
19

 Three different modes of service of summons to the defendant:
1.Personal service- Summons is said to be served in personal mode if
it is received by the defendant himself from the hands of a serving
office. Art. 95(3) Civ.Pr.C-the best mode of service since the summons
is actually handed over to the defendant himself.
2.Other mode of service/Constructive/ -to be used if service cannot
be made in an ordinary way i.e. personal service -summons is not
actually served on the defendant in person-somebody else receives it
but the law treats it as if service is made on defendant in person.
Example: When summon is served on the defendant’s agent who is
authorized to accept service, the service on agent shall be as effectual
as service on the defendant in person(Article 96(1).
When summon is served on the defendant’s pleader / advocate,
the service is considered to be duly served on the defendant himself.
This is the rule under Art. 96(2).
In these two examples, the service is considered to be personal one
even if the defendant has not actually received summon from the
hands of serving officer. 20

3.The substituted mode of service. This mode of service is
considered to be the least effective mode of service.
It is the final mode of service used when all other modes of service
are not applicable.This mode of service includes service by affixing a
copy of summons in public areas, publication in newspaper, etc.
It is a mode used where all other modes cannot be applicable. This
is implied in the rule under Articles 103 and 105.
If the serving officer cannot serve, he shall return it to a court.
Then the court orders a substituted mode of service.
What if a person served refuses to sign an acknowledgment?
The effects of refusal to sign acknowledgment are provided under
articles 103 and 105(2).The court orders a fresh summons or
substituted service or the court may consider that the person is
properly served and proceeds with the case.
This is when the serving officer returned the summons to the court
and produced an affidavit as to the facts that prevented him from
serving the summons.
21

Chapter 5: Pre –Trial Proceedings
Introduction:
This unit deals with the first phase of a trial proceeding mainly
aimed at framing the issue. As a preparatory stage which level
a ground for a full scale trail stage ,it equips students with
activities to be conducted at this stage ,when shall the parties
appear and the effects of non appearance of either of the
parties or both of them.
Objectives:
By the end of this Chapter, students would be able to:
Explain what pre-trial is and its purposes;
Elaborate activities to be conducted by court,
Effect of appearance and non appearance of parties during the
first hearing,
When to Rule on preliminary objection/s.
1

1.1. The First Hearing
Also called pre-trial proceeding- is a proceeding prior to a full scale
hearing.
It is the first phase of a trial proceeding mainly aimed at framing
the issue. In other words, it is a preparatory stage which level a
ground for a full scale trail stage
Functions:
To avoid complication in the suit
To avoid delay of the proceeding
To frame the issue
Pre-trial proceedings run from appearance of parties up to framing
of issue(s).
The court undertakes the following activities in pre-trial
proceedings(Art.241 Civ.Pro.C):
Verification of the parties(appearance or non appearance)
Reading of pleadings
Examination of the parties 2

Ruling on preliminary objection ,if any
Framing of issue(s)
1.1.1. Non -Appearance of parties
An appearance involves coming before the court in person or
through agent/pleader
It relates to two things:
The court checks whether or not the parties appear in person if it
orders such appearance in person
Whether or not the proper representation is made if appearance in
person is not ordered(Art.57,65,66,67,68 etc )
As a rule appearance need not be in person i.e. a party may
appear through an agent or pleader. However, exceptionally, the
court may order that the party should appear in person, and if a
party who has been ordered to appear fails without good cause, it is
considered non- appearance.
The Civil Procedure Code is strict on the requirement of
appearance. 3

Non appearance has consequences i.e. results in either struck out,
dismiss, adjourn or proceed to hear the case in the absence of the
nonappearing party as follows:
Action Upon non-appearance of both parties
Where both parties fail to appear in court, when the suit is called
on for hearing, the court shall make an order that the suit be struck
out, or in case of appeal, that the appeal be dismissed.(Art. 69(2))
The court has no discretion to adjourn the case. However, this is not
the case in the Indian code of Civil Procedure order IX, rule 3 the
court has a discretionary power to adjourn the case instead of
dismissing it.
Action where defendant does not appear
If a plaintiff appears and the defendant does not appear, when the
suit is called on for hearing, the first question the court must ask is
whether he/she was duly served or not. Then, it is up to the plaintiff
to convince the court that he/she has duly served the defendant.
If the court is satisfied with the mode of service to the defendant, it
automatically orders Ex-parte proceeding (Art.70 (a)). 4

Ex-parte proceeding(Art.70(a))Vs. Default proceeding(Art.233 CPC)
Ex-parte proceeding –applicable for non appearance of defendant
on the date fixed for hearing Vs. Default proceeding –applicable for
non appearance of defendant on the date fixed for submission of
statement of defense– as per interpretation of Federal Supreme Court
Cassation Decision on Volume 1 File No.14184 and File No.15835.
if it is proved that the defendant failed to appear on the date
which is fixed for hearing because he was not duly served or the
summons was not served on him in any of the modes of service that
is sufficient to notify him, the court will order Second summon to be
served on the defendant.
Where the summons was served on defendant in so short time, the
court will adjourn the hearing so that the defendant will have
sufficient time to consider the allegations of the statement of claim
and able to appear at the day fixed with his/her defense. But despite
the fact that the defendant has not been served, if he/she appears in
that day, the suit will continue.
5

Action where plaintiff does not appear
Where the defendant appears and the plaintiff does not, when the
suit is called for hearing, the court shall make an order that the suit
be dismissed, unless the defendant, in his/her statement of defense,
admits all or part of the claim.
However, where there is admission, even though the plaintiff fails
to appear, the court shall pass a decree based on that admission. If no
admission by the defendant, the dismissal is mandatory,
where the defendant asserts a claim of counterclaim or set off ,the
court will proceed to hear that part of the case, since as to such
counterclaim or set-off, the defendant occupies the position of
plaintiff, and the rules relating to the non-appearance of the
defendant apply.
Where one or more of the several defendants, although duly
served, has failed to appear, the suit will proceed against all
defendants or the suit may proceeded as ex-parte against the
nonappearing defendant.(Art.75 Civ.Pr.C)
6

Effect of Non-appearance could be
Struck out of the suit; (Art. 69(2) or 70(d)) =Art.71(1)
dismissal of the suit (Art. 73, 69(2) (2) 70(d) or 73) =(Art.74(1)
ex-parte proceeding (Art. 70(a))
default Proceeding; (Art. 233).
Where the case is struck out as per Art. 69(2) or 70(d)) ; the plaintiff
may as of right bring a fresh suit on the payment of full court fees (
Art.71(1)).
However, if he satisfies the court that there was a sufficient cause
for his/her non-appearance, the original suit may continue and the
plaintiff is relieved from payment of court fee.(Art.71(2))
Fresh suit (Art.71(1)) Vs. continuance of the original suit(Art.71(2))
Where the plaintiff's suit has been dismissed as per Art. 73, 69(2)
(2) 70(d) or 73), he/she will be precluded from bringing a fresh suit in
respect of the same cause of action.(Art.74(1)).
However,if the plaintiff can show good cause for his non-
appearance within one month from the dismissal, the court may,
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-after giving notice of application to the opposite party, order setting
aside the dismissal upon such terms and costs as it thinks fit appoints
a day for proceeding with the existing suit.(Art.74(2)).
Where the defendant, while he is duly served, does not appear on
the date fixed for hearing, the court may proceed ex-parte (Art.
70(a)).The effect is that the non appearing party will not have the
right to participate in the process of litigation.
Whereas, if a third party defendant does not appear, the court
enters a default decree.The defendant against whom an order made
ex-parte or third party defendant against whom a decree is passed
may, within one month from the day he became aware of such action,
apply to have it set aside ( Art.78 Civ. Pr.C.).
Plaintiff seeking to have an order of dismissal set aside
(Art.74(2))(apply within a month from the date of the order)Vs. a
defendant seeking to have an ex-parte decree set aside
(Art.78(1)(apply within one month from the time he was aware of the
decree)
8

Where the defendant, while he is duly served, failed to appear in
court of law on the date which is fixed for submitting his statement of
defense, the court shall order default proceeding (Art. 233 Civ.Pr.C.)
The effect of default proceeding Vs. ex-parte proceeding
 In ex-parte proceeding, the party whom an order is made against
him will not have the right to be involved in the litigation proceedings
following the order whereas in default proceeding, the non-appearing
party, i.e; the defendant, should not be refused to be a party to the
litigation.
The only effect of such order is that he will be precluded to exercise
the procedural rights to submit his written statement of defense.
Sufficient Cause
A party whose interest is affected due to the order up on non -
appearance may apply to the court to set aside the order, provided
that he has sufficient reason to justify his/her non appearance.The
criteria for justifying sufficient cause is not the same in all cases? Its
subjective!!!
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1.1.2. Examination of Parties
Where the parties appear in person, the court verifies their
identity, then reads the pleadings and asks the defendant whether he
admits or denies the allegations of fact in the pleading of the other
party that have not otherwise been denied.The court records all
admissions and denial, and they form part of the record.
Where a defendant makes an admission at the first hearing, that
admission is conclusive, and no issue will be framed as to that matter.
In this case, the plaintiff may apply to the court for such judgment
or order as he may be entitled to as a result of the admissions (See
Art. 241 & 242 ,Cv.Pr.C )
Thus, the main purpose of the examination at the first hearing is to
help the court clarify and develop the issues for trial.
1.1.3. Ruling on Preliminary Objections
A preliminary objection is as an objection raise not going to the
merits of the case that is, not involving the question of whether the
defendant is liable to the plaintiff under the substantive law.
10

 After the court has examined the parties, it proceeds to decide any
preliminary objections that have been raised.
Art 244 (2) also sets forth certain preliminary objections.
Thus, when such objections are raised the court is to proceed in
accordance with the provisions of Art. 245Civ.Pr.C.i.e. the court will
hear the opposite party, order the production of such evidence as
may be necessary and render a decision on the objection.
Are the preliminary objections under Art. 244(2) are exhaustive ?
The contents of Art. 244(2) on preliminary objections are:
a) the court has no jurisdiction
b) the subject matter of the suit Res Judicata
c) the suit is pending in another court
d) the other party is not qualified for acting in the proceedings;
e) prior permission to sue has not been obtained , when this is
required by law;
f) the suit is barred by limitation; or
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g.the claim is to be settled by arbitration or has previously been made
the subject of a compromise or scheme of arrangement.
The list of preliminary objections provided under Art. 244(2) are
not exhaustive. .
Art. 244(3) provides that any preliminary objection not raised at the
earliest possible opportunity, i.e., at the time the court call for the
first hearing, is deemed waived unless the ground of objection is due
to reasons such as to prevent a valid judgment from being given.
This means, some preliminary objections, like lack of material
jurisdiction, even if not raised at the first hearing may be taken as
issues throughout the proceeding because their existence prevents
the court from giving a valid judgment.
Sustaining preliminary objection has two effects under Art.245
Civ.P.C) .i.e. either:
Dismissal of the suit (where the court sustains an objection on the
ground of res judicata, barred by limitation ,settled by arbitration) –
results in precluding the plaintiff from bringing a fresh suit.
12

Struck out (Where the court sustains an objection on the ground of
lack of jurisdiction ,pendency, non qualification of a party, no prior
permission to sue)- does not preclude a party from bringing a fresh
suit. i.e. the party has a right to bring a fresh suit on the same cause
of action.
If the court’s ruling sustains the objection, the suit may be struck
out or dismissed. Whereas, if it is overruled, the court will proceed on
the suit.
1.1.4. Framing of Issues
After preliminary objections, if any, have been decided, the court
shall ascertain upon what material propositions of fact or of law
the parties are a variance, and shall there upon proceed to frame
and record the issues on which the right decision of the case appears
to depend.
Material propositions are those propositions of fact or of law, which
a plaintiff must allege in order to show a right to sue or a defendant
must allege in order to constitute his defense.
13

Each material proposition affirmed by one party and denied by the
other shall form the subject of a distinct issue.
Where issues both of fact and of law arise in the same suit, and the
court is of opinion that the case or any part thereof may be disposed
of on the issues of law only, it shall try those issues first, and for that
purpose may, if it thinks fit, postpone the settlement of the issues of
fact until the issues of law have been determined.
Sources of issues are :
the allegations in the pleadings,
the contents of the documents produced by either party, and
the oral allegations made by the parties or their pleadings or
persons present on their behalf. (See Cv.Pr.C Art. 248 )
Advantage of framing issues is to limit the scope of litigation of the
parties during the trial proceedings.
14

1.2. Adjudication without Trial
Instances where the court disposes of a case before requiring a full-
scale trial or without sometimes even requiring the opposite party
to respond. This results where:
Agreement on Issue
Parties Not at Issue -the primary purpose of the pleadings and the
first hearing or proceedings prior to trial is to develop the issues for
trial. Where there is no issue ; the court may pronounce judgment at
the first hearing (Art. 254 Civ.Pr.C)
Where the defendant admits
Deposition of issues at the First Hearing- the court dispose issue at
first hearing is where the issue or issues framed are issues of law.
1.3.Compromise and withdrawal
1.3.1.Compromise :an agreement reached by parties to a dispute.
Parties who are involved in dispute could settle it by agreement
before taking the case to court or after the case is taken to court and
before judgment is rendered. (Art.3307 CC+274(1) Civ.P.C).
15

If the parties have compromised the dispute, however; files a suit,
the defendant may assert the compromise as a defense –raise
preliminary objection.
A valid compromise has the effect of res judicata
Valid requirements of compromise agreement: (Art. 276)
The name and place of the court in which the suit is pending
The title of the action and the number of the suit
The name, description, place of residence and address for service of
the parties; and
The matter to which the agreement relates matters such as costs,
damages and execution.
1.3.2. Withdrawal of suit
A case may be discontinued by a party through withdrawal or
abandon any of his claim against any or all defendants.
two types of withdrawal of suit; namely,
withdrawal with leave and
withdrawal with out leave .
16

While the case is pending, the plaintiff may for different reasons
decide to withdraw or abandon the suit. In such cases he/she may ask
leave of the court to withdraw the suit.
Then, the court will analyze whether the reason forwarded for
withdrawal is satisfactory or not.
The criteria for satisfaction of the court to permit the party to
withdraw the suit are stated under Art. 278(2)(a)&(b). Therefore, for
the court to permit withdrawal of suit with leave.
However, once the court permits the plaintiff to withdraw or
abandon with leave to institute fresh action on the subject matter of
the suit, the plaintiff shall be bound by the law of limitation in the
same manner as if the first suit had not been instituted.
Where the suit is withdrawn without leave the plaintiff cannot
institute a fresh suit in respect to the cause of action.
17

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