Chapter Two: Trial and Procedures PDF

**CHAPTER TWO** **THE TRIAL AND OTHER PROCEDURES** - **THE TRIAL AND OTHER PROCEDURES** - The Trial involves introduction of evidence and the consideration of that evidence by the court. - In this part, we will see - Ordinary proceedings - Special proceedings - Summary procedure - Accelerated procedure - Other procedural matters - Under Ordinary Proceeding, we will see - the production of evidence, - the conduct of trial, and - the judgment and decree. - **1.1. Ordinary Proceedings** **[1.1.1. Production of Evidence to the Court]** - This sub section, discuss production of witnesses and other real evidences (demonstrative & documentary) - Evidence is produced to prove factual issues - Evidence consists primarily of the testimony of witness and documents and other physical proof. - According to Art. 223\[1\]\[a\] and 234\[1\], when a party files his pleading, he includes - list of witnesses to be called at the trial, together with - their **address** and the **purpose** for which they are to be called. - As rule, **Parties have primarily responsibility for presenting their evidence**, as a result - parties are expected to request summon from the court - But, either party may, without applying for a summons, **bring any person, whose name appears in the list annexed** to the statement of claim or defence, to give evidence or to produce documents. Art 111(1), 249 & 257 - However, - when some witnesses so named will not appear voluntarily or - when subsequent to the filing of the pleadings, a party discovers another person who can give testimony, - **the court will issue a summon to that witness requiring him to appear** - In addition, the court shall issue the summons **in its own motion only in exceptional circumstances**, that is, only - **where a witness who is likely to be able to give crucial testimony has not been called by either party**. See Article 264 of CPC - **Expenses of Witness and Additional payments**. - See art 112 & 113 of CPC in detail - Before the summons is granted, **the party who request the witness shall pay or deposit expense of the witness**. - The court may also order additional sum of money to be paid to the witness, when necessary. 113, expert fee - The summons must specify, art 114 - **the time and place** at which the witness is required to attend - **the purpose of his attendance**, i.e. either for the purpose of giving evidence or producing a document, or both. - If it is for producing document, the summons should describe the document with reasonable precision or accuracy, 114(2) - What will happen if the **witness fails to appear** at the appointed time? See Art. 118(1) - 1^st^, the court must determine whether the summons has been duly served. - 2^nd^ the court must ascertain existence of any reason to believe the witness is **material** - 3^rd^/ the court may **order the issue of a fresh summons** - if the court is satisfied that the summons has not been duly served, - 4^th^/ the court may **issue a warrant, with or without bail, for the arrest of such person**, as it considers necessary for the attendance of such person, if it is satisfied that - the witness has without **good cause** failed to comply with such summons or has **intentionally avoided** service - **Good cause** should only refer to a situation where the witness was prevented from attending due to physical conditions beyond his control - may also be subject to criminal prosecution, 118(2) & 448 CrC - **Admission of witness:** the law does not exclude the relevant testimony of any person who has - the **capacity to observe and remember** the matters on which that person testifies, - the **ability to communicate** this knowledge and - an **understanding of the obligation to tell the truth**. - However, when any of these factors are in doubt, it is up to the judge to admit or exclude such witness. - **In principle testimony must be given in person** - **Exceptionally,** - **examination of witness by a commission** - **Testimony by affidavit** - **Examination on commission, art 122 - 131** - An examination on commission is the examination of a witness by a person specifically authorized to examine the witness. - It is ordered **where a witness is not in a position to testify in court** because of physical incapacity or because of other causes - This often happens when the witness - may be **physically incapable** to attend the court proceeding, - may be **far from the jurisdiction** of the court, - may be about to depart from the jurisdiction of the court before the hearing. - The court may issue the commission on its own motion or on the application of either party. Art 127 - Before issuing the commission, the court may require a sum for **expenses to be paid** by the party at whose request or for whose benefit the commission is issued. Art 123 - The order appointing a commission directs the **parties** named in the order **to appear before the commissioner** (126) and all the provisions of the code applicable to the appearance of witness in court are applicable to the appearance of witnesses before commissioner (125). - Where the witness resides outside the local limits of the court issuing the commission, the commissioner may apply to any court, with in the local limits of whose jurisdiction the witness resides for the issuance of process against that witness, and that court shall issue such process as it finds reasonable and proper (125-2) - When the commission has been executed it shall be returned to the Court of issuance together with the evidence taken under it, the commission and the evidence then form part of the record in the suit. 128 - In commission, **the opponent has no opportunity to cross-examine the witness**. The court should take into consider the absence of cross-examination. - But, what is the purpose of appearance of parties before the commissioner unless they are allowed to cross-examine the witness? **Testimony by affidavit, 203-206** - **Affidavit** shall mean a statement of facts in writing lawfully sworn or affirmed, art 3 of the CPC - **Affidavit** is a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths. - Testimony by affidavit is a procedure by which **a witness may put what he knows about the fact in issue by an affidavit and submit the same to the court** - It is permitted when **a witness is not required by either party to be examined** - However, if either party *bona fide* desires the production of a witness for cross-examination, and that such witness can be produced, affidavit may not be given. - **Disadvantage of affidavit testimony**: - the witness is not present for cross-examination or examination by the court, - the court or the parties would not have a chance to observe his demeanor and other factors that affect his credibility. - So, the court should use its power of allowing a witness to testify by affidavit **in rare and exceptional cases**, art 204 - Content of affidavit: 205 - Affidavit shall be confined to such facts as the affiant/deponent is able to prove by **his own knowledge**, - But, on an interlocutory application, it may include facts that the deponent **believes to be true**. - In such a case it must be made clear - how much of the affidavit is based on the deponent's knowledge and - how much is based on facts that he believes to be true. - The **sources** on which his belief is based should **also be disclosed**. - In the case of any affidavit, **the oath or affirmation** to the deponent may be administered **by any court or judge** or **any other person** authorized by virtue of his office or **appointed by a court** in this behalf. Art.206 - **It is not necessary to produce other evidence or witnesses** on matters that are to be proved by affidavits. - This, however, **does not mean** that **a fact proven by affidavit is irrefutable**. In other words, it can be challenged and disproved. **Documentary evidence** - It is classified as real proof - Real evidence includes written documents and demonstrative evidence. - Photographs, recordings, and tangible objects like the murder weapon or a broken glass would be classified as real proof. - There are generally **two special rules that govern the admissibility of documents** under the procedure code: - **1^st^/ the rule of authentication.** - It requires a showing that a document, what its proponent claims it to be before it, will be admitted into evidence. - In the ordinary situations this means **only that the person offering the document must produce evidence** that it was signed or prepared by the person who is claimed to have signed or prepared it. - **2^nd^/ the best evidence rule.** - It requires a party to introduce the **original document** or to establish that the original has been lost or destroyed before other evidence of the document's content are to be admitted. \[Art 140 and 223 of the Civil Procedure Code.\] - **Production of Documentary Evidence** - Each party **must include with his pleading** the original copy of any document in his possession on which he relies \[read Art, 233(1), and 234(1)\]. - At the first hearing the **parties must produce all remaining documentary evidence**, art 137(1) - If a documentary evidence is not produced at that time, it **cannot be produced at the time of trial**. Art 137(3) - However, if the court concludes that a document should be produced, it has the power to order the person who has possession of the document to appear in court with it. Art 264 - Where a party to the suit who has been ordered to produce a document failed to do so, the court may **pronounce judgment against him**. Art.267 CPC - As regards a person who is not a party to a suit and who is ordered to produce a document, the rules of summoning and attendance of witnesses is applicable. See 114 -- 119 - **these rules are applicable to the production of other real proof**, e.g. photograph and exhibit (Art 146). - The court may also send for the record of any other suit or proceeding either from its own files or from the files of another court. **Art 145(1) Vs the practice** - **Rules of admission of documentary evidence** by the court are provided in - **Arts.139-141 of the CPC**, read it - the court may at any stage of the suit reject any document that it considers irrelevant or inadmissible. - Any objection to the admissibility of the document can be considered at the trial stage. - **The court has the duty to exclude or not to admit the document even if no objection is made**. - Where a document has been admitted, it forms part of the record; if it is not admitted, it does not form part of the record and is to be returned to the person who produced it. **[1.1.2. Conduct of The Trial]** **[A. Order of Proceeding]** - The order of proceeding depends on the **nature of the issues** that are involved in the case and **on the place of burden of proof** - the general rule is that, 258 - **The party who has the burden of proof has the right to begin.** - The plaintiff has the burden of proving that he has a cause of action, and the defendant has the burden of proof on the question of whether he has a valid defence. - But, what is burden of proof? - **Burden of proof** means - the obligation to provide evidence necessary to establish a disputed fact or a degree of belief in the mind of the court. - It includes two concepts: - **Burden of persuasion, it** is the ultimate burden of convincing the court of an issue, and it does not shift during the trial. - **The burden of going forward with the evidence** -- - normally it lays on the plaintiff at the start of the trial. But this burden may shift to the defendant - if defendant admits the allegations of the statement of claim and has raised affirmative defences. And - If the plaintiff is beneficiary of presumption - **See Volume 26\_205626** Thus, **the ordinary order of proceeding is**: (259) 1. The party having the burden of proof on the issue begins, states his case and produces all his evidence on that issue 2. The other party states his case produces his evidence on that issue and addresses the court. 3. The party beginning then replies or have the last word - The party who has the burden of proof is entitled to have the last word, why? B/c - if the court is not more persuaded by his evidence than by the evidence of his opponent, it will decide the issue against him. As a result the last word gives the party beginning the opportunity to persuade the judge. - But, this proceeding only applies when the case involves **one issue** or **several issues their burden of proof lies only on one party**. - Whenever the **plaintiff has the burden of proof on one of the issues in the case, he has the right to begin**. - If, for example, there is an issue as to the existence of the contract and an issue as to the existence of force majeure, the plaintiff has the right to begin, since he has the burden of proof on one of the issues in the case. - If, in a suit for breach of contract, the plaintiff fails to make out a case showing that there was a contract, there is no reason to proceed further: the burden is on the plaintiff to show that there was a contract, not on the defendant to show that there was not a contract. - However, **if the defendant has the burden of proof on the only issue in the case, he has the right to begin** - For example: if the defendant admitted the existence of a contract, his non performance and the damages claimed, but contended that his non performance was excused by force majeure, he would have the right to begin, since he has the burden of proof on the only issue in the case. - the order of proceeding or burden of proof and shift of the burden of proof is based on the substantive law, - see e.g. art 2001 of Civ Code - **Where the case involves several issues and the plaintiff has the burden of proof on one of those issues: 260** - He has the right to begin and must produce his evidence on the issues as to which he has the burden of proof - He also has **the option** to produce his evidence on the issues as to which the defendant has the burden of proof - If the plaintiff does not reserve his evidence, the procedure is the same as if the only issues were those as to which the plaintiff had the burden of proof. - He may not introduce rebuttal evidence after the defendant has presented his case - He may also **reserve the evidence** on the latter issues until the defendant has produced his evidence on those issues. - **If the plaintiff has reserved his evidence, the following procedure is employed: 260(2)** - The plaintiff produces his evidence on the issues as to which he has the burden of proof. - Assuming that the evidence is sufficient, the defendant must produce **his rebuttal evidence** and **the evidence on the issues as to which he has the burden of proof**. - If defendant has introduced sufficient evidence on the issues as to which he has the burden of proof, the plaintiff must produce his rebuttal evidence on those issues. - Then the defendant replies specially on the evidence produced by the plaintiff and - the plaintiff replies on the whole case. - It is clearly to the plaintiff's advantage to reserve evidence on the issues as to which the defendant has the burden of proof. - If the defendant does not produce sufficient evidence to justify a finding in his favor on those issues, **the plaintiff will not have to introduce any rebuttal evidence.** - Moreover, if the plaintiff has not reserved evidence, **he will have to introduce his evidence on those issues without knowing precisely what evidence the defendant will introduce.** He will be rebutting evidence before that evidence has been presented. - However, depending on the nature of the issues and the evidence, it may be more convenient for the plaintiff to **introduce his evidence on all the issues at one time**, - for example, - he may seek **to prove all the issues by the same witness**, and - he may **introduce his evidence on all the issues at one time**. **[B. Production of Evidence by the Parties]** - There are no express provisions in the CPC governing the introduction of documentary evidence. but see art 138 - As a result, this sub topic focuses only the production of oral evidence. - The **primary responsibility** for the examination of witnesses **rests with the parties** - The court is also given **broad power** with respect to the examination of witnesses. - Witnesses are ordinarily called by each party - **the proponent\_** the party who calls the witnesses - **the opponent\_** the other party - **The manner of giving evidence, 261** - the witness first **takes an oath or affirmation** in the form provided in the **Third Schedule** to the code - If **a party wishes** to give evidence on his own behalf, **he shall do so before calling his witnesses** and he **shall then for all practical purposes be deemed to be a witness**. - Witnesses shall **give evidence orally in open court**, unless the court otherwise directs for good cause to be recorded. See it in light of art 20(1) of FDRE Constn - Where evidence is to be given in a language other than **working language of the court**, it **shall be interpreted** by the official interpreter or by such other person as the court may appoint for the purpose, 262 - The **translator shall** before interpreting the evidence, **take the oath or affirmation** in the form provided for by the Third Schedule to this Code. - Art 262 should also be seen in light of the federal arrangement of Ethiopia **Examination of witnesses** - There are three stages to examination of witnesses. These are: art 261 & 263 - The **examination-in-chief** - The **cross-examination** - The **re-examination** - The **rationale behind this process** is that, as a result of the process: - **everything the witness knows about the case will be brought to the attention of the court**, and - the court will be in a better position **to determine whether or not the witness is telling the truth** than if he merely testify in a narrative manner. **Examination-in-chief** - During **examination-in-chief**, the proponent tries - to bring out the evidence that will support his version of the case or - to develop the testimony of the witness in the light most favorable to him - Questions put in **examination-in-chief** shall : 263(1) - only relate to **facts relevant to the issues** to be decided and - See rules of relevancy in law of evidence - only to such **facts of which the witness has direct or indirect knowledge**. - The opponent is entitled to object on the ground that the evidence sought to be adduced by the question **is irrelevant or that it is incompetent** i.e. the witness does not have direct or indirect knowledge of the facts as to which he is testifying - **No leading question shall be put to a witness** with out the permission of the court. 263(2) **What constitute leading question?** - A question is considered to be **leading**, only where **the question itself suggests the answer** which the examiner wishes to receive. - The leading nature of the question is determined by - **the form** of the question and - **the tone** in which it is asked - In this regard, the most common example of leading question is one where the examiner concludes with a positive suggestion such as "didn't you?" or "weren't you?". - **Why it is forbidden?** The purpose of the rule forbidding leading questions is - **to prevent a witness** who is quick to adopt the suggestion of the examiner **from saying something that he would not say otherwise.** - The testimony must be that of the witness and not the examiner; the **examiner cannot put words in the mouth of the witness**, so to speak. - **to limit the proponent** in his examination of the witness and **to ensure that the testimony is genuinely of the witness**. - **The court may permit the asking of leading questions. Art 263(2)** There are **three situations** where the court could do so. These are: 1. **To save time** when the witness is being examined as **to introductory matters**. - The evidence of each witness shall start with his name, age, occupation and address, and to save time, the examiner can simply start "your name is......, isn't it?" 2. **To refresh memory,** where the witness cannot remember some or all of the matters as to which the testimony is sought. 3. **To assist child witnesses** who have difficulty in testifying. **Cross-examination** - Question put in cross-examination shall tend **to show to the court what is [erroneous, doubtful or untrue]** [ ] in the answers given in examination-in-chief. 263(3) - Leading questions may be put in cross-examination. - During **cross-examination**, the opponent tries to discredit or destroy testimony of the witness. - Wigmore called it **"The greatest legal engine ever invented for the discovery of truth"** - **Purposes of cross examination** - To discredit the testimony of the witness and persuade the court that it should not believe such testimony - To show that the witness has omitted facts or is not relating the facts correctly - To show that the witness is not likely to tell the truth, which is called impeaching credibility - **Methods of impeaching credibility** are: showing - That the witness is biased in favor of the proponent or against the opponent, - That he has made prior statements inconsistent with his testimony in court, - That he has a poor reputation for telling the truth, - That he has been convicted of certain criminal offences reflecting on his trustworthy. **Re-examination** - During **re-examination**, the proponent tries **to rehabilitate testimony of the witness** and **minimize the effect of cross-examination**. - No question shall be put in re-examination except for the **purpose of clarifying matters**, which have been raised in cross-examination. 263(4) - To clarify the matter means: - To show that the original testimony is to be believed - To rebut the unfavorable evidence brought out on cross examination - There is no clarity on the permissibility of leading question in re-examination **[C. Power of the Court during production of Evidence]** - The Ethiopian CPC has given the courts **broad power with respect to the examination of witnesses** and the production of documents at the trial. - the court has **the power to put a question to a witness at any time** during the examination. Art 261(4) - The court has also **the power to call a witness even though he has not been called by the parties** and may order any such person to produce any document that he has with him. Art 249 - The court has **the power to recall any witness who has been examined** and **may put to him** such questions as it thinks fit. Art 266 - So, it is only the court that examines the recalled witness and the parties do not have a further opportunity to question him - **What is the effect of a party's refusal to give evidence?** - **Where a party** to a suit present in court , without a lawful excuse, **refuses to give evidence or produce a document** then and there in his possession or power when required to do so by the court, **the court may pronounce judgment against him** or make such order in relation to the suit as it thinks fit. Art 267 - The judgment may be pronounced based on the rules of contempt of court or refusal to aid justice - However, the court may decide not to take such a step and may issue the same kind of order as it would against any recalcitrant (disobedient) witness. See 268 and 118 **Recording of evidence** - According to Art. 269 of the CPC: - The evidence of each witness **shall start with his name, age, occupation and address** and **an indication that he has been sworn or affirmed**. - The evidence of each witness **shall be taken down in writing by the presiding judge** or, if he is for some reason unable to record, by a judge or clerk under his personal direction and superintendence. - The evidence **shall be divided into examination-in-chief, cross- examination, and re-examination** with a note as to where the cross-examination and re-examination begin and end. - The evidence **shall ordinarily be taken down in the form of a narrative**, but the presiding judge may in his discretion take down or cause to be taken down any particular question and answer. - When completed, the record **shall be signed by the court**. - **Recording the details of an objection to a question is mandatory, art 270** - the court must record the question, the answer, the objection, the name of the person making it and the courts ruling. Art. 270 - This is to enable the appellate court to determine whether the objection was properly overruled. - **Change of Court or judge doesn't affect the importance of recorded evidence, art 271** - the suit continues on the basis of the evidence that has been recorded, and it is not necessary to hear that evidence over again - The same procedure is followed when there is transfer of suit as per art 31 - **The Court has the power to inspect a property or thing, art. 272:** - The court may **inspect any property or thing** concerning which any question arises and - In such case, **it shall draw up a process-verbal** of its proceedings which shall form part of the record. - This is called **Court view evidence**, and it may help to ascertain what probably happened. - **The court may also appoint a commissioner to make a local investigation, 132 & ff** - It is ordered for the purpose of **elucidating any matter in dispute** or **ascertaining the market value** of property, or **the amount of mesne profits** or **damages** or **annual net profit** \[Art.132\]. - It **avoids the necessity of taking time at trial** to determine such matters - It is particularly important where **complicated financial questions** are involved. **[1.1.3. Judgment and Decree]** **Meaning** - **Judgment** shall mean the statement given by the court (judge) on the grounds of a decree or order. - Determining whether an adjudication in a particular proceeding is a judgment or not, depends on - Whether it terminates the suit or proceedings - Whether it affects the merits of the controversy between the parties in the suit - **Decree** shall mean the formal expression of **any preliminary or final adjudication** which, so far as concerns the court expressing it, **conclusively determines** the rights of the parties concerning all or any of the matters in dispute in the suit. art 3 of the CPC - Decree may be partly preliminary and partly final - Decree, whether preliminary or final, is binding on the parties - Read art 180 -- 191 of the CPC in detail - **The right to a public, reasoned and timely judgment** is guaranteed under art 14(1) of the ICCPR and it forms part of the overall right to a public hearing. - The right requires that the judgment must be - **publicly pronounced and accessible**; - **reasoned**; and - **pronounced within a reasonable time** - The right is founded on - the idea of the **open and transparent administration of justice**, which **protects individuals from arbitrariness**. - Public access to judicial decisions helps to - avoid the administration of justice in secret, - protects against abuse of the judicial process, and - helps to maintain public confidence in the administration of justice. **Form & Pronouncement of Judgment** - The court shall pronounce judgment in an **open court** either **immediately** or on **some future day to be fixed by the court**. - the judgment shall be: 181 - reduced to **writing**, - **signed** by the member or members of the court and - **pronounced** by the judge or presiding judge - But, a judgment, when signed, may be pronounced by a judge or judges **other than those who signed** it. Art 181(3) - Where a case has been heard by more than one judge, **the decision of the majority shall be the judgment of the court** - If any, the **dissenting judge shall state** in writing the **decision which he thinks should be made** together with the **reason** therefore. - **Decisions and Opinions** - **Unanimous Opinion**. when **all of the judges agree**. - **Majority Opinion**. When there is not a unanimous opinion, a majority opinion is written. This outlines **the views of the majority of the judges** on this particular issue. - **Concurring Opinion**. Concurring opinions are usually written when a judge **agrees with the decision for but for a different reason**. - **Dissenting Opinion**. This is sometimes called the \"minority opinion.\" This is written by the judges **who disagree with the majority opinion**. - **Contents of the judgment: 182** a judgment shall contain - **a concise statement of the case**; in first instance judgment - **the points for determination**, - **the decision thereon** - **the reasons for such decision** - **the relief to which the appellant is entitled**; in case of appellate judgment and where the decree appealed from is reversed or varied, see **FSCCD V. 16 Case No. 92903** - In case where several issues have been framed, **the court shall state its decision on each separate issue**, unless one of them settle the case - **A court of first instance may not give judgment on any matter not specifically raised by parties**. Art 182(2) and 124 - ተከራካሪ ወገኖች በግልጽ ባላመለከቱት ነገር ላይ ተመስርቶ ውሣኔ መስጠት ስላለመቻሉ, Volume 6 Case No 31547 - ዳኝነት ባልተጠየቀበት ጉዳይ የሚሰጥ ፍርድ አግባብነት የሌለው ስለመሆኑ, Volume 8 Case No 33945 - Judgments of courts should adequately state the reasons on which they are based. - **Importance of Reasoned Judgment** - important to the legal principle of *stare decisis*, by which judges, especially in common law systems, are obliged to respect the precedents established by prior decisions. This, in turn, contributes to certainty about the interpretation and application of the law, which carries with it the possibility of creating a deterrent effect both against the repetition of conduct amounting to a civil wrong or a criminal offence, or the repetition of State practices in violation of human rights or other important norms, such as constitutional obligations. - contributes to the development of the jurisprudence in civil law systems, in that it allows judges to challenge leading case law. - allows parties to judicial proceedings **to determine whether or not there are grounds to appeal** a court's decision, and for **preparation of the appeal** itself. As concluded by the European Court of Human Rights, there can be no useful or effective enjoyment of rights of appeal without a judgment that indicates with sufficient clarity the grounds on which the decision was taken. - serve the purpose of **demonstrating to the parties that they have been heard**, thereby contributing to a more willing acceptance of the decision. - there can be **public scrutiny** of the administration of justice. - facilitates the analysis of, and **academic or professional commentary** on, the interpretation and application of the law, as well as potentially forming the basis of legal reform. - **Contents of the decree** - Since the judgment itself cannot be executed, the court must reduce **the operative part of the judgment to the form of a decree**. - Contents of a decree is clearly provided under **article 183** of the CPC, read it! - In general the decree **shall agree with the judgment** and **shall contain** 1) the number of the suit 2) the name, address and description of the parties 3) the particulars of the claim 4) the relief granted 5) cost of the suit, the burden and mode of payment 6) particulars of the execution 7) the date of judgment and the signature of the judge - directions to be given in certain decrees in particular cases are also provided under **article 185-191**, read it!! - Lastly, **certified copies of the judgment or decree or both shall be furnished to the parties** - on application to the registry of the court and - the date when such copy was furnished shall be mentioned thereon. **[1.2. Special Proceedings ]** - It includes summary procedure and accelerated procedures - **Summary procedure** refers to a procedure by which the plaintiff may prosecute his claim without the necessity of instituting a full-scale suit. - **Accelerated procedure** provides for the immediate hearing of certain kinds of cases speedily and without a full-scale suit, because - the nature of the case requires and renders suitable an immediate disposition. - Although the **procedures are different** and **applicable in different kinds of cases**, they are related in the sense that **the questions involved in both kinds of cases may be determined without full-scale suit**. **[1.2.1. Summary Procedure]** - Where summary procedure is available, **the plaintiff has the option to employ it**, but **he/she is not obliged to do so**. - Summary procedure is available where the plaintiff seeks only to recover a **debt or liquidated demand in money** payable by the defendant and arising: - **Upon a contract**, express or implied such as on **a bill of exchange**, **promissory note** or **other simple contract debt**, or - **On a bond or contract written for payment of a liquidated amount of money**, or - **On a guarantee** where the claim against the principal is in respect of a debt or liquidated amount. - The crucial question is the **liquidated amount of the debt**. - The plaintiff must be entitled to recover **a specific sum of money ascertained at the time of suit**. - Summary procedure is designed for cases **where the defendant is not likely to have any defence** to the plaintiff's claim - Where the plaintiff wishes to employ the summary procedure, he - **endorses** his statement of claim **"Summary Procedure"** and - **submits an affidavit**, prepared by him or any other person who can swear positively to the facts, - **verifying his cause of action and the amount claimed**, & - **stating that in his belief there is no defence to the suit**. - The statement of claim is not served on the defendant together with ordinary summon. Instead the court serves a **special summons** in the form set forth in the Second Schedule No 17 or in such other form to be prescribed. - The summons advises him that **he has been sued for a sum of money on a specified obligation and that he must obtain leave to defend the suit**. - He may not appear and defend unless he applies and obtains such leave from the court. - If the defendant or one of the several defendants fails to make such an application within the time fixed by the summons, - **the plaintiff is entitled to a decree for** - **an amount not exceeding the sum claimed in the statement of claim** together with - **interest** if any, and **costs** against the defendant or such of the defendants as have failed to apply for leave to defend. - Once the judgment has been entered in favor of the plaintiff, **the court should be able to pass the same kind of decree as in any other case**. - In line with Art 286 of the Civil Procedure Code, an application for leave to appear and defend **is to be supported by an affidavit**, - which states whether the defence alleged goes to the whole or part only and, if so, - to what part, of the plaintiff's claim. - The **plaintiff must be served with notice** of the application and with a copy of the defendant's affidavit. - Following the application, **the court will hold a hearing**, at which time the defendant may be - **examined on oath** and - **required to produce relevant deeds, books, documents and the like**. - Where **the court refuses to grant such leave,** - **the plaintiff shall be entitled to judgment** as against such defendant. Art 287 of the CPC - If the court is in doubt whether the defence is bona fide, but is not convinced that it is not, - it should **grant the leave, but should make it conditional.** Art 288 - If the defence **applies only to part of the claim** or **part of the claim is admitted**, - **the court enters a judgment for the plaintiff in the amount of the admitted claim** of such terms as to - suspending execution or the payment of any amount realized by attachment, or taxation of costs as it may think fit. - The defendant is then given leave to appear and defend as to the balance of the claim. - **In the case of multiple defendants**, - **where not all are entitled to leave to appear and defend**, **the court is to grant leave only to a defendant who has defence to the claim** of the plaintiff. - As to the others, the plaintiff is entitled to a decree on which he may obtain execution without prejudice to his right to proceed with the suit against the defendant or defendants given leave to appear and defend. - **Where leave, whether conditional or unconditional, is given**, - the court may make orders with respect to the filing of pleadings, framing of issues and the like, or - may order the case to be heard immediately. - If the issues are clear, it should order an immediate hearing, since the purpose of the summary procedure is to enable the plaintiff to have his claim determined as soon as possible. - Once the court allows the defendant to defend the case, **the summary proceeding will be turned to ordinary proceeding** and the case will be handled as any other ordinary cases. - Finally, if the court, as per art 292, has entered judgment for the plaintiff, but **subsequently discovers that the service of the summons was not effective or that there is good cause for doing so**, - **it may set aside the decree** in favor of the plaintiff and **give the defendant leave to appear** and defend, if it seems reasonable to do so. - It may also **stay or set aside execution** and **impose terms as it sees** fit. **1.2.2. [Accelerated Procedure, 301 - 314]** - the provisions that will be discussed in this section are designed to facilitate the disposition of cases - **where the claim is not likely to be disputed** or - **where the nature of the claim is such that an immediate decision is required** and **feasible.** - The provisions - **provide an expeditious remedy** in appropriate cases and - **avoid full-scale proceedings** where such proceedings are unnecessary and perhaps undesirable. - a party entitled to have his case heard under accelerated procedure: art 301 - **must file a written**, dated and signed application - **must file within the period fixed by law** for the making of such applications, or where no period is fixed, **within fifteen days from the occurrence of the facts** on which the application is based. - **must specify the capacity** in which the applicant acts and - **must indicate the provisions of the law** under which it is made; - **must also be supported by an affidavit** stating the reason of it. - **must include the required documentary evidences** as the applicant wishes to submit. - The **proceeding is ex-parte**, and the defendant is not served with notice. - In this regard, the application will be dismissed - if the applicant is not qualified to act in the proceedings or - if it is not in the proper form or not filed within the prescribed time, or - if the court considers that the subject matter of the application cannot be properly disposed of under the accelerated procedure - However, **a dismissal of the application does not operate as res judicata** as to the subject matter of the application, but - a **fresh application may not be made on the same ground** to be dealt by and through **accelerated procedure**. - Whereas, where the application is allowed, on the basis of Art 303 of the Civil Procedure Code: - the court **shall make its decision in accordance with the provisions** of the following Articles and - such **decision shall be written in the form of judgment or written order**, as the nature of the case may require. - unless otherwise provided in this chapter or the law under which the application is made, **the court shall make its decision on the basis of the application**. - **nothing** in sub Art (2) **shall prevent the court from requiring the production of such evidence or additional evidence** as may be necessary, on such terms, in such manner and within such time as the court shall direct. - Furthermore, in line with the above stipulation, Art 304 of the Civil Procedure Code provides that: - Any decision under this chapter shall be made or given on such terms as to costs or otherwise as the court thinks fit. - No decision under this chapter shall be a bar to the making of such further orders as may or must be made pursuant to the law under which the application is made, or as may appear expedient in the circumstances. - There is no provision by which an interested party has the opportunity to appear and oppose the granting of the application. - However, a number of cases in which an application is authorized involve only one party, and - Where another party would be interested, he could move the court to modify or set aside its order granting the application. - In the civil procedure code, it is specifically provided that the court may always **make a further order when necessary**. - As to the right to appeal, Art 306 of the CPC provides that unless otherwise provided by the law under which the application is made, - **no appeal shall lie from any decision** under this chapter other than a judgment under Arts 309-311. - where an appeal lies **it shall be made within ten days from the giving of such judgment** and - **such judgment shall not be enforced until the period for appeal has expired or the appeal has been decided**. - The scope of application of accelerated procedure is provided under Art 300 of the CPC. - Accordingly, the code refers to specific applications and contains directions to be followed in the disposition of such applications. - However, **if the court concludes that a case could properly be disposed** of in accelerated procedure, **applications other than those expressly referred to in the code may be heard** under accelerated procedure. - **Issues of certificate, Art 305 of CPC:** - On making its decision in favor of the applicant and where he so requires, - the court **shall provide him with a dated and signed certificate** stating in a concise form the contents of such decision. - The provisions of sub-Art (1) shall apply in particular in matters concerning - **change of name** (Arts 42 and 43 of Civil Code), - **withdrawal of interdiction** (Arts 377 Civil Code), - **opposition to marriage** (Art 592 Civil Code), - **widowhood** (Art 596 Civil Code) as well as - in cases of applications to consult or to be issued with certain powers or documents or to be authorized to depart from certain instructions (Arts129, 209,239,287,523,528,535 and 630 Civil Code) - Where an application is made - **for the correction or cancellation of records or entries in the registers** (Arts 121,127, 1623 and 1630 Civil Code) or - **for approval or confirmation** (Arts 146,628,633,749,763,766,767 and 804 Civil Code and Art 441 Commercial Code) **or registration or certification**, - the court may, **without further proceeding**, but **after having ordered such investigations** as may be necessary, - **give such directions** as are appropriate in the circumstances, or - **issue a certificate** evidencing approval, registration or certification or - **endorse the fact** of approval, registration or certification on the relevant document, as the case may be, together with the date and number thereof where appropriate. **1.3. Other Procedural Matters** - Arrest before Judgment, 147-150 - Attachment before Judgment, 151-153 - Temporary Injunctions, 154-159 - Interlocutory Orders, 160-165 - Appointment of Receiver, 166-169 - Habeas Corpus, 177-179 - Cost, 462-466 - **Read the code & teaching material in detail and be careful about it!!** - **Arrest before Judgment, 147** - These rules are applicable **only** to **suits not involving immovable property**. - A **warrant** of **arrest** may be issued against the defendant where the court is **satisfied** that the defendant with **intent** to **delay** or **obstruct** execution of **judgment** :- - **1**. **Removed property** from such limits; or - **2**. Is to **leave Ethiopia** affording a **probability** that the **plaintiff may be obstructed** - **Purpose** - is to require the defendant to **furnish** **security** - but, the defendant can **avoid arrest** by paying **the sum specified in the warrant**, **sufficient** to satisfy the plaintiff's **claim**. - **Refusal to furnish secur**ity - Court may order the defendant to be **detained in the civil prison** **until**:- he **complies** with the **order** or the **decision** of the suit or the decree **satisfied**: - However, the defendant may **not be so detained for more than six months**. - See **Art. 150** - **Attachment before Judgment, Art 151** - This rules is designed to **prevent the defendant** form **disposing** of or **removing** his property so as to **prevent execution**. - This rule is **applicable to all suits**, including those involving **immovable** property. - The **action** to attach **taken where the court is satisfied** that the defendant, to **obstruct** or **delay** **execution** against him is about to :- - **Dispose** of the whole or any part of his property or - **Remove** such property from the local limits of the court's **jurisdiction**. - **Where the court is satisfied that the property might be disposed of or removed** - **Direct** the defendant to **furnish security**, or - **Produce the property** or its **value** as may be **sufficient**, - **Order** that he **appear** and **show cause why he should not furnish security**. - The following **three remedies** are employed to **insure** that the purpose of bringing suit will **not be defeated** by **action** that occur during the **pendency** of the case - 1\. **Temporary Injunctions** - **2**. **Interlocutory Orders and** - **3. Appointment** **of Receiver** - **Temporary Injunctions,** 154-159 - **Temporary injunction** is issued during the **pendency** of the suit to **prevent certain action** that would **prejudice the other party** from taking place. - Civ Pr C **authorizes** the issuance of a temporary injunction in **two kinds of situations**:- - **1**. Where **action** taken with respect to **property** will **prejudice** the other party; - **2**. Where, in a suit to **restrain** the **breach** of a **contract** or the **commission** of an act, the **defendant is threatening to breach the contract or do the act pending litigation**. - **Temporary injunction to prevent dealing with Property, 154** - In this regard, an **injunction may be granted** if the **court is satisfied** that:- - **1**. The property in dispute is in **danger of being wasted**, **damaged** or **alienated** by a party to the suit; - **2**. The property in dispute is in **danger** of being **wrongfully sold in execution** of a decree, or; - 3\. The **defendant threatens** or **intends** to **remove** or **dispose** of this property to **defraud** his creditors. - **Violation of an Injunction is punishable** in **three ways**:- - by the **attachment** of the **property** of the person or, - by **contempt** proceedings under article - By criminal law provisions - See Art **156(1**) - **Interlocutory Orders, 160-165** - It is **any order** that the court considers **necessary** to be made pending the determination of the suit. - The court may at **any** **time** make such orders and this **includes**:- - Orders for the **custody** of a minor - Orders for **payment** of **alimonies** - Order for the **Detention**, **Preservation** or **Inspection** of property - **Habeas Corpus** - **Latin** word to mean, \"You have the **body**\". - **Prisoners** often seek release by filing a **petition** for a writ of Habeas Corpus. - The **petition** must show to the court that the detention or imprisonment is illegal. - Both Federal and regional courts have the **jurisdiction** over suits regarding Habeas Corpus - See Art. 15(2)i of the CPC & Proc. No. 1234 and regional courts establishment procns. - The Procedure for Habeas Corpus is provided under Art. 177-179 of Ci.Pr.C **CHAPTER THREE** **REVIEW OF JUDGMENTS** - **2. REVIEW OF JUDGMENTS** - Review is the act of looking, offer something again with a view to correction or improvement. - The law is in favor of **finality of decisions** made lawfully and properly. - However, exceptions are made **to prevent miscarriage of justice**. - Universal acceptance of **human fallibility** or imperfection is the philosophy behind review of judgments - there are three ways of reviewing a judgment. - Review by the court which rendered the judgment, - Review before an appellate court and - Review before the court of cassation. **[2.1. Review by Court of Rendition]** - It is a judicial re-examination or re-consideration of a case by the same court - In general, review power should be exercised - **to prevent miscarriage of justice** or - **to correct grave errors** and - **not to change or substitute a view**. - there are three bases in which the court of rendition will revise its own decision. - Procedural Irregularity, 209 - Newly Discovered Evidence, 6 - Opposition, 358 **[2.1.1. Procedural Irregularities], 207-212** - **Procedural irregularities** simply means non-compliance with the provisions of the Code - A **procedural irregularity** is different from **a mistake** - mistakes or errors do not constitute irregularities - Errors or mistakes can easily be corrected and do not affect the validity of the proceedings. - **See Art 208:** The court may on its own motion or on motion of the parties, correct any clerical or arithmetical *mistakes* in the summons, judgment, decree or order or any errors arising in those documents from any accidental slip or omission. - See FSCCD\_V\_8\_ 37303 - - If the court, which rendered the judgment, - understands that - there were **procedural irregularities**, and - such **irregularities have *substantially affected*** the disposition of the case to the determinant of one of the parties - it may, - on its own motion or - on motion of either party, - **set aside the proceedings** - in whole or in part as irregular, - **amend them**, or - **make** such **other order** as may be appropriate. - Where such irregularity has occurred prior to the taking of the preliminary objections or during the course of the proceedings, - the party affected **must raise his objection at that time**. - Where it has occurred subsequently, - the court may **refuse to give judgment**, or - if it has already rendered judgment, **it may set it aside**. - In order for the court of rendition to review its judgment; - the procedural irregularity **must substantially affect the decision of the case on the merits**. - Even if the irregularity might have affected the judgment that was given, - **the proceedings will not be set aside if the irregularity can be corrected**. 210(1) - Where the proceedings are **set-aside in part**, **any step taken** prior to the occurrence of the irregularity **shall not be affected**. 210(1) - For instance, if an irregularity occurred at the trial, the proceedings of the trial would be set aside, but those which took place at the first hearing will remain binding. - The **occurrence of the irregularity may not be taken as a ground of appeal**, unless an application to set aside the proceedings on grounds of irregularity has been made to the trial court. Art 211 & 320(2) - Exceptionally, - an irregularity arising from an alleged lack of material jurisdiction or - an irregularity alleged to exist in the judgment or decree - **may be taken as a ground of appeal without an application to the trial court** - But, an appellate court - may at any time **of its own motion correct any irregularity** having **occurred in the proceedings** in which the judgment appealed from was given - Provided that, where the irregularity was such as to **prevent a valid judgment from being given**, - the proceedings in which such judgment was given **shall be quashed** and - the Appellate Court shall **order the retrial of the case**. - Any irregularity is deemed to have been validated - where no appeal is taken from the judgment or - where the judgment is confirmed by the appellate court. Art 212 - On procedural irregularity please see FSCCD Volume 1\_Case No\_17352 **2.1.2. Newly Discovered Evidence, 6** - Review of the judgment on the ground of newly discovered evidence is provided under art 6 of CPC - A party may apply for review of the judgment in the court of rendition on the ground of newly discovered evidence where: 1. **no appeal has been taken from the judgment or no appeal lies (*this condition is not applicable now, its made in applicable by cassation decision*)** - \(1) any party considering himself aggrieved - by a decree or order from which an appeal lies, but from which no appeal has been preferred, or by a decree or order from which no appeal lies - But see **FSCCD V\_2\_ 16624 -- only possible before appeal** **Vs.** - **FSCCD V\_9\_ 43821 -- possible after appeal** - ዳኝነት እንደገና እንዲታይ በሚል የሚቀርብ አቤቱታ አስቀድሞ በተሰጠ ውሣኔ ላይ ይግባኝ የተባለበት ነው በሚል ምክንያት ብቻ ውድቅ ሊደረግ የማይገባ ስለመሆኑ 2. subsequent to the issuance of the judgment, **he** **discovers new and important matter such as forgery, perjury or bribery**, 3. which, despite the exercise of due diligence, **was not within his knowledge at the time of giving the judgment**; and 4. had such matter been known at the time of giving the judgment, it would have **materially affected the substance of the decree** **or order** the review of which is sought. - Discovering of new evidence by itself is not enough for some one to claim for revision of the judgment of the trial court. - **Can a change in position on interpretation of law by subsequent decision of FSCCD in any other case be a ground to apply for review of judgment?** - See it in light of India's experience. - In Indian CPC in the First Schedule, in Order 92 (i)in rule 1, the following Explanation is inserted at the end, 5. \"Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.\" - In short, there are three criteria that should be fulfilled, so that the court of rendition can review its own judgment. These are: - the evidence **must be** discovered **after the judgment** is rendered, - the newly discovered evidence **must affect the decision**, and - the evidence **must be** of such nature as to **suggest** **improper conduct**, which tainted the judgment with fraud. i.e., forgery, perjury, bribery or the like. - The above stated three criteria are interrelated to each other. - If one of the criterions failed, the court of trial will not be in a position to review the judgment. **Application Procedure:** - The application for review, 6(2) 1. **must contain** the same **particulars as a memorandum of appeal**, and 2. **must be supported by an affidavit** that contains - strict proof that **the new evidence relates to forgery, perjury, bribery** and the like, and - the evidence was **not**, by the exercise of due diligence, **within the knowledge of the applicant** at the time of judgment. 3. **must be filled within one month** from the time the evidence was discovered. - There is no period of limitation related to the discovery of the evidence, and an application for review party. - Once verifies the fulfillment of technical requirements, 6(3) 4. the court **give notice to the opposite party** to enable him to appear and **be heard** in support of the decree the review of which is sought. - After hearing the opposite party, if it finds the application for review should be granted, 5. the court **shall make** such order in regard to the **re-hearing of the case** as it thinks fit - **No appeal lies from** the order of the court **granting or rejecting** an application for review. 6(4) 6. But compare it with its Indian counterpart - **1\[(*1*) An order of the Court rejecting the application shall not be appealable ; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.\]** - **Does this provision prohibit an appeal from the decree or order finally passed on the case?** - **Does it contradict with the right of appeal provided under the FDRE Constitution?** **See cases** - **V\_15\_91968** - ሀሰተኛ ማስረጃ ለፍ/ቤት በመቅረቡ የተነሣ የተወሰነበት ተከራካሪ ወገን የፍ/ብ/ሥ/ሥ/ህ/ቁ. 6(1)ን መሠረት በማድረግ ፍርዱ በድጋሚ እንዲታይለት አቤቱታ ባቀረበ ጊዜ ሀሰተኛ ማስረጃውን የሰጠው አካል በምን ምክንያት በህገ ወጥ ተግባር ሀሰተኛውን ማስረጃ ሊሰጥ እንደቻለ የማስረዳት ግዴታ ጭምር አለበት ለማለት የማይቻል ስለመሆኑ፣ - **V\_15\_93137** - የዳግም ዳኝነት (Review of Judgement) ዓይነተኛ ዓላማ ተገቢ ሁኔታዎችና ፍሬ ነገሮች ተሟልተው መገኘታቸው ሲረጋገጥ በሀሰተኛ ማስረጃ፣ በመደለያና በመሰል ወንጀል ጠቀስ ድርጊቶች ምክንያት የተዛነፈን ፍትህ ወደ ነበረበት መመለስ ስለመሆኑ፣ - የዳግም ዳኝነት ጥያቄ (አቤቱታ) ፍሬ ነገርን የማጣራትና ማስረጃን የመመዘን ተግባራት የሚከናወንበት በመሆኑ ጥያቄው ለሰበር ችሎት በቀረበ ጊዜ ችሎት አቤቱታውን ፍሬ ነገር የማጣራትና ማስረጃ የመመዘን ስልጣን ላላቸው የስር ፍ/ቤቶች ሊመራውና ሊያስተላልፈው በሚገባ ስለመሆኑ፣ የፍ/ብ/ሥ/ሥ/ህ/ቁ. 6(1)(ሀ)(ለ) **2.1.3 Opposition, 358** - Opposition can be raised by a person who, though not a party, is affected by the judgment. - To raise opposition, as per article 358, **four conditions must be fulfilled**. Any person, may file opposition to a judgment, where: - He is **not a party** to the suit and **doesn't know about the suit (FSCCD V 12\_56795** ) - He is that type of person **who should or could have been made a party** to a suit and - His **interests are affected** by a judgment in the suit, - the **judgment is not executed**. - V\_16\_93987 - በፍ/ብ/ስ/ስ/ህ/ቁ 358 መመዘኛ የሚያሟላ አቤቱታ አቅራቢ (ፍርድ ተቃዋሚ) የሚቃወመው ፍርድ በይግባኝ ያልተሻረ (ዋጋ ያለው) እና ያልተፈፀመ መሆን ያለበት ስለመሆኑ፣ - Although there is no requirement to this effect in the Code, - it is submitted that, except for indispensable parties, the application to file opposition should be rejected **if the applicant was aware of the suit prior to judgment**. - However, it is also hard to deny a party with real interest which opposes the judgment of the court before it is executed because of two reasons. - First, even though he or she was aware of the litigation, it is hard to prove its awareness of the litigation. - Second, if it is found that he was aware of the proceeding, it is difficult to deny him opposition as the code does not deny him the to file opposition when he is aware of the litigation. - Which argument do you think is convincing? See **FSCCD V 12\_56795** - Based on those requirements, **three classes of persons would be able to file opposition**, these are: - indispensable parties, - persons who are the real parties in interest, and - persons who, as a result of the decree, will be liable for contribution or indemnity to the unsuccessful party. - The **purpose of opposition is**: - **to enable a person** who is affected by the judgment, but who was probably unaware of it at the time of rendition, **to prevent the interference with his interests** that will result if the judgment is executed. **Procedure** - An opposition shall be in the **form of a petition** and the prescribed **court fee must be payable** - The opposition **must be filed** in the court having **given the judgment opposed** to. - See it in light of cassation courts power - The petition shall be **accompanied by an affidavit** of the truth of the facts therein alleged. - The proceedings upon the filing of the opposition shall be subject to **the same provisions as the proceedings upon the original action** and - the court may on the completion of such proceedings **confirm, vary or set aside** the judgment opposed to. - **See also the following FSCCD cases on opposition** 1. **V\_6\_32638** - **ወደ ክርክር መግባት ያለበት አካል በክርክሩ ተሳታፊ ሳይሆን የተወሰነው ውሣኔ መብቱን የሚነካ ሆኖ ሲገኝ ውሣኔው ከመፈፀሙ በፊት ውሣኔው እንዲነሳና ክርክሩ እርሱ ባለበት እንዲቀጥል መጠየቅ የሚችል ስለመሆኑ** 2. **V\_9\_40229** - **ጣልቃ በመግባት በክርክር ተሳታፊ ለመሆን ጠይቆ የተፈቀደለትና የጣልቃ ገብነት አቤቱታውን ለተከራካሪ ወገኖች ማድረስ ሲገባው ይህን ባለመፈፀሙ መብቱ ከተሰረዘበት በኋላ ፍ/ቤቱ በሰጠው ውሣኔ ላይ በፍ/ብ/ሥ/ሥ/ህ/ቁ. 358 መሠረት የሚቀርብ አቤቱታ ተቀባይነት የሌለው ስለመሆኑ** 3. **V\_12\_42714** - **አስቀድሞ የተሰጠን ውሣኔ ለማስነሳት መቃወሚያ ማቅረብ የሚችል ወገን በክርክሩ መግባት የሚገባው ሆኖ ነገር ግን ተካፋይ ያልነበረ እንደሆነ ባልተካፈለበት ክርክር የተሰጠውን ፍርድ መቃወም የሚችል ስለመሆኑ** 4. **V\_13\_31264** - **የበታች ፍርድ ቤቶች ውሣኔ በሰበር ችሎት የተሻረ ሲሆን በውሣኔው መብቱ የተነካ ወገን በፍ/ብ/ሥ/ሥ/ህ/ቁ 358 መሰረት ለሰበር ችሎት መቃወሚያ ማቅረብ የማይችል ስለመሆኑ፣** 5. **V\_15\_83582** - **በፍ/ቤት በመካሄድ ላይ ከነበረ ክርክር ጋር በተገናኘ በተከራካሪዎቹ ወገኖች አመልካችነት ጉዳይ በእርቅ በማለቁ የተከራካሪዎቹን የእርቅ ስምምነት ተቀብሎ በማጽደቅ እንዲመዘገብ በማለት በፍ/ቤት የተሰጠ ትእዛዝ ላይ መብቴ ወይም ጥቅሜ ተነክቷል የሚል ወገን በፍ/ብ/ሥ/ሥ/ህ/ቁ. 358 መሠረት የሚያቀርበው የመቃወሚያ አቤቱታ ህጋዊና ተቀባይነት ያለው በመሆኑ ትእዛዙን የሠጠው ፍ/ቤት አቤቱታውን ተቀብሎ ሊያስተናግደው የሚገባ ስለመሆኑ፣** 6. **V\_16\_86398** - **የመቃወም አቤቱታ የሚመራው በመደበኛው የክርክር አመራር ሰርዓት ስለመሆኑ፡-** - **የመቃወም አቤቱታን የሚሰማው ፍ/ቤት ስላለው ስልጣን፣** **2.2. Review by Appeal to a Higher Court** - An appeal may be defined as - **A proceeding** undertaken **to have a decision reconsidered** by a **higher court**; esp., - **the submission of a lower court\'s decision to a higher court** for review and possible reversal - In the appellate proceeding the court **reviews the decision** of the subordinate court - **to determine** whether that court **committed such errors in its hearing and disposition of the case** - It means **a review of the case and *not a* *retrial* of the case** by the appellate court. - In this sub topic we will try to address: - Right of Appeal, Types of Appeal, Grounds of Appeal, Instituting Memorandum of Appeal, Procedure on Appeal, Judgment on Appeal, The Second Appeal, Restitution **2.2.1. Right of Appeal** - **Right of appeal is a human right** provided under article **20(6)** of the FDRE Con - Accordingly, All persons have the right of appeal to the competent court against an order or judgment of the court which first heard the case. - **Either party** or **both parties** may appeal against any final judgment rendered by the subordinate court. Art 320 - A party may only appeal **where he has been adversely affected** by the judgment - In appellate proceedings parties are named as: - Appellant: the party taking the appeal - **Respondent:** the party against whom the appeal is lodged - **Cross appellant**: the party who lodge a cross appeal - **Cross respondent:** the party against whom the appeal is lodged or the person who answers a cross appeal - In multi-party litigation, **any or all** parties may appeal if they are **adversely affected** by the decision. - The parties appealing **need not make all the other parties respondents** to the appeal. - The judgment appealed from is **presumed to be correct**, and **the burden is on the appellant to show that it should be reversed or varied**. - Thus, where there was an **appeal and a cross-appeal**, - **the appellant** would have the **burden of showing** that the portion of the judgment he was attacking was erroneous, & - the **cross-appellant** would have the same burden with respect to that portion of the judgment which he was attacking. - Where an appeal lies, but **a remedy is available in the court**, which gave the judgment or order, - **no appeal may be lodged until such remedy has been exhausted**. article 320(2) of CPC - E.g. where procedural irregularities have occurred in the subordinate court - There is **one appeal as of right, 321** - **appeal as of right** means an appeal to a higher court from which **permission need not be first obtained** or **no condition is attached to it**. **The Appeal Process** - Where the case was tried in the First Instance Court, **an appeal lies to the High Court** in whose area of jurisdiction that the First Instance Court lays; - Where the case was tried in the High Court, **an appeal lies to the Supreme Court**. - Where, on appeal, the appellate court **confirms** the judgment, **a further(2^nd^) appeal does not lie**. - If, however, the judgment is **varied or reversed, a second appeal lies to the next highest court**, - There is **no provision for a third appeal**. - See the Federal Courts Proclamation as well as State Courts Proclamation on courts that have appellate jurisdiction **2.2.2. Types of Appeal** - There are **two types of appeal**. These are - Appeal on Judgment and - Appeal on Orders (Interlocutory Appeal). **1. Appeal on Judgment** - Regardless of the length of the procedure, i.e., with out trial (at the first hearing) or after trial (full-scale trial), **if the case is adjudicated on its merits,** then any application for appeal on such judgment can be considered an appeal on Judgment. - any application **for review of orders** made by the court at any level of the litigation can be considered as appeal on judgment if **it is proved that such order is on the merit of the case**. - A decision constitutes a final judgment only where the decision itself - **finally disposes of the case** or - **results the closing down of the case**. **2. Appeal on Orders (Interlocutory Appeal)** - An interlocutory appeal is simply an appeal from an interlocutory matter, a matter on which the court has rendered a decision, **but the decision does not finally dispose of the case**. - **Interlocutory appeals are not permitted** - According to article 320(3) of CPC - **No appeal lies from** any decision or order of any court on **interlocutory matters** - But, any such decision or order **may be raised as a ground of appeal when an appeal is made against the final judgment**. - Examples of interlocutory matters would be - an order **on a motion for adjournment**, - a decision **on preliminary objections**, - a ruling **on the admissibility of evidence** and - a decision **on an application to sue as a pauper**. - **But there are Exceptions to this rule**: article 320(4) of CPC a person may appeal from any order: - directing his **arrest or detention**, or - **transferring property** from one party to another or - **refusing to grant** an application for **Habeas Corpus**. - **The justification is**: although such orders may be considered **interlocutory in nature**, - **they do involve restraint of a person or deprivation of property**, - **a person should be entitled to an immediate ruling on the validity of the detention or transfer**. - Even though the decision denies a party the relief requested, it may **not finally dispose of the case**, and, therefore, it is **not appealable**. - On the other hand, a judgment may be final, even though something else remains to be done. In such case appeal is allowed. - E.g. In a suit for partition or separate possession of property, the court may declare the rights of the parties and give directions for the actual partition before passing the final decree. appeal should be allowed. The rights of the parties in the controversy have been determined. - Therefore, **it is necessary to distinguish between a ruling on an interlocutory matter and the final judgment**. - This is not as easy as it might first appear, depending on the circumstances, a ruling on a matter essentially interlocutory in nature may, in effect, be a final disposition of the case. - **Where the ruling does dispose of the case, it is a final judgment and appealable.** **2.2.3. Grounds of Appeal, art 327(1)(e) & 328 (1-3)** - In the memorandum of appeal, the appellant - must set forth his grounds of appeal, or grounds of objection to the judgment appealed from. - They must be stated concisely and without argument; - where there is more than one ground, each ground shall be set forth separately and numbered consecutively. - The appellant **shall not urge or be heard** in support of **any ground of objection not set forth in the memorandum of appeal**. 328(2) - Exceptionally, he may raise any ground of objection **by leave of the court** - **See FSCCD\_V 22\_Case No\_** **137831** - However, **the appellate court**, in deciding the appeal, - **shall not be confined to the grounds of objection** set forth in the memorandum of appeal or argued by leave of court. - It **may decide the case on any ground** - **See art 328(3) & 182 (2) of the CPC** - But, **the appellate court can not, on its own motion, raise and base its decision on new facts that are not raised in the lower court** - see **FSCCD\_V\_6\_Case No\_25026** - በይግባኝ የሚደረገው ክርክር **በሥር ፍርድ ቤት የተነሣና የታየ ጉዳይ የሚመለከት እደሆነ**ና፣ ይግባኝ ሰሚው ፍ/ቤት የሥር ፍርድ ቤት ክርክሩን በሚመራበት፣ ማስረጃ በሚቀበልበት ወይም በሚመዝንበት እና ውሣኔ በሚሰጥበት ወቅት የፈፀማቸውን የሕግና የፍሬ ጉዳይ ስህተቶች ለማረም ነው፤ - ሆኖም ለይግባኝ ሰሚው ፍርድ ቤት በዚህ ድንጋጌ የተሰጠው ስልጣን ይግባኝ ሰሚው ፍርድ ቤት **ተከራካሪዎች በሥር ፍ/ቤት በመከላከያነት ሊያነሷቸው የሚችሏቸው ነገር ግን ያላነሷቸውን የመከራከሪያ ነጥቦች በራሱ አነሳሽነት በማንሣት ውሣኔ የመስጠትን ሁኔታ የሚጨምር አይደለም**፡፡ - Though the appellate court may decide the case on any rule of law it considers applicable, but it - **must give the party that may be affected the opportunity to present his arguments** as to the new rule of law, which may result in a reversal, and - should also give the other party the same opportunity as per article 327(3) of the CPC. - **A new fact cannot be raised for the first time on appeal,** **art 329 of the CPC** - except where the court permits the introduction of new evidence, the **appellant may not raise any new fact, which was not in evidence** in the subordinate court. - Fact in evidence should be construed to include **any objection or issue that was not raised in the lower court.** - This rule has two features and justifications: - 1^st^/ **the appellant may not raise new issues for the first time on appeal**. This is because: - The trial is limited those issues framed at the first hearing or subsequently by amendment, and - the only evidence introduced at trial relates to those issues. - Once the issues are resolved, the decision of the trial court may be reviewed by the appellate court, but - **it is too late to raise new issues with new evidence before the appellate court**. - 2^nd^/ the appellant may not raise new objections for the first time on appeal. This is because: - certain **preliminary objections** are waived if not raised during the trial court, i.e., at the first hearing, and, of course, they cannot be raised on appeal. - Moreover, where no **objection** was taken to **procedural errors** committed at the trial, such errors cannot be assigned as a ground of appeal. - So too, as regards **objections to the introduction of evidence**. If the opponent does not object to the introduction of evidence at the time it is sought to be introduced, he cannot contend that the subordinate court committed error in considering the evidence. - **The rational is that** - **the review on appeal is to be restricted to the questions that have been decided in the subordinate court.** - **It is the decision of the subordinate court on those questions that is being reviewed on appeal.** - But, **there are certain exceptions** to the general rule. - 1^st^/ **an objection on lack of material jurisdiction**. Lack of *material jurisdiction*, since it goes beyond the power of the court to proceed at all, may never be waived, and it is specifically provided that this objection may be raised on appeal, even though it was not raised in the court below. - 2^nd^/ The failure to join an indispensable party, since the absence of such a party affects the power of the court to hear the case, the objection may be taken at any time. - 3^rd^/ a party may make **a new legal argument on appeal**, even though this argument was not made in the court below. This refers to a **legal argument on an issue that was decided there**. - It does not seem objectionable to permit the raising of new legal arguments on appeal, **since**, as we have said, **the appellate court, can decide the case on the basis of any rule of law** it considers applicable. - It **cannot be said that the case is being retried**, because different legal arguments to sustain a party\'s position on an issue are raised on appeal. - 4^th^/ It is also possible to raise, that - the plaintiff has failed to establish all essential elements of cause of action - The contract on which the plaintiff sues is illegal or against public policy - Apart from the exceptions noted, **the grounds for appeal are to be limited to those** - **issues resolved by the subordinate court and** - **objections raised at the trial**. **2.2.4. Instituting Memorandum of Appeal** **1. Memorandum of appeal: Form & Content** - A party takes an appeal **by filing in the registry of the appellate court** memorandum of appeal **signed** by him or his pleader. 323(1) - Where there are **multiple appellants**, they **may file one memorandum** **signed by all** or by their pleader on behalf of all. 323(3) - The memorandum of appeal must contain the requirements stated under Art.327 of CPC. Read them! - Attached to the memorandum of appeal there shall be a **certified copy** - of the **full record of the proceedings** in which the judgment appealed from was given and - **of such judgment**. 327(2) - It shall be **made in such number of copies** as shall permit of one copy being **served on each of respondents**. 327(4) - The memorandum must state, 327(3) - **whether** the appellant **bases his appeal entirely on the record of the original hearing** or - whether **he desires to produce additional evidence** - If the appellant desires to produce additional evidence on appeal, 327(3) - **an application for permission to call additional evidence must be attached** to the memorandum. - The application for permission must include: 327(3) - the nature of the evidence, - the names and addresses of the witnesses to be called, - the reason why the evidence was not produced in the subordinate court - the reasons why it should be produced in the Appellate Court. - Where the memorandum is **not in the proper form**, it may be - **rejected or returned** to the appellant for the purpose of being amended within a specified time, or - **it may be amended** then and there. Art 330 **2. Time for appeal** - The memorandum must be filed **within 60 days from the time of the delivery of judgment**. Art 323(2) of CPC - However, some substantive laws may fix the period of limitation even **less than 60 days**. - For instance, in Labour proclamation no. 1156/2019, the period of limitation for appeal is only 30 days. - Arty 139(3) the party who is aggrieved with the decision of the first instance court may, **within 30 days from the date on which the decision was delivered**, lodge an appeal to the labour division of the Federal or Regional appellate court. - How is the time calculated? - **See FSCCD\_ V\_12\_Case No\_ 59085** - **V\_23\_ Case No\_ 152845** - ይግባኝ የማቅረቢያ የመጨረሻ ቀን የመንግስት ስራ ዝግ በሆነበት ቀን ላይ ያረፈ ሲሆንና በቀጣዩ የሥራ ቀን ይግባኙ ተዘጋጅቶ ሲቀርብ ይግባኙ እንዲከፈት መፍቀድ ሥነ-ሥርዓታዊ ስለመሆኑ - **Effect of Appeal filed out of time, Art 324(1**) - the Registrar **must refuse to accept** the memorandum of appeal, and - he **must inform** the appellant that **he may within 10 days file an application** for leave to appeal out of time. - The application for leave to appeal out of time, Art 325 - must be **in writing** and - must **show the cause why** the appellant **did not appeal within the prescribed period**. - must be **accompanied by such evidence** as may be necessary to enable the court to decide whether the appellant was prevented by good cause from appealing within the period. - If the court is satisfied that the appellant was prevented by good cause from appealing in time, - it records an order granting the application, and - the appellant shall file his memorandum of appeal within 10 days of such order. - See **FSCCD V 12 Case No 57360** - ይግባኙ በጊዜው ሊቀርብ ያልቻለው የባለጉዳዩ ጠበቃ፣ነገረፈጅ ወይም ወኪል የሆነው ሰው ባለመቅረቡ ወይም ከነዚህ ሰዎች ጋር በተያያዘ በተከሰተ ጉድለት መሆኑ ከታወቀ የማስፈቀጃ አቤቱታው በበቂ ምክንያት የተደረገ ነው ለማለት የማይቻል ስለመሆኑ - It is provided that no appeal lies from a decision dismissing an application for leave to appeal out of time. Art 326 - *Question*: - Is the decision of the court, which accepts an application for leave to appeal out of time, appealable. **3. Cross-objections** - As we have said, either party may appeal from the decree. - The party in whose favor judgment on the merits was entered may have certain objections to the decree, which he may want to raise in the appellate court, and if so, he may file **what is called a cross-appeal**. - However, the objections may be such that - he is unwilling to file an appeal in order to raise them; - he is relatively satisfied with the judgment as it is. - But, when the other party appeals from the decree, **he may decide that he now wants to raise such objections**. - Thus, a cross-objection - is merely the device by which a respondent **who did not file a cross-appeal may attack the decree after the unsuccessful party has taken his appea**l. - This is **analogous** to the provisions relating **to counter-claim and set-off**. - **The distinction between cross-objection and cross-appeal** - There is no substantive distinction between a cross-objection and a cross-appeal, and - **the same grounds of attack may be raised** by both methods. - Once, cross-objections have been filed, **the practical effect is the same as if he had taken a cross-appeal**. - The distinction refers solely to - **whether the successful party filed an appeal to challenge certain aspects of the decree**, in such case i.e., cross-appeal or - **whether he made his attack only in response to an appeal filed by the other party**, that is, by a cross-objection. - **The Procedure of Cross Objection** - **Article 340**, provides that the respondent may, - upon payment of the prescribed court fee, - **take any cross-objection to the decree or order which he could have taken by appeal** notwithstanding that he did not appeal from any part of the order or decree. - The cross-objections - must be filed **in the form of a memorandum of appeal** - must be filed **within one month from the time when the respondent is served with the summons** to appear and defend the appeal. - The cross-objection may be heard and determined notwithstanding that the original appeal is not proceeded with, Article 340 - So, even if the appellant decides to **withdraw the appeal**, **the court will hear the respondent\'s cross-objections** and may modify the decree as a result. - However, if the **original appeal were not validly filed**, there would be **no opportunity for the respondent to present cross-objections**. **4. Additional Parties** - Where the appellate court concludes that such a person **is interested in the result of the appeal**, it may direct that he be made a respondent. Art 40(5) - The appellate court has the power with respect to persons - **who were parties to the original suit** but - **who were not made parties** to the appeal. - If the party not called by the appellant is - an indispensable party, and when in his absence the appeal cannot proceed, - the court bring in a party as a respondent **5.Stay of execution** - The fact that an appeal has been taken **does not operate to stay the proceedings or to prevent execution of the decree**. - There are two approaches to the granting of a stay: - granting a Stay as of course and - granting a stay only in exceptional cases. - The Civil Procedure Code adopts the latter approach. - The fact that **an appeal has been taken** does not prevent execution of the decree, and it is only **where the appellant demonstrates that substantial loss will result if execution is not stayed** that the appellate court will interfere with the execution of the decree. - Execution **can be stayed only upon a showing** - that **substantial loss will result** if the stay is not granted and - that **appellant\'s furnishing security** for the performance of the decree. - A stay of execution may be ordered - by the **appellate court**, 332 - by the **court of rendition**, 333 - by the **president of the court of rendition**, 334 - But the application need to made to that court before the expiration of the time allowed for appeal. - Since both the appellate court and the subordinate court are authorized to grant stays, it seems that - The **subordinate court** should only order a stay **if an appeal has not been taken**. - Once an appeal has been taken, any stay should be granted by the appellate court. - After the decree has been executed, an application for a stay of execution cannot be entertained. - Where the case is before the appellate court, the **president** may grant **a temporary stay for a period not to exceed 15 days**, as may the president of the court, which passed the decree if an appeal, has not yet been taken. - The court or presiding judge may only issue a stay if satisfied that; - Substantial loss may result to the party applying for the stay unless the order is made; - the application has been made without unreasonable delay, and - money has been deposited, security given or a surety produced by the applicant, guaranteeing due performance of the decree as may ultimately be binding upon him. - The parties **must be heard on the application**, although the court **may, on application supported by affidavit, make an ex parte order of stay** pending the hearing of the application. **2.2.5. Procedure on Appeal** **1.Hearing of Appeal, art 337** - the memorandum of appeal s**erves as a pleading that originates the appellate proceedings**. - The appellate court may - **fixes a day for hearing, after hearing the appeal** - **it may dismiss the appeal without calling on the respondent to appea**r, - if it agrees with the judgment of the subordinate court. - If the appellant bases his appeal entirely on the memorandum of appeal and **does not apply for permission to call additional evidence**, - **Where the appeal is not entirely dismissed**, the appellate court is to, article 338 of the Cv.Pr.C. - **Fix a day for the appeal** and - **summon the respondent to appear**, advising him that if he does not appear, the appeal will, nonetheless, be heard - The **respondent must be allowed sufficient time to prepare** his reply and to appear and be heard. - On the day of the appeal, the proceeding is oral. - the **appellant is to be heard first**, since he has the burden of proof on the appeal. - the **respondent is then heard in rebuttal**, and - the **appellant is entitled to reply**. - The court may, however, require - the **respondent to submit a written reply** to the memorandum of appeal and - the **appellant to submit a written counter-reply**. - See article **339 of the Cv.Pr.C** **2. Framing of Issues** - If, during hearing the appeal, the appellate court concludes that the subordinate **court has omitted** - **to frame or try an issue** or - **to determine any question of fact** which is necessary for the decision of the suit on the merits, - the appellate court **may frame those issues and refer them to the subordinate court**, which is - **to take the evidence on those issues.** - The subordinate court, article 343 - **does not review its decision** in the case; - it **merely takes the evidence**, **makes findings**, and - submits the evidence and findings to the appellate court. - After they have been submitted, the appellate court proceeds to determine the appeal. **3. Additional Evidence, Article 345 of CPC** - **The general rule** is that the parties are not permitted to produce new evidence. - **All issues must be raised at the trial so that the court can render a final judgment on the merits**. - However, there are **three situations** where the introduction of **new evidence on appeal is authorized**. These are where: - the **subordinate court refused to admit evidence** that ought to have been admitted; - the **appellate court requires** any document to be or any witness **to be examined** to enable it to pronounce judgment; or - there is '**substantial cause,' justifying** the production of the evidence. **4. Review of Findings of Fact** - Basically, there are two approaches on this issue. - the appellate court will be dependent on the findings of fact made by the subordinate court. - the appellate court may determine on the findings of facts. - In Ethiopia, - the **appellate court is not bound to accept all findings of fact** made by the subordinate court, - and there are no express provisions of the Code dealing with the effect that is to be given to such findings. - However, if the appeal **is not to be a retrial of the case**, it follows that to some extent, - **the appellate court must accept the subordinate court\'s findings of fact.** - Ordinarily the appellate court will not have heard the witnesses and must base its decision on the record and any documentary evidence. - This factor is a crucial one in determining the extent to which the appellate court should be bound by the findings of fact made by the subordinate court. - Where - the evidence is essentially undisputed, or - all the evidence consists of documents, - the question is what inferences should be drawn from that evidence, and - **the appellate court is in as good a position to draw those inferences as the subordinate court**. - Where - the evidence is primarily oral, and - the decision depends on the co

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