CHAPTER ONE

PRE -TRIAL PROCEEDINGS

1.1. The First Hearing

1.1.1. Non -Appearance of parties

Effect of Non-appearance

Where there has been non-appearance, depending on who has failed to appear, four things can
happen:

1. The suit may be struck out; (Art. 69(2) or 70(d))(Effect;Pay crt fee & can institute
fresh suit)

2. The suit may be dismissed; (Art. 73, 69(2) (2) 70(d) or 73)(effect; no fresh suit the
same cause of action,unless z plaintiff shows good cause)

3. The court may proceed ex-parte; (Art. 70(a)) (Efect; z defendant never became a
party to z proceeding, unless he cames with sufficient cause)

4. The court may issue a default Proceeding; (Art. 233).

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. If the court is satisfied that the non- appearing party was prevented due
to sufficient reason, it may order to set aside the order and the case will continue to
proceed.

1.1.2. Examination of Parties

If the issue of appearance is decided and the case can be proceeded, the next task of the court in
the first hearing will be examination of parties.
Z crt reads the pleadings and asks the parties on the pleadings. The question is whether each
party or his pleader admits or denies the allegations of fact in the pleading of the other party that
have not otherwise been denied. You remember that we have said when we discuss pleadings
that every allegation of fact in the statement of claim that is not denied in the statement of
defense is deemed to be admitted. However, the court has the power to examine the parties at the
first hearing and record whatever is not said in the statement of claim or the statement of defense.

The main purpose of the examination at the first hearing is to help the court clarify and develop
the issues for trial. The court examines each party, or where the party does not appear, the person
accompanying the pleader for the purpose of answering such questions. Since the examination
must be conducted by the court and only for this purpose it would not be proper for the court to
put a party on the stand, examine him on the entire case and allow the other party to
crossexamine him. The examination is simply to determine what admissions and denials are
made by the defendant which assists the court in framing the issues. It must be conducted with
reference to the allegations in the pleadings and only supplements the pleadings in developing
the issue for trial.

If a party admits in the pleadings or on the oral examination, the other party may apply to the
court for such judgment or order as he may be entitled to as a result of the admissions made by
the parties. See Article 242 of the Cv.Pr.C

1.1.3. Ruling on Preliminary Objections, 244& 245

After the court has examined the parties, it proceeds to decide any preliminary objections that
have been raised. A preliminary objection may be defined as an objection not going to the merits
of the case

The provision of Art. 245 shall apply where either party states that:

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

g. the claim is to be settled by arbitration or has previously been made the
subject of a compromise or scheme of arrangement

As we can understand from the contextual meaning of the provision, the list of preliminary
objections provided under Art. 244(2) are not exhaustive. None of these preliminary objections
go to the merits of the case. In other words, they do not relate to the question whether the
defendant is liable to the plaintiff under the substantive law or not.

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.

Acceptance of an objection has two effects:

1) dismissal of the suit(in case of period of limitation & resjudicata) or

2) Struck out (in all other cases).

NB: if it is overruled, the court will proceed on the suit.

To sum up, the court has, first, to decide on preliminary objections, before proceeding with the
next step proceeding, i.e. framing of issue, if defendant has raised any. The court when making a
ruling on preliminary objections has to give a chance to the plaintiff to respond on the objection
raised by defendant. The court has to hear evidence if it is necessary to preliminary objections
rose. Then, it will give ruling.

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 thereupon proceed to
frame and record the issues on which the right decision of the case appears to depend. However,
if the defendant, at the first hearing of the suit, makes no defense the court will not be compelled
to frame and re-cord issues.

The very advantage of framing issues is to limit the scope of litigation of the parties during the
trial proceedings.
1.2. Adjudication without Trial

It is about the disposition of cases after issues have been formed and before building a full-scale
trial.

Case may be adjudicated in whole or in part, without a full-scale trial and these will be discussed
as follows.

1. Agreement on Issue: parties by themselves may agree as to the question of fact or law to be
decided between them, Art. 252. in doing that, parties will have the opportunity to
compromise on some issues of the litigation and point out those issues which needs the
decision of the court.

2. Parties Not at Issue: If the defendant admits the allegations or the material propositions of
the plaintiff, there is no issue to be disposed by the court. parties may not be at issue on
some points, but may be at issue on others. In such cases, the court has to conduct a
trial to decide on matters where the parties are at issue.

3. Deposition of issues at the First Hearing : some times parties may be at issue but their
issue could be adjudicated with out the need for full-scale trial.This happens where the court
is satisfied that the issues framed for trial can be determined with out argument or evidence
other than that which the parties can at once produce, and that no injustice would result from
proceeding in this manner

The other opportunity to dispose issue at first hearing is where the issue or issues
framed are issues of law. The same will be true on issues, which can be resolved entirely
based on the documentary evidences, which are already delivered to the court.

1.3. Compromise and withdrawal

Compromise
Art. 3307 of the civil code defines compromise as a contract whereby the parties,
through mutual concessions, terminate an existing dispute or prevent a dispute
arising in the future.

Art. 274(1) of the civil procedure code also defines compromise as follows:
The parties may by compromise agreement relating to all or some of the matters in
issue terminate a dispute with respect to which a suit has been instituted.

Compromise is used as a preliminary objection, hence z judgment will be given accordingly &
such judgment shall have resjudicata effect.

Withdrawal of suit

While the case is pending, the plaintiff may for different reasons (including when compromise is
made) decide to withdraw or abandon the suit. There are two types of withdrawal of suit; namely,

1. withdrawal with leave(permission);Effect-struck out of z suit and

2. Withdrawal without leave; Effect-dismissal of z suit.

CHAPTER TWO:

THE TRIAL AND OTHER PROCEDURES

At the trial stage the issues developed at the first hearing would be resolved, and then judgment
and decree would be passed. Evidences will be produced & considered.

2.1 Ordinary Proceedings

2.1.1 Production of Evidence to the Court

Trial stage is basically the stage where oral testimony and documentary evidence are produced
and examined.

According to Art. 223[1][a] and 234[1], when a party files his pleading, he includes a list of
witnesses to be called at the trial, together with their address and the purpose for which they are
to be called. Presumably, those witnesses will voluntarily appear at the trial, and they may testify
without any further formalities. 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. In such a case, the court will issue summon to that witness requiring
him to appear, and if the hearing has already begun, it may adjourn the hearing so that the person
summoned can appear.

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 Cv.Pr.C where the summons is issued at the request of a party,
before the summons granted with in period to be fixed, he shall pay into court a sum of money
as it appears to the court to be sufficient to defray the travelling and other expenses of the witness
for one day‟s court attendance.

if the court is satisfied that the witness has without good cause failed to comply with
such summons or has intentionally avoided service, the court may make such order,
including the issue of a warrant with or without bail for the arrest of such person, as
it considers necessary for the attendance of such person.

There are circumstances where a witness whose testimony is necessary and cannot be brought
before the court. Article 122 provides that such witness may be examined on commission.

An examination on commission is the examination of a witness by a person specifically

authorized to examine the witness. Where the witness is not resident within the local limits of the
court‟s jurisdiction or is about to leave those limits, the commission may be issued to any court
within the local limits of whose jurisdiction the witness resides or will be present to any other
person the court issuing the commission may appoint.

2.1.2 Conduct of The Trial

At the trial each party introduces the oral and documentary evidence necessary to support his side
of the issue. let see how this evidence is to be introduced?

Art. 258[1] of the Civil Procedure Code:

 On the day fixed for the hearing of the suit, the plaintiff shall be entitled to begin
unless the defendant admits the fact alleged by the plaintiff and contends that
either in point of law or on some additional facts alleged by the defendant, the
plaintiff is not entitled to any part of the relief which he seeks, in which case the
defendant shall be entitled to begin.

This reflects the general rule that the party who has the burden of proof has the right to begin.

Art. 259 of the Civil Procedure Code stipulate that:

1. The party entitled to begin shall state his case, produce his evidence in support of the
issues which he is bound to prove.

2. The other party shall then state his case and produce his evidence and may address
the court generally on the whole case.

3. The party beginning the reply generally on the whole case. It is clearly provided
under

Art. 261 of the Civil Pro Code, there are three stages to examination of witnesses. These are:

1. The examination-in-chief;

2. The cross-examination;

3. The re-examination

Purpose: During the examination-in-chief, the proponent tries to develop the testimony of the
witness in the light most favorable to him; during-cross-examination, the opponent tries to
discredit that testimony; and during re-examination the proponent tries to minimize the effect of
cross-examination.

Art. 263 :
 1. Questions put in examination-in-chief shall only relate to facts relevant to
the issues to be decided and only to such facts of which the witness has
direct or indirect knowledge.

2. No leading question shall be put to a witness with out the permission of the
court.
3. Question put in cross-examination shall tend to show to the court what is
erroneous, doubtful or untrue in the answers given in examination-inchief.
Leading questions may be put in cross-examination.

4. No question shall be put in re-examination except for the purpose of

clarifying matters, which have been raised in cross-examination.

According to Art.263 [2] of the Civil Pr.C, the court may at any time permit the asking of leading
questions. In line with this Article, there are three situations where the court could do so. These
are:

1) When the witness is being examined as to what are called introductory matters. (name,
age, occupation and address)

2) 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.

When we come back to documentary evidence, there are no express provisions of the Civil
Procedure Code governing the introduction of the documents into evidence. However, according
to Art.138 of the Civil Procedure Code:The court at any stage of the suit rejects any document,
which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

The court has the power to put a question to a witness at any time during the examination.

2.1.3 Judgment and Decree(operative part of judgment)

Once we address issues with regard to pre-trial stage and trial stage; now we will embark on the
final section which deals with judgment and decree.

Once the court renders judgment, the judgment shall be reduced to writing, signed by the
member or members of the court and be pronounced by the judger or, where there are more than
one judge, by the presiding judge.
Since the judgment itself cannot be executed, it is necessary that the court, after delivering the
judgment, reduce the operative part of the judgment. Once the operative part of all judgments is
reduced to the form of decree, it must be signed and dated by the judge or judges who passed it,
exclusive of any dissenting judge.

2.2. Special Proceedings:

AcceleratedProcedure& SummaryProcedure

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
fullscale suit.

1. SummaryProcedure

• The plaintiff must be entitled to recover a specific sum of money ascertained at

the time of suit.

• Where summary procedure is available, the plaintiff has the option to employ it,
but he/she is not obliged to do so.

• Art 284 of the Civil Procedure Code

• As per Art.284 ; 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, and stating that in his
belief there is no defence to the suit.

• summary procedure is designed for cases where the defendant is not likely to
have any defence to the plaintiff‟s claim

2.AcceleratedProcedure

• z claim is from z crt (z applicant nedds declaration)

• the proceeding at this point is ex-parte, and the defendant is not served with
notice.
• The scope of application of accelerated procedure is provided under Art 300 of
the CivilProcedureCode.

• According to Art 305 of the Civil Procedure Code:

On making its decision in favor of the applicant, the court shall, where he so
requires, 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, withdrawal of interdiction, opposition to
marriage,widowhood, 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.

2.2 Other Procedural Matters

These procedures come when a proceeding is initiated by the plaintiff and the plaintiff and the
defendant demand a temporary relief until the case is disposed.

1) Arrest and Attachment before Judgment

2) Temporary Injunctions, Interlocutory Orders and Appointment of Receiver

3) Habeas Corpus

4) Procedure in Arbitration and conciliation

 5) Cost

Temporary Injunctions: An injunction is an order restraining a party from doing a particular act
or requiring him to do such an act; and the plaintiff may ask for injunctive relief as part of the
final decree. A temporary injunction is issued during the pendency of the suit to prevent certain
action from taking place that would prejudice the other party to the suit. The court should
determine that the applicant has a prima facie case, that protection is necessary. the failure to
grant a temporary injunction may mean that the plaintiff will be unable to obtain the relief he
sought.
Furthermore, where there is the danger that the property may be wrongfully sold in execution of
a decree, the injunction may be issued against the decree-holder, even though he is not a party to
the suit.

Where the plaintiff has brought suit to restrain the defendant from committing a breach of
contract or other act prejudicial to him, a temporary injunction to restrain the breach or the
commission of the act may be granted.

Where property has been attached, the attachment remains in effect for a maximum of one year,
and if the disobedience or breach continues, the property is sold, and out of the proceeds the
court awards such compensation to the other party as it thinks fit.

Interlocutory Orders

On the basis of Art 165 of the Civil Procedure Code, an interlocutory order may be broadly
defined as any order that the court considers necessary or expedient to be made pending the
determination of the suit. The court may at any time make such orders upon application by one
party and notice to the other

Appointment of a Receiver

In order to preserve the subject matter of the suit pending a determination of the rights of the
parties, the court may appoint a receiver to deal with property during the pendency of the suit.
On the basis of Art 166 of the Civil Procedure Code the court may appoint a receiver whenever it
appears to be just and convenient both before and after the decree.
Habeas Corpus

A Habeas Corpus petition is a petition filed with a court by a person who objects to his own or
another's detention or imprisonment. The petition must show that the court ordering the detention
or imprisonment made a legal or factual error.

Prisoners often seek release by filing a petition for a writ of Habeas Corpus. A writ of Habeas
Corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so
it can be determined whether or not that person is imprisoned lawfully and whether or not he
should be released from custody.
Federal Courts Proclamation No. 25/1996 in its Article 5(10) clearly stated that the power of
adjudication to application for Habeas Corpus is vested on the Federal Courts. Furthermore,
inferring from the cumulative understanding of Articles 11 & 14 of the proclamation, we can
understand that the material jurisdiction is given to the High court of the Federal.

CHAPTER THREE

REVIEW OF JUDGMENTS

Basically, there are three ways of reviewing a judgment. These are

1. reviewing before the court which rendered the judgment(Procedural Irregularities, Newly
Discovered Evidence, Opposition)

2. before an appellate court and

3. before the court of cassation

Depending on the reason behind revision of the judgment, the court of rendition, the appellate
court or the court of cassation may revise the judgment of the court of rendition.

1. Reviews by Court of Rendition,Art.6

The conditions whereby the court of rendition revises its own judgment:
• Procedural Irregularities: procedural irregularity is non-compliance with the
provisions of the Code, and such irregularities have substantially affected the disposition
of the case to the determinant of one of the parties. However, if the irregularity does not
affect the court's decision on the merits, the proceedings will not be set aside. The
proceedings will not be set aside if the irregularity can be corrected. The occurrence of
the irregularity may not be taken as a ground of appeal. The only exception would be an
irregularity arising from an alleged lack of material jurisdiction

• Newly Discovered Evidence: Art.6 civ.pr.c. There are three criteria that should be
fulfilled, so that the court of rendition can review its own judgment. These are: 1) the
evidence must be discovered after the judgment is rendered, and 2) the newly discovered
evidence must affect the decision, and 3) 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.(z newly discovered evidence must show z improper conduct of z
other party & which were not find by due diligence of z requesting party)

• Opposition: As per article 358 of the Cv.Pr.C, there are three conditions required where
by a party filing opposition should fulfill: 1.he should or could have been made a party;
2. Interests are affected by the judgment rendered in his absence; and 3. he is filed prior
to execution of the decree

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

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.

2. Reviews by Appeal to a Higher Court:

• Appeal means a review of the case and not a retrial of the case by the appellate
court. Frequently, the grounds for appeal will involve errors of law allegedly
committed by the subordinate court. As a rule, the appellate court does not hear
additional evidence on the appeal, and where the introduction of additional
evidence is permitted, it is limited to exceptional circumstances.
• 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 and the cross-appellant would have the
burden of proof

• Except where the court permits the introduction of new evidence, the appellant
may not raise any fact, which was not in evidence in the subordinate court. An
objection or issue cannot be raised for the first time on appeal, and an appeal
should be limited to a review of the questions decided by the lower court. The
appellant may not raise new issues for the first time on appeal. Similarly
objections, which are not raised on trial also, cannot be raised on appeal. Except
in cases of objections which are not previously raised due to lack of material
jurisdiction by the lower court. The same reasoning is applicable to the failure to
join an indispensable party

• However; a party may make a new legal argument on appeal. What cannot be
raised ordinarily are new issues and new objections to the action of the
subordinate court. But, not legal arguments.

• Appeal cannot be made on z mere ground of newly discovered evidences. But, an

appellant may request z production of newly discovered evidences on z appellate
court if he made an appeal due to other grounds of appeal & he has also newly
discovered evidences.

• There is one appeal as of right. Where an appellate court confirms the judgment
further appeal does not lie. If, however, the judgment is varied or reversed, a
second appeal lies to the next highest court. What about third appeal? If a case
starts in social crts

• It is also possible that both parties may be dissatisfied with the decision and if so,
both may appeal. For example, the court may have entered judgment for the
plaintiff, but may have awarded him a lesser amount of damage than he or she
claimed. In such a case, the defendant may appeal from the decision on the issue
of liability, and the plaintiff may appeal from the decision on damages. Since the
 judgment on the issue of liability was for the plaintiff, his appeal is called a
crossappeal; as to that issue, the plaintiff would be the cross appellant and the
defendant would be the cross respondent. However, if only the plaintiff appealed,
he would be the appellant and the defendant would be the respondent.

• Types of Appeal;

i. Appeal on Judgment and ii. Appeal on Orders

(Interlocutory Appeal).

Interlocutory matters are a matter on which the court has rendered a

decision, but the decision does not finally dispose of the case.
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.

Under the Civil Procedure Code, interlocutory appeals are not

permitted. 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.

Time for appeal: Normally, the memorandum must be filed within 60 days from the time of the
delivery of judgment. See article 323(2) of the Cv.Pr.C. However, this may not be true all the
time. Some substantive laws may fix the period of limitation even less than 60 days. For
instance, if we look at some of the provisions of the lab our proclamation no. 377/2004, we can
see the period of limitation for appeal is only 30 days.

Article 154(1) of the proclamation says: In any Labour dispute case an appeal may be taken to
the Federal High Court by an aggrieved party on questions of law, within thirty (30) days after
the decision has been read to, or served upon, the parties whichever is earlier.
Where an appeal is filed after the period of limitation, fixed by the appropriate law is already
lapsed, the Registrar must refuse to accept the memorandum of appeal, and he will inform the
appellant that he may within 10 days file an application for leave to appeal out of time See
article 324(1)

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. It is, therefore, provided 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. This is analogous to the provisions relating to counter-claim and set-off. Even though, the
defendant did not desire to prosecute his claim, he may decide to do so when sued by the plaintiff

Question: can you identify 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. The distinction refers solely to whether the
successful party filed an appeal to challenge certain aspects of the decree, in such case i.e.,
crossappeal or whether he made his attack only in response to an appeal filed by the other party,
that is, by a cross-objection.

The cross-objections must be filed in the form of a memorandum of appeal within one month
from the time when the respondent is served with the summons to appear and defend the appeal.

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. 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 or by the president of this court or

• by the rendition court or by z president of the court(if an appeal has not been taken)
Whether the appellate court should allow additional evidence to be produced? The general rule is
that the parties are not permitted to produce such evidence. All issues must be raised at the trial
so that the court can render a final judgment on the merits.
However, there are three situations where the introduction of new evidence on appeal is
authorized. These are where:

1. the subordinate court refused to admit evidence that ought to have been admitted;

2. the appellate court requires and document to be or any witness to be examined to enable
it to pronounce judgment; or

3. There is „substantial cause,‟ justifying the production of the evidence. See article 345of
the Cv.Pr.C

4. Review of Findings of Fact

Judgment on Appeal

The appellate court is given broad powers with respect to its disposition of case. The only
limitation on the power of the appellate court to issue a decree is that it cannot take away
from a party relief which he was granted by the subordinate court and which is not
challenged on appeal nor inconsistent with the final decree to be rendered.

1) Remand: Remand is, therefore, an action by an appellate court in which it remands, or

sends back, a case to the trial court or lower appellate court for action. This usually happens
if the trial judge has made an error, which requires a new trial or hearing. 2) Reversal for
substantial error the court may reverse or

3) Vary

4) affirm

The Second Appeal

When we say second appeal, it is to mean that it is an appeal against the judgment of the
appellate court, which varied or reversed the judgment appealed from. If the appellate court
confirmed the judgment of the first instance court, although on a different ground, a second
appeal does not lie. Therefore, to understand the concept, the application for reviewing the
judgment of the first instance court, is considered here as first appeal.

The Civil Procedure Code as well as the Federal Court Establishment Proclamation 25/96 does
not contain any specific provision regulating the second appeal, and the provisions applicable to
the first appeal are therefore, as a general proposition, applicable to the second appeal.

Restitution

As we saw, the taking of an appeal does not prevent execution of the decree unless a stay is
ordered for sufficient cause. It may be, then, that the judgment in favor of one party will have
been executed, and, on appeal, that judgment will have been reversed. In such a case the
successful appellant is entitled to restitution, and he must make his application for restitution in
the court of first instance.Art.349.

Revision in Court of Cassation:

Unlike the appellate court, the court of cassation only reviewed the decision of the lower courts if
it has basic error of law, not error of fact. The parties to the court of cassation are named as

“applicant,” the one who claims reviewing of the judgment of the lower court, and “respondent,”
the other litigant party.

The procedure to be followed:

 Hearing on the petition. If it is without merit, it will dismiss it. If it is accepted

 notice to the respondent

 Upon appearance of the parties; give chance to the parties to argue orally.
  Finally, the court will render judgment on the issue.

The judgment can be:

 Confirm

 vary or

 reverse the decision of the lower court

 CHAPTER FOUR

EXECUTION OF DECREES

Execution is essentially a separate proceeding. A decree can be executed either by the good will
of the judgment debtor or by the order of the court.

A separate suit cannot be brought on the compromise agreement the judgment-debtor & creditor.

Jurisdiction in Execution

The court cannot execute a decree simply because it has a jurisdiction to that effect. Hence, an
application by the decree-holder to the court which issued the decree is important. An application
for execution is the first step to proceeding for execution. There is no fixed time stated for
application. But the application may be made as soon as the judgment-debtor is in default. There
is no restriction on the number of applications that the decree-holder may make within the ten
years period.

Normally, the court, which passed the decree, has a jurisdiction to execute such decree.
However, in certain circumstances, it may be transferred for execution to another court.

Transfer for Execution

Ordinarily, the court which rendered the decree or to whom execution was delegated by the
appellate court or referred by the court of cassation will execute it. But if execution by that court
is not feasible, the court may, upon its own motion or application of the decree-holder, send the
decree to another court for execution. Such transfer is authorized where Art. 372 of Cv.Pr.C.

Hence, if the transferee court is directed to execute the decree, and in doing so, it has the same
powers as if it had passed the decree itself.
The court to which the decree is transferred for execution must execute the decree as passed and
cannot vary or alter it. It can only refuse to execute the decree if it concludes that the transferring
court lacked material jurisdiction to render it or that the decree is clearly illegal.

Attachment and Sale

It is the most important part of the execution process i.e., attachment and sale of the property of
the judgment-debtor to satisfy the decree.

However, for the most part, attachment and sale will involve the satisfaction of a decree for the
payment of money.

PROPERTIES EXEMPTED FORM ATTACHMENT:

Exemptions are made so that the judgment-debtor will not be deprived of the necessities of life
and the opportunity to earn a livelihood. See article 404 of the Cv.Pr.C. Those properties which
are exempted from attachment are:

1. the necessary wearing-apparel, cooking vessels, bed and bedding of the judgment-debtor
and his family;

2. tools, instruments or implements of any kind used by the judgment-debtor in his

profession, art or trade;

3. where the judgment-debtor is an agriculturalist, such cattle and seed-grain as may, in the
opinion of the court, be necessary to enable him to earn his livelihood;

4. such amount of food and money as may, in the opinion of the court, be necessary to
sustain the judgment-debtor and his family for a period of three months;

5. pensions and alimonies;

6. two-thirds of the judgment-debtor's salary, or where the salary does not exceed Eth.$ 2
per day, and the judgment-debtor has no other income, the entire salary;
 7. Any other property declared by law to be exempt from attachment or sale.

Sale of property: Unless otherwise directed, all sales must be conducted by an officer of the
court or a person appointed for this purpose and made by public auction. However, the court,
after hearing the decree-holder, may authorize a sale by private contract at the request of or with
the consent of the judgment-debtor. See article 422 of the Cv.Pr.C

CHAPTER FIVE

RES JUDICATA AND SPLITTING OF CLAIMS

Res Judicata is a Latin term which literally means “the matter having been litigated.” The
principle is that once a matter has been litigated, it may not be re-litigated, and issues that have
been determined once may not be determined again in subsequent suit. A party to a suit may seek
review of the judgment in accordance with the law, but in the absence of such review, the
judgment and the decision on the issue in the suit is final.

On the basis of Art 244 of the Civil Procedure Code, either party who wishes to assert a plea of
res judicata must do so by way of a preliminary objection at the first hearing. If he fails to do so,
the defence will be deemed to have been waived.

For our case “Former suit” includes a suit in which an ex parte or default decree was rendered. A
suit that has been withdrawn with leave does not constitute a suit in which the matter was
decided;

A decision on an interlocutory matter operates as res judicata as to the issue involved. For the
purpose of Art 5 of the Civil Procedure Code, a criminal proceeding is not a “Former suit”.

Matters Directly and Substantially in Issue:

The principle of res judicata is applicable only where the matter directly and substantially in
issue in the subsequent suit was also directly and substantially in issue in the former suit.
However, as we will see, matters which ought to have been raised in the first suit are deemed to
have been raised, and consequently cannot be raised in the subsequent suit.

Finally, it should be noted that the decision on certain kinds of issues might not operate as res
judicata because of the nature of the issue. A good example is an issue as to the amount due
under an obligation to supply maintenance. The same can be said in custody of the children
during divorce. The custody could shift at any time if it is found to the best interest of the
children.

when law is changed by subsequent legislation, the former decision operates as res judicata.see
Art.3348 of the Civil Code.

The Scope of Res Judicata

There are two aspects of broad scope.

First, any matter on which might and ought to have been made a ground of defence or attack in
the suit shall be deemed to have been substantially and materially in issue. res judicata applies
not only to the issues that were expressly decided, but also to the issues that would have been
decided if raised by the parties. The failure to raise such grounds in a former suit means that they
cannot be raised in any subsequent suit.

Secondly, any relief claimed in the suit which has not been expressly granted by the decree
passed in the suit shall be deemed to have been refused. Art 5(3) of the Civil Procedure Code.

According to this article: “Any relief claimed in the former suit which has not been expressly
granted by the decree passed in such suit shall be deemed to have been refused.” the present rule
applies when the decree is silent as to the relief claimed. In such a case the relief is deemed to
have been refused notwithstanding the absence of an express ruling to this effect.

Splitting of Claims
According to Art 216 of the Civil Procedure Code:

1. Every suit shall, as far as practicable, be framed so as to afford ground for final
decision upon the subject matter in dispute and to prevent further litigation
concerning them.

2. Every suit shall include the whole of the claim, which the plaintiff is entitled to
make with respect to the cause of action unless he intentionally relinquishes any
portion of his claim so as to bring the suit within the jurisdiction of any court.
3. A plaintiff who omits to sue in respect of, or intentionally relinquishes, any part of
his claim shall not afterwards sue with respect to the portion so omitted or
relinquished.

4. A person entitled to more than one relief with respect to the same cause of action
may sue for all or any of such relief, but if omits, except with the leave of the
court, to sue for all such relief‟s, he shall not afterwards sue for any relief so
omitted.

The principles of res judicata just discussed are designed to implement this purpose, particularly
that requiring a party to assert all the grounds of attack or defence he may have at the peril of not
being able to assert them in a subsequent suit. The purpose is further implemented by the rule
prohibiting the splitting of cause of action. Every suit must include the whole of the claim, which
the plaintiff is entitled to make with respect to the cause of action. If the plaintiff omits to sue in
respect of any portion of his claim, he may not afterward sue with respect to the portion so
omitted.

There are two aspects to the rule against splitting a cause of action:

1. the plaintiff must include the whole of his claim with respect to the cause of action
on which he sues, and
 2. The plaintiff must seek all the relief to which he is entitled under that cause of
action.

There is one situation where the whole of the claim need not be included. The plaintiff may
intentionally relinquish a portion of his claim so as to bring it within the jurisdiction of a
particular court. But if he does so, he may not subsequently sue with respect to the portion of the
claim that was relinquished.

Besides, that the plaintiff having a number of causes of action against a defendant is not required
joining them in a single suit. A plaintiff may unite several causes of action against a single
defendant but he is not required to do so. The rule only prohibits splitting of a single cause of
action.

The rule against splitting of claims is not applicable to proceedings in execution in the sense
that the decree-holder may present successive applications for realizing different portions of the
same decree. So, the decree-holder may file an application to recover possession of the property
and a subsequent application to realize the costs. But the rule should be applicable to the money
decrees, since such decrees may be executed as a unit.

Single and Multiple Causes of Action: The most difficult case is when there is a situation of
dispute as to whether the facts of the transaction gave rise to one cause of action or to two. If
there are two causes of action, then the failure to claim the relief to which the party would be
entitled under the second cause of action does not amount to a splitting of his claim since he was
not making a claim with respect to the second cause of action.

However, the mere fact that separate properties are involved does not necessarily mean that there
are two causes of action. If both properties were injured by a single act, it would be a single
cause of action.
Omitting of Relief: a party may be entitled to more than one relief with respect to the same cause
of action. In such a case, he may sue for all or any of such reliefs. But if he omits, except with
the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so
omitted.

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

Leave should only be given in situations where the plaintiff is entitled to alternative reliefs and
may legitimately wish to exercise one such relief first.

For example, the plaintiff sues to obtain specific performance of a contract. He is not interested
in damages at that time, but if specific performance is not available, he might wish to claim them
later.