1.1.1.2.

Civil Vs Criminal offender is held criminally liable and

Procedures: Scope of Application
faces penal sanctions. A civil wrong,
They are different in their purposes on the other hand, is an infringement
and the ultimate objectives of the legal interests of private
underlying their very establishment individuals and is redressable,
the types of relationships they chiefly principally, through reparation of
govern; the nature of the legal damages. Moreover, consequential
interests that would be affected at to the nature of the legal interests
their violations and, hence, the affected in a civil dispute, the cases
parties who would have sufficient are to be initiated and instituted in a
stake therein so as to invoke a court of law by the aggrieved party
justiciable controversy, laws may himself (or his legal pleader);
also be classified into ‘civil’ and wherein law enforcement organs are
‘criminal’. And they are different in but to avail remedies for those who
areas of applications since the have valid claims. In other words, in a
former deals with ‘civil’ matters civil litigation, the judge is there, in
whereas, the latter is concerned with the whole, to decide whether any
‘ criminal’ cases. legal right of the plaintiff is affected;

Crimes are more serious and and, if so, whether one is entitled to

sufficiently injurious to the public as any relief. It thus follows that the

compared to civil wrongs which main purpose of administration of

affect only the private victim. civil justice is primarily to enforce

rights; and, hence, a civil case may
A crime is an offence against the
end up in an award of compensation
community as a whole for which the
to the individual victim or dismissal  “A physical person
of the case. against another physical
person”; or,
On the other hand, penal
 “A physical person
prosecutions, being the concern of
against a legal person “, or,
the public at large, have the final aim
 “A legal person against
of ensuring the overall peace and
another legal person”.
security of the nation as a whole
The purpose of initiating a law
and, may result into an acquittal or
suit and the nature of the
conviction of the accused- carrying
relief sought thereby is the
with it, primarily, an element of penal
other yardstick used to make a
liability, namely, punishment.
distinction between civil and
Regarding, differentiating civil cases criminal cases. The relief
from criminal ones, three parameters demanded in a civil case is
are here: mostly the payment of money

The first factor relates to the nature or is usually to be assessed in

of the parties instituting the legal monetary values. This may

action. A civil case is naturally include, for instance, the

initiated by a private person payment of damages for an

claiming redress for some wrong alleged injury sustained by the

alleged to have been committed victim (plaintiff).

against him by another. In some exceptional civil cases,

Accordingly, parties involved in a however, a specific relief (personal

civil case can appear in either of the performance) or forced performance

following ways: of legal obligations, such as,
restitution or delivery of goods or an independently between the parties
injunction could also be demanded. themselves.

On the other hand, the over all However, one must take note of the
purposes and aims for initiating a fact that a certain single act may give
criminal case is the maintenance of rise to both a civil and a criminal
peace and order of the general case whereby the parties are at
public by, primarily, punishing the liberty to negotiate over the civil
law breaker. That is, the state aspect of the matter.
initiates a criminal case for the
To sum up, a civil case is one
purpose of securing obedience to its
instituted primarily by an individual
laws by inflicting punishment and/ or
for the purpose of securing redress in
other measures on the criminal
monetary terms. Understandably,
offender. A penal case, thus, aims at
civil procedure is, thus, a method
punishing an offender- which appears
employed in the initiation and
in the form of loss of liberty (as in
disposition of such civil disputes.
imprisonment) or deprivation of life
Moreover, the parties are at liberty
(as in capital punishment) and fine.
to negotiate over their disputes even
The third test is concerned with the while the case is still pending; and
availability of alternative dispute have it withdrawn from the court any
settling mechanism in either of the time, but before a final judgment is
cases. Seen from this perspective, rendered. In contrast to this, criminal
civil cases are subject to cases are not subject to such
negotiations; and, hence, a alternative dispute settlement
compromise could be reached upon mechanisms. This means, the matter
lies exclusively within and is done orderly flow of litigation so as to
under the power of the prosecution make the decision within a
officers irrespective of the reasonably fair and quick time.
negotiations and the agreement that
the generally held belief has been
may be made between the victim and
that the indeterminable number and
the offender; unless, of course, the
complexities of the procedural steps
case falls within the category of
followed in the litigation process;
‘offences upon complaint’.
lack of procedural transparency; the
1.1.2. The Purpose of Civil Procedure great uncertainty of the governing
Vis-à-vis Fundamental Procedural rules and the irreconcilably divergent
Rules inconsistencies in the application of
the law
In the general parlance, rules of civil
are some of the distinguishing
procedure aim to ensure that
features of our judicial processes.
disputes are handled by an impartial
Now we will discuss the essential
legal tribunal in a fair and orderly
ingredients of justice:
manner and as expeditiously and
economically as possible. They are, in 1.1.2.1. Fair Hearing of a
brief, meant to secure the just, Suit/Impartiality of the Courts
speedy and inexpensive disposition
There are certain factors against
of cases. More specifically; they aim
which impartiality of courts is
at treating the parties to a law suit
evaluated or through which “fair
equally in enforcing their rights and
hearing of a suit” is ensured. The
the corresponding duties and laying
following are the major ones.
down the ground for a smooth and
A. Neutrality of the Presiding Judge that it operates impartially; i.e.,
Any person who sits in judgment over conditions that avoids suspicions of
the interests of others must be able impartiality.
to bear an impartial and objective
In this regard, there are some
mind to the question in the
common sources of bias that should
controversy; i.e. he/ she should
disqualify a person from acting as a
impart justice without fear or favor.
judge.
Bias or prejudice has been defined as
I. Personal Bias
a leaning, inclination, bent or
This is usually arises from friendship,
predisposition towards one side or
another or a particular result. relationship (either personal or

Bias is a condition or state of mind, professional) or hostility or animosity

an attitude or point of view, which against either of the parties; or,

sways or colors judgment and negativity from personal prejudices;

renders a judge unable to exercise his or even political rivalry.

or her functions impartially in a II. Pecuniary Bias/ Bias as to the

particular way. Subject- Matter.

There are two attributive features of [No one should be a judge in his
impartiality. The first feature is own case!]
The rule against pecuniary bias
subjective impartiality, which refers
originates from the legal maxim:
to the impartiality of the judge
“nemo judex in cause sua”, implying
himself and second is objective
that no one should be a judge in his
impartiality of the tribunal; i.e., the
own case; and, it arises from
tribunal/ court or bench should
monetary interests in the subject
provide the public with the guarantee
matter of the dispute, no matter how II. A party has to be given an
small or insignificant it might be. adequate and reasonable
Where the judge himself is a party or (effective) opportunity to
has some connection with the explain (hearing).
litigation so as to constitute a legal C. Equality of Treatment Every one is
interest that should disentitle him prima-facie equal before the law
from being a ‘judge in his case’.
This principle implies equal
B. Right to be Heard: Nobody subjection of all persons to the
should be condemned unheard! ordinary laws of the land as
Any one against whom an action is administered by the regular courts of
taken or whose right or interest is, law; and, law extends protection to
thereby being affected should be everyone.
aware of the information against him
I. Equipage Equality
and should also be granted a
reasonable opportunity to defend This implies equality between the

him self. The governing maxim in this litigants in preparing their respective

case runs: ‘audi alter am par tem’; pleadings in getting legal aids

meaning ‘Hear the other side’– no (services) in searching for evidence

body should be condemned unheard. etc, irrespective of their differences

Two of the facets of the maxim are: in income levels.( Art 91 of the Cv. Pr.
Cd.).
I. Notice has to be given to the
party before the proceedings II. Rule Equality

start and, Under similar circumstances, each

party should be subjected to and
protected by, similar rules. / Art 58 1.1.2.3. Independence of the
(a) of the Cv. Pr. Cd/ Judiciary and Accountability of the
Judges
III. Outcome Equality
In this section we discussed two
Similar issues, under same grounds
interrelated concepts: Independence
/circumstances, should have similar
and accountability.
outcomes for example instance, in
such instances wherein ‘class action’ I. Judicial Independence
is allowed-pursuant to Art 38 of the
There are two judicial independence:
Cv. Pr. Cd. Generally, speaking like
institutional and personal/functional.
cases should be treated alike.
Institutional or administrative
independence which is usually
related to the concept of separation
of powers-is a mechanism through
1.1.2.2. Public Hearing of a Suit
which, on the one hand, a balanced
Justice must not only be done but coordination and cooperation among
must also be seen being done the three branches of the

All cases should be held in an open government is ensured; and, at the

court proceeding except some private same time-signifies the freeing of the

matters. Open court proceedings judiciary from an unwarranted

ensure transparency of judicial encroachment or influence of any

activities and secures the sort.

acceptability and reliability Institutional independence insured

(credibility) of the judiciary. though the following ways:
  Judges are appointed in such a way
that guarantees their independence
a. Legal Basis
including, enjoyment of a secured
It should be based on legal tenure of office; i.e., up until the
foundation (for instance, Arts 78&79 retirement age); and, their removal
of the FDRE Constitution.) from their judicial duty is made in

b. Independence to Administer due process as sanctioned by law

Internal Affairs and in restrictive grounds so

prescribed. Moreover,
Generally speaking, however,
there have to be sufficiently clear
institutional independence of the
and unambiguously defined rules on
judiciary is, most importantly,
training and promotional
ensured when:
opportunities of the judges; their
 Such independence is spelt out in transfers; decisions on disciplinary
black and white by the law ( see, measures; suspension or removal
for instance, Art. 79 of the FDRE from their duty etc before reaching
Constitution); the legally mandated term of office,
 Courts have full authority over their Hence, such crucial issues as merit,
internal and, financial affairs; such experience, integrity and
as, the power of drawing up and remuneration schemes determine
implementating the administrative the extent to which judges are
budget and management of its independent from all sorts of
personnel ( See, Art 79 (6) of the internal and external influence
FDRE Constitution and Art 16. of including of course, of the litigants
Proc .No.25/96) : and, themselves.
B. Functional/Personal opportunities; judicial proceedings
Independence have to be transparent and open to
the general public; and, judges should
Complete and meaningful
be ready and bold enough to receive
independence of the judiciary, can be
criticisms on their decisions or
guaranteed if only it is supplemented
analysis of the issues.
by a functional or individual
independence-which could either be Hence, the judiciary has to be
internal or external. amenable to the law. Judges are to
be held responsible for their
In the process of discharging their
decisions. In other words, they are
judicial tasks, judges should be free,
not allowed to act as free riders.
internally, from their own colleagues
and/or from the influence of 1.1.2.4. Establishment of Courts
superior courts; or, externally, from by Law
any kind of outside intrusion, fear or
Judicial power should principally and
influence; and they should solely be
solely be vested in the regular
bound and guided by the law.
courts. This, of course, is without
II. Accountability of the Judges negating the existence of the so-
called ‘administrative tribunals’-
Independence of the judiciary should
which are constituted by law and
not be taken as a special privilege of
entrusted with some quasi-judicial
the judge himself. In addition to
(delegated) power-as the present day
availing workable normative and
compelling necessity of the proper
institutional protective measures,
dispensation of justice so demands.
litigants should be offered
reasonably adequate appellate
These bodies are, thus, as a matter of thereby immensely saves the
fact, off-springs of compromise time in the determination of the
between the executive and the controversy; and,
judiciary and are set up to share the  It can be manned by sharp
burden of the case loads of the courts and well-trained who
which had almost been unbearably individuals possessing special
heavy- there by warranting their experience and sharp, and
establishment. expertise in a particular field.
the following can be considered as
minimum requirements of a fair trial.
The other reason d’etre that led to The parties should be afforded:
the creation of these bodies include:
 Adequate notice of the
 Cheaper justice : In a sense, it is nature and purpose of the
less expensive to get justice proceedings;
through this process; i.e., the  Adequate opportunity (time
total cost that a litigant or an and space) to prepare their
applicant has to incur in getting case; the right to present
the disposal of his case than the arguments and evidence;
one available through the and meet opposing
mechanism of the ordinary arguments and evidence,
courts either in writing, orally or by
 Speedy justice: It abandons the both means;
intricate (and stringent)  Counsel or other qualified
procedures attending the persons of his or her choice
regular court proceedings–
 during all stages of the  The right, except in the case
proceedings; of the final appellate court,
 An interpreter; if s/he to appeal or seek leave to
cannot understand or speak appeal, decisions to a higher
the language used in the judicial tribunal;
courts;  The right to have legal
 The right to be tried in his assistance assigned to him,
presence; to defend himself in any case where the
in person or through legal interests of justice so
assistance of his own choice requires; and, without
and to be informed, if he payment by him in any such
does not have legal case if he does not have
assistance, of this right; sufficient means to pay for
 The guarantee that his or it;
her rights or obligations  The right to examine, or
affected only by a decision have examined, the
based solely on evidence witnesses against him;
known to the parties to the  The right to obtain the
proceedings; attendance and
 The opportunity to have a examination of witnesses
decision rendered without on his behalf under the
undue delay and to which same conditions as
the parties are provided witnesses against him.
adequate notice and the 1.1.3. Rules of Procedure Vis-à-vis
reason thereof; Modes of Proceedings
 1.1.3.1. The Adversarial between intensely partisan
Procedure advocates.

It is English judicial process or the In an adversarial court proceedings,

major proponent of the system judges play a relatively passive role.
(other countries as such as the USA, Their function is limited to regulating
Australia and New Zealand do also the proper conduct (smooth flow) of
belong to this category). process.

The prominent characteristics of an 1.1.3.2. The Inquisitorial Procedure

adversarial court proceeding, seen
This mode of investigative procedure
from the procedural point of view, is
is originally tied to the traditional
that the parties themselves (or
function of a strong and absolute
represented by their advocates)
government, namely the
shoulder the burden of initiating,
maintenance of public order and the
shaping and fixing the scope of the
suppression of crimes.
litigation. The process is termed as
the core of what might be called the It is chiefly employed in the judicial

‘factual methodology’ of the system- proceedings of the Continent Europe

in contrast to the other style of (France and Germany being the

adjudication, which employs some representative ones). ‘Inquisitorial’

purely theoretical reasoning to reach procedure is self-expressive in that

at a conclusion. The underlying the judges can inquire deep into the

proposition of the system is that merits of the case so as to be able to

truth is most likely to emerge as a bi- decide on what the real issues

product of the vigorous combat between the parties are. They can,
for instance, order the parties to
produce further evidence and Before the end of the 19th century,
critically examine the witnesses of there was no formally established
either side, if and when they are of and systematically institutionalized
the opinion that a fair decision judicial structure in Ethiopia. It was
cannot otherwise be reached. thus only the 1931 ever written
Constitution of the country that could
One may conclude that the prime
safely be considered as marking the
difference between the two modes of
beginning of a new era in the
litigations lies mainly on the degree
establishment of the modern judicial
of the roles played by the judge vis-à-
system.
vis the actual parties to the case.
2.1.2. The Present Dual Court
Our substantive laws are essentially
Structure
derived from the civil law legal
Accordingly, the Constitution not only
system whereas the procedural law is
proclaim that, judicial power, both at
from sources substantially influenced
the Federal and State levels, is vested
by the common law tradition.
in the courts but it also provides for
CHAPTER TWO
the establishment of two sets of
JUDICIAL SYSTEMS IN ETHIOPIA AND courts: one at the Federal and the
JURISDICTION OF COURTS other at the State level. That is, both
the Federal and the Regional
2.1. The Ethiopian Judicial System:
Governments are endowed with their
Past and Present
respective structure of courts-tiered
2.1.1. The Unitary Court Structure:
along three layers-the supreme, the
Historical Background
high and the first instance courts-
each having distinctive jurisdictions
of their own and different places of In most instances, a court of a state is
sittings. held to possess judicial jurisdiction if
it has sufficient contact with either
2.2. Jurisdiction of Courts: Essential
the defendant or property that is
Elements
involved in the suit.
It refers to the power of courts, to
In some instances, a court’s
hear and determine a case; thereby,
judgement of a given country may be
rendering a binding judgement.
enforced in another country on the
There are three essential elements basis of bilateral or multilateral
that establish jurisdiction of courts; treaties.
namely, judicial jurisdiction, material
What is more, in spite of the fact that
jurisdiction and local jurisdiction.
the issue of judicial jurisdiction is, in
2.2.1. Judicial Jurisdiction practice, a procedural matter, it is, in

Judicial Jurisdiction refers to the legal most countries treated as one of

competence of the courts of a private international law, and the

particular nation or state to exercise rules governing it are found in the

a judicial power i.e., to adjudicate a latter area. In our case, though the

law suit and render a judgment draft document of the 1965 Civil

binding an individual, or his property Code had included such provisions in

involved therein. its section that dealt with as issues of

private international law, for that
The issue of judicial jurisdiction
portion of the bill was not approved
normally arises when there is a
by the then legislature, it could not
‘foreign element’ in a case appearing
before a court of a given state.
become part of the finally adopted distinctively put as ‘in
Code. Personam’(over a person) and ‘in
Rem’(over a thing) jurisdiction.
There is no, formally speaking, law in
Ethiopia that specifically govern the 2.2.1.1. Jurisdiction in Personam
issues of judicial jurisdiction.
An action in Personam, which is the
In spite of the absence of the relevant
usual kind, is brought against a
legal rules on judicial jurisdiction,
person, natural or legal, and seeking
cases involving foreign elements have
a relief against the person of the
appears before the court right since
defendant.
the early times of the country’s
Ethiopian courts are held to assume
judicial practices. In such instances,
judicial jurisdiction in Personam
unless an objection was raised on
where either of the following
grounds of judicial jurisdiction, the
requirements are fulfilled:
courts would assume that the
jurisdiction exists and entertained the  the defendant is an Ethiopian

case in the usual business of the national or domiciliary(specially the

court. Otherwise, the grounds would defendant, has to be a foreigner for a

be determined on the basis of the question of judicial jurisdiction to

general legal principles developed by arise.); or,

foreign laws and applicable to the  the defendant has consented

case under consideration. Hence, on (expressly or impliedly) to the

the basis of the nature of the action exercise of jurisdiction by the

brought the type of the relief sought Ethiopian court(even though a party

by the plaintiff, the grounds for is not otherwise subject to the

exercising judicial jurisdiction are Ethiopian jurisdiction, he can consent

 to the assumption of such jurisdiction courts of the state wherein the
by the courts.); or, property is situated that can, more
 The act which is the subject matter realistically, exercise in rem

of the suit occurred or is situated in jurisdiction. Put another way, the

Ethiopia. ‘situs of property’, has jurisdiction

over the case whereby the relief is
(They are not cumulative or they are
sought with respect to the property
optional)
itself.
2.2.1.2. Jurisdiction in Rem
2.2.2. Material /Subject-Matter
It is against the thing/property. It is Jurisdiction
essentially directed against property Material jurisdiction-which is virtually
and the relief sought pertains to the synonymous and equated with the
property itself- without reference to term-‘subject-matter jurisdiction’,
the title of individual claims or hence, refers to the power of a
specific person as such. particular court of a state to
determine the type or kind of a
an ‘in rem’ jurisdiction refers to the
dispute involved in a case.
power of the court to pass a valid
judgement against the property There are two broad criteria
(movable or immovable; tangible or commonly employed to determine
intangible) of the parties and not as
the material jurisdiction of courts in
such against the person of the parties
Ethiopia. These are: ‘Subject Matter’
themselves. Moreover, such an action
jurisdiction and ‘Pecuniary’
is established in the courts of the
jurisdiction.
place where the thing i.e. the subject
matter of the suit-is located. 2.2.2.1. Subject Matter Jurisdiction
Consequently, it will only be the The subject matter jurisdiction, which
depends on the ‘type’ of the case, in In principle, State subject matter is a
turn, involves the making of, matter that arises on the basis of
primarily, an identification of State Law. However, there are
matters/cases falling within and conditions where issues raised on the
outside the regular court structure, basis of State Law may be categorized
and the drawing of a further
under the jurisdiction of Federal
distinction between ‘Federal’ subject
Courts. In such a case, State Courts
matter and ‘State’ subject matter.
will handle the Federal case through
To summarize, material jurisdiction is
delegation. In states where the
one of the three basic requirements
Federal High Court is not established,
of jurisdiction and has two aspects.
the States Supreme Courts are
While the first is subject matter
delegated to see Federal High Court
jurisdiction; the second is pecuniary
cases while the States High Courts are
jurisdiction. The subject matter
delegated to see Federal First
aspect defines the type of the case as
Instance cases.
between Federal or State subject
matters. Proclamation No 25/96 2.2.2.2. Jurisdictional Limits of

provides that Federal Courts have Courts: Pecuniary Amount Vs

Types of Cases
jurisdiction where cases involving a
I. Pecuniary Amount: Federal Vs
foreign national or where one of the
States’ Courts Jurisdictional Limits
parties to the suit is a permanent
residents of different Regional States,
A. Federal Courts: General Vs
or where one of the parties is a
Limited Jurisdiction
Federal Government organ or official.
The civil jurisdiction of the Federal
First Instance and High Court are
treated, under Arts 11 and 14 of proc. Instance Jurisdiction over issues
No 25/96 respectively. The two related with:
grounds the Proclamation employed
 Cases whose subject
to determine the jurisdictional limit
matter regarding private
of the Federal Courts are: the amount
international law, or
of money and the type of the case.
 Nationality, or
B. States Courts: Original Vs  Application regarding the
Appellate Jurisdiction enforcements of foreign
Though the rules of the Civil judgment, or
Procedure Code on material  Applications for change of
jurisdiction are objectively venue, from one first
inconsistent with those of the
instance court to another or
proclamation, and, hence, considered
to itself, in accordance with
to be inapplicable, the jurisdictional
the law.
limits of States Courts are determined
2.2.3. Local Jurisdiction
based on the provisions of Art 13 of
The rules on Local Jurisdiction have to
proc. No 25/96.
do with an area where a case shall be
II. Type of Cases: Exclusive
tried, or, in other words, take us to
Jurisdiction
the specific court to which a law-suit
Exclusive jurisdiction means that a
is to be submitted; and, in effect
jurisdiction given to the court
allocate cases among the same level
irrespective of the pecuniary amount
of courts (say, the Federal First
involved therein. According to Art 11
Instance Courts) within a given court
(2) of the Proclamation, the Federal
structure. Moreover, the rules on
High Court shall have exclusive First
local jurisdiction are framed in such a
way as to primarily enable one to Procedure Code that sets forth the
refer the case to a particular court guiding principles in this respect, Art
convenient for the parties and their 19(1) of the Code stipulates that the
witnesses, particularly, the basic place of local jurisdiction lies
defendant. Incidentally, inherent to with “…the court of the place where
the nature of the process, the rules the defendant actually resides or
also accomplish another significant carries on business or personally
task of curbing inconveniences which works for gain.”
may arise from certain purposely
A. “…actually resides…”
calculated ‘forum-shopping’
tendencies of some litigants. Accordingly, a person’s primary
residence would, thus, be the place
2.2.3.1. The Basic Place of Local
where he actually resides for
Jurisdiction
purposes of local jurisdiction-which
There are certain factors that
probably is the place where it is
determine the place where a law-suit
convenient for one to defend a suit
shall be instituted. For the purposes
brought against him.
of local jurisdiction, the most relevant
place, what might also be called the B. “…carries on business…”

‘basic place’, is, in simple and pure

2.4.1. Suits Regarding Contracts
terms, the place where local
jurisdiction lies unless it is prohibited
Article 24 provides four mutually
by law or a court sitting in another
exclusive rules on suits regarding
place is authorized to assume the
contracts. Generally, there are four
jurisdiction This being the general
types of contracts, which are
rule of the provisions of the Civil
categorized for the purpose of pledge, deposit or bailment) would,
determining local jurisdiction. These thus, be the place where the contract
are: was made or was to be executed.

 Contracts generally, In addition, the plaintiff could also

 Contracts of carriage, institute his case in a place where the
 Contracts of defendant resides, works for gain or
Insurance, carries on business, according to Art
 Contracts of pledge, 19 of the Code.
deposit, or bailment.
 Suits regarding contracts
of carriage
 Suits Regarding Contracts in Possibly, there are two types of suits
General regarding contracts of carriage. These
Pursuant to Art 24(1), suits arising are carriage by see and carriage by
from contracts, in general, may be air. In each case, suits will be
instituted at the place where the instituted in accordance with their
contract was made or executed respective laws. Accordingly, while
unless some other place is mentioned suits regarding contracts of carriage
in the contract-in the discretion of by sea are instituted based on the
the plaintiff. This indicates that the provisions of the Maritime Code, the
place of local jurisdiction of contracts Commercial Code will determine suits
of any type (other than the remaining regarding contracts of carriage by air.
three namely, contracts of carriage,
According to Art.208 of the Maritime
insurance,
Code, suits involving contracts of
carriage by sea are to be instituted at
the court sitting at the port of arrival is treated under Art 25 of the Civil
of the good whereas, suits Procedure Code.
concerning contracts of carriage by
The reasons for the rule are:
air are to be instituted according to
a) Such property cannot be transferred
Art 647 of the Commercial Code.
from place to place; it will be difficult
 Suits regarding Contract of for a court other than the court
Insurance where the property is situated to
Suits regarding a contract of view if it finds it necessary.
insurance may be instituted in the b) In cases where dispute is on
court of the place where the head boundary matters, that may

office of the insurance company is necessitate measurement of the

situated or registered or where the boundary, or essential document

about the property are found in the
object insured is situated. (See to Art.
place where the property exists.
24(3) of the Civil Procedure Code).
c) Where the case is defendant upon
 Suits Regarding Pledge, the testimony of witnesses, such
Deposit or Bailment witnesses probably reside at the
Suits concerning pledges, deposits place where the immovable is
and bailment are instituted in the situated. Therefore, such suits must
court of the place where the property be instituted at the situs and not
is located. elsewhere.

 Suits Involving Immovable  Suits for Wrong Done to

Property Persons or Movable

An issue of local jurisdiction whereby Propert

suit related with immovable property Article 27 of the Civil Procedure Code
specifically talks about suits for wrong The reason is stipulated under Art.
done to persons or movable property. It 31 of c. p. c.
is the question of local jurisdiction in
Generally speaking, the rules on local
case of extra contractual liability.
jurisdiction are primarily designed to
According to Art 27(1), such suits may
achieve handiness for the parties.
be instituted in the court of the place
Consequently, transfer of suits from a
where the wrong was done or in
court to another is basically meant
accordance with the provisions of art
for the suitability of the parties;
19.
particularly, the defendant. At this
 Suits Regarding
juncture, it has to be underscored
Successions
that the court wherein the suit is
According to Art 23 of the Cv. Pr. Co.,
filled may have local jurisdiction over
suits regarding succession
the case; yet, it is also likely that the
 Suits upon Several Causes plaintiff might have trickily chosen it
of Action with a view to making it painstakingly
Where a suit is based upon several intractable and unreasonably
causes of action arising in deferent expensive for the defendant to
places, the suit may be instituted in defend himself properly. In practice
any court that has jurisdiction over such inconvenient court is commonly
one of the causes of action (Art. 29 of known as ‘forum non-convenient’-
c.p.c). inconvenient forum. A court which is

2.2.3.3. Change of Venue (Transfer holding a case is considered to be

of Suit) and Removal of Judges ‘forum non-convenient’ if it is found

to be insurmountable for,
particularly, the defendant to gather
relevant evidences so as to Civil Procedure Code treats the matter
sufficiently defend himself; and, through the rules of priority,
exposes him to incur unreasonably pendency and consolidation.

high costs to pursue the case and to A. Priority/Art. 7 of c.p.c/

bring his witnesses to the court. The question of priority arises when a

2.2.3.4. Conflicts of Jurisdiction: plaintiff institutes two or more suits

Priority, Pendency and Consolidation on the same cause of action in

of Cases different courts.

Overview Let us assume that A is claiming

certain amount of Birr from a
There is a possibility for conflicts of
defendant on a contract that was
jurisdiction to emerge between
made in Addis Ababa and to be
courts, for instance, the Federal and
performed in BahirDar. In this case,
State Courts; or, within a single
depending on the amount of claim,
judicial structure between courts of
the plaintiff has the possibility to
the Federal or States’ judicial
institute his case both in Addis Ababa
structure-where a court alleges that
and BahirDar. If the amount does not
the matter falls within its jurisdiction
exceed 500,000.00 Birr, the Federal
while the other contends that it has
First Instance Court in Addis Ababa or
the competence over the same case.
the High Court of the Amhara
The power to determine on such
Regional Government in BahirDar will
conflict of jurisdiction is conferred
have jurisdiction to see the suit. But,
upon the Federal Supreme Court.
if it exceeds 500,000.00 Birr, the High
With a view to resolving problems Court of Federal High Court or the
resulting from such circumstances, the Supreme Court of the State will have
the jurisdiction over the case. involve the same parties and similar
issues in different courts or where
B. Pendency/Art. 8 of c. p .c/
there is a question of pendency, then,
On the other hand, Article 8 covers
the problem of pendency. both suits will be consolidated under

As a matter of rule, no court shall try the procedure of consolidation.

any suit in which the matter in issue is Summary

also directly and substantially in issue
in a previously instituted suit between The existing civil procedure code of

the same parties in another court in Ethiopia has big inconsistencies with

Ethiopia having jurisdiction. the supreme law of the land i.e.

C. Consolidation of Suits/Art. 11 of Federal Constitution. According to
c. p .c/ the FDRE constitution, there are two
It is a situation where the claims of court structures established at
both parties are separate while the federal and state level. In each court
matter in issue in one suit is closely structure there are Supreme, High &
related to a suit pending in another First Instance Courts. Currently all
court. States have established woreda (first
instance) Courts, High Courts and
Consolidation is thus a procedure
Supreme Court. Besides, some states
that is applied when two or more
have establish additional court
suits pending in different courts or
structures; namely, the Social Courts
the same court and between the
and City Courts.
same parties give rise to similar
issues and are to be decided in
different courts. In other words,
To sum up, there are two means by
where two or more suits which
which we can prove the existence of
judicial jurisdiction. These are known 3.1. Parties to a Civil Suit: General
as jurisdiction in Personam and Requirements

jurisdiction in rem. The former is The parties to a civil suit which is

being considered by a court that is
jurisdiction to bind the person of the
exercising its first instance
defendant; that is, to order him to
jurisdiction are known as plaintiff and
pay the plaintiff a sum of money, to
defendant. Moreover, parties to a suit
do or refrain from doing an act. It
considered by appellate court using its
exists in Ethiopia if either the:
appellate jurisdiction are called
1. Defendant is an Ethiopian appellant and respondent. Plaintiff is a
national or domiciliary; party who makes an allegation and

2. Act which is the subject matter initiates proceedings in a court of law;

of the suit occurred in Ethiopia; whereas, defendant is a person subject

or to a claim, i.e., a party against whom

a claim is filed.
3. Defendant has consented
(expressly or impliedly) to the Article 33(1) of the Civil Procedure
Code, reads:
exercise of jurisdiction by the
“Any person capable under the law
Ethiopian court. may be a party to a suit”.
Judicial jurisdiction in rem is Capacity is the power or ability to
jurisdiction to grant relief with perform juridical act.
respect to a certain property itself. It Article 34(2) of the Civil Procedure

exists only in the courts of the place Code states:

where the property is situated. “Where a person under disability is

not represented by his legal
CHAPTER THREE
representative, the proceedings shall
PARTIES TO AND DIMENSION OF
be stayed until a legal representative
SUITS
is appointed in accordance with the because a civil suit concerns
relevant provisions of the Civil individual interest/ right. It is up to a
Code.” concerned party only to either litigate

Incapacity is one of the grounds of or abandon a claim. Hence, no other

preliminary objection specified under person could decide to bring action

Article 244(2) of the Civil Procedure for a real party with interest in a suit.

Code. Another reason may also be to avoid

defendant facing two suits over a
3.2. Party Plaintiff and Party
Defendant single cause of action. The person
who has an original interest and
3.2.1. Party Plaintiff
another person pursuing his right
3.2.1.1. Vested Interest
could bring two suits at different
Plaintiff is a party who brings action.
times and this exposes defendant to
To be plaintiff, the first requirement is
two suits.
to possess capacity to perform
juridical acts in general. The other 3.2.1.2. Effects of Lack of Vested
requirement is that a person must be Interest

the real party interest with regard to If an action is brought by a plaintiff

the particular claim or allegation he who does not have a vested interest,

brings to a court of law against an opposite party should raise this as

another party. an objection on the grounds that a

party bringing action is unqualified to
Article 33(2), reads as follows:
act in the proceedings./Art.244/2 of
No person may be a plaintiff
c. p. c/
unless he has a vested interest in
the subject matter of the suit.

The reason why the law attaches this

requirement to party plaintiff is
3.2.2. Party Defendant: Allegations The second one relates to a situation

To be considered as a defendant, there where the representatives represent

must be an allegation made against a the interest of others as well their own

person. interest. They serve two interests here.

This category applies to the
Article 33(3) says:
representation under Article 38 of the
“No person may be a defendant Civil Procedure Code.
unless the plaintiff alleges some claim
3.4.1. Legal Representation: Types
against him”.
and Requirements
3.3. Representation in Civil Suits: The representation under Article 34 is
Types and Requirements/Art. 34 of known as legal representation. A legal
c. p .c/
representative represents persons
Representative suit is a suit in which
under incapacity.
others represent real parties to a suit.
Representation is allowed in civil 3.4.2. Representative Class Suits:

cases and the reason why it is allowed Requirements/Art. 38 of c. p. c/

is to be found in Article 65 of the This kind of representation is known

Civil Procedure Code. as representative class suit. The

The types of representation can be reason why this representation is

categorized generally into two. One allowed is because a suit involves

type involves a situation in which the several persons and that it is

representatives act for the interest of inconvenient for all concerned to be

the real parties to a suit. They act on parties. It is inconvenient for such a

behalf of real parties and do not have group of persons to proceed with a

their interest at stake in a suit. This case individually.

category includes the representations 3.4.3. Agents and Pleaders

specified under Articles 34, 57-64.
Still another kind of representation is here is how two or more plaintiffs
provided under Article 57 of the Civil bring action against a single or more
Procedure Code. According to this defendants, and how many causes of
Article, a legal representative, agent actions can be made subject to a
or pleader of a person may make any single suit.
appearance, application or act in or to 3.5.1. Joinder of Parties
any court. The requirement is that 3.5.1.1. Purpose and Significance
such representatives are able to Joining or joinder of parties multiplies
answer all the material questions the number of parties and widens the
relating to a suit. scope of litigation.
A person can also be represented by Joining parties and causes of action
his pleader/advocate. A pleader is a makes parties to pool their resources
person who holds an advocate’s together and enables them to share
license, and no person may appear in costs of pursuing a suit. It also
this capacity unless he holds such a relieves a burden of court in a sense
license. A pleader has to produce his that a court resolves cases involving
license together with a letter of many persons or causes of action by a
authorization from a person who single suit. Rather than treating
authorized him. The mere fact that a related cases separately, the court
person has an advocate’s license does considers a case of many persons or a
not entitle him to represent any person case involving many causes of action
unless he is authorized in writing to in one file. Further, it avoids the
act on behalf of such person. (See, Art possibility of making conflicting
63 of the Cv. Pr. C) decisions. If suits that can be joined
Here, the concern is multiplication of are tried separately, there is a chance
parties and causes of action. The issue
of giving contradictory decision over 3.5.1.2.. Forms and Types of Joinder
essentially identical suits. of Parties
Joinder of parties appears in different
On the other hand, joinder is
forms. Two or more plaintiffs (which
disfavored since it expands the scope
is known as joinder of plaintiffs)
of litigation and consequently causes
bring action against a single
delay of proceedings. In addition, it
defendant; or a single plaintiff brings
results in embarrassment of the
action against two or more defendants
defendant and makes him not to be
(which is joinder of defendants); or
able to properly defend himself. For
two or more plaintiffs file a suit
these two reasons, joinder should not
against two or more defendants
be granted.
(which is joinder of plaintiffs and
Thus, one interest is in favor and the
joinder of defendants). There are two
other is against joinder of parties and
types of joinder of parties. One is
causes of action. The rule under
permissive joinder of parties. Here the
Article 221 of the Civil Procedure
motion of parties makes the joinder.
Code tries to strike a balance between
The parties entitled to join can choose
these two conflicting interests toward
between joint actions or separate
joinder. If joinder of causes of
suits. They are not obliged to bring a
actions in a statement of claim results
joint action or defence. This joinder is
in a delay of proceedings or
provided under Articles 35, and
embarrassment of defendant, the court
36(1,2,3,4,5,6) of the Civil Procedure
may order separate suits. In all other
Code.
cases, joinder is, therefore, allowed so
3.5.1.3. Effect of Misjoinder and
long as it does not bring about delay
Non-Joinder of Parties
of proceedings or embarrassment to a
defendant.
What will happen if there is a mis name itself implies, parties are under
joinder or non-joinder of parties? obligation to bring a joint action or

Article 39 deals basically with the defense. There is no choice given to

effects of mis-joinder or non-joinder parties other than a joint action or

of parties relating to a permissive type defense.

of joinder. Mandatory joinder applies to both

It means that a court does not dismiss plaintiff and defendant. Except for

a case for the reason that there is mis- Article 36(3) and (4), which applies to

joinder or non-joinder of parties. If a joinder of defendants, the Civil

party is not joined or is improperly Procedure Code does not have an

joined, the appropriate measure is not explicit rule on mandatory joinder of

to dismiss a case but to drop a party plaintiff. This may be because

improperly joined and demand mandatory joinder is a question of

substitution, and proceed with the substantive law than procedural rules.

parties before a court. If there is non- It is the rules of substantive law that

joinder, the court shall proceed with require that a right should not be

the case irrespective of such non- exercised otherwise than by or against

joinder. If there is improper joinder of all persons concerned.

defendants, the plaintiff should be If the mandatory joinder is related to a

given the option to drop the defendant, there is no problem in case
defendants improperly joinded or to there is a non-joinder of indispensable
proceed with separate suits. party defendant. In case of non-

Another type of joinder of parties is a joinder of defendant, the case is not

mandatory one, which is usually dismissed. The court shall order the

known as joinder of indispensable joinder of such party, by issuing

parties. In mandatory joinder, as its summon on him. He cannot refuse to

be a named defendant. Thus, in case caused damage to their property. “B”
of non- joinder of a party defendant, alone brought action. Upon the
the rule under Article 39 40(2) applies objection of “C” on the ground that
and the court makes him a party. there is non-joinder of an

There are two options available to a indispensable party plaintiff “A” or by

court if an indispensable party its own motion; the court may require

plaintiff is not willing to join a suit as the addition of “A”. If “A” appears

a named party plaintiff. One is to before a court and refuses to be added

proceed with the case regardless of as a party plaintiff, the court may

the absence of such party, since it is simply make him defendant.

unfair to deny the parties who brought

action the remedies they are seeking Another option available is to dismiss
from a court for the sole reason that a a case if a party plaintiff refuses to be
added as a party plaintiff. This is
party refuses to become a party.
because it is an indispensable party
Hence, rather than dismissing a case, that is not joined and hence non-
the court shall make such party a joinder in such instance should not
produce similar effect as in the case of
defendant. This makes the court to
non-joinder of permissive party
proceed with the case, protects the plaintiff. Thus, according to this
parties who present a case before a option, the parties are not under
obligation to exercise their rights
court, and allow him to appeal, since
jointly, and if one does not join or
he is appearing as a party defendant. refuses to be joined, the case shall be
As a defendant, he is merely on a dismissed.
record of court and does not have any 3.5.2. Joinder of Causes of Action:
responsibility to defend unlike a Definition
proper named defendant. Suppose that Joinder can also be related to causes
“A” and “B” are joint owners. “C” of action and not parties as such.
Parties are allowed to join as many Another type of intervention is as of
causes of action as possible so long as obligation. This is provided under
joining of causes does not bring about Article 42. The Public Prosecutor is
delay of proceeding or embarrassment under obligation to intervene in some
to a defendant. Parties are allowed to civil cases.
join even unrelated claims. /Art. 217
3.7. Third-Party Practice
of civ. P. c/
[Impleader]: Purposes,
Art. 218 and 219 are exception to this
Requirements and Consequences
assertion.
Third party practice, which is also
3. 6. Interventions: Conditions and known as impleader, is the procedural
Types device enabling the defendant in a
Intervention is a mechanism by which lawsuit to bring into a suit an
a party is brought into a pending case additional party who may be liable for
to present a claim or defense. It is all or part of the original plaintiff’s
different from joinder of parties. claim against the defendant. It is a
Joinder is an issue that comes at the mechanism by which a defendant
beginning of a suit, while intervention brings into a suit a third party on the
is a question that comes into picture ground that such third party covers or
after a suit undergoes some steps. shares the whole or part of claim of
There are two types of intervention. plaintiff. It is initiated by a defendant.
One is made by an application of a The purpose of third party practice is
third party himself, which is provided to settle claims involving the same
under Article 41 of the Civil cause of action/ transaction in a
Procedure Code. It is a party himself single suit. It aims at avoiding
who approaches a court to intervene
separate suits over the same cause of
in a suit.
action/transaction. Thus, a defendant
who has a claim against a third party suit to abate if the right to sue
does not need to bring a subsequent survives
suit against him. The defendant’s However, there is no change of

claim against third party can be seen parties if the court concludes the

in the same suit where the plaintiff’s hearing of a case and adjourns the

claim against the defendant is being case to make a decision even if one of

considered/Art. 43 of civ. P. c/ the parties dies as provided under

Article 53 of the Civil Procedure Code.
His mere absence amounts to
This means that if one of the parties
admission of such relation. This is a
rule provided under article 76. dies after the hearing of the case is

3. 8. Change of Parties concluded and what remains is giving

In civil suits, there is a possibility that a decision.

others can replace the original parties CHAPTER FOUR

upon death of one of them. This is PLEADINGS AND PRE-TRIAL
not the case with criminal suits. PROCEEDINGS
Introduction
in civil cases death of one of the
parties does not automatically cause This unit deals with issues to do with
the termination of a suit. There is a how parties to a suit are supposed to
possibility that others can replace the reduce their claims, defenses,
deceased party and the suit continues. petitions, applications, etc. and bring
This is possible if the right to sue them to the attention of a court.
survives. Article 48(1) reads as Without pleadings, courts are not in a
follows. position to see cases and decide on
The death of a plaintiff or them.
defendant shall not cause the 4.1. Pleadings
4. 1. 1. Definition and Purposes will be served to the defendant
Generally defined, Pleadings mean all together with summons.
formally written statements filed to a B: They provide a summary of the
court of law by parties to a suit with claims and defenses of parties
respect to their respective claims to a court, which enables a
and/or defenses. court to frame the appropriate
The Ethiopian Civil Procedure Code and relevant issues that need
does not define pleadings in a direct decision. The court looks into
way. However, it contains, under the content of both the
Article 80(1) formally written statement of claim and
statements that constitute them, such statement of defense; and, then,
as statement of claim, statement of frame appropriate issues that
defense, memorandum of claim, need to be resolved by the court
appeal, etc; and provides that these at the trial of the case.
documents must be the ones that C: They fix the issues to be
initiate proceedings in a court of law decided, and in a way, limit the
and make replies thereto. scope of litigation between
Pleadings serve various purposes. The parties and determine the
following are the main ones. evidences to be used by the

A: They provide the defendant parties. The court cannot create

with notice of the suit and issues of its own and then pass

enable him to prepare his decision. It is based mainly on

defenses accordingly. This is pleadings of parties that the

because a copy of the statement court tries to frame issues. The

of claim filed by the plaintiff main source for the framing of

issues is the pleadings
 submitted to a court by parties, Technical requirements relate mainly
as indicated under Article 248 to the preparation and format of
of the Civil Procedure Code. pleadings. The registrar of a court

D: They guide the parties and the examines these requirements.

court in the conduct of cases. A The technical requirements are

litigant cannot prepare for trial provided under Articles 80(2), 222,
unless he has been informed 223,234,327-330, etc.
adequately of the opponent’s
The technical requirements includes
contentions. There is no way
the ff, first, is that they shall be
that a court can control a suit
handwritten in ink, printed, or
unless it knows the nature of
typewritten on the prescribed paper
the parties’ allegations.
80/2/
E: They try to expedite litigation. This
The second requirement is that they
is particularly realized when the rules
shall be prepared in accordance with
on them are employed properly by
the form prescribed by the Civil
parties and the court. Hence, all the
Procedure Code. The forms of
rules on pleadings shall be used to
pleadings are found at the back of the
achieve this purpose. Note also that
Civil Procedure Code.
the substantive rights of parties should
also be taken into account when there The third requirement is that they
is an improper pleading. shall be made as concise as possible
and contain a statement of material
4.1.2 General Pleading Rules:
facts on which a party relies for his
Requirements and Effects of Non-
claim or defense.
Compliance

They can be divided into technical

and legal ones.
The fourth requirement is that they “Every pleading shall be signed by
shall be verified. See Article 92(1) the party or his pleader, if any , or
below. where a party is for good cause
unable to sign, by any other person
Unless otherwise expressly provided
duly authorized by him to sign the
by law, every pleading shall be
same or to sue or defend on his
verified at the foot by the party or by
behalf.”
one of the parties pleading or by
someone other than the pleader, The sixth requirement is that annexes
directly acquainted with the facts of must accompany some pleadings.
the case. Annexes as provided under Articles

Sample verification 223 and 234 shall accompany, for

instance, a statement of claim and
I, -----------------------, hereby
statement of defense.
declare that the facts stated in
this claim/defense are true to What measure can the registrar take if
the best of my knowledge and one of these requirements is not
belief. complied with?
Date--------------------
The measures taken by the register are
(Signature and description of
found under different provisions of
the person verifying the
the Civil Procedure Code. For
pleading).
instance, the registrar can reject a
The fifth condition is that they shall be statement of claim as provided under
signed by the party or person Article 229.
authorized to verify the pleading. See
The statement of claim shall be
Article 93 below.
rejected by the registrar where:
 a) it is not in the form provided A statement of claim shall contain
for by Article 222; certain items that are listed under
b) it is not accompanied by the Article 222 of the Civil Procedure
annexes provided for by Code.
Article 223; or,
By looking at these items, one can
c) it is not verified in the
divide the parts of the statement of
manner provided for by
claim into four. The first is caption. In
Article 92.
the caption, the plaintiff must state the
Rejection by the registrar does not
name of the court in which the suit is
prohibit a party from bringing a fresh
filed, the title of the suit, and the
pleading. The rejection by the
names of the parties including their
registrar means that there is an error
description and address. If the
in the technical requirements of
plaintiff is under disability, this shall
pleadings, and if the party corrects the
be stated; if the plaintiff is bringing
defects, he can submit fresh pleading
action in a representative capacity,
on the same cause of action. See
this shall also be stated. It means that
Article 232.
the capacity in which the plaintiff is
suing shall be indicated.
4.1.3. Major Types of Pleadings
The second part of the statement of
4.1.3.1. Statement of Claim: claim is the statement disclosing a
Requirements and Contents cause of action. The statement of
claim shall state the facts constituting
Statement of claim is a pleading
a cause of action and when and where
submitted to a court by plaintiff. It is
it arose. The presence of statements
also known as a complaint.
showing cause of action is considered
to be the legal requirement to be met
by the statement of claim, as provided defense. The statement of defense is
under Article 231 of the Civil subject to the rule under Article 80(2)
Procedure Code. See Article 231. and 234.

The third part of the statement of The statement of defense has mainly
claim is the jurisdiction. Once the two parts. One is caption in which the
court has established that a statement defendant is supposed to state the
of claim disclosed a sufficient and name of the court to which he submits
lawful cause of action, it then his defense, and the number of the
examines whether or not it has a suit. The other part of the statement of
jurisdiction over a case. defense is the statement showing the
points of defense.
The amount of money stated in the
statement of claims is to be confirmed In this part, the defendant is expected
on the basis of the rules under Article to raise affirmative grounds of
224-226 of the Civil Procedure Code. defense, which include facts showing
that the claim of the plaintiff is
The fourth part of statement of a
inadmissible on the ground that he is
claim is relief. The statement of claim
incapable, or that the court lacks
shall state the demand for the relief to
jurisdiction or that the action is barred
which the pleader believes he or she is
by period of limitation, etc. Apart
entitled to. See Article 224.
from these grounds, the defendant can
4.1.3.2. Statement of Defense: raise any ground of objections to a
Purposes and Contents suit. In addition, the defendant can
raise a counterclaim or set off against
Statement of defense is a pleading
the claim of the plaintiff.
produced by the defendant. It is the
pleading that contains material facts
on which the defendant relies for his
In stating his facts of defense, the have alleged. The remedy for failure
defendant must respond to each to plead at the beginning is to request
allegation of the facts made in the an amendment of pleading. In the
statement of claim whether he admits absence of permission to amend the
or denies them. The denial he makes pleading, the plaintiff is not allowed
must be put in a direct manner. to raise new issues at a trial and
Evasive denial does not amount to a introduce evidence unless the court
defense under Article 235 rather it frames issues by its own motion using
amounts to admittance. See Article the power given to it under Article
235 below. Evasive denial is a denial 252.
in general terms. For instance, saying
4. 1.5. Alternative and Subsequent
that, “I am not responsible or I am not
Pleadings/ Article 237/.
liable” is considered to be an evasive
denial. An alternative pleading is optional
grounds of claims or defenses relied
If the statement of defense is rejected,
on by a party. It is a pleading that
the court shall proceed with the trail
aims at maximizing the grounds of
of the case. The rejection does not
claim or defense.
mean that the case is to be decided for
the plaintiff. This is because even if it Article 224(1) states the application of
is rejected, the defendant could alternative pleading to the plaintiff.
defend himself orally under Article
The statement of claim shall state
241, which will be discussed later on.
specifically the relief which the
4.1.4. Effects of Failure to Plead plaintiff claims either simply or in the
alternative, and it shall not be
Failure to plead means that the
necessary to ask for general or other
plaintiff omits some facts he could
relief which may always be given as
the court may think just to the same 4.1.6.1. Nature and Purpose
extent as if it had been asked for.
Amendment of pleading presupposes
Subsequent pleading is also known as
that a technically and legally
further pleading. It means pleading
sufficient pleading has already been
again on the same issue on which the
filed and that it is found to be
pleading already been made. / This is
defective in terms of what has been
provided under Article 239/.
claimed or stated. The amendment is
Unless the statement of defense allowed to rectify defects in
contains either set off or counter pleadings. If allowed, an amendment
claim, the court should not allow introduces a modification to the
further pleading for any other defense content of the pleading already
made by the defendant unless an submitted to a court. The question of
amendment is allowed by the court. amendment is raised when a party
tries to produce evidence on
When the defendant raises counter
something which is not included in
claim in his statement of defense, he
the pleading or that the evidences
becomes plaintiff. This is because he
produced do not prove the contents of
is raising a new claim against the
pleading or that a party comes across
claim made by the plaintiff. That is
new facts that he should have
why the rule under Article 215(2)
included in his pleadings, etc. The
says that the defendant shall pay court
provisions of Article 91 and 252 deal
fee. Article 215(2) says that “The
with amendment of pleadings.
prescribed court fee shall be paid
upon the filing of a statement of 4.1.6.2. Grounds and the Process
defense containing a counter claim.

4.1.6. Amendment of Pleadings

The amendment is ordered by the 4.2.1. Service of Process
motion of a court or by the application 4.2.1.1. Issuance of Summons

of a party. Summons, literally speaking, means

According to Articles 91 and 252, the to call someone to come. In the

amendment is made when it is context of proceedings in a court of

necessary for the purpose of law, it refers to a formal mechanism

determining the real issues in dispute by which a defendant is notified of a

between the parties. This means that suit made against him and called upon

the amendment has a bearing on to appear on a fixed time and date

deciding the issues between the before a designated court to answer a

parties. complaint/allegation made by the

plaintiff against him.
4.1.6.3. Effects and Related Issues
4.2.1.2. Modes of Service
Amendment brings into picture the
consideration of two interests. One is Summons for appearance of
that it causes delay of proceedings. defendant (Art. 94)
This is because if it is permitted, the To …”A”…. (Name, description and
proceedings will start as a fresh one. residence)
On the other hand, amendment Whereas …”B”………..has instituted
protects a party from losing his a suit against you for
substantive rights or being affected as …”C”……….you are hereby
a result of pleading error. summoned to appear in this court in
person or by a pleader duly instructed
The introduction of new evidence
and able to answer all material
could not serve as a ground for the
questions relating to the suit, or who
amendment of pleading.
shall be accompanied by some person
4.2. Pre-Trial Proceedings
able to answer all such questions, on
the ………day of ………19……….You of service of summons used
must be prepared to produce on that determines its legal sufficiency.
day your statement of defense a list of Service is legally sufficient if the
all the witnesses you intend to call, mode of service used is reasonable
stating their address and the purpose under a given circumstance. If the
for which you intend to call them a
mode employed is, however, not
list of all the documents on which you
deemed to be sufficient, the court
intend to rely.
cannot proceed with the case and
Take notice, which, in default of your
make a valid decision since it affects
appearance on the day before
the opportunity to be heard that is
mentioned or of your producing your
available to the defendant. Thus, the
statement of defense or any evidence,
mode of service to be used should be
the suit will be heard and determined
notwithstanding your default. reasonable in a given circumstance.

Given under my hand and the seal of As said earlier, there are different
the court, this …….day of modes of service of summons. The
…….19…….Judge. first mode is known as personal

“A”--- name “B”---name of plaintiff service. Summons is said to be served

“C”---Cause of action i.e. the source in personal mode if it is received by

of claim of plaintiff the defendant himself from the hands

of a serving office. This mode
There are different modes of service
amounts to the general rule on service
of summons to the defendant, which
of summons. Article 95(3) reads as
we will discuss below. If the service of follows:
summons is in line with these modes, Without prejudice to the
it is said to be reasonable. The mode provisions of the following
 articles, the summons shall as where all other modes cannot be
far as possible be served on the applicable. This is implied in the rule
defendant in person. under Articles 103 and 105. If the
Another mode of service is one that is serving officer cannot serve, he shall
similar to personal service. In this return it to a court. Then the court
mode, summons is not actually served orders a substituted mode of service.
on the defendant in person. Somebody
4.2.2 Effects of Non- Appearance of
else receives it but the law treats it as
Parties
if service is made on defendant in
The principle is this 69(1). See Article
person./Art. 105 of civ. And Art.
69(1) below.
96/1&2 of civ. P. c.
“On the day fixed for the hearing of
Another mode of service is known as the suit, the parties shall be in
constructive mode of service. attendance in the court in person or
by their respective agents or pleaders
This is the rule under Article 99, 100
and the suit shall then be heard.”
and Article 101.
What if a party fails to appear? The
Still another mode of service is the effects of non-appearance depend on a
substituted mode of service. This party who fails to appear and on
mode of service is considered to be whether or not the summons is duly
the least effective mode of service. It served on the defendant. If both
is the final mode of service used when parties (plaintiff and defendant) fail to
all other modes of service are not appear on the date fixed for the first
applicable. This mode of service hearing of a suit, the court shall strike
includes service by affixing a copy of out a suit. This rule is modified if
summons in public areas, publication there is non-appearance of both
in newspaper, etc. It is a mode used parties on appeal. If the appellant and
respondent fail to appear on the first such admission and, where part only
date of hearing of appeal, the appeal of the claim has been admitted, shall
shall be dismissed. See Article 69(2) dismiss the suit as it relates to the
below. If the defendant failed to remainder.
appear, the court may issue fresh
When the plaintiff appears but the
summons or proceed to hear the case
defendant fails to appear, the measure
in his absence. The effect of non-
to be taken by the court depends on
appearance of plaintiff is different
whether or not the summons has been
from that of the defendant.
properly served on the defendant.
Where neither party appears /Art. 70/a of civ. P. c.
when the suit is called on for
If the court proves that summons was
the hearing, the court shall
not duly served on the defendant, the
make an order that the suit be
court orders the issuance of second
struck out, or, in cases of
summon on him. But if the summons
appeal, that the appeal be
is not served on the defendant owing
dismissed.
to the plaintiff’s negligence in serving
Article 73 that provides the rule in
summons, the court may adjourn the
this respect.
hearing of a suit or may strike out if it
Where the defendant appears and the
is a fresh suit or dismiss it if it is a
plaintiff does not appear when the suit
case on appeal. See Article 70(d).
is called on for hearing, the court
shall make an order that the suit be When a third party defendant (under
dismissed, unless the defendant Article 43) does not appear, the rule
admits the claim or part thereof, in under article 70(a) does not apply. In
which case the court shall pass a case of non-appearance of third party
decree against the defendant upon defendant, the court decides that he
has admitted the claim of defendant. Generally, striking out does not avoid
The mere non-appearance of such the submission of a fresh suit, upon
party amounts to an admission of the payment of court fee, to a court on the
existence of contribution or indemnity same cause of action. Good cause is
relations alleged by plaintiff. This important not to pay a court fee, but
kind of judgment is known as default not for initiation of a fresh suit.
judgment. It is a decision based on the Without showing good cause, he can
sole reason of absence of third party bring a fresh suit, but he is subject to
defendant. It is provided under Article pay a court fee. If a case is struck out,
76. it is considered as if it were not filed
at all to a court.
The fate of the defendant who could
not appear on the opening of the suit A suit is dismissed when the plaintiff
depends on the presentation of good fails to appear but defendant appears;
cause by him. If he shows good cause, when both parties fail to show upon
he is permitted to defend himself./Art. appeal; and when an appellant is
72 of civ. P. c/ proved to be in default in serving
summon on respondent (see Articles
What are the effects of non-
69(2), 70(d), 73). If a suit is
appearance of parties?
dismissed, the plaintiff is prevented
The court is not entitled to make a from bringing a fresh suit on the same
decision for any party for the sole cause of action. He cannot pay a court
reason that another party fails to fee and proceed with a suit. The
appear except the non-appearance of dismissal leads to a loss of right to
third party defendant. The measure bring action. /Art. 74/.
taken by the court can either be
The defendant in whose absence a
dismissal or striking out of a suit.
case is heard and decided can also
request the setting aside of exparte
decision or default judgment. He
could apply within one month of the
day he became aware of such
decision. If he is proved to be
prevented from appearing because of
good cause, the court may set aside
exparte decision or default judgment,
and consider the case as a new one.
See Article 78(1) below.

Any defendant against whom a

decree is passed or order made
exparte or in default of pleading may,
within one month of the day when he
became aware of such decree or
order, apply to the court by which the
decree was passed or order made for
an order to set it aside.