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

The first factor relates to the nature monetary values. This may

of the parties instituting the legal include, for instance, the

action. A civil case is naturally payment of damages for an

initiated by a private person claiming alleged injury sustained by the

redress for some wrong alleged to victim (plaintiff).

have been committed against him by In some exceptional civil cases,

another. however, a specific relief (personal

Accordingly, parties involved in a performance) or forced performance

civil case can appear in either of the of legal obligations, such as,
following ways:
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 same time-signifies the freeing of the

private matters. Open court judiciary from an unwarranted

proceedings ensure transparency of encroachment or influence of any

judicial 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 I.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 I.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 19 th 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

2.1. The Ethiopian Judicial System: the Federal and the Regional

Past and Present Governments are endowed with their

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.
Consequently, it will only be the
2.2.2.1. Subject Matter Jurisdiction
The subject matter jurisdiction, which
In principle, State subject matter is a
depends on the ‘type’ of the case, in
matter that arises on the basis of
turn, involves the making of,
State Law. However, there are
primarily, an identification of
conditions where issues raised on the
matters/cases falling within and
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
2.2.2.2. Jurisdictional Limits of
matters. Proclamation No 25/96
Courts: Pecuniary Amount Vs
provides that Federal Courts have 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 High Court shall have exclusive First
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
local jurisdiction are framed in such a rule of the provisions of the Civil
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 pledge, deposit or bailment) would,
categorized for the purpose of thus, be the place where the contract
determining local jurisdiction. These was made or was to be executed.
are:
In addition, the plaintiff could also
 Contracts generally, institute his case in a place where the
 Contracts of carriage, defendant resides, works for gain or
 Contracts of carries on business, according to Art
Insurance, 19 of the Code.
 Contracts of pledge,
 Suits regarding contracts
deposit, or bailment.
of carriage
Possibly, there are two types of suits

 Suits Regarding Contracts in regarding contracts of carriage. These

General are carriage by see and carriage by
Pursuant to Art 24(1), suits arising air. In each case, suits will be
from contracts, in general, may be instituted in accordance with their
instituted at the place where the respective laws. Accordingly, while
contract was made or executed suits regarding contracts of carriage
unless some other place is mentioned by sea are instituted based on the
in the contract-in the discretion of provisions of the Maritime Code, the
the plaintiff. This indicates that the Commercial Code will determine suits
place of local jurisdiction of contracts regarding contracts of carriage by air.
of any type (other than the remaining
According to Art.208 of the Maritime
three namely, contracts of carriage,
Code, suits involving contracts of
insurance,
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

Property
An issue of local jurisdiction whereby
suit related with immovable property
  Suits for Wrong Done to 2.2.3.3. Change of Venue (Transfer
Persons or Movable of Suit) and Removal of Judges
Propert
The reason is stipulated under Art.
Article 27 of the Civil Procedure Code
31 of c. p. c.
specifically talks about suits for wrong
done to persons or movable property. It Generally speaking, the rules on local
is the question of local jurisdiction in jurisdiction are primarily designed to
case of extra contractual liability. achieve handiness for the parties.
According to Art 27(1), such suits may Consequently, transfer of suits from a
be instituted in the court of the place court to another is basically meant
where the wrong was done or in for the suitability of the parties;
accordance with the provisions of art particularly, the defendant. At this
19. juncture, it has to be underscored
 Suits Regarding that the court wherein the suit is
Successions filled may have local jurisdiction over
According to Art 23 of the Cv. Pr. Co., the case; yet, it is also likely that the
suits regarding succession plaintiff might have trickily chosen it
with a view to making it painstakingly
 Suits upon Several Causes
of Action intractable and unreasonably

Where a suit is based upon several expensive for the defendant to

causes of action arising in deferent defend himself properly. In practice

places, the suit may be instituted in such inconvenient court is commonly

any court that has jurisdiction over known as ‘forum non-convenient’-

one of the causes of action (Art. 29 of inconvenient forum. A court which is

c.p.c). holding a case is considered to be

‘forum non-convenient’ if it is found There is a possibility for conflicts of
to be insurmountable for, jurisdiction to emerge between
particularly, the defendant to gather courts, for instance, the Federal and
relevant evidences so as to State Courts; or, within a single
sufficiently defend himself; and, judicial structure between courts of
exposes him to incur unreasonably the Federal or States’ judicial
high costs to pursue the case and to structure-where a court alleges that
bring his witnesses to the court. the matter falls within its jurisdiction
while the other contends that it has
2.2.3.4. Conflicts of Jurisdiction:
the competence over the same case.
Priority, Pendency and Consolidation
The power to determine on such
of Cases
conflict of jurisdiction is conferred
Overview upon the Federal Supreme Court.

With a view to resolving problems

resulting from such circumstances, the
Civil Procedure Code treats the matter
through the rules of priority,
pendency and consolidation.
A. Priority/Art. 7 of c.p.c/

The question of priority arises when a

plaintiff institutes two or more suits
on the same cause of action in
different courts.
Let us assume that A is claiming the same parties in another court in
certain amount of Birr from a Ethiopia having jurisdiction.
defendant on a contract that was C. Consolidation of Suits/Art. 11 of

made in Addis Ababa and to be c. p .c/

performed in BahirDar. In this case, It is a situation where the claims of

depending on the amount of claim, both parties are separate while the

the plaintiff has the possibility to matter in issue in one suit is closely

institute his case both in Addis Ababa related to a suit pending in another

and BahirDar. If the amount does not court.

exceed 500,000.00 Birr, the Federal Consolidation is thus a procedure

First Instance Court in Addis Ababa or that is applied when two or more
the High Court of the Amhara suits pending in different courts or
Regional Government in BahirDar will the same court and between the
have jurisdiction to see the suit. But, same parties give rise to similar
if it exceeds 500,000.00 Birr, the High issues and are to be decided in
Court of Federal High Court or the different courts. In other words,
Supreme Court of the State will have where two or more suits which
the jurisdiction over the case. involve the same parties and similar

B. Pendency/Art. 8 of c. p .c/ issues in different courts or where

On the other hand, Article 8 covers there is a question of pendency, then,

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 do or refrain from doing an act. It
Ethiopia has big inconsistencies with exists in Ethiopia if either the:
the supreme law of the land i.e.
1. Defendant is an Ethiopian
Federal Constitution. According to
national or domiciliary;
the FDRE constitution, there are two
2. Act which is the subject matter
court structures established at
of the suit occurred in Ethiopia;
federal and state level. In each court
or
structure there are Supreme, High &
3. Defendant has consented
First Instance Courts. Currently all
(expressly or impliedly) to the
States have established woreda (first
exercise of jurisdiction by the
instance) Courts, High Courts and
Ethiopian court.
Supreme Court. Besides, some states
Judicial jurisdiction in rem is
have establish additional court
jurisdiction to grant relief with
structures; namely, the Social Courts
respect to a certain property itself. It
and City Courts.
exists only in the courts of the place
where the property is situated.

To sum up, there are two means by CHAPTER THREE

which we can prove the existence of PARTIES TO AND DIMENSION OF
judicial jurisdiction. These are known SUITS

as jurisdiction in Personam and 3.1. Parties to a Civil Suit: General

Requirements
jurisdiction in rem. The former is
The parties to a civil suit which is
jurisdiction to bind the person of the
being considered by a court that is
defendant; that is, to order him to
exercising its first instance
pay the plaintiff a sum of money, to
jurisdiction are known as plaintiff and
defendant. Moreover, parties to a suit Article 244(2) of the Civil Procedure
considered by appellate court using its Code.
appellate jurisdiction are called 3.2. Party Plaintiff and Party
appellant and respondent. Plaintiff is a Defendant
party who makes an allegation and 3.2.1. Party Plaintiff
initiates proceedings in a court of law; 3.2.1.1. Vested Interest
whereas, defendant is a person subject Plaintiff is a party who brings action.
to a claim, i.e., a party against whom To be plaintiff, the first requirement is
a claim is filed. to possess capacity to perform

Article 33(1) of the Civil Procedure juridical acts in general. The other
Code, reads: requirement is that a person must be
“Any person capable under the law the real party interest with regard to
may be a party to a suit”. the particular claim or allegation he
Capacity is the power or ability to brings to a court of law against
perform juridical act.
another party.
Article 34(2) of the Civil Procedure
Code states: Article 33(2), reads as follows:

“Where a person under disability is No person may be a plaintiff

not represented by his legal unless he has a vested interest in

representative, the proceedings shall the subject matter of the suit.

be stayed until a legal representative The reason why the law attaches this
is appointed in accordance with the requirement to party plaintiff is
relevant provisions of the Civil because a civil suit concerns
Code.” individual interest/ right. It is up to a

Incapacity is one of the grounds of concerned party only to either litigate

preliminary objection specified under or abandon a claim. Hence, no other

person could decide to bring action
for a real party with interest in a suit. “No person may be a defendant
Another reason may also be to avoid unless the plaintiff alleges some claim
defendant facing two suits over a against him”.
single cause of action. The person 3.3. Representation in Civil Suits:
who has an original interest and Types and Requirements/Art. 34 of
another person pursuing his right c. p .c/

could bring two suits at different Representative suit is a suit in which

times and this exposes defendant to others represent real parties to a suit.

two suits. Representation is allowed in civil

cases and the reason why it is allowed
3.2.1.2. Effects of Lack of Vested
Interest is to be found in Article 65 of the

If an action is brought by a plaintiff Civil Procedure Code.

who does not have a vested interest, The types of representation can be
an opposite party should raise this as categorized generally into two. One
an objection on the grounds that a type involves a situation in which the
party bringing action is unqualified to representatives act for the interest of
act in the proceedings./Art.244/2 of the real parties to a suit. They act on
c. p. c/ behalf of real parties and do not have
their interest at stake in a suit. This
category includes the representations
specified under Articles 34, 57-64.
The second one relates to a situation
3.2.2. Party Defendant: Allegations
where the representatives represent
To be considered as a defendant, there the interest of others as well their own
must be an allegation made against a interest. They serve two interests here.
person. This category applies to the
Article 33(3) says:
representation under Article 38 of the any court. The requirement is that
Civil Procedure Code. such representatives are able to

3.4.1. Legal Representation: Types answer all the material questions

and Requirements relating to a suit.
The representation under Article 34 is A person can also be represented by
known as legal representation. A legal his pleader/advocate. A pleader is a
representative represents persons person who holds an advocate’s
under incapacity. license, and no person may appear in
3.4.2. Representative Class Suits: this capacity unless he holds such a
Requirements/Art. 38 of c. p. c/ license. A pleader has to produce his

This kind of representation is known license together with a letter of

as representative class suit. The authorization from a person who

reason why this representation is authorized him. The mere fact that a

allowed is because a suit involves person has an advocate’s license does

several persons and that it is not entitle him to represent any person

inconvenient for all concerned to be unless he is authorized in writing to

parties. It is inconvenient for such a act on behalf of such person. (See, Art

group of persons to proceed with a 63 of the Cv. Pr. C)

case individually. Here, the concern is multiplication of

3.4.3. Agents and Pleaders parties and causes of action. The issue
here is how two or more plaintiffs
Still another kind of representation is
bring action against a single or more
provided under Article 57 of the Civil
defendants, and how many causes of
Procedure Code. According to this
actions can be made subject to a
Article, a legal representative, agent
single suit.
or pleader of a person may make any
appearance, application or act in or to 3.5.1. Joinder of Parties
3.5.1.1. Purpose and Significance defendant and makes him not to be
Joining or joinder of parties multiplies able to properly defend himself. For
the number of parties and widens the these two reasons, joinder should not
scope of litigation. be granted.

Joining parties and causes of action Thus, one interest is in favor and the
makes parties to pool their resources other is against joinder of parties and
together and enables them to share causes of action. The rule under
costs of pursuing a suit. It also Article 221 of the Civil Procedure
relieves a burden of court in a sense Code tries to strike a balance between
that a court resolves cases involving these two conflicting interests toward
many persons or causes of action by a joinder. If joinder of causes of
single suit. Rather than treating actions in a statement of claim results
related cases separately, the court in a delay of proceedings or
considers a case of many persons or a embarrassment of defendant, the court
case involving many causes of action may order separate suits. In all other
in one file. Further, it avoids the cases, joinder is, therefore, allowed so
possibility of making conflicting long as it does not bring about delay
decisions. If suits that can be joined of proceedings or embarrassment to a
are tried separately, there is a chance defendant.
of giving contradictory decision over 3.5.1.2.. Forms and Types of Joinder
essentially identical suits. of Parties

On the other hand, joinder is Joinder of parties appears in different

disfavored since it expands the scope forms. Two or more plaintiffs (which
of litigation and consequently causes is known as joinder of plaintiffs)
delay of proceedings. In addition, it bring action against a single
results in embarrassment of the defendant; or a single plaintiff brings
action against two or more defendants joinder or non-joinder of parties. If a
(which is joinder of defendants); or party is not joined or is improperly
two or more plaintiffs file a suit joined, the appropriate measure is not
against two or more defendants to dismiss a case but to drop a party
(which is joinder of plaintiffs and improperly joined and demand
joinder of defendants). There are two substitution, and proceed with the
types of joinder of parties. One is parties before a court. If there is non-
permissive joinder of parties. Here the joinder, the court shall proceed with
motion of parties makes the joinder. the case irrespective of such non-
The parties entitled to join can choose joinder. If there is improper joinder of
between joint actions or separate defendants, the plaintiff should be
suits. They are not obliged to bring a given the option to drop the
joint action or defence. This joinder is defendants improperly joinded or to
provided under Articles 35, and proceed with separate suits.
36(1,2,3,4,5,6) of the Civil Procedure Another type of joinder of parties is a
Code. mandatory one, which is usually
3.5.1.3. Effect of Misjoinder and known as joinder of indispensable
Non-Joinder of Parties parties. In mandatory joinder, as its

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

defense. There is no choice given to
Article 39 deals basically with the
parties other than a joint action or
effects of mis-joinder or non-joinder
defense.
of parties relating to a permissive type
of joinder. Mandatory joinder applies to both
plaintiff and defendant. Except for
It means that a court does not dismiss
Article 36(3) and (4), which applies to
a case for the reason that there is mis-
joinder of defendants, the Civil proceed with the case regardless of
Procedure Code does not have an the absence of such party, since it is
explicit rule on mandatory joinder of unfair to deny the parties who brought
plaintiff. This may be because action the remedies they are seeking
mandatory joinder is a question of from a court for the sole reason that a
substantive law than procedural rules. party refuses to become a party.
It is the rules of substantive law that Hence, rather than dismissing a case,
require that a right should not be the court shall make such party a
exercised otherwise than by or against defendant. This makes the court to
all persons concerned. proceed with the case, protects the

If the mandatory joinder is related to a parties who present a case before a

defendant, there is no problem in case court, and allow him to appeal, since

there is a non-joinder of indispensable he is appearing as a party defendant.

party defendant. In case of non- As a defendant, he is merely on a

joinder of defendant, the case is not record of court and does not have any

dismissed. The court shall order the responsibility to defend unlike a

joinder of such party, by issuing proper named defendant. Suppose that

summon on him. He cannot refuse to “A” and “B” are joint owners. “C”

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

indispensable party plaintiff “A” or by
There are two options available to a
its own motion; the court may require
court if an indispensable party
the addition of “A”. If “A” appears
plaintiff is not willing to join a suit as
before a court and refuses to be added
a named party plaintiff. One is to
as a party plaintiff, the court may Art. 218 and 219 are exception to this
simply make him defendant. assertion.

3. 6. Interventions: Conditions and

Another option available is to dismiss Types
a case if a party plaintiff refuses to be Intervention is a mechanism by which
added as a party plaintiff. This is a party is brought into a pending case
because it is an indispensable party
to present a claim or defense. It is
that is not joined and hence non-
joinder in such instance should not different from joinder of parties.
produce similar effect as in the case of Joinder is an issue that comes at the
non-joinder of permissive party
beginning of a suit, while intervention
plaintiff. Thus, according to this
option, the parties are not under is a question that comes into picture
obligation to exercise their rights after a suit undergoes some steps.
jointly, and if one does not join or
refuses to be joined, the case shall be There are two types of intervention.
dismissed. One is made by an application of a
3.5.2. Joinder of Causes of Action: third party himself, which is provided
Definition under Article 41 of the Civil

Joinder can also be related to causes Procedure Code. It is a party himself

of action and not parties as such. who approaches a court to intervene

in a suit.
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
to a defendant. Parties are allowed to under obligation to intervene in some

join even unrelated claims. /Art. 217 civil cases.

of civ. P. c/
3.7. Third-Party Practice claim against the defendant is being
[Impleader]: Purposes, considered/Art. 43 of civ. P. c/
Requirements and Consequences
His mere absence amounts to
Third party practice, which is also
admission of such relation. This is a
known as impleader, is the procedural
rule provided under article 76.
device enabling the defendant in a
3. 8. Change of Parties
lawsuit to bring into a suit an
In civil suits, there is a possibility that
additional party who may be liable for
others can replace the original parties
all or part of the original plaintiff’s
upon death of one of them. This is
claim against the defendant. It is a
not the case with criminal suits.
mechanism by which a defendant
brings into a suit a third party on the in civil cases death of one of the
ground that such third party covers or parties does not automatically cause
shares the whole or part of claim of the termination of a suit. There is a
plaintiff. It is initiated by a defendant. possibility that others can replace the

The purpose of third party practice is deceased party and the suit continues.

to settle claims involving the same This is possible if the right to sue

cause of action/ transaction in a survives. Article 48(1) reads as

follows.
single suit. It aims at avoiding
The death of a plaintiff or
separate suits over the same cause of
defendant shall not cause the
action/transaction. Thus, a defendant
suit to abate if the right to sue
who has a claim against a third party
survives
does not need to bring a subsequent
However, there is no change of
suit against him. The defendant’s
parties if the court concludes the
claim against third party can be seen
hearing of a case and adjourns the
in the same suit where the plaintiff’s
case to make a decision even if one of
the parties dies as provided under The Ethiopian Civil Procedure Code
Article 53 of the Civil Procedure Code. does not define pleadings in a direct
This means that if one of the parties way. However, it contains, under

dies after the hearing of the case is Article 80(1) formally written

concluded and what remains is giving statements that constitute them, such
as statement of claim, statement of
a decision.
defense, memorandum of claim,
CHAPTER FOUR
appeal, etc; and provides that these
PLEADINGS AND PRE-TRIAL
documents must be the ones that
PROCEEDINGS
initiate proceedings in a court of law
Introduction
and make replies thereto.
This unit deals with issues to do with
Pleadings serve various purposes. The
how parties to a suit are supposed to
following are the main ones.
reduce their claims, defenses,
A: They provide the defendant
petitions, applications, etc. and bring
with notice of the suit and
them to the attention of a court.
enable him to prepare his
Without pleadings, courts are not in a
defenses accordingly. This is
position to see cases and decide on
because a copy of the statement
them.
of claim filed by the plaintiff
4.1. Pleadings
will be served to the defendant
4. 1. 1. Definition and Purposes
together with summons.
Generally defined, Pleadings mean all
B: They provide a summary of the
formally written statements filed to a
claims and defenses of parties
court of law by parties to a suit with
to a court, which enables a
respect to their respective claims
court to frame the appropriate
and/or defenses.
and relevant issues that need
 decision. The court looks into adequately of the opponent’s
the content of both the contentions. There is no way
statement of claim and that a court can control a suit
statement of defense; and, then, unless it knows the nature of
frame appropriate issues that the parties’ allegations.
need to be resolved by the court E: They try to expedite litigation. This
at the trial of the case. is particularly realized when the rules
C: They fix the issues to be on them are employed properly by
decided, and in a way, limit the parties and the court. Hence, all the
scope of litigation between rules on pleadings shall be used to
parties and determine the achieve this purpose. Note also that
evidences to be used by the the substantive rights of parties should
parties. The court cannot create also be taken into account when there
issues of its own and then pass is an improper pleading.
decision. It is based mainly on 4.1.2 General Pleading Rules:
pleadings of parties that the Requirements and Effects of Non-
court tries to frame issues. The Compliance
main source for the framing of
They can be divided into technical
issues is the pleadings
and legal ones.
submitted to a court by parties,
as indicated under Article 248 Technical requirements relate mainly

of the Civil Procedure Code. to the preparation and format of

pleadings. The registrar of a court
D: They guide the parties and the
examines these requirements.
court in the conduct of cases. A
litigant cannot prepare for trial
unless he has been informed
The technical requirements are one of the parties pleading or by
provided under Articles 80(2), 222, someone other than the pleader,
223,234,327-330, etc. directly acquainted with the facts of

The technical requirements includes the case.

the ff, first, is that they shall be Sample verification

handwritten in ink, printed, or I, -----------------------, hereby
typewritten on the prescribed paper declare that the facts stated in
80/2/ this claim/defense are true to

The second requirement is that they the best of my knowledge and

shall be prepared in accordance with belief.

the form prescribed by the Civil Date--------------------

Procedure Code. The forms of (Signature and description of

pleadings are found at the back of the the person verifying the

Civil Procedure Code. pleading).

The third requirement is that they The fifth condition is that they shall be
shall be made as concise as possible signed by the party or person
and contain a statement of material authorized to verify the pleading. See
facts on which a party relies for his Article 93 below.
claim or defense.
“Every pleading shall be signed by
The fourth requirement is that they the party or his pleader, if any , or
shall be verified. See Article 92(1) where a party is for good cause
below. unable to sign, by any other person
duly authorized by him to sign the
Unless otherwise expressly provided
same or to sue or defend on his
by law, every pleading shall be
behalf.”
verified at the foot by the party or by
The sixth requirement is that annexes Rejection by the registrar does not
must accompany some pleadings. prohibit a party from bringing a fresh
Annexes as provided under Articles pleading. The rejection by the
223 and 234 shall accompany, for registrar means that there is an error
instance, a statement of claim and in the technical requirements of
statement of defense. pleadings, and if the party corrects the
defects, he can submit fresh pleading
What measure can the registrar take if
on the same cause of action. See
one of these requirements is not
Article 232.
complied with?

The measures taken by the register are

4.1.3. Major Types of Pleadings
found under different provisions of
the Civil Procedure Code. For 4.1.3.1. Statement of Claim:
instance, the registrar can reject a Requirements and Contents
statement of claim as provided under
Statement of claim is a pleading
Article 229.
submitted to a court by plaintiff. It is
The statement of claim shall be also known as a complaint.
rejected by the registrar where:
A statement of claim shall contain
a) it is not in the form provided certain items that are listed under
for by Article 222; Article 222 of the Civil Procedure
b) it is not accompanied by the Code.
annexes provided for by
By looking at these items, one can
Article 223; or,
divide the parts of the statement of
c) it is not verified in the
claim into four. The first is caption. In
manner provided for by
the caption, the plaintiff must state the
Article 92.
name of the court in which the suit is
filed, the title of the suit, and the examines whether or not it has a
names of the parties including their jurisdiction over a case.
description and address. If the
The amount of money stated in the
plaintiff is under disability, this shall
statement of claims is to be confirmed
be stated; if the plaintiff is bringing
on the basis of the rules under Article
action in a representative capacity,
224-226 of the Civil Procedure Code.
this shall also be stated. It means that
the capacity in which the plaintiff is The fourth part of statement of a
suing shall be indicated. claim is relief. The statement of claim
shall state the demand for the relief to
The second part of the statement of
which the pleader believes he or she is
claim is the statement disclosing a
entitled to. See Article 224.
cause of action. The statement of
claim shall state the facts constituting 4.1.3.2. Statement of Defense:
a cause of action and when and where Purposes and Contents
it arose. The presence of statements
Statement of defense is a pleading
showing cause of action is considered
produced by the defendant. It is the
to be the legal requirement to be met
pleading that contains material facts
by the statement of claim, as provided
on which the defendant relies for his
under Article 231 of the Civil
defense. The statement of defense is
Procedure Code. See Article 231.
subject to the rule under Article 80(2)
The third part of the statement of and 234.
claim is the jurisdiction. Once the
The statement of defense has mainly
court has established that a statement
two parts. One is caption in which the
of claim disclosed a sufficient and
defendant is supposed to state the
lawful cause of action, it then
name of the court to which he submits
his defense, and the number of the
suit. The other part of the statement of in general terms. For instance, saying
defense is the statement showing the that, “I am not responsible or I am not
points of defense. liable” is considered to be an evasive
denial.
In this part, the defendant is expected
to raise affirmative grounds of If the statement of defense is rejected,
defense, which include facts showing the court shall proceed with the trail
that the claim of the plaintiff is of the case. The rejection does not
inadmissible on the ground that he is mean that the case is to be decided for
incapable, or that the court lacks the plaintiff. This is because even if it
jurisdiction or that the action is barred is rejected, the defendant could
by period of limitation, etc. Apart defend himself orally under Article
from these grounds, the defendant can 241, which will be discussed later on.
raise any ground of objections to a
4.1.4. Effects of Failure to Plead
suit. In addition, the defendant can
raise a counterclaim or set off against Failure to plead means that the

the claim of the plaintiff. plaintiff omits some facts he could

have alleged. The remedy for failure
In stating his facts of defense, the
to plead at the beginning is to request
defendant must respond to each
an amendment of pleading. In the
allegation of the facts made in the
absence of permission to amend the
statement of claim whether he admits
pleading, the plaintiff is not allowed
or denies them. The denial he makes
to raise new issues at a trial and
must be put in a direct manner.
introduce evidence unless the court
Evasive denial does not amount to a
frames issues by its own motion using
defense under Article 235 rather it
the power given to it under Article
amounts to admittance. See Article
252.
235 below. Evasive denial is a denial
4. 1.5. Alternative and Subsequent further pleading for any other defense
Pleadings/ Article 237/. made by the defendant unless an
amendment is allowed by the court.
An alternative pleading is optional
grounds of claims or defenses relied When the defendant raises counter
on by a party. It is a pleading that claim in his statement of defense, he
aims at maximizing the grounds of becomes plaintiff. This is because he
claim or defense. is raising a new claim against the
claim made by the plaintiff. That is
Article 224(1) states the application of
why the rule under Article 215(2)
alternative pleading to the plaintiff.
says that the defendant shall pay court
The statement of claim shall state fee. Article 215(2) says that “The
specifically the relief which the prescribed court fee shall be paid
plaintiff claims either simply or in the upon the filing of a statement of
alternative, and it shall not be defense containing a counter claim.
necessary to ask for general or other
4.1.6. Amendment of Pleadings
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

content of the pleading already Amendment brings into picture the
submitted to a court. The question of consideration of two interests. One is
amendment is raised when a party that it causes delay of proceedings.
tries to produce evidence on This is because if it is permitted, the
something which is not included in proceedings will start as a fresh one.
the pleading or that the evidences On the other hand, amendment
produced do not prove the contents of protects a party from losing his
pleading or that a party comes across substantive rights or being affected as
new facts that he should have a result of pleading error.
included in his pleadings, etc. The
The introduction of new evidence
provisions of Article 91 and 252 deal
could not serve as a ground for the
with amendment of pleadings.
amendment of pleading.
4.1.6.2. Grounds and the Process 4.2. Pre-Trial Proceedings

The amendment is ordered by the 4.2.1. Service of Process

4.2.1.1. Issuance of Summons
motion of a court or by the application
of a party. Summons, literally speaking, means
to call someone to come. In the
According to Articles 91 and 252, the
context of proceedings in a court of
amendment is made when it is
law, it refers to a formal mechanism
necessary for the purpose of
by which a defendant is notified of a
determining the real issues in dispute
suit made against him and called upon
between the parties. This means that
to appear on a fixed time and date
the amendment has a bearing on
before a designated court to answer a
deciding the issues between the
complaint/allegation made by the
parties.
plaintiff against him.
4.1.6.3. Effects and Related Issues
4.2.1.2. Modes of Service the suit will be heard and determined
notwithstanding your default.
Summons for appearance of
Given under my hand and the seal of
defendant (Art. 94)
the court, this …….day of
To …”A”…. (Name, description and
…….19…….Judge.
residence)
Whereas …”B”………..has instituted “A”--- name “B”---name of plaintiff
a suit against you for “C”---Cause of action i.e. the source
…”C”……….you are hereby of claim of plaintiff
summoned to appear in this court in
There are different modes of service
person or by a pleader duly instructed
of summons to the defendant, which
and able to answer all material
we will discuss below. If the service of
questions relating to the suit, or who
summons is in line with these modes,
shall be accompanied by some person
it is said to be reasonable. The mode
able to answer all such questions, on
of service of summons used
the ………day of ………19……….You
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 Another mode of service is known as
reasonable in a given circumstance. constructive mode of service.

As said earlier, there are different This is the rule under Article 99, 100
modes of service of summons. The and Article 101.
first mode is known as personal
Still another mode of service is the
service. Summons is said to be served
substituted mode of service. This
in personal mode if it is received by
mode of service is considered to be
the defendant himself from the hands
the least effective mode of service. It
of a serving office. This mode
is the final mode of service used when
amounts to the general rule on service
all other modes of service are not
of summons. Article 95(3) reads as
applicable. This mode of service
follows:
includes service by affixing a copy of
Without prejudice to the
summons in public areas, publication
provisions of the following
in newspaper, etc. It is a mode used
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
else receives it but the law treats it as 4.2.2 Effects of Non- Appearance of

if service is made on defendant in Parties

person./Art. 105 of civ. And Art. The principle is this 69(1). See Article

96/1&2 of civ. P. c. 69(1) below.

“On the day fixed for the hearing of Where neither party appears
the suit, the parties shall be in when the suit is called on for
attendance in the court in person or the hearing, the court shall
by their respective agents or pleaders make an order that the suit be
and the suit shall then be heard.” struck out, or, in cases of
What if a party fails to appear? The appeal, that the appeal be
effects of non-appearance depend on a dismissed.
party who fails to appear and on Article 73 that provides the rule in
whether or not the summons is duly this respect.
served on the defendant. If both Where the defendant appears and the
parties (plaintiff and defendant) fail to plaintiff does not appear when the suit
appear on the date fixed for the first is called on for hearing, the court
hearing of a suit, the court shall strike shall make an order that the suit be
out a suit. This rule is modified if dismissed, unless the defendant
there is non-appearance of both admits the claim or part thereof, in
parties on appeal. If the appellant and which case the court shall pass a
respondent fail to appear on the first decree against the defendant upon
date of hearing of appeal, the appeal such admission and, where part only
shall be dismissed. See Article 69(2) of the claim has been admitted, shall
below. If the defendant failed to dismiss the suit as it relates to the
appear, the court may issue fresh remainder.
summons or proceed to hear the case
When the plaintiff appears but the
in his absence. The effect of non-
defendant fails to appear, the measure
appearance of plaintiff is different
to be taken by the court depends on
from that of the defendant.
whether or not the summons has been
properly served on the defendant. defendant. It is provided under Article
/Art. 70/a of civ. P. c. 76.

If the court proves that summons was The fate of the defendant who could
not duly served on the defendant, the not appear on the opening of the suit
court orders the issuance of second depends on the presentation of good
summon on him. But if the summons cause by him. If he shows good cause,
is not served on the defendant owing he is permitted to defend himself./Art.
to the plaintiff’s negligence in serving 72 of civ. P. c/
summons, the court may adjourn the
What are the effects of non-
hearing of a suit or may strike out if it
appearance of parties?
is a fresh suit or dismiss it if it is a
case on appeal. See Article 70(d). The court is not entitled to make a
decision for any party for the sole
When a third party defendant (under
reason that another party fails to
Article 43) does not appear, the rule
appear except the non-appearance of
under article 70(a) does not apply. In
third party defendant. The measure
case of non-appearance of third party
taken by the court can either be
defendant, the court decides that he
dismissal or striking out of a suit.
has admitted the claim of defendant.
The mere non-appearance of such Generally, striking out does not avoid

party amounts to an admission of the the submission of a fresh suit, upon

existence of contribution or indemnity payment of court fee, to a court on the

relations alleged by plaintiff. This same cause of action. Good cause is

kind of judgment is known as default important not to pay a court fee, but

judgment. It is a decision based on the not for initiation of a fresh suit.

sole reason of absence of third party Without showing good cause, he can
bring a fresh suit, but he is subject to
pay a court fee. If a case is struck out, and consider the case as a new one.
it is considered as if it were not filed See Article 78(1) below.
at all to a court.
Any defendant against whom a
A suit is dismissed when the plaintiff decree is passed or order made
fails to appear but defendant appears; exparte or in default of pleading may,
when both parties fail to show upon within one month of the day when he
appeal; and when an appellant is became aware of such decree or
proved to be in default in serving order, apply to the court by which the
summon on respondent (see Articles decree was passed or order made for
69(2), 70(d), 73). If a suit is an order to set it aside.
dismissed, the plaintiff is prevented
from bringing a fresh suit on the same
cause of action. He cannot pay a court
fee and proceed with a suit. The
dismissal leads to a loss of right to
bring action. /Art. 74/.

The defendant in whose absence a

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,