1.1.1.2.

Civil Vs Criminal Procedures: plaintiff is affected; and, if so, whether one

Scope of Application is entitled to any relief. It thus follows that
the main purpose of administration of civil
They are different in their purposes and the
justice is primarily to enforce rights; and,
ultimate objectives underlying their very
hence, a civil case may end up in an award
establishment the types of relationships
of compensation to the individual victim or
they chiefly govern; the nature of the legal
dismissal of the case.
interests that would be affected at their
violations and, hence, the parties who On the other hand, penal prosecutions,
would have sufficient stake therein so as to being the concern of the public at large,
invoke a justiciable controversy, laws may have the final aim of ensuring the overall
also be classified into ‘civil’ and ‘criminal’. peace and security of the nation as a whole
And they are different in areas of and, may result into an acquittal or
applications since the former deals with conviction of the accused- carrying with it,
‘civil’ matters whereas, the latter is primarily, an element of penal liability,
concerned with ‘ criminal’ cases. namely, punishment.

Crimes are more serious and sufficiently Regarding, differentiating civil cases from
injurious to the public as compared to civil criminal ones, three parameters are here:
wrongs which affect only the private
victim. The first factor relates to the nature of the
parties instituting the legal action. A civil
A crime is an offence against the case is naturally initiated by a private
community as a whole for which the person claiming redress for some wrong
alleged to have been committed against
offender is held criminally liable and faces
him by another.
penal sanctions. A civil wrong, on the other
hand, is an infringement of the legal Accordingly, parties involved in a civil case
interests of private individuals and is can appear in either of the following ways:
redressable, principally, through reparation  “A physical person against another
of damages. Moreover, consequential to physical person”; or,
the nature of the legal interests affected in  “A physical person against a legal
a civil dispute, the cases are to be initiated person “, or,
and instituted in a court of law by the  “A legal person against another
aggrieved party himself (or his legal legal person”.
pleader); wherein law enforcement organs The purpose of initiating a law suit
are but to avail remedies for those who and the nature of the relief sought
have valid claims. In other words, in a civil thereby is the other yardstick used
litigation, the judge is there, in the whole, to make a distinction between civil
to decide whether any legal right of the and criminal cases. The relief
 demanded in a civil case is mostly the parties are at liberty to negotiate over
the payment of money or is usually the civil aspect of the matter.
to be assessed in monetary values.
To sum up, a civil case is one instituted
This may include, for instance, the
primarily by an individual for the purpose of
payment of damages for an alleged
securing redress in monetary terms.
injury sustained by the victim
Understandably, civil procedure is, thus, a
(plaintiff).
method employed in the initiation and
In some exceptional civil cases, however, a disposition of such civil disputes.
specific relief (personal performance) or Moreover, the parties are at liberty to
forced performance of legal obligations, negotiate over their disputes even while the
such as, restitution or delivery of goods or case is still pending; and have it withdrawn
an injunction could also be demanded. from the court any time, but before a final
judgment is rendered. In contrast to this,
On the other hand, the over all purposes
criminal cases are not subject to such
and aims for initiating a criminal case is the
alternative dispute settlement
maintenance of peace and order of the
mechanisms. This means, the matter lies
general public by, primarily, punishing the
exclusively within and is done under the
law breaker. That is, the state initiates a
power of the prosecution officers
criminal case for the purpose of securing
irrespective of the negotiations and the
obedience to its laws by inflicting
agreement that may be made between the
punishment and/ or other measures on the
victim and the offender; unless, of course,
criminal offender. A penal case, thus, aims
the case falls within the category of
at punishing an offender- which appears in
‘offences upon complaint’.
the form of loss of liberty (as in
imprisonment) or deprivation of life (as in 1.1.2. The Purpose of Civil Procedure Vis-à-
capital punishment) and fine. vis Fundamental Procedural Rules

The third test is concerned with the In the general parlance, rules of civil
availability of alternative dispute settling procedure aim to ensure that disputes are
mechanism in either of the cases. Seen handled by an impartial legal tribunal in a
from this perspective, civil cases are subject fair and orderly manner and as
to negotiations; and, hence, a compromise expeditiously and economically as possible.
could be reached upon independently They are, in brief, meant to secure the just,
between the parties themselves. speedy and inexpensive disposition of
cases. More specifically; they aim at
However, one must take note of the fact
treating the parties to a law suit equally in
that a certain single act may give rise to
enforcing their rights and the corresponding
both a civil and a criminal case whereby
duties and laying down the ground for a
smooth and orderly flow of litigation so as to exercise his or her functions impartially
to make the decision within a reasonably in a particular way.
fair and quick time.
There are two attributive features of
the generally held belief has been that the impartiality. The first feature is subjective
indeterminable number and complexities impartiality, which refers to the impartiality
of the procedural steps followed in the of the judge himself and second is objective
litigation process; lack of procedural impartiality of the tribunal; i.e., the
transparency; the great uncertainty of the tribunal/ court or bench should provide the
governing rules and the irreconcilably public with the guarantee that it operates
divergent inconsistencies in the application impartially; i.e., conditions that avoids
of the law suspicions of impartiality.
are some of the distinguishing features of
In this regard, there are some common
our judicial processes.
sources of bias that should disqualify a
Now we will discuss the essential
person from acting as a judge.
ingredients of justice:
I. Personal Bias
1.1.2.1. Fair Hearing of a Suit/Impartiality
This is usually arises from friendship,
of the Courts
relationship (either personal or
There are certain factors against which professional) or hostility or animosity
impartiality of courts is evaluated or against either of the parties; or, negativity
through which “fair hearing of a suit” is from personal prejudices; or even political
ensured. The following are the major ones. rivalry.

A. Neutrality of the Presiding Judge II. Pecuniary Bias/ Bias as to the Subject-
Any person who sits in judgment over the Matter.
interests of others must be able to bear an
[No one should be a judge in his own
impartial and objective mind to the
case!]
question in the controversy; i.e. he/ she
The rule against pecuniary bias originates
should impart justice without fear or favor.
from the legal maxim: “nemo judex in
Bias or prejudice has been defined as a cause sua”, implying that no one should be
leaning, inclination, bent or predisposition a judge in his own case; and, it arises from
towards one side or another or a particular monetary interests in the subject matter of
result. the dispute, no matter how small or
insignificant it might be. Where the judge
Bias is a condition or state of mind, an himself is a party or has some connection
attitude or point of view, which sways or with the litigation so as to constitute a legal
colors judgment and renders a judge unable
interest that should disentitle him from II. Rule Equality
being a ‘judge in his case’. Under similar circumstances, each party
should be subjected to and protected by,
B. Right to be Heard: Nobody should be
similar rules. / Art 58 (a) of the Cv. Pr. Cd/
condemned unheard!
Any one against whom an action is taken or III. Outcome Equality
whose right or interest is, thereby being
affected should be aware of the Similar issues, under same grounds
information against him and should also be /circumstances, should have similar
granted a reasonable opportunity to outcomes for example instance, in such
defend him self. The governing maxim in instances wherein ‘class action’ is allowed-
this case runs: ‘audi alter am par tem’; pursuant to Art 38 of the Cv. Pr. Cd.
meaning ‘Hear the other side’– no body Generally, speaking like cases should be
should be condemned unheard. Two of the treated alike.
facets of the maxim are:

I. Notice has to be given to the party

before the proceedings start and,
II. A party has to be given an 1.1.2.2. Public Hearing of a Suit
adequate and reasonable
Justice must not only be done but must
(effective) opportunity to explain
also be seen being done
(hearing).
C. Equality of Treatment Every one is All cases should be held in an open court
prima-facie equal before the law proceeding except some private matters.
Open court proceedings ensure
This principle implies equal subjection of all
transparency of judicial activities and
persons to the ordinary laws of the land as
secures the acceptability and reliability
administered by the regular courts of law;
(credibility) of the judiciary.
and, law extends protection to everyone.
1.1.2.3. Independence of the Judiciary and
I. Equipage Equality
Accountability of the Judges
This implies equality between the litigants
In this section we discussed two
in preparing their respective pleadings in
interrelated concepts: Independence and
getting legal aids (services) in searching for
accountability.
evidence etc, irrespective of their
differences in income levels.( Art 91 of the I. Judicial Independence
Cv. Pr. Cd.).
There are two judicial independence:
institutional and personal/functional.
 Institutional or administrative enjoyment of a secured tenure of office;
independence which is usually related to i.e., up until the retirement age); and, their
the concept of separation of powers-is a removal from their judicial duty is made in
mechanism through which, on the one due process as sanctioned by law and in
hand, a balanced coordination and restrictive grounds so prescribed.
cooperation among the three branches of Moreover, there have to be sufficiently
the government is ensured; and, at the clear and unambiguously defined rules on
same time-signifies the freeing of the training and promotional opportunities of
judiciary from an unwarranted the judges; their transfers; decisions on
encroachment or influence of any sort. disciplinary measures; suspension or
removal from their duty etc before
Institutional independence insured though
reaching the legally mandated term of
the following ways:
office, Hence, such crucial issues as merit,
experience, integrity and remuneration
schemes determine the extent to which
a. Legal Basis judges are independent from all sorts of
internal and external influence including
It should be based on legal foundation (for
of course, of the litigants themselves.
instance, Arts 78&79 of the FDRE
B. Functional/Personal Independence
Constitution.)
Complete and meaningful independence of
b. Independence to Administer Internal
the judiciary, can be guaranteed if only it is
Affairs
supplemented by a functional or individual
Generally speaking, however, institutional independence-which could either be
independence of the judiciary is, most internal or external.
importantly, ensured when:
In the process of discharging their judicial
 Such independence is spelt out in black tasks, judges should be free, internally,
and white by the law ( see, for instance, from their own colleagues and/or from the
Art. 79 of the FDRE Constitution); influence of superior courts; or, externally,
 Courts have full authority over their from any kind of outside intrusion, fear or
internal and, financial affairs; such as, the influence; and they should solely be bound
power of drawing up and implementating and guided by the law.
the administrative budget and
II. Accountability of the Judges
management of its personnel ( See, Art 79
(6) of the FDRE Constitution and Art 16. of Independence of the judiciary should not be
Proc .No.25/96) : and, taken as a special privilege of the judge
 Judges are appointed in such a way that himself. In addition to availing workable
guarantees their independence including, normative and institutional protective
measures, litigants should be offered litigant or an applicant has to incur in
reasonably adequate appellate getting the disposal of his case than
opportunities; judicial proceedings have to the one available through the
be transparent and open to the general mechanism of the ordinary courts
public; and, judges should be ready and  Speedy justice: It abandons the
bold enough to receive criticisms on their intricate (and stringent) procedures
decisions or analysis of the issues. attending the regular court
proceedings–thereby immensely
Hence, the judiciary has to be amenable to
saves the time in the determination
the law. Judges are to be held responsible
of the controversy; and,
for their decisions. In other words, they are
 It can be manned by sharp and
not allowed to act as free riders.
well-trained who individuals
I.1.2.4. Establishment of Courts by Law possessing special experience and
sharp, and expertise in a particular
Judicial power should principally and solely field.
be vested in the regular courts. This, of the following can be considered as
course, is without negating the existence of minimum requirements of a fair trial. The
the so-called ‘administrative tribunals’- parties should be afforded:
which are constituted by law and entrusted
with some quasi-judicial (delegated) power-  Adequate notice of the nature
as the present day compelling necessity of and purpose of the proceedings;
the proper dispensation of justice so  Adequate opportunity (time and
demands. space) to prepare their case; the
right to present arguments and
These bodies are, thus, as a matter of fact, evidence; and meet opposing
off-springs of compromise between the arguments and evidence, either
executive and the judiciary and are set up in writing, orally or by both
to share the burden of the case loads of the means;
courts which had almost been unbearably  Counsel or other qualified
heavy- there by warranting their persons of his or her choice
establishment. during all stages of the
proceedings;
 An interpreter; if s/he cannot
The other reason d’etre that led to the understand or speak the
creation of these bodies include: language used in the courts;
 The right to be tried in his
 Cheaper justice : In a sense, it is less
presence; to defend himself in
expensive to get justice through this
person or through legal
process; i.e., the total cost that a
assistance of his own choice and
 to be informed, if he does not It is English judicial process or the major
have legal assistance, of this proponent of the system (other countries as
right; such as the USA, Australia and New Zealand
 The guarantee that his or her do also belong to this category).
rights or obligations affected
The prominent characteristics of an
only by a decision based solely
adversarial court proceeding, seen from the
on evidence known to the
procedural point of view, is that the parties
parties to the proceedings;
themselves (or represented by their
 The opportunity to have a
advocates) shoulder the burden of
decision rendered without
initiating, shaping and fixing the scope of
undue delay and to which the
the litigation. The process is termed as the
parties are provided adequate
core of what might be called the ‘factual
notice and the reason thereof;
methodology’ of the system- in contrast to
 The right, except in the case of
the other style of adjudication, which
the final appellate court, to
employs some purely theoretical reasoning
appeal or seek leave to appeal,
to reach at a conclusion. The underlying
decisions to a higher judicial
proposition of the system is that truth is
tribunal;
most likely to emerge as a bi-product of the
 The right to have legal assistance
vigorous combat between intensely
assigned to him, in any case
partisan advocates.
where the interests of justice so
requires; and, without payment In an adversarial court proceedings, judges
by him in any such case if he play a relatively passive role. Their function
does not have sufficient means is limited to regulating the proper conduct
to pay for it; (smooth flow) of process.
 The right to examine, or have
examined, the witnesses against 1.1.3.2. The Inquisitorial Procedure
him;
This mode of investigative procedure is
 The right to obtain the
originally tied to the traditional function of
attendance and examination of
a strong and absolute government, namely
witnesses on his behalf under
the maintenance of public order and the
the same conditions as
suppression of crimes.
witnesses against him.
I.1.3. Rules of Procedure Vis-à-vis It is chiefly employed in the judicial
Modes of Proceedings proceedings of the Continent Europe
(France and Germany being the
1.1.3.1. The Adversarial Procedure
representative ones). ‘Inquisitorial’
procedure is self-expressive in that the
judges can inquire deep into the merits of 2.1.2. The Present Dual Court Structure
the case so as to be able to decide on what Accordingly, the Constitution not only
the real issues between the parties are. proclaim that, judicial power, both at the
They can, for instance, order the parties to Federal and State levels, is vested in the
produce further evidence and critically courts but it also provides for the
examine the witnesses of either side, if and establishment of two sets of courts: one at
when they are of the opinion that a fair the Federal and the other at the State level.
decision cannot otherwise be reached. That is, both the Federal and the Regional
Governments are endowed with their
One may conclude that the prime respective structure of courts-tiered along
difference between the two modes of three layers-the supreme, the high and the
litigations lies mainly on the degree of the first instance courts-each having distinctive
roles played by the judge vis-à-vis the actual jurisdictions of their own and different
parties to the case. places of sittings.
Our substantive laws are essentially derived 2.2. Jurisdiction of Courts: Essential
from the civil law legal system whereas the Elements
procedural law is from sources substantially
influenced by the common law tradition. It refers to the power of courts, to hear and
CHAPTER TWO determine a case; thereby, rendering a
binding judgement.
JUDICIAL SYSTEMS IN ETHIOPIA AND
JURISDICTION OF COURTS There are three essential elements that
establish jurisdiction of courts; namely,
2.1. The Ethiopian Judicial System: Past judicial jurisdiction, material jurisdiction
and Present and local jurisdiction.
2.1.1. The Unitary Court Structure: 2.2.1. Judicial Jurisdiction
Historical Background
Judicial Jurisdiction refers to the legal
Before the end of the 19th century, there competence of the courts of a particular
was no formally established and nation or state to exercise a judicial power
systematically institutionalized judicial i.e., to adjudicate a law suit and render a
structure in Ethiopia. It was thus only the judgment binding an individual, or his
1931 ever written Constitution of the property involved therein.
country that could safely be considered as
marking the beginning of a new era in the The issue of judicial jurisdiction normally
establishment of the modern judicial arises when there is a ‘foreign element’ in a
system. case appearing before a court of a given
state.
In most instances, a court of a state is held foreign laws and applicable to the case
to possess judicial jurisdiction if it has under consideration. Hence, on the basis of
sufficient contact with either the defendant the nature of the action brought the type
or property that is involved in the suit. of the relief sought by the plaintiff, the
grounds for exercising judicial jurisdiction
In some instances, a court’s judgement of a
are distinctively put as ‘in Personam’(over a
given country may be enforced in another
person) and ‘in Rem’(over a thing)
country on the basis of bilateral or
jurisdiction.
multilateral treaties.
2.2.1.1. Jurisdiction in Personam
What is more, in spite of the fact that the
issue of judicial jurisdiction is, in practice, a An action in Personam, which is the usual
procedural matter, it is, in most countries kind, is brought against a person, natural or
treated as one of private international law, legal, and seeking a relief against the
and the rules governing it are found in the person of the defendant.
latter area. In our case, though the draft Ethiopian courts are held to assume judicial
document of the 1965 Civil Code had jurisdiction in Personam where either of the
included such provisions in its section that following requirements are fulfilled:
dealt with as issues of private international
 the defendant is an Ethiopian national or
law, for that portion of the bill was not
domiciliary(specially the defendant, has to
approved by the then legislature, it could
be a foreigner for a question of judicial
not become part of the finally adopted
jurisdiction to arise.); or,
Code.
 the defendant has consented (expressly or
There is no, formally speaking, law in impliedly) to the exercise of jurisdiction by
Ethiopia that specifically govern the issues the Ethiopian court(even though a party is
of judicial jurisdiction. not otherwise subject to the Ethiopian
In spite of the absence of the relevant legal jurisdiction, he can consent to the
rules on judicial jurisdiction, cases involving assumption of such jurisdiction by the
foreign elements have appears before the courts.); or,
court right since the early times of the  The act which is the subject matter of the
country’s judicial practices. In such suit occurred or is situated in Ethiopia.
instances, unless an objection was raised on (They are not cumulative or they are
grounds of judicial jurisdiction, the courts optional)
would assume that the jurisdiction exists 2.2.1.2. Jurisdiction in Rem
and entertained the case in the usual
It is against the thing/property. It is
business of the court. Otherwise, the
essentially directed against property and
grounds would be determined on the basis
the relief sought pertains to the property
of the general legal principles developed by
itself- without reference to the title of 2.2.2.1. Subject Matter Jurisdiction
individual claims or specific person as such. The subject matter jurisdiction, which
depends on the ‘type’ of the case, in turn,
an ‘in rem’ jurisdiction refers to the power involves the making of, primarily, an
of the court to pass a valid judgement identification of matters/cases falling within
against the property (movable or and outside the regular court structure, and
immovable; tangible or intangible) of the the drawing of a further distinction between
parties and not as such against the person of ‘Federal’ subject matter and ‘State’ subject
the parties themselves. Moreover, such an matter.
action is established in the courts of the To summarize, material jurisdiction is one
place where the thing i.e. the subject matter of the three basic requirements of
of the suit-is located. Consequently, it will
jurisdiction and has two aspects. While the
only be the courts of the state wherein the
first is subject matter jurisdiction; the
property is situated that can, more
second is pecuniary jurisdiction. The subject
realistically, exercise in rem jurisdiction. Put
matter aspect defines the type of the case
another way, the ‘situs of property’, has
jurisdiction over the case whereby the relief as between Federal or State subject
is sought with respect to the property itself. matters. Proclamation No 25/96 provides
2.2.2. Material /Subject-Matter that Federal Courts have jurisdiction where
Jurisdiction cases involving a foreign national or where
Material jurisdiction-which is virtually one of the parties to the suit is a permanent
synonymous and equated with the residents of different Regional States, or
term-‘subject-matter jurisdiction’, hence, where one of the parties is a Federal
refers to the power of a particular court of a Government organ or official.
state to determine the type or kind of a
dispute involved in a case.
In principle, State subject matter is a matter
There are two broad criteria commonly
that arises on the basis of State Law.
employed to determine the material
However, there are conditions where issues
jurisdiction of courts in Ethiopia. These are:
raised on the basis of State Law may be
‘Subject Matter’ jurisdiction and
categorized under the jurisdiction of
‘Pecuniary’ jurisdiction.
Federal Courts. In such a case, State Courts
will handle the Federal case through
delegation. In states where the Federal High
Court is not established, the States
Supreme Courts are delegated to see
Federal High Court cases while the States
High Courts are delegated to see Federal
First Instance cases.
2.2.2.2. Jurisdictional Limits of Courts: judgment, or
Pecuniary Amount Vs Types of Cases  Applications for change of venue,
I. Pecuniary Amount: Federal Vs States’ from one first instance court to
Courts Jurisdictional Limits another or to itself, in accordance
with the law.
A. Federal Courts: General Vs Limited 2.2.3. Local Jurisdiction
Jurisdiction The rules on Local Jurisdiction have to do
The civil jurisdiction of the Federal First with an area where a case shall be tried, or,
Instance and High Court are treated, under in other words, take us to the specific court
Arts 11 and 14 of proc. No 25/96 to which a law-suit is to be submitted; and,
respectively. The two grounds the in effect allocate cases among the same
Proclamation employed to determine the level of courts (say, the Federal First
jurisdictional limit of the Federal Courts are: Instance Courts) within a given court
the amount of money and the type of the structure. Moreover, the rules on local
case. jurisdiction are framed in such a way as to
B. States Courts: Original Vs Appellate primarily enable one to refer the case to a
Jurisdiction particular court convenient for the parties
Though the rules of the Civil Procedure and their witnesses, particularly, the
Code on material jurisdiction are objectively defendant. Incidentally, inherent to the
inconsistent with those of the proclamation, nature of the process, the rules also
and, hence, considered to be inapplicable, accomplish another significant task of
the jurisdictional limits of States Courts are curbing inconveniences which may arise
determined based on the provisions of Art from certain purposely calculated ‘forum-
13 of proc. No 25/96. shopping’ tendencies of some litigants.
II. Type of Cases: Exclusive Jurisdiction
Exclusive jurisdiction means that a 2.2.3.1. The Basic Place of Local
jurisdiction given to the court irrespective Jurisdiction
of the pecuniary amount involved therein. There are certain factors that determine the
According to Art 11 (2) of the Proclamation, place where a law-suit shall be instituted.
the Federal High Court shall have exclusive For the purposes of local jurisdiction, the
First Instance Jurisdiction over issues most relevant place, what might also be
related with: called the ‘basic place’, is, in simple and
pure terms, the place where local
 Cases whose subject jurisdiction lies unless it is prohibited by law
matter regarding private or a court sitting in another place is
international law, or authorized to assume the jurisdiction This
 Nationality, or being the general rule of the provisions of
 Application regarding the the Civil Procedure Code that sets forth the
enforcements of foreign guiding principles in this respect, Art 19(1)
of the Code stipulates that the basic place of local jurisdiction of contracts of any type
of local jurisdiction lies with “…the court of (other than the remaining three namely,
the place where the defendant actually contracts of carriage, insurance,
resides or carries on business or personally
pledge, deposit or bailment) would, thus,
works for gain.”
be the place where the contract was made
A. “…actually resides…” or was to be executed.

Accordingly, a person’s primary residence In addition, the plaintiff could also institute
would, thus, be the place where he actually his case in a place where the defendant
resides for purposes of local jurisdiction- resides, works for gain or carries on
which probably is the place where it is business, according to Art 19 of the Code.
convenient for one to defend a suit brought
 Suits regarding contracts of
against him.
carriage
B. “…carries on business…” Possibly, there are two types of suits
regarding contracts of carriage. These are
2.4.1. Suits Regarding Contracts carriage by see and carriage by air. In each
case, suits will be instituted in accordance
Article 24 provides four mutually exclusive with their respective laws. Accordingly,
rules on suits regarding contracts. while suits regarding contracts of carriage
Generally, there are four types of contracts, by sea are instituted based on the
which are categorized for the purpose of provisions of the Maritime Code, the
determining local jurisdiction. These are: Commercial Code will determine suits
regarding contracts of carriage by air.
 Contracts generally,
 Contracts of carriage, According to Art.208 of the Maritime Code,
 Contracts of Insurance, suits involving contracts of carriage by sea
 Contracts of pledge, are to be instituted at the court sitting at
deposit, or bailment. the port of arrival of the good whereas,
suits concerning contracts of carriage by air
are to be instituted according to Art 647 of
 Suits Regarding Contracts in the Commercial Code.
General
Pursuant to Art 24(1), suits arising from  Suits regarding Contract of
contracts, in general, may be instituted at Insurance
the place where the contract was made or Suits regarding a contract of insurance may
executed unless some other place is be instituted in the court of the place where
mentioned in the contract-in the discretion the head office of the insurance company is
of the plaintiff. This indicates that the place situated or registered or where the object
 insured is situated. (See to Art. 24(3) of the provisions of art 19.
Civil Procedure Code).  Suits Regarding Successions
According to Art 23 of the Cv. Pr. Co., suits
 Suits Regarding Pledge, Deposit regarding succession
or Bailment
Suits concerning pledges, deposits and  Suits upon Several Causes of
bailment are instituted in the court of the Action
place where the property is located. Where a suit is based upon several causes
of action arising in deferent places, the suit
 Suits Involving Immovable may be instituted in any court that has
Property jurisdiction over one of the causes of action
An issue of local jurisdiction whereby suit (Art. 29 of c.p.c).
related with immovable property is treated
under Art 25 of the Civil Procedure Code. 2.2.3.3. Change of Venue (Transfer of Suit)
and Removal of Judges
The reasons for the rule are:
a) Such property cannot be transferred from The reason is stipulated under Art. 31 of c.
place to place; it will be difficult for a court p. c.
other than the court where the property is
Generally speaking, the rules on local
situated to view if it finds it necessary.
jurisdiction are primarily designed to
b) In cases where dispute is on boundary
matters, that may necessitate measurement achieve handiness for the parties.
of the boundary, or essential document Consequently, transfer of suits from a court
about the property are found in the place to another is basically meant for the
where the property exists. suitability of the parties; particularly, the
c) Where the case is defendant upon the defendant. At this juncture, it has to be
testimony of witnesses, such witnesses underscored that the court wherein the suit
probably reside at the place where the is filled may have local jurisdiction over the
immovable is situated. Therefore, such case; yet, it is also likely that the plaintiff
suits must be instituted at the situs and might have trickily chosen it with a view to
not elsewhere. making it painstakingly intractable and
 Suits for Wrong Done to unreasonably expensive for the defendant
Persons or Movable Propert to defend himself properly. In practice such
Article 27 of the Civil Procedure Code inconvenient court is commonly known as
specifically talks about suits for wrong done to ‘forum non-convenient’-inconvenient
persons or movable property. It is the question forum. A court which is holding a case is
of local jurisdiction in case of extra contractual considered to be ‘forum non-convenient’ if
liability. According to Art 27(1), such suits may it is found to be insurmountable for,
be instituted in the court of the place where particularly, the defendant to gather
the wrong was done or in accordance with the relevant evidences so as to sufficiently
defend himself; and, exposes him to incur Addis Ababa or the High Court of the
unreasonably high costs to pursue the case Amhara Regional Government in BahirDar
and to bring his witnesses to the court. will have jurisdiction to see the suit. But, if
it exceeds 500,000.00 Birr, the High Court of
2.2.3.4. Conflicts of Jurisdiction: Priority,
Federal High Court or the Supreme Court of
Pendency and Consolidation of Cases
the State will have the jurisdiction over the
Overview case.

There is a possibility for conflicts of B. Pendency/Art. 8 of c. p .c/

jurisdiction to emerge between courts, for On the other hand, Article 8 covers the
instance, the Federal and State Courts; or, problem of pendency.
As a matter of rule, no court shall try any
within a single judicial structure between
suit in which the matter in issue is also
courts of the Federal or States’ judicial
directly and substantially in issue in a
structure-where a court alleges that the
previously instituted suit between the same
matter falls within its jurisdiction while the
parties in another court in Ethiopia having
other contends that it has the competence jurisdiction.
over the same case. The power to C. Consolidation of Suits/Art. 11 of c. p .c/
determine on such conflict of jurisdiction is It is a situation where the claims of both
conferred upon the Federal Supreme Court. parties are separate while the matter in
With a view to resolving problems resulting issue in one suit is closely related to a suit
from such circumstances, the Civil pending in another court.
Procedure Code treats the matter through the
Consolidation is thus a procedure that is
rules of priority, pendency and
applied when two or more suits pending in
consolidation.
different courts or the same court and
A. Priority/Art. 7 of c.p.c/
between the same parties give rise to
The question of priority arises when a similar issues and are to be decided in
plaintiff institutes two or more suits on the different courts. In other words, where two
same cause of action in different courts. or more suits which involve the same
parties and similar issues in different courts
Let us assume that A is claiming certain or where there is a question of pendency,
amount of Birr from a defendant on a then, both suits will be consolidated under
contract that was made in Addis Ababa and the procedure of consolidation.
to be performed in BahirDar. In this case,
depending on the amount of claim, the Summary
plaintiff has the possibility to institute his
The existing civil procedure code of Ethiopia
case both in Addis Ababa and BahirDar. If
has big inconsistencies with the supreme
the amount does not exceed 500,000.00
law of the land i.e. Federal Constitution.
Birr, the Federal First Instance Court in
According to the FDRE constitution, there The parties to a civil suit which is being
are two court structures established at considered by a court that is exercising its
federal and state level. In each court first instance jurisdiction are known as
structure there are Supreme, High & First plaintiff and defendant. Moreover, parties to
Instance Courts. Currently all States have a suit considered by appellate court using its
established woreda (first instance) Courts, appellate jurisdiction are called appellant
and respondent. Plaintiff is a party who
High Courts and Supreme Court. Besides,
makes an allegation and initiates
some states have establish additional court
proceedings in a court of law; whereas,
structures; namely, the Social Courts and
defendant is a person subject to a claim, i.e.,
City Courts.
a party against whom a claim is filed.
Article 33(1) of the Civil Procedure Code,
reads:
To sum up, there are two means by which
we can prove the existence of judicial “Any person capable under the law may be
jurisdiction. These are known as jurisdiction a party to a suit”.
in Personam and jurisdiction in rem. The Capacity is the power or ability to perform
former is jurisdiction to bind the person of juridical act.
the defendant; that is, to order him to pay Article 34(2) of the Civil Procedure Code
the plaintiff a sum of money, to do or states:
refrain from doing an act. It exists in
“Where a person under disability is not
Ethiopia if either the:
represented by his legal representative, the
1. Defendant is an Ethiopian national proceedings shall be stayed until a legal
or domiciliary; representative is appointed in accordance
2. Act which is the subject matter of with the relevant provisions of the Civil
Code.”
the suit occurred in Ethiopia; or
3. Defendant has consented (expressly Incapacity is one of the grounds of
or impliedly) to the exercise of preliminary objection specified under
jurisdiction by the Ethiopian court. Article 244(2) of the Civil Procedure Code.
Judicial jurisdiction in rem is jurisdiction to 3.2. Party Plaintiff and Party Defendant
grant relief with respect to a certain
3.2.1. Party Plaintiff
property itself. It exists only in the courts of
the place where the property is situated. 3.2.1.1. Vested Interest
Plaintiff is a party who brings action. To be
CHAPTER THREE plaintiff, the first requirement is to possess
PARTIES TO AND DIMENSION OF SUITS capacity to perform juridical acts in general.
The other requirement is that a person must
3.1. Parties to a Civil Suit: General
be the real party interest with regard to the
Requirements
particular claim or allegation he brings to a 3.3. Representation in Civil Suits: Types
court of law against another party. and Requirements/Art. 34 of c. p .c/
Article 33(2), reads as follows: Representative suit is a suit in which others
represent real parties to a suit.
No person may be a plaintiff unless he
Representation is allowed in civil cases and
has a vested interest in the subject
the reason why it is allowed is to be found in
matter of the suit.
Article 65 of the Civil Procedure Code.
The reason why the law attaches this
The types of representation can be
requirement to party plaintiff is because a
categorized generally into two. One type
civil suit concerns individual interest/ right.
involves a situation in which the
It is up to a concerned party only to either
representatives act for the interest of the real
litigate or abandon a claim. Hence, no other
parties to a suit. They act on behalf of real
person could decide to bring action for a real
parties and do not have their interest at stake
party with interest in a suit. Another reason
in a suit. This category includes the
may also be to avoid defendant facing two
representations specified under Articles 34,
suits over a single cause of action. The
57-64. The second one relates to a situation
person who has an original interest and
where the representatives represent the
another person pursuing his right could
interest of others as well their own interest.
bring two suits at different times and this
They serve two interests here. This category
exposes defendant to two suits.
applies to the representation under Article
3.2.1.2. Effects of Lack of Vested Interest 38 of the Civil Procedure Code.
If an action is brought by a plaintiff who 3.4.1. Legal Representation: Types and
does not have a vested interest, an opposite Requirements
party should raise this as an objection on the
The representation under Article 34 is
grounds that a party bringing action is
known as legal representation. A legal
unqualified to act in the
representative represents persons under
proceedings./Art.244/2 of c. p. c/
incapacity.
3.4.2. Representative Class Suits:
Requirements/Art. 38 of c. p. c/
This kind of representation is known as
representative class suit. The reason why
3.2.2. Party Defendant: Allegations
this representation is allowed is because a
To be considered as a defendant, there must suit involves several persons and that it is
be an allegation made against a person. inconvenient for all concerned to be parties.
Article 33(3) says: It is inconvenient for such a group of
persons to proceed with a case individually.
“No person may be a defendant unless the
plaintiff alleges some claim against him”. 3.4.3. Agents and Pleaders
Still another kind of representation is suit. Rather than treating related cases
provided under Article 57 of the Civil separately, the court considers a case of
Procedure Code. According to this Article, a many persons or a case involving many
legal representative, agent or pleader of a causes of action in one file. Further, it
person may make any appearance, avoids the possibility of making conflicting
application or act in or to any court. The decisions. If suits that can be joined are tried
requirement is that such representatives are separately, there is a chance of giving
able to answer all the material questions contradictory decision over essentially
relating to a suit. identical suits.
A person can also be represented by his On the other hand, joinder is disfavored
pleader/advocate. A pleader is a person who since it expands the scope of litigation and
holds an advocate’s license, and no person consequently causes delay of proceedings.
may appear in this capacity unless he holds In addition, it results in embarrassment of
such a license. A pleader has to produce his the defendant and makes him not to be able
license together with a letter of authorization to properly defend himself. For these two
from a person who authorized him. The reasons, joinder should not be granted.
mere fact that a person has an advocate’s Thus, one interest is in favor and the other is
license does not entitle him to represent any against joinder of parties and causes of
person unless he is authorized in writing to action. The rule under Article 221 of the
act on behalf of such person. (See, Art 63 of Civil Procedure Code tries to strike a
the Cv. Pr. C) balance between these two conflicting
Here, the concern is multiplication of parties interests toward joinder. If joinder of causes
and causes of action. The issue here is how of actions in a statement of claim results in a
two or more plaintiffs bring action against a delay of proceedings or embarrassment of
single or more defendants, and how many defendant, the court may order separate
causes of actions can be made subject to a suits. In all other cases, joinder is, therefore,
single suit. allowed so long as it does not bring about
delay of proceedings or embarrassment to a
3.5.1. Joinder of Parties
defendant.
3.5.1.1. Purpose and Significance
3.5.1.2.. Forms and Types of Joinder of
Joining or joinder of parties multiplies the Parties
number of parties and widens the scope of
litigation. Joinder of parties appears in different forms.
Two or more plaintiffs (which is known as
Joining parties and causes of action makes joinder of plaintiffs) bring action against a
parties to pool their resources together and single defendant; or a single plaintiff brings
enables them to share costs of pursuing a action against two or more defendants
suit. It also relieves a burden of court in a (which is joinder of defendants); or two or
sense that a court resolves cases involving more plaintiffs file a suit against two or
many persons or causes of action by a single more defendants (which is joinder of
plaintiffs and joinder of defendants). There Mandatory joinder applies to both plaintiff
are two types of joinder of parties. One is and defendant. Except for Article 36(3) and
permissive joinder of parties. Here the (4), which applies to joinder of defendants,
motion of parties makes the joinder. The the Civil Procedure Code does not have an
parties entitled to join can choose between explicit rule on mandatory joinder of
joint actions or separate suits. They are not plaintiff. This may be because mandatory
obliged to bring a joint action or defence. joinder is a question of substantive law than
This joinder is provided under Articles 35, procedural rules. It is the rules of substantive
and 36(1,2,3,4,5,6) of the Civil Procedure law that require that a right should not be
Code. exercised otherwise than by or against all
persons concerned.
3.5.1.3. Effect of Misjoinder and Non-
Joinder of Parties If the mandatory joinder is related to a
defendant, there is no problem in case there
What will happen if there is a mis joinder or
is a non-joinder of indispensable party
non-joinder of parties?
defendant. In case of non-joinder of
Article 39 deals basically with the effects of defendant, the case is not dismissed. The
mis-joinder or non-joinder of parties relating court shall order the joinder of such party,
to a permissive type of joinder. by issuing summon on him. He cannot
It means that a court does not dismiss a case refuse to be a named defendant. Thus, in
for the reason that there is mis-joinder or case of non- joinder of a party defendant, the
non-joinder of parties. If a party is not rule under Article 39 40(2) applies and the
joined or is improperly joined, the court makes him a party.
appropriate measure is not to dismiss a case There are two options available to a court if
but to drop a party improperly joined and an indispensable party plaintiff is not willing
demand substitution, and proceed with the to join a suit as a named party plaintiff. One
parties before a court. If there is non-joinder, is to proceed with the case regardless of the
the court shall proceed with the case absence of such party, since it is unfair to
irrespective of such non-joinder. If there is deny the parties who brought action the
improper joinder of defendants, the plaintiff remedies they are seeking from a court for
should be given the option to drop the the sole reason that a party refuses to
defendants improperly joinded or to proceed become a party. Hence, rather than
with separate suits. dismissing a case, the court shall make such
Another type of joinder of parties is a party a defendant. This makes the court to
mandatory one, which is usually known as proceed with the case, protects the parties
joinder of indispensable parties. In who present a case before a court, and allow
mandatory joinder, as its name itself implies, him to appeal, since he is appearing as a
parties are under obligation to bring a joint party defendant. As a defendant, he is
action or defense. There is no choice given merely on a record of court and does not
to parties other than a joint action or have any responsibility to defend unlike a
defense. proper named defendant. Suppose that “A”
and “B” are joint owners. “C” caused Intervention is a mechanism by which a
damage to their property. “B” alone brought party is brought into a pending case to
action. Upon the objection of “C” on the present a claim or defense. It is different
ground that there is non-joinder of an from joinder of parties. Joinder is an issue
indispensable party plaintiff “A” or by its that comes at the beginning of a suit, while
own motion; the court may require the intervention is a question that comes into
addition of “A”. If “A” appears before a picture after a suit undergoes some steps.
court and refuses to be added as a party There are two types of intervention. One is
plaintiff, the court may simply make him made by an application of a third party
defendant. himself, which is provided under Article 41
of the Civil Procedure Code. It is a party
himself who approaches a court to intervene
Another option available is to dismiss a case
in a suit.
if a party plaintiff refuses to be added as a
party plaintiff. This is because it is an Another type of intervention is as of
indispensable party that is not joined and obligation. This is provided under Article 42.
hence non- joinder in such instance should The Public Prosecutor is under obligation to
not produce similar effect as in the case of intervene in some civil cases.
non-joinder of permissive party plaintiff. 3.7. Third-Party Practice [Impleader]:
Thus, according to this option, the parties Purposes, Requirements and
are not under obligation to exercise their Consequences
rights jointly, and if one does not join or Third party practice, which is also known as
refuses to be joined, the case shall be impleader, is the procedural device enabling
dismissed. the defendant in a lawsuit to bring into a suit
3.5.2. Joinder of Causes of Action: an additional party who may be liable for all
Definition or part of the original plaintiff’s claim
against the defendant. It is a mechanism by
Joinder can also be related to causes of
which a defendant brings into a suit a third
action and not parties as such.
party on the ground that such third party
Parties are allowed to join as many causes of covers or shares the whole or part of claim
action as possible so long as joining of of plaintiff. It is initiated by a defendant.
causes does not bring about delay of The purpose of third party practice is to
proceeding or embarrassment to a defendant. settle claims involving the same cause of
Parties are allowed to join even unrelated action/ transaction in a single suit. It aims at
claims. /Art. 217 of civ. P. c/ avoiding separate suits over the same cause
Art. 218 and 219 are exception to this of action/transaction. Thus, a defendant
assertion. who has a claim against a third party does
3. 6. Interventions: Conditions and Types not need to bring a subsequent suit against
him. The defendant’s claim against third
party can be seen in the same suit where
the plaintiff’s claim against the defendant is Without pleadings, courts are not in a
being considered/Art. 43 of civ. P. c/ position to see cases and decide on them.

His mere absence amounts to admission of 4.1. Pleadings

such relation. This is a rule provided under 4. 1. 1. Definition and Purposes
article 76.
Generally defined, Pleadings mean all
3. 8. Change of Parties
formally written statements filed to a court
In civil suits, there is a possibility that others
of law by parties to a suit with respect to
can replace the original parties upon death
their respective claims and/or defenses.
of one of them. This is not the case with
criminal suits. The Ethiopian Civil Procedure Code does
not define pleadings in a direct way.
in civil cases death of one of the parties does However, it contains, under Article 80(1)
not automatically cause the termination of a formally written statements that constitute
suit. There is a possibility that others can them, such as statement of claim, statement
replace the deceased party and the suit of defense, memorandum of claim, appeal,
continues. This is possible if the right to sue etc; and provides that these documents must
survives. Article 48(1) reads as follows. be the ones that initiate proceedings in a
The death of a plaintiff or defendant court of law and make replies thereto.
shall not cause the suit to abate if the
right to sue survives Pleadings serve various purposes. The
However, there is no change of parties if following are the main ones.
the court concludes the hearing of a case A: They provide the defendant with
and adjourns the case to make a decision notice of the suit and enable him to
even if one of the parties dies as provided prepare his defenses accordingly.
under Article 53 of the Civil Procedure This is because a copy of the
Code. This means that if one of the parties statement of claim filed by the
dies after the hearing of the case is plaintiff will be served to the
concluded and what remains is giving a defendant together with summons.
decision. B: They provide a summary of the
claims and defenses of parties to a
CHAPTER FOUR
court, which enables a court to frame
PLEADINGS AND PRE-TRIAL the appropriate and relevant issues
PROCEEDINGS that need decision. The court looks
Introduction into the content of both the statement
of claim and statement of defense;
This unit deals with issues to do with how and, then, frame appropriate issues
parties to a suit are supposed to reduce their that need to be resolved by the court
claims, defenses, petitions, applications, etc. at the trial of the case.
and bring them to the attention of a court.
 C: They fix the issues to be decided, The technical requirements are provided
and in a way, limit the scope of under Articles 80(2), 222, 223,234,327-330,
litigation between parties and etc.
determine the evidences to be used The technical requirements includes the ff,
by the parties. The court cannot first, is that they shall be handwritten in ink,
create issues of its own and then pass printed, or typewritten on the prescribed
decision. It is based mainly on paper 80/2/
pleadings of parties that the court
tries to frame issues. The main The second requirement is that they shall be
source for the framing of issues is prepared in accordance with the form
the pleadings submitted to a court by prescribed by the Civil Procedure Code. The
parties, as indicated under Article forms of pleadings are found at the back of
248 of the Civil Procedure Code. the Civil Procedure Code.
D: They guide the parties and the court The third requirement is that they shall be
in the conduct of cases. A litigant made as concise as possible and contain a
cannot prepare for trial unless he has statement of material facts on which a party
been informed adequately of the relies for his claim or defense.
opponent’s contentions. There is no
The fourth requirement is that they shall be
way that a court can control a suit
verified. See Article 92(1) below.
unless it knows the nature of the
parties’ allegations. Unless otherwise expressly provided by
E: They try to expedite litigation. This is law, every pleading shall be verified at the
particularly realized when the rules on them foot by the party or by one of the parties
are employed properly by parties and the pleading or by someone other than the
court. Hence, all the rules on pleadings shall pleader, directly acquainted with the facts of
be used to achieve this purpose. Note also the case.
that the substantive rights of parties should Sample verification
also be taken into account when there is an
I, -----------------------, hereby declare
improper pleading.
that the facts stated in this
4.1.2 General Pleading Rules: claim/defense are true to the best of
Requirements and Effects of Non- my knowledge and belief.
Compliance Date--------------------
They can be divided into technical and legal (Signature and description of the
ones. person verifying the pleading).

Technical requirements relate mainly to the The fifth condition is that they shall be
preparation and format of pleadings. The signed by the party or person authorized to
registrar of a court examines these verify the pleading. See Article 93 below.
requirements.
 “Every pleading shall be signed by the 4.1.3.1. Statement of Claim:
party or his pleader, if any , or where a Requirements and Contents
party is for good cause unable to sign, by
any other person duly authorized by him to Statement of claim is a pleading submitted
sign the same or to sue or defend on his to a court by plaintiff. It is also known as a
behalf.” complaint.

The sixth requirement is that annexes must A statement of claim shall contain certain
accompany some pleadings. Annexes as items that are listed under Article 222 of the
provided under Articles 223 and 234 shall Civil Procedure Code.
accompany, for instance, a statement of By looking at these items, one can divide the
claim and statement of defense. parts of the statement of claim into four. The
What measure can the registrar take if one of first is caption. In the caption, the plaintiff
these requirements is not complied with? must state the name of the court in which the
suit is filed, the title of the suit, and the
The measures taken by the register are found names of the parties including their
under different provisions of the Civil description and address. If the plaintiff is
Procedure Code. For instance, the registrar under disability, this shall be stated; if the
can reject a statement of claim as provided plaintiff is bringing action in a
under Article 229. representative capacity, this shall also be
stated. It means that the capacity in which
The statement of claim shall be rejected the plaintiff is suing shall be indicated.
by the registrar where:
The second part of the statement of claim is
a) it is not in the form provided for the statement disclosing a cause of action.
by Article 222; The statement of claim shall state the facts
b) it is not accompanied by the constituting a cause of action and when and
annexes provided for by Article where it arose. The presence of statements
223; or, showing cause of action is considered to be
c) it is not verified in the manner the legal requirement to be met by the
provided for by Article 92. statement of claim, as provided under
Rejection by the registrar does not prohibit a Article 231 of the Civil Procedure Code. See
party from bringing a fresh pleading. The Article 231.
rejection by the registrar means that there is
an error in the technical requirements of The third part of the statement of claim is
pleadings, and if the party corrects the the jurisdiction. Once the court has
defects, he can submit fresh pleading on the established that a statement of claim
same cause of action. See Article 232. disclosed a sufficient and lawful cause of
action, it then examines whether or not it has
a jurisdiction over a case.
4.1.3. Major Types of Pleadings
The amount of money stated in the made in the statement of claim whether he
statement of claims is to be confirmed on the admits or denies them. The denial he makes
basis of the rules under Article 224-226 of must be put in a direct manner. Evasive
the Civil Procedure Code. denial does not amount to a defense under
Article 235 rather it amounts to admittance.
The fourth part of statement of a claim is See Article 235 below. Evasive denial is a
relief. The statement of claim shall state the denial in general terms. For instance, saying
demand for the relief to which the pleader that, “I am not responsible or I am not
believes he or she is entitled to. See Article liable” is considered to be an evasive denial.
224.
If the statement of defense is rejected, the
4.1.3.2. Statement of Defense: Purposes court shall proceed with the trail of the case.
and Contents The rejection does not mean that the case is
Statement of defense is a pleading produced to be decided for the plaintiff. This is
by the defendant. It is the pleading that because even if it is rejected, the defendant
contains material facts on which the could defend himself orally under Article
defendant relies for his defense. The 241, which will be discussed later on.
statement of defense is subject to the rule 4.1.4. Effects of Failure to Plead
under Article 80(2) and 234.
Failure to plead means that the plaintiff
The statement of defense has mainly two omits some facts he could have alleged. The
parts. One is caption in which the defendant remedy for failure to plead at the beginning
is supposed to state the name of the court to is to request an amendment of pleading. In
which he submits his defense, and the the absence of permission to amend the
number of the suit. The other part of the pleading, the plaintiff is not allowed to raise
statement of defense is the statement new issues at a trial and introduce evidence
showing the points of defense. unless the court frames issues by its own
In this part, the defendant is expected to motion using the power given to it under
raise affirmative grounds of defense, which Article 252.
include facts showing that the claim of the 4. 1.5. Alternative and Subsequent
plaintiff is inadmissible on the ground that
Pleadings/ Article 237/.
he is incapable, or that the court lacks
jurisdiction or that the action is barred by An alternative pleading is optional grounds
period of limitation, etc. Apart from these of claims or defenses relied on by a party. It
grounds, the defendant can raise any ground is a pleading that aims at maximizing the
of objections to a suit. In addition, the grounds of claim or defense.
defendant can raise a counterclaim or set off
against the claim of the plaintiff. Article 224(1) states the application of
alternative pleading to the plaintiff.
In stating his facts of defense, the defendant
must respond to each allegation of the facts
 The statement of claim shall state already submitted to a court. The question of
specifically the relief which the plaintiff amendment is raised when a party tries to
claims either simply or in the alternative, produce evidence on something which is not
and it shall not be necessary to ask for included in the pleading or that the
general or other relief which may always be evidences produced do not prove the
given as the court may think just to the same contents of pleading or that a party comes
extent as if it had been asked for. across new facts that he should have
Subsequent pleading is also known as included in his pleadings, etc. The
further pleading. It means pleading again on provisions of Article 91 and 252 deal with
the same issue on which the pleading amendment of pleadings.
already been made. / This is provided under
4.1.6.2. Grounds and the Process
Article 239/.
The amendment is ordered by the motion of
Unless the statement of defense contains
a court or by the application of a party.
either set off or counter claim, the court
should not allow further pleading for any According to Articles 91 and 252, the
other defense made by the defendant unless amendment is made when it is necessary for
an amendment is allowed by the court. the purpose of determining the real issues in
dispute between the parties. This means that
When the defendant raises counter claim in
the amendment has a bearing on deciding
his statement of defense, he becomes
the issues between the parties.
plaintiff. This is because he is raising a new
claim against the claim made by the 4.1.6.3. Effects and Related Issues
plaintiff. That is why the rule under Article
215(2) says that the defendant shall pay Amendment brings into picture the
court fee. Article 215(2) says that “The consideration of two interests. One is that it
prescribed court fee shall be paid upon the causes delay of proceedings. This is because
filing of a statement of defense containing a if it is permitted, the proceedings will start
counter claim. as a fresh one. On the other hand,
amendment protects a party from losing his
4.1.6. Amendment of Pleadings substantive rights or being affected as a
result of pleading error.
4.1.6.1. Nature and Purpose
The introduction of new evidence could not
Amendment of pleading presupposes that a
serve as a ground for the amendment of
technically and legally sufficient pleading
pleading.
has already been filed and that it is found to
be defective in terms of what has been 4.2. Pre-Trial Proceedings
claimed or stated. The amendment is 4.2.1. Service of Process
allowed to rectify defects in pleadings. If 4.2.1.1. Issuance of Summons
allowed, an amendment introduces a
modification to the content of the pleading
Summons, literally speaking, means to call There are different modes of service of
someone to come. In the context of summons to the defendant, which we will
proceedings in a court of law, it refers to a discuss below. If the service of summons is
formal mechanism by which a defendant is in line with these modes, it is said to be
notified of a suit made against him and reasonable. The mode of service of
called upon to appear on a fixed time and summons used determines its legal
date before a designated court to answer a
sufficiency. Service is legally sufficient if the
complaint/allegation made by the plaintiff
mode of service used is reasonable under a
against him.
given circumstance. If the mode employed
4.2.1.2. Modes of Service is, however, not deemed to be sufficient,
the court cannot proceed with the case and
Summons for appearance of defendant (Art. make a valid decision since it affects the
94)
opportunity to be heard that is available to
To …”A”…. (Name, description and
the defendant. Thus, the mode of service to
residence)
be used should be reasonable in a given
Whereas …”B”………..has instituted a suit
circumstance.
against you for …”C”……….you are hereby
summoned to appear in this court in person As said earlier, there are different modes of
or by a pleader duly instructed and able to service of summons. The first mode is
answer all material questions relating to the known as personal service. Summons is said
suit, or who shall be accompanied by some to be served in personal mode if it is
person able to answer all such questions, on received by the defendant himself from the
the ………day of ………19……….You must hands of a serving office. This mode
be prepared to produce on that day your amounts to the general rule on service of
statement of defense a list of all the summons. Article 95(3) reads as follows:
witnesses you intend to call, stating their Without prejudice to the provisions
address and the purpose for which you of the following articles, the
intend to call them a list of all the summons shall as far as possible be
documents on which you intend to rely. served on the defendant in person.
Take notice, which, in default of your Another mode of service is one that is
appearance on the day before mentioned or similar to personal service. In this mode,
of your producing your statement of defense summons is not actually served on the
or any evidence, the suit will be heard and defendant in person. Somebody else receives
determined notwithstanding your default. it but the law treats it as if service is made
Given under my hand and the seal of the on defendant in person./Art. 105 of civ. And
court, this …….day of …….19…….Judge. Art. 96/1&2 of civ. P. c.
“A”--- name “B”---name of plaintiff Another mode of service is known as
“C”---Cause of action i.e. the source of constructive mode of service.
claim of plaintiff
This is the rule under Article 99, 100 and the case in his absence. The effect of non-
Article 101. appearance of plaintiff is different from that
of the defendant.
Still another mode of service is the
substituted mode of service. This mode of Where neither party appears when
service is considered to be the least effective the suit is called on for the hearing,
mode of service. It is the final mode of the court shall make an order that
service used when all other modes of service the suit be struck out, or, in cases of
are not applicable. This mode of service appeal, that the appeal be dismissed.
includes service by affixing a copy of Article 73 that provides the rule in this
summons in public areas, publication in respect.
newspaper, etc. It is a mode used where all Where the defendant appears and the
other modes cannot be applicable. This is plaintiff does not appear when the suit is
implied in the rule under Articles 103 and called on for hearing, the court shall make
105. If the serving officer cannot serve, he an order that the suit be dismissed, unless
shall return it to a court. Then the court the defendant admits the claim or part
orders a substituted mode of service. thereof, in which case the court shall pass a
decree against the defendant upon such
4.2.2 Effects of Non- Appearance of admission and, where part only of the claim
Parties has been admitted, shall dismiss the suit as
The principle is this 69(1). See Article 69(1) it relates to the remainder.
below.
“On the day fixed for the hearing of the suit, When the plaintiff appears but the defendant
the parties shall be in attendance in the fails to appear, the measure to be taken by
court in person or by their respective agents the court depends on whether or not the
or pleaders and the suit shall then be summons has been properly served on the
heard.” defendant. /Art. 70/a of civ. P. c.
What if a party fails to appear? The effects
If the court proves that summons was not
of non-appearance depend on a party who
duly served on the defendant, the court
fails to appear and on whether or not the
orders the issuance of second summon on
summons is duly served on the defendant. If
him. But if the summons is not served on the
both parties (plaintiff and defendant) fail to
defendant owing to the plaintiff’s negligence
appear on the date fixed for the first hearing
in serving summons, the court may adjourn
of a suit, the court shall strike out a suit.
the hearing of a suit or may strike out if it is
This rule is modified if there is non-
a fresh suit or dismiss it if it is a case on
appearance of both parties on appeal. If the
appeal. See Article 70(d).
appellant and respondent fail to appear on
the first date of hearing of appeal, the appeal When a third party defendant (under Article
shall be dismissed. See Article 69(2) below. 43) does not appear, the rule under article
If the defendant failed to appear, the court 70(a) does not apply. In case of non-
may issue fresh summons or proceed to hear appearance of third party defendant, the
court decides that he has admitted the claim 69(2), 70(d), 73). If a suit is dismissed, the
of defendant. The mere non-appearance of plaintiff is prevented from bringing a fresh
such party amounts to an admission of the suit on the same cause of action. He cannot
existence of contribution or indemnity pay a court fee and proceed with a suit. The
relations alleged by plaintiff. This kind of dismissal leads to a loss of right to bring
judgment is known as default judgment. It is action. /Art. 74/.
a decision based on the sole reason of
absence of third party defendant. It is The defendant in whose absence a case is
provided under Article 76. heard and decided can also request the
setting aside of exparte decision or default
The fate of the defendant who could not judgment. He could apply within one month
appear on the opening of the suit depends on of the day he became aware of such
the presentation of good cause by him. If he decision. If he is proved to be prevented
shows good cause, he is permitted to defend from appearing because of good cause, the
himself./Art. 72 of civ. P. c/ court may set aside exparte decision or
default judgment, and consider the case as a
What are the effects of non- appearance of new one. See Article 78(1) below.
parties?
Any defendant against whom a decree is
The court is not entitled to make a decision passed or order made exparte or in default
for any party for the sole reason that another of pleading may, within one month of the
party fails to appear except the non- day when he became aware of such decree
appearance of third party defendant. The or order, apply to the court by which the
measure taken by the court can either be decree was passed or order made for an
dismissal or striking out of a suit. order to set it aside.
Generally, striking out does not avoid the
submission of a fresh suit, upon payment of
court fee, to a court on the same cause of
action. Good cause is important not to pay a
court fee, but not for initiation of a fresh
suit. 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, it is
considered as if it were not filed at all to a
court.

A suit is dismissed when the plaintiff fails to

appear but defendant appears; when both
parties fail to show upon appeal; and when
an appellant is proved to be in default in
serving summon on respondent (see Articles