Chapter One

Introduction to Civil Procedure:

Conceptual and Historical Background
The Nature of Civil Procedure: Definitional Aspects
The term ‘civil procedure’ may-for the sake of simplicity, still be
defined-in the context of bare technicality. To begin with, composed,
it is obviously, of two words: ‘civil’ and ‘procedure’. Separately treated,
the former is conventionally employed to denote matters related to
‘private’ individuals’ as opposed to ‘public’ affairs whereas; the latter
refers to ‘the manner of carrying out a certain activity’. When
combined, thus, ‘civil procedure’ would viewed from the aspect of
court proceedings- mean no more than the ‘method of conducting
legal actions relating to the issues of private persons’.
And here comes the potential pitfalls of adopting such a merely
literal approach. That is to say in instances such as this, one
may run the potentially damaging risk of failing to properly
appreciate the prime legal intent ingrained therein. Hence, a
metaphorical explanation of the matter would, it is hoped, not
only avoid similar shortcomings, it would, incidentally, have a
some relative importance. First and foremost, such an approach
would enable one to sufficiently appreciate the significance of
procedural rules vis-à-vis the substantive ones. Moreover, one
would, in the meantime, be properly equipped with adequate
information about the spheres of application (play ground) of
civil procedure as opposed to the criminal one and the criteria
through which civil cases would be differentiated from the penal
ones. Most importantly, one would be well acquainted with the
essential attributive qualities and the overall purposes of
rules of civil procedure and would acquire the necessary
knowledge so as to rationally attach the proper weight they
deserve.
Substantive Vs Procedural Laws: Significance
Among the various ways of classifying laws, one involves making a broad
distinction between substantive and adjective legal rules. Adjective rules
are, in turn, subdivided into procedural and evidence laws with the former
constituting the major portion of it. The law of evidence, which governs
the method of proof of allegations or assertions of parties to a case,
apparently falls beyond the domain of this course; and, we will therefore
concentrate be dwelling upon the remaining two species of law: substantive
and procedural.
• Substantive laws, for the most part, define rights, duties, privileges and
liabilities of persons and set out regulatory norms for their mutual
relations in their ordinary course of life. Functionally expressed, they
provide the basic rules governing the day-to–day activities of individuals
Vis-à-vis the community they live in and interact with- for the attainment
of orderly and smooth societal interactions, and as such, form the
substantial portion of the laws in the aggregate. Thus, these chief
attributes of the laws and their relative proportion, coupled with the fact
that procedural laws are, comparatively speaking, but means to the end
contemplated by substantive laws; may, presumptively, hasten one to
attach more importance to the former than to the latter.
Accordingly, one may safely and boldly propound that, law, needless to mention, is not,
in its full sense, just prescription, rather, both prescription and application. Indeed,
prescription without application is nothing but pretence. This means that the
rights and duties envisaged by the laws would mean nothing unless they are
fully enforced; most importantly, when they are breached or violated. In other
words, the mere declarations of the rights in a document may not provide
sustainable security when they are infringed, unduly suspended or taken away. This
means, under the pain of repetition, that the bare statutory stipulations may not
yield, for practical purposes, any good unless all the necessary conditions are
thereto spell out the manner of their proper enjoyment and/ or exercise.
The existence and proper application of effective and efficient rules of procedure,
hence, does not solely avoid the potential evils consequent to such unfortunate
events; it would, thereby, enable the legitimate owner to properly enjoy and/ or
exercise the right within the bounds of the law. Thus, unless there exists a
normative framework and an institutional structure by and through which a
wrongful conduct is peacefully and formally restrained, and the injured victim is
proportionally remedied; the latter is likely to “take the laws into his hands”, as
the saying goes, wherein, he might resort to some kind of self-help measures.
Consequently, here comes the significance of the rules of procedural laws in
general and that of civil procedure in particular. That is to say, it is the function of
procedural rules, to which civil procedure belongs, to govern as to how claims of
persons are prepared; where and when presented; and, how determined and
finally enforced by a court of law. In a nutshell, one may comfortably conclude
that procedural rules, in essence, give effect (“life”) to the ends sought to be
achieved by substantive laws.
The other broad criterion for distinguishing between the two areas of rules is
connected to their respective contents (purposes) and the functional
correlations between them. As it has already been explained elsewherein
the chapter, the rules of substantive laws envisages to avoid conflicts so as
to ensure individual freedom within the framework of public order and
societal harmony; by, primarily, predefining the rights and duties of
individuals and groups; and, by regulating their interactions at various
levels of relations. Nevertheless, notwithstanding the enactments of
stringent substantive laws and the aspirations thereof, conflicts are
virtually inherent in human relations; and, they can and do arise for a
number of reasons; thereby ,calling for an efficient and effective dispute
resolution mechanism if the ultimate objectives that the substantive laws
have in view are to be meaningfully attained. Thus, here comes the
indispensable need to avail remedial measures for the dispensation of
justice through the instrumentality of procedural rules; and, there lies the
correlations between the two classes of laws. In that, the rules of civil
procedure are fundamentally meant to deal with the manners of framing
law suits; determining their place of institutions; and, governing the
way they are to be considered and finally enforced by the courts of law.
In other words, they are thereto secure the just, speedy and inexpensive
disposition of civil cases in the administration of justice. Briefly stated, the
law of procedure is the means to the end sought to be achieved by
substantive laws.
Finally, the third parameter is concerned with the actual functions of the two
classes of laws vis- a-vis their respective spheres of applications. In this
respect, the rules of substantive nature determine, in the whole, individual
conducts and regulate their interactions within the society at large. That is,
they deal with civil matters largely falling outside the environs of the
courtrooms. Procedural rules, in contrast, govern the process of
litigation; regulate the conduct of relations between the litigants and
the court with respect to the proceedings; and, as such, is called “law of
action” reflecting the dynamic aspect of the rules of substantive laws. That
is, substantive rules represent ‘law at rest’, so to say; while procedural rules
denote “law of motion”.
To sum up, therefore, the material source, the constituent document-
wherein the rule under consideration is inscribed; the ultimate objective
the rule is meant to serve and its functional spheres of application are the
three general, though inconclusive, yardsticks through which a distinction
between civil and substantive rules is tested
 Civil Vs Criminal Procedures: Scope of Application
Depending on the purposes and the ultimate objectives
underlying their very establishment the types of relationships
they chiefly govern; the nature of the legal interests that would
be affected at their violations and, hence, the parties who would
have sufficient stake therein so as to invoke a justiciable
controversy, laws may also be classified into ‘civil’ and
‘criminal’. Here, a point has to be made of the fact that the very
phraseology of the two terms is a purposive employment. That
is, the adjective ‘civil’ is used, in this context, in
contradistinction to the word ‘criminal’ so as to signify the
distinction between their respective areas of applications
since the former deals with ‘civil’ matters whereas, the latter is
concerned with ‘ criminal’ cases. Thus, as a natural corollary to
this, there comes a need to identify the essential attributes of
the two areas of laws; the nature of the legal interests each
intend to preserve and the basis of their classification. A brief
introductory remark is thus in order.
Legal rules, in the general parlance, have, to reiterate what has already been
said herein above, the purpose of adjusting human relations at various
levels so as to preserve and ensure the wellbeing of the public at large. In
spite of this, however, the ever-growing complexities and
interdependability of human relations have made it clear that there are a
good number of situations whereby the legal interests of others may
adversely be affected and an eventual evil maybe inflicted there upon.
The inevitability of such unfortunate instances, in turn, calls for
corresponding remedial measures if the societal harmony is to be
meaningfully preserved. Accordingly, the infringements or violations of
legal interests which are so recognized and protected by law -are
considered to be legal wrongs thereby entailing liabilities and incurring
legal sanctions upon the wrongdoer. These wrongs and the attending
liabilities are, in turn, considered to have either private or public nature.
The former are breaches of private rights, affecting individual interests;
and are called civil injuries; whereas, the latter are violations of public
interests, affecting the society as a whole; and, are called crimes. Even
though both of the wrongs do, in a way, affect the private individual, the
nature of certain wrongs are conceived to be so grave enough to affect; and,
hence, involve the public at large in the controversy as an eligible
interested party-represented through the state.
In sum, a crime is an offence against the community as a whole for
which the offender is held criminally liable and faces penal
sanctions. A civil wrong, on the other hand, is an infringement of
the legal interests of private individuals and is redressable,
principally, through reparation of damages. Moreover,
consequential to the nature of the legal interests affected in a civil
dispute, the cases are to be initiated and instituted in a court of law
by the aggrieved party himself (or his legal pleader); wherein law
enforcement organs are but to avail remedies for those who have
valid claims. In other words, in a civil litigation, the judge is there, in
the whole, to decide whether any legal right of the plaintiff is
affected; and, if so, whether one is entitled to any relief. It thus
follows that the main purpose of administration of civil justice is
primarily to enforce rights; and, hence, a civil case may end up in
an award of compensation to the individual victim or dismissal of
the case
On the other hand, penal prosecutions, being the concern of the public
at large, have the final aim of ensuring the overall peace and
security of the nation as a whole and, may result into an acquittal
or conviction of the accused- carrying with it, primarily, an element
of penal liability, namely, punishment.
The first factor relates to the nature of the parties instituting the legal
action. A civil case is naturally initiated by a private person claiming
redress for some wrong alleged to have been committed against him
by another Accordingly, parties involved in a civil case can appear in either
of the following ways: “A physical person against another physical person”;
or, “A physical person against a legal person “, or, “A legal person against
another legal person” In criminal cases, nonetheless, the parties are
commonly the state (represented by the public prosecutor, usually,
in place of the plaintiff ) and an individual suspect (defendant) –
who has allegedly committed a penal offence. There are, however,
some limited possibilities for a penal prosecution to arise between an
individual victim and the alleged offender.
The purpose of initiating a law suit and the nature of the relief
sought thereby is the other yardstick used to make a distinction
between civil and criminal cases. The relief demanded in a civil
case is mostly the payment of money or is usually to be assessed in
monetary values. On the other hand, the over all purposes and aims
for initiating a criminal case is the maintenance of peace and
order of the general public by, primarily, punishing the law
breaker.
To sum up, a civil case is one instituted primarily by an individual for the
purpose of securing redress in monetary terms. Understandably, civil
procedure is, thus, a method employed in the initiation and disposition
of such civil disputes. Moreover, the parties are at liberty to negotiate
over their disputes even while the case is still pending; and have it
withdrawn from the court any time, but before a final judgment is rendered.
In contrast to this, criminal cases are not subject to such alternative
dispute settlement mechanisms. This means, the matter lies exclusively
within and is done under the power of the prosecution officers irrespective
of the negotiations and the agreement that may be made between the
victim and the offender; unless, of course, the case falls within the category
of ‘offences upon complaint’.
Self-Assessment
Assume that a dispute arises between the Commercial Bank of Ethiopia and an
individual who alleges that he was an employee of the Bank but improperly
and unlawfully dismissed of his official duty; and, hence, filed a suit in a
court of law demanding, among other things, to be reinstituted.
Is this a civil or penal case? Why?
The Purpose of Civil Procedure Vis-à-vis Fundamental Procedural Rules
The general parlance, rules of civil procedure aim to ensure that disputes are
handled by an impartial legal tribunal in a fair and orderly manner and as
expeditiously and economically as possible. They are, in brief, meant to
secure the just, speedy and inexpensive disposition of cases. More
specifically; they aim at treating the parties to a law suit equally in
enforcing their rights and the corresponding duties and laying down the
ground for a smooth and orderly flow of litigation so as to make the
decision within a reasonably fair and quick time. procedure may be
considered as a means to an end not an end in it self. As stated,
earlier procedure essentially exists to ensure the proper enforcement
of rights and duties arising from substantive laws .This, however,
cannot be an irrefutable security of the proposition that: procedures
are devoid of inbuilt, significant process-values of their own
independent of the ultimate outcome they are designed to preserve.
The generally held belief has been that the indeterminable number and complexities of
the procedural steps followed in the litigation process; lack of procedural
transparency; the great uncertainty of the governing rules and the irreconcilably
divergent inconsistencies in the application of the law, are some of the distinguishing
features of our judicial processes. In fact, it is not uncommon to see people voicing of
their dissatisfaction with the overall judicial proceedings. In this regard one can say
that, nothing expresses their distress than the usually mentioned statement: “It is
better to be sued and stand as a defendant in our courts than claiming one’s right
through them as a plaintiff ”. Victims may, at times, go even to the extent of
relinquishing their claims than demanding them through the existing intricate
procedures due mostly to the intolerably sluggish, inefficient, unpredictable and
costly litigation processes. it is actually meant to emphasize and implicate the fact
that the chief problem in this regard lies with the self-imposed, deep -rooted and
rampant customary practices which are repugnant to and observably inconsistent
with the dictates of the existing law. In line with this, to raise but few irregularities,
the expressive phrase “ both a torture to write and a torture to read” , which is
usually told of ‘ prolix judgments’ would exactly fit, mutatis – mutandis, to the
tiresome pleading practices, by and large, employed in our judicial proceedings.
Neither the litigants worry themselves of complying with the prescription of the law in
preparing their pleadings; nor, sadly enough, the court officials are seriously engaged in
and bother themselves of ensuring the formal sufficiency of the pleadings as they seem
comfortable with (and, hence, evidently complicit in) the bad practices.
The Essential Ingredients of Justice
A. Fair Hearing of a Suit/Impartiality of the Courts
There are certain factors against which impartiality of courts is evaluated or through
which “fair hearing of a suit” is ensured. The following are the major ones:
A. Neutrality of the Presiding Judge
Any person who sits in judgment over the interests of others must be able to bear an
impartial and objective mind to the question in the controversy; i.e. he/ she
should impart justice without fear or favor. There are two attributive features of
impartiality. The first feature is subjective impartiality, which refers to the
impartiality of the judge himself and second is objective impartiality of the
tribunal; i.e., the tribunal/ court or bench should provide the public with the
guarantee that it operates impartially; i.e., conditions that avoids suspicions of
impartiality. In other words, the impartiality of the judge (the subjective one) alone
is not sufficient- there must be conditions that warrant the impartiality of the court
(the objective one). In this regard, there are some common sources of bias that
should disqualify a person from acting as a judge.
I. Personal Bias
Although with the ever-growing interdependability of human relations, this factor has
always been a matter of judicial interpretations; there are, in fact, a number of
scenarios that may create a personal bias in the judges’ mind. It usually arises from
friendship, relationship (either personal or professional) or hostility or
animosity against either of the parties; or, negativity from personal prejudices;
or even political rivalry.
II. Pecuniary Bias/ Bias as to the Subject- Matter. (No one should be judge by
his own cause)
no matter how small or insignificant it might be. Where the judge himself is a party
or has some connection with the litigation so as to constitute a legal interest that
should disentitle him from being a ‘judge in his case’. Thus, the requirement of the
rule against bias (whose observance is recommended in the name of impartiality)
goes to the extent of imposing the duty upon the presiding judges to withdraw
themselves from the proceedings where it causes ( or, appears to cause ) the
violation of the rule (see, for instance, Art 27 of Proc No 25/1996).
B. Right to be Heard: Nobody should be condemned unheard!
Any one against whom an action is taken or whose right or interest is, thereby
being affected should be aware of the information against him and should
also be granted a reasonable opportunity to defend him self. The
governing maxim in this case runs: ‘audi alter am par tem’; meaning
‘Hear the other side’– no body should be condemned unheard. Two of the
facets of the maxim are:
A. Notice has to be given to the party before the proceedings start and,
B. A party has to be given an adequate and reasonable (effective)
opportunity to explain (hearing).
Moreover, a party should have the opportunity to adduce all relevant evidence
on which he relies and opportunity for rebuttal of evidence submitted
against him.
Equality of Treatment Every one is prima-facie equal before the
law
This principle implies equal subjection of all persons to the ordinary laws of the land
as administered by the regular courts of law; and, law extends protection to
everyone. Hence, each party to a law suit should be treated equally without
discrimination of any sort (i.e., sexual, religious, status, ethnic origin, political
affiliation, etc). This rule is so grand that it is considered an approximate synonym
for and equated with the entire notion of justice. Moreover, the degree to which
procedural rules facilitate equal opportunities of participation for the litigants to
influence the judgment may be taken as the most important criterion by which
procedural fairness is evaluated. In sum, there are three fundamental pillars used as
ultimate test of procedural fairness (equality) i.e., sine qua non for even, handed
dispensation of justice:
I. Equipage Equality
This implies equality between the litigants in preparing their respective
pleadings in getting legal aids (services) in searching for evidence etc,
irrespective of their differences in income levels. If a party, for example, is
allowed to amend or alter his pleading same opportunity should be granted,
when the circumstance so requires, to the other party (as per Art 91 of the
Cv. Pr. Cd.).
II. Rule Equality
Under similar circumstances, each party should be subjected to and protected
by, similar rules. Same issues should be resolved through similar legal rules.
If, for instance, by virtue of Art 58 (a) of the Cv. Pr. Cd, representation is
allowed for a ‘brother’, the same rule should apply for a ‘sister’s’
representation-though not expressly articulated therein.
III. Outcome Equality
Similar issues, under same grounds /circumstances, should have similar
outcomes for example instance, in such instances wherein ‘class action’ is
allowed-pursuant to Art 38 of the Cv. Pr. Cd. Generally, speaking like cases
should be treated alike.
B. Public Hearing of a Suit (Justice must not only be done but must also
be seen being done)
‘Hearing’, here, refers to the consideration by the court of the allegations and
defenses of either side before rendering the final decision. In principle when
the court undertakes such a hearing, the public at large, must have access to
the litigation process (court-room) without, of course, negating exceptional
situations of inherently confidential nature-wherein courts may consider
cases in a closed chamber (“in Camera”). Accessibility to the media-which
serves as a bridge between the two-is another important aspect of
transparency. In this regard, Art 12 Sub-Art 1 of the FDRE Constitution,
for instance, expressly stipulates that “the conduct of the government shall
be transparent”. Such an open court proceedings ensures transparency of
judicial activities and secures the acceptability and reliability (credibility)
of the judiciary. It is in this sense that it is often said that justice must not
only be done, but must also be seen being done.
C. Independence of the Judiciary and Accountability of the Judges
Under this sub-section, there is an interplay of two distinctive but correlative
principles usually employed in juxtaposition with one another: independence and
accountability.
I. Judicial Independence :Judicial independence, as one of the cardinal elements of
the rule of law, is commonly elevated to the status of and provided with
constitutional protection. Moreover, it is ensured through and possesses dual
facets: institutional and personal/functional.
II. Accountability of the Judges
However, it is a well established fact that if left unregulated and unguided
power corrupts and is liable to be abused. This means that it may
improperly be employed in a manner and/ or for the purpose not
contemplated by the law-eroding the overriding values of human right and
freedoms. This would undoubtedly breed an unfortunate consequence of
undermining the cornerstone of the judiciary: acceptability and
reliability. Thus, independence should not be left without restraint, there
has to be credible means of safeguarding those cherished human
values. Independence of the judiciary should not be taken as a special
privilege of the judge himself. In addition to availing workable normative
and institutional protective measures, litigants should be offered
reasonably adequate appellate opportunities; judicial proceedings have
to be transparent and open to the general public; and, judges should be
ready and bold enough to receive criticisms on their decisions or analysis
of the issues. Independence does not mean and should not lead to
irresponsibility and arbitrariness.
D. Establishment of Courts by Law
In the spectrum of the fundamental principles of administration of justice, an
item which may, at first glance, seem to be more of technical and not so
much important; but, in reality, no less weighty than others, is the requisite
for courts to be established by law. In a sense, the structures of the courts;
their hierarchical relations and their comparable jurisdictions have to be
explicitly constituted by law; and, only courts so established can assume
judicial function. On the other hand, inherent in this premise is that special
or temporary bodies that take away judicial powers from regular
courts; and by and large, do not follow procedures prescribed by law
ought not to be set up. Judicial power should principally and solely be
vested in the regular courts. This, of course, is without negating the
existence of the so-called ‘administrative tribunals’-which are constituted
by law and entrusted with some quasi-judicial (delegated) power-as the
present day compelling necessity of the proper dispensation of justice so
demands. . The causal impetus being the vast proliferation of governmental
activities and infinitely varied complexities of an intensive industrialization
which gave rise to multifarious social problems–requiring, in turn,
technical and expert knowledge; which, the ordinary courts are less
equipped with, if not seriously lack. These bodies are, thus, as a matter of
fact, off-springs of compromise between the executive and the
judiciary and are set up to share the burden of the case loads of the courts
which had almost been unbearably heavy- there by warranting their
establishment.
Furthermore, there is a stringent requisite expected of judicial bodies to
explicitly forward justifiable legal grounds for their decisions. The
purpose that such a formal requirement furnishes is two fold. In the first
place, it serves as a practical guarantee against the possible arbitrariness
of the judiciary; and, most importantly, the party against whom the
decision is passed; and, hence, affected, would get an opportunity to know
the legal basis of the court and be able to effectively exercise his right of
appeal. What is more, certain legal actions may embrace varied and
diverse subject-matter giving rise to intricate issues of law and fact.
In such instances, it may be practically insurmountable for a lay party to
meaningfully defend himself for the sole fact of lacking the required legal
expertise. Hence, availing one with reasonably adequate legal
assistance- as a right to legal representation- is becoming a pressing
necessity for an even- handed dispensation of justice- as it ensures one of
the requisites of procedural fairness: equipage equality. In the final analysis,
no law can ever be meaningfully effective if it fails to reach and win the
heart of those whom it intends to serve and does not respond to their
essential needs, values and to natural justice. Particularly, if the judiciary is
to secure the acceptance of the litigant public and ensure its reliability, it
should satisfy the following ingredients considered as sine qua non for
even handed dispensation of justice.
Rules of Procedure Vis-à-vis Modes of Proceedings
To reiterate what has already been said, rules of procedure are commonly
termed as means to an end and not end in themselves. They are thereto
ensure that legal disputes are handled as fairly and expeditiously as
possible. In the process of arriving at the truth about the relevant facts and
the pertinent laws applied thereto, the laws of procedural rules in any
country chiefly adopt either the ‘Adversarial’ or the ‘Inquisitorial’ modes of
fact- finding to the total, or, partial exclusion of the other; or, at times, an
interplay of the two, where, of-course, one may flagrantly take over the
upper hand. Given the difference in the degree of the roles played both by
the actual parties to a case and the presiding judge are the distinguishing
factors between the two modes of litigations, a brief explanation of their
functional outline would be in order.
The Adversarial Procedure
The adversarial method, whose routs are traced to the early Anglo-Saxon
court proceedings, is alleged to be the typical feature of English judicial
process or the major proponent of the system (other countries as such as
the USA, Australia and New Zealand do also belong to this category).
The prominent characteristics of an adversarial court proceeding, seen from
the procedural point of view, is that the parties themselves (or represented
by their advocates) shoulder the burden of initiating, shaping and fixing the
scope of the litigation. The process is termed as the core of what might be
called the ‘factual methodology’ of the system- in contrast to the other
style of adjudication, which employs some purely theoretical reasoning to
reach at a conclusion. The underlying proposition of the system is that
truth is most likely to emerge as a bi-product of the vigorous combat
between intensely partisan advocates. The advocates are not supposed,
at least as a matter of fact; to see the resolution of the case as a question of
what might be best for the society as a whole. Rather, their ultimate goal is
to see the possible disposition of the controversy in terms of their clients’
best interest-taking a “win-at-all-costs” attitude.
The Inquisitorial Procedure
This mode of investigative procedure is originally tied to the traditional
function of a strong and absolute government, namely the maintenance of
public order and the suppression of crimes. It is chiefly employed in the
judicial proceedings of the Continent Europe (France and Germany being
the representative ones). ‘
Inquisitorial’ procedure is self-expressive in that the judges can inquire deep
into the merits of the case so as to be able to decide on what the real issues
between the parties are. They can, for instance, order the parties to produce
further evidence and critically examine the witnesses of either side, if and
when they are of the opinion that a fair decision cannot otherwise be
reached. In adversarial proceeding. Judges are basically thereto ensure
public control over the management of the individual cases by enforcing
the law. They thus occupy a centerpiece in the ‘fact-finding’ process as
opposed in contrast to the neutral umpire of the adversarial judge. Hence,
from the above discussions , one may conclude that the prime difference
between the two modes of litigations lies mainly on the degree of the roles
played by the judge vis-à-vis the actual parties to the case. Accordingly,
irrespective of certain arguments in the contrary, the basic material source
of the Code is observed to be the 1908 Indian Code of Civil Procedure-
which itself was taken as a model procedure in some British colonies in
Africa-such as the Sudan. Hence, one may plausibly propound that the Code
was extensively influenced by and originated from the Common Law
Tradition-to which the UK was (and still is) the typical representative.
Rules of Civil Procedure in Ethiopia: A Brief Historical Overview
It is a common truism of legal history that the present legal rules and concepts do
not stand in isolation from the past legal traditions. Rather they have their
roots in and are fruits of long historical precipitations. In view of such premise,
it would thus be instructive and beneficial to make preliminary historical
considerations of certain customary and informal procedural rules. Hence,
tracing back into their historical antecedents; briefly exploring into the nature
and application of procedural rules; identifying the key issues attending them;
and, assessing the way outs forwarded thereto would supposedly throw some
light on the proper appreciation of the distinguishing features of the present
procedural order. Consequently, with the prime purpose of resolving those
procedural irregularities, and for the sake of proper application of the existing
rules, the then Ministry of Justice, started working on a comprehensive
procedural law. Accordingly, the incumbent Civil Procedural Code, the basic
text of which was drafted by the Codification Department of the Ministry of
Justice, was issued as a Decree in 1965. Moreover, upon its effectiveness, with a
view to encoding every rules relating to civil matters under one and single
document, all procedural rules concerning matters now covered by the Code,
that were previously in force were totally repealed-irrespective of the
inconsistencies with the Code. With respect to the drafting process, and the
material source of the Code, R. A. Seddler, the author of the original credible
text of reference on the Ethiopian Civil Procedure, claims that neither a
foreign code was incorporated as such, nor it was entirely modeled after one;
rather, he argues, it was remarkably of Ethiopian origin.
Salient Features of the 1965 Civil Procedure Code
Even though the Code is said to have embodied comprehensive rules that
apply to civil litigations of any sort, it is also concise in a sense that it
contains only 483 articles-divided into chapters and paragraphs. It
encompasses rules on, among others, jurisdiction of courts; framing of
issues; parties to and scope of litigation; service of summons; pre –trial and
trial proceedings; revision of decisions and modes of executions. Most
importantly, however, the following distinguishing features of the code
deserve special attention. To begin with, the four schedules of forms
governing pleading process, miscellaneous matters and execution,
stipulated at the rear most part of the Code demand distinctive discussion.
The point here is that there is a contention as to whether such schedules
should strictly be observed during actual litigation processes.
Last, but not least, ensuing from the fact that the Code was issued as a
“Decree” by the Emperor, there could arise a problem relating to the
approach to be taken in the process of interpreting its provisions. The
problem here is that, since the Code was not promulgated by the
parliament, there are no documents containing legislative debates (“travox
preparatory”) on the drafts of its provisions, there is no thing published,
indicating the drafters intent i.e. the background policy explaining the
contents of the legal rules and prescribing guidelines for interpretation.