Producedur Short Note
Producedur Short Note
hrs;
2. Law of Criminal Procedure 3 Cr. hrs;
3. Law of Evidence 3 Cr. hrs;
4. Conflict of Laws 4 Cr. hrs.
5. Appellate Advocacy 2 Cr. hrs;
6. Pre-Trial Skills and Trial Advocacy 2 Cr. hrs;
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Introduction to Civil Procedure: Conceptual and Historical Background
Objectives:
Upon completing this chapter, students will, among other things, be able to:
accurately point out the relations between procedural and substantive rules;
make distinctions between civil and criminal cases and identify the scope of application of
civil procedure;
sufficiently comprehend the significance of rules of civil procedure;
Properly appreciate the ultimate objectives that the rules of civil procedure are designed to
serve; and, describe and apprehend the past and present administration of justice in Ethiopia-from the
perspective of civil proceedings.
From the preceding discussions, it can be understood that the major distinction between the two lies
in the degree of gravity of evils involved in their eventual consequences-wherein the severe ones are placed
in the category of crimes. Thus, crimes are more serious and sufficiently injurious to the public as
compared to civil wrongs which affect only the private victim.
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.
The jurisprudential grounds for the establishment of civil or criminal liability. The basis of remedial
liability is to be found in the legal maxim “ubi jus ibi remedium”, which means, where there is a right,
there must be a remedy –taking into consideration the bare act irrespective of the intention of the
wrongdoer. On the other hand, the fundamental rule underlying penal liability is contained in the jural
dictum “actus non facit reum, nisimens sirea”; which means that a mere act does not amount to crime
unless it is accompanied by guilty mind. That is, one is held criminally liable only for those wrongful
commissions or omissions for which he does either willfully or negligently. In other words, criminal
liability invariably requires moral guilt (intention or negligence), plus, personal act or forbearance.
Generally speaking, all legal disputes before a court of law are thus either one of remedial or penal in
nature; and, civil procedure is, needless to mention, a set of rules employed in the disposition of civil cases
while criminal procedure is, by the same token, meant to govern the steps to be followed in penal
prosecutions. These specific areas of implementation of the two procedural laws, on the one hand ,obviates
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the scope of application of civil procedure; and, on the other, brings into picture the need to draw
distinctions between civil and criminal cases.
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”.
This occurs when it acts in and exercise its private capacity. A government is said to have acted in its
private capacity when it engages in matters typically undertaken by individuals.
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.
The relief demanded in a civil case is mostly the payment of money or is usually to be assessed in
monetary values. In some exceptional civil cases, however, a specific relief (personal performance) or
forced performance of legal obligations, such as, restitution or delivery of goods or an injunction could
also be demanded. a court entertaining a civil litigation cannot, in principle, impose a sanction depriving a
party of his personal liberty; such as, an order of detention; or, of his life as in the case of death penalty.
Nonetheless, one, who either refuses to furnish security for appearance-while the case is pending- (Arts 147-
150);or, fails, without good cause, to satisfy a decree(Art 389), may exceptionally be detained in a civil
prison for a period not exceeding six months.
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. A penal case, thus,
aims at punishing an offender-
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’.
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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.
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.
That is, the authority empowered to decide dispute between opposing parties must be one free from bias-by
which is meant an operative prejudice ; i.e., predisposition towards one party or against the other without
proper regard to the true merits of the case.
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; appears
to be interested in the case, that should disentitle him from acting in that capacity.
In this regard, there are some common sources of bias that should disqualify a person from acting as a
judge.
I) Personal Bias
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.
“nemo judex in cause sua”, implying that no one should be a judge in his own case; and, it arises
from monetary interests in the subject matter of the dispute, 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’.
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:
I. Notice has to be given to the party before the proceedings start and,
II. 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.
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C. 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).
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.).
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.
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.
Justice must not only be done but must also be seen being done
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!
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.
A. Institutional/administrative Independence
Institutional or administrative independence which is usually related to the concept of separation of
powers-is a mechanism judiciary is essentially ensured through the following means.
+ Legal Basis
It would confirm the fact that it is not something to be granted or, at times, withheld, of personal
will-but one with a legal foundation expressly stated and enacted .(See, for instance, Arts 78 Indpce of J&79
Judicial powers of the FDRE Constitution.)
+ . Independence to Administer Internal Affairs
Generally speaking, however, institutional independence of the judiciary is, most importantly,
ensured when:
Such independence is spelt out in black and white by the law ( see, for instance, Art. 79 of the
FDRE Constitution);
Courts have full authority over their internal and, financial affairs; such as, the power of
drawing up and implementation of the administrative budget and management of its personnel ( See, Art 79
(6) of the FDRE Constitution and Art 16. of Proc .No.25/96) : and,
Judges are appointed in such a way that guarantees their independence including, enjoyment
of a secured tenure of office; i.e., up until the retirement age); and, their removal from their judicial duty is
made in due process as sanctioned by law and in restrictive grounds so prescribed.
B. Functional/Personal Independence
Complete and meaningful independence of the judiciary, can be guaranteed if only it is supplemented
by a functional or individual independence-which could either be internal or external. In the process of
discharging their judicial tasks, judges should be free, internally, from their own colleagues and/or from the
influence of superior courts; or, externally, from any kind of outside intrusion, fear or influence; and they
should solely be bound and guided by the law.
II. Accountability of the Judges
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.
Hence, the judiciary has to be amenable to the law. Judges are to be held responsible for their
decisions.
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1.1.2.4. Establishment of Courts by Law
Minimum requirements of a fair trial. The parties should be afforded:
- Adequate notice of the nature and purpose of the proceedings;
- Adequate opportunity (time and space) to prepare their case; the right to present arguments and
evidence; and meet opposing arguments and evidence, either in writing, orally or by both means;
- Counsel or other qualified persons of his or her choice during all stages of the proceedings;
- An interpreter; if s/he cannot understand or speak the language used in the courts;
- The right to be tried in his presence; to defend himself in person or through legal assistance of his
own choice and to be informed, if he does not have legal assistance, of this right;
- The guarantee that his or her rights or obligations affected only by a decision based solely on
evidence known to the parties to the proceedings;
- The opportunity to have a decision rendered without undue delay and to which the parties are
provided adequate notice and the reason thereof;
- The right, except in the case of the final appellate court, to appeal or seek leave to appeal, decisions
to a higher judicial tribunal;
- The right to have legal assistance assigned to him, in any case where the interests of justice so
requires; and, without payment by him in any such case if he does not have sufficient means to pay
for it;
- The right to examine, or have examined, the witnesses against him;
- The right to obtain the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him.
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.
Hence, due to such a ‘litigant-driven’ fact-finding process, the system has often been likened to a
battle or sporting event on which the players and the players alone are responsible for the determination of
the (nature and effect) outcome of the contest. Thus, an adversarial court proceedings judges play a
relatively passive role. Their function is limited to regulating the proper conduct (smooth flow) of process.
This restrictive mandate of the courts potentially circumscribes the intervention of the judges in the
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substance of the litigation. Thus, the judge is merely there as an impartial umpire to see to it that the rules
of the game are evenly and properly observed by the players.
- The real parties do have active role to play in initiating, shaping and fixing the scope of the
litigation. However, relatively speaking the system envisages, , a more active role for the judges to play
instead of being a mere ‘pronouncer’ of the bi-product of the activities of fierce partisan advocates-as is the
case with the adversarial proceeding. Judges are basically thereto ensure public control over the
management of the individual cases by enforcing the law.
- the mode of Ethiopian court proceedings. Formally and theoretically speaking, identifying the
primary source material of the Code is undoubtedly the determinant element for this purpose. 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.
Historically speaking, for the substantial portion of its legal tradition, Ethiopia was identified with the
absence of a systematically organized judicial process or uniformly applied procedural laws., the
implementation of modern procedural laws indispensably demands. Up until the end of the 19th century,
there was no adequately articulated and/or formally institutionalized system of administration of justice.
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
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litigation; service of summons; pre –trial and trial proceedings; revision of decisions and modes of
executions.
In the enforcement of the laws, as the provisions of the Civil Procedure Code are to be read in
conjunction with and interpreted (when the need arises) in the spirits of the substantive laws, the latter
would undoubtedly have an appreciable effect on the former. Consequently, due mostly to such differences
in origin between the two laws, practical problems may crop up in the process of litigation.
CHAPTER TWO
JUDICIAL SYSTEMS IN ETHIOPIA AND JURISDICTION OF COURTS
The power of a court to hear and render a binding decision-jurisdiction of courts- is the cardinal point
of discussion in this Chapter. Accordingly it deals with the identification of appropriate (level of) courts that
should consider justiciable cases of civil nature. So as to be able to pass a legitimately binding decision,
courts should first of all, have jurisdiction over the case submitted to them.
The decisions of the governors could also be reviewed upon by ‘Womber-Rasses’ representatives of
each provinces in Ethiopia-and presiding over the central court situated in Addis Ababa. Furthermore,
appeals from the decisions of the Womber-Rasses would be submitted to the ‘Afe-Negus’; and, as a final
resort, the litigation would come to an end after having reached the apex of the judicial structure, i.e.: the
Emperor himself.
Briefly stated, thus, before the end of the 19th century, there was no formally established and
systematically institutionalized judicial structure in Ethiopia. It was thus only the 1931 ever written
Constitution of the country that could safely be considered as marking the beginning of a new era in the
establishment of the modern judicial system. Justice Proclamation, Proc., No. 2/1942, Neg., Gaz., Year 1,
No. 1) was enacted. Accordingly, , technically speaking, six levels of courts, the first three, namely, the
Supreme Imperial Court, the High Court, and the Provincial (Teklay-Gizat) Courts were set up: The
remaining subordinate courts; i.e., the Awraja –Gizat Court, Woreda-Gizat Court and the Mikiti-Gizat Court
were also subsequently instituted. Nevertheless, as the Mikitil-Woreda Courts and the Teklay-Gizat Courts
were later on devoid of their jurisdiction by subsequent laws
The most prominent of these was the 1965 Civil Procedure Code-which, in turn, established four
levels of courts: the Woreda Guezat Court, Awradja Guezat Court, High Court and Supreme Imperial
Court.
Accordingly, the Constitution not only proclaim that, judicial power, both at the Federal and State
levels, is vested in the courts but it also provides for the establishment of two sets of courts: one at the
Federal and the other at the State level. That is, both the Federal and the Regional Governments are
endowed with their respective structure of courts-tiered along three layers-the supreme, the high and the
first instance courts-each having distinctive jurisdictions of their own and different places of sittings.
By virtue of the Constitutional stipulations, while the Federal Supreme Court sits solely in Addis
Ababa, the Federal High and First Instance Courts sit in Addis Ababa, Dirre-Dawa and in such other places
as may be deemed necessary by the HPR (House of Peoples’ Representatives). Otherwise, if and when these
Courts are not so established.. Thus, some scholars argue that such a naming of the courts at the States’ level
would render the courts, legally speaking, unconstitutional; and, hence, demanding for a renaming.
Moreover, though the Constitution explicitly recognizes religious and customary courts and envisages
their establishment by law, it not only exclusively vest judicial power both at the Federal and States levels on
regular courts and institutions so empowered, but also strictly forbids the establishment of special or ad hoc
courts-berefting the regular courts of their constitutional power.
Generally speaking, individual disputes, in a given society, may be resolved through different conflict
resolution mechanisms-which could take either the contentious court litigation method or the out of court
amicable ways. From the discussion, herein above, we have observed that the existing Ethiopian judicial
system has a dual court structure: one, at the Federal, another, at the States level and, that each structure
has, in turn, three layers of courts with their distinctive judicial powers.
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In some instances, a court’s judgement of a given country may be enforced in another country on the
basis of bilateral or multilateral treaties.
If, for instance, a foreigner without any property in Ethiopia is found to be subject to the jurisdiction
of Ethiopian courts, the judgement passed against him will be enforced in his home state. Accordingly, the
plaintiff (judgement-creditor) is not to file another suit on the merits of the case in that state; but, simply
makes a formal application for the enforcement of the Ethiopian judgement and obtain execution against the
judgement-debtors property in that country
Formally speaking, law in Ethiopia that specifically govern the issues of judicial jurisdiction.
Moreover, though the conditions for granting permissions to the execution of foreign judgements are put
forth by the Civil Code, the existence of judicial jurisdiction with the court that rendered the decision not
expressly required as such. Instead, the Ethiopian courts ordered to, principally, identify the presence of any
international conventions to that effect, or, ensure reciprocal duties/ commitment from the country in which
the judgement was given. But still, further requirements could also be gathered by cumulatively reading the
pertinent provisions of the Code (See, Arts 455-61).
The grounds for exercising judicial jurisdiction are distinctively put as ‘in Personam’(over a person)
and ‘in Rem’(over a thing) jurisdiction.
An action in Personam, which is the usual kind, is brought against a person, natural or legal, and
seeking a relief against the person of the defendant, i.e., the claim is made for an order requiring the
defendant to do or refrain from doing an act.
On the grounds of the general legal principles, and the usual court practices, Ethiopian courts are held
to assume judicial jurisdiction in Personam where either of the following requirements are fulfilled: civil
law approach
the defendant is an Ethiopian national or domiciliary; or,
the defendant has consented (expressly or impliedly) to the exercise of jurisdiction by the
Ethiopian court; or,
the act which is the subject matter of the suit occurred or is situated in Ethiopia.
On the other hand, Ethiopian domiciliary is one who, while not an Ethiopian national nor has
otherwise acquired its nationality, has established the principal seat of his business and of his interests in
Ethiopia with the intention of residing in here permanently; or, more realistically, for an indefinite period of
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time.
Similarly, an Ethiopian court will have personal jurisdiction over a foreign defendant on a suit that
had been concluded outside of Ethiopia but was performed here.
To sum up, Ethiopian courts will have judicial jurisdiction when the defendant is an Ethiopian
national or Ethiopian domiciliary. However, judicial jurisdiction may still exist even where the defendant is
not an Ethiopian national or domiciliary if either the act which is the subject matter of the suit occurred in
Ethiopia; or, although some of the acts occurred outside Ethiopian, the transaction has sufficient contact
with Ethiopia, rendering it is reasonable for Ethiopia to hear a suit involving the transaction.
Limitations are put to judicial power as courts are made to see cases so long as only they are
justiciable ones. Justiciable connotes" inclusive of all case unless the law provides otherwise" Courts have
inherent power to dissolve or dispose the case but the law can provide otherwise.
In this regard, the prominent administrative tribunals established in Ethiopia include: the Tax Appeal
Commission-sees cases related to tax complaints; the Civil Service Tribunal-entertains grievances
concerning civil servants; and the Labour Relations Board-competent to deal with employee-employer
(labour) disputes.
To summarize, material jurisdiction is one of the three basic requirements of jurisdiction and has two
aspects. While the first is subject matter jurisdiction; the second is pecuniary jurisdiction. The subject matter
aspect defines the type of the case as between Federal or State subject matters. Proclamation No 25/96
provides that Federal Courts have jurisdiction where cases involving
-a foreign national or
-where one of the parties to the suit is a permanent residents of different Regional States, or
- where one of the parties is a Federal Government organ or official.
In principle, State subject matter is a matter that arises on the basis of State Law. However, there are
conditions where issues raised on the basis of State Law may be categorized under the jurisdiction of
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.
Therefore, once a case is determined as a Federal or State subject matter, the next step will be the
identification of the appropriate level of court say, for instance, from among the Federal, First Instance or
High Courts. Alternatively, whether, one will be the State’s First Instance or High Court. This query is to be
determined on the grounds of the amount of controversy or the pecuniary amount involved in the case. The
following sub-section will thus thoroughly discuss such a matter.
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Grounds of Jurisdictional Limits of Courts under Proc. 25/96
1. Type of Cases: Exclusive Jurisdiction
2. Pecuniary limitation
In other words, the Federal High Court has exclusive jurisdiction in all cases mentioned under Art
11(2) of Proclamation No 25/96.
Art 5 0f Pr. 25/96
2. Pecuniary limitation
Art 14 0f Pr. 25/96
Federal First Instance Court Cases <500000 birr
Federal High Court cases >500000 birr
Article 16(2) of cpc, 226
The other issue which could be raised in relation to local jurisdiction is a situation where the
defendant does not reside, or, carry on business or work for gain in Ethiopia. In such instances, Art 20(1)
provides that the suit may be instituted in any court in Ethiopia where the plaintiff prefers; unless, of course,
the suit relates to an immovable property of the defendant; in which case it is the court of the place where
the property is located.
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Nevertheless, the ‘legal persons/body corporate’, mentioned under Art 22(2) are somewhat different
from those described under Art 22(1). Their difference lies in the fact that, while the body corporate or
legal persons, which are stated under Art 22(1), are basically established to gain profit but 22/2 association
est. not to gain profit.
Article 24 provides four mutually exclusive rules on suits regarding contracts. Generally, there are
four types of contracts, which are categorized for the purpose of determining local jurisdiction. These are:
Contracts generally,
Contracts of carriage,
Contracts of Insurance,
Contracts of pledge, deposit, or bailment.
A. Priority
The question of priority arises when a plaintiff institutes two or more suits on the same cause of
action in different courts. art 7
B. Pendency
No court shall try any suit in which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties in another court in Ethiopia having jurisdiction.
C. Consolidation of Suits
Consolidation is thus a procedure that is applied when two or more suits pending in different courts
or the same court and between the same parties give rise to similar issues and are to be decided in different
courts. In other words, where two or more suits which involve the same parties and similar issues in
different courts or where there is a question of pendency, then, both suits will be consolidated under the
procedure of consolidation.
CHAPTER THREE
PARTIES TO AND DIMENSION OF SUITS
The parties to a civil suit which is being considered by a court that is exercising its first instance
jurisdiction are known as plaintiff and defendant. Moreover, parties to a suit considered by appellate court
using its appellate jurisdiction are called appellant and respondent.
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The requirements for this representation to apply are that the parties should have the same interest in
a suit; that they all agree/consented to be represented; and that the number of parties is more than two since
the provision demands the number of parties to be several.
Joining parties and causes of action makes parties to pool their resources together and enables them
to share costs of pursuing a suit. it avoids the possibility of making conflicting decisions.
Plaintiffs could bring a joint action if two requirements are met. The first requirement is that the right
to relief must arise from the same transaction whether jointly, severally or in the alternative, and the second
is that there is a common question of law or fact that would arise if such persons made separate suits.
The phrase ‘series of transaction’ means a series of acts that cause damage to some person. For
instance, a car hit electric poll which caused fire, which in turn, resulted in the burning of houses.
Common question of law or fact means that all the parties share at least one common litigation
interest in the form of an issue of law or fact. It refers to those questions of law or fact arising out of the
claims in a particular case before the court.
Article 36(5) provides an instance whereby the plaintiff does not know who caused the damage to
him-from among several persons-and who is to pay him. In such instance, he can join them. One of the
defendants is liable to him, but he does not know who is to be ultimately held liable.
39/1 a court does not dismiss a case for the reason that there is mis-joinder or non-joinder of parties.
If a party is not joined or is improperly joined, the appropriate measure is not to dismiss a case but to drop
a party improperly joined and demand substitution, and proceed with the parties before a court. If there is
non-joinder, the court shall proceed with the case irrespective of such non-joinder. If there is improper
joinder of defendants, the plaintiff should be given the option to drop the defendants improperly joinded or
to proceed with separate suits.
Thus, in as far as permissive joinder is concerned, there is no requirement that all the parties whose
right to relief arise from the same transaction should join as plaintiffs or that the plaintiff should join all
defendants as to whom his right to relief is alleged to exist where there would be common questions of law
or fact.
Another type of joinder of parties is a mandatory one, which is usually known as joinder of
indispensable parties. In mandatory joinder, as name itself implies, parties are under obligation to bring a
joint action or defense. There is no choice given to parties other than a joint action or defense.
Mandatory joinder applies to both plaintiff and defendant. Except for Article 36(3) and (4), which
applies to joinder of defendants, the Civil Procedure Code does not have an explicit rule on mandatory
joinder of plaintiff. This may be because mandatory joinder is a question of substantive law than procedural
rules. It is the rules of substantive law that require that a right should not be exercised otherwise than by or
against all persons concerned. Mandatory joinder applies to certain categories of persons. The first category
consists of persons required by substantive law to exercise their rights jointly at a time. For example, joint
owners, joint creditors or debtors, husband and wife over common property, etc. In all of these cases, the
interest and claim belongs to all of them and not to one of them only. All of them are concerned. That is
why they are considered to be indispensable party. The absence of one will necessarily affect one’s right.
The other category comprises of those who can be affected by a decision given in their absence. If a
decision affects persons who are not made a party to a suit, such persons are considered to be important for
making a decision and should be made a party from the very beginning. This includes, for example, persons
who are entitled to oppose the judgment under Article 358.
What will be the consequence if there is non- joinder of an indispensable party? Does it lead to failure
of a suit? Does the rule under Article 39 apply in this case?
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If the mandatory joinder is related to a defendant, there is no problem in case there is a non-joinder of
indispensable party defendant. In case of non-joinder of defendant, the case is not dismissed. The court shall
order the joinder of such party, by issuing summon on him. He cannot refuse to be a named defendant. Thus,
in case of non- joinder of a party defendant, the rule under Article 39 40(2) applies and the court makes him
a party.
Another option available is to dismiss a case if a party plaintiff refuses to be added as a party plaintiff.
This is because it is an indispensable party that is not joined and hence non- joinder in such instance should
not produce similar effect as in the case of non-joinder of permissive party plaintiff. Thus, according to this
option, the parties are not under obligation to exercise their rights jointly, and if one does not join or refuses
to be joined, the case shall be dismissed.
Parties are allowed to join even unrelated claims. For instance, a plaintiff could join cases over
contract with tort and bring a single action against a defendant. Article 217 of the Civil Procedure Code.
The exception to this rule is provided under Article 218, which provides that claims for the recovery
of immovable property may not be joined with other kinds of claims except those involving such property.
Another exception is provided under Article 219. A claim by or against an executor, administrator, or
heir in his representative capacity cannot be joined with a claim by or against him in his personal capacity.
With the exceptions of these cases, a single plaintiff or plaintiffs with a joint interest may unite any number
of claims against the same defendant or the same defendants jointly, so far as such joinder does not result in
delay of considering a case or an embarrassment to defendant. (See, Art 221 of Cv. Pr. C)
Intervention is a mechanism by which a party is brought into a pending case to present a claim or
defense. It is different from joinder of parties. Joinder is an issue that comes at the beginning of a suit, while
intervention is a question that comes into picture after a suit undergoes some steps.
There are two types of intervention. One is made by an application of a third party himself, which is
provided under Article 41 of the Civil Procedure Code. It is a party himself who approaches a court to
intervene in a suit.
Another type of intervention is as of obligation. This is provided under Article 42. The Public
Prosecutor is under obligation to intervene in some civil cases
The phrase “interested in a suit between other parties” means a party’s interest that is to be affected.
What remedy is available to a party whose application for intervention is rejected?
Article 41 does not provide a remedy in case a third party’s application for intervention is rejected. In
one case decided by the Federal Supreme Court, the Court admitted the appeal of a party whose application
for intervention was dismissed by the High Court, and ordered the High Court to allow the intervention
requested by him. The Supreme Court said that his non-intervention causes another suit to be filed by him
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after a decision is made by the High Court. It stressed that this would cause multiplication of lawsuits and
would amount to wasting the precious time of a court on a single cause of action.
Third party practice, which is also known as impleader, is the procedural device enabling the
defendant in a lawsuit to bring into a suit an additional party who may be liable for all or part of the original
plaintiff’s claim against the defendant. Article 43(1) says “may” means it is optional.
Once he is ordered to be a party, he proceeds like a defendant in a normal action.
The defendant must establish that he is entitled to indemnity or contribution from the third party at a
time he seeks to join the third party.
3. 8. Change of Parties
- Art 48, The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue
survives.
As per art 53,it means that if one of the parties dies after the hearing of the case is concluded and
what remains is giving a decision. In such case, the court is not prohibited from making a decision. This is
because the only thing that remains after the conclusion of hearing of cases is to pass decision.
CHAPTER FOUR
PLEADINGS AND PRE-TRIAL PROCEEDINGS
4.1. Pleadings
4. 1. 1. Definition and Purposes
This definition by way of listing what falls in the category of pleadings is not an exhaustive one. So
long as it is related to the subject matter of a suit, any formally written statement submitted to a court is
considered to be pleadings.
The purposes of pleadings
Pleadings serve various purposes. The following are the main ones.
A: They provide the defendant with notice of the suit and enable him to prepare his defenses
accordingly.
B: They provide a summary of the claims and defenses of parties to a court, which enables a court to
frame the appropriate and relevant issues that need decision.
C: They fix(frame) the issues to be decided, and in a way, limit the scope of litigation between parties
and determine the evidences to be used by the parties. Article 248 of the Civil Procedure Code.
D: They guide the parties and the court in the conduct of cases.
E: They try to expedite litigation. s.
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4.1.3. Major Types of Pleadings
Statement of defense is a pleading produced by the defendant. It is the pleading that contains material
facts on which the defendant relies for his defense.
Failure to plead means that the plaintiff omits some facts he could have alleged. The remedy for
failure to plead at the beginning is to request an amendment of pleading. In the absence of permission to
amend the pleading, the plaintiff is not allowed to raise new issues at a trial and introduce evidence unless
the court frames issues by its own motion using the power given to it under Article 251.
An alternative pleading is optional grounds of claims or defenses relied on by a party. Article 224(1)
Alternative pleading does not mean, for example, that the plaintiff is entitled to double recovery for the
same harm. He is merely basing his claim on optional grounds in order to maximize such claims. This is
provided under Article 239.
When the defendant raises counter claim in his statement of defense, he becomes plaintiff. This is
because he is raising a new claim against the claim made by the plaintiff. That is why the rule under Article
215(2) says that the defendant shall pay court fee. Article 215(2) says that “The prescribed court fee shall be
paid upon the filing of a statement of defense containing a counter claim.
A party can request amendment at any time before a court renders decision. So long as it is necessary
to determine the real dispute between the parties, it can be demanded and allowed by the court at any time.
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4.2.1. Service of Process
A statement of claim filed to a court is to be examined by the registrar as well as the judge. If it
passes the scrutiny of the Registrar and judge, which means that it fulfills both technical and legal
requirements, the court proceeds to notify the opposite party of the fact that a suit is made against him. This
notice is made possible by issuing and serving summons or notice on him. In this section, we discuss issues
pertaining to summons.
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This mode of service is considered to be the least effective mode of service. It is the final mode of
service used when all other modes of service are not applicable. by affixing a copy of summons in public
areas, publication in newspaper, etc. It is a mode used where all other modes cannot be applicable.
What if a person served refuses to sign an acknowledgment?
The effects of refusal to sign acknowledgment are provided under articles 103 and 105(2). The court
orders a fresh summons or substituted service or the court may consider that the person is properly served
and proceeds with the case. This is when the serving officer returned the summons to the court and
produced an affidavit as to the facts that prevented him from serving the summons.
Any defendant against whom a decree is passed or order made exparte or in default of pleading may,
within one month of the day when he became aware of such decree or order, apply to the court by which the
decree was passed or order made for an order to set it aside by showing sufficient cause.74(2)
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Secondly, at the first hearing, the court may give judgment, in whole or in part, on the basis of the
admissions that the parties have made in their pleadings or on the oral examination.
1.2.1. Agreement on Issue
- parties by themselves may agree as to the question of fact or law to be decided between them. In
such a case the civil procedure code Art. 252
1.2.2. Parties Not at Issue
- If the defendant admits the allegations or the material propositions of the plaintiff, there is no issue
to be disposed by the court. In other words, where a party admits the material proposition of the other, the
parties are not at issue and the court will, at once, pronounce judgment in favor of plaintiff. 254
1.2.3. Deposition of issues at the First Hearing
Art. 255 to determine the issues at the first hearing, and pronounce judgment accordingly.
where the issue or issues framed are issues of law. In this case, the court may adjourn the hearing to
enable the parties to martial their legal arguments, but it should not set a trial. This is because no evidence
will be introduced. The same will be true on issues, which can be resolved entirely based on the
documentary evidences(like ownership of immovable property) , which are already delivered to the court.
However the court should be careful to decide on whether the issue is solely dependent on the doc martial
documentary evidences which are submitted to the court at the first hearing. If there is a need for further
evidences, which includes witnesses, the case will necessarily be adjourned to trial.
CHAPTER TWO:
THE TRIAL AND OTHER PROCEDURES
The Civil Procedure Code regulates:
1. The production of evidence, that is, how witness and documentary evidence are brought before the
court,
2. The conduct of trial, and
3. The giving of the judgment and passing the decree.
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2.1 Ordinary Proceedings
2.1.1 Production of Evidence to the Court
What does a plaintiff or a defendant do when he files his pleading?
According to Art. 223[1][a] and 234[1], when a party files his pleading, he includes a list of witnesses
to be called at the trial, together with their address and the purpose for which they are to be called.
But, there are circumstances where a witness whose testimony is necessary and cannot be brought
before the court.
Where a witness is not in a position to testify in court because of physical incapacity or because of
other causes, Article 122 provides that such witness may be examined on commission.
There is another way of hearing or admitting the testimony of a witness. This other way is that, if
such witness is required by neither party to be examined, he may be permitted by the court to give his
testimony by affidavit. This means that a witness may put what he knows about the fact in issue by an
affidavit and submit the same to the court. However, if either party bona fide or genuine desires the
production of a witness for cross-examination, and that such witness can be produced, affidavit may not be
given. Note: here that where evidence is given by affidavit, the witness is not present for cross-examination
or examination by the court, the court or the parties would not have a chance to observe his demeanor and
other factors that affect his credibility. So, the court should use its power of allowing a witness to testify by
affidavit in rare and exceptional cases. [Art. 204/5]
As you know, documentary evidence is classified as real proof as opposed to oral testimony. Real
evidence includes written documents and demonstrative evidence. Photographs, recordings, and tangible
objects like the murder weapon or a broken glass would be classified as real proof..
Art. 264 (1) of the Civil Procedure Code provides that” Any person present in court may be required
by the court to give evidence or to produce any document then and there in his possession or power “.
Where a party to the suit who has been ordered to produce a document failed to do so, the court may
pronounce judgment against him or order like warrant of arrest[Art.267 of the Civil Procedure Code] when
there is no lawful excuse like privilege and confidentiality.
1. Order of Proceeding 258ff
What is burden of proof?
Burden of proof means the obligation to provide evidence necessary to establish a disputed fact or a
degree of belief in the mind of the court.
Two concepts are involved under burden of proof: burden of persuasion and burden of going forward
with the evidence.
Burden of persuasion is the ultimate burden of convincing the court of an issue, and it does not shift
during the trial. The burden of going forward with the evidence is on the plaintiff at the start of the trial. But
this burden may shift to the defendant if defendant admits the allegations of the statement of claim and has
raised what we have called affirmative defences. According to Art. 258[1] of the Civil Procedure Code:
Discuss what preponderance of evidence is?
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Plaintiff sued defendant to recover damage for non-performance of contract. Defendant denied that
there is a valid contract or alternatively that if a valid contract is found to exist, he has performed it or
alternatively that if he is found not to have performed the contract, he was prevented by force majeure, and
if force majeure is not found to exist and plaintiff has suffered no damages.
What are the issues?
We could have several issues in this case. Some of them are:
1. Is there a valid contract?
2. If there is a valid contract, does the defendant perform its duties or not?
3. If he has not performed the contract, was he really prevented by force majeure?
4. If there was not force majeure, has plaintiff incurred damages or not?
2. Production of Evidence by the Parties
With what manner witnesses are examined?
According to Art. 261 of the Civil Procedure Code, there are three stages to examination of witnesses.
These are:
1. The examination-in-chief;
2. The cross-examination;
3. The re-examination
What is the purpose of these three stages?
If plaintiff has called three witnesses to prove his case, he is the proponent and defendant is the
opponent. In this regard, the proponent tries to bring out the evidence that will support his version of the
case and that evidence only, and the opponent then tries to destroy the testimony of the witness, and the
proponent tries to rehabilitate that testimony.
Following this, Art. 263 of the Civil Procedure Code stipulate the form of questions as follows:
1. Questions put in examination-in-chief shall only relate to facts relevant to the issues to be
decided and only to such facts of which the witness has direct or indirect knowledge.
2. No leading question shall be put to a witness with out the permission of the court.
3. Question put in cross-examination shall tend to show to the court what is erroneous,
doubtful or untrue in the answers given in examination-in-chief. Leading questions may be
put in cross-examination.
4. No question shall be put in re-examination except for the purpose of clarifying matters,
which have been raised in cross-examination.
3. Power of the Court during production of Evidence
Under the adversarial system of litigation, which our system of litigation has adopted, the role of the
court is minimal with regard to the examination of witnesses. This role in the adversarial system is said to be
minimal only when it is compared with the inquisitorial system of litigation. However, the Ethiopian Civil
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Procedure Code has given the courts broad power with respect to the examination of witnesses and the
production of documents at the trial. Although Ethiopia has adopted the adversarial system of litigation and
the principle of party presentation, this is modified by giving the judge a potential degree of control over the
conduct of the litigation.
# ‘open’ and ‘in camera’ trial are - Means where the evidence is not to be given in open court, it
may only be heard in camera, that is, the judge will take evidence in chambers in the presence of the parties
or their advocates.
2.1.2 Judgment and Decree
On the basis of Art 273, we are coming closer to the culmination the life of a civil suit. That is, once
we address issues with regard to pre-trial stage and trial stage; now we will embark on the final section
which deals with judgment and decree.
Who should pronounce judgment/ how should it be pronounced?
As it is clearly indicated under Art. 181[2], where a case has been heard by more than one judge, the
decision of the majority shall be the judgment of the court: provided that any judge dissenting from the
decision of the majority shall state in writing the decision which he thinks should be made together with the
reason therefore.
Which are the issues on which judgment should be given? 183
Since the judgment itself cannot be executed, it is necessary that the court, after delivering the
judgment, reduce the operative part of the judgment. Accordingly, the operative part of the judgment w/c is
decree must contain:
1. The number of the suit,
2. The names and description of the parties,
3. The particulars of the claim,
4. A clear order to do or to abstain from doing something or to pay a definite sum of money or to
deliver a particular thing or surrender or restore immovable property.
5. The amount of costs incurred, and by whom or out of what property they are to be paid,
6. Such particulars as are necessary to render the decree susceptible of execution; and
7. Where the decree can be executed by the personal obedience of the judgment debtor, the time
within which it shall be executed.
What is the significance of reducing judgment into decree?
The very reading of Art 185 of the Civil Procedure Code envisages that a decree for the delivery of
movable property shall also state the amount of money to be paid as an alternative if the property cannot be
delivered.
How decree should be enforced?
Where the suit is for the recovery of immovable property together with rent or mesne profits, on the
basis of Art. 187 of the Civil Procedure Code, the decree should be for the possession of the immovable
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together with the rent or mesne profits, which have accrued prior to the suit and until the delivery of
possession to the decree holder.
2.2 Special Proceedings
Generally, summary procedure refers to a procedure by which the plaintiff may prosecute his claim
without the necessity of instituting a full-scale suit. Similarly, accelerated procedure provides for the
immediate hearing of certain kinds of cases speedily and without a full-scale suit, because the nature of the
case requires and renders suitable an immediate disposition.
2.2.1 Summary Procedure
In Ethiopia, on the basis of Art 284 of the Civil Procedure Code, summary procedure is available
where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant and
arising:
1. Upon a contract, express or implied such as on a bill of exchange, promissory note or other simple
contract debt, or
2. On a bond or contract written for payment of a liquidated amount of money, or
3. On a guarantee where the claim against the principal is in respect of a debt or liquidated amount.
Therefore, a procedure is provided by which the plaintiff may recover the claim without the expense
attendant upon bringing an ordinary suit. The crucial question is the liquidated amount of the debt. The
plaintiff must be entitled to recover a specific sum of money ascertained at the time of suit. If the defendant
accepted goods under a contract, but refused to pay the price, a summary suit for the price would be proper,
since the amount claimed is liquidated.
Example: Suppose that A executes an instrument by which he promises to pay B Eth. $ 5,000 if he
does not deliver certain goods within six months. The instrument is not a bill of exchange, promissory note
or cheque, since the obligation is conditional upon A’s failure to deliver the goods, but the case should be
considered to involve a simple contract of debt for a liquidated sum. If the contract has been breached by
A’s failure to deliver the goods, B is entitled to recover Eth. $.5,000, a simple contract of debt and summary
procedure would be authorized on that ground.Art 284 of the Civil Procedure Code,
where the plaintiff wishes to employ the summary procedure, he endorses his statement of claim
“Summary Procedure” and submits an affidavit, prepared by him or any other person who can swear
positively to the facts, verifying his cause of action and the amount claimed, and stating that in his belief
there is no defence to the suit.
In the case of multiple defendants, where not all are entitled to leave to appear and defend, the court
is to grant leave only to a defendant who has defence to the claim of the plaintiff. As to the others, the
plaintiff is entitled to a decree on which he may obtain execution without prejudice to his right to proceed
with the suit against the defendant or defendants given leave to appear and defend.
Where leave, whether conditional or unconditional, is given, the court may make orders with respect
to the filing of pleadings, framing of issues and the like, or may order the case to be heard immediately. If
the issues are clear, it should order an immediate hearing, since the purpose of the summary procedure is to
enable the plaintiff to have his claim determined as soon as possible. Once the court allows the defendant to
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defend the case, the summary proceeding will be turned to ordinary proceeding and the case will be
handled as any other ordinary cases.
Finally, on the basis of Art 292 of the Civil Procedure Code, if the court has entered judgment for the
plaintiff, but subsequently discovers that the service of the summons was not effective or that there is good
cause for doing so, it may set aside the decree in favor of the plaintiff and give the defendant leave to appear
and defend, if it seems reasonable to do so. The court may also stay or set aside execution and impose terms
as it sees fit.
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1) With intent to delay the case or avoid the process of the court or obstruct or delay execution of
any judgment that may be entered against him, has left or is about to leave the local limits of the court’s
jurisdiction or has disposed of or removed property from such limits; or
2) Is about to leave Ethiopia under circumstances affording a reasonable probability that the
plaintiff may be obstructed or delayed in the execution of any decree that may be passed against the
defendant.
We will first consider the issuance of a temporary injunction to prevent dealing with property. In this
regard, an injunction may be granted if the court is satisfied that:
1) The property in dispute is in danger of being wasted, damaged or alienated by a party to the
suit; or
2) The property in dispute is in danger of being wrongfully sold in execution of a decree, or;
3) The defendant threatens or intends to remove or dispose of this property with a view to
defraud his creditors.
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In such cases, on the basis of Art 154 of the Civil Procedure Code, the court may grant a temporary
injunction to restrain the act or may make any other order as it thinks fit. And, the order is effective until the
disposal of the suit or further order.
But, in line with Art 158 of the Civil Procedure Code:
Any order for an injunction may be discharged, or varied, or set aside by the court, on
application made thereto by any party dissatisfied with such order.
Where the injunction has been granted against a body corporate, on the basis of Art 159 of the Civil
Procedure Code, it is binding on the corporation as well as the members and officers whose personal action
it seeks to restrain. This means that in case of disobedience, the property of the corporation may be attached.
On the basis of Art 156(1) of the Civil Procedure Code, ultimately violation of an injunction may be
punished in two ways: by the attachment of the property of the person or by contempt proceedings under
article 449 of Criminal Code.
Finally you have to note that on the basis of Art 156 (2) of the Civil Procedure Code, where property
has been attached, the attachment remains in effect for a maximum of one year, and if the disobedience or
breach continues, the property is sold, and out of the proceeds the court awards such compensation to the
other party as it thinks fit.
Interlocutory Orders
On the basis of Art 165 of the Civil Procedure Code, an interlocutory order may be broadly defined as
any order that the court considers necessary or expedient to be made pending the determination of the suit.
The court may at any time make such orders upon application by one party and notice to the other; this
includes orders for the custody of a minor and the payment of alimonies.
164- Where the subject matter of the suit is money or some other property capable of delivery, and
any party thereto admits that he holds the money or property as a trustee for another party or that it belongs
or is due to another party, the court may order the same to be deposited in court or delivered to such last-
named party with or without security, subject to further direction of the court.
2.3.6 Habeas Corpus
A Habeas Corpus petition is a petition filed with a court by a person who objects to his own or
another's detention or imprisonment. The petition must show that the court ordering the detention or
imprisonment made a legal or factual error.
According to Article 15(2)i of the CPC, we can see that the High Court is given an exclusive
jurisdiction to try suits regarding to Habeas Corpus. On the other hand, the Federal Courts Proclamation
No. 25/1996 in its Article 5(10) clearly stated that the power of adjudication to application for Habeas
Corpus is vested on the Federal Courts. Furthermore, inferring from the cumulative understanding of
Articles 11 & 14 of the proclamation, we can understand that the material jurisdiction is given to the High
court of the Federal.
Following the application, the High Court immediately issues a summons directing the person having
custody over the restrained person to appear before the court together with person restrained on day to be
fixed in the summons and to show cause why the restrained person should be released. On such day, the
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court investigates the truth of the application and check whether the restraint is unlawful. If it is proved that
it is unlawful the court then must order the immediate release of the person under custody.
2.3.8 Cost
The court then fixes the cost to be paid, after giving the other party to challenge the claim. This
judgment, like the judgment is appeallable.
CHAPTER THREE
REVIEW OF JUDGMENTS
3.1 Reviews by Court of Rendition
The court of rendition revises its own judgment. Generally, there are three bases; namely, Procedural
Irregularity, Newly Discovered Evidence and Opposition in which the court of rendition will revise its own
decision.
Irregularity is quite different from mistake, both in its concept and effect. If the court, which rendered
the judgment, understands that there were procedural irregularities, i.e., non-compliance with the provisions
of the Code, and such irregularities have substantially affected the disposition of the case to the determinant
of one of the parties, it may, on its own motion or on motion of either party, set aside the proceedings in
whole or in part as irregular, amend them, or make such other order as may be appropriate.
If an irregularity occurred at the trial, the proceedings of the trial would be set aside, but those
which took place at the first hearing will remain binding.
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Another important point that we have to remind at this point is, unless an application to set aside the
proceedings on grounds of irregularity has been made to the trial court, the occurrence of the irregularity
may not be taken as a ground of appeal. The only exception would be an irregularity arising from an alleged
lack of material jurisdiction or one alleged to exist in the judgment or decree.
Any irregularity is deemed to have been validated where no appeal is taken from the judgment or
where the judgment is confirmed by the appellate court.
Review of the judgment on the ground of newly discovered evidence. Per article 6 of Cvi. Pr. C, a
party may apply for review of the judgment in the court of rendition on the ground of newly discovered
evidence where:
-No appeal has been taken from the judgment or no appeal lies;
-Subsequent(After) to the issuance of the judgment, he discovers new and important matter such as
forgery, perjury or bribery, which despite the exercise of due diligence, was not within his knowledge at the
time of giving the judgment; and
- Had such matter been known at the time of giving the judgment, it would have materially affected
the substance of the decree or order the review of which is sought.
There are three criteria that should be fulfilled, so that the court of rendition can review its own
judgment. These are:
- the evidence must be discovered after the judgment is rendered,
- the newly discovered evidence must substantially affect the decision, and
- the evidence must be of such nature as to suggest improper conduct, which tainted the
judgment with fraud. i.e., forgery, perjury, bribery or the like.
3.1.3 Opposition
Opposition can be raised by a person who, though not a party, is affected by the judgment. Any
person who should or could have been made a party to a suit and whose interests are affected by a judgment
in the suit may, if he was not a party to the suit, file opposition to the judgment before the judgment is
executed.
Per article 358 of the Cv.Pr.C, there are three conditions required where by a party filing opposition
should fulfill. These are:
He/she should or could have been made a party;
His/her interests are affected by the judgment rendered in his absence; and
He/she is filed prior to execution of the decree
Question
What if such party was aware of the existence of such suit prior to judgment?
Although there is no requirement to this effect in the Code, it is submitted that, except for
indispensable parties, the application to file opposition should be rejected if the applicant was aware of the
suit prior to judgment.
An appeal, then, means a review of the case and not a retrial of the case by the appellate court.
Since the judgment on the issue of liability was for the plaintiff, his appeal is called a cross-appeal; as
to that issue, the plaintiff would be the cross appellant and the defendant would be the cross respondent.
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3.2.2 Types of Appeal
1.Appeal on Judgment
If, for example, the plaintiff claims the defendant for payment of compensation for the damage
occurred due to non-performance of the contract and the court after certain procedure is applied decide the
case in favor of the plaintiff, in which the defendant to pay the claimed amount of money, then we can say
that an appeal against such judgment is Appeal on judgment.
Where an appeal is filed after the period of limitation, fixed by the appropriate law is already lapsed,
the Registrar must refuse to accept the memorandum of appeal, and he will inform the appellant that he may
within 10 days file an application for leave to appeal out of time See article 324(1) of the Cv.Pr.C. The time
limit must be observed scrupulously, since it is in the nature of, a period of limitation.
Cross-objections 340
The party in whose favor judgment on the merits was entered may have certain objections to the
decree or order, which he may want to raise in the appellate court, and if so, he may file what is called a
cross-appeal.
Question: can you identify the distinction between cross-objection and cross-appeal?
There is no substantive distinction between a cross-objection and a cross-appeal, and the same
grounds of attack may be raised by both methods. The distinction refers solely to whether the successful
party filed an appeal to challenge certain aspects of the decree, in such case i.e., cross-appeal or whether he
made his attack only in response to an appeal filed by the other party, that is, by a cross-objection.
4.Additional Parties
Illustration: If suit were brought against A and B as joint owners of property, and the plaintiff
appealed only against A, the court should bring B in as a respondent; he is an indispensable party, and in his
absence the appeal cannot proceed.
5.Stay of execution
The fact that an appeal has been taken does not operate to stay the proceedings or to prevent
execution of the decree. Execution can be stayed only upon a showing that substantial loss will result if the
stay is not granted and that appellant's furnishing security for the performance of the decree. A stay of
execution may be ordered by the appellate court or by the court of rendition or by the president of the court,
which rendered the decree if an application, is made to that court before the expiration of the time allowed
for appeal. See article 332-334 of the Cv.Pr.C. Since both the appellate court and the subordinate court are
authorized to grant stays, it seems implicit that the subordinate court should only order a stay if an appeal
has not been taken.
3.2.6 Judgment on Appeal
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1. Reversal for substantial error
After the appellate court has heard the parties or their pleaders and has rented to such part of the
proceedings, e.g., the record, as is considered necessary, it pronounces judgment. The judgment may
confirm, vary or reverse the decree or order from which the appeal is taken. . See article 348 of the Cv.Pr.C
2 .Remand
When an appellate court sends an appealed case back to the trial court for further action, the case is
said to be remanded
CHAPTER FOUR
EXECUTION OF DECREES
Jurisdiction in Execution
Normally, the court, which passed the decree, has a jurisdiction to execute such decree. However, in
certain circumstances, it may be transferred for execution to another court.
4.1.1 Transfer for Execution
Ordinarily, the court which rendered the decree or to whom execution was delegated by the appellate
court or referred by the court of cassation will execute it. But if execution by that court is not feasible, the
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court may, upon its own motion or application of the decree-holder, send the decree to another court for
execution. Art.372 of Cv.Pr.C,
Question: Do you think that the court, which has no local jurisdiction, can execute a judgment?
Explain. (Yohanan Y. Answer) The transferee court should not refuse to execute the decree on the ground
that it doesn't have local jurisdiction. It can refuse exceptionally to execute apparent illegal and where the
transferring ct lacked material jurisdiction to render that decree.
4.1.2. Powers of the Court upon Execution
Following are some other examples of questions that must be raised before the court executing the
decree:
1. Claim of compensation for damage caused by the judgment-debtor to property prior to
surrendering possession;
2. Claim by the judgment-debtor that the decree-holder took in execution property not included in the
decree or in excess of the decree;
3. Claim for refund or deficiency following execution on mortgaged property where an error in the
amount of mortgage is subsequently discovered.
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It may be that an application is made by a decree-holder against the judgment-debtor for execution of
a decree for the payment of money at the same time that the judgment-debtor has applied for execution of a
decree for the payment of money against the decree-holder, which was obtained in a separate suit. Some
how, it is similar to counter claim brought by the defendant when the plaintiff institute a case against him.
Where both parties have made such applications, their decrees are called cross-decrees, and the
execution of such decrees is governed by special rules. In order for the rules relating to cross-decrees to
apply, the following conditions must be satisfied: 397
1. Both decree-holders must make application to the same court for execution of their decrees;
2. The decrees must be obtained in separate suits;
3. Both decrees must be for the payment of definite sums of money;
4. The parties must be the same in the sense that the decree-holder in one of the suits was the
judgment-debtor in the other suit and the parties were involved in both suits in the same capacities; and
5. Both decrees are capable of execution at the same time by the court. The holder of a decree
passed against several persons jointly and severally may also treat it as a cross-decree in relation to a
decree passed against him singly in favor of one or more of such persons.
Illustration
Where A has a judgment against B for Eth. $ 1,000 obtained on a debt owed by B to him; and B has a
judgment against A for Eth. $2,000 on a debt owed to him by A and both apply for execution. The court
must treat the decrees as cross-decrees and apply the special rules as to their execution.
Decrees may also be treated as cross-decrees where the assignee of a decree assumed judgment-debts
due by the assignor to the judgment-debtor or where the judgment-debtor himself holds a decree against the
assignee. See article 397(2) of the Cv.Pr.C
Illustration
Suppose that A holds a decree against B and B holds a decree against A Passed in a separate suit in
the same court. A assigns his decree against B to C. When C seeks to enforce that decree against B, B's
decree against A is not considered a cross-decree, since it runs only against A and not against C.
However, if C assumed A's obligations under the decree held by B against A, both decrees are cross-
decrees, since, in effect, C now has a decree against B and B has a decree against C.
4.3. Attachment and Sale
4.3.1. Methods of and Objections to Attachment
#Methods of attachment
You will recall that when the decree-holder files his application for execution, he must indicate
whether he wishes the decree to be executed by the attachment and sale of property, and if he does, the
application for attachment must be accompanied by certain particulars. Note also that the application for
attachment must be for the attachment of specific property, and the Code contains directions as to how
various types of property are to be attached.
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the judgment-debtor will not be deprived of the necessities of life and the opportunity to earn a
livelihood. See article 404 of the Cv.Pr.C. Those properties which are exempted from attachment
In the case of movable property in the possession of the judgment-debtor, other than agricultural
produce, the attachment is made by physical seizure of the property; the execution officer must keep the
property in a safe place and be responsible for its custody. See article 406 of the Cv.Pr.C
Where the property to be attached is a share in the capital of a corporation the attachment is
made by a written order prohibiting the person in whose name the share may be, i.e., the judgment-debtor or
the person holding the share on his behalf, from transferring the share or receiving any dividend, and the
corporation from registering any transfer of the share. See article 409 (2) of the Cv.Pr.C
Where other movable property or a sum of money in the possession of someone other than the
judgment-debtor is to be attached, the attachment is made by a written order prohibiting the person in
possession from giving it over to the judgment-debtor. See article 409 (3) of the Cv.Pr.C
Where the property to be attached consists of the share or interest of the judgment-debtor in
movable property belonging to him and another as co-owners, the attachment is made by a notice to the
judgment-debtor prohibiting him from transferring the share or interest or charging it in any way. See article
410 of the Cv.Pr.C
Attachment of salary is to be made by an order to the employer, directing that the amount be
withheld either on one payment or by monthly installments. See article 411 of the Cv.Pr.C
The decree-holder may also attach a negotiable instrument payable to the judgment-debtor or
endorsed over to him. In order to prevent further negotiation of the instrument, the instrument itself must be
seized by the execution officer and brought into court. Since the person obligated to pay will insist on the
surrender of the instrument, this procedure also prevents the judgment-debtor or anyone else from receiving
payment. See article 412 of the Cv.Pr.C
10. Objections to attachment
Property may not be subject to attachment either because it is exempted from attachment or because it
is not the property of the judgment-debtor. See article 418 of the Cv.Pr.C
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1. the property to be sold and the estimated value thereof;
2. any encumbrance to which the property is liable;
3. the amount for the recovery of which the sale is ordered;
4. the terms and conditions of the sale and the manner in which and the time within
the purchase price shall be paid; and
5. all other information which the court considers material for a purchaser to know in order to
judge the nature and value of the property. See article 423 of the Cv.Pr.C
The decree-holder may not bid at the sale without the written permission of the court, and a copy of
the order granting permission must be given by the court to the auctioneer. The purpose of this restriction is
to enable the court to impose conditions on the decree-holder if it" thinks fit. See article 430 of the Cv.Pr.C
At any time before the property is knocked down, that is, before the auctioneer hammers the sale to a
close and declares the highest bid, the sale must be stopped if the debt and costs, including the costs of the
sale, are tendered to the auctioneer or proof is given to his satisfaction that this amount has been paid into
the court which ordered the sale. See article 427of the Cv.Pr.C.
Where the highest bid does not reach a sum equal to the value specified in the proclamation of sale,
the property is not to be sold. Instead a second sale by auction must be held after the issuance of a fresh
proclamation in accordance with the prescribed rules. At the second sale, the highest bid, whatever its
amount, must be accepted and the property is sold. See article 428(1) of the Cv.Pr.C
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CHAPTER FIVE
RES JUDICATA AND SPLITTING OF CLAIMS
According to Art 8 of the Civil Procedure Code and Art. 5. No court shall try any suit in which the
matter in issue is also directly and substantially in issue in previously instituted civil suit between the same
parties, or between parties under whom they or any party claim, litigating under the same title, where such
civil suit is pending in the same or any
Res Judicata and Issues of Law
The general principle is that once an issue has been decided, it cannot be re-litigated in a subsequent
suit by parties bound by the prior decision notwithstanding that the law is changed or the prior decision is
found to be erroneous. but is not res judicata in a suit involving a different cause of action.
#Relief not Granted
The second aspect of the scope of res judicata is provided under Art 5(3) of the Civil Procedure Code.
According to this article: “Any relief claimed in the former suit which has not been expressly granted by the
decree passed in such suit shall be deemed to have been refused.”
5.1. Splitting of Claims
1.2.1. General Principles
According to Art 216 of the Civil Procedure Code:
1. Every suit shall, as far as practicable, be framed so as to afford ground for final decision upon
the subject matter in dispute and to prevent further litigation concerning them.
2. Every suit shall include the whole of the claim, which the plaintiff is entitled to make with
respect to the cause of action unless he intentionally relinquishes any portion of his claim so as to bring the
suit within the jurisdiction of any court.
3. A plaintiff who omits to sue in respect of, or intentionally relinquishes, any part of his claim
shall not afterwards sue with respect to the portion so omitted or relinquished.
4. A person entitled to more than one relief with respect to the same cause of action may sue for
all or any of such relief, but if omits, except with the leave of the court, to sue for all such relief’s, he shall
not afterwards sue for any relief so omitted.
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However, the mere fact that separate properties are involved does not necessarily mean that there are
two causes of action. If both properties were injured by a single act, it would be a single cause of action.
2. Omitting of Relief
A party may be entitled to more than one relief with respect to the same cause of action. In such a
case, he may sue for all or any of such reliefs. But if he omits, except with the leave of the court, to sue for
all such reliefs, he shall not afterwards sue for any relief so omitted.
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Definition
The rules governing the mechanisms, under which crimes are investigated, prosecuted, adjudicated,
and punished. It includes the protection of accused persons' constitutional rights.
Law is broadly divided into substantive and adjective( divided into procedural and evidence). The
substantive law defines rights, duties, and liabilities. But, its implementation calls for the adjective laws.
1
Erica Faircild and Harry R. Dammer, Comparative Criminal Justice Systems, (Belmont: Wadsworth, 2nd ed., 2001), pp.
47-48.
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Procedure and evidence laws are corollaries of substantive rules. Hence, criminal procedure is part of
adjective laws.
Criminal procedure regulates the whole process of detection, investigation, prosecution, and
punishment of offenders. It also contains rules protecting the constitutional rights those apprehended for
violating the criminal law. It has double functions. It applies the criminal law. At the same time, it helps to
preserve the rights of a suspect or accused person. Hence, it is all about striking a balance between these two
interests.
Handling criminal cases is a sensitive matter as it is highly connected with human rights. For
example, arrest and investigation limit the right to privacy, movement, bodily integrity, work, etc. The
attitude of the public towards crime also leads to psychological embarrassment. Thus, it could lead to socio-
economic and psychological problems. Moreover, unlike civil cases, criminal proceedings could result in
deprivation of life, and liberty. Upon conviction, death penalty and imprisonment could be imposed. There
could also be confiscation and fine. This loss of property is accompanied by social stigma. The situation is
different for civil liability. The latter has predominantly pecuniary effect. So, criminal procedure is very
much related with human rights.
Human rights are birth rights of every person. A state has the responsibility to respect and protect
them. Limitations are permitted only for the sake of protecting the rights of others and public life in
accordance with the law.
Given the value attached to human rights, they have constitutional significance in any society. That is
why it is common to find bill of rights in most modern constitutions. They do have the nature of limiting
state power. There should not be loss of life, liberty, and property without due process of law. This principle
is a manifestation of rule of law. Thus, rule of law imposes upon a state the duty to respect and protect
human rights.
Due process of law has two major components. These are substantive and procedural. The former
refers to the laws governing rights, duties, and liabilities. The legal provisions set a limit for their
application. Their substance can also be subject to dispute. For instance, vague, ambiguous, discriminatory,
or unreasonable criminal laws may be challenged on the grounds of their constitutionality. On the other
hand, the latter pertains to the means of implementing them. It does not concern with the essence of the laws
enforced. Rather the issue surrounds their mode of application. The substantive justice is more of an end.
But, the procedural one is mainly a means to achieve that end. Nevertheless, procedural matters may be
ends in themselves. Fair trial, the right to be heard, etc are rights to be upheld for their own sake besides
their instrumentality in attaining a fair result. In addition, the formulation of substantive rules could affect
procedural issues. For example, the penalty provided in the law is taken into account to decide bail or
punishment. Thus, the distinction between substantive and procedural justice is elusive.
Criminal procedure and criminal law developed side by side. The primitive society relied on self-
help. This was changed to compensating victims through public process. Then there was a shift in the
perception of crimes. They have been viewed as wrongs against the public instead of the person affected.
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This has made government to take the responsibility to have those in contravention of the criminal law to be
judged through the efforts of government institutions. The protection of the rights of a suspect or accused
has got attention through time. Thus, the development of criminal procedure rules is inseparable from the
growth of substantive criminal law.
Therefore, criminal procedure rules govern the process of detecting, arrest, investigation,
adjudication, punishment, and execution. It is connected with the enjoyment of human rights. Consequently,
it is prohibited to restrict human rights without due process of law. For the promotion of rule of law,
constitutional and other legal limitations have to be respected.
The extracted writings deal with the sources of criminal procedure in Britannia, France, Germany,
and the United States, respectively. The materials show that sources of criminal procedure rules are
inseparable from the political and legal system of a country. Thus, the sources of criminal procedure laws
have to be seen in the context of the political and legal set up of nations.
The other major sources of criminal procedure rules are a myriad of statures enacted by parliament
and delegated legislations. The role of court rulings based on common law power and interpretation of
legislations can not also be undermined.
When we come to our country, the FDRE Constitution has formally adopted a federal system. The
level of government having the responsibility of enforcing the criminal law has to be distinguished. The
FDRE Constitution lacks clarity in this regard.
Enacting a criminal law is the mandate of the Federal government pursuant to Art 55/5 of the FDRE
Constitution. But, regions can enact criminal law on matters not covered by federal criminal law. However,
the constitution is not clear about the jurisdiction of the two tiers of government over the implementation of
the criminal law.
Different arguments are forwarded. Some argue that the federal government should have the mandate
to apply the criminal law it has enacted. Others say that even though the federal government enacted it, the
regions have the responsibility to apply it. According to Art 52/2/g of the FDRE Constitution, the regions
have the power to organize police force and maintain law and order. These functions are highly connected
with the application of the criminal law.
The FDRE Constitution is silent about the layer of government having the mandate to enact criminal
procedure rules. It might be argued that the level of government responsible for the enforcement of the
criminal law should have also the mandate to proclaim criminal procedure rules.
Like other federations, criminal procedure rules are found in regional constitutions. Some regions
have also enacted criminal procedure rules. For example, Tigray Regional State has issued a proclamation
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empowering social courts to entertain petty offences.2 Addis Ababa City Administration has also enacted a
similar proclamation.3
At the federal level, the sources of criminal procedure rules are the FDRE constitution, federal
legislations, sentencing guideline to be enacted by the Federal Supreme Court, Federal Supreme Court
cassation division decisions, criminal justice and prosecution policies to be enacted, etc. At state level,
besides the federal sources mentioned, the sources include regional constitutions, policies and legislations.
To sum up, the sources of criminal procedure principles and rules have to be seen the overall
political, constitutional, and legal system of a country. In every nation, the constitution is the first legal
document to be referred to. In many countries, there has been a trend of constitutionalisation of criminal
procedure rules. Legislations also play a crucial role. The statutory sources of criminal procedure rules come
next to constitutional criminal procedure rules. There may also be case laws. These are dependent upon the
legal tradition of a state. In a federal set up, there is a proliferation of criminal procedure rules due to the
presence of two or more orders of government. There may also be regional constitutions governing the
criminal justice system. The situation found in Ethiopia has to be viewed from these perspectives.
1.3. Models of Criminal Justice Systems: the ‘Due Process’ and the ‘Crime
Control’ Models
2
See A Proclamation Enacted to Establish Social Courts in Tigray Region, Proclamation No. 14/1995(as amended).
3
See Definition of the Organization and Procedures of the Addis Ababa City Government Qebele Social Courts
Proclamation No. 12/2003.
4
James A. Inciardi, Supra note 2, p. 13.
5
Id.
6
Philip L. Reichel, Supra note 30, pp. 171-174.
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Barton Ingraham developed an intriguing and helpful model of criminal procedure that allows us to
compare and contrast procedures in a variety of nations. The application of his model to procedural criminal
law resulted in the identification of four areas in which inquisitorial and adversarial procedures differ:
1. The inquisitorial systems emphasize the screening phase of the criminal process with the idea
that a careful investigation will determine factual guilt. The adversarial systems emphasize the trial phase,
where the idea that complex rules of evidence to produce substantive results will ensure the defendant a fair
trial.
2. The adversarial systems are much more likely to restrict the involvement of the judiciary in
both the investigatory and adjudicatory process. The direct involvement of the judge in inquisitorial
systems contrasts with his or her more indirect involvement in adversarial systems.
3. Because the inquisitorial system assumes that all involved persons are seeking the truth, the
defendant is expected (though not required) to be cooperative. That cooperation includes supplying
information to investigators and answering questions at trial. The adversarial systems, on the other hand,
neither expect nor require the defendant to assist investigators. The burden of proof is on the prosecutor,
who assumes that the defendant will maintain silence.
4. The role of the judge in adversarial proceedings is primarily one of referee. The attorneys
develop and present their respective cases, and then a jury decides between the two versions of the facts.
The court in an inquisitorial system is another investigator with the added power of being able to decide
the case. The judges ask most of the questions and develop the facts while the attorneys exist more to argue
the interpretation that the court should give those facts…
A Mixed System
Islamic procedural law is a mixed system combining adversarial and inquisitorial aspects. Because
the Shari’a is a religious law based on divine command and revelation, it did not develop through judicial
precedent or legislative codification
Modern criminal justice has appeared with the enactment of the CrPC.
The code has been mainly influenced by common law legal system.
It has also civil law inclination, acceptable criminal procedure principles and rules. The lacunas can
be observed with the detail discussion of the different subject matters covered in the code. Nevertheless, the
code remains a significant input for the development of modern criminal procedure principles and rules in
the country.
CHAPTER TWO
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SETTING JUSTICE IN MOTION: IN TAKE PROCEDURES AND
INVESTIGATIVE ACTIVITIES
The operation of criminal procedure begins with the reception of information about the commission of
a crime. The information could reach the police through different channels. These are complaint, accusation
and the occurrence of flagrant offences. They serve as condition precedents to set criminal justice in motion.
Once the criminal justice is triggered, it is often followed by investigation to substantiate the case with
evidence to prove guilt. Arresting the suspect could also be made whenever the law requires or
circumstances justify.
Private prosecution
Prosecuting Criminal Offences Punishable only upon Complaint
Article 1 of the PC states that “the purpose of criminal law is to ensure order, peace and the security
of the state and its inhabitants for the public good.”
Many provisions in the special part of the PC prescribe that “whosoever… is punishable, on
complaint, with…”
Arrest
(a) By warrant
Special authorization for arrest by court based on police claim.
(b) Without warrant: (1) By a private person
At common law. Even when no warrant has been issued, the common law often permits an arrest to
be effected, a permission accorded not only to a constable but even to private persons.
Firstly, at common law a private person, without any warrant, may arrest any person who, in his
presence, commits a treason or felony or dangerous wounding.
The law does not merely permit, but requires, the citizen to do his best to arrest such a criminal.
Secondly, at common law a private person may arrest without warrant any person whom he
reasonably suspects of having committed a treason or felony or dangerous wounding, provided that this very
crime has been actually committed by someone (whether by the arrested person or not).
(ii) By a police constable
“On-scene” Arrests
A substantial percentage of arrests for a wide variety of crimes are of the “on-scene” variety. These
are arrests made during the course of the crime or immediately thereafter either at the place where the crime
occurred or in its immediate vicinity. Ordinarily on-scene arrests will be based on the officer’s own
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observation (leading to the alternative description of such arrests as “on view”), although they will
sometimes be based on the directive of a witness who has just viewed the crime.
Arrest by court warrant
The ordinary procedure for issuing warrants is prescribed by Article 53 and 54. Recognizing the
extreme gravity of the decision to order the arrest of an individual, the code has strictly limited that power.
Although any court may issue a warrant, its power may be exercised only upon the application of an
investigating police officer. And then the warrant may issue only if the police officer is able to demonstrate
two facts to the court: [1] that it is absolutely necessary that the person whose arrest is desired appear
before the court and [2] that his attendance before the court cannot be obtained in any other way.
7
Wayne R. LaFave, Supra note 18, pp. 7-8.
8
Ibid., pp. 12-14.
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Fruit of Poisonous Tree Doctrine
The concept of exclusionary rule ( Like Art. 19(5) of FDRE Con) is not limited to evidence that is
the direct product of illegal police behavior, such as a coerced confession or the items seized as a result of
an illegal search (improperly obtained). The rule also requires exclusion of evidence that is obtained
indirectly when one’s constitutional rights are violated. This type of evidence is sometimes called derivative
evidence or secondary evidence. The essence of a provision forbidding the acquisition of evidence in a
certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be
used at all and serve as a deterrence for police officers.
Current Issues: Involuntary Confessions and Art 35, CPC9
Coercive interrogation: ineffective and unlawful
Improper methods of police interrogation are known to every country in the world. And everywhere,
it is agreed that an accused’s confession of guilt which has been procured through physical violence,
psychological intimidation, or improper inducements or promises cannot be considered in evidence against
him at trial. The primary reason why involuntary confessions are excluded from evidence is that they are
unreliable indices of truth: men have been known to admit crimes of which they are innocent, simply to
escape the pain of torture or to obtain an irresistible benefit.
The case of arrest, search and seizure have to be undertaken only by the order of the court, Art. 33
require probable cause and reasonable suspicion.
33/1 - the police officer should show the likelhood of the items to be found in the premise to be
searched.
search w/o warrant-32/2 persons and premises
Hot pursuit- refer flagerancy
exigency/Urgency/emergency case -
32/2/b cumulative requirement
degree of punis't .> 3 yrs, not upon complaint
evidencial
circumstancial
requirement of information - accusation/complaint art 14 based reported
Special search warrant - 33/2 eg. unlicenced gun, illegal drugs, forged doc. etc
Art 33/3- exhibits
The mere existence of a court order is not enough to guarantee the legality of search and seizure. It
has to be also executed properly. But, it is possible to effect search and seizure in certain justified
circumstances with out search warrant.
Therefore, the procedure of search and seizure has to be carried out with due care being accorded to
the respect for human rights. The mechanism to enforce the rules pertaining to search and seizure is
exclusionary rule. Fruit of the poisonous tree should be applicable but there is no clear rule of guidelines
like for confession in the FDRE constitution but logically it applies for all evidences w/c contravenes the
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constitution.26/3 which require search and seizure to be conducted on the basis of specific law ( cr.p.c). This
might discourage the police from resorting to illegal means to secure legal end. The end should not justify
the means. The police should also be liable administratively, civilly as well as criminally 422, 420 cr.code.
Habeas Corpus latin term means 'u have the body' - Art. 19(4) + 177 - 179 of Civil procedural
code
CHAPTER THREE
POST ARREST PROCEDURES
3.1. Remand
59 - no max in cr, p.c
19/4 constn
67 - juducial denial of bail
Relevant Laws
Art 3, 5, 8, 9, 11, and 12, UDHR
Art 9 and 14, ICCPR
Art 19-21, FDRE Constitution
Art 63ff +19/6 FDREC - Bail can be granted subject to conditions, such as that the accused obtain
legal advice before their text court appearance or that the accused or a third party give a security
188- during appeal
The Criminal Justice Act 2003 has given the police the power to grant bail at the place of arrest. This
is called “street bail”.
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Unsecured bail- The defendant pays no money to the court but is liable for the full amount of bail
should he or she fail to appear.
Alternative Release Options
Release on recognizance (ROR)- The court releases the defendant on the promise that he or she will
appear in court as required.
Conditional release- The court releases the defendant subject to his or her following specific
conditions set by the court, such as attendance at drug treatment therapy or staying away from the
complaining witness.
Third party custody- The defendant is released into the custody of an individual or agency that
promises to assure his or her appearance in court. No monetary transactions are involved in this type of
release.
Citation release- Arrestees are released pending their first court appearance on a written order issued
by law enforcement personnel.
Forms of bail
The form of bail varies from jurisdiction. But the common forms of bail include:
Recognizance — a promise made by the accused to the court that he/she will attend all
required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the
court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court
orders it forfeited; this is denominated an unsecured appearance bond or release on one's own
recognizance.
Surety — when a third party agrees to be responsible for the debt or obligation of the
defendant. In many jurisdictions this service is provided commercially by a bail bondsman, where the agent
will receive 10% of the bail amount up front and will keep that amount regardless of whether the defendant
appears in court. The court in many jurisdictions, especially jurisdictions that prohibit bail bondsmen, may
demand a certain amount of the total bail (typically 10%) be given to the court, which, unlike with bail
bondsmen, is returned if the defendant does not violate the conditions of bail. This also known as surety on
the bond.
Conditions of release - many varied non-monetary conditions and restrictions on liberty
can be imposed by a court to ensure that a person released into the community will appear in court and not
commit any more crimes. Common examples include: mandatory calls to the police, surrendering passports,
home detention, electronic monitoring, drug testing, alcohol counseling and surrendering firearms.
Protective order-also called an Order of protection- one very common feature of any
conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain
from criminal activity against the alleged crime victim, or stay away from and have no contact with the
alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject
the defendant to automatic forfeiture of bail and further fine or imprisonment.
Cash — typically "cash-only," where the only form of bail that the Court will accept is
cash.
Combinations - courts often allow defendants to post cash bail or bond, and then impose
further conditions, as mentioned above, in order to protect the community or ensure attendance.
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Bail may be forfeited, and the defendant remanded to jail, for failure to appear when
required.
Forms of Bail
In the UK there are three types of bail namely:
1. Police Bail where a suspect is released without being charged but must return to the police
station at a given time.
2. Police to Court where having been charged a suspect is given bail but must attend his first
court hearing at the time and Court given
3. Court bail where having already been in court a suspect is granted bail pending further
investigation or while the case continues
person, who has not been charged, on bail. This is deemed to be a release on bail in accordance
Unless the accused has a previous conviction (or equivalents in cases of insanity) for certain
specified homicide or sexual offences, the accused must be released either on bail or without bail.
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(v) the custody officer has reasonable grounds for believing that the detention of the person arrested
is necessary to prevent him from interfering with the administration of justice or with the investigation of
offences or of a particular offence; or
(vi) the custody officer has reasonable grounds for believing that the detention of the person arrested
is necessary for his own protection;
(b) If he is an arrested juvenile—
(i) any of the requirements of paragraph (a) above is satisfied; or
(ii) the custody officer has reasonable grounds for believing that he ought to be detained in his own
interests.
If he is granted bail it will be bail to appear at a Magistrates' Court at the next available
sitting.
Bail by a court
Right to bail
Under current law, a defendant has an absolute right to bail if the custody time limits have
expired and otherwise ordinarily a right to bail unless there is sufficient reason not to grant it.
The main reasons for refusing bail are that the defendant is accused of an imprisonable
offence and there are substantial grounds for believing that the defendant:
1. will abscond;
2. will commit further offences whilst on bail; or
3. will interfere with witnesses.
The court should take into account:
1. the nature and seriousness of the offence or default (and the probable method of dealing with
the defendant for it),
2. the character, antecedents, associations and community ties of the defendant,
3. the defendant’s bail record, and
4. the strength of the evidence.
The court may also refuse bail:
for the defendant's own protection;
where the defendant is already serving a custodial sentence for another offence;
where the court is satisfied that it has not been practicable to obtain sufficient information;
where the defendant has already absconded in the present proceedings;
where the defendant has been convicted but the court is awaiting a pre-sentence report, other
report or inquiry and it would be impracticable to complete the inquiries or make the report without keeping
the defendant in custody;
where the defendant is charged with a non-imprisonable offence, has already been released on
bail for the offence with which he is now accused, and has been arrested for absconding or breaching bail.
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CHAPTER FOUR
PROSECUTION AND PRELIMINARY INQUIRY
The court’s other power is to terminate the proceeding where, at the end of the prosecution case, the
court accepts a defence submission of ‘no case to answer
The criminal procedure has different filtering mechanisms to avoid or at least minimize the risk of
endangering innocent persons. These systems are pre-filing screening and post filing screening. Before
submitting an a charge, in some jurisdictions, the police have the discretion to drop a case under
investigation. Even prior to such a decision, in a modern criminal justice system, the police should have a
reasonable ground to trigger criminal investigation.
After the police, it is up to the public prosecutor to examine the police investigation file to determine
the presence of sufficient evidence to prove guilt. The prosecution office should not rush to frame charge.
The available evidence has to be evaluated. If there are points not clarified, a further investigation has to be
ordered.
There are two major principles guiding the function of prosecution. These are mandatory and
discretionary principles of prosecution. The former is a compulsory or mandatory approach to resort to
prosecution whenever there is adequate evidence to convict a person. The public prosecutor lacks the
discretion to drop cases on the grounds of public interest. In the latter, the prosecution is accorded wider
autonomy in the decision to prosecute or not considering public interest..
discretion based on public interest consideration
In Ethiopia, the decision to prosecute or not has now been left to the public prosecution office.
Anyone aggrieved has to follow the hierarchical channel till the general attorney, now head of the Ministry
of Justice and justice bureau heads at the federal and regional levels, respectively. It appears that there is no
judicial review. The possibility for court intervention in the process is debatable. The CPC contains
provisions regulating the manner of deciding whether to charge or not.
As the law stands, there is no law clearly empowering the public prosecutor to drop charges. Art 122
of the CPC has been repealed by Proclamation No. 39/93. Art 23/3 of Proclamation No. 471/2005 allows
withdrawal based on a law. It implies that there is another law defining the conditions necessary to terminate
the prosecution. There is up to now no law allowing that. But, this law permits automatic interruption of a
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criminal investigation for due cause. Once a charge is filed, it does not seem legal to drop charges. Art
16/2/b/2 of Proclamation No. 587/2008 also contains similar provisions regarding interruption of criminal
investigation and charges pertaining to revenues and customs related offences.
The case of upon complaint cases is different. It is the absolute right of the victim to decide the fate of
the case until a judgment is entered.
To sum up, the public prosecutor has the key role in the determination of case to be brought to court
or discontinued. But, the police and courts have also some role. In our country, the legal regime regulating
prosecution and interruption is found in the constitution, CPC and many statutes. There is controversy over
the power to discontinue charges filed in court.
Preliminary Hearing
Following the first appearance, the next scheduled step in a felony case ordinarily is the preliminary
hearing (sometimes called a preliminary “examination”).
While the Supreme Court has stated that a major advantage of the hearing for the defense is its
CHAPTER FIVE
THE CHARGE
The purpose of a charge is to tell an accused person as precisely and concisely as possible of the
matter with which he is charged and must convey to him with sufficient clearness and certainty what the
prosecution intends to prove against him and of which he will have to clear himself.
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An indictment now consists of three parts: (a) the commencement, (b) the statement of offence, and
(c) the particulars of offence…
forms of charge
(a) The commencement or caption
This states the place of the court’s jurisdiction, usually a particular county or borough
(b) The statement of offence, the title of the offence
The statement of offence, with which every count must begin, merely names the crime charged , it
must use ordinary language, avoiding technical terms as far as possible, and need not set out all the essential
elements of the offence. If the offence be a statutory one, the statute and the particular section must be
specified in the statement
(c) The particulars of offence
The particulars of offence follow, in order to inform the accused as to the circumstances-e.g. time,
place, conduct, subject matter-of the crime which has thus been alleged against him, in fact, such particulars
as may be necessary for giving reasonable information as to the nature of the charge. It contain the legal ,
material and moral elements of crime.
General Counts
Hence if a count be not detailed enough, but too ‘general’, the judge may quash it; for ‘generality of
accusation is difficulty of defence’.
Alternative counts permitted by statute: is permitted in Art. 113/2 of Crpc.
Duplicity: A count may, however, still be bad for duplicity.
Description of the parties; elements of the offence:
(i) the party indicted should be described.
(ii) The party injured be described.
(iii) The acts, circumstances, and state of mind constituting the offence should be set out. Here, again,
certainty was formerly required.
Joinder of Offenses
A defendant’s action in the course of a single criminal episode may result in several violations of the
law. Where local law gives the prosecutor the option of prosecuting each of those violations in a separate
trial, two aspects of the Fifth Amendment’s prohibition against double jeopardy may impose restraints upon
the prosecutor’s exercise of such discretion. While neither directly mandates that different charges be joined
in the same prosecution, each may prohibit the prosecutor from presenting in a second trial those charges
that are not joined in the initial prosecution. 116/2 + crpc
Summary
A charge or indictment is written information to an accused. It is used to communicate to the accused
the legal provision alleged to be violated and the particulars of the offence in order that one gets the
opportunity to challenge the truth or otherwise of the charge. Thus, framing a charge is a requirement of due
process of law. After the preparation of the charge, the suspect becomes an accused.
The extracted materials elaborate the laws of England, United States and Indian, respectively. We can
observe that the charge has to be prepared so as to fulfill its intended purpose. It should be precise. But, it
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should not be general. It must explain with reasonable clarity the alleged offence with its particulars. The
satisfaction of these criterias has to be seen on a case by case basis.
The indictment could contain several counts against a single accused in the case of concurrent crimes.
But, one count should be restricted to the case of violation of an independent offence. In other words, it
should avoid duplication. It is also possible to charge several persons at a time in case there is a link
between them with the alleged crime. A court could order separate trial whenever justice requires it.
Besides, there could be alternative charges. It is also possible to convict a person for an offence not
mentioned in the indictment. However, there has to be a nexus between the law found in the charge and the
one to be used as a substitute. The accused should get the chance to defend.
The FDRE Constitution has guaranteed for the accused persons to be informed of criminal charges in
writing. The CPC, too, has provisions dealing with the charge. But it lacks the necessary detail and some
clarity. Unlike the Civil Procedure Code, the CPC does not authorize the registrar and court to enforce the
formal and legal requirement of a charge. It seems prudent to assume the power. But, the registrar should be
limited to checking technicality. For instance, the registrar can order correction or reject a charge not
mentioning a criminal law violated. It does not have the mandate to evaluate the appropriateness of a law
cited. In case no criminal law is stated, it becomes a technical matter.
The prosecution has to frame and file a criminal charge within 15 days. The absence of a clear
sanction has the effect of disregarding it. The FDRE Constitution also contains a vague “reasonable time”
test. Its justiciability is subject to controversy. Art 114 of the CPC is intended to prevent prejudice of judges
as there may be a tendency to be biased by past record. It was targeted to apply provisions like Art 635/3/a
of the repealed PC. In the new CC, the requirement of past record for aggravating theft has been left from
Art 669/3 of the CC.
Like many other jurisdictions, the CPC separately treats the charge and evidence brought to
substantiate or refute it. Art 124 of the CPC imposes a duty on both parties to make sure that evidence is
ready for trial. Other jurisdictions adopt a pre-trial conference system to facilitate the exchange of evidence
between the parties. Pre-trial discovery is a reciprocal duty. The CPC does not also have the procedure
before full scale trial, i.e., arraignment. It is used to ascertain pleading of guilty or not and make the
necessary preparation for the trial. Had the CPC had the arraignment stage, it could have been used for
sharing of evidence between the parties. There should not be surprise during the trial. Every one has to be
ready knowing the charge and the kind and identities of evidence to be confronted. Art 94/2/e requires
adjournment in case any evidence unexpected by either party is produced. Taking by surprise is not allowed.
Forced by the absence of a clear provision regulating pre-trial discovery in the CPC, the practice of
stating and attaching evidence to a charge has developed. The need for exchange of information between the
parties is out of question. Earlier there was a practice of preparing a charge without indicating or attaching
evidence to the accused. But, the court is given a differently prepared charge containing the list of
prosecution evidence. This was done fearing the possible move of the accused to tamper with evidence. This
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violates the constitutional guarantee to properly confront witnesses and other evidence. Now, the situation is
completely changed. The charge and evidence submitted to court and given to the accused are similar.
As regards the manner of indicating the evidence, there is variation between the different prosecuting
agencies. The prosecutors of the Ministry of Justice indicate the kind of evidence and only list them under
the titles of testimonial, documentary, and exhibit. The Ethiopian Revenues and Customs Authority
prosecutors follow a distinct approach. They go beyond and explain what each and every type of evidence is
going to proof. This really facilitates the trial process. It becomes easy to determine the relevance or
admissibility of the evidence. The prosecutors can also support in achieving speedy trial as it is simple to
identify the crucial evidence to win the case. For instance, they may not require adjournment in case one
witness fails to appear if there are other witnesses testifying on a similar point.
Therefore, a charge/indictment serves to communicate the law violated and particulars of an offence
for an accused. It enables the accused to properly defend. The Ethiopian constitutional and legal provisions
relating to charge resemble the laws of other countries. But, they do lack clarity and detail. The gap found in
the CPC has affected the matters to be included in the charge. The mode of production and exchange of
criminal evidence is not well addressed. In practice, evidence is made part of the charge. There is also
variation as regards the levels of details of the evidence included in the charge.
Summary
Prosecutors are human beings. It is possible to make error during the preparation of a charge. As a
result many jurisdictions allow amendment of indictment. But, it should be made before judgment is given.
The order could be given upon the initiation of the court, prosecution, or accused.
The CPC is not clear with regard to the ground for amendment. It seems to benefit the accused. It is
possible that a public prosecutor may cite an improper provision. But the amendment is prejudicial to the
accused. The charge is clear on every standard but the problem is only with the severity of the provision of
the criminal law cited. Thus, amendment of a charge is possible at any time before judgment. But, the
purpose for which the amendment allowed is not clear under the CPC. It seems to prohibit amending the
charge to cite a more severe penal provision. Everything should be interpreted in favor of the accused. Judge
has an important power since only court grant the amendment.
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- Withdrawal of charge with permisssion of ct - Art 122 - good cause + interest of the public.
CHAPTER SIX
THE FEDERAL SYSTEM AND JURISDICTION OF COURTS
Two sets of courts are established under the federal form of government each having three layers of
courts and that they are empowered to exercise judicial power over offences. Issues on how this power of
adjudication over offences is apportioned as between federal and regional courts, and even among the
federal courts on the one hand and the state courts on those matters is jurisdiction over offences.
The appointment of jurisdiction over offences between the federal and state courts is dependant up on
some factors. In principle federal courts have jurisdiction over offences based on three major grounds:
a. law,
b. Parties to the case, and
c. Places of commission
Thus, whether a particular case is within the jurisdiction of federal courts or not is to be determined
by first, ascertaining that it arises under the federal constitution, the federal laws and international treaties or
that parties are those specified in the federal laws to be subject to the jurisdiction of the federal courts or the
case occurs in places specified in the Constitution or in other federal laws.
In short, judicial jurisdiction is all about whether Ethiopian courts have power to see and then
adjudicate a case or not.
Art 11-20 of the CC are devoted to issues of judicial jurisdiction of Ethiopian courts over offences.
Thus, whether or not a person is subject to the CC of Ethiopia depends on:
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I. Principal jurisdiction
According to Art 11-16 of the CC principal jurisdiction, which is one form of judicial jurisdiction
exists in cases where the accused is :.
1. Charged with the commission of an offence in Ethiopia
2. Charged with the commission of certain offences against Ethiopia in a foreign country.
3. Charged with the commission of an offence in a foreign country where he possesses immunity
from prosecution by virtue of his status as an Ethiopian official.
4. Charged with the commission of certain offences in a foreign country while a member of the
Ethiopian armed forces.
Herein below we shall first consider the conditions when an accused is subject to Ethiopia’s principal
jurisdiction; and then we will consider the conditions for the exercise of principal jurisdiction as being
incorporated under the current criminal code.
Territorial jurisdiction
Art 11 and 12 of the CC are about territorial jurisdiction. According to this principle, which has
almost gained universal acceptance, the Ethiopian courts shall have principal jurisdiction over offences
specified in the CC committed by any person on Ethiopian territory. Territory consists of land, sea and air.
\Art 11(2) of the Cr. C is an exception to the above principle, i.e. Art 11(1) of the CC. Consequently,
certain persons such as diplomatic officials are immune from criminal prosecutions in the country to which
they are accredited under principles of public international law. Any person who enjoys such immunity,
therefore, is not subject to the CC, and thus, not subject to the jurisdiction of the Ethiopian courts.
Extra-Territorial Jurisdiction
Any Ethiopian or a foreigner having no immunity is obviously subject to an Ethiopian jurisdiction for
violation of Ethiopian criminal laws provided that he is in Ethiopia. However, people may after having
committed an offence in Ethiopia may have successfully escaped and taken refuge in a foreign country. In
such a case, the Ethiopian authorities are directed under Art 11(3) of the CC to request his extradition so that
he may be tried in Ethiopia under Ethiopian law.
Art 13 of the CC
Crimes committed against Ethiopia outside its territory.
Under this provision, crimes committed in a foreign country which have their effects in Ethiopia are
dealt. However, not all such offences are covered. Accordingly, only offences prohibited by Art 238-260
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and Art 355-374, i.e. crimes against the state (crimes against the constitutional order and the internal
security of the state), and crimes against currencies, government bonds or security documents, official seals,
stamps or instruments, respectively, are subject matters of the Ethiopian principal jurisdiction. The offender
of such offences is subject to Ethiopian principal jurisdiction.
Article 14 and 15
Crimes committed in a foreign country by an Ethiopian enjoying immunity and by a member of
the Ethiopian defense force.
It is normal that Ethiopian officials and members of defense force goes to another country
temporarily. This, however, does not exonerate them from becoming liable for their acts/omissions
happened in their stay. Art 14 and 15 is designed to make Ethiopian officials and members of the Ethiopian
defense force subject to the Ethiopian principal jurisdiction for certain offences they committed while
abroad.
With regard to offences that do not directly and chiefly concern Ethiopia, our courts have subsidiary
jurisdiction which is derivative-not original. Under these circumstances, Ethiopian courts substitute foreign
courts in trying offenders who must have been (but have not been) tried in a foreign country.
How can a country determine whether an act is of sufficient gravity to justify extradition or not?
There are two types situations covered under Art 18. The first one is where the crime is committed in
a foreign country either by a foreigner against an Ethiopian or by an Ethiopian. In order to make a suspect
subject to Ethiopia’s subsidiary jurisdiction, it is only necessary that the conditions referred previously be
satisfied. As long as the offences are of sufficient gravity to justify extradition, it subjects the offender to
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Ethiopia’s subsidiary jurisdiction (if prohibited by law of the place of commission and Ethiopian law)
irrespective of the punishment authorized. The questions to be asked in such a situation are:
The second type of situation covered under Art 18 is the commission of a very serious offence in a
foreign country by a foreigner. The commission of such an act by a foreigner against anyone in a foreign
country subjects him to Ethiopia’s jurisdiction if:
1. the act is prohibited both by the law of the state of commission and by Ethiopian law;
2. it is extraditable under Ethiopian law; and
3. it is punishable under Ethiopian law by death or rigorous imprisonment for not less than ten years.
The second situation thus differs from the first in two respects;
1. It is not necessary that the offence have been committed against an Ethiopian and
2. It is necessary that the offence is sufficiently serious so that it is punishable under Ethiopian law by
death or rigorous imprisonment for more than ten years.
Federal Courts Proclamation No. 25/96 and 322/2003 sets out the rules for allocation of common and
specific jurisdictions to federal courts on the basis of three grounds; laws, parties and places.
Laws
Article III section 2 of the United States Constitution states that ‘federal courts can have jurisdiction
over cases that arise under the U.S. Constitution, the laws of the United States, and the treaties made under
the authority of the United States. These issues therefore are the sole prerogative of the federal courts.
Article 3(1) of the Federal Courts Proclamation No. 25/96 which seems to be direct copy of the above
provides that:
In principle federal courts shall have jurisdiction over;
1. Cases arising under the Constitution, federal laws and international treaties.
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Proclamation No. 25/96 in the same way enumerates specific offences that are within the common
jurisdiction of federal courts. Consequently, the following offences are within the material jurisdiction of
federal courts.
* Offences against the national state (offences against the constitutional order, or the internal security
of the state)
* Offences against foreign state
* Offences against the law of nations
* Offences against the fiscal and economic interests of the federal government
* Offences regarding counterfeit currency
* Offences regarding forgery of instruments of the federal government
* Offences regarding the security and freedom of communication service operating within more than
one region at the international level
* Offences against the safety of aviation
* Offences regarding foreign nationals
* Offences regarding illicit trafficking of dangerous drugs
* Offences falling under the jurisdiction of courts of both different regional courts as well as
concurrent offences
* Offences committed by officials and employees of the federal government in connection with their
official responsibilities or duties
* Offences involving conflicts or hostilities between various nations, nationalities, religious or
political groups
* Offences committed against property of the federal government and which entail more than five
years of rigorous imprisonment
In addition to these common jurisdictions, the proclamation also enumerates specific jurisdictions of
federal courts. Thus, they have first instance and appellate jurisdiction over cases as follows:
Without prejudice to international law and custom, offences for which foreign ambassadors,
consuls and representatives of international organizations and foreign states are held liable; and
Application for change of venue from one federal high court to another or to itself as provided by
law.
2. Appellate Jurisdiction
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Art 9 of the proclamation provides that the Federal Supreme Courts shall have appellate jurisdiction
over decisions of Federal High Courts rendered in their first instance and appellate jurisdiction on variation
of the decisions of the Federal First Instance Court.
Appellate Jurisdiction.
The federal high court exercises criminal appellate jurisdiction over all decisions rendered by Federal
First Instance Court, the national electoral board, tax appeals commission, labor boards, etc.
Offences against the fiscal and economic interest of the federal government.
Offences regarding counterfeiting of currency.
Offences regarding the security and freedom of communication services operating within more
than one region or at the international level.
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Offences in which foreign national who enjoy privileges and immunities and reside in Ethiopian
are victims or defendants subject to the jurisdiction of First Instance Court in operating laws and without
prejudice to international agreements entered in to by Ethiopia.
They also have jurisdiction over criminal cases that arise in Addis Ababa and Dire Dawa as well as
over cases that are under the jurisdiction of awraja and woreda courts pursuant to the laws in force. The laws
in force referred under the provisions of the proclamation are obviously the First Schedule of the CPC and
other subsequent laws. The federal arrangement and the current progress to enact new criminal procedure
code presumably, when materialized, would become “the law in force”.
Offences of less serious nature like contraventions of traffic regulations fall within the competence of
municipality courts in the City of Addis Ababa. A prosecution unit in charge of petty offences subject to the
jurisdiction of these courts is already well in place. Similar courts are operating in other parts of the country
as well.
In the foregoing discussion, we have seen that Proclamation No. 25/96 sets the rules that apportioned
jurisdiction between federal courts and state courts. It enumerates the cases where the federal courts would
assume jurisdiction. The areas that are not specifically mentioned to fall under federal court jurisdiction are
therefore presumed to be under jurisdiction of state courts. Thus, it may be argued that there is no need of
enumerating the jurisdiction of state courts. The way FDRE Constitution did the residual jurisdiction is left
to regional courts.
Art 78(2) of FDRE Constitution provides that “the jurisdiction of federal high court and of the first
instance courts is delegated to state courts”. Art 80 of the same also provides that “state high courts in
addition to state jurisdiction shall exercise the jurisdiction of the federal first instance court. State supreme
courts then shall exercise the jurisdiction of the federal high court because of the delegated authority.
6.2.3. Local Jurisdiction
The last but most important question of which particular court has the jurisdiction to see and
adjudicate the case at hand is not answered. It is only by then that the pertinent public prosecutor or the
private prosecutor only exceptionally can frame (prepare) charge against a suspect to a particular named
court.
Example:
If an offence triable before the high court is committed on an Ethiopian aircraft plane while it is
flying over Sudan, assuming the accused is subject to the criminal code, the case can be tried in any high
court in Ethiopia in the discretion of the public prosecutor.
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6.2.4. Change of Venue and Withdrawal of Judges.
Change of venue, therefore become a process by which a case is to be transferred from one court that
have jurisdiction to another court having the same jurisdiction for good cause.
change of venue is possible only for valid reason and that only if the conditions provided by law are
complied with, hence, it should be exercised in relation to cases triable before a court in so far as there is a
court empowered to entertain the question (application for change of venue).
Art 106 of the CPC states that application for change of venue shall only be made to high court. By
implication the code permits application for change of venue only in respect of cases which are within the
jurisdiction of woreda courts only( w/c fall under Federal first Instance courts as per art. 15/2 of pro 25/96).
Normally application in such a case should be made to a higher court because the court from which the
applicant sought change is already trying the case for it has jurisdiction.
Example: Mr. A, president of North Gondar High Court negligently killed Ato Habtamu.
Investigation conducted by police and the public prosecutor charged Mr. A citing Art 543(1) of the CC. Mr.
A now wants the case to be transferred to another court and makes application for change of venue. On
account of the fact that he is the president of such court and that impartial trial could not be held.
Withdrawal of a judge is also another procedure to secure justice. It is related to a particular judge
who would have seen the case. Art 27-30 of Proclamation No. 25/96 deals with the issue of withdrawal of
judges. Thus, sub- article 1 of Art 27 lists the grounds of withdrawal of judges. It reads as:
CHAPTER SEVEN
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THE TRIAL
The trial stage is critical stage at which the guilt or innocence of the defendant is established. Despite
the remarkable diversity, the practice between and within the various legal systems of the world as to the
composition of the tribunal and the laws of evidence to be brought before the court, the essence of the right
of the accused at this stage is related to the adequate time and facilities given to him to defend himself and
that these facilities must be at least equal to those enjoyed by the prosecuting or any other party at trial.
The right to have defense counsel, therefore, is a constitutional right extended to accused persons.
This right, however, is subject to certain conditions.
In principle Art 20(5) of FDRE Constitution is extended to every accused in that it grants the right to
be represented by legal counsel of their choice at their own expenses. However, a state should provide
defense legal counsel only to those who are not able to pay for it, even though, only if miscarriage of justice
is believed to have resulted had defence counsel not been provided. In all others cases, no legal counsel be
provided to the accused at the expense of the state.
In the localities where one of this writer resides accused persons who are not able to appoint defense
counsel can be provided with defence counsel by the state only if they are charged with aggravated
homicide and aggravated robbery and recently to female accused. Even then it is hardly possible that they
are defending them properly. Therefore, this right seems only theoretical.
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Under Art 20(2) of FDRE Constitution, the fact that an accused person has the right to be informed
with sufficient particulars of the charge brought against him and to be given the charge in writing has been
stated.
In cognizance of the above merits our Constitution under article 20 /1/ provides:
Accused persons have the right to a public trial by an ordinary court of law within a
reasonable time after having been charged. The court may hear cases in a closed session only with a view
to protecting the right to privacy of the parties concerned, public morals and national security.
i. Public and state/nation safety, and
ii. Public morality and decency.
Under Art 176 of the CPC:
Where the young person is brought before the court all the proceedings shall be held in chambers.
Nobody shall be present at any hearing except witnesses, experts , parents or guardian or representatives of
welfare organizations. The public prosecutor shall be present at any hearing in the high court.
In all cases, therefore, the accused has the bright to open court – public trial as a rule and that trial be
in closed session i.e. in camera, is possible only under some exceptional situations provided by law.
The presumption of innocence – being innocent until proven guilty – is a legal right that the accused
in a criminal trial. The burden of proof is thus, on the prosecution, which has to collect and present enough
compelling evidence to convince the judges, who are restrained and ordered by law to consider only actual
evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is
beyond reasonable doubt guilty. In case of remaining doubt, the accused is to be acquitted. This
presumption is seen to stem from the Latin legal principle that ei incumbit probatio qui dicit, non qui
negat (the burden of proof rests on who asserts, not on who denies).
Article 20/3/ of FDRE Constitution, in this connection states that during proceedings any accused
person has the right to be presumed innocent until proven guilty according to law.
all systems is the desire to prevent investigation or adjudication procedures from coercing unreliable
confession from the mouths of accused persons.
Art 19(5), FDRE Constitution in the some token provides that:
Persons arrested shall not be compelled to make confessions or admissions which could be used in
evidence against them. Any evidence obtained under coercion shall not be admissible.
Consequently, one may say that privilege against self-incrimination is a constitutional right given to
arrested as well as accused persons. The Constitution does not stop in guaranteeing this right. It also makes
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that any evidence obtained in violation of this right inadmissible, which could be considered as signal not to
compel persons with the view of obtaining evidences for it would be useless.
Assuming that what the person is responding fits with that mentioned in the charge, the presiding
judge shall read out the charge to such person (the accused) and ask if he has any objection to the charge.
The objection may be based on the form or content of the charge or any other substantive matter. If the
objection is based on the form and content of the charge, the provisions of the CPC on amendments of
charges (alteration of and addition to charges) and their effects shall apply. Consequently, the court shall
order (if the objection is valid) the charge to be amended within a reasonable period of time it fixes. Art 130
of the CrPC
Would it be possible for the accused to raise the issue of jurisdiction as a preliminary objection?
The right of the accused to raise such objections is not unlimited. Where no objection is raised after it
has been required by court to state objections (if any) the accused is barred from raising any such objections
at any latter stage in the trial. Yet if the objection is of a nature that could prevent valid judgment being
given the accused could be allowed to raise such objections even out of time.
It is the duty of the judge to record the plea of the accused without including or substituting any word
of his own to what is stated by the accused. It should however be neither condensed nor extended. It should
be clear enough in deciding that there is plea of guilt or not.
Where the accused denies the charge or admits the same with reservation or if the accused says
nothing in answer to the charge the plea of not guilty shall be entered. 133
Consequently, the plea of guilty-admission shall be entered only where the accused admits the charge
without reservation either by stating the offence in its terms or by admitting every ingredients of the offence
charged.
However, it should be noted that even if the accused pleads guilty, the judge need not accept the plea.
If from the behavior, appearance or words of the defendant during the pleading/arraignment/ process, the
judge is led to believe that a defendant is mentally incompetent, or somehow does not seem to understand
what is happening or that the plea may be involuntary or greatly inaccurate in terms of what actually
happened. The court may not accept the plea of guilty or delay its acceptance. This is to allow psychiatric
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diagnosis or to enable the accused confer with counsel. If the judge simply rejects the guilty plea, it shall set
a trial date as if the accused had pleaded not guilty.
134-The court may on its own discretion either convict the accused forthwith or demand the
prosecutor to produce evidence and corroborate the plea. This depends on how that particular judge (s)
is/are convinced.
What possible grounds would lead the court demand production of further evidence in disregard of
the accused’s plea of guilty?
Practically the nature of the offence has an impact on the decision of the court to accept or not the
plea of guilt by the accused. In most serious offences, such as aggravated homicide, our courts opt in the
production of corroborating evidence though the accused pleads guilty and the prosecutor requests for
immediate conviction.
State the possible rationales do you envisage for the courts to demand corroborating evidences
even no matter how the accused pleaded guilty?
Sometimes prosecutors request the introduction of evidences after the accused pleads guilty with the
view of showing the criminal disposition or demeanor of the accused so that punishment would be
aggravated in serous offences.
The CPC allows amendment of plea from guilty to not guilty. How about the vice versa?
Evidences to be produced by the public prosecutor in support of his allegations are oral, in most
cases, documentary, and exhibits. As documentary evidences are normally annexed (not to the copy which
is to be given to the accused in the earlier practice) to the charge, the court has the opportunity to examine it
in time.
Exhibits also as supported by witnesses who explain about the exhibit shall be produced for the
examination of both the court and the accused during the trial when it is appropriate.
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This is applicable to witness called by the accused mutate mutandis. Art 137 provides the forms of
questions to be put during examination-in-chief, it states that:
i. questions put in examination-in-chief shall only relate to facts which are relevant to the issues
to be decided and such facts only of which the witness has direct or indirect knowledge .
ii. No leading questions shall be put to a witness without the permission of the accused or his
advocate or the public prosecutor, as the case may be.
How do you see the latter argument in the light of FDRE Constitution?
In principle leading questions are prohibited during examination–in-chief, however, there are
exceptional circumstances where such questions could be asked at this stage if:
In the normal course of things, a proponent calls a witness believing that he will testify in his favor.
Exceptionally, however, the witness turns out to be hostile to the person who called him. Had the calling
party known before that the witness is going to be hostile to him, he would not have called him at least. Yet
just it happens before the court. When this happens and makes the proponent surprise, he may, up on the
permission of the court put leading questions to such witness during examination –in- chief, hence the
examination turns to cross-examination.
Art 136/4 / of the CPC provides that the court may put any relevant- questions which appear
necessary for the just decision of the case, question to the witness any time.
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# What would happen if the witness-all or some fail to appear for different reasons such as death,
absence in capacity cannot be found? Art 144 of the CPC has some solution to this
Evidences that could be produced before the court to prove the commission on an alleged crime by
the accused could be documentary and/or oral. Documentary evidence could be the confession of the
accused either before the investigating police officer as per Art 27/2/ or before a court by virtue of Art 35 or
any other document, which may be material proof to the fact in issue. It may also be an exhibit, which has
been used as a means for the commission of the crime like knife or gun, or a thing which is the fruit of an
offence such as a stolen or robbed property or a document produced illegally or a thing against which the
crime has been committed such as a document which has been forged, or an item from which its parts are
looted.
The court has to evaluate the weight of the evidences based on a certain standard. In the continental
Europe for the accused to be convicted a judge needs to have the “interim conviction” which is literarily
mean internal conviction. In Anglo American system, on the other hand, the court must be convinced to the
degree of “beyond reasonable doubt” that the accused is guilty. In our legal system there is no such fixed
standard of proof required But it can be said that the Anglo-American system has a significant influence and
practically we have the standard called “ beyond reasonable doubt” degree of proof.
In criminal cases, it is the public prosecutor that has the duty to prove his case and only if he proved
his case with the required degree of proof that the accused would be given the chance to defend himself by
producing witnesses if he has or if he wishes to do so. The acontrario reading of this is that unless the
evidences produced by the public prosecutor proves the case to the satisfaction of the court that the accused
committed the alleged crime the later shall be set free thus, no case motion/no case for prosecution.
7.5.2. Case for Prosecution
All the criminal prosecutions are made with the ultimate destination of rendering judgment which
would either be conviction or acquittal. To put it in simple terms, the accused would be convicted if the
evidences produced by the prosecutor convinced the court to the extent of the required degree that the
accused committed the alleged crime and his evidence, if any, could not rebut such evidences and affects the
court’s conviction. On the other hand, is the defense evidence(s) produced by the accused can falsify the
evidence of the prosecution or at least shad a reasonable doubt, the court must decide for the acquittal of the
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accused and be released from prison if had been in custody. It is one of the responsibilities of a judge to give
reason for any of its decisions
7.5.4. Sentencing
Where the accused is found guilty, the court shall ask the prosecutor whether he has anything to say
as regards sentence by way of aggravation or mitigation as being provided under Art 149/3/ of the CPC. It is
at this stage of the procedure that public prosecutor could reveal to the court aggravating grounds such as
previous conviction(s) of the accused so that the court could take this fact in to consideration in the
determination of the sentence.
Once after the public prosecutor is given the chance to mention aggravating or mitigating grounds to
the court the later shall give to the accused so that he can reply and mention any mitigating grounds he could
raise, if any. The court may demand the production of evidences to prove these grounds. In practice most of
our courts do not ask the production of prove to mitigating/aggravating ground mentioned by the parties.
The prosecution also tends to state only aggravating circumstances while the law requires him to mention
mitigating circumstances as well.
CHAPTER EIGHT
SPECIAL PROCEDURES LEADING TO JUDGMENT
8.1. Private Prosecutions
Even though the CPC has provisions governing private prosecution, it is not realized in practice. It
has also lost much significance in other parts of the world. For further understanding refer to infra chapter
two section 2.1.
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and economic interest of the state), which are punishable with rigorous imprisonment of fine exceeding five
thousand birr. Even then, default judgment possible if the accused is not young person.
Art 199 of the CPC recognizes only two reasons. These are:
i. the accused has not received summons to appear ; or
ii. the accused has received the summons but prevented by force majeure from appearing in
person or by advocate.
Discuses what possible causes could warrant setting aside such judgments?
Assuming that you are a judge, what are you going to do if the public prosecutor fails to appear on
the date for trial?
Is cassation possible on a decision not to set aside in absentia judgment?
If the prosecutor fails to appear the court shall strikeout the case unless someone appears before it and
explain the reason why the private prosecutor failed to appear to the satisfaction of the court, in which case
the court may adjourn the case pursuant to Art 165/1/ of the CPC.
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evidentiary matters of corruption cases and the CC. Thus, there are special procedural and evidentiary rules
pertaining to corruption offences.
There are two modes of handling the trial. These are the ordinary criminal procedure approach and
the special procedure designed for conducting trial for corruption offences. The choice is dependent upon
the complexity of the matter. The purpose of the special procedure is to facilitate the process, easy
understanding of the matter and clarification of issues. For complex matters, there will be pre-trial hearing.
At this stage, there will be mainly exchange of evidence as well as ruling on the admissibility of evidence
and issue of law. There could be appeal on the rulings made.
What are the justifications for having special rules concerning corruption crimes?
Compare and contrast the procedures of ordinary criminal procedure and the special criminal
procedures designed for corruption offences?
Can a remand bench release a suspect unconditionally if it finds out that the arrest was made by
mistake?
How should a court determine the reasonableness of the time to bring appeal in case a suspect or
accused is released on bail?
CHAPTER NINE
POST JUDGMENT PROCEEDINGS
Review of judgment by the court of rendition is a procedure, which is about reopening of a case, by
the trial court once after it pronounced judgment for various reasons. The grounds of the application
for reopening of the case once after final judgment in some countries, not in Ethiopia. These are:
I. discovery of new circumstances, after the exercise of due diligence, were not in the
knowledge of the defendant at the time of the giving of the judgment.
II. the establishment of the falsity of the testimony of the witness or the opinion of an
expert, an evidentiary document or of a translation which has resulted in the delivery of the judgment
and which, after the exercise of due diligence, was not within the knowledge of the public prosecutor
or the defendant now the convicted person at the time of the giving of the judgment.
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iii) regarding the admissibility or non admissibility of evidences under Art 146
Thus , we can understand that interlocutory decisions are decisions which do not dispose the case
finally- finally in respect of that particular court which is trying the case.
We have seen that appeal is a right of any aggrieved party yet it could only be exercised once. A
person can make an appeal from the decision of Federal First Instance Court to Federal High Court and from
decision of the Federal High Court to Federal Supreme Court. However, there is what we call “second
appeal” in respect of matters that were decided by Federal First Instance Court. That is if the Federal High
Court, in its appellate jurisdiction varies or reverses the decision of the Federal First Instance Court, a party
dissatisfied with such decision may lodge his appeal to Federal Supreme Court. Whatever the decision of
the Federal Supreme Court may be, its decision is final legally and practically as there is no higher court. If
the Federal High Court, on the other hand, confirms the decision of the Federal First Instance Court,
however, there is no second appeal to the Federal Supreme Court.
Is it legal for the appellate court to reject appeal without calling the other party like that of the law
and the practice in a civil case?
What possible grounds do you envisage for the court to grant stay of execution of the judgment
rendered as against which appeal is lodged?
Though the law specified the period within which a person could legally file his appeal, it may not be
possible for the appellants to do so because of some reasons in which case Art 191 of the CPC provides
solutions, which would enable late appellants file an application for leave to appeal out of time. Thus, the
appellate court may grant the appellant lodge his appeal even after the lapse of the time provided by the law
if it is satisfied with the reasons the appellant stated in his application.
Normally, appeal is based on facts and evidences which were raised during the lower court but if the
appellate court deems the production of additional evidences is necessary for justice, it may order the
production of such additional evidences on its own motion or accept the application of the parties to this
effect. 194
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9.4. Execution 203 ff
A judge at the end of the judgment in general and the sentence in particular write, among other things
an order to the pertinent organ normally prison administration or police to effect the execution of the
judgment for a mere decision without it being executed is nothing.
Legal System Research Institute.
9.5. Pardon and Amnesty
Relevant Laws
Art 28, 74/7, FDRE Constitution
Art 229-231, CC
Procedure of Pardon Proclamation No. 395/2004
Amnesty can be available before prosecution or judgment. The other major distinction between the
two lies on their effect on the criminal record. Pardon does not cancel the criminal record. However, in case
of amnesty, the convicted persons will be made free of negative consequences of criminal record which is
considered to be absent.
Both may be granted conditionally or unconditionally. In case it is given upon the fulfillment of
certain conditions, there is a possibility for the enforcement of the judgment for failure to comply with those
conditions. They may also be made for the whole or part of the penalty.
However, there is a limitation upon the power of the government to grant pardon and amnesty. The
FDRE Constitution prohibits pardon and amnesty for crimes against humanity as defined by international
agreements ratified by Ethiopia and other laws of the country. These include genocide, summary
executions, forcible disappearances and torture. But, the President of the nation could commute death
penalty into life imprisonment.
As regards their effect on civil liability, the CC provides that the civil remedy is not affected. The law
tries to distinguish between reparations made and damages paid to private persons and the state.
Unless there is reservation on the order granting pardon and amnesty, damages to be paid to the state
will be remitted automatically. But, the wording of the law is subject to controversy. It says costs
payable to the state. It may be costs of the criminal proceeding or the damage incurred due to the
commission of the offence.
Thus, pardon is available for convicted and sentenced persons. Amnesty is possible for persons not
yet prosecuted or convicted. Committing certain categories of crime could be a ground to absolutely
bar the possibility of pardon and amnesty. They could be made conditionally or unconditionally. The
civil effects remain in relation to private persons. Amnesty has the advantage of deleting criminal
record.
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4. Chapter One: Evidence law
General Introduction
Introduction
Chapter Objectives
The word “ evidence” is originated from a Latin term “evidentia” which means to show
clearly, to make clear to the sight to discover clearly certain, to ascertain or to prove. Thus,
alleged fact. The party who alleges the existence of a certain fact has to prove its existence and
the party, who denies it, has to disprove its existence or prove its non-existence.
However, all facts traditionally considered, as evidence may not be evidence in the eyes of
evidence law.
The law of evidence is the body of legal rules developed and enacted to govern:
A. facts that may be considered in court? This is the issue of relevant evidence that one should
adduce before the court to support his allegation.
1. Facts in issue
2. Facts relevant to facts in issue
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B. The methods of securing consideration of these facts
1. By proof of
C. The party that must secure consideration of what facts: This is about burden of proof and degree
of proof required to win the case.
When we come to our case, a decision of any court in Ethiopia will not be ripe for cassation
unless it shows prima-facie case for the existence of a basic error of law.
Activity
Is Milen's outline sufficient only to define evidence law as it exists in a common law system
or it is equally applicable to a civil law system?
To finalize it, the law of evidence in the major legal systems/ i.e., in the common law, civil
law or in countries that have a mixed legal system) is the body of legal rules developed or enacted
to govern.
The admissibility, creditability, and weight of evidence and other procedural matters as to
how the evidence shall be produced before the court of law.
Law of evidence is categorized under adjective law together with procedural laws, both
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There are certain issues procedural laws never address and are left to evidence law. For
instance, in the procedural law you did not study about the standard of proof, facts to be proved or
need not be proved and the valve to be given to each term of evidence etc.
These are left to evidence law therefore evidence law is not strictly speaking procedural law,
but shares the commonality with procedural laws in the sense that both are means to the
enforcement of the substantive law. Thus, evidence law suitably falls with in the general category
of Adjective laws, which deal with the enforcement of the substantive law.
In both criminal and civil proceedings, the law of evidence has a number of purposes. In
short, the law of evidence regulates the process of proof. The rule of civil and criminal evidence, in
conjunction with the rules of procedure, establish the frame work for the process of proof and the
conduct of litigation, so that a lawyer advising his client or preparing his case for trial or presenting
it to the court or tribunal will know what issues his client must prove in order to succeed.
The law of evidence also has amoral purpose by establishing and regulating the rules
Moreover, especially in criminal cases, law of evidence stands to protect the accussed's
right to affair trial for instance, by containing many rules which excludes potentially relevant
evidences like the general rule that evidence of the defendant's character and previous
convictions will not be admitted at trial (see Art 138, 57/1 of cr.p.c and Rule-145 of DER) art
No, it is not. It is possible to imagine that the need for evidence can be traced back to a time
when people started to settle disputes before third parties. You can imagine how people settle
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The need for evidence was well known by ancient Greeks, Egyptians and Mesopotamians.
Different concepts of evidence law such as relevancy of evidence, the duty to come up with
evidence, proof by witnesses were practiced since ancient time even though they were not in such
The present rules and principles of evidences are the outcome of the successive
development, conducted in different stages of human civilization. In its very stage of progression,
there was no any distinction on the rules of civil and criminal evidence Moreover, the means they
use to prove a disputed fact may not be well founded to ensure the rational basis of decision
making. In other words, the evidences which were applicable at that ancient time were
irrational.
i. Proof by ordeals - based on notion of religion, undergone painful activity like fire and
Gradually, the above ancient ways of proof had begun to replace by the new and modern
concepts of evidence rules. The writing of different scholars, judicial decisions and different laws
enacted at different times based on different legal traditions becomes instrumental for the then
There are two major legal systems (legal traditions) in the world.
They are (1) The Anglo - American (or the common law legal system). And (2) The
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Is there a difference between the two legal systems regarding evidence rules?
It is important to discuss about the existing differences between the two legal systems
regarding the different rules of evidence they follow, and the weights they have attached towards
The countries, which follow the common law legal system, have separate rules of evidence
or separate code of evidence law. The rules determine what evidence is admissible and what
When we come to the law of evidence in the continental system there is no separate code of
evidence law. Rules of evidence are sparsely distributed in both substantive and procedural laws.
Even though the common law countries have a separate code of evidence law enacted by
the law-making organ, they have also judge made evidence rules due to the existence of the
precedent system. In this system the lower courts are bound by the decisions of higher courts or
by their previous decisions in order to secure the uniform application of the law. In other words,
the lower courts are obliged to respect the decisions of the higher courts (on the case of having
similar question of fact or law) as a law. Thus, by doing this, the judges have the authority to made
laws including evidence rules. So we can say that in common law system there are judge made
laws, while in the continental system- laws are enacted by the parliament. Thus, here, the judges
Actually, at present time, all courts, whether federal or state, are bound to follow the
decisions made by the federal supreme courts' cassation bench on question of law. (See Art 2(4)
of the Fed courts' proclamation Re-amendment proclamation No 454/20005). There fore, if the
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federal Supreme Court’s cassation division passed a decision on question of law involving
Above all the precedent system does not works on the decisions involving question of facts
unlike the common law traditions. There fore, even though the decisions of the federal supreme
courts' cassation bench on question of law involving evidence serves as one sources of evidence
rules, we can not say that Ethiopia follows the precedent system in its full sense.
The common law countries employ the ''Adversarial system'' of evidence gathering. An
adversarial trial provides a forum in which two parties present competing version of the truth. This
system is a party-lead system in which the judge has no investigative role. Their function is to
listen to the evidence Presented and decide which version of the facts they fell is closest to the
truth. Here, judge acts as an impartial umpire, policing the rules of the trial game there by ensuring
fair play.
However, the civil law system employ the ''inquisitorial system'' of inquiry .Here, the court
has the task of making inquiry. It question witnesses, directs the police investigation, commissions
In this system, the trial judge plays a far more active role than his adversarial counter part.
However, some argue that, in truth no one system of justice is totally adversarial or totally
inquisitorial. Many systems are a mixture of each. What about the Ethiopian system of inquiry?
Under common law legal system, the greatest weight and importance is attached to oral
testimony of the parties and their respective witnesses. Here, there is clear preference for
inferior to oral evidence. The physical presence of the witness affords the judge the opportunity of
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observing the witness demeanor. This is perceived as being a useful indication of a witness's
truthfulness. The witness box provides the best place for critical evidence to be tested and
challenged in that, aside from the witness's demeanors, it enables external and internal in
consistencies and matters going to the witness's credit to be tested. The physical presence of the
witness also gives the accused the opportunity of confronting those who accuse him. This is
widely felt to be component of the right to a fair trial. Moreover, in oral testimony, cross-
examination is regarded as an invaluable tool for laying bare the truth. Because the smallest
departure by a witness from his earlier written statement is likely to be used by the cross
examining advocate as a weapon with which to attack the witness's credibility. Further more,
testimonies are given on oath, the degree of being true is high. That is why the common law
However, in continental law system like in France and Germany, emphasis is laid on written
evidence or documentary including notary- attested records of every sort of transaction, written
In common law legal systems, parties themselves are competent witnesses in their own
case. Here, the defendant who chooses to plead not guilty puts the prosecution to proof of its
case. The defendant is not a competent witness for the prosecution in these circumstances but is
a competent witness in his own defense and may therefore choose whether or not to give
evidence on oath.
party can not nominate itself as testifying to the accuracy of its assertions in civil law. Even
in civil law countries, the exclusion extends to third parties, like spouse, relatives and other closely
related person's of the party since it is not likely to expect a neutral testimony form such persons.
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261cpc sub /2/3 - parties are competent witnesses in their own case in civil proceedings,
and they are considered as witness for all practical purposes. There fore, like other witness, they
are required to take an oath before testimony and are also subject to the rule of cross-
examination.
As we understand from art 142(1) and (3) of our criminal procedure code, after the
witnesses for the injured party have been heard, the court shall inform the accused that he may
make statement in answer to the charge and may call witnesses in his defense. And if the
accused wishes to make a statement, he shall speak first. But the accused is not required to make
his statements on oath. Moreover, he may not be cross-examined on his statements even though
the court may put questions to him for the purpose of clarifying any part of his statement.
Therefore, some argue that, unlike civil proceedings, the accused who made statement on his
own behalf under Art 142 of Cr.p.c should not be considered as a competent witness for all
However, other argues that even though it is left to the court to determine how much weight
shall be attached to the testimony of the accused, there will not be any negative impact on the
task of the administration of justice, if the accused become a competent witness in his own case.
According to Art 20 (4) of the FDRE constitution, the accused persons have the right to
produce any evidence including his own testimony in his own defense. There fore, we can say that
if the accused wishes to produce his own testimony in is own defense, he shall do so. Since the
accused persons have the right to be presumed innocent before conviction, they shall not be
prohibited to produce their own testimony in their defense. (see art 20 (3) of FDRE constitution)
.However ,what is provided under Art 142(3 )of Cr.p.c should be amended in the manner that
enables the prosecutor to cross examine the accused person who testify in his own behalf as it is
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F/ Is hearsay evidence admissible as a rule?
In hearsay evidence there is no test of accuracy which enables the opponent party in
discerning or checking whether or not the witness is speaking the truth, like cross- examination
and physical presence of the real witness since it is the right of the accused to confront his or her
However, in civil law legal system, there is no general analysis of rules of admissibility of proof.
Here, a judge has a discretion to determine the admissibility or otherwise of the evidence by applying his
own personal evaluation. Thus, in civil law legal system there is no rule which excludes ''hearsay'
evidence. Rather, it is left for the court to decide the value of what has been said. Please read a detailed
discussion on rule and exceptions of hearsay evidence under chapter four
The cost of Common law leg sys is higher than Civil law leg sys
Fitha Negasit - was the first written doc which contain rules of evidence and means ofproof.
we in Ethiopia do not have a separate and codified law of evidence. Rather our evidentiary
rules are found scattered throughout our substantive laws such as the criminal law, private laws
you find in the civil code, commercial code, etc and
Since our substantive laws are adopted from civil law legal system, considerable code
emphasis is placed on the value of documentary evidence to include provisions for register and
acts of notoriety, which is mainly the feature of continental approach. Moreover, since our
substantive laws are adopted from the civil law legal system, we have a number of evidence rules
scattered throughout our substantive laws like the Articles on proof of marriage, proof of will, proof
of contract, proof of ownership and a lot of legal presumption which relate to evidence.
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There are also common law features to the present Ethiopian evidence system. Since our
procedural laws are adopted from the common law legal system,
law-making organ of the country. This is not by accident but it is necessitated by the fact that
our procedural laws required the implementation of some of the principles of the draft evidence
law.
(i) The evidentially rules which are found scattered through out our substantive, Procedural
(ii) Modern and internationally accepted principles of evidences have been in use in our
courts just to fill the existing gaps found in out substantive and procedural laws. It is believed that,
applying such principles of evidence has a great importance in incorporating those modern
evidentiary principles in to our judicial custom and in developing the general jurisprudence of
(iii) Even though the tradition of publishing and distribution of case reports is not as such
developed, case laws are also considered as the third source of evidence rules in Ethiopia. This is
similar with the common laws precedent system in which the lower courts are bound to follow the
decisions of the higher court, involving the same question of law or fact. They strictly bound by the
The civil case is one instituted by individual for the purpose of securing redress for a wrong,
which has been committed against him, and if he is successful he will be awarded money or other
personal relief.
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Generally, the purpose of evidentiary rules is to assist the court in establishing the truth
However, in criminal cases the law of evidence has further important purpose, that is, the
The main difference regarding evidentiary rules in civil and criminal cases lies on the
The appropriate standard of proof that will have to be satisfied in a criminal case is heavier
than in a civil case. In criminal proceeding, the public processor in order to win the case, he is
required to proof, beyond reasonable doubt. While in civil case the standard is preponderance of
evidence or probabilities.
The general rule in criminal cases is that the prosecution bears the burden of proving the
defendant's guilt and the substantive law defines what the prosecution must prove in order to
convict the
, in civil cases, the burden of proof first lies in the plaintiff. However, this burden of proof will
shift to the defendant if the defendant admits the allegations and come up with positive deface like
“counterclaim”. In such case, the burden of proof lies on the defendant (see Art 258 of civ.P.C ).
The main differences existed between civil and criminal proceeding regarding evidence i.e. on
burden and degree of proof. However, there are also another differences.
1. Less importance is attached to the principle of orality in civil proceedings, resulting in far
greater reliance up on the admission of evidence in documentary form. Because in civil cases,
most of the claims are raised from contractual, monetary or proprietary relation ships which could
mostly proved by adducing documentary evidences. While due to the very nature of ways of
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committing a crime, the public prosecutor mostly proves his allegation by providing an expert and
lay witnesses which are oral testimonies in most cases. And the crime, which could be proved by
documentary evidences, is less in numbers since they are being committed in a more
sophisticated way.
2. There is also a difference between civil and criminal proceedings regarding proof by
admissions. Firstly, in civil cases, the defendant shall deny each and every fact alleged by the
statement of claim specifically. [see Art 83 of civ.p.c]. And every allegations of fact in the
admitted in the statement of defense, shall be presumed admitted and the court shall give
judgment on such admitted facts. (see Art 242 of civic).While in criminal cases, where the accused
says nothing in answer to the charge, a plea of not guilty shall be entered. This means the silence
of the accused of the accused does not amounts to admission.(see Art 27, and 134(1) of civ.p.c].
Moreover, failure to cross-examine on a particular point does not constitute an admission of the
truth of the point by the opposite party. [See Art 140 of cr.p.c]
Secondly, in civil proceedings, where a party formally admits the truth of a fact in issue in
the case, the fact ceases to be in dispute between the particles. the courts are under obligation to
give judgments based on such admission without requiring the production of additional evidences.
(see Art 242 of civ.p.c).While in criminal cases judicial admissions are not conclusive. Of course,
when the accused admits without reservations every ingredient in the offence charged, the court
shall enter a plea of guilty and may forthwith convict the accused. However, the court may require
the prosecution to call such evidence for the prosecution, as it considers necessary and may
In criminal cases, the issue may be the question of life and death. So the court shall take a
due care that an innocent person not to be convicted and punished. So that, the courts are
expected to critically examine the reasons behind of the confession. Because sometimes innocent
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person may admit the commission of crime to cover another person, for fame or to be known
Direct evidence is provided by witnesses giving oral testimony of something they perceived
with their own senses. It is also afforded by the presentation of documents, photographs and the
like which the judge is required to interpret with his senses and includes the physical presence of
inference. It doesn't directly tell you or prove the existence or non-existence of the alleged or
disputed fact. But when you put them together, they form a chain leading to a logical conclusion.
For this reason, criminal cases built entirely on circumstantial evidence are the most difficult to
Chapter two:
Facts, which may be proved other than by evidence
2.1 Admitted facts.
What is admission?
Admission is a statement of fact, which waives or disputes with the production of evidence
by conceding that the fact asserted by the opponent is true. Because, what a person himself
admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the
fact admitted has to be taken as evidence. Because, in the normal course of things, a person does
not make himself liable by admitting facts against him self unless those allegations are true, and
he is expected to know facts relating to him better than any body else. That is why Rule 3 of DER
and Art 2002 of civil code considered party's admission as one kind of evidence.
Do you think the term “admission” is applicable in both civil and criminal cases?
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In some countries the term “admission” is only used in civil cases and “confession” in
criminal cases. While others used the term” admission” in both civil and criminal cases. But we
can take “confession” as a species of “admission” which is applicable only in criminal cases.
As can be witnessed from the FDER, the definition of confession is not given unlike that of
admission. Thus, if we say the term admission is used only in civil cases we are saying that a
statement of fact which waives the production of evidence can be made only in civil cases. But
this is not true for instance, Art 134 (1) of cr.p.c used the term “admission “in criminal cases by
saying “when the accused admits without reservation …''. More over, Art 19(5) of the FDRE
constitution used the term “admission” interchangeably with the term “confession” in criminal
cases by saying “persons arrested shall not be compelled to make confession or admission…”
Thus, we can say that our laws used the term “admission” in both civil and criminal cases even
though the Amharic version of these provisions used the term “ የእምነት ቃል” in criminal cases
and the term “ ማመን” in civil cases. But we cannot get such provision, which used the term
if it is satisfied from other circumstances that they are untrue. (see Art 134(2), 135 of cr.pc).
if the admission is vague or doubtful, the court may require proof even in civil cases.
Q. Does confession made by one of the co-offenders (conspirator) admissible against the
other co-offenders? the effect of confession shall be limited only on such person who made it.
Secondly, the public prosecutor cannot call one of the co- offenders as a witness against the
others in the same trial. This is because the accused may make incriminating statements against
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the other to make himself free. But if we allow him, we are contravening the constitutional right of
other conspirators to be presumed as innocence before conviction. 19/2 of FDRE con + 27/2 of
crpc. However, the public prosecutor can call the accused who choose to incriminate himself and
Admission may exist in the form of formal admission and informal admissions in both civil
A party may formally admit a fact in the pleadings in the case, i.e. in statement of claim or in
defense or in a counter claim or in reply either in pre trial or trial stage. So he may admit in open
court in the first hearing or at the trial. Moreover, in criminal cases a formal admission may be
made to a person in authority i.e. to the police officer in answers to interrogations. (Art 27 of
connected with the party that is adverse to that party's interests, and is most commonly made in a
letter, fax or an e mail. An informal admission may also be made orally in a witness's answer to a
However, there is a consensus that lesser weight shall be attached to the out of court
admissions given to an authorized person unless they are corroborated by other evidences. And
such an out-of court assertion potentially can be undercut if the party opponent is able to show
that he was joking or lying when he gave such assertion, or the other party's witness misperceived
Activity
Ato 'A' is the owner of a factory, which produces specific goods. He sells his products,
generally for cash, out of his factory. On an application for a bank loan, he stated that he had
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earned 70,000 birr from his business in the previous year. On his tax return, however, he indicated
15,000 net earning from his business. Ato “A” is now on trial for tax evasion. The prosecution
wants to introduce the bank application. Is the bank application admissible as a party admission?
Judicial admissions are those admissions made as part of the proceeding in the lawsuit. The
mere fact that the admission is made before the court of law does not make it a judicial admission.
To be considered as judicial admission, it should be given before the court, which handled the
case (trial court), and not in other courts as the case in Art 35 of cr.pc. Conculisive on the party
Extra- Judicial admissions as opposed to judicial admission are not made in the course of
court proceedings Ex. confession made before the investigative police.(see Art 27 of cr.P.c) Also
1. In civil cases
A. Facts expressly admitted in parties pleadings. (Art 83,242.Civ-p-c A party may formally
admit a fact in the pleadings in the case, i.e. in statement of claim or in defense or in a counter
claim or in reply.
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Admission is not only the one expressly made by the parties. Denial which is general may
be considered as admission by the rule of procedure. (Art 83 of civ-p-code). For instance, if the
defendant replies in his statement of defense as “I am not liable for the loan contract Consider Art
235 of civ-p-c
Under Art 196 of civ.c since capacity is presumed the plaintiff is not obliged to prove the
capacity of the defendant. Thus, those disabled persons may be sued without being represented.
But the court may be aware later about the fact of the in capacity of the defendant. In such case, if
the disabled defendant failed to deny the allegations specifically, the court shall not take his failure
(silence) as admission under Art 235(2). Rather at the time when the court aware a bout the fact
of the defendant's disability, it shall order the proceedings to be stayed until a legal representative
Do you think the court may use its discretion and require any fact so specifically admitted to
be proved? Consider Rule 50 of the DER
50 DER - No fact need be proved in any preceding which the parties there of or their agents
agree to admit at the hearing or which before the hearing they agree to admit by any writing under
before the hearing, they agree to admit by any writing under their hands, or which by any rule of
pleadings in force at the time they are deemed to have admitted by their pleadings.
Provided that the court may in its discretion, require the facts admitted to be proved
otherwise than by such admission. 235(2)
A formal admission may be made by a party or his pleader during examination of first
hearing pursuant to Art 241 and 242 of civ.p.c code or at a later time when called up on by the
court to indicate whether he admits a fact or not (see Art 243 of civ.p.c).
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May a party deny a certain fact in first hearing of which he has admitted previously in his
pleading?
(In Amharic “የካደውን ነገር ያምን ወይም ይክድ እንደሆነ ይጠይቀዋል”.From this we can
understand that he can admit what he has denied in his pleading Unless the court allow him to
amend his pleading under Art 91 of civ.p.c, because admission made in pleading is conclusive
and one can not withdraw later except with the permission of the court.
Facts may be admitted by a party in a written agreement made before the hearing with the
other party. This may be made even in response to a formal request to admit.
Where a party wishes his opponent to admit a fact in issue without the need to call evidence
to prove the fact at trial, a party may serve “a notice to admit facts” on the other side. Where the
fact is admitted, the opposing side is relieved of calling evidence in support of that fact at the trial.
In this point, Melin argue that, since the admission is given in such agreement which entered
outside of the court, it would remain evidentiary admission unless admitted to at the first hearing.
Do you agree?
2. In criminal Cases.
In criminal cases, Judicial admission refers to plea of guilty or not guilty 134. After having
read the whole charge to the accused, the court asks the accused whether he pleads guilty or not.
If he pleads guilty without reservation the court may enter plea of guilty.
Where he admits but with reservation, the court will enter plea of not guilty. Because, unlike
civil cases, in criminal cases the court can not split the facts and frame issues with respect to
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those which are denied. Here, a plea of guilty is a judicial admission of each and every elements
judicial admissions even though it may be made outside of the court. However, the effect of extra-
Judicial admission in criminal cases is different. This is due to the higher standard of proof
In criminal cases, an extra-Judicial admission may be made during police investigation (Art
The primary purpose of detaining and interrogating a suspect at a police station is to obtain
Is admission made before the courts other than the court having Jurisdiction over the case,
considered as evidentiary admissions?
In criminal cases, there is a difference on the admissibility of confessions made before the
trial court, and before other courts. But the confession made before other courts may be excluded
if it is contradicted by the accused person. For instance, a confession made before first instant
court under Art 35 of cr.p.c seems to be conclusively admissible since it is made before the court
of law.
But this is not true. Because the accused is required to confess before woreda court while
he is in police custody. Thus, if the accused chooses he can at his trial contradict or explain his
statement at the preliminary inquiry. He could for instance, allege that he made the statement
because he was afraid of the police, because he was confused or because he was paid to do so.
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(see Art 83(3) of cr.p.c). However, on the other hands, a judicial admission may not be
2.2 Presumption
What is presumption?
Presumption is an inference made about one fact from which the court is entitled to presume
certain other facts without having those facts directly prove by evidence.
Example.
Assume “A” and “B” are husband and wife who actually lives separately in consequence of
an agreement conclude between them, during which the child is conceived and born. Now the
basic fact. During proceedings accused persons have the right to be presumed innocent until
proved guilt according to law. (Art 20(3) of the FDRE constitution), and the burden of proof lies on
the public prosecutor to prove the guiltiness's of the accused person beyond reasonable doubt.
presumption of law.
Presumption of fact is logical inferences that can be drawn by experience upon proof of the
basic fact. Such inferences are mostly true in the normal course of things.
presumptions of law are presumption which the law requires the court to make. They are
mandatory in the sense that, where the law requires the court to presume a certain fact the court
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can not refuse to presume. These presumptions used the phrase” shall be deemed or
presumed”.
presumption of facts are not prescribed by law. Rather they are about logical inferences that
can be made from a given fact. This leads to the argument as to whether the issue of presumption
Presumptions of fact are not mandatory, rather they are permissive in the sense that the
Do all presumptions have the effect of shifting the burden of proof to another party?
The party in whose favor the presumption made is relieved from proving the fact in issue. In
principle, presumption has the effect of shifting the burden of proof from the party in who's
Thus irrebutable presumptions do not have the effect of shifting the burden of production to
another party. Once the person who has the irrebutable presumption on his side proves the basic
fact then the other party will be won without counter proof on his side, even if he has possible
2. Art 2035(2) of civil code provides “Ignorance of law is no excuse”. Does this provision
depend on presumption? If yes, is the presumption logically convincing? What about the
presumption provided under Art 346(2) civil code? N.B. Regarding irrebutable presumptions of law
consider the following articles. Art 128 of RFC, Art 3 (1) presumption of conception Art 4 (1),
Viability Art 672(2) irresponsibility/criminality of infants <9 years, 2020 civil code ete
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2.2.3.2 Rebutable presumptions.
legitimate where the primary fact is proven that he was born or conceived during the period of his
parent's lawful married life or irregular union. (Art 126 and 130 of RFC). However, the alleged
father to rebut the presumption of legitimacy may, for example, introduce evidence proving that he
could not have sexual intercourse with the mother during the period between the 300th and 180th
day before the birth of the child. (See Art 168 of RFC).
1. Bee swarms which have left their hive shall be deemed to things without a master.
2. The person in whose hive they settle down shall become the owner of such swarms
by virtue of occupation.
3. The former owner may take them back where he chases them and arrives where
they have settled immediately afterwards.
What is meant by permissive presumption and what makes it differ from other
presumptions?
The provisions of the law which provides permissive presumption contain the phrase” may
presume...” which shows its permissive nature. For instance, consider Art 22 of civil code which
provides” where a person refuses to submit himself to a medical examination had the object of
ascertaining not involving any serious danger for the human body the court may consider as
established the fact which the examination had the object of ascertaining”.
However, the party on whose favor the presumption is made cannot enforce the court to
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The third argument is the one which consider permissive presumptions as rebutable
presumptions even though the right of the party to rebut the presumption is depend on the
Speaking generally the term judicial notice refers to circumstances in which the judicial
system assumes a factual proposition to be true even without proof of that proposition.
For example, facts like city of Addis Ababa is the capital of Ethiopia, Guenbot 20 is a
holiday, criminals lead unhappy lives are among those facts of which the court will take judicial
notice.
In common law countries like England; the law recognizes two forms of judicial notice:
Judicial notice without inquiry at common law is taken in respect of those facts that are so
much part of common knowledge that they require no proof and cannot be rebutted in evidence.
The court may also take judicial notice without inquiry of certain matters prescribed by the law.
However, judicial notice after inquiry applies to those facts that are not so notorious or part
of common knowledge of which notice may be taken by the judge after he has made appropriate
inquires .
The inquiry may include referring to text books, works of reference, certificates from
government officials and oral statements from witnesses. Most cases, which fall in to this category
professional practice.
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Judicial notice can be classified as
Sidama Nation Culture and other common cultures), public holiday or places
B. Verifiable facts
What are veritable facts? Indisputablilty of facts is criteria for verifiable facts
The other category of facts of which the court may take judicial notice refers to veritable
facts as said earlier those facts are not so notorious or part of common knowledge but are facts
that can indisputably be ascertained by reference to authoritative means and those maters of
public knowledge.
records .The same is true regarding geographical facts and political subdivision of a state which
Judicial notice of law is the process by which the courts determine the applicable law in a
case. Because the issue that arise between parties may not only be issues of fact but also issues
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when the defendant admitted the allegation of the plaintiff, the later may require the court to
pass judgment on the admitted fact. But assume the defendant argue that there is no law which
makes him liable to the claimant by the mere fact of his admission. In such case, the plaintiff
should not be required to produce art 242 of civ.p.c to prove the above issue of law. Rather, the
court can take judicial notice of art 242 by referring it from the civil procedure code.
Regulations are always noticed since they are published in FNG But Directives made by the
executive are not published in the Federal Negarit Gazeta. Thus their existence will not be
Chapter three:
It is difficult to prove such psychological facts directly. Rather we can prove such facts by
taking circumstances cumulatively.
Fact in issue is the fact, which is disputed between the parties and to be resolved by the
help of evidence. Issue arises when a certain fact alleged to exist is denied by the other.
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A collateral fact is a fact which proves the minor issue which is relevant to the major fact in
issue
Secondly, fact which affects the credibility of a witness is a collateral fact since the weight to
Thirdly, collateral facts may have to be proved as a condition to the admissibility of certain
types of evidence. For example, in criminal case, it is represented that the accused's confession is
In accordance with Rule 3 of DER, “Relevant fact” means any fact which directly or
inferentially leads to one of the conclusions necessary to the proof or disproof of a fact in issue .
Relevant evidence has two components: materiality and probative value ( refer capacity to
Materiality refers the relational or logical r/nship to fact in issue aspect of relevancy. For
tendered and the fact to be proved. This connection may be either direct connection or indirect
connection with a fact in issue. If the evidence is offered to help prove a proposition which is not in
Thus it would be proper to raise an objection under Art 146 of cr.p.c or Art 270 of civ.P.c on
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''Relevant evidence” means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
A. Res Gestae- facts forming part of the same transaction. Eg. whether both fact occured at
the same time or place or at different time or place. Facts can be physical fact( like f**king,
beating) or Verbal/words fact ( spontaneous declaration or occurrence resulting from startling, not
(1) Occasion
The time, place and condition of a certain act help us to predict the possibility or
impossibility of something. If “ time, place and condition” do not exist together, the possibility of a
Occasion inquires in to the existence of a favorable environment for the alleged fact to exist
or not. For example TO steal , no police in the environment, or in the case whether A killed B by
knife is in issue, the time and place of the commission of a crime are relevant. A may kill B at day
time or at night. If B was killed at night, the question may a rise as to how a witness able to identify
the killer or the kinds of the knife i.e whether it is a china-made or not, unless there was an electric
light. Moreover, A may kill B in open market place, in dark corner or in forest. If the prosecution
alleged that B was killed in open market, the question may a rise as to the reason why the
persons in the market and the police officers failed to arrest the killer. Thus, proving the fact of
occasion is relevant to know whether there is a conductive environment or not for the alleged fact
to exist.
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ii. Cause or effect
A murdered B is at issues, marks on the ground produced by the struggle or the blood spots
at the place where the murder was committed are relevant facts since they are effects of the
crime.
I) Motive
Motive precedes intent that if you are given the motive you can prove intent. In criminal
cases where intention is the most important, proof of motive is a step forward to the proof of
ii. Preparation
Preparation is normally refers trying to obtain the means before and after commission of an
act. Preparation on the part of the accused to accomplish the crime charged, or to prevent its
discovery or to aid his escape, or to a avert suspicion from himself are relevant on the question of
his quilt.
The conduct or behavior of a party in relation to a fact in issue is relevant whether such
conduct is previous or subsequent to the occurrences of the fact in issue, for example, previous
conduct like displacing family & ppty or subsequent like abscond, hiding during murder, theft etc.
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3.4 Relevancy of Confession
The accused may voluntarily confess for all sort of reasons, for instance to protect some one
or to avoid embarrassment for themselves or others even where they are innocent of the
allegations made against them. Thus, unless a given confession is true it shall not be relevant
evidence. And court may require the prosecution to call evidence. This is the case of excluding a
2. The defendant was suspected of having stolen goods and theft. A police constable posing
as a potential buyer agreed to buy car from the defendant. In the course of the conversation, the
constable asked the defendant how long the car had been stolen. He replied that two or three
days earlier. May the court admit the above confessions? Why/ why not?
Circumstantial evidence is evidence that proves a certain fact indirectly. This evidence is
depends on the surrounding circumstances.
3. Retrospectant evidence.
Prospectant evidence is when the existence of a certain fact is at issue, the existence of
previous thing or mental status is relevant. For example, a rainy afternoon is substantially more
likely when we know the morning was cloudy than it was before we knew whether it was cloudy or
not.
issue, the occurrence of other facts at the same time by the same person are relevant as a
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concomitant evidence. For instance, if the question is whether “A” committed murder at Gondar in
specific minutes of an hour and day or not, the fact that, on the day and minutes of the hour, “A”
Retrospectant evidence is the opposite of prospectant evidence. It is the case when the
existence of the later fact refer the existence of the former or which is based on back ward looking
style of reasoning. If it is a material issue whether “A” killed the stranger “B” or not ,evidence that
“A” was driving at high speed and failed to stop even at red traffic light is relevant since after a
When we talk about similar occurrences, the question that comes to mind is “similar to
what?” Here, similarity is similarity to the fact in issue or disputed fact. If the issue to be resolved
before the court is fraud, similarity refers other previous act of fraud committed by the same
person.
The fact that, he had done similar acts before does not justify the conclusion that for
However, similar occurrence shall not be used to prove a fact in issue. Because, like
Even though evidence of similar occurrences are not relevant to prove a fact in issue, they
are relevant to prove whether a person did something intentionally or accidentally. The task of
determining the existence of sufficient relation between the act in question and those similar
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Similar occurrences to be relevant, there must have the same characteristics with the act in
question. Firstly, if the issue to be resolved before the court is fraudulent act, it is not relevant to
produce previous acts of theft. Secondly, previous similar fraudulent acts must have similar
For instance, a trader “A” was found selling banana mixed butter in her shop repeatedly.
One time a buyer after he has bought butter discovers that it is banana mixed. Now similar sale of
banana mixed butter is relevant since it may help us to establish the element of knowledge and
there by indicate that the defendant's participation in the alleged fraudulent scheme was not
innocent or accidental,
Generally, judgments of civil court are not relevant and binding evidence on criminal courts.
This is due to the reason that the standard of proof required for each case, criminal or civil is
different. In criminal courts, the standard of proof is the formula of beyond reasonable doubt while
in civil cases decision is based on preponderance of evidence. Thus, evidence which is sufficient
for civil cases may not be strong enough to prove guilt in criminal case.
Is evidence of the criminal court judgment admissible in a civil case in Ethiopia dealing with
the same matter?
To answer this question let us examine the relevancy of criminal court judgment in two
A. Joined suits
Where the accused is convicted this criminal conviction will have a direct relevancy to
determine the civil liability of the accused. This is due to the reason that the standard of proof
required in criminal case is higher than that of civil case. Thus, evidence which is sufficient for
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criminal case is more than enough to prove liability in civil cases. Here, once the civil liability of the
accused is determined by the criminal court, the injured party shall not be allowed to institute the
same civil suit in civil court due to the principle of Res-judicata. (see Art 5ofciv.p.c)
However, where the accused is acquitted or discharged, the question of civil liability or
compensation shall not be adjudicated by the then criminal court. Rather, the court shall inform
the injured party that he may file acclaim against the accused in civil court having jurisdiction (see
Art 158 of cr.p.c).Thus; the acquittal judgment of the criminal court does not have any relevancy in
civil cases.
B. Non-Joined suits
If the result in the criminal court was acquittal or discharge, Art 2149 of civil code specifically
provides that the criminal court judgment shall not have abiding effect up on the civil court in
deciding whether an offence has been committed. Because, in the first place a certain act may be
considered as a non- criminal act due to the fact that it is not provided in criminal code. Moreover,
even though the act is a crime, the accused may be acquitted due to the fact that the alleged act
is made through necessity, self-defense or unforeseeable accident. But, on the other hand, in
extra-contractual case the slogan is “every damage caused shall be good”. Thus, a person who is
acquitted in criminal case may be held liable in civil case. Furthermore, the “beyond reasonable
doubt” standard of proof in criminal case justifies the non-admissibility of criminal acquittal in civil
case.
However, even though the court is not bound by an acquittal or discharge by a criminal
court, it may of its own motion or on the application of any of the parties to a suit requires the
production of records or judgments of criminal court. (see Art 145 (1) of civ-p.c)
When the result in the criminal court is conviction, there in no provision which explicitly
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Even though Art 2149 of civil code specifically states that an acquittal is not binding on the
civil court, it does not provide the binding effect of criminal conviction in civil cases.
to guarantee fact to be admissible in court of law or before other decision making organ
authorized by law. This is because there are legal prohibitions against some relevant facts to be
produced as evidence for social and public policy reasons as stated below.
There is the principle of law of evidence that evidence that is not relevant is not admissible.
If evidence is not relevant to some fact of consequence to determination of the action, then there
However, relevancy does not guarantee admissibility, For example, relevant evidence may
policies operates to exclude relevant evidence like in the case of evidence protected by private
Evidence is in admissible if rejected for some reason other than relevancy. Admissibility is,
there fore, abroad concept under which rules for exclusion of evidence irrespective of its relevancy
are grouped. Thus, inadmissible evidence may not be received before a court, no matter what is
relevance might be. So, we can say all relevant evidence are not admissible but all admissible
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Public policy and privilege
1. Public policy.
Even though, the evidence is relevant, it may be prohibited from being produced as
evidence before the court of law. This is because if they are disclosed, the national interest and
2. Privilege
The purpose of excluding certain relevant evidences from being produced before the court
of law in the name of privilege is to protect certain social interest, which prevails over the
individual interest. For instance, no person who has been married shall be compelled to disclose
any communication made to him during marriage by the person to whom he is or has been
married.
This is the case of spousal privilege provides to protect the marriage or the family from
Similarly, there are privileges provides to protect professional secrecy like in the cases of
Can you state the best evidence rule? Does the principle of the best evidence rule have an
exception? proof of document content by document itself
The best evidence rule provides that the best proof of a document's content is the
document itself. A written document can only be proved by the instrumentality of itself. In proving
the terms of writing, where such terms are material, the original writing must be produced, unless
it is established that the document evidencing the contract has been destroyed, stolen or lost
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What is the essence of the parole evidence rule?
The parole evidence rule restricts the use of extrinsic evidence be it oral or written and
requires that the party proves his case exclusively by the evidence of the contents of a writing.
As opposed to the best evidence rule, the parole (oral) evidence rule does not require that
the evidence of the document be the document itself not oral or other evidence of the contents.
Instead, it simply limits proof of the fact to the contents of the writing and prohibits consideration of
any evidence which contradicts, alter, vary, change, and modify any of the terms or provisions of
For instance, “A” instituted claim against “B” on the breach of loan contract. And he annexed
the original document signed by the defendant on the value of 1600 birr. But the defendant
disagrees as to the amount of the loan he borrowed. And he provides a defense witnesses who
are ready to testify that the amount of loan is not as prescribed as in the contract. Rather it is
1060. In this case, the court shall not accept the defendant's witnesses. Since neither party is
permitted subsequently to show that the contract they made is different from the terms and
provisions as they appear in the written agreement( basing parole evidence rule) .
Competence of witnesses
What do you think must a person fulfill to be a witness?
Ordinarily, competence refers to capacity of a person to do something. Here, competency of a witness
takes to the inquiry as to which persons are capable to testify or are competent witnesses.
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A) Types of Competency of Witnesses
The witness' competency is classified in to two; general competency and special competency.
i) General Competency
General competency refers to the witness` ability to testify to facts he has observed. In simplistic
terms, it is about telling to the court what one has heard, seen, smelt, touched, etc. It is widely accepted that
every body is presumed to be competent.
For that matter, it would be a waste of court time to conduct an inquiry in to the competency of every
witness testimony. But from the allegation of opposing counsel that there is reason to question the witness’s
competence, an inquiry into general competence will be made.
the ability to understand questions and give rational answers. To put it in another way, competency of
a person is determined by his ability to perceive, remember, communicate and understand the duty to tell
truth.
Unlike general competency of witnesses, special competency is not presumed. Special competency of
witnesses is subdivided in to two: layman’s opinion, and expert opinion given as testimonies.
“The witnesses…competency is the rule, their incompetence the exception, and that incompetence
lies within a very narrow compass.” Thus, the above quotation may enable us to say that the competency of
ordinary witness is the general rule while their incompetence is the exception.
This covers those persons, who have visual, hearing, and speaking deficiencies. Such persons can, in
principle, perceive the occurrence or non-occurrence of certain events. However, defects such as blindness,
deaf or dumb may impair the power of observation to make a given witness incompetent to testify.
Author Yohanan Yokamo stated that even though there is no law which govern physical incapacity in
Ethiopia, it shouldn't be merely considered a bar to a witness competency as long as he can understand the
questions put to him and give rational reply by signs or writings.
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4.5.1.3 Legal interdiction (Conviction of a crime)
In present Ethiopia this is no longer a bar to competency of a witness. a witness may be asked about prior
convictions to impeach his credit. In Ethiopia, if the witness is also the defendant, the prosecutor may not impeach his
credit by proof of prior conviction at any time prior to conviction in the case before the court.
4.5.1.4 Having Interest in the outcome of the case as ground of incompetence
This ground of in competency covers different types of persons, i.e., parties to the case, consanguinal
and affinal relatives, other emotional grounds and so on. These grounds are inherently linked with the
bearing of biases.
There is no such restriction in the present times. The ground has no relevance with regard to the
competency or incompetence of a witness. Simply, the witness is presumed to be competent if he meets the
requirements laid down as:
- As per Art 93 of the DER, in all civil proceedings the parties to the suit and the husband or
wife of any party to the suit, shall be competent witnesses; and
- As per Art 94 (1) & (2) of the DER in criminal proceedings against any person, the husband
or wife of such person shall be a competent witness if called by the accused, or for an offence committed
against the wife or husband such wife or husband shall be a competent witness for the prosecution.
4.5.1.5 Lack of competency for opinion testimony - another ground for incompetency
For example, Lay man opinion lack competency to expert witness
The objective of the rule against hearsay is to prohibit the use of a person’s assertion, as equivalent to
testimony to the fact asserted, unless the assertor is brought to testify in the court on the stand where he/she
may be placed under oath and cross- examination.
Is hearsay evidence admissible in Ethiopian as a rule?
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There are different out looks regarding the admissibility of hearsay evidences in Ethiopia. Both Art
137(1) and Art 263(1) of the Ethiopian criminal procedures and civil procedure codes respectively provide
that “questions put in examination in chief shall only relate to facts which are relevant to the issue to be
decided and to such facts only of which the witness has direct or indirect knowledge’’. Here, some provides
that the phrase “indirect knowledge” in the above provisions include ‘hearsay evidence’. Thus, they argued
that, in Ethiopia hearsay evidence is admissible as a rule, not as an exception. While, other argue that the
phrase ‘indirect knowledge’ implies the circumstantial evidences rather than hearsay evidence.
They provides that since admitting hearsay evidence as a rule is against the constitutional rights of the
accused to confront his accusers as provided under Art.20 (4) of the FDRE constitution, we have to admit
hearsay evidence only in exceptional circumstances as that of common law countries. When we see the
practice of our courts it is clear there is confusion on admissibility of hearsay evidence. There is no uniform
application of the rule; some judges admit it while others do not.
Absence of cross- examination is the most important justification to exclude hearsay statement,
because the declaration was made out of court rather than before the court, and not subject to the test of
cross- examination which is the greatest legal engine invented for discovery of truth.
B. Absence of oath
The other most important reason next to cross examination is that the declarant is not under oath.
“hearsay statement is not testimony” due to the lack of oath purposes like solemnity of the proceedings and
court’s commitment to the truth and the witness’s legal duty to tell the whole truth.
C. Testimonial infirmities
like problem of perception, fault memory, ambiguity & distortion in r/n to an oral statement
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ii. Statements made in the ordinary course of Business
1) any entry or memorandum made by him in books kept in the ordinary course of business or
in the discharge of a professional duty; or
2) an acknowledgement written or signed by him of the receipt of money; goods , securities or
property of any kind; or
3) a document used in commerce written or signed by him; or
4) the date of a letter or other documents usually dated, written or signed by him.
iii. Declarations against interest Art 29/c of DER
When it is against the pecuniary or proprietary interest of the person making it, or when, if true, it
would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
IV. Statement of opinion as to the existence of a public or general rights or custom
V. Statement of Pedigree, refers about the existence of consagunal or affinal r/n pedigree means in
oxford, coming from a family of the same breed that has been officially recorded for a long time and is thought to be of a good quality
pedigree sheep . It Should be made before suit
there are different types of professional privileges stated in one or more national laws. in this sub
topic we will deal only two types which are commonly enacted by all nations: the attorney-client and
doctor-patient privileges.
i. Attorney-client privilege
The main purpose of attorney-client privilege is to facilitate informed legal services by assuring the
clients that the statements made with their attorneys will not be disclosed to third persons including the
court.
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ii. Doctor-patient privileges
C. Marital privileges
i. The “confidential communications” privilege in the marital context
The confidential marital communications privilege permits the suppression in any civil or criminal
case of so much of a spouse’s testimony as may reveal confidences passed between the spouses by reason of
the marital relationship.
SUMMARY
Oral evidence is the most important mechanism for proving a certain fact in issue or a relevant fact. It
is ordinary kind of evidence given by witness by word of mouth. the witness must be a person with
knowledge of the fact to be proved that he got either directly or indirectly. Though it is the basic evidence to
prove a certain fact, more weight is given to it in the common law legal system countries than the civil law.
The Ethiopian tradition of litigation has always depended on the importance of oral evidence.
As oral evidence is to be made by witnesses, they shall be competent to give a valid testimony before
the court. The principle with regard to competence is that every physical person is capable of giving his
testimony before a court. The only requirements are that the person must have the capacity to comprehend
the facts for which he wants to testify and that he must understand the consequences of giving false
testimony. The grounds of incompetence are minority and senility, physical impairment and professional
incompetence. These grounds will be impediments as long as they affect the capacity of the person to
comprehend the facts or the understanding of the effect of giving untrue testimony. For instance, a child of
whatever age can testify to the extent of his understanding of the fact and consequences of his testimony.
Being a witness is both a right and duty of individuals. If anybody having the knowledge of a certain
fact wants to testify, he has the right to do so. On the other hand, a person with some information which is
necessary for the determination of a dispute can be obliged to give his testimony. The concept of privilege is
the only exception for this rule. A person with privilege will either not be allowed to testify or will not be
forced to testify.
Right against self incrimination is one type of privilege. A person will not be obliged to give a
testimony on a fact if that fact will reveal his criminal act. This right is a constitutionally guaranteed
fundamental right of individuals.
Privilege can also emanate from the need for secrecy in some government offices. Communication
made by a patient with his doctor in the course of treatment is also a privileged statement and cannot be
disclosed by the doctor and the court cannot force the doctor to give such evidence. The same applies with
the attorney-client relationship. Marital communication is also privileged with some exceptions.
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CHAPTER FIVE:
REAL EVIDENCE
real evidence comprises of documents and physical objects in various forms. Not all documents and
physical objects are real evidences to prove a fact unless they satisfy the tests of authentication and
corroboration, respectively. The following sub-sections present a detailed discussion on those two types of
real evidences turn by turn.
5.1 Demonstrative evidence or( corroborative evidence)
Demonstrative evidence is evidence in the form of a representation of an object. It is corroborative
evidence , means it cannot stand by itself, there must be other piece of evidence. Examples include photos,
x-rays, videotapes, movies, sound recordings, diagrams, maps, drawings, graphs, animations, simulation,
and models
Here is a list of illustrative facts used as demonstrative evidence:
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5.2. Documentary evidence
Document is defined in the draft evidence rules as any matter expressed or described upon any
substance by means of letters figures, marks, or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter.
Documentary evidence is subject to specific forms of authentication, usually through the testimony of
an eyewitness to the execution of the document, or to the testimony of the witness who able to identify the
handwriting of the purported author. Documentary evidence is also subject to the best evidence rule, which
requires that the original document unless there is a good reason not to do so.
E) Opinions of experts
Authentication by expert witnesses refers to proof of authorship depending on the opinion of a
person who has specialty on identifying the writing of persons. These persons are called expert witnesses for
they form conclusions based on inferences.
5.4. Best evidence rule
Authentication alone is not a sufficient for the admission of documentary evidence as proof but must
also be qualified by the best evidence rule, which states the contents of a document can only be proved by
adducing the original document itself.
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What do you think the situation in our legal system?
5.5 Proof of contents of documents
i) Primary (Best) evidence
Primary evidence is defined in rule 54 of the draft evidence rules as the document it self (the original)
produced for the inspection of the court.
ii) Secondary evidence
The contents of documents may be proved by secondary evidence where primary evidence could not
be found. Secondary evidence is the second next alternative for proving the contents of a document
55. Secondary evidence means and includes:
1. Copies given under the provisions hereinafter contained;
2. Copies made from the original by mechanical processes which in themselves insure the
accuracy of the copy, and copies Compared with such copies;
3. Copies made from or compared with the original;
4. Counterparts of documents as against the parties who did not execute them;
5. Oral accounts of the contents of a document given by some person who has himself seen it.
The other important type of evidence discussed under this chapter is documentary evidence. It is the
most reliable sort of evidence. But, in order the contents of documents to be reliable and admissible, they
have to be authenticated. The manner of authentication may be by the acknowledgement of the one who has
prepared them, by concerned government officials, or based on expert opinion as the case may be. As the
best evidence rule dictates, primary (original) documents should be produced not copies except in special
cases as discussed in the text.
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CHAPTER SIX: BURDEN AND STANDARD OF PROOF
6.1 Meaning and concept of burden of proof
Burden of proof is a term, which describes two different aspects of burdens, burden of
production and burden of persuasion. Black’s law dictionary for then explains that burden of
production may shift back and forth between the parties as the trial progresses. But burden of
persuasion can’t shift at any stage
The burden of proof may require a party to raise a reasonable doubt concerning the existence of the
fact by preponderance of evidence or clear and convincing proof or by proof beyond reasonable doubt .In
criminal cases all the elements a crime must be proved by the government beyond reasonable doubt.
Standard of proof is an important concept required to be met by the party who has burden of
persuasion. In order the court be satisfied with the evidence produced and be in a position to
render its verdict, the concerned party should meet the degree of proof required by legally
accepted principles..
The "standard of proof" is the level of proof required in a legal action to discharge the
burden of proof, that is to convince the court that a given proposition is true. The degree of proof
required depends on the circumstances of the proposition. Typically, most countries have two
Balance of probabilities, also known as the preponderance of the evidence, is the standard
required in most civil cases. The standard is met if the proposition is more likely to be true than not
true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the
proposition is true.
Clear and convincing evidence is the higher level of burden of persuasion sometimes
employed .To prove something by "clear and convincing evidence", the party with the burden of
proof must convince the trier of fact that it is substantially more likely than not that the thing is in
fact true. This is a lesser requirement than "proof beyond a reasonable doubt",
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6.2.2 In criminal cases
In criminal cases the guilty of the accused must be proved by the so called standard of
‘beyond resonable doubt’. This is the standard required by the prosecution in most criminal cases
within an adversarial system and is the highest level of burden of persuasion. This means that the
proposition being presented by the government must be proven to the extent that there is no
"reasonable doubt" in the mind of a reasonable person that the defendant is guilty.
Summary
Burden of proof constitutes burden of production (evidentiary burden) and burden of persuasion
(legal burden). The former refers to making available of sufficient amount of evidence at the disposal of the
court. On the other hand, burden of persuasion is to mean the obligation to persuade the court to the
standard required by the nature of the case using the evidence produced by either party.
In general, the plaintiff and public prosecutor in civil matters and criminal proceeding respectively
bear burden of proof. The justification for this rule is because in most cases it is believed that positive
assertion is easier than negative disclaim in proving one’s innocence. In addition, in criminal matters the
underlying reasons for the adoption of the general principle that the prosecution must prove the guilt of the
accused is because many courtiers including Ethiopia enshrine in their constitution, individuals’ rights to be
presumed innocent until proven guilty and the right not to incriminate one self realizing the right to remain
silent. Defendants in criminal proceeding are not duty bound to defend them selves/ to testify against
themselves/ and are entitled to remain silent through the trial.
Notwithstanding the application of the general rule, in some exceptional situations the burden of
proof may shift to the defendant both in civil and criminal proceedings. In civil matter this happens where
the defendant admitted the claim of the plaintiff and raised affirmative defense. In criminal matters on the
other hand, the burden of proof shifts to the accused when proof by the public prosecutor is difficult but
easier for the accused to produce evidence.
The standard of proof required in persuading the court differs in civil and criminal litigations. In civil
suit, the evidence which could show a happening of a fact to be more probable than to be improbable is
enough establish the occurrence of the alleged fact. Here, the rule is preponderance of evidence; the court
could decide in favour of the one who has produced evidence weighed more than of the other party.
But, in criminal charge in order to convict an accused, the guilty of the latter must be proved beyond
reasonable doubt. This shows that in criminal cases there is a need of high degree of proof for various
reasons as stated above.
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5. Conflict of Laws 4 Cr. hrs.
Unit One
General Introduction to Conflicts
This field of study is known by many names. The most used ones are Private
International Law and Conflict of Laws. It is known as Private International Law in many
Civil Law Legal System following countries mainly because it regulates private cases of
citizens, domiciliaries or residents of two or more politically independent territories.
In the definition of this discipline, the main element is 'foreign element'. A case is said
to contain a foreign element if one of the following three situations exist: a person is from
another jurisdiction, a transaction is concluded in another jurisdiction or an event which is a
cause to the case happened in other jurisdiction and thirdly an immovable or movable is
situated abroad.
Conflicts cases could arise at both international and national arena (for the latter, as
between federating units). This is because transactions do occur in both situations. We
cannot avoid it. The cases arise as of necessity. In this connection, states or regions of a
given federation are, for conflict of laws purpose, considered as independent states.
Traditionally, the scope of conflict of laws is divided into three: judicial jurisdiction,
choice of law and recognition and enforcement of foreign judgments. However, there are
some countries that limit the scope into the first two. On the contrary, some other states add
more elements.
This field does not have a settled and universally acceptable theory. Legal systems do
have their own justification why they entertain cases containing foreign elements, why they
apply a foreign law, and why they do recognize or enforce a judgment rendered abroad. To
this effect, so many theories were developed. These theories are, according to the
chronology they happen in this world, discussed in this material. The case of Ethiopia is also
touched. Even though there were attempts, Ethiopia does not have a full-fledged law on the
score. The only law we have is those of few rules on enforcement (excluding recognition) of
foreign judgments and arbitral awards. Despite this problem, Ethiopian judges were deciding
cases containing foreign elements following various approaches in both judicial jurisdiction
and choice of laws.
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Unit Two
Adjudicatory/Judicial Jurisdiction
2.1 Meaning
“Judicial Jurisdiction” is the authority or power of the courts of a particular state to
try a case of Private International Law. Private International Law shall be understood, for
our purpose here, as a branch of law dealing with cases containing a foreign element.
Where one of the parties to the case is a foreign national or domiciliary, or the act or event
in issue took place in a foreign country or the property in dispute is located abroad, then the
case contains a foreign element. Conflict of laws may arise in a federal context as well. In
this article, however, we refer only to the international “conflict of laws”.
A case is deemed to be of conflict of law character when it contains a foreign element
which may pertain to personal nature that one of the parties, at least, is domiciliary or a
resident or a citizen of a state other than the local forum; or that the action arose elsewhere
or that the subject matter of the dispute is situated in a place other than the forum state.
Some legal concepts abt CoL in 14th Century
- Law of situs/ lex reisitae - the law of the place w/r the thing is situated applies for
Immovabl ppty
- Lex loci actus - the law of the place w/r the parties acted( eg k, will) assumed as a
governing Law
- Lex loci contractus- law of z place w/r the k is entered into assumed as gov law
-lex Loci solutionis - law of performance should apply for Q of execution
-Lex loci dilicti- law of z place w/r the wrong happined applies for liability of tort
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# Vested theory - Rights ones created, they would have an effect every where provided
that the court has jurisdiction. eg. maintenance rights in Ethiopia, has effect on Japan even
though no such right exist in Japan law. Japan ct should recognize.. eg. , implied consent of
owner...
# Highly Homologous theory - Forum take other's law as a model. Forum courts
creates under its own law as nearly as identical to the right created by the foriegn law/state
having jurisdiction to create right. Forum take other's law as a model to create a right like
compensation. this theory is rigid and inflexible
# Local Law theory - it considers the social, eco & pol conditions. it is policy oriented
pragmatic/utilitarian implication.
# Lex fori & governmental interest theory- the law of forum is the basic law of cts,
courts use foriegn law just to fill the gap in the lex fori/law of forum. It is also public
oriented theory like local law theory.
The Civil Law emphasizes the defendant's domicile as a primary basis of jurisdiction,
both at the international and within a given nation.
Whereas in the Common Law the physical presence of the defendant within the
territorial jurisdiction of a forum suffices in order to assert jurisdiction against him.
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2.2.3 The Fairness Theory
The fairness theory approaches the problem of judicial jurisdiction from various
perspectives. In a simple parlance, elsewhere because the world shares fairness as a
common value, and that a judgment which reflects a measure of fairness has high normative
value in compelling a state to extend recognition.
When we think of place of trial, we are likely to raise certain issues concerning the
convenience of a forum, such as the cost of litigation, the convenience of requiring witnesses
to travel to the forum, the availability of evidence and other economic factors.
In various states, in our modern times, the parties’ consent or choice as to the place of
trial is regarded as a major basis for the assertion of judicial jurisdiction.
The first limitation pertains to the nature of the agreement. That is, if the forum-
selection clause is only for the benefit of one of the parties, that party retains the right to sue
the other party in any other court which has jurisdiction by virtue of the basis of jurisdiction .
The use of the term ‘general jurisdiction’ is better understood by contrast to the
concept of limited or special jurisdiction.
A court of limited jurisdiction is one which is restricted only to those classes of cases
specifically listed under legislations, constitution or other legal sources of the sovereign
establishing the court. However, a court of general jurisdiction is one that is conferred with
jurisdiction over any cases except those which supply exclusive jurisdiction of another court
or that given to the court of limited jurisdiction. The question which court is conferred with
general jurisdiction as opposed to limited jurisdiction is a matter of domestic law which is
not bound to be identical in all states.
2.4. Exclusive Jurisdiction
Matters which fall under exclusive jurisdiction are normally those which by their
nature posses insurmountable difficulties of enforcement procedure mainly due to the
involvement of third parties interest in the local forum, or that certain crucial evidences are
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accessible only in one state, or because of the need of the local forum to handle certain cases
which it thinks require strict surveillance by itself.
2.5. State and Federal Courts' Jurisdictions
The division of jurisdiction in a federal system is an aspect of the distribution of power
between state and federal governments.
The Dual Judicial system is a completely different arrangement. According to this
system, each government, state and federal, establishes its own hierarchy of courts which is
autonomous and self contained.
In each federal and state court there exist courts of first instance and at the apex a
Supreme Court of last resort. The Dual Court character, however, does not imply the total
demise of the relationship of the federal and state courts.
The state and federal courts may constitutionally be empowered to exercise concurrent
jurisdiction over certain federal matters.
The FDRE Constitution provides that the Federal Supreme Court shall have the highest
and final judicial power over federal matters, and State Supreme Courts shall have the
highest and final judicial power over state matters. This is one aspect of the dual court
system. However, the duality feature does not seem to be consistently applied.
According to Art 80 sub Art 3(a) of the FDRE Constitution, the Federal Supreme Court
is empowered to exercise a power of cassation over any final court decisions containing a
basic error of law.
Thus, we can conclude that the federal court system envisaged under the FDRE
Constitution is of a unique arrangement in the sense that it inherits features of both federal
court systems, dual and unified,.
Under our Constitution, too, residual power is reserved to states. Accordingly, Art 52,
sub Art.1 of the FDRE constitution provides that "all powers not given expressly to the
federal government alone, or concurrently to the federal government and the states are
reserved to the states".
2.6. Interstate Choice of Jurisdiction
The HPR is the only authority which can define the content and scope of 'federal
matters', no one else can determine the choice of jurisdiction rules over federal matters.
However strong such postulation may be, the authority to define the 'federal matter' implies
the power to determine choice of jurisdiction rules;
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2.8. Suits Between Permanent Residents of Different States
Among the federal matters envisaged under the Federal Courts Establishment
Proclamation 25/95, the obvious matter which is of interstate, or private international law
character pertains to suits between permanent residents of different states. According to Art
5 sub Art 2 cum Art 11 sub Art 2, the Federal High Court is empowered to exercise first
instance jurisdiction, without requirement of amount, over disputes between permanent
residents of different states.
2.9. Limitations on the Exercise of Judicial Jurisdiction
1) Forum non convenience, 2) Pendency and 3) austere clauses
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involves foreign elements. for eg. like Highly homologous theory, the forum cts may use
the law the foreign country as a model to decide on a particular case. To put it differently,
the choice of the applicable rule of the forum state would operate upon satisfaction of some
mechanical rules, means it has to look final outcome whether just or not.
2.11. Judicial Jurisdiction in Ethiopia
Contract
Courts establish jurisdiction to entertain contractual disputes if either the contract is
created or is to be performed or both with n the forum state.
As general principle, Parties may choose or legislate law's of country to be applied on
the K. for Eg. In Vita Food Products Vs. Unus shpping co. - So long as the choice is bona fid
& legal & should not violate the public policy, parties should not be precluded from
choosing.
When the law is not chosen, there are 2 options,
1- lex loci contractus - the law of the place w/r parties attempted to enter into k. It is
being criticized when it is entered accidently & or for short lived connecton
2. Proper law of k - modern accepted one, defined by Brussels convention as 'the
closest & most real connection/relationship with the contract applies
Tort/Unlawful Enrichment
With respect of tort, the pertinent criteria are place of tortuous act or place of injury or
both. ( Lex loci deliciti comicci)
Property
In all states the law of situs of the object in dispute determines jurisdiction over - of
property specially Immovable ppty.
The COL relates with movables, where the law of the place of transfer applies. so w/r
the ppty was at the time of transfer matter
Verginella V. Antoniani, the couple was married in Dessie and resided in Addis Ababa
until the wife later left the conjugal home and went to Italy. The husband petitioned for
judicial separation on the ground of desertion.(the Civil Code was not enacted yet).
The court started: “The first question to be determined in this case is which law is
applicable to the present circumstances”. Then, it went into the choice of law process.
Judicial jurisdiction was not established.
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Abebech Wolde V. Estate of Signor Konstantinov Escrapino is another example. The
couple was married in Addis Ababa and Escrapino lived with his wife for more than five
years. Following his death, the wife claimed to succeed to his property on the basis of Italian
law. The court reasoned that the marriage was concluded according to Ethiopian law, and
any issue arising there from shall be resolved in accordance with Ethiopian law. Even
though this choice of law decision itself is questionable, we will focus here on the omission
of the court to mention proclamation 25/1996, the Federal High Court has jurisdiction over
Private International Law matters/ Art. 11/2/a.
Similarly, in Nediya Chartes V. Estate of Antonio Chartes, the court failed to raise the
issue of judicial jurisdiction. Antonio Chartes was a Kenyan national. The spouses lived in
Ethiopia till the husband traveled to Italy where he died. The wife claims a succession right
over the property of the deceased. The suit was filed at the First Instance Court, which
declined to entertain it on the ground of absence of subject matter jurisdiction. The Federal
High Court recognized the case as one of Private International Law. It directly passed to the
choice of law process. Since the spouses resided in Ethiopia, succession to the property of
one spouse by the other shall be governed by Ethiopian law. The merit of this decision aside,
it must be underlined that the issue of judicial jurisdiction was not raised at all;
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The main ones are theories or possible bases of judicial jurisdiction. There are
-----------------------------
While the first one is territorial power theory, Territorial power theory rests on the
thinking that a country has got jurisdiction on any person and property happened to exist in
its territory. That means a country will not have power out side its territory.
the second one is that of minimum contact theory. As per the contact theory a state
will entertain a case containing a foreign element if in one way or another it is connected
with the case. The test is if either parties of the case or the subject matter of the case is
related with the state.
The 3rd is fairness theory, . Fairness theory cannot stand on its own. It works if used
together with the contact theory. Fairness element will be considered in order to decide
which state amongst those related with the case should entertain the case. The fairness one
also tries to find out a middle ground between the litigants rather than favoring the
defendant.
4th domicile theory. In the domicile case, it is normally the domicile of the defendant
that has jurisdiction.
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Some countries also use the theory of nationality. That means the state where the
defendant is a national will see the case.
Finally theory of submission, although a state may not have adjudicatory jurisdiction,
the parties of the case can empower a court through various possibilities.
Unit Three
Choice of Law
3.1. Methods
Choice-of law is the core element of the conflicts discipline. In the discipline of
conflicts, the methods can be crudely categorized into unilateralism, multilateralism, and
substantive law approaches.
# A unilateralist approach is premised on the idea that a state can only determine
when its own law could be applied to a case.
# multilateral approach - The interposition of choice-of-law rules between multistate
transactions and legal systems is called the multilateral approach.
# substantive law approach- third and a bit different from the above two approaches
is the substantive law/policy approach which is a policy -oriented approach in which
substantive policies directly determine the outcome of the choice-of- law process.
3.2.2. Renvoi
- is a method or technique for resolving problems that invariably arises out of the d/ce
b/n the connecting factor used by the forum law & that of the law to w/c the forum
connecting factor refers.
Renvoi is a French word literally meaning ‘to send back.’
An Englishman dies domiciled in France and a question arises in an English court as to
the distribution of tangible movable property which he leaves in England. It is a well
established English law that a decedent’s property is distributed on death according to “the
law of the country of his domicile”. Let us say, however, that the conflict of laws rule
applicable in France is that an alien decedent’s property is to be distributed according to “the
law of the county of his nationality”, which in our case is English. While characterizing, the
choice of law rules of the forum might call/ refer for the law of another state to be applied.
Options for Renvoi as a problem
I. Rejecting the renvoi. - rejecting the reference back to forum. The reference to the
foreign law does not include to the choice of law rules of the latter. (We will elaborate this
below.) eg. Eth applies 'Lex loci'
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II. Accepting the renvoi.- accepting the reference back to forum, w/c means the
Ethiopian court applies its law/ Lex fori. If state X’s choice of law rules refer to state Y’s
“whole law” and state Y’s choice of law rule refers back to state X’s law then the second
reference towards state X’s law will be taken only to the internal law of state X taking Y as
refusing to apply her law.
III. De’sistement theory/ Total reference. The reference by state X’s law to state Y’s
law has produced no state Y’s law applicable to the situation, there is nothing else for the
state Y’s court to do but apply state X’s law. This theory is suitable with governmental
interest theory and the forum is advised to predict how the locus ct would decide the case if
the case brought to them. After prediction, it will accept or reject. This helps to arrive
relatively similar decision.
IV. Here, state X’s judge is referred by his choice of law rule to the law of Y. what is
the law of Y? It is the law which state Y’s court would have applied to the same case. Then
if state Y’s court would have applying Y’s “internal law” (either because it ”accepts the
renvoi” or for any other reason), then state X’s court should apply state Y’s “internal law”. If
state Y’s court would apply state X’s “internal law” (either because it “rejects the renvoi” or
for any other reason), then state X’s court would apply state X’s “internal law”. And, if state
Y’s court would apply state Z’s “internal law”, and then state X’s court would do the same.
This is sometimes called the “single” or “partial” renvoi, or, renvoi simpliciter. Here, the law
of state Y means including its choice of law rules but minus its choice of rules applying
renvoi, if it has any.
3.4. Summary
Choice of law problem is the main part of the discipline. Conflicts scholars have
devised some theories/approaches of choosing an applicable law. We can crudely group
them into traditional or classical and 'modern' or new approaches. Generally, while the
former chooses an applicable law according to prescribed rules, the latter's aim is to come up
with a law that can satisfy the implementation of a certain value/policy.
According to the classical approach, the first task of a judge is to characterize the
judicial nature of the case and connective factor so as to categorize into predetermined legal
categories. Then, the judge will follow suit that he will try to find the applicable law through
the rules. At this stage, while trying the appropriate law, the choice of law rules may refer
the judge to a 'foreign law'. The issue of renvoi arises if the reference is including to the
choice of law rules of the foreign law.
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In this connection, a foreign law though appropriate may not be applicable if doing so
could violate some pre established values or the public policy of the forum. A foreign law
will also not be applicable if the law is of a public nature – from the group of “Rules of
Immediate Application”.
Finally, although the choice of law rules governing the issues of interstate and
international are virtually the same, the latter are some how affected due to the presence of a
Federal Constitution. States are not as free as their relationship with the truly external world.
They have to bear in mind the fact that they are still under one umbrella. They are sister
states.
Unit Four
Recognition and Enforcement of Foreign Judgments and
Arbitral Awards
1. There was a full and fair trial conducted by the foreign court;
2. The foreign court was of a competent jurisdiction;
3. The foreign court had conducted the trial upon regular proceedings;
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4. The defendant has been given due service or voluntary appeared before the
court;
5. There is a system in the country of the foreign courts likely to secure an
impartial administration of justice between the citizens of its own country and those of other
countries;
6. There is nothing to show either a prejudice in the court, in the system of the
laws under which it was sitting or fraud in procuring the judgment, or any other special
reason why the comity of the United State should not allow its full effect ,and
7. The requirement of reciprocity is met.
II. CONTENTS OF THE CASE
A court in Greece declared Mr. Paulos Papassinous testamentary successor to the
property, which was located in Ethiopia, of this deceased mother. The Ethiopian Consular
Office in Greece duly authenticated this judgment. Then, Mr. Papassinous made an
application to the Federal High Court of Ethiopia for execution. He claimed that execution
of the Greek judgment in Ethiopia would not affect the latter’s public order and morals, and
that as the property was within the reach of the court the execution was practicable.
The Court had to determine whether Greece allows execution of Ethiopian judgments
as required by Art. 458 (a) of the Ethiopian Civil Procedure Code (i.e. the reciprocity
requirement). In order to examine this, it ordered the Ministry of Foreign Affairs to supply
information. The latter responded that no “treaty of judicial assistance” had been signed
between Ethiopia and Greece. The Court also noted that the applicant submitted no other
evidence to show that Greece enforces judgments rendered in Ethiopia.
The Court thus concluded in its judgment:
Since there is no treaty that enables Ethiopian Courts to execute judgment rendered in
Greece, we hereby reject the application of the judgment – creditor.
Thus, in his appeal to the Supreme Court, the judgment – creditor argued that Art.
458(a) merely requires proof of the fact that judgments rendered in Ethiopia are executed in
Greece. It does not rule that there should be treaty between the two states in order to execute
judgment rendered in each other’s courts. Hence, the Federal High Court had erred in its
interpretation of the provision.
After examining the two alternatives interpretations, the Supreme Court held that
Ethiopian judgments can be executed in a foreign state if there a treaty of judicial assistance
between Ethiopia and that state. As it was ascertained by the lower court that no such treaty
had been signed between Ethiopia and Greece, it was not therefore proved that Greece
executes judgments rendered in Ethiopia. Consequently, the judgment rendered in Greece
should not be allowed execution in Ethiopia pursuant to Art.458(a).
4.4 The Case of Arbitral Awards
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enforcement may be refused in case of procedural unfairness – where the person
against whom the award is invoked was not given proper notice of appointment of the
arbitrator or of arbitration proceedings or was otherwise unable to present his case.
One can argue that through the provision that creates the possibility of applying articles
of enforcement of foreign judgments to cases of foreign arbitral awards (Art 461(2)), Art
458(d) could be relevant in this case.
Ethiopian Law of Execution of Foreign Judgment
By Ibrahim Idris Ibrahim
Ethiopian Principle of Execution of Foreign Judgment
In the absence of international treaties or conventions providing otherwise, a state to
whose court a foreign judgment has been submitted for execution usually insists that the
foreign judgment should meet the requirements laid down in its national laws.
The other mode is characteristics of the laws of the Anglo-American countries. In
accordance with the laws of these countries; foreign judgments are not executed as such, but
are endorsed by a domestic judgment, i.e. judgment by judgment. Foreign judgments are
accepted as conclusive provided that certain conditions provided in the law of the country in
which the judgment is sought to be enforced are satisfied.
For instance, in English law, foreign judgments are accepted as conclusive if the
following conditions are met:
“1.The foreign judgment must be final and conclusive in the country in which it
was pronounced;
2. The foreign courts in question must have been competent to adjudicate upon the
matter in question;
3. The judgment must not have been obtained by fraud;
4. The judgment must not have been obtained by proceedings contrary to natural
justice;
5. The Judgment must not have been based upon a cause of action contrary to English
public policy;”
Ethiopian law allows the execution of foreign judgment on the basis of fulfillment of
the aforementioned conditions. This is true where there is no binding international
convention on the execution of foreign judgments. As far as the knowledge of the author
goes, Ethiopia has as yet not become a party to any treaty or convention on the execution of
foreign judgments. In view of the absence of any international treaty or convention on the
execution of foreign judgments binding Ethiopia, the fulfillment of the conditions provided in
the code has, therefore, become the prerequisite for a foreign judgment to be executed in
Ethiopia.
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Procedures for the Execution of Foreign Judgment
Under Ethiopian law, no foreign judgment may be executed with out the filing of an
application to a court to that effect. The appropriate court to which an application should be
made is the Federal High Court of Ethiopia. Any application for the execution of a foreign
judgment must be made in writing and accompanied by certified copy the judgment to be
executed and a certificate signed by the president of the registrar of the foreign court
rendering the judgment which states that judgment is final and enforceable.
Reciprocity
If the courts of the country (a foreign country) refuse to execute Ethiopian judgments,
the Ethiopian court must in turn refuse to execute theirs. In as much as most countries will
execute the judgment of other countries, it should be presumed that any country will execute
an Ethiopian judgment unless the contrary is provided.
A Court Duly Established and Constituted
Opportunity by the Judgment-Debtor to Present and Defend his Case
Under Ethiopian law, the requirement that a judgment-debtor should be given an
opportunity to appear and present his defense is another condition necessary for the
execution of a foreign judgment. The judgment-debtor must have been served with a
summons in due time, so that he could avail himself of the opportunity to defend the case.
If the debtor of a foreign judgment has not received a legally sufficient notice, because
ineffective means were used when effective means were readily available, so that in
consequence the debtor failed to appear in court, the foreign judgment cannot be executed.
Public Order and Morality
The concept ‘public order’ which is also referred to as public policy indeed plays a
restrictive role against the execution of foreign judgments. Dicey and Morris wrote:
“The court will not enforce or recognize a right, power, capacity, disability, or legal relationship
arising under the law of foreign country, if the enforcement or recognition of such right, power, capacity,
disability or legal relationship would be inconsistent with the fundamental policy in English law.
The third part of private international law is the case of foreign judgments. If a party
wants a foreign judgment to be enforced in Ethiopia, one should apply to the Federal High
Court. Generally, it will be recognized or enforced if the conditions spelt out by the
Ethiopian Civil Procedure Code are fulfilled. The conditions, as listed in Art. 458 of the
CPC, should be cumulatively fulfilled. The conditions are: the execution of Ethiopian
judgments is allowed in the country in which the judgment to be executed was given; the
judgment was given by a court duly established and constituted; the judgment-debtor was
given the opportunity to appear and present his defense; the judgment to be executed is final
and enforceable; and, execution is not contrary to public order or morals.
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Application of Conflict of Laws in Specific Areas of Law
Unit Five: Contractual Obligations
5.1. Choice of Applicable Law in Contract
A contract in which foreign elements are involved is one of the most complicated areas
in private international law.
The place of contracting : As used in the Restatement of this Subject, is the place
where occurred the last act necessary, under the forum's rules of offer and acceptance, to
give the contract binding effect, assuming, hypothetically, that the local law of the state
where the act occurred rendered the contract binding. Standing alone, the place of
contracting is a relatively insignificant contact.
Author Yohanan Yokamo (Hawassa University) stated that contract is of law where freedom of the parties is
given higher value than any other area of law. That's why the appropriate system of law to govern the formation and
outcome of contacts containing foreign elements in principle is left for the parties to choose. However, the parties are
not free to choose any law they like. They have to have substantial relationship with the parties and the chosen law
should not be contrary to the public policy of the forum. Athough a contract is a private consent, there is state
sovereignty to protect the party's not to be affected and to ascertain substantial relationship of the contract. Due to
this state must involve to give the blessing to parties; promoting smooth commercial transaction & trade, for
promotion of development and investment.
To be sure, in the absence of an effective choice of law by the parties, issues involving
the validity of a contract, will be determined in accordance with the local law of the state of
contracting.
The place of negotiation: The place where the parties negotiate and agree on the terms
of their contract is a significant contact. Such a state has an obvious interest in the conduct
of the negotiations and in the agreement reached. This contact is of less importance when
there is no one single place of negotiation and agreement, as, for example, when the parties
do not meet but rather conduct their negotiations from separate states by mail or telephone.
The place of performance: The state where performance is to occur under a contract
has an obvious interest in the nature of the performance and in the party who is to perform.
It is clear that the local law of the place of performance will be applied to govern all
questions relating to details of performance.
Situs of the subject matter of the contract: When the contract deals with a specific
physical thing, such as land or a chattel, or affords protection against a localized risk, such as
the dishonesty of an employee in a fixed place of employment, the location of the thing or of
the risk is significant. The state where the thing or the risk is located will have a natural
interest in transactions affecting it.
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Domicile, residence, nationality, place of incorporation, and place of business of the
parties:
The fact that one of the parties is domiciled or does business in a particular state
assumes greater importance when combined with other contacts, such as that this state is the
place of contracting or of performance or the place where the other party to the contract is
domiciled or does business.
i. Where There is Express Choice of the Proper Law
‘will be ascertained by the intention expressed in the contract, if any, which will be
conclusive.’
ii. Where There is no Express Choice of the Proper Law
‘Then the court has to determine for the parties what is the proper law which, as just
and reasonable persons they ought to have intended if they had thought about the question
when they made the contract. That I believe, is the duty upon us ,and in seeking to determine
the question we must have regard to the terms of the contract ,the situation of the parties
,and generally all the surrounding facts.’
In other words, where it has not been expressly chosen, the proper law depends upon
the localization of the contract. The court imputes to the parties an intention to stand by the
legal system which, having regard to the incidence of the connecting factors and of the
circumstances generally, the contract appears most properly belong.
In short the proper law is the legal system with which the contract has the most
substantial connection.
iii. The Proper Law : Implied Choice
In the absence of an express choice, Article 3 of the Rome Convention directs the court
to consider next whether an implied choice of law by the parties can be discovered. It is
sufficient under Article 3(1) that the parties’ choice, though not expressed in the contract, is
‘demonstrated with reasonable certainty by the terms of the contract or the circumstances of
the case.’
5.1.1. The Proper Law of the Contract in the Ethiopian Conflict of Law
5.1.1.1. The governing law by the choice of the parties
a case may be said to contain a foreign element either because the parties to the
contract are foreign nationals or they are domiciled or residents of a foreign country other
than Ethiopia ,or the contract is made at a place out side the Ethiopian territory. A case may
also said to contain a foreign element if the subject matter of the transaction, for instance, the
property to be sold is situated outside Ethiopia.
Charles Dumoulin (1500-1566), a French scholar of the sixteenth century who was
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acclaimed( praised or approved or welcomed sb/sth publicly ) as "the father of party autonomy."It was
Dumoulin's belief that with respect to contracts, "the will of the parties is sovereign."
The will of the parties is, therefore, the leading factor in the determination of the law
governing contracts. Thus, when the intention of the parties is the decisive factor, the
circumstances indicating such an intention should determine which law shall prevail.
5.1.1.2. The governing law in default of choice by the parties
If the parties made a choice, the law will respect their choice. But if they fail to make a
choice the law has provided default rules to resolve the dispute. Art.74 states that “where the
parties have not clearly expressed their intention contracts are governed by the law of the
place with which the contract is most closely connected.”
The import of this provision is that, when the party’s intention is not clearly stated in
the contract, the court will apply the law with which the contract is most closely connected.
However the law does not clearly state what maters should be taken in to account in
determining the law of the place to which the contract is most closely connected.
The expression “most closely connected” these are: place of contracting, place of
negotiation of the contract, place of performance, the location of the subject matter of the
contract and the domicile, nationality, place of incorporation and place of business of the
parties.
5.1.2. Particular Aspects of the Contract
Apart from the general principles guiding the ascertainment of the proper law of the
contract there are other particular aspects of the contract that need consideration. To
establish a valid contract in any legal system, there are certain preconditions that must be
fulfilled. Among these Capacity of the contracting parties, Consent, Object and Form of the
Contract. More over it will be also necessary to consider issues related to interpretation of
the terms of the contract, performance and extinction of contractual obligation.
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economic power and the negative impact it has on the social interest if we left such persons
on their own. Such contracts are contracts like consumer contracts and individual contracts
of employment. With a view to protecting weaker parties, special choices of law rules are
laid down for consumer and employment contracts. . Author. Yohanan Yokamo mentioned
some contracts by their nature found being highly regulated areas such as employment,
insurance, lease of land, consumer protection, adhesive contracts ( which is take it or leave
it contracts. Eg. laundry contracts which most often put a fixed rate like 20%.
Under this section we will be dealing with these special contracts
5.2.1. Individual Contracts of Employment
5.3. Rules Under the Federal Draft Conflict of Laws
Conflict of laws and Employment of Foreign Nationals in Ethiopia (by Ibrahim Idris)
The recognition of the party’s right to a choice of a governing employment law
nevertheless entails a controversial situation where parties to the contract have failed to
provide the governing law in their agreement. In such a case an attempt is made to resort to
either of the following two principles: the “subjective theory” and “theory of close
connections with the contract”.
“The right of a choice of law by the parties in the sense of conflict of law theory
should be recognized only for contract law transactions (and submittedely not even
there). A labor with the scope of a labor contract is not a civil law contract. So that,
right of a choice of law by the parties, cannot be recognized in any circumstances.
While rules of conflict of laws in labor maters has developed only in recent years
and national courts still shows considerable hesitancy in the matter, doctrine has
evolved sufficient to make it possible to affirm that , as regards the terms and conditions
of employment, key importance is attached to the law of country in which the work is
performed. This is true regardless of the nationality of the parties. Territoriality is thus
the basis in matters of labor law.
5.4. Summary
Due to wide application of contract as means of transaction between individuals on
global level, choice of law in contract is one of the most complicated and most frequent
cases of conflict of laws. There is a system of law that governs choice of law in contacts that
involve two or more countries. This law, which is called the proper law of the contact, is that
law which a court is to apply in determining the obligations under the contract. However,
meaning and identification of this proper law of contact is very different from county to
country.
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As contract is of law where freedom of the parties is given higher value than any other
area of law, the appropriate system of law to govern the formation and outcome of contacts
containing foreign elements in principle is left for the parties to choose. Therefore primarily,
proper law of contract is the law expressly or impliedly chosen by the parties to govern their
case. However, the parties are not free to choose any law they like. They have to have
substantial relationship with the parties and the chosen law should not be contrary to the
public policy of the forum. But, if the parties fail to make a valid choice, the practice of
different countries shows that the court of the forum applies the law of the state that has the
most significant relationship or the closest connection with the contract.
In order to determine the law that has the most significant relationship or connection
countries use indictors like the place of contracting , place of performance, place where the
subject matter of the contract is situated or the place where the parties have their address
particularly - domicile residence, or place of incorporation or place of business of the
parties.
The federal draft conflict of law also included the main principles discussed above. As
is the case with other countries, the Ethiopian draft proclamation upholds the freedom of the
parties to choose the law governing their relationship. This is the way by which the
legitimate expectation of the contracting parties is going to be respected. However, the
freedom of the parties is not with out bound. The parties are not free to choose arbitrarily
any law of their liking. Accordingly, Art 73 of the draft proclamation provides the laws that
can be chosen by the parties since it has a strong connection with the case. These are laws of
the nationality, the law of domicile, the law of the place where the transaction was made, the
law of the place where the subject matter is situated or the law of the place where transaction
is to be performed. If the parties fail to make valid choice of law, in the same way with the
practice of other countries the draft proclamation dictates courts to apply the law that is most
closely connected.
Apart from the general principles guiding the ascertainment of the proper law of the
contract, there are other particular aspects of the contract that need consideration. Among
these Capacity of the contracting parties, Consent, Object and Form of the Contract are very
essential. As we have seen capacity to enter in to contract shall be governed by the law
chosen by the parties if any. In the absence of valid choice capacity shall be governed by the
law that has the strongest relationship. The proper law that would govern the terms of the
contract if it was valid also governs the existence and validity of consent and its vices. As
regards formal validity, in the countries under discussion, the law of the place of contract is
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given a governing status. As to illegality of object of the contact, the position taken by most
countries is that whatever the proper law may be legality or illegality of the terms of the
contract shall be governed by the law of the place where the contract is to be performed. A
more or less similar solution is reached by the federal Draft Conflict of Laws proclamation
on these subjects.
The governing law concerning protected contracts like consumer contracts and
individual employment contracts it can be seen that the law upholds the policy of choosing
the law which is more advantageous to the weaker party in these contracts - i.e. consumers
and employees. These are the law of the consumer’s habitual residence in the former and the
law of the place of work in the latter.
Unit Six
Non-Contractual Obligations
In US the original Restatement stated that, with minor exceptions, all substantive
questions relating to the existence of a tort claim are governed by the local law of the "place
of wrong," the lex loci delicti. This was described as "the state where the last event
necessary to make an actor liable for an alleged tort takes place." Under the second
restatement however a more flexible position is taken where section 145 provides that the
rights and liabilities of the parties with respect to an issue in tort are determined by the local
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law of the state which, with respect to that issue, has the most significant relationship to the
occurrence and the parties. The rule of this Section states a principle applicable to all torts
and to all issues in tort and, as a result, is cast in terms of great generality. To determine the
state that has most significant relationship the restatement provides different indicators.
These are: the place where injury occurred, the place where conduct occurred, the domicile,
residence, nationality, place of incorporation and place of business of the parties, the place
where the relationship, if any, between the parties is centered.
Author Yohanan Yokamo(Hawassa University)stated that it is better to understand the
concept of Lex loci delicti from the main purpose of tort law which are mainly three. These
are to regulate behavior, to compensate victim and to distribute risk ( even in the absence of
fault)
The approach in EU under the Rome II proposal seems to stick to the traditional lex
loci damni approach with substantial exceptions. As stated under Art. 4 of the Rome II
treaty, the applicable law shall be the law of the country in which "the damage occurs" (lex
loci damni). This law governs "irrespective of the country in which the event giving rise to
the damage occurred" and "irrespective of the country or countries in which the indirect
consequences of that event occur." In spite of the generality of the rule, countries in their
domestic conflict rules provide for exceptions. They are divided in to general exceptions that
apply to all cases and specific exceptions that apply to specific type of torts.
The general exceptions include matters related to giving priority to law of the common
habitual residence of the parties, the law of the country that has a "manifestly closer
connection", the application of the mandatory rules of the forum state, application of the
"safety and conduct" rules of the state of conduct, the application of the law chosen by the
parties before or after the occurrence of the tort and the non application of the lex loci delicti
if it is manifestly incompatible with the public order of the forum. There are also specific
exceptions relate to the rules applicable to special type of tort.
The main rules governing choice of law in tort issues under the Federal Draft Conflict
of laws Proclamation is provided under Art.82 and 83. These two provisions crudely state a
general principle guiding choice of law in two distinct areas of non contractual obligation.
The first is tort issues that arise in fault or non fault liabilities and the second part governs
liabilities arising from unlawful enrichment, unauthorized agency, and undue payment. In
similar way with the European approach, the draft rule seems to follow the lexloci delicti
principle to determine the applicable law. The limitation in the draft proclamation however
is that it does not provide for the specific rules applicable to special kinds of torts and it fails
to proved for appropriate exceptions known in other jurisdictions under discussion.
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Even if the Federal draft Conflict of Laws proclamation does not provide specific rules
governing these issues, the jurisprudence of other countries provide rules governing choice
of law in particular issues including Unfair Competition, Personal injury, Defamation, and
product liability. The basic rule in cases of personal injury and damage to property calls for
application of the local law of the state where the injury occurred ( lex loci delicti) unless,
with respect to the particular issue, some other state has a more significant relationship to the
occurrence and the parties. The law applicable to a tort arising out of an act of unfair
competition is that of the country where competitive relations or the collective interests of
consumers are, or are likely to be, directly and substantially affected.
In relation to product liability the law of (a) the country of the victim's habitual
residence; (b) the country in which the product was acquired; and (c) the country in which
the injury occurred could be chosen. The application of each country's law depends on
whether the product was "marketed in that country."
In relation to defamation the governing law is the law of the place of wrong which in
case of defamation means the law of the place where the defamatory act was publicized or
had its effect on the victim. However scholars argue that this rule is not specific enough to
adequately govern all issues related to defamation in its different versions and hence suggest
that it needs refinement.
As opposed to these specific rules governing choice of law in particular torts in other
jurisdictions, the draft conflict of law in Ethiopia is silent and it seems to leave everything
subject to the general rules stated under Art.82&8. This approach is not advisable in view of
the basic difference that exists in different kinds of specific torts which deserve attention to
their own special nature.
Author. Yohanan Yokamo(Hawassa University) calls into consideration the concept of
tort formulated by American Law Institute which is the 'Proper law of the tort'. In this
approach we may disregard law of place of wrong for case of policy consideration. The
theory takes into account the places of wrong but it has to be based on the policy grounds
and circumstances of the case. For instance, the most significant relationship with the
occurrence and the parties determine governing law of tort.
Unit Seven
Property (Interstate and International)
Art. 69 of the draft reads: “possession, ownership and any rights in rem relating to
corporeal property shall be governed by the law of the place where the property is situated.”
From the clear import of this provision one can understand that all matters related to
possession, ownership and any other rights in rem like servitude, bare ownership, and
usufruct and the rights arising from mortgage, pledge etc of both movable and immovable
corporeal properties would be governed by the law of the situs.
The provision of Art.71 deals with pledge of claims and securities and other rights.
This provision states that pledge of claims, securities and other rights shall be governed by
the law selected by the parties. Therefore if the parties to pledge contact also made choice of
law to govern their dispute then the law accepts this choice. However if the parties fail to
make choice the default rule is that the issue shall be governed by the personal law of the
pledgee.
The draft proclamation has provided separate article to deal with issues related to
intellectual properties. As it is stated under Art.72 rights in intellectual property shall be
governed by the law of the country in country in which those rights were created provided,
however that the court may apply Ethiopian law when the defendant is an Ethiopian origin
the interest of Ethiopia to do so.
The message of this provision is that matters relating to intellectual property should be
governed by the law in which they were first recognized and registered as the appropriate
place. It is only in exceptional circumstances that the Ethiopian law will be given priority to
all other laws. This situation is where the defendant is of an Ethiopian origin and it is in the
interest of Ethiopia to apply its laws that the Ethiopian law may be applied.
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under Art. 66, it makes succession of immovable property to be subject to the laws of
the place where the property is situated /Law of situs. This is a generally accepted rule in
other countries also.
Succession to movable property whether testate or intestate shall be governed by the
personal law of the deceased at the time of his death. For eg. law of domicile
It seems that all issues related to succession except construction of will are supposed to
be governed by single law. It tries to separately govern under specific provision of Art. 68
matters relating the substantive validity of testamentary provisions and other provisions
mortis cause and the construction of the intention of the testator or person making the
provision .And it makes them subject to the personal law of the deceased at the time of his
death, .i.e. the law of his domicile.
Unit Eight
Marriage
These policies that are of permanent nature are expressed through the laws of the
concerned state. __the FDRE Const. As the latter provides, the family is entitled to protection
by society and the state for it is the natural and fundamental unit of the society. (Art. 34(3))
Is the policy of sustaining the validity of marriage once the relationship is assumed to
have been freely entered so long as the present status of the marriage is in accord with
certain values and public morals reflected in our family codes? Yes, some of them have
provisions to the effect that a marriage celebrated outside a given state is accorded with
validity under some tests.
Effects of Marriage
The effects or incidents of marriage in those the rights and duties of the spouses are, as
a rule, governed by the common personal status of the spouses during the lifetime of the
marriage. In most instances, this law is the common matrimonial domicile of the spouses.
Personal effects .
Management of family.
Establishment of residence
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Pecuniary Effects
.The parties can stipulate to a choice of law to govern the nature of their ownership of
specified property. This works, however, only if the member states of the federation are to
enact their own respective conflicts laws, which is with a very less probability to be
practiced in this country.
However, if the parties acquired property in different states overtime, the law of the
state where the property was acquired controls. But this is true only to the portion of the
property acquired in a given state. If there is another property acquired by the parties in
another state, the latter state’s law controls. Generally, the laws of the state where the
property was gained and the concerned property are directly related. The rationale behind
this rule is to protect the justified expectations of the parties as to their property relations. In
this connection, the general choice of property law rule concerning immovables is - the law
of the situs of the immovable controls and for Movables is - Personal law like law of
domicile.
8.2 Summary
Personal status as regulation of family and marriage and the widely accepted rules
governing jurisdictional and choice of law in this regard. We have particularly seen the situs
to be important point of contact to find the applicable law. In this connection, the place
given to nationality and domicile in different countries have been seen.
These are formal and substantive validity of marriage. It has been reflected that it is a
universally recognized rule that formal validity of marriage shall be governed by the lex loci
celebrationis. Hence a marriage validly celebrated at a certain place shall also be valid in
other places.
The other important issue related to validity of marriage is essential or substantive
validity. This raises matters like capacity, consent and other substantive requirements that
must be fulfilled before couples conclude a valid marriage.
As to the essential or substantive validity of marriage, it is regulated by Law of
domicili/domicile. But, there is no such consensus on the tests. Some countries use the test of
common domicile (matrimonial domicile).while others prefer to look at the ante nuptial
domicile (dual domicile test) of the future spouses to determine whether the parties fulfilled
substantive requirements of a valid marriage.
For various theoretical and pragmatic reasons stated in the discussion use of the
common domicile is shown to be preferable in the context of Ethiopia. Among the relevant
substantive issues of legal capacity to marry that may be determined by the common
domicile of the parties we have tried to cover: age, consanguinity and affinity, consent and
bigamy.
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The other relevant issue in relation to marriage is the choice of law that regulates its
effects. These effects could be classified in to personal effects and pecuniary effects. As we
have seen these effects or incidents of marriage i.e., those rights and duties of the spouses
are, as a rule, governed by the common personal status of the spouses during the lifetime of
the marriage. In most instances, this law is the common matrimonial domicile of the
spouses.
The termination of marriage could be ushered by divorce and this could raise various
conflicts of law issues. There are two choices of law views: the Common Law and the Civil
Law. In the U.S as well as in the Common Wealth the rule is well established that the
divorce court applies its own law to the substantive requirements of divorce that seems
sufficient and reasonable so long as the principle prevailed that the parties’ matrimonial
domicile is the basis of jurisdiction.
The second view has a startling point in almost all laws of the civil law orbit __the
parties common personal law applies. This is most of the time the last (or the predominantly
lived) common domicile of the spouses.
Unit Nine
Agency and Partnerships
9.1 Agency
9.1.1 Relationship of Principal and Agent
An agency relationship can give rise to three choice-of-law problems: namely, what
law should be applied to determine the rights and duties as between (1) the principal and
agent, (2) the principal and some third person on account of one or more acts by the agent,
and (3) the agent and the third person.
When the agency relationship is created otherwise than by contract, the obligations of
the principal and agent to each other are determined by the local law of the state
When the agent is employed to do a number of acts on the principal's behalf in a single
state, the local law of this state will usually determine the rights and duties owed by the
principal and agent to each other in the absence of an effective choice of law by the parties.
0 To illustrate, in state X, A, the agent, sells and delivers the horse of P, the principal,
to T, a third person. P sues A, claiming that A was authorized only to sell P's cow. Whether
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A did lack authority, as against P, to sell the horse will be determined by the law selected by
application of the rule of this Section.
On what bases would the principal be responsible for agent's action? A principal may
be liable to a third person for the act of an agent on four distinct bases: (1) that the agent
acted with the principal's authority, (2) that the agent acted with the principal's apparent
authority, (3) that the principal misled the third person as to the extent of the agent's
authority, or failed to correct what he realized, or should have realized, were the third
person's misconceptions about this authority, or (4) that the agent acted within his inherent
agency powers, that is when because of the relationship of the parties or the subject matter
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involved, policy requires that the agent should have power to bind the principal.
An example of this last basis is where an agent does a forbidden act which under the
circumstances would naturally be expected to fall within his powers and the other party
reasonably believes the agent was authorized to do the act and had no notice that the agent
was not so authorized.
P appoints A his purchasing agent and orally instructs him to confine his activities to
state X. With P's knowledge, A has cards printed describing himself as P's "general
purchasing agent," and then sends the cards to a number of persons, including T, in state Y, a
neighboring state. Thereafter, in state Y, A enters into a contract for the purchase by P of
goods from T. T is domiciled and has his place of business in Y. P will be held bound by
A's action if he would so be bound under Y local law because of the apparent agency.
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Whether a partnership is bound by its ratification of an agreement made with a third
person on its behalf by a partner or other agent is determined by the local law of the state
having the most significant relationship.
# Liability of general partner. A general partner has a voice in the management of the
partnership's affairs and is personally responsible for an act done in the course of the
partnership's business even though he did not do the act himself and was not even aware of
its having been done.
# Liability of limited partner. The local law of the state having the most significant
relationship determines whether a given partner is a limited partner
9.2 Companies
It is concerned with the choice-of-law problems that arise when a business corporation
extends its activities beyond the borders of the incorporating state. On the other hand, this
section does not deal with municipal or other public corporations or with nonprofit
corporations, charitable or otherwise.
Probably, the most important attribute of a business corporation is limitation of the
liability of shareholders for any act or omission of the corporation. Other important
attributes of such a corporation are the capacity (1) to sue in the corporate name for the
enforcement and protection of common rights and interests and, conversely, to be sued in the
corporate name for the enforcement of claims against the enterprise, (2) to have its affairs
directed by official representatives who usually alone have the power to enforce and protect
common rights and interests, (3) to acquire, hold and deal with property, real and personal,
in the corporate name, and (4) to have succession for a term of years or in perpetuity. These
attributes are also enjoyed in varying degrees by limited partnerships, joint stock
associations and business trusts. As a result, it may be difficult on occasion to distinguish
between a corporation and some other form of organization. In this regard, the only
organizations dealt with are business corporations and partnerships.
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With respect to other states, it is a foreign corporation. This implies that a corporation
incorporated in one region of Ethiopia is a foreign corporation with respect to other regions
of Ethiopia. A corporation incorporated in Oromiya, is "domestic," as the term is used in this
Section, with respect to the Oromiya territory. Elsewhere, it is a foreign corporation.
Incorporation can take place in a state where the corporation conducts no business and
where none of the directors, officers or shareholders are domiciled provided that this is
permitted by the local law of that state. If the requirements of the state of incorporation have
been met, the fact of incorporation will be recognized in other states.
It is generally agreed that incorporation by one state will be recognized by other states.
Illustration:
1. A, a corporation incorporated in state X and which does all its business in that state,
purchases an automobile in state Y for the use of its president. The Y courts will recognize
that, as a result of this purchase, title to the automobile is in A.
Illustrations:
1. The A corporation is incorporated in state X under whose statutes corporations are
not permitted to own land. The rule of state Y is to the contrary in this regard. A purchases
land in Y. Assuming that the Y courts would apply their own local law, A will acquire good
title.
2. The A corporation is incorporated in state X. A duly authorized agent of A enters
into an oral contract in state Y for the purchase of land. By the local law of Y, a contract for
the purchase and sale of land must be in writing; there is no such provision in the local law
of X. A will be held not bound by the contract if, under the rules of choice of law in
contract, Y local law is applicable.
3. C, a railroad company incorporated in state X, employs A to raise a crop of potatoes
on its land in state Y. A buys 100 tons of fertilizer for the company from B in Y, and the
fertilizer is delivered to A. By the local law of X, the company would be liable for the cost
of the fertilizer; by the local law of Y, it would not. B sues C in a third state for the price of
the fertilizer. Assuming that Y local law is applicable, judgment will be given for C.
4. The a Corporation is incorporated in state X. In state Y, A's president, with the
authorization of the directors, attempts to transfer interests in such of A's movables as are
situated in Y. The transfer would be invalid under a statute of X. The transfer, however,
will nevertheless be valid if it would have this effect under the local law of Y, if this law is
applicable. A's president and directors may, however, be held liable under the X statute for
their actions in connection with the transfer .
9.3 Summary
In this unit, the main point of focus was choice-of-law rules relating to agency,
partnerships and corporations in the field of contract. Primarily an agency relationship can
give rise to three choice-of-law problems: namely, what law should be applied to determine
the rights and duties as between (1) the principal and agent, (2) the principal and some third
person on account of one or more acts by the agent, and (3) the agent and the third person.
When an agency relationship is created the obligations of the principal and agent to each
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other is determined by the local law of the state which, with respect to the particular issue,
has the most significant relationship to the parties and the transaction. This state is selected
by a process essentially similar to that employed in the case of a contract.
This unit has tried to cover issues that would arise in relation management and
liabilities of partners and the partnership. We have seen that the rights and duties owned by
partners to each other are determined by the local law of the state which, with respect to the
particular issue, has the most significant relationship to the partners and the transaction.
This law is selected by application of the rules governing choice of law in contract.
Partnerships give rise to much the same choice-of-law problems as do simple principal-agent
relationships.
We have also dealt with the problem of what law will be applied to determine the
rights and duties which arise between the partnership and the partners on the one hand and
some third person on the other because of one or more acts done on behalf of the partnership
by a partner or other agent. On these counts, the law selected by application of choice of law
rules governing contracts, determines whether the agreement amounted to a contract
between the partnership and the third person and the rights created thereby.
Concerning share companies, we have raised several issues relevant to the subject.
These are issues related to the governing law in relation to creation and recognition of
corporations, liabilities of the corporation in relation to contacts and extra contractual
liabilities entered in its name and the like. In order to incorporate validly, a business
corporation must comply with the requirements of the state in which incorporation occurs
regardless of where its activities are to take place or where its directors, officers or
shareholders are domiciled.
The rights and liabilities of a corporation with respect to a third person that arise from
a corporate act of a sort that can likewise be done by an individual are determined by the
same choice-of-law principles as are applicable to non-corporate parties. A corporation's
rights and duties under a contract are determined by the law governing choice of law in
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contract. If an agent of a corporation, while acting in the course of his employment, commits
a tort, the law governing extra contractual liabilities determines whether the corporation is
liable for the tort and the extent to which it is liable in damages. Likewise, the validity of a
transfer by a corporation, or to a corporation, of an interest in land or in a chattel is
determined by the law selected by application of the rules governing transfer of rights in
property.. The choice-of-law rule applied to determine whether a transfer is in fraud of
creditors will also be the same whether the transfer was made by a corporation or by an
individual.
# 6 Appellate
Appellate review is the process by which a party aggrieved by the decision of a court or a tribunal lodges an
application requesting that the judgment be reversed or set aside by the higher court which is referred to as an
appellate court.
The outcome of the appeal might be
confirmation of the judgment appealed from, or
reversal
As Sedler wrote, “the appellate court will usually make a final disposition of the case, although in certain circumstances
it may remand the case to the subordinate court for re-trial.
an appellate review does not involve the retrial of a case by the appellate court and that the appellate court does not,
in principle, hear additional evidence other than the few circumstances in which additional evidence is allowed.
Grounds of Appeal
grounds on which he objects to the judgment from which the appeal is taken.
the appellant may not raise new issues for the first time on appeal. The trial is limited to those issues framed at the first
hearing or subsequently by amendment, and the only evidence introduced at trial relates to those issues.
Procedure on Appeal
Hearing of parties
If and only if the memorandum of appeal serves as pleading and the memorandum show there is a cause to see the
case court will call the litigating parties.
Restriction: doesn’t require additional evidence
Process
Fixes a day for hearing the appellant or his pleader
The outcome could be
1. Dismiss the case: if they agree with the decision of the subordinate and when the memorandum of appeal fails to
show cause of actions.
2. Calling the respondent: Where the appeal is not entirely dismissed, the appellate court is to cause the
memorandum of appeal to be served on the respondent, fix a day for the appeal and summon the respondent to
appear.
Framing of issues
If, when it is hearing the appeal, the appellate court concludes that the subordinate court has omitted to frame or try an
issue or to determine any question of fact which is necessary for the decision of the suit on the merits, the appellate
court may frame those issues and refer them to the subordinate court, which is to take the evidence on those issues.
Additional Evidence
The general rule is that the parties are not permitted to produce such evidence.
there are three situations where the introduction of new evidence on appeal is authorized:( civ.p.c Art 345(1) a,b)
1. Where the subordinate court refused to admit evidence that ought to have been admitted.
2. Where the appellate court requires any document to be produced or any witness to be examined to enable it
to pronounce judgment.
3. Where there is “substantial cause” justifying the production of the evidence.
Whenever additional evidence is allowed to be produced, the appellate court must record the reason for its admission.
If a second appeal is taken, the reason could be considered, and the judgment set aside if the improper admission of
additional evidence caused the first appellate court to reverse the decree of trial court.
Judgment on Appeal
Reversal of substantial error
In considering whether a decree should be reversed or varied as a result of an error committed by the trial court, it is
important to determine whether the error amounts to what is called a procedural irregularity
If the error is such as to amount to a mere ‘irregularity’, the Code directs the appellate court to correct it, but also
provides that the decree may not be reversed on that ground.
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The decision could only be reversed if and only if those errors affected the power of the court to hear the case or
denied a party a fair trial –judgment must be quashed.
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In making the decision to include or exclude an issue, the court's scope and standard of review must be assessed.
th
4 . make short and controlling of anything
th
5 . Stay focused, answer questions directly, know the record and be knowledgeable about the relevant precedent.
The rational of persuasiveness and effectiveness
Your goal is to win your case.
To make standard that others could benefit from the decision given for your client
1. Know the Courts
2. Know the Law: It is vital that any advocate appearing before an appellate court knows the basic procedural rules that
govern the bringing of the proceedings to the court.
3. Know your request for the court
4. Be a good teacher of a day
5. be aware and know the legislation(history) and intent of the legislation
6. be cognizance of some special rules(know your audience, your goal)
7. manage your time (10-20 min) make a reserve of (3-5 min) this enable you to rebut
8. be quick when you give answer
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The third element in litigation planning is analysis of potential claims and remedies along with an equally important
analysis of possible defences and counterclaims of the other party. Fourth, the lawyer is required to assess likely sources
of proof that are evidence in favour of the client. This involves interviewing witnesses, obtaining documents and records
and other data, expert review, and other pertinent reliable and valid evidence.
An effective litigation plan obviously requires structure. That structure should trigger the important thinking, at the right
times, so that you will not ‘miss the boat’ during any step n the litigation process. The basic steps in this plan are listed
(below): …
• Establish the terms of the attorney –client relationship
• Determine the client’s needs and priorities
• Determine the elements of potential claims, remedies, defenses and counterclaims
• Identify likely sources of proof.
• Determine what informal fact investigation is necessary
• Determine what formal discovery is necessary (N.B- inapplicable in
Ethiopia)
• Identify solutions
• Develop a litigation strategy
• Make litigation cost and timetable estimates
• Use a litigation file system.
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The lawyer, therefore, should first identify the client’s problems and needs, viewing them broadly. The client’s needs,
seen from his perspective, may well be in conflict with possible solutions; however, finding out what the client wants to
have happen is the beginning step in dealing with the problem that brought him to a lawyer in the first place.
You will also need to assess the client’s priorities. Clients rarely get everything they want, so they must develop a scale of
priorities that will help you fashion the litigation strategy. For example, suppose your client wants to sue another party
over a contracts
dispute. Does she want a quick, inexpensive resolution to preserve an ongoing relationship? Does she simply want the
other party to live up to the agreement, or is she primarily interested in money damages because she considers the
relationship destroyed? These possibilities must be arranged to reflect their relative importance to the client before you
can sensible decide how best to help that client. …
3. Determine the elements of potential claims, remedies, defenses and counterclaims
The initial client interview will often identify the legal areas involved. At this early stage, however, it is better to think
expansively and consider all legal theories that might apply to the case. …
After you have identified the possible applicable legal theories, determine what the legal requirements are for each theory.
…
The same type of analysis must be made for remedies. The availability of remedies is related to the choice of claims, and
some remedies are broader than others. For example, in a contract dispute, contract damages will be an available remedy.
However, if the dispute has fraud aspects, you may be able to bring a business tort claim and have broader damages rules
apply. … Potential counterclaims must also be considered. Before bringing a lawsuit, always check on what the other side
has against your client. This is particularly important in commercial litigation, where the parties have dealt with each
other many times over a period of time. There is little point in starting a lawsuit if it succeeds in provoking a large,
previously dormant counterclaim. …
4. Identify likely sources of proof.
Most litigation involves events or transactions that have occurred in the past. The likely sources of proof will be centered
on those witnesses who have some knowledge of, and exhibits that contain information about, past events or transactions.
The usual witness sources include your client, other witnesses to the events or transactions, the opposing parties,
witnesses who have no direct knowledge of the events or transactions but may have useful circumstantial information and
experts. Exhibit sources include physical objects, photographs, police reports, business records, transaction documents,
and any other paperwork that has bearing on the events or transactions involved. At this stage it is best to think
expansively. Develop a long, thorough list early and refine it over time
5. Determine what informal fact investigation is necessary
Once you have identified the likely sources of proof, you then need to decide how to acquire information from those
sources. …
… It is vitally important to acquire as much information as possible before filing a suit.
… As a defendant, you will most likely begin (fact investigation) after the suit has been
filed, but you should still consider informal sources of proof. … {T)he lawyer make(s) a ‘reasonable inquiry’ to determine
if a pleading is well grounded in fact before signing the pleading. Informal fact investigations are principally conducted
by interviewing witnesses and obtaining documents, records, and other data from willing sources, and getting expert
reviews of the case.
6. Determine what formal discovery is necessary (N.B- inapplicable in Ethiopia)
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(Omitted owing to its remote relevance to the Ethiopian legal system)
7. Identify solutions
There are many ways to deal with conflict, and litigation is only one of them. Before a decision to litigate is made, a
client’s problems should be considered in broad terms to determine what approach will best serve the client’s immediate
and long-term interests. The best approach must be arrived at through discussion with the client, with whom the decision
about what to do ultimately rests. There are several basic possibilities:
1. Do nothing
2. seek an informal resolution
3. seek formal dispute resolution
4. Litigate.
8. Develop a litigation strategy
Up to now you have been thinking expansively, to ensure you are not ‘missing the boat’ on anything that might influence
the case.
Perhaps the easiest way to think of litigation strategy is to consider its principal parts.
1. where can I file the lawsuit?
2. what claims, defenses, or counterclaims should I plead?
3. …
4. What motions should I plan?
5. When should I explore settlement?
As plaintiff, when you have decided on appropriate claims and remedies, you must determine where, and against whom,
you can bring the suit. … (T)here are several procedural issues that must be considered:
1. What parties must or can I Join?
2. Will I have subject matter jurisdiction over the claims?
3. Will I have personal jurisdiction over the parties?
4. Where will the proper venue lie?
Finally, when should you explore settlement, if your opposing party doesn’t? Since 95 percent of civil cases are settled
before trial, you need to think through what your position on settlement should be at those points when the issue is likely
to come up. This includes assessing the ‘value’ of the case at various times, as well as the financial and emotional Pretrial
Skills and Trial Advocacy benefits of settlement. The likelihood of a settlement, particularly and early one, will also affect
your handling of the litigation and the relationship with your adversary. …
9. Make litigation cost and timetable estimates
A litigation cost estimate is something every litigator should make in every case. The client, particularly a sophisticated
one, will always ask: “How much is this going to cost me?” All clients, except those whose cases are on a contingency fee
basis, will ask this
question sooner or later. You should give your client an estimate of likely costs before starting the litigation and get the
client’s approval, keeping in mind that you are dealing with an estimate, not a guarantee, and that you do not have
complete control over costs.
As plaintiff’s lawyer, even though you will usually handle a personal injury case on a contingency fee bass, preparing a
cost estimate is still useful to determine if taking the case makes economic sense to you.
The last step n the litigation plan is to create a realistic timetable that will control the
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litigation
10. Use a litigation file system
The last step is to develop and use a system for organizing your litigation files. There is
no magic in doing this.
Chapter 6
Pleadings
Preparation of pleadings marks the last phase of pretrial lawyering and is a prelude to trial
advocacy. After the completion of fact investigation and research on the legal issues involved, and
after having exhausted efforts to settle the dispute through negotiation, the lawyer resorts to filing her
case at court
Section 1- Initial steps in the preparation of pleadings
In pleadings “each party sets forth the facts, his version of what happened.” As Sedler noted:
The primary purpose of the pleading and pretrial stage is to determine the issues that must be resolved at trial. Issues may
be defined as the points on which the parties disagree. There are many possible issues that could arise in a case, and the
purpose of the pleading and pretrial stage is to determine just what those issues are. The trial will be limited to a
resolution of those issues, so the court and the parties do not have to waste time on matters that are not really in dispute.
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During the pleading stage a party sets forth the allegations of fact; during the trial stage he introduces evident to support
the allegations of fact set forth in the pleadings.
Moreover, pleadings are confined to concise material facts, and do not include legal arguments because Article 80 (2)
provides that pleading shall “contain only a statement in a concise form of the material facts on which the party relies for
his claim or defence and shall be in a form as near as may be to the appropriate Form in the First Schedule” of the Civil
Procedure Code. “If a party wishes to present legal arguments to the court, he should do so in a separate document, i.e. a
memorandum of law.”
The initial step in drafting a pleading is jotting down the core outline based on the elements of the legal provision to be
invoked in the claim, remedy, defense or counterclaim. These elements give a roadmap, structure and coherence to the
pleading.
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