CHAPTER ONE

PRE -TRIAL PROCEEDINGS

1.1. The First Hearing
Overview
1.1.1. Non -Appearance of parties
1. Effect of Non-appearance
Where there has been non-appearance, depending on who has failed to appear, four things can
happen:
1. The suit may be struck out; (Art. 69(2) or 70(d))
2. The suit may be dismissed; (Art. 73, 69(2) (2) 70(d) or 73)
3. The court may proceed ex-parte; (Art. 70(a))
4. The court may issue a default Proceeding; (Art. 233).
1.1.2. Examination of Parties
If the issue of appearance is decided and the case can be proceeded, the next task of the court in
the first hearing will be examination of parties. Where the parties appear in person, the court verifies
their identity. It then reads the pleadings and asks the parties on the pleadings. The question is whether
each party or his pleader admits or denies the allegations of fact in the pleading of the other party that
have not otherwise been denied.. If the court sees that the defendant has not denied or expressly
admitted a particular allegation, of the statement of claim, it gives him a second chance, to speak. The
court will specifically ask him whether he intended to admit that allegation is deemed denied.
By examining the plaintiff, the court determines whether he admits or denies the facts
constituting such defenses. Suppose that the defendant has admitted the contract but said that he had
paid what plaintiff is claiming. The plaintiff could deny that the defendant had paid, in which case there
would be an issue on this point. Or, plaintiff could say that what defendant had paid is some other
payment not the debt claimed in the suit. Then, the court would frame an issue on whether the payment
has already discharged the claim or not.
1.1.3. Ruling on Preliminary Objections
Therefore, Art. 244(3) provides that any preliminary objection not raised at the earliest possible
opportunity, i.e., at the time the court call for the first hearing, is deemed waived unless the ground of
objection is due to reasons such as to prevent a valid judgment from being given.
Where the court sustains an objection on the ground that the subject matter of the suit is res
Framing of Issues
The court considers the allegations in the pleadings, the contents of the documents produced by
either party, and the oral allegations made by the parties or their pleadings or persons present on their
behalf. See Cv.Pr.C Article 248

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 The very advantage of framing issues is to limit the scope of litigation of the parties during the
trial proceedings.
1.2. Adjudication without Trial
Where the statement of claim fails to state a cause of action, the court will dismiss the suit.
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.
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, which are already delivered to the court. However the court should be
careful to decide on whether the issue is solely dependent on the 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.
1.3. Compromise and withdrawal
The plaintiff might then decide that he wishes to discontinue the suit. Or, the parties might
decide to compromise the case. This may happen not only before trial is conducted, but it may also be
raised after trial is conducted and before judgment is rendered. Following this we will deal with issues
related with Compromise & withdrawal.

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 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]
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 [Art.267 of the Civil Procedure Code]
1. Order of Proceeding
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:

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 Discuss what preponderance of evidence is?
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
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 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 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.
Discuss what ‘open’ and ‘in camera’ trial are?
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?
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 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?

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 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 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.

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 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 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.

2.2.2 Accelerated Procedure

As it is clearly indicated under Art 301 of the Civil Procedure Code, a party entitled to have his
case heard under accelerated procedure must file a written, dated and signed application within the
period fixed by law for the making of such applications, or where no period is fixed, within fifteen days
from the occurrence of the facts on which the application is based.
At this juncture, you have to note that, the proceeding at this point is ex-parte, and the defendant
is not served with notice. In this regard, if the applicant is not qualified to act in the proceedings or if it
is not in the proper form or not filed within the prescribed time, or if the court considers that the subject
matter of the application cannot be properly disposed of under the accelerated procedure, the
application will be dismissed.

However, a dismissal of the application does not operate as res judciata as to the subject matter
of the application, but a fresh application may not be made on the same ground to be dealt by and
through accelerated procedure.s

2.3 Other Procedural Matters

2.3.1 Arrest and Attachment before Judgment
The provisions that we are going to discuss here under are different form those providing for
arrest and attachment as part of the proceedings in execution.
This section is different because it involves arrest and attachment prior to the time a judgment
has been rendered.
To have coherence, we will first consider the arrest of the defendant [what is called security for
appearance], and then consider security for the production of property.
2.3.2 Arrest before Judgment
Before we embark on the essence of the subject matter, notice that these rules are applicable
only to suits not involving immovable property. If the suit involves immovable property, the
defendant’s interest in such property may be considered sufficient security for his appearance.
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 In line with Art 147 of the Civil Procedure Code, to bring about the legal penetration of this law,
first and foremost a warrant of arrest may be issued against the defendant where the court is satisfied
that the defendant:
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.

2.3.3 Attachment before Judgment

The rules related to security for production of property are designed to prevent the defendant
form disposing of or removing his property so as to prevent execution. Under this procedure, in line
with Art 151 of the Civil Procedure Code, the action is taken entirely against the property, and it is
applicable to all suits, including those involving immovable property.
Art 153 of the Civil Procedure Code, in any event, the court will order the attachment to be
withdrawn whenever the defendant furnishes the security required together with security for the costs
of the attachment, or when the suit is dismissed.
Art 153(5) of the Civil Procedure Code that where property has been attached prior to judgment
and a decree is subsequently passed in favor of the plaintiff, it is not necessary for him to apply for
reattachment of the property.
2.3.4 Temporary Injunctions, Interlocutory Orders and Appointment of Receiver
2.3.5 Temporary Injunctions
An injunction is an order restraining a party form doing a particular act or requiring him to do
such an act; and the plaintiff may ask for injunctive relief as part of the final decree. A temporary
injunction is issued during the pendency of the suit to prevent certain action from taking place that
would prejudice the other party to the suit. The Code authorizes the issuance of a temporary injunction
in two kinds of situations:
1) Where action taken with respect to property will prejudice the other party;
2) Where, in a suit to restrain the breach of a contract or the commission of an act,
the defendant is threatening to breach the contract or do the act pending litigation.

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;

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 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.
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.
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 Ci.Pr.C, 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
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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 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.

2.3.7 Procedure in Arbitration and conciliation

Arbitration is a dispute resolution process in which the disputing parties present their case to a
third party intermediary (or a panel of arbitrators) who examine all the evidence and then make a
decision for the parties.
This decision is usually binding. Like court-based adjudication, arbitration is adversarial.

Art. 317.- Procedure before arbitration tribunal

1. The procedure before an arbitration tribunal, including family arbitrators shall, as
near as may be, be the same as in a civil court
2. The tribunal shall in particular hear the parties and their evidence respectively
and decide according to law unless, by the submission, it has been exempted from doing so.
3. Summonses may be issued for the attendance of witnesses who may be sworn:
Provided that, where a witness fails to appear in answer be the summons, either party may apply
to the court for the issue of summons. In which case the provisions of Arts. 111-121shallapply.
4. When a party, who has been given the opportunity to be heard and produce his
evidence, fails to do so, the tribunal may give its award in default.

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,
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 Newly Discovered Evidence and
Opposition in which the court of rendition will revise its own decision.
3.1.1 Procedural Irregularities
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.

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.
3.1.2 Newly Discovered Evidence
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 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 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

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 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.

3.2 Reviews by Appeal to a Higher Court

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.

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.

2.Appeal on Orders (Interlocutory Appeal)

An interlocutory appeal is simply an appeal from an interlocutory matter, a matter on which the
court has rendered a decision, but the decision does not finally dispose of the case.

Examples of interlocutory matters would be an order on a motion for adjournment, a decision

on preliminary objections, a ruling on the admissibility of evidence and a decision on an application to
sue as a pauper.
Question: what is the effect of failure to apply the memorandum within the period of limitation?

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
The party in whose favor judgment on the merits was entered may have certain objections to the
decree, 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

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 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 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
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

3.2. The Second Appeal

On the second appeal, the party appealing is considered the appellant and the party, in whose
favor the previous judgment was varied or reversed, is considered the respondent. The second appeal is
to be a review of the decision of the first appellate court varying the judgment appealed from and not a
review of the decision of the trial court.
The question is whether the appellate court commits error in varying or reversing the
judgment from which the appeal was taken. The second appeal should be limited to that aspect of the
decision of the appellate court varying or reversing the judgment of the first court.
3.2.8 Restitution
As we saw, the taking of an appeal does not prevent execution of the decree unless a stay is
ordered for sufficient cause. It may be, then, that the judgment in favor of one party will have been
executed, and, on appeal, that judgment will have been reversed. In such a case the successful appellant
is entitled to restitution, and he must make his application for restitution in the court of first instance.
That court must cause such restitution to be made, as will, so far as possible, place the parties in the
same position as they would have occupied but for the decree or part of the decree that has been varied
or reversed. See article 349 of the Cv.Pr.C

3.3 Revision in Court of Cassation

Art. 80 (1) & (2) of the Federal Constitution of Ethiopia, the Federal Supreme Court and the
State Supreme Courts have the highest and final judicial power over Federal and State matters,
respectively. Besides, sub 3(a) of the same Article empowered the Federal Supreme Court to exercise
power of Cassation over any final court decision containing a basic error of law. The State Supreme
Court also has given the same power on State matters by Article 80(b) of the Constitution.

CHAPTER FOUR
EXECUTION OF DECREES
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 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. Following we
will see the procedure to be followed in such cases.
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 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.
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.

4.2.1 Application for Execution

1. There is no fixed time stated for application. But the application may be made as soon as the
judgment-debtor is in default. If he has been given time to satisfy the decree, the application may be
made when the time has passed without the decree's having been satisfied; otherwise, it may be made
upon the passing of the decree. See article 378 of Cv.Pr.C.
2. Application by holders of joint decrees
A decree may some time benefit more than one person. In such cases, any one of the
beneficiaries may apply for the execution of the whole decree for the benefit of all, or where one has
died for the benefit of the survivors and the legal representative of the deceased. See article 380(1) of
Cv.Pr.C.
If there are several parties, so that a representative class suit may have been justified under Civ.
Pro. C., Art. 38, one holder of the joint decree should be able to file the application on behalf of the
others. Or, if one of the decree-holders is outside of the jurisdiction, the other should be able to apply
for execution.

3.Application by transferees

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 A right may be transferred to any other person for different reasons and at different times. Such
transfer could be made by the operation of law or by agreement of parties. Accordingly, if a decree is
transferred by assignment in writing or by operation of law, the transferee may apply for execution.
Once the application is granted the decree may be executed in the same manner and subject to the same
conditions as if the application were made by the original decree-holder. See article 381(1) of Cv.Pr.C.
A transfer of the decree by operation of law may arise in any of the following ways:
1. the decree-holder has died, and the decree has passed by devolution or succession,
2. the decree-holder has become insolvent, and the decree has passed to the assignee or
receiver;
3. a judgment has been entered against the decree-holder in another suit, and the decree has
been transferred in execution proceedings against him.
4. Application against sureties and representatives
. Where the judgment-debtor dies before the decree has been fully satisfied, the decree-holder
may apply to the court, which passed it for execution against the legal representative of the deceased
judgment-debtor. See Art. 383 of the Ci.Pr.C.
4.2.2 Limitation
The ordinary period of limitation for the enforcement of obligations, which is ten years, should
be applicable, and if the application is filed more than ten years after the date of the decree sought to be
executed, it should be barred by limitation.
4.2.3. Process of Execution
5. Receipt of application and examination of the judgment-debtor

If the judgment-debtor does not appear, the court orders the decree to be executed and issues
process for such execution. In addition, where the application made for execution of a decree for the
payment of money, the court must order the judgment-debtor to be arrested and brought before the
court for the purpose being examined as to his means. See article 386(3) and (4) of the Cv.Pr.C
When the judgment-debtor appears, he may make objection to the execution of the decree, and
the court will consider his objection and make an appropriate order. The court would dismiss the
application if it finds the decree has been satisfied, or that the application is barred by limitation or is
otherwise objectionable.
Per article 389 of the Cv.Pr.C, in addition to issuing process for execution, the court is
authorized to order the detention of the judgment-debtor as a means of forcing him to comply with the
decree It may issue such an order in two situations:
1 if the court concludes that prior to the time when the application
for execution was filed, the judgment-debtor is in a position to satisfy the decree and willfully failes to
do so, i.e., he had the means to satisfy the judgment or the ability to perform the required act, and there
was no excuse for his failing to do so; or

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 2 If, after the court has examined the judgment-debtor and
ordered him to comply with the decree, he refuse without good cause to do so.
In either case the court may order his arrest (if he is not already under arrest) and his detention
in a civil prison for a period not to exceed six months.
6. Execution of decrees for the payment of money
A decree for the payment of money, including a decree for the payment of money as an
alternative to some other relief, may be executed by the attachment and sale of the judgment-debtor's
property. See article 394 of the Cv.Pr .C
7.Execution of cross-decrees
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:
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

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 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
9.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.
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 are:
1. the necessary wearing-apparel, cooking vessels, bed and bedding of the judgment-debtor
and his family;
2. tools, instruments or implements of any kind used by the judgment-debtor in his profess-
ion, art or trade;
3. where the judgment-debtor is an agriculturalist, such cattle and seed-grain as may, in the
opinion of the court, be necessary to enable him to earn his livelihood;
4. such amount of food and money as may, in the opinion of the court, be necessary to
sustain the judgment-debtor and his family for a period of three months;
5. pensions and alimonies;
6. two-thirds of the judgment-debtor's salary, or where the salary does not exceed Eth.$ 2
per day, and the judgment-debtor has no other income, the entire salary;
7. any other property declared by law to be exempt from attachment or sale.
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

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  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

1.3.2 Sale of property

1. Special Provisions as to the Sale
A. General rules
The decree-holder is to make an application, the court appoints an expert to estimate the value
of the property to be sold. See article 424 of the Cv.Pr.C, Where the sale is to be by public auction, the
court must cause a proclamation of sale to be made. The proclamation of sale may be drawn up only
after notice to the decree-holder and the judgment-debtor must state the time and place of sale and must
specify as fairly and accurately as possible the following information:
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.
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 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

B. Sale of Movable Property

The following rules govern the delivery and transfer of the property to the purchaser.
 Where the movable property has actually been seized, it is simply delivered to the
purchaser after the sale.
 Where it is in the possession of some person other than the judgment-debtor, the
delivery is made by giving notice to that person prohibiting him from delivering possession of the
property to anyone except the purchaser.
C. Sale of Immovable Property
2. Setting Aside the Sale
There are basically three situations where setting Aside can be done.
b. The judgment-debtor has no saleable interest in the property;
c. Another person has an interest in the property;
d. There is material irregularity or fraud in the conduct of the sale, resulting in substantial
injury to the applicant.
CHAPTER FIVE
RES JUDICATA AND SPLITTING OF CLAIMS
According to Art 8 of the Civil Procedure Code:
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
2. 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.
1. 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
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 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.

1. Single and Multiple Causes of Action

The most difficult case is when there is a situation of dispute as to whether the facts of the
transaction gave rise to one cause of action or to two. If there are two causes of action, then the failure
to claim the relief to which the party would be entitled under the second cause of action does not
amount to a splitting of his claim since he was not making a claim with respect to the second cause of
action.
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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