12 October 2021 Written by  ALEM ABRAHA AND TAFESSE HABTE

Ordinary Proceedings - Production of Evidence to the Court

THE TRIAL AND OTHER PROCEDURES

All that has gone at the first hearing culminates in the trial. At the trial stage, the issues developed at the first hearing would be resolved, and then judgment and decree would be passed. To this effect, the trial essentially involves the introduction of evidence and the consideration of that evidence by the trier of fact. The Civil Procedure Code regulates:

  1. the production of evidence, that is, how witness and documentary evidence is brought before the court,
  2. the conduct of the trial, and
  3. the giving of the judgment and passing the decree.

Since the rules determining what evidence can be considered by the trier of fact will be found in the Evidence Code, in this part we will be concerned only with those aspects of the trial governed by the Civil Procedure Code, that is, more emphasis will be given to the procedure to be followed at the trial of the case rather than with the evidence the court can consider.

 

Ordinary Proceedings

1 Production of Evidence to the Court

Overview

The law of evidence is concerned with one of the most complex undertakings in the entire litigation process. This complex undertaking is the reconstruction of past events to arrive at the truth. Truth is not sought in an absolute sense. Evidence is produced to prove factual allegation/s that is/are affirmed by one party and denied by the other. Since the trial stage is basically the stage where oral testimony and documentary evidence are examined, it is necessary to have a procedure by and through which all necessary oral and documentary evidence can be brought before a court.  To this effect, in this section, we will first consider the procedure for obtaining the attendance of a witness and oral testimony and then the procedure for obtaining the production of documents.

 

Before we directly embark on the essence of the production of evidence, it is good to have a clear image of the purpose of Civil and Criminal Procedure Codes; accordingly, let us have a bird’s eye view on the following purposes:

  1. Entrenching expedite trial by eliminating worthless evidence. This approach would ultimately enable the courts not to waste their time by receiving worthless information.
  2. The second purpose is the exclusion of prejudicing and inherently unreliable information from the trial. Accordingly, if a piece of evidence, though relevant, could endanger or prejudice the trial of fact, it would not be admitted as evidence.
  3. The third purpose of procedural law is protecting the privacy of the parties on learning the truth for purposes of litigation. Thus, some evidence, although valuable and non-prejudicial, will be inadmissible even though its exclusion might result in an incorrect factual determination at the trial. There are several kinds of privilege, which contributed to the exclusion. The most common privileges that are incorporated in our laws are the so-called communication privileges that protect conversations between individuals who are in a special relationship.

 

Generally, the law does not exclude the relevant testimony of any person who has the capacity to observe and remember the matters on which that person testifies, the ability to communicate this knowledge, and an understanding of the obligation to tell the truth. However, when any of these factors are in doubt, it is up to the judge to admit or exclude such whiteness.

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. Presumably, those witnesses will voluntarily appear at the trial, and they may testify without any further formalities. However, when some witnesses so named will not appear voluntarily or when subsequent to the filing of the pleadings, a party discovers another person who can give testimony. In such a case, the court will issue a summon to that witness requiring him to appear, and if the hearing has already begun, it may adjourn the hearing so that the person summoned can appear.

 

In this regard, in order to render a proper decision, when the court is convinced that the witness may give valuable testimony and the summons is not sought merely to delay the case, the court should have all the evidence before it even at the expense of further prolonging the case.

 

At this juncture, it is important to note that since the parties have primary responsibility for presenting their cases, the court shall issue the summons in its own motion only in exceptional circumstances, that is, only where a witness who is likely to be able to give crucial testimony has not been called by either party. See Article 264 of Cv.Pr.C

 

Accordingly, on the basis of Art. 112[1] where the summons is issued at the request of a party before the summons granted within period to be fixed, he shall pay into court  a sum of money as it appears to the court to be sufficient to defray the travelling and other expenses of the witness for one day’s court attendance.

 

Where the court finds that the sum is not sufficient to cover the expenses or that the witness must be detained for more than one day, the court will order the party who has requested the issuance of the summons to pay an additional sum in to the court. If he does not do so, the court may discharge the witness or order the required sum to be levied from the attachment and sale of the party’s movable property or may order both the levy and the discharge. 

 

The summons must specify the time and place at which the witness is required to attend and whether his attendance is required for the purpose of giving evidence or producing a document, or both. So, if a person is said to have in his possessions a marriage certificate or a contract to marriage, or a will etc, the summons should mention the type of document that this person should produce.

 

According to Art. 118[1]:

  1. Where a witness who has been summoned fails to appear at the appointed time, the court must first determine whether the summons has been duly served.
  2. Where the court sees reason to believe that the evidence to be given or document to be produced by such witness is material:
  1. if the court is satisfied that the summons has not been duly served, it may order the issue of a fresh summons on such terms as the costs or otherwise as it thinks fit;
  2. if the court is satisfied that the witness has without good cause failed to comply with such summons or has intentionally avoided service, the court may make such order, including the issue of a warrant with or without bail for the arrest of such person, as it considers necessary for the attendance of such person.

 

Good cause should only refer to a situation where the witness was prevented from attending due to physical conditions beyond his control, for example, illness or unavailability of transportation. As it is clearly indicated under Article 118 of the Civil Procedure Code, it is important to note that a witness who fails to appear when summoned may also be subject to criminal prosecution

 

Unless the court otherwise directs, in line to Art. 120 of the Civil Procedure Code, witness who has been summoned shall attend each hearing until the suit has been disposed of, and the court may require a witness in attendance to execute a bond that he will attend until the suit is disposed of.

 

Up to now, we have been considering the attendance and summons of witnesses. The whole purpose of summoning witnesses is to examine them what they testify as to what they know. The witnesses could be any person who has a witness when a document is signed or who might have seen a certain accident or factual situation that gives rise to action. The witness could be an expert witness who the court summons him so as to hear his expert opinion on a given subject. Both types of witnesses are summoned and testified in court. The parties and the court may examine them.

 

But, there are circumstances where a witness whose testimony is necessary and cannot be brought before the court. This often happens when the witness may be physically incapable to attend the court proceeding or he may be far from the jurisdiction of the court or he may be about to depart from the jurisdiction of the court before the hearing.

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.

 

An examination on commission is the examination of a witness by a person specifically authorized to examine the witness. Where the witness is not resident within the local limits of the court’s jurisdiction or is about to leave those limits, the commission may be issued to any court within the local limits of whose jurisdiction the witness resides or will be present to any other person the court issuing the commission may appoint.

In this regard, the court before issuing summons may require a sum for expenses to be paid by the party at whose request or for whose benefit the commission is issued. And, like the summons to the witness, the commission shall specify some particulars, and give orders to all concerned, i.e., the parties and the commissioner. On this basis, the parties are required to appear before the commissioner in person or through their representatives. According to article Art .125(1) of the Ci.Pr.C, the provisions of the code applicable to the summoning, attendance and examination of witnesses, and to the remuneration of and impositions of penalties to be imposed upon witnesses shall apply to persons required by the commissioner to give evidence or to produce documents. Besides, it assumes the commissioner as a civil court.

 

Where the witness resides outside the local limits of the court issuing the commission, the commissioner may apply to any court within the local limits of whose jurisdiction the witness resides for the issuance of process against that witness, and that court shall issue such process against that witness, and that court shall issue such process as it finds proper.

 

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, the 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]

Following the above procedural setup, Art. 205 of the Civil Procedure Code stipulate that affidavit shall be confined to such facts as the deponent is able by his own knowledge to prove, but on an interlocutory application, for example on the application of a temporary injunction, they may include facts that the deponent believes to be true. In such a case it must be made clear how much of the affidavit is based on the deponent’s knowledge and how much is based on facts that he believes to be true. The sources on which his belief is based should also be disclosed. 

 

So, affidavits can be employed in two situations. The first is that the party proved the facts to the best of his knowledge, and the second is that the party may prove some fact by affidavit where he believes that the facts are happening or will happen.

Examples:

  • A plaintiff who does not have sufficient money to pay court fee may apply to the court to sue as a pauper. He should support his application by an affidavit to prove that he does not have money, pursuant to Art.468 of the Civil Procedure Code. In such cases the deponent is stating the facts as he knows them and not mere belief.
  • A plaintiff is required to support his application by affidavit for an order of temporary injunction the attachment of the property of the defendant before judgment. In such affidavits that deponent, that is, the plaintiff is stating his belief that the other party is or will remove his property form the jurisdiction of the court or that the subject matter of the suit would be wasted.

 

It is not therefore necessary to produce other evidence or witnesses on matters that are to be proved by affidavits. This, however, does not mean that a fact proven by affidavit is irrefutable. In other words, it can be challenged and disproved.

 

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. Most of the real proof introduced at trial is in the form of documents. There are generally two special rules that govern the admissibility of documents under the procedure code and the new evidence draft law.

The first is the rule of authentication. This rule requires a showing that a document, what its proponent claims it to be before it, will be admitted into evidence. In the ordinary situations this means only that the person offering the document must produce evidence that it was signed or prepared by the person who is claimed to have signed or prepared it.

 

The second rule related to documents that is provided in the Civil Procedure Code is the So-Called best evidence rule. The best evidence rule requires a party to introduce the original document or to establish that the original has been lost or destroyed before other evidence of the document’s content are to be admitted. [Art 140 and 223 of the Civil Procedure Code.]

 

As it is clearly indicated above, each party must include with his pleading the original copy of any document in his possession on which he relies [read Art, 233(1), and 234(1)]. If a party alleges that a document is in the possession of another person, the court has the power to order the person who has possession of the document appear in court with it. 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]

 

As regards a person who is not a party to a suit and who is ordered to produce a document, we have said that the rules of summoning and attendance of witnesses is applicable.

 

Where a person is summoned for the sole purpose of producing a document, he may simply produce the document without personally appearing in court. The rules on the production of documents by persons who are not parties to suits and who are not witnesses are provided under Art.115 and 119 of the Civil Procedure Code. So, if a person is ordered to produce only the document under Art .114, he can cause the document to be produced. In other words, he can send the document to the court instead of appearing in court to produce the document under Art 115. The person in whose possession a document is alleged to exist has a duty to respect the order of the court in producing the document. This is provided in Art.119 of the Civil Procedure Code.

 

Note here that these rules are applicable to the production of other real proof, e.g. photograph and exhibit (Art 146). The court may also send for the record of any other suit or proceeding either from its own files or from the files of another court. Art 145(1) provides that “the court may of its own motion or on the application of any of the parties to a suit, send for either from its own records or from any other court, the record of any other suit or proceeding and inspect the same.”

 

There are many instances where the record in a suit may be relevant and admissible in another suit. One such case is where one of the parties alleges that the case before them is res judicata.

 

Before we wind up this section let us discuss, the procedure of admission of documentary evidence by the court. The rules are provided in Arts.139-141 of the Civil Procedure Code.

 

Where a document has been produced, the court endorses on it the number and title of the suit, the name of the person producing the document, and the date on which it was produced. This should be done irrespective of whether the court considers the document to be admissible in evidence, but where it is inadmissible the court must include a statement to the effect that the document has been rejected. On whose behalf the book or account is produced may furnish a copy of the entry, and the required particulars are endorsed on the copy. Where the book or account does not belong to the party seeking to introduce it, the court may require that party to furnish a copy. Where the court has ordered the production of the book or account on its own motion, it may require either party to produce the copy. Whenever a copy has been furnished, the court shall compare the copy with the original, certify the copy to be accurate, and return the original to the person producing it. The court, however, may if it deems it necessary direct that any document be impounded for such period as it deems fit. In such a case, any person who has submitted an original document may receive back the original by substituting a copy and promising to produce the original if required to do so.

 

Note here that no document may be returned which by force of the decree has become void or useless. For example, in a suit on a negotiable instrument, the defendant contends that the instrument was obtained by duress. If the court sustains the contention and enters judgment for the defendant, it will not return the document to the plaintiff, since the document is not enforceable. This prevents his trial to file a suit on the instrument elsewhere. On the return of a document admitted in evidence, the person receiving it must give a receipt.

 

When (at what stage of the proceedings) should documentary evidence be introduced?

The party will presumably seek to introduce in to evidence the documents on which he is relying during the presentation of his case at trial. The code provides that the court may at any stage of the suit reject any document that it considers irrelevant or inadmissible. So the court would reject the document when filed with the statement of claim or presented at the first hearing. The court might rule on the admissibility of the documents at the first hearing. But, it is more likely that it will wait until the trial. At the trial, the proponent will seek to introduce his document into evidence, and any objection to the admissibility of the document can be considered at that time. Note that, the court has the duty to exclude or not to admit the document even if no objection is made. Where a document has been admitted, it forms part of the record; if it is not admitted, it does not form part of the record and is to be returned to the person who produced it.

In a nutshell, the code bestows the court broad powers to compel the attendance of witnesses and the production of documents and generally to obtain evidence that it considers necessary to enable it to decide the issues at hand in the suit. Primary responsibility for the attendance of witnesses and the production of documents rests with the parties. However, the court, in the exceptional circumstance, may by its own motion, demand the production of evidence.