12 October 2021 Written by  ALEM ABRAHA AND TAFESSE HABTE

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 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 adversarial and inquisitorial systems of litigation are?

The principle of party presentation which is one of the hallmarks of the adversarial system is modified in our code and the court has power to order amendment of pleadings on its own motion, and it has the power to frame issues for trial. With regard to the examination of witnesses, the court has the power to put a question to a witness at any time during the examination.

 

The court has also the power to call a witness even though he has not been called by the parties and may order any such person to produce any document that he has with him. Furthermore, according to Art. 266 of the Civil Procedure Code, the court has the power to recall any witness who has been examined and may put to him such questions as it thinks fit. In this regard, the parties have already examined him in the examination-in-chief, cross-examination and re-examination stages. The court is probably recalling a witness to clarify points or matters, which were not clear during the examination. So, it is only the court that examines the recalled witness and the parties do not have a further opportunity to question him although they may request that he may be called.

 

On the basis of Art. 267 of the Civil Procedure Code, where a party, without a lawful excuse, refuses to give evidence or produce a document in his power when required to do so by the court, the court may pronounce judgment against him. However, the court may decide not to take such a step and may issue the same kind of order as it would against any recalcitrant witness. This means, if a person who is a party to a suit refuses to give evidence or to produce any document, the court may order, with or without a bail for the arrest of such person, as it considers the attendance of such person necessary.  Note that this position is inferred from the very reading of Art. 268 in tandem with Art.118 [2] [b] of the Civil Procedure Code.

 

Where deposition is to be interpreted, Art. 262 of the Civil Procedure Code stipulate:

Where evidence is to be given in a language other than the working language of a court, it shall be interpreted by the official interpreter or by such other person as the court may appoint for that purpose.

 

What do we mean by official interpreter?

Art. 262 of the Civil Procedure Code is now applicable in a manner that is suitable to the Federal Arrangement of the FDRE Constitution. This means, every state is empowered to use its language as a working language of its courts. The Constitution also gives a right to individuals who do not know the language of the court to have an interpreter. So, currently, it is not only the inability to speak Amharic but also other working language of the court that will entitle to have interpreter.

 

What do we mean by working language?

To achieve the objective of justice, the interpreter takes an oath as provided in the Third Schedule and swears to interpret the evidence truthfully. Accordingly, the interpreter must repeat the questions and answers exactly as they have been given and cannot summarize. To achieve this objective, whenever possible, an official interpreter should be used. If this is not possible, the court must be satisfied that the interpreter is fluent in both languages; it should not simply ask whether there is someone present in court who can interpret, without satisfying itself as to that person’s ability.

As to recording evidence, according to Art. 269 of the Civil Procedure Code:

  1. The evidence of each witness shall start with his name, age, occupation and address and an indication that he has been sworn or affirmed.
  2. The evidence of each witness shall be taken down in writing by the presiding judge or, if he is for some reason unable to record, by a judge or clerk under his personal direction and superintendence.
  3. The evidence shall be divided into examination-in-chief, cross- examination, and re-examination with a note as to where the cross-examination and re-examination begin and end.
  4. The evidence shall ordinarily be taken down in the form of a narrative, but the presiding judge may in his discretion take down or cause to be taken down any particular question and answer.
  5. When completed, the record shall be signed by the court. 

 

However, where there has been an objection to a question, which is overruled, on the basis of Art. 270 of the Civil Procedure Code, the court must record the question, the answer, the objection, the name of the person making it and the courts ruling. This is to enable the appellate court to determine whether the objection was properly overruled. Eventhough it is not required by the code, the court should follow the same procedure where an objection is sustained, again so that the appellate court can determine whether the sustainability ustaining of the objection is proper. It should also be noted that if a party does not object to a particular question at the trial, he cannot contend on appeal that the court should not have considered the evidence given in answer to the question

 

Where, after evidence has been recorded, there is a change in the composition of the court, e.g., when one of the judges is replaced, the suit continues on the basis of the evidence that has been recorded, and it is not necessary to hear that evidence over again.[Art. 271(1)]

What is the justification behind court inspection?

As to power of inspection, according to Art. 272 of the Civil Procedure Code:

The court may at any stage of the suit inspect any property or thing concerning which any question arises and shall in such a case draw up a process-verbal of its proceedings which shall form part of the record.

 

This is called a view, and it may help to ascertain what probably happened. It is just like the property itself were brought into court and introduced as real evidence.

To have a full-fledged understanding of the subject matter, the court may further appoint a commissioner to make a local investigation for the purpose of elucidating any matter in dispute or ascertaining the market value of property, or the amount of mesne profits or damages or annual net profit [Art.132]. This avoids the necessity of taking time at trial to determine such matters, and is particularly important where complicated financial questions are involved.

 

Discuss what ‘open’ and ‘in camera’ trial are?

A word should be said about the kind of evidence that the court may consider in arriving at its decision. In line to Art. 261[3], witnesses must give their evidence in open court, unless the court otherwise directs, for good cause to be recorded.

 

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.

 

Which are the evidences on which the court has to base its decision?

Finally, the court has to primarily base its decision on the evidence that has been presented in open court or in camera and the evidence presented on commission in accordance with the provisions of the code. That is, the court may not base its decision on secret evidence that has not been presented in the presence of the parties or their advocates. Secondly, the judge may only base his decision on evidence that he believes to be competent and relevant. That is, he has the duty to reject any document that he considers to be irrelevant or otherwise inadmissible, and the same is true with respect to oral evidence.