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. Although the procedures are different and applicable in different kinds of cases, they are related in the sense that the questions involved in both kinds of cases may be determined without full-scale suit.
- Summary Procedure
Where the summary procedure is available, the plaintiff has the option to employ it, but he/she is not obliged to do so.
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:
- Upon a contract, express or implied such as on a bill of exchange, promissory note or other simple contract debt, or
- On a bond or contract written for payment of a liquidated amount of money, or
- 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.
As it is clearly indicated under the last paragraph of 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 a nutshell, as we have discussed, summary procedure is designed for cases where the defendant is not likely to have any defence to the plaintiff’s claim, and before instituting suit under this procedure, the plaintiff should be required to swear that he believes this to be so. The statement of claim is not served on the defendant. Instead the court serves a special summons in the form set forth in the Second Schedule No 17 or in such other form to be prescribed. The summons advises him that he has been sued for a sum of money on a specified obligation and that he must obtain leave to defend the suit. He may not appear and defend unless he applies and obtains such leave from the court. If the defendant or one of the several defendants fails to make such an application within the time fixed by the summons, the plaintiff is entitled to a decree for an amount not exceeding the sum claimed in the statement of claim together with interest if any, and costs against the defendant or such of the defendants as have failed to apply for leave to defend.
The purpose of the procedure is to enable the plaintiff to avoid a full-scale suit, and this has been accomplished. Once the judgment has been entered in favor of the plaintiff, the court should be able to pass the same kind of decree as in any other case.
In line with Art 286 of the Civil Procedure Code, an application for leave to appear and defend is to be supported by an affidavit, which states whether the defence alleged goes to the whole or part only and, if so, to what part, of the plaintiff’s claim. The plaintiff must be served with notice of the application and with a copy of the defendant’s affidavit.
Following the application, the court will hold a hearing, at which time the defendant may be examined on oath and required to produce relevant deeds, books, documents and the like. The plaintiff must be served with notice of the application and a copy of the defendant’s application.
Then after, in line with Art 287 of the Civil Procedure Code:
Where, after hearing an application by a defendant for leave to appear and defend the suit, the court refuses to grant such leave, the plaintiff shall be entitled to judgment as against such defendant.
Art 288 of the Civil Procedure Code governs the scenario when there is judgment for part of the claim. According to this Article, if the court is in doubt whether the defence is bona fide, but is not convinced that it is not, it should grant the leave, but should make it conditional. If the defence applies only to part of the claim or part of the claim is admitted, the court enters a judgment for the plaintiff in the amount of the admitted claim of such terms as to suspending execution or the payment of any amount realized by attachment, or taxation of costs as it may think fit. The defendant is then given leave to appear and defend as to the balance of the claim.
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 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.
- Accelerated Procedure
Accelerated procedure is available for the hearing of certain kinds of applications, and in our legal system there are directions for the disposition of these applications.
To have a full-fledged understanding of the subject matter, first and foremost let us discuss how an application for having the case heard under accelerated procedure must be made, and then we will consider what kind of matters may be dealt by and through this 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. Furthermore, the application must specify the capacity in which the applicant acts and must indicate the provisions of the law under which it is made; it must also be supported by an affidavit stating the reason of it. In addition, it has to include the required documentary evidences as the applicant wishes to submit.
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.
Whereas, where the application is allowed, on the basis of Art 303 of the Civil Procedure Code:
- the court shall make its decision in accordance with the provisions of the following Articles and such decision shall be written in the form of judgment or written order, as the nature of the case may require.
- unless otherwise provided in this chapter or the law under which the application is made, the court shall make its decision on the basis of the application.
- nothing in sub Art (2) shall prevent the court from requiring the production of such evidence or additional evidence as may be necessary, on such terms, in such manner and within such time as the court shall direct.
Furthermore, in line with the above stipulation, Art 304 of the Civil Procedure Code provides that:
- Any decision under this chapter shall be made or given on such terms as to costs or otherwise as the court thinks fit.
- No decision under this chapter shall be a bar to the making of such further orders as may or must be made pursuant to the law under which the application is made, or as may appear expedient in the circumstances.
At this stage, you have to note that in a number of cases, there is no provision by which an interested party has the opportunity to appear and oppose the granting of the application. However, a number of cases in which an application is authorized involve only one party, and where another party would be interested, he could move the court to modify or set aside its order granting the application. In the civil procedure code, it is specifically provided that the court may always make a further order when necessary.
As to the right to appeal, Art 306 of the Civil Procedure Code provides that unless otherwise provided by the law under which the application is made, no appeal shall lie from any decision under this chapter other than a judgment under Arts 309-311. And, where an appeal lies, from a judgment given under this chapter it shall be made within ten days from the giving of such judgment and such judgment shall not be enforced until the period for appeal has expired or the appeal has been decided.
The scope of application of accelerated procedure is provided under Art 300 of the Civil Procedure Code. On the basis of this Article, the code refers to specific applications and contains directions to be followed in the disposition of such applications. However, you have to note that, if the court concludes that a case could properly be disposed of in accelerated procedure, applications other than those expressly referred to in the code may be heard under accelerated procedure.
Having the above facts in mind, now let us proceed to discuss some points with regard to issues of certificate. According to Art 305 of the Civil Procedure Code:
- On making its decision in favor of the applicant, the court shall, where he so requires, provide him with a dated and signed certificate stating in a concise form the contents of such decision.
- The provisions of sub-Art (1) shall apply in particular in matters concerning change of name (Arts 42 and 43 of Civil Code), withdrawal of interdiction (Arts 377 Civil Code), opposition to marriage (Art 592 Civil Code), widowhood (Art 596 Civil Code) as well as in cases of applications to consult or to be issued with certain powers or documents or to be authorized to depart from certain instructions (Arts129, 209,239,287,523,528,535 and 630 Civil Code)
- Where an application is made for the correction or cancellation of records or entries in the registers (Arts 121,127, 1623 and 1630 Civil Code) or for approval or confirmation (Arts 146,628,633,749,763,766,767 and 804 Civil Code and Art 441 Commercial Code) or registration or certification, the court may, without further proceeding, but after having ordered such investigations as may be necessary, give such directions as are appropriate in the circumstances, or issue a certificate evidencing approval, registration or certification or endorse the fact of approval, registration or certification on the relevant document, as the case may be, together with the date and number thereof where appropriate.
In a nutshell, you have to understand that, the provisions discussed in this section are designed to facilitate the disposition of cases where the claim is not likely to be disputed or where the nature of the claim is such that an immediate decision is required and feasible. They provide an expeditious remedy in appropriate cases and avoid full-scale proceedings where such proceedings are unnecessary and perhaps undesirable.
- Other Procedural Matters
In this section, we will discuss a number of other procedural matters. They are not the major problems of procedure but for the most part they consist of technical rules or special procedures. A few are more complex and are not essentially procedural in nature. However, all of these matters have been designed to give students a picture of the extent of coverage of the Civil Procedure Code, and to familiarize them with its contents. To address the above objectives, the subject matter will be discussed in the following manner. These procedures come when a proceeding is initiated by the plaintiff and the plaintiff and the defendant demand a temporary relief until the case is disposed. The life of such relief depends on the original claim.
- 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.
- 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.
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:
- 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
- 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.
Where the contention is that the defendant is about to leave or has left the limits of the court’s jurisdiction, a clear intent must be shown. But, where the contention is that the defendant is about to leave Ethiopia, a warrant may be issued irrespective of a show of intent so long as the circumstances under which he is about to leave afford a reasonable probability that any decree passed against him will be obstructed or delayed in execution. For example, it may be shown that the defendant is planning to stay abroad indefinitely.
The application may be made at any stage of the suit, that is, before or after it has come to trial, so long as a judgment has not been rendered, and the application may be supported by affidavit or other evidence on oath. The court should be satisfied that in addition to the conditions discussed above, the plaintiff has a colorable claim and that unless action is taken, the defendant will remove himself from the powers of the court. Where the court is so satisfied, it issues a warrant to arrest the defendant and bring him before the court to show the cause why he could not furnish security for his appearance.
Note that the purpose of these provisions is to require the defendant to furnish security rather than to detain him. The defendant may avoid arrest by paying the officer entrusted with the execution of the warrant the sum specified in the warrant, sufficient to satisfy the plaintiff’s claim, which is a sum specified in the warrant, sufficient to satisfy the plaintiff’s claim, which sum will be held by the court until the suit is disposed of or until further order.
Assuming that the defendant is arrested, he may show the cause why an order requiring the depositing of security should not be entered. The court may find that he has no intent to act improperly or that he is not about to leave the court’s jurisdiction or leave Ethiopia, as the case may be. If he has not shown good cause, the court must order him to either deposit in court money or other property sufficient to satisfy the claim against him or to furnish security for his appearance by way of a surety. The security must be for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him. The surety must bind him to pay, in default of the defendant’s appearance, such sum of money as the party may be ordered to pay in the suit.
On the basis of Art 150 of the Civil Procedure Code, in case of refusal to furnish security:
In case of refusal to comply with an order under Art 148 or 149(4) the court may order the defendant to be detained in the civil prison until he complies with the order or until the decision of the suit or where a decree is passed against the defendant, until the decree satisfied: Provided that the defendant may not be so detained for more than six months.
Application by surety to be discharged is provided under Art 149 of the Civil Procedure Code. Accordingly, a surety for appearance may at any time apply to be discharged. He has an absolute right to be discharged upon request, and when he is discharged, the defendant must find another surety. If the defendant is unable to find another surety, the court will order him to deposit in court money or other property sufficient to satisfy any decree that may be passed against him, if he is able to do so. Once he has found a surety and that surety has been discharged, he is only required to find another surety or deposit property if he can. Where he has been ordered to deposit property and has failed to do so, he may be detained in prison, as discussed previously.
- 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. Such action is to be taken where the court is satisfied that the defendant, with the intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove such property from the local limits of the court’s jurisdiction.
At this juncture, the crucial question is the defendant’s intent. The court must be satisfied that the defendant has the intent to obstruct or delay execution of the decree, and the decision will depend on the state of mind of the particular defendant. Nevertheless, this state of mind may be inferred from his acts with respect to the property. However, the fact that the defendant attempted to sell a small portion of a large estate would not warrant the inference that he intended to delay or obstruct execution.
Furthermore, you have to note that only the present conduct of the defendant is relevant. The fact that sometime in the past he mortgaged or disposed of property would not per se constitute sufficient ground for attaching his property. In other words, what matters more is his present intention or attempt to dispose or remove property.
The application may be made at any stage of the suits, and the allegations may be proved by affidavit or otherwise. The plaintiff must, unless the court otherwise directs, seek the attachment of specific property, and in his application, he must indicate that property and its estimated value. Where the court is satisfied that the property might be disposed of or removed, it may either direct the defendant to furnish security of a specified amount, or to produce the property or its value or a portion as may be sufficient to satisfy the decree, or it may order that he appear and show cause why he should not furnish security. Thus, the court may order him to furnish security or produce the property directly without giving him the opportunity to show cause. It would seem, however, that where the court issued an order requiring him to post security or produce the property, he could show that the conditions for the application of the rule were not present, that is, he was not about to dispose of or remove the property with the intent to obstruct or delay execution, and the court would set aside the order. The court may also order conditional attachment of property.
When we come back to the attachment of property, according to Art 152 of the Civil Procedure Code:
- Where the defendant fails to show good cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court may order that the property specified, or such portion thereof appears sufficient to satisfy any decree which may be passed in the suit, be attached.
- where the defendant shows such cause or furnishes the required security after the property specified or any portion of it has been attached, the court shall order the attachment to be withdrawn, or make such other order as it thinks fit.
However, you have to note that on the basis of 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.
It is provided, moreover, under 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. But note that an application for execution must still be made, and if the application for execution is not made within the limitation period, the attachment is ineffective. Also, when execution is sought with respect to property that has been attached prior to judgment, the ordinary rules governing execution apply, so that the fact the property need not be reattached does not prevent it from being subject to ratable distribution.
As we will clearly discuss under the section of execution, objections to the attachment of the property may be preferred by a third party on the ground that the property belongs to him or by the judgment debtor on the ground that the property is exempted form attachment. So, too, where property has been attached prior to judgment, the third party may prefer his claim, and it will be investigated in the same manner as a claim made to property attached in execution of a decree for the payment of money. The defendant also may claim that the property attached prior to judgment is exempted, although his failure to assert the claim at that time should not bar him from doing so after a decree has been entered and an application for execution filed. As a practical matter, the objection is not necessary until that time.
Most significantly, attachment before judgment does not affect the rights existing before the attachment of persons not parties to the suit, nor does it bar any person’s holdings a decree against the defendant from applying for the sale of the property under attachment in execution of his decree against the defendant. Under this rule, if the defendant becomes insolvent prior to the rendering of the decree, the property would pass to the receiver.
Finally, you have to grasp in mind that the plaintiff who obtained attachment of property prior to the decree should not be in a better position as regards execution than any other plaintiff. The fact that the Code refers to the rights of the parties in an attachment before judgment should not mean that after judgment the attachment gives the plaintiff greater than other decree-holders. Therefore, until proceedings in execution have been instituted, prior rights of third parties in the attached property should not be affected.
- Temporary Injunctions, Interlocutory Orders and Appointment of Receiver
Since litigation may and frequently does take some time to be finally decided, it is necessary to make provision for the protection of the parties and the maintenance of the property in dispute pending the final determination of the case
The court has extensive power to insure that the purpose of bringing suit will not be defeated by action that occur during the pendency of the case and that the property in dispute will be preserved.
To achieve the objective of litigation, the following three remedies, that we are going to discuss hereunder, should be employed in the right manner.
- 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:
- Where action taken with respect to property will prejudice the other party;
- 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:
- The property in dispute is in danger of being wasted, damaged or alienated by a party to the suit;
- The property in dispute is in danger of being wrongfully sold in execution of a decree, or;
- 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.
The court should determine that the applicant has a prima facie case, that protection is necessary so that the applicant will not suffer from irreparable injury before his right can be established, and that the inconvenience or harm –likely to result to the applicant if the injunction is not granted is greater than the inconvenience that is likely to arise to the other party if the injunction is granted. In view of the nature of immovable property and its importance in Ethiopia, an injunction should ordinarily be granted where the court is satisfied that there is a danger to the property pending the suit. In case of movable property, the curt should consider whether any injury to the property can adequately be compensated for by way of damages. If it can, there is no reason to issue the injunction.
You have to be clear that, while a party may apply for a temporary injunction, although the suit was not brought to obtain injunctive relief, the fact that the suit was originally brought to obtain such relief may be significant in determining whether a temporary injunction should be granted. This is because the failure to grant a temporary injunction may mean that the plaintiff will be unable to obtain the relief he sought.
For example, the plaintiff sues to obtain an injunction prohibiting the defendant from entering the plaintiff’s land to demolish a structure. While the suit is pending, the defendant threatens to demolish it. The court should issue a temporary injunction restraining the defendant from entering the plaintiff’s land demolishing the structure. If it does not do so, the plaintiff will be deprived of the right claimed in the suit-to keep the structure intact-and his purpose in bringing the suit would be defeated. The broad test is whether the status quo should be preserved until the suit is disposed of, and if the court is of the opinion that it should be, it will grant a temporary injunction.
Furthermore, where there is the danger that the property may be wrongfully sold in execution of a decree, the injunction may be issued against the decree-holder, even though he is not a party to the suit.
Example: Suppose that A attaches property allegedly belonging to B in execution of a decree he holds against him. C, claiming to be the owner of the property, sues A and B for a declaration of ownership. He may obtain a temporary injunction restraining A from selling the property in satisfaction of the decree, since if C is found to be the owner, the property will have been wrongfully sold in execution of the decree. It would also seem that the injunction could be issued against A even if he were not a party to C’s suit; the Code simply says wrongfully sold in execution of a decree. There is the possibility that the attachment will have been levied after the institution of the suit involving the property, and a temporary injunction should be issued in such a case.
The provision authorizing the issuance of a temporary injunction where defendant intends to remove or dispose of his property in fraud of his creditors should be construed to be applicable only where a creditor on a pre-existing obligation is suing to prevent such conduct, and the threatened removal or disposal might take place before the claim is litigated. Where the plaintiff is suing to recover on an unascertained claim, he should proceed by way of attachment, since that will ensure that property is available to satisfy any decree that may be rendered in his favor.
Where the contention is that property is in danger of being wasted, damaged or alienated, the injunction may be issued only against a party to the suit who is threatening to do such act. However, for these purposes, the Party should be construed to include anyone who would be bound by the judgment, for example, a person who has acquired his title to the property from a party after the suit has begun or the representative of a party.
Where the plaintiff has brought suit to restrain the defendant from committing a breach of contract or other act prejudicial to him, a temporary injunction to restrain the breach or the commission of the act may be granted. The defendant will be restrained form breaching the contract or committing the act pending the determination of the plaintiff’s claim.
Of course, if the suit was brought to restrain the defendant from committing an act with respect to property, and he threatened to commit the act, a temporary injunction would be authorized under the provisions of Art.154, discussed previously. The code makes it clear, however, that a temporary injunction may be issued even where the threatened act does necessarily involve property which is the subject matter of the suit.
In determining whether a temporary injunction against the breach of a contract or the commission of an act should be granted, the court must consider whether, assuming that the plaintiff’s claim will be proved, he would be entitled to an injunction as final relief in the suit.
But, there may be cases where at the time the temporary injunction is sought, it is not clear whether the plaintiff will be entitled to specific performance or an injunction as part of the final decree. As long as it appears that the plaintiff may be entitled to such relief if his allegations are found to be true, the court would be justified in issuing a temporary injunction.
The point is that where it is clear that, even assuming the allegations of the plaintiff to be true, he would not be entitled to specific performance or an injunction as part of the final decree, the court should not issue a temporary injunction restraining the defendant from breaching the contract or committing the threatened act.
Note that on a motion for a temporary injunction, the court does not determine the merits of the plaintiff’s claim. This must await the trial. It merely determines whether if the plaintiff can prove his allegations at trial, he might well be entitled to an injunction as part of the final decree. If this is so, and the defendant is threatening to do the act which the plaintiff is seeking to prevent, the court will issue a temporary injunction to prevent him from doing so until the plaintiffs claim is finally heard and decided.
with regard to injunction to restrain repetition or continuance of breach, Art 155 of the Civil Procedure Code provides that:
- in any suit for restraining the defendant from committing a breach of contract or other act prejudicial to the plaintiff, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the institution of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or act complained of, or any breach of contract or act of a like kind arising out of the same contract relating to the same property or right.
- the court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as it thinks fit.
- In such a case the party seeking a temporary injunction must make a motion to the court and the facts necessitating the injunction may be proved by affidavit.Where the injunction is to restrain the breach of a contract of the commission of an act, the motion may also be made after final judgment has been rendered.
Ordinarily, as it is clearly indicated under Art 157 of the Civil Procedure Code, notice of the application should be given to the opposite party but if the object of the injunction would be defeated by the delay in giving notice, that is, there is the immediate danger that the party will do the act unless restrained, the injunction may be issued ex parte.
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.
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. In addition, the Code considers certain provisions regarding specific kinds of interlocutory orders, which we will see hereunder.
As it is clearly indicated under Art 160 of the Civil Procedure Code, where movable property which is involved in the suit or which has been attached before judgment is subject to speedy or natural decay or otherwise should be sold at once, the court may order the sale of the property, in such manner and on such terms as it thinks fit. The suit is then over the proceeds realized from the sale. Under this rule, the court may order the sale of securities where market conditions indicate that a drop in value is likely. Furthermore on the basis of Art 161(1) (b) of the Civil Procedure Code, the court may order for the detention, preservation or inspection of property, it may authorize any person to enter upon or into any land or building or samples to be taken observations made or experiments tried so that full information or evidence may be obtained.
From the very reading of Art 162 of the Civil Procedure Code, an application for an order of sale or for the detention, preservation or inspection of property may be made by the plaintiff after notice to the defendant at any time after the suit has been instituted. The defendant may make the same application, after notice to the plaintiff, at any time after he has made an appearance.
As to suspension of sale, Art 163 of the Civil Procedure Code stipulates that where the suit involves land or tenure in land and the party in possession fails to pay taxes due to the government or rent due to the lessor of the tenure, as a result of which the land or tenure is ordered to be sold, the other party, claiming to have an interest in the land or tenure, may upon payment of the revenue or rent due, and prior to the sale apply to the court to suspend the sale, and the court may grant the application on such terms as it thinks fit. The court may in its decree award against the party in possession the amount paid by the other party with interest at such rate as the court thinks fit, or may charge the amount paid in any adjustment of accounts directed in the decree.
Finally, where the subject matter of the suit is all about deposit in court, Art 164 of the Civil Procedure Code provides:
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.
So, if A sues B to recover Eth. $ 5,000, and B admits owing Eth. $4,000, A may apply to the court for an order that B deposit the Eth. $4000. Thus, the party to whom the money or property is admittedly due may have possession while the other questions involved in the suit are being litigated.
Appointment of a Receiver
In order to preserve the subject matter of the suit pending a determination of the rights of the parties, the court may appoint a receiver to deal with property during the pendency of the suit. On the basis of Art 166 of the Civil Procedure Code the court may appoint a receiver whenever it appears to be just and convenient both before and after the decree.
To achieve its objective, in considering whether a receiver should be appointed after an application to that effect is made, the court is directed to consider:
- The amount of the debt claimed by the applicant;
- The amount which may possibly be obtained by the receiver when dealing with the property and;
- The probable cost of his appointment.
In this area, the court has a good deal of discretion, but it must be exercised in light of the above criteria.
The removal by the defendant of a substantial amount of property under suspicious circumstances during the pendency of a suit involving ownership of that property would be a good ground for the appointment of a receiver.
Also where the mortgagee, entitled to enter in possession on default of payment, sues to recover on the mortgage, it would be possible to appoint a receiver to prevent any dealing with the property by the mortgagor during the pendency of the suit.
Where the decree awards maintenance and imposes a charge on specific property to secure payment of the allowance, the appointment of a receiver for that property may facilitate execution, since if the allowance is not paid, the receiver will sell the property and pay the allowance out of the proceeds.
However, the court should not appoint a receiver unless the party seeking the appointment has made a prima-facie case entitling him to the property in question.
Although most cases will involve the situation where the property as to which the appointment of a receiver is sought is the subject matter of the suit, the court is authorized to appoint a receiver of any property, and in appropriate circumstances it might appoint a receiver of property not involved in the suit.
Suppose that the defendant owned but one piece of property, which he was wasting, and if he continued to do so, the property would be worthless. Since the plaintiff would not be able to realize anything on his decree if such wastage continued, the court might conclude that it was proper to appoint a receiver for the property.
In such authorization, on the basis of Art 166 of the Civil Procedure Code, the receiver may be given broad powers. The court by its order may authorize him to exercise control over the property to the extent of bringing and defending suit, realizing, managing, protecting, preserving, and improving the property, collecting the rents and profits and disposing of them, and executing documents as owner. His powers will be specified in the order of appointment, and he should be deemed to possess those powers until discharged by the court, even after the decree has been issued.
In this arena, since the receiver is an officer of the court, property in his hands may not be attached without leave of the court that appointed him. So, too, he may not sue or be sued with respect to that property without leave of the court unless the order of appointment specifically provided for such suit.
Where a receiver was only authorized to collect and preserve the assets of a firm, it was held that he did not have the power to mortgage the firm’s property. As to remuneration, on the basis of Art 167 of the Civil Procedure Code:
The court may by general or special order fix the amount to be paid as remuneration for service of the receiver.
After a receiver has been appointed, on the basis of Art 168 of the Civil Procedure Code, he must furnish such security as the court may direct, account for what he receives from the property, submit his accounts as directed by the court, and pay the amount due as the court directs. Furthermore, the receiver is expected to take reasonable measures to preserve the property.
However, on the basis of Art 169 of the Civil Procedure Code, if he has caused damage to the property by willful default or gross negligence, the court may direct that his property be attached and apply the proceeds to make good any amount due from him or any loss or damage. In such a case, the fact that the receiver has dealt improperly with the property does not affect the rights of the other parties in that property.
- Habeas Corpus
Off course, we can see that different countries may have different meaning on the meaning and form of the phrase Habeas Corpus. But generally, we can say that they agree on the source of the word Habeas Corpus. It is literally a Latin word. In Latin, Habeas is to mean, "You have the body". Prisoners often seek release by filing a petition for a writ of Habeas Corpus. A writ of Habeas Corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.
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 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.
Question: Do you think that State High Courts, based on the Ci.Pr.C, could exercise a jurisdiction to try applications to Habeas Corpus or not.
Once we have made clear as to which court have the jurisdiction, the next important issue related with the procedure is how is this application being entertained by the court of law. The procedure is governed by Articles 177-179 of Ci.Pr.C of Ethiopia. According to article 177 of the code, an application for Habeas Corpus may be made by the person restrained otherwise than in pursuance of an order duly made under the Ci.Pr.C or the Criminal Procedure Code. If such person is unable to make the application, any person on his behalf can do so.
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.
- 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. The presentations are made to prove one side right, the other wrong. Thus, the parties assume that they are working against each other, not cooperatively. Arbitration is generally not as formal as court adjudication, however, and the rules can be altered to some extent to meet the parties’ needs.
Arbitration is most commonly used for the resolution of commercial disputes, particularly in the context of international commercial transactions. Arbitration can be either voluntary or mandatory and can be either binding or non-binding.
Arbitration have both advantages and disadvantages. There are several practical reasons for favoring arbitration over going to court. Generally speaking, it takes less time going through arbitration than going to court, although critics like to point to arbitration cases that have been drawn out and expensive. Of course, the key to keeping the process timely is effective oversight and management of the process.
Arbitration is also favored because it is private—there is no official court record to be made public. If you have a dispute with another party with whom you may need to do business again, this is a major advantage.
Generally, we can say that Arbitration has many advantages. For the parties, the informal setting of a conference room instead of the courtroom may help preserve the business relationship and increases the level of confidentiality. The streamlined procedures, such as limitations on pretrial proceedings and discovery, and the ability to schedule a reliable hearing date, generally save time and money. The overwhelming advantage of arbitration, however, is the ability to select a decision-maker with requisite levels of experience, knowledge and skill.
However, it is also true to say that Arbitration has some drawbacks. Arbitration is adversarial, thus it generally does nothing to create win-win solutions or improve relationships. Often it escalates a conflict, just as court-based adjudication is likely to do. In addition, arbitration takes decision-making power away from the parties. This results in a resolution of the current conflict, but does nothing to help the parties learn how to resolve their own conflicts more effectively in the future, as does mediation. Other people also fault arbitration for being too informal and potentially unjust. Only the courts, with their carefully regulated procedures can provide justice, some observers believe.
Having said some thing about the advantages and disadvantages of Arbitration, it is better to look for the Civil Procedure Code of Ethiopia on how it has been entertained. We have said that Arbitration can be made voluntarily or mandatorily to solve civil dispute. On the other hand, it is important to understand that there are issues that are not subject to arbitration. Article 315(2) of the Ci.Pr.C of Ethiopia clearly states that: administrative contracts as defined in Art. 3132 of the Civil Code or in any other case where it is prohibited by law are not subject to Arbitration.
Therefore, once we have identified the issue is subject to arbitration, the next step will be about the procedure. According to Art. 316 of the Ci.Pr.C, the court may appoint an arbitrator, if the law requires it. Once the arbitrator is assigned, the procedure to be followed by arbitration tribunals will be governed by art. 317 of the Ci.Pr.C.
Art. 317.- Procedure before arbitration tribunal
- The procedure before an arbitration tribunal, including family arbitrators shall, as near as may be, be the same as in a civil court
- 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.
- 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.
- 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.
It is obvious that court litigation requires cost. This cost includes all expenses which the court litigation requests. This could be related with payment of court fee, attorney fee, transportation fee, clerical expenses and other costs, which are directly related with the very existence of the litigation. Normally, it is the judgment creditor who claims for recovering the costs of litigation. However, it is not all the time that the judgment creditor succeeds to get what he claimed. According to Art. 462 of the Ci.Pr.C of Ethiopia, it is the discretionary power of the court to decide as to whom or out of property and to what extent such costs are to be paid.
However, if the judgment debtor is ordered to pay the costs, judgment creditor shall prepare an itemized bill of costs showing the expenses he has incurred in the suit. 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.
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 evidence and documentary can be brought before court.
At this juncture, it is important to note that, since the parties have the primary responsibility for presenting their cases, the court shall evidence in its own motion only in exceptional circumstances, that is, only where a witness/es or document/s who is/are likely to be able to prove the alleged fact has not been called or mentioned by either party.
Accordingly, on the basis of Art. 112 where the summons is issued at the request of a party, before the summons granted with in 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
Unless the court otherwise directs, in line with Art. 120 of the Civil Procedure Code, a 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.
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 by commission. Furthermore, 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 a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such court may, in its discretion, issue such process as it considers reasonable and proper.
As you know, documentary evidence is classified as real proof as opposed to oral testimony. Real evidence includes written documents and demonstrative evidence. Where a person is summoned for the sole purpose of producing a document, he may simply produce the document without personally appearing in court.
At the trial, each party introduces the oral and documentary evidences they think necessary to support their side of the issue. In this regard the party who initiates the case has the burden of proof to provide evidence necessary to establish a disputed fact or a degree of belief in the mind of the court. This reflects the general rule that the party who has the burden of proof has the right to begin. However, if the defendant raises a counter claim or any affirmative defence, the burden of proof for the existence of the claim (if not admitted) or such affirmative defence, will shift to the defendant. In all other cases, the plaintiff has the burden of proving that he has a cause of action, and the defendant has the burden of proof on the question of whether he has a valid defence.
According to Art. 261 of the Civil Procedure Code, there are three stages to the examination of witnesses. These are:
- The examination-in-chief;
- The cross-examination;
- The re-examination
So much so that, the three stages of examination of witnesses are expected to be employed at different times, in different ways, and for different purposes.
The rationale behind this investigation is that as a result of the process, everything the witness knows about the case will be brought to the attention of the court, and the court will be in a better position to determine whether or not the witness is telling the truth than if he merely testify in a narrative manner.
Thus, during the examination-in-chief, the proponent tries to develop the testimony of the witness in the light most favorable to him, during-cross-examination, the opponent tries to discredit that testimony, and during re-examination, the proponent tries to minimize the effect of cross-examination.
In this regard, the primary responsibility for the examination of witnesses rests on the parties, though as we will see, the court is also given broad power with respect to the examination of witnesses.
When we come back to the role of the court, under the adversarial system of litigation, which our system of litigation has adopted, the role of the court is minimal. 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.
The principle of party presentation which is one of the hallmarks of the adversarial system is modified in our code and the court has the 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. In addition to this, the court has the power to call evidence, which is not mentioned by either party.
Taking in to consideration the role of the court, at this juncture it is important to note that Art. 262 of the Civil Procedure Code is now applicable in a manner that is suitable to the Federal Arrangement adopted by 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.
With regard to the manner of production of evidence, a word should be said about the kind of evidence that the court may consider in arriving at its decision. In line with Art. 261, witnesses must give their evidence in open court, unless the court otherwise directs, for good cause to be recorded. If it is found necessary, evidence may only be heard in camera, that is, the judge will take evidence in chambers in the presence of the parties or their advocates.
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. Secondly, the judge may only base his decision on evidence that he believes to be competent and relevant.