Module Introduction

Dear student, welcome to the second module of the Civil Procedure I. Module two like
module one is dealing with general principles that are applicable to the different stages in
civil proceedings. This module specifically deals with how parties are allowed to be a
party in civil litigation as an indispensable parties, third party defendant, interpleader, and
as an intervening party. Besides, this module will address issues in regard to institution of
a suit and service of process.

Lastly, it would encompass the legal requirements of proper pleading and their effect; and
the issues of amendment of pleading.

1
4.3. Indispensable parties: Mandatory Joinder
In this sub-section, we will be dealing with what parties must join as plaintiffs or be
joined as defendants. The joinder of indispensable parties is a case of mandatory joinder.
This means if the indispensable party is not joined as a plaintiff or defendant, and if
judgment is rendered in his absence, the judgment will be binding upon him as if he was
a party to the suit.

Objectives:
Upon successful completion of this section you will be able to:
 Identify the difference between permissive and mandatory joinder;
 Discuss the law that allows to join indispensable parties;

Who are indispensable parties?

Dear student, in this section, we will be concerned with what parties must join as
plaintiffs or be joined as defendants.

Under our Civil Procedure Code except for art 36 (3) and (4), which require the joinder
of parties in certain cases, the procedural law does not expressly deal with the question.

To have a clear image joinder of indispensable parties, art 39(1) must be read in
conjunction with art.40(2) which authorized the court to add the name of any person who
ought to have been joined as plaintiff or defendant or whose presence is necessary for the
determination of all the questions involved in the suit . Such a person is an indispensable
party, and he must be added. In other words, the court, in light of art 39(1), does not
dismiss a suit for failure to join an indispensable party, but adds that person as a party
under art.40 (2).

Dear student, you have to note that, indispensable party is any party whose interests,
rights or duties will inevitably be affected by a decree rendered in an action in which he

2
is not a named party. In this regard, the clearest example is a party who has a joint
interest in the claim or obligation which is the subject of the suit.

In regard to indispensable parties, the more difficult question revolves around persons
whose rights will necessarily be affected by the decree in the case. That is, they may not
have a joint interest with the plaintiff or defendant, at it is defined above, but they may
have an interest that will necessarily be affected by the decree rendered in the suit.

Suppose that there are a number of beneficiaries of a trust, and one beneficiary brings suit
against the trustee for a determination of his rights in the trust property. In such a case,
the other beneficiaries are indispensable parties, this is true, because a decision as to the
rights of one beneficiary will necessarily affect the rights affect the rights of the others. In
this particular case, if the court finds that he is entitled to 50% of the income, this means
that the amount to which the other beneficiaries collectively are entitled cannot exceed
50%. Therefore, their rights will necessarily be affected by the decree rendered, and they
are indispensable parties.

When we come back to immovable party, according to art 36(4)

Where the plaintiff sues for the recovery of immovable property free
of occupants, such occupants, whatever their title, shall all be made
parties to the suit.

The very reading of this article manifest that the occupants in the property would
necessary be affected by the decree rendered in the suit, and are indispensable parties.

Dear student, in determining whether a party not joined is an indispensable party, it must
be pin pointed that the rights of the party would necessarily be affected by the decree
rendered in the suit. To this effect, the court must consider the factual circumstances of
the particular case and ask whether the issuance of the decree would necessarily affect the
rights of the party alleged to be indispensable. In this regard, the question is simply

3
whether he must be joined in order for the court to proceed with the case, and this is so
only if his rights would necessarily be affected by the decree in the particular suit.

Finally, according to art 36(3)

Where a suit concerns property administered by several trustees
executors or administrators, all such persons shall be made parties to
a suit against one or more of them, provided that trustees, executors
or administrators outside Ethiopia need not be made parties unless
otherwise ordered by the court on an application being made under
art.43.
From the close reading of this article we can infer that the above stipulation is applicable
only when one representative is sued and not when one representative is suing. Moreover,
such joinder is not ordinarily required as to representative residing outside Ethiopia. So
much so that, we can safely conclude that these rule is a reflection of conditionally
necessary parties.

4.3.1. Joinder of indispensable parties

Dear student, in the previous section, we have defined and indispensable party, now let us
consider the procedure that should be followed where an indispensable party has not
joined or been joined.

If an indispensable is not joined as plaintiff or defendant in the original suit,

who should move to join him?

In regard to joinder of indispensable parties, the defendant should raise this objection as
soon as possible, namely at the first hearing. If he does not raise it at that time, the next
question is then whether he can raise it subsequently or not, or whether or not the court
can raise it on its motion.

4
According to Art 39(2):
Any objection on the ground of misjoinder or non-joinder of parties
shall be raised at the earliest possible opportunity and any objection
not so raised shall be deemed to have been waived.

Furthermore, art 40(2) provides that the court may at any time, of its own motion or on
the application of either party, add the name of any person who ought to have been joined
as plaintiff or defendant or whose presence is necessary for the determination of all the
questions involved in the suit.

Initially, the reason for the rule of indispensable parties is to protect the indispensable
party who is not joined. To this effect the court on the basis of art.40 (2) has the mandate
to protect him. For the above very reason, the defendant cannot, in effect, waive the
rights of a third party.

Dear student, it is important to grasp that the absence of an indispensable party is just like
the absence of material fact. For this very reason, it is impossible for the court to proceed
with out joining the indispensable party.

So that, when the absence of an indispensable party is discovered, the court should
proceed in accordance with the provisions of art.40 (2). In our Civil Pro. C. art 39(1)
directs that the suit shall not be dismissed due to nonjoinder, and art. 40(2) gives the court
the power to implement that rule, even in the case of indispensable parties, by bringing
the indispensable party into the case. However, if the indispensable party is not subject to
the jurisdiction of the court, then the court must dismiss the case.

Can the court force a person to be a plaintiff because he is an indispensable

party?

Dear student, where the indispensable party is joined as a defendant, no problem arises.
The statement of claim would be amended accordingly, and a copy is served on the new

5
defendant. However, where the indispensable party plaintiff does not join, a problem may
arise, since art .40(2) provides that no person shall be added as plaintiff without consent.

What would be the solution then?

In the above scenario, that is, where a person who ought to have been joined as plaintiff
within the meaning of art 40(2) of the Civil Pro. C., refuses to join as plaintiff, he may be
joined as defendant. Such interpretation is very sound, because on the one hand rights of
the named plaintiffs should not be defeated because an indispensable party plaintiff
refuses to join, on the other hand, a party should not be made a plaintiff against his will,
since if the plaintiffs are unsuccessful, he might be liable for costs. So that, to strike the
balance, we simply join the indispensable plaintiff as a defendant, and in effect, he would
not be liable for the costs and would not even have any responsibility for the litigation. In
other words, he would be merely in the record; so that, a decree affecting his rights will
not be passed in his absence.

6
Summary

The joinder of indispensable parties is a case of mandatory joinder. This means if the
indispensable party is not joined as a plaintiff or defendant, and if judgment is rendered in
his absence, the judgment will be binding upon him as if he was a party to the suit.

Dear student, you have to note that, indispensable party is any party whose interests,
rights or duties will inevitably be affected by a decree rendered in an action in which he
is not a named party. In determining whether or not a party is an indispensable party, it
must be pin pointed that the rights of the party would necessarily be affected by the
decree rendered in the suit. To this effect, the court must consider the factual
circumstances of the particular case and ask whether the issuance of the decree would
necessarily affect the rights of the party alleged to be indispensable.
As to the time limit in regard to indispensable parties, the defendant should raise this
objection as soon as possible, namely at the first hearing. If he does not raise it at that
time, the next question is then whether he can raise it subsequently or not, or whether or
not the court can raise it on its motion.

Furthermore, as it is provided under art 40(2), the court may at any time, of its own
motion or on the application of either party, add the name of any person who ought to
have been joined as plaintiff or defendant or whose presence is necessary for the
determination of all the questions involved in the suit.

Finally, it is important to grasp that the absence of an indispensable party is just like the
absence of material fact. For this very reason, it is impossible for the court to proceed
with out joining the indispensable party.

7
4.4. Third party practice
General Principles

Dear student, third party practice deals with the method by which the defendant may
bring another party in to the suit on the ground that if he, the defendant, is found to be
liable to the plaintiff, the third party, called the third party defendant, will be liable to
him.

The issue in this area is whether or not the defendant has legal right to bring someone as a
third party defendant.
As clearly indicated under art 43.(3), as the court adjudicates the claim of the plaintiff
against the defendant, it could also adjudicates the claim of the defendant against the
third party defendant, and the claim between the defendant and third party shall be tried
in such manner as the court shall direct.

What is the purpose of third party practice?

Dear student, the purpose of allowing third party jonder is to settle all claims involving
the same transaction in a single suit. That is, by permitting the defendant to join the third
party defendant, separate suit can be avoided.

As a practical matter, if the court finds that the defendant is liable to the plaintiff and that
the third party is liable to the original defendant, the third party may pay the plaintiff
directly. However, note that a decree is not entered in favor of the plaintiff against the
third party, since the plaintiff has not made any claim against him. The decree is in favor
of the plaintiff against the original defendant, and the original defendant may be given a
decree against the third part defendant.

According to art 43 (1) of the Civil Pro. C.:

8
 Where a defendant claims to be entitled to contribution or indemnity
from any person not a party to the suit, he may in his statement of
defence show cause why the third party is liable to make contribution
or indemnity and the extent of such liability and apply to the court for
an order that such person be made a party to the suit.

Following this, if the defendant makes out a prima facie case, that is, if he satisfies the
court that he may be entitled to contribution or indemnity from the third party, the third
party is served with a copy of the statement of claim and the statement of defence and
order to appear on such day as the court shall fix. If not, the court would order that he be
dropped as a party.

Dear student, at this juncture notice that, whether the defendant is entitled to contribution
or indemnity is determined by the substantive law.

What do you think the difference between contribution and indemnity?

Contribution is where one debtor or wrongdoer has paid in excess of his share; he can
recover the excess amount from the co- debtors or other wrongdoers. Whereas, indemnity
refers to the situation in which a party who has had to pay a claim is entitled to recover
the amount paid, in whole or in part, from another person.

Therefore, in order for the defendant to join a third party defendant, he must show that he
is entitled to contribution or indemnity form that person under the substantive law.

Dear student, the most common example of indemnity is contract of insurance against
liability. According to art 687(1) of the Comm. Code, contract of insurance may provide
that the insurer shall control any civil case originating from a claim brought by the
injured party.

9
Another example of contractual indemnity is where one person has acted as agent for
another, and the principal has promised to indemnity the agent for another, and the
principal has promised to indemnify the agent for any liability incurred on behalf of the
principal. In our legal system, the agent is also entitled to indemnity from the principal
for any damage he sustained on his behalf as a matter of law.

On the other hand, a party is entitled to indemnity as a matter of law where the law
imposes on another person a duty to reimburse him for a liability he has incurred on
behalf of that person or due to his actions.

Dear student, to bring the above discussion under one umbrella, in case of third party
defendant, if the defendant is found to be entitled to contribution or indemnity against the
third party defendant, a decree will be entered in his favor. The decree imposes an
obligation against the third party defendant to the defendant, but no obligation against
him in favor of the plaintiff. That is, if the third party defendant refuses to pay the
plaintiff directly, the plaintiff will proceed against the defendant, and the defendant
cannot object on the ground that a decree was entered in his favor against the third party
defendant. In other words, this procedure involves only the defendant and the third party
defendant, so that the plaintiff’s right against the original defendant cannot be affected by
such joinder.

10
Summary
Dear student, third party practice deals with the method by which the defendant may
bring another party in to the suit on the ground that if he, the defendant, is found to be
liable to the plaintiff, the third party, called the third party defendant, will be liable to
him. The purpose of allowing third party jonder is to settle all claims involving the same
transaction in a single suit. That is, by and through permitting the defendant to join a third
party defendant, the system would able to avoid separate suit.

In such a case, if the defendant makes out a prima facie case, that is, if he satisfies the
court, he may be entitled to contribution or indemnity from the third party. And the
entitlement to contribution or indemnity will be determined by the substantive law.

However, note that a decree is not entered in favor of the plaintiff against the third party,
since the plaintiff has not made any claim against him. The decree is in favor of the
plaintiff against the original defendant, and the original defendant may be given a decree
against the third part defendant.

Dear student, to bring the above discussion under one umbrella, in case of third party
defendant, if the defendant is found to be entitled to contribution or indemnity against the
third party defendant, a decree will be entered in his favor. The decree imposes an
obligation against the third party defendant to the defendant, but no obligation against
him in favor of the plaintiff.

11
4.5. Interpleader
The procedure of interpleader is a procedure that allows a person who is not claiming any
right or entitlement on the subject matter the dispute to institute an action to free himself
from liability.

Objective:
Upon successful completion of this section, you will be able to:
 Discuss the procedure of interpleader;
 Appreciate the purpose of the procedure of interpleader;
 Apply the procedure of intepleader; and
 Differentiate interpleader from other forms of actions.

Dear students, in proceeding of interpleader the plaintiff is confronted with the problem
that he may be liable to more than one person on the same claim. To avoid such a
situation a procedure is devised by which he can force the claimants to litigate their
respective claims under art.293 of the Civil Pro. C.

What conditions must be satisfied to institute an action of interpleader?

In our Civ. Pro. C. the definition of interpleader is provided as follows:

A suit of interpleaded is suit wherein a person in possession of
property or owing money which is or may be claimed adversely by
two or more persons, to one or other of whom alone he can be liable
seeks to be relieved from liability to the claimants, or either of them
with regard to the disposition of such property or money.

12
Accordingly, in order for the plaintiff to institute an action of interpleader, the following
conditions must be satisfied:

1. The plaintiff must not claim any interest in the subject matter of the dispute
other than for charges or costs;
2. The claims must be such as to expose the plaintiff to multiple liabilities on a
single obligation,
3. There must be no collusion between the plaintiff and any of the defendants
(art.294)

Thus, the plaintiff must be a stake holder, that is, he must admit owing the obligation. He
cannot institute a suit in interpleader and at the same time deny that he is liable to any of
the claimants.
Example: If the insurance company denied that it was liable on the policy, it could not
institute an action of interpleader.

The point to remember is that in order to institute a suit of interpleader, the plaintiff must
admit his liability on the obligation. He cannot institute a suit of interpleader and at the
same time contest the right of any of the claimants to recover. However, when all his
claims are charges or costs, it would not amount to contest, so that he can institute
interpleader.

What are charges or costs?

In addition, the plaintiff has to be completely disinterested in the outcome of the suit; he
must have done anything to assist either claimant and must not stand to gain anything
from the suit.

The purpose of intrpleader is to enable the party to avoid multiple liabilities on the same
claim. Where he has an interest in seeing one party recover, he would have an interest in
dispute within the meaning of art 294 (a) and cannot maintain interpleader.

13
The test for interpleader was simply whether the plaintiff might be exposed to multiple
liabilities on what was in essence a single claim. It is immaterial that the claims of the
defendants arose form different sources.

4.5.1. Restricted Actions

It is expressly provided that interpleader suits cannot be bought by agents against their
principals or tenants against their landlords to force them to interplead with others except
persons claiming through the principals or landlords. In other words , where the claim of
the other party is adverse to that of the land lord , inerpleader is not authorized, but if his
claim is through the landlord ( his rights , if any , have been conferred by the landlord,
although, in effect, he is contesting the right of the landlord to receive the rent), the tenant
may maintain interpleader.

The same rule is applicable to claims involving an agent, his principal and a third party.
Suppose, A deposits a box of jewels with B, his agent. C demands that he and not A is the
rightful owner of the jewels. He is claiming adversely to the principal- his claim is not
based on any relationship between them, and the agent cannot maintain interpleader. If he
is sued by C, he can defend on the ground that A is the rightful owner and can contend
that A is an indispensable party. However , if a has made the jewels security for a debt
that he owes C, and C claims the jewels from B, contending that A has not paid the debt,
and A maintains that he has, B can institute a suit of interpleader. C is claiming on the
basis of an interest created by A, and the case comes with in the exception. It should be
noted that agent as used in this context, should be defined as it is in art 2199 of the Civil
Code.

4.5.2. Procedure in Interpleader

What do we mean by procedure in interpleader?

14
The plaintiff initiates an action of interpleader by filling a statement of claim. In addition
to the particulars required under Art.222, he / she shall state: [art 294]
1, that the plaintiff claims no interest in the subjected matter in dispute other than for
charges or costs,
2, the claims that have been made by the defendants severally; and
3, that there is no collusion between the plaintiff and any of the defendants.
Assuming that the court finds that the plaintiff has stated a cause of action in interpleader
[231], it will serve the copies of the statement of claim on the defendants in interpleader
and set a date for the first hearing. At that time the defendants may argue that the case is
not a proper one for interpleader.

Following the above procedural set up if the court finds that interpleader is proper it can
declare that the plaintiff is discharged from all liability, award him his costs, if any and
dismiss him from the suit, [ 297(1) (a).
Where the thing claimed is capable of being paid in to court or placed in the custody of
the court, the court may require the plaintiff to pay the money or place the properly in the
custody of the court. Thus, the plaintiff may disappear from the suit, and the claimants
will litigate their respective claims. However, the court, when it thinks necessary, has the
power to require the plaintiff to remain a party until final disposition [297(1) (a).

As to adjudication of the case, the court may adjudicate the question at the first hearing if
it can do so on the basis of the admissions of the parties or other evidence available to it
at that time [297(2). But, if it believes that a full-scale trial is necessary, it will set a date
for trial, frame the issue for trial and proceed to try the suit.

15
Summary

The procedure of interpleader is a procedure that allows a person who is not claiming any
right or entitlement on the subject matter the dispute to institute an action to free himself
from liability.
As to interpleader, in order for the plaintiff to institute an action of interpleader, the
following conditions must be satisfied:

1, The plaintiff must not claim any interest in the subject matter of the dispute other than
for charges or costs;
2, The claims must be such as to expose the plaintiff to multiple liabilities on a single
obligation,
3, There must be no collusion between the plaintiff and any of the defendants (art.294)

Dear student, the point that has to be remembered is that, in order to institute a suit of
interpleader, first and foremost the plaintiff has to admit his liability on the obligation.
This is important because, he cannot institute a suit of interpleader and at the same time
contest the right of any of the claimants to recover. However, when all his claims are
charges or costs, it would not amount to contest, so that he can institute interpleader.

Following the above conditions, if the court finds that interpleader is proper it can declare
that the plaintiff is discharged from all liability, award him his costs, if any and dismiss
him from the suit. And, where the thing claimed is capable of being paid in to court or
placed in the custody of the court, the court may require the plaintiff to pay the money or
place the properly in the custody of the court. Thus, the plaintiff may disappear from the

16
suit, and the claimants will litigate their respective claims. However, exceptionally, when
the court thinks necessary, it could require the plaintiff to remain a party until final
disposition.

4.6. Intervention of Third Party

Dear student, in this section, we will discuss the procedure of intervention. Intervention is
a procedure that is applied by a third party who is not a party to a lawsuit but whose
interest will be affected by the outcome of the case. The procedure of intervention is very
much related to joinder of indispensable parties, and mandatory joinder or addition of
necessary parties.

Objectives:
Upon successful completion of this section, you will be able to:
 Discuss the procedure of intervention
 Apply the procedure of intervention;
 Appreciate the differences between other procedural rules and the procedure of
intervention; and
 Develop skill in raising objections responses with respect to intervention.

What is intervention?
Intervention has been defined as a procedural device whereby a stranger can present a
claim or defence in a pending action or in proceeding thereto and become a party for
the purpose of the claim or defence presented.

According to art 41 of the Civil Procedure Code which governs intervention of third
party:
1, Any person interested in a suit between other parties may intervene
There in at any time before judgment.
2, The intervention shall be made by filing a separate statement containing

17
 all the grounds which justify such person in intervening.
3, Where the intervention is allowed, the proceedings shall be stayed until
the parties have been served with a copy of the statement of the
intervening party.
4, Where service is not effected for a reason attributable the intervening
party, he shall be deemed to have withdrawn his statement.
What are the basic legal elements that should be fulfilled for allowing
intervention of third party?

One of the crucial legal elements that should be fulfilled for allowing intervention of
third party is the existence of interest of the intervening person in a suit between other
parties. In this regard, one test that has been proposed to determine whether
intervention is proper is whether the intervener will gain or lose by the direct legal
operation of the judgment to be rendered in the suit between the other parties. If so,
then he would be said to be interested in the subject matter of the suit.

Remember! Once a case has begun, the court should not readily be disposed to permit
the widening of the dimension of the dispute.

What are the problems associated with the widening of the dimension of
the dispute?

Intervention might give rise to new issues and cause further delay in the proceedings.
According to Art .41 the intervening party has to have interest in the suit between
other parties. Furthermore, he is not allowed to add his own independent claim.

What do we mean by this?

Dear student, to understand the above issue let us see the following example.

18
Suppose the owner of an automobile sues the driver of another automobile to recover
personal injuries and damage to his automobile resulting from a particular accident. A
passenger in his automobile applies to intervene to prosecute her claim for personal
injuries arising out of the accident. In this case, intervention should not be permitted.
The passenger could have joined as a plaintiff under Art 35 (permissive joinder). This
is so because she has not interest in the owner’s claim against the defendant. That is,
since her claim against the defendant is separate, it will not be relevant to her as to
whether the original plaintiff is successful or not.

What is the procedure to intervene in a suit?

The party seeking to intervene must file to the court a separate statement containing
the grounds which justify his intervention. The court then decides whether
intervention should be allowed. If it is allowed, the proceedings between plaintiff and
defendant are stayed until they are served with a copy of the statement of the
intervening party. If the intervener fails to serve the statement due to his own fault, it
will be deemed that he has withdrawn his request to intervener in the suit. When
intervention is allowed, the intervener retains the status of an intervener and is not
given the status of plaintiff or defendant. As we have stated above, the intervener
could claim adversely to the named parties. That is, he is not supposed to assist one of
the parties to the suit. This position emanates from the fact that the intervener is not
joined in the suit as a plaintiff or as a defendant.

19
Summary
In a nutshell, intervention is a procedural mechanism that allows a third party to intervene
in a suit between other parties. The intervener has to show that the judgment that will be
rendered in a suit between the plaintiff and the defendant will affect her interest. The
intervener is supposed to put forward her rights with respect to the subject matter in
dispute. She must not raise independent claim against the plaintiff or the defendant.
Neither is she allowed to intervene to assist one of the litigating parties in the suit. The
purpose of the procedure of intervention is to protect the interest or right of those who
would be bound by judgments that was given in their absence.

The procedure of intervention is initiated by filing a statement to that effect by the

interested party, that is, the intervener. If the court finds that intervention should be
allowed, the parties to the suit will be served with the copy of the statement of the
intervener.

The intervener is the treated only as an intervener. That is he would be neither a plaintiff
nor a defendant.

20
 CHAPTER FIVE: INSTITUTION OF THE SUIT AND SERVICE OF
PROCESS
5.1. Institution of the suit and service of process

Dear student, summons [service of process] is the order of the court that is sent to the
defendant to appear in court with his response to plaintiff’s statement of claim. To this
effect, the plaintiff must bring his case to the attention of the court, and see to it that the
defendant is summoned before the court. In this regard, you may understand by common
sense that a party has to be notified the order of the court through different ways. Under
our legal system, the Civil Procedure Code has provided rules as to the hierarchy of
service and also provides that the defendant must get the best mode of service so that the
court will be sure that defendant is notified of the suit against him.

Objectives:
 after you have completed studying this chapter, you will be able to:
 identify what summons or service of process is all about;
 discuss the right of the defendant to be served with the best possible service;
 identify best mode of service in the circumstances;
 apply the method of serving a defendant; and
 discuss the effect of lack of proper service.

5.1.1. Institution of suit and hierarchy of service

21
This section will introduce you with the concept of service of process and hierarchy of
service. Once a plaintiff has instituted a suit, and the statement of claim is found to be
legally sufficient by the court, the defendant will be called upon to give his answer to the
plaintiff’s allegations. The defendant will be summoned by a written court order. And it
is how this written court order is served on the defendant that we will be concerned here
in this section.

Dear student, according to art 213 of the Civil Procedure Code, the plaintiff first and
foremost institutes a suit by filing a statement of claim in the registry of a court having
jurisdiction over the case. In such a case, if more than one defendant has been joined, the
plaintiff must file sufficient copies of the statement claim and other required documents
for the purpose of service on all the defendants. Following this, on the basis of art 229 of
the Civil Procedure Code, the registrar examines the statement of claim to insure that it is
in the proper form and that it complies with the rules relating or the filing of statement of
claim.

If the statement of claim is satisfactory in line the above legal provision, the registrar will
enters the suit in the register of civil suits and assigns a number to it. Then after, it would
submit the statement of claim, and the documents to the court.

Dear student, at this juncture, it is important to notice that, with the exception to suits by
paupers when the plaintiff files statement of claim, he must pay the prescribed court fee.

Having the above facts in mind, when we come back to the very role of the court, after
receiving the statement of claim from the registrar, on the basis of art 231 of Civil Proc
C., it would examine whether the facts show that the court has jurisdiction, and whether
the facts alleged state a cause of action.

If the statement of claim is sufficient on both counts, then the court on the basis of art
233 of Civil Pro. C.

22
 shall cause the statement of claim annexes to be served on the defendant
together with a summon requiring him to appear with his statement of
defense on an a day to be fixed in the summons and informing him that
the case will be proceeded with notwithstanding that he does not appear
or that he appears without his statement of defense.

In line to the above stipulation, it is important to grasp that the defendant is entitled to
appear and defend. However, if he does not appear after having received proper notice,
the court may proceed in his absence, and render a valid decree.

Dear student, in case of first hearing, and appeal summons shall be served in accordance
with the provisions of art. 233, and art 338 of the Civ. Pro. C. respectively. Furthermore,
as to the formal requirement, summon shall be in line to the form prescribed by No.5 of
the second schedule of the Civil Procedure Code. Provided that no such summons shall
be issued when the defendant has appeared at the presentation of the statement of claim
and admitted the plaintiff’s claim. From the very reading of this legal provision, we can
safely say that the rationale of summon is to enable the defendant to appear and answer
the claim by and through producing all the documents mentioned in the list annexed to
the statement of defense under art 223.

Who do you think the party responsible to serve the summons?

Dear student, the close reading of art.95 imply that, the defendant could be served
summon by any person authorized to do so by the court. This means that the court may
authorize any person, including the plaintiff, to serve the summons on the defendant. It
would be desirable if every court had its own serving officer. But the practice throughout
is that it is the plaintiff who serves the summons on the defendant.

Verity whether the plaintiff or the serving officer preferable. Why?

Pin point the possible reasons why courts do not have serving officers.

23
No court in Ethiopia, whether Federal or State has a serving officer. There may be
various reasons for this. The main reason, however, seems financial constraint.

From the very rational of summon one can say that it would be desirable if every court
has its own serving officer so that it would not frequently be necessary to relay on the
plaintiff, who may be tempted to serve the summons late or not at all. Certainly, it is high
likely that a court official will exert greater efforts to find the defendant so that he may be
served personally. So much so that, unless there is absence of a serving officer the court
shall not authorize the plaintiff to serve the summons.
The practice shows that courts order plaintiff to serve the summons on the
defendant. But what will happen incases where the plaintiff and the
defendant are not in good terms and plaintiff has difficulty in serving the
summons on the defendant?

5.1.2. Hierarchy of service

Dear student, an examination of the provisions of the Civil Pro. C. relating to service of
process makes it clear that these provisions incorporate a hierarchy of method of service
which is designed to insure that the defendant receives the best kind of service that it
possible under the circumstances. In other words, the code envisages different
mechanisms to accommodate different seniors.
What do you mean by hierarchy?

Even if it is true that we need different mechanisms in different scenarios, generally, in

terms of the likelihood of effectiveness, the methods of service authorized by the code
can be divided in to four categories:
1. Personal;
2. constructive;
3. post;
4. Substituted.
What is the difference and similarity between and among the above
methods of services of summon?

24
Dear student, having the above list of different method of service, now let us proceed to
see each and every nature these methods of service of summon.

To start with personal service, it is provided under art.102 of the Civil Pro. C. It is
personal in case where the serving officer delivers or tenders a copy of the summons to
the defendant personally, or to an agent or other person on his behalf, he shall require the
person to whom the copy is so delivered or tendered to sign an acknowledgment of
service on the original summons. When personal service is referred to, you have to have
in mind that, it will be conducted within the local limits of the jurisdiction of the court
which issued the summons. The serving officer cannot act beyond those limits.

Why do we require signature of acknowledgment of service on the original

summons? What would be the fate of the defendant if he refuses to sign an
acknowledgment of service on the original summon?
Is personal service serving the summons on the defendant only?

Dear student, since there is personal contact with the defendant in case of personal
service, it would enable the plaintiff or the serving officer to actually inform the
defendant that a suit has been instituted against him. In spite of this, the defendant may
contend that in fact, he does not notified of the proceedings. So much so that, to avert
such loopholes the law calls the defendant to sign an acknowledgment of service on the
original summon. At this juncture, you have to notice that the signature of
acknowledgement of service is serving as evidence to the fact that the personal service is
effectively done.

But in case where the defendant refuses to sign the acknowledgment, the serving officer
shall return the summons to the court from which it was issued, together with the
affidavit as to the facts which prevented him from serving the summons and the
provisions art. 105(2) shall apply.

25
Now, from the very nature of personal service we can safely say that the danger that the
defendant will not actually receive notice is present whenever any other method of
service is employed. So much so that, insofar as possible, the summons shall be served on
the defendant in person as it is clearly provided under art.95 (3) of the Civ. Pro. C.

Dear student let us now see the second best kind of service, that is, constructive service.
It is based on the likelihood that the defendant will receive the notice, since service is
made on a person who it is assumed will transmit the summons to the defendant. The
theory is that the person having such a relationship would transmit the summons to the
defendant.

Who could be such a person?

Can the summons be served to a minor? Explain your reasons.

When we come back to service by post, it represents an attempt to reach the defendant by
sending him the summons, either directly as provided in art, 106, or through court where
the defendant is within the jurisdiction of another court in Ethiopia, as provided in art
107.

Dear student, after the court exhausted the above methods of service of summons, the
court as a last option would employ substituted a service. It is the most ineffective
method of service. In many cases it is equivalent to no service at al. The typical example
of substituted service is service by publication in a newspaper. In such a case, the
defendant is advised by a notice in the newspaper that suit has been instituted against him
and that he must appear and defend on a certain day. Here there is great danger that the
defendant may not see the notice in the newspaper, and therefore, he may not have
received any notification of the suit. In Ethiopia, Substituted service is to be used only as
a last resort.

Dear student, it is important to notice that, while the four methods are authorized by the
code, it does not mean that they are alternative methods; rather they are employed in

26
descending order of effectiveness. This is demonstrated by the specific provisions of the
code.

As we have seen it above, art 95 (3) requires that the summons be served on the
defendant personally except where this is impossible. Furthermore, arts.99-101 clearly
provide that constructive service are not applicable unless personal service is impossible

As it is clearly manifested under Art. 99 of the Civ. Pro. C., summons on an agent by
whom the defendant carries on business can only be employed where he does not reside
within the local limits of the court’s jurisdiction, and thus, cannot personally be served
there.

Similarly, in regard to Arts 100 and 101, which govern service on an agent in charge of
immoveable property and on a member of the defendant’s family, such service can only
be employed where the defendant cannot personally be served and had no agent
empowered to accept service.

Dear student, in our Civil Proc. C., substituted service is authorized by Art. 105, but it is
provided that such service is authorized only when personal or constructive service is not
possible. That article also authorizes by post, and the clear implication is that, that
method is to be employed where feasible, in preference to substituted service.

Finally, Art 108, which deals with service on a defendant residing out of Ethiopia, sets
forth a hierarchy and directs that it be followed: if the defendant has an agent empowered
to accept service, service must be made on the agent; otherwise, the summon is to be sent
to the defendant by registered mail at his foreign address if this is known. So that, it is
only when his address is not known that service by publication authorized.

Dear student, following the above hierarchy creates conducive environment to the
defendant to receive the best kind of notice that it is possible to give under the
circumstances. This emanates from the basic concept of what is essential for a fair trial-

27
the defendant must be given an opportunity to appear and defend, and in order for him to
do so, he must be given the best notice that is possible, advising him that a suit has been
filed against his.

5.2. Methods of service

Dear student, as indicated above, personal service is delivery of summons to the
defendant and requiring him to sign an acknowledgment. Where the defendant who has
been served refuses to sign the acknowledgment, the serving officer shall report this fact
to the court.

Assuming that the court finds that the defendant has been effectively served, his failure to
sign the acknowledgement has no significance, and if he fails to appear on the day
appointed for the hearing, the court will proceed in his absence.

At this juncture, it is important to now that, in certain cases, service on a person other
than the defendant is assimilated to service on the defendant, and it is as if the defendant
himself were served personally. Such service is authorized where the defendant has an
agent empowered to accept service personally. Such service is authorized where the
defendant has an agent empowered to accept service, and service upon the agent is
considered personal service on the defendant. This refers to a person specifically
authorized to receive service and appointed for that purpose. By the same token, where
the defendant has appointed pleader, the summons may be served on the pleader or left at
his office, and this constitutes assimilated personal service upon the defendant.
Dear student, in spite of the above facts, service made upon any agent through whom the
defendant may carry on business does not constitute personal service on the defendant,
although it would amount to constructive service within the meaning of art.99.

In line to the above facts, according to art 98 where persons are sued as partners in the
name of their firm, the summons shall be served either:
a, upon any one or more of the partners; or
b, at the principal place at which the partnership business is carried on

28
 within Ethiopia upon any person having, at the time of service, the
control or management of the partnership business there,
as the court may direct, and such service shall be deemed good service
upon the firm so sued, whether all or any of the partners are within or
with out Ethiopia.

So that, where such a suit has been filed, service upon any of the partners at the principal
place of business is deemed good personal service on all of the partners, including those
residing outside of Ethiopia. Dear student, this emanates from the fact that the notice is,
in effect notice to the firm rather than against the partners individually. That is, according
to arty.255 of the Comm. C., since the creditor has sued the firm, he must proceed against
partnership asset to satisfy a judgment before he can proceed against the asset of the
individual partners.

However, if the plaintiff knows that the partnership has been dissolved, the summons
must be served upon every person in Ethiopia whom the plaintiff seeks to hold liable. In
this regard:

Where a summons is issued to a firm and is served in the manner

provided by this article, every person upon whom it is served shall be
informed by notice in writing given at the time of such service,
whether he is served as a partner or as a person having the control or
management of the partnership business, or in both characters, and, in
default of such notice, the person served shall be deemed to be served
as a partner.

Dear student, the summons in a suit against body corporate, on the other hand, may be
served:
A. on the secretary, or on any director or other principal officer of
the body corporate; or

29
 B. by leaving it or sending it by post addressed to the body or, if
there is no registered office, at the place where the body
corporate carries on its activities.
As to suit against body corporate, even if there is no express provision to this effect on
the basis of varying degrees of effectiveness, they should be employed in the following
order:

1, personal service on the secretary, a director or principal officer;

2, deposit at the registered office or place where the body corporate carries on its
activities;
3, posting to the registered office or place where the body corporate carries on its
activities.

Finally, in a suit against government, the summons shall be served on the government
pleader or, where on such pleader has been appointed, in such other manner as the court
shall direct.
What is a body corporate?
What is the difference and similarity between agent and pleader?

Dear student, when we come back to constructive service, as it is indicated above, it is

based on the likelihood that the defendant would actually receive the summons if it is
served on someone having a close relationship with him.

Dear student, under Civil Proc. C. there are three situations in which constructive service
may be made. These are:

1, In a suit relating to any business or work against a person who does not reside within
the local limits of the court issuing the summons, service may be made on the manager or
agent who at the time of service personally carries on the business for the defendant.
Dear student, in order for such service to be effective the following conditions must be
satisfied.

30
 A, the suit must relate to the business of work carries on by the agent.

Example: if a person residing in Dessie, caused injury to someone in Addis Ababa with
his automobile and had an agent carrying on business for him in Addis Ababa, service
could not be made on the agent under this article, since the suit does not relate to the
business carried on by the agent.

B, The defendant must be residing outside the local limits of the jurisdiction of the
court issuing the summons.

Example: Suppose that Ato A lives in Addis Ababa and has a store there, which is
managed by an agent. Ato A himself takes no part in the management of the business.
The plaintiff files a suit involving the business in the high court in Addis Ababa. Since
the defendant resides in Addis Ababa, service must be made on him personally, and
cannot be made on the agent, even though the suit involves the business and the
defendant takes no part in the management of the business.

C, Finally, service must be made on the manger or agent in charge of the business. It
cannot be made on any other employee such as a clerk or a watchman. Dear student, at
this point you have to notice that, for the purpose of this article, the master of a ship shall
be deemed to be the agent of the owner or charter.

2, The second situation where constructive service is authorized is where, in a case

involving the defendant’s immovable property, service cannot be made on the defendant
personally and he has no agent empowered to accept service in accordance with art.96. In
such a case service may be made on any agent of the defendant in charge of the property.

Dear student, here notice that there is no requirement that the defendant be a non-resident
or that the agent be the manager of the property.

31
Example: suppose a plaintiff sues to recover damages for an injury he suffered on the
defendants land. If the defendant is now vacationing in Kenya and has left a watchman in
charge of the property, service may be made on the watchman. Such mechanism is
designed because in this particular case the defendant cannot be served personally and
has no agent empowered to accept service.

Dear student, at this juncture, remember service, however, that we are referring to
constructive service, which can only be employed where the defendant cannot be served
personally. That is, the fact that the suit merely involves the defendant’s immovable
prosperity does not mean that service on the agent in charge of the property is proper.

3, Constructive service on a member of the defendant’s family in lieu of service on the

defendant. In this regard art. 101 of the Civ. Pro. C stipulates that:

Were in any suit the defendant cannot be found and has no agent
empowered to accept service; service may be made on any adult
member of the family of the defendant who is residing with him.

Dear student, similar to what we have discussed above, in case of constructive service on
a member of the defendant family there is no requirement that the defendant be a non-
resident but merely that he cannot be found.
What do we mean by an adult member of the family?
Is adult in this case similar to what is defined under the civil code? Why?
Why not?

Dear student, according to art.109 of the Civil Pro. C.:

Where the defendant is a public servant or is in the service of an
organization, institution or company, the court may, if it appears to it
that the summons may be most conveniently so served, send it for
service on the defendant to the head of the office in which he is
employed, together with a copy to be retained by the defendant.

32
At this juncture note that this article authorizes a type of service that appears to be a cross
between personal service and constructive service. This inference emanates from the fact
that in this very article there is no requirement that the defendant cannot be served
personally, so strictly speaking, this is not constructive service though it partakes of that
form.

What is the rationale behind this article? When do we apply this method of
summon?

Dear student, since street addresses are rare in Ethiopia, it may be very difficult and time
consuming to try to locate a person in order to serve him personally. So much so that,
where a person’s residence is not easily verifiable, it is advisable to serve him in such a
way.

In the above method of summons, it should be clear that, the court will only authorize
such kind of service if it is satisfied that the head of the office will see to it that the
defendant is served. If this is the case, since the returned summons is signed by the head
of the office and acknowledged by the defendant, the defendant cannot deny that he is
served, and such service has the same effect as personal service. Note, however, that the
summons must be sent to the head of the office, it cannot be given to any other employee.

In case of constructive service, similar to personal service, the person receiving the
summons must sign an acknowledgement of service on the original summons.

Dear student, according to art.103 of the Civil Pro. C., where personal or constructive
service is not possible, the serving officer shall return the summons to the court from
which it was issued together with an affidavit of the facts which prevented him from
serving it.
What is significance of tendering affidavit?
What is the next best solution then?

33
In case when it is not possible to achieve the very purpose of summons by and through
personal or constructive service, then, the court would apply the provisions of Art105,
which authorizes substituted service and service by post.

Dear student, art 105 does not expressly say that service by post, as authorized by
arts.106 and 107, shall be employed in preference to substituted service , but there is no
doubt that it should be.

What do you think the rational? Does this position allow the defendant to
receive the best notice possible?
In light of our weak postal communication services, can you say service by
post is the third best method of service?
If the serving officer serves the summons upon any member of the family,
would it be sufficient constructive service?

According to art.106 (1) of the Civ. Pro. C.

The court may, either in lieu of, or in addition to, the manner provided
for service of summons in the preceding articles direct the summon to
be served by registered post addressed to the defendant or his agent
empowered to accept service at the place where the defendant or his
agent ordinarily resides or carries on business or personally works for
gain.

Dear student, what do we mean by in lieu of the manner provided for service
of summons in the preceding articles?

In this regard since article 95(3) requires personal service whenever possible, we can
safely say it does not mean in lieu of personal service. For the same reason, we can
further say that it does not mean in lieu of constructive service.

If it is not so, what would be the legal effect of the above sub article then?

34
From the close reading of art106, we can say that service by post is to be employed in
lieu of or in addition to substituted service. However, incase of constructive service, to
achieve the very goal of summons, it is possible to accompany constructive service by
and through service by post.
Dear student, in the above method summon, and acknowledgment purporting to be signed
by the defendant or the agent or an endorsement by a postal employee that the defendant
or the agent refused to take delivery may be deemed by the court issuing the summons to
be prima facie proof of service.

Similar to a refusal to acknowledge personal or constructive service, the fact that the
defendant or his agent refused to accept the registered summon cannot nullify the legal
effect of such service. However, it is important to note that, it is always open to the
defendant to show that the summons was not actually served on him or his agent and that
the acknowledgment is false.

In regard to service where defendant resides with in jurisdiction of other court art 107 of
the Civil Pro. C. provides that:

A summons may be sent by the court by which it is issued either by

one of its officers or by post to any court having jurisdiction in the
place where defendant resided, carried on business or personally
worked for gain.

Dear student, from the very reading of the above stipulation, we can safely say that the
above article provides a convenient method by which a defendant who resides in
Ethiopia, but outside the jurisdiction of the jurisdiction of the court form which summons
is issued may be served.

As to application of the above method of service of summons, the court to which a

summons is sent under sub -art (1) shall upon receipt thereof , proceed as if it had been

35
issued by such court and shall then return the summons to the court of issue, together
with the record, if any, of its proceedings with regard thereto.

When we come back to substituted service, which is provided under art 105 of Civ. Pro.
C., as long as it gives the defendant the best notice possible under the circumstances, it
has satisfied the requirement of fairness to the defendant. It is not the court’s fault that
better is not possible. So much so that, when substituted service is given , the effect is the
same as if the defendant had been personally served; although, in fact, it is doubtful
whether the defendant will actually receive notice of the suit or not.

Dear student, in regard to substituted service, we have three different types of services.
These are:
1. Affixing a copy of the summons in a conspicuous place in the court house;
2. Affixing a copy of the summons upon a conspicuous place of the building where the
defendant is known to have last resided, carried on business or personally worked for
gain;
3. Publishing notice of the suit in newspapers.

Finally, as to service where the defendant resides out of Ethiopia, and has no agent in
Ethiopian empowered to accept service, the summons shall be addressed to the
defendant at the place where he is residing and sent to him by post or, if his residence is
not known, notice of summons shall be given by publication in such newspaper
circulates in Ethiopia as the court may direct.

This position is taken by the Civil Proc. C. because there may be practical difficulties in
obtaining publication of an Ethiopian legal notice in a foreign newspaper.

5.3. Lack of proper notice

In this sub section, we are going to discuss the effect of lack of proper notice. In other
words, we will see the effect where the defendant did not receive legally sufficient

36
notice, that is, where ineffective means were used when much more effective means
were readily available.
According to art 70(a) of the Civil Pro. C., where the plaintiff appears and the defendant
does not appear when the suit is called on for hearing:

If it is proved that the summons was duly served, the suit shall be
heard ex-parte.
Where a decree has been passed ex parte, on the basis of art 78, the defendant may
apply within one month from the day he became aware of the decree, for an order
setting it aside. One of the grounds for setting aside the decree is that the summons was
not duly served.

Dear student in spite of the above facts, we have to notice that, where the defendant has
actually received notice, he cannot contend that the service was defective, simply
because a better type of service could have been employed. This position emanates from
the fact that the purpose of service of process is to inform the defendant that a suit has
been instituted against him, and once he has been informed of this fact, that purpose is
satisfied and it is irrelevant that he was not served in the proper way.

In the above scenario, if it is proved that the summons was served on the
defendant but not in sufficient time to enable him to appear on the day fixed
therein, the court taking in to consideration the circumstance, may adjourn
the hearing.

37
 Summary
Dear student, summons [service of process] is the order of the court that is sent to the
defendant to appear in court with his response to plaintiff’s statement of claim. To this
effect, the plaintiff must bring his case to the attention of the court, and see to it that the
defendant is summoned before the court.
Under our legal system, the Civil Procedure Code has provided rules as to the hierarchy
of service and also provides that the defendant must get the best mode of service so that
the court will be sure that defendant is notified of the suit against him.

Ones the court found the statement of claim legally sufficient, it will cause the statement
of claim to be served on the defendant. To that effect, it may authorize any person,
including the plaintiff, to serve the summons on the defendant. It would be desirable if
every court had its own serving officer. But the practice throughout is that it is the
plaintiff who serves the summons on the defendant.
It is clear that these provisions incorporate a hierarchy of method of service which is
designed to insure that the defendant receives the best kind of service that it possible
under the circumstances. Even if it is true that we need different mechanisms in different
scenarios, generally, in terms of the likelihood of effectiveness, the methods of service
authorized by the code can be divided in to four categories. These are:

1, Personal service;
2, Constructive service;
3, Post service, and
4, Substituted service.

Where the defendant has actually received notice, he cannot contend that the service
was defective, simply because a better type of service could have been employed. This
position emanates from the fact that the purpose of service of process is to inform the
defendant that a suit has been instituted against him, and once he has been informed of

38
 this fact, that purpose is satisfied and it is irrelevant that he was not served in the proper
way.
In the above scenario, if it is proved that the summons was served on the
defendant but not in sufficient time to enable him to appear on the day fixed
therein, the court taking in to consideration the circumstance, may adjourn
the hearing.

However, if the defendant is not properly served and if it was not possible for the
defendant to get the summons, it is said that there is lack of proper service. Where the
court finds that defendant was not properly served or was not duly served, it will order a
new summons to be served on the defendant. In such a case, if it has already proceeded
ex-parte, it will set aside the ex-parte decree at the time the defendant files an application
for the setting aside of the decree.

39
 CHAPTER FIVE: PLEADING
Introduction
Dear student, under this Unit we are going to discuss about the definition of pleading and
its related issues. Pleading can be defined as branch of legal science which deals with the
principles governing the formal statements made to the suit.
The basic components of pleadings are the statement of claim and the statement of
defence. However, we should not forget that there are some others which qualify the term
pleading. According to article 80(1) of civil procedure code of Ethiopia, pleading is
defined as: a statement of claim, statement of defence, counter-claim, memorandum of
appeal, application or petition and any other document originating proceedings or filed
in reply thereto.

Accordingly, the technical and substantive or in other words the form and content
requirement of pleadings will also be discussed in detail. As we said earlier, the technical
rules of pleading are a little bit difficult for a person who has not experienced writing
applications to courts; however, this should not worry you. I will present it in a more
simplified manner as possible. You should do the exercises and activities provided. If you
know the rules of pleading, then it is an important step in your becoming capable of
handling court cases.
Objectives:
Upon successful completion of this Unit, you will be able to:
 define the term pleading and list down the various forms of pleadings;
 identify the specific rules applicable to pleading in general and the statement of
claim and defence in particular;
 identify and discuss the advantages of having such rules of pleading;
 write different types of pleading;
 identify when to raise objections and respond to objections;
 explain the effects of failure of pleading and the possible remedy indicated in the
civil procedure code of Ethiopia; and

40
  describe the possible conditions when to apply for amendment of pleading and
under what circumstances that such amendment is allowed or ordered.
6.1. Technical Requirements
Overview
Dear student! This part of the course is mainly dealt with the meaning of pleading and its
related issues. Hence we will discuss what pleading is in general and the statement of
claim and statement of defence in particular. However, the main concern will be given to
the most important pleadings, i.e. the statement of claim and statement of defence. These
are the pleadings by which the case is originated and the issues developed in the court of
first instance.

The statement of claim is the first application of the plaintiff and the statement of defence
is the reply of the defendant to plaintiff’s claim. In writing pleading we have to make sure
that we really applied the rules of pleading correctly. Failing to do that has its own
negative effect up on the party who fail to properly plead. This will be discussed latter.
But first we will be discussed what the term pleading is and main purpose. And then
proceed to state the relevant requirements of pleading that are set in the civil procedure
code of Ethiopia, with special emphasis to the statement of claim and statement of
defence.

We can classify these requirements in two; namely, technical and substantial

requirements of pleadings.

6.1.1. Pleadings Generally

The very rational behind any party to bring a suit in court of law, is just to get certain
redress against someone or something through court decision. And this is expressed by
writing some application to the court which has jurisdiction to see and determine such
issue. An issue is something that is alleged by one party and denied by the other which
needs the resolution of the court. The whole purpose of pleadings is therefore, to bring
the parties to an issue, if any, or if not to settle the issue with out the need to further
proceedings.

41
Therefore, to achieve the intended purpose, there should be clear and predetermined rules
to follow in writing pleadings. The meanings of the rules relating to pleadings is intended
to prevent the issue being enlarged, which would prevent either party from knowing
when the case came on for trial, what the real point to be discussed and decided was. In
fact, the primary purpose of the pleading and pre-trial stage is to determine the issues that
must be resolved at trial in a way to narrow the parties to definite issues, and thereby to
diminish expense and delay, especially as regards the amount of testimony required on
either side at the hearing. Thus, the plaintiff should state in his statement of claim all the
facts which constitute his cause of action. The defendant should also state in his
statement of defense the important facts on which he relies for his defense. When the
result of the pleading on both sides is that a material fact is affirmed on the one side and
denied on the other, the question thus, raised between the parties is called an issue of fact.
But this doesn’t mean that there will not be issues of law. When one party answers his
opponent's pleading by stating an objection in point of law, the legal question thus raised
between the' parties will be an issue of law.

A plaintiff’s pleading is his statement of claim. A defendant's pleading is his statement of

defense. In some case, a plaintiff who has filed his statement of claim may, with the leave
of the court, file a written statement, or the court may require him to file a written
statement. In such cases, the written statement forms part of the plaintiff’s pleadings.
Again, there are cases in which a defendant who has filed his written statement may, with
the leave of the court, file an additional written statement or the court may require him to
do so. In such cases, the additions written statement forms part of the defendant's
pleadings. The plaintiff’s written statement and the defendant's additional written
statement are called subsequent pleadings.

Dear student, here above we have seen what is the meaning of pleading and its main
purpose. However, for some one to write pleading, there are rules to be followed. Hence,
the claimant as well as the defendant should be aware of the technical and substantial

42
requirements set by law, so that courts will entertain the issue(s) with out any difficulty.
The rules of pleading are stated in Art. 80(2) of the civil procedure code of Ethiopia.
For this purpose let’s see what is stated under Art. 80(2) of the Civil Procedure Code:
“Every pleading shall be in writing in ink, printed typewritten
on the prescribed paper and shall contain and contain only a
statement in a concise form of the material facts on which
the party relies for his claim or defence and shall be in a form
as near as may be to the appropriate form.”
From the above sub article we can infer the following important rules.
 Every pleading shall be in writing form.
 Every pleading must state facts and not law.
 The facts must be material facts and material facts only.
 The facts should only focus on which the party pleading relies for his claim or
defense, and not the evidence by which they are to be proved.
 It must state such facts in a concise form.

The very rational behind of stating such rule of pleading is that, each party to the
litigation will be able to clearly state their facts to claim or defence against the other, and
the court will be able to smoothly frame issues of litigation.
Hence, it would be important for you to have a clear understanding of each of those rules
stated here above.

 Every pleading should be made in writing

If a party is to plead, he should be aware of the fact that his pleading to the court must be
submitted in writing form. Such writing document of pleading could be made in writing
in ink or printed type written on the prescribed paper. This indicates that a party can not
plead ton the court orally. Off course, a party can participate inn the first hearing (that we
are going to discuss latter) by oral litigation. But this does not mean that he is pleading.

 Every pleading must state facts and not law.

In pleading parties not expected to set forth a law. This is because, the law is already

43
enacted by Government and the power of interpretation of laws is already given to our
courts. Therefore, parties could not and should not plead conclusions of law.
Hence each party to the litigation is only required to state facts on which they rely for
their claim or defence and the relief sought. The court then will analyze those facts and
evidences of the parties with the relevant provisions of applicable laws and render its own
judgment.

Example:
b. If a party is intended to institute a cause of action against someone to recover
money that he loaned to him, he is not required to state, in the statement of
claim, that under the law of contract, the defendant is obliged to pay the debt.
Here the plaintiff is trying to state under what law of the country the defendant is going to
be liable. That is, he stating the law, which is against the rule of pleading. Rather it is
enough for him to state, in his statement of claim that he made a contractual agreement of
loan with the defendant but the defendant fail to pay his debt in accordance to the
agreement; and then put the expected relief at the end of the decision of the court.

The statement of claim, therefore, should state facts upon which the supposed duty is
founded, and the duty to the plaintiff with the breach of which the defendant is charged.
Besides, the plaintiff must show or state the facts upon which he proposes to rely as
showing that the act was done wrongfully or unlawfully.

 Every pleading must state material facts and material facts only.
In a certain event, we can list a number of facts performed. But when one is intended to
initiate a cause of action, listing of all those are required by law to set on your statement
of claim. The same will be true with the statement of defence. Party defendant is required
to plead its defence based only on those material facts. Material facts are facts which are
important facts for a party's claim or defense. Facts which do not have material
importance should not be incorporated in pleading. But should not forget that all omitting
to one or more of material facts will have an effect of failure in framing of issue as forced
to ask permission of the court to amend its pleading so that to save from its

44
consequences. Because the court may allow amendment of pleading has its own
consequences i.e. payment of cost to the other party. Therefore, for a party to plead, he
should be aware of only material facts should be stated and all material facts should be
incorporated in pleading.
 Every pleading must state facts on which they rely.
A pleading must never contain evidence; it is to contain and contain only a statement in a
concise form of the material facts on which the party relies for his claim or defence.
Thus, every pleading must contain a statement of the material facts on which the party
pleading relies but not the evidence by which those facts are to be proved. Evidence may
also consist of facts, but there is a distinction between facts which are material for the
claim or defense. The facts which ought to be stated are the material facts on which the
party pleading relies.

Example:
Ato A may, in his statement of claim against Ato B to pay certain amount of money for
non performance of contractual agreement of sale of goods, state that “Ato C examined
the goods are defective”. This would be clearly evidence. Since this supported the
plaintiff’s allegation that the goods are defective.

 Every pleading must state material facts in a concise form.

As we have stated above, the party pleading should state only the material facts, i.e., the
important facts only. Those facts which dose not has material importance should be
excluded from pleading. By doing this, we can assure the concise form of pleading.
Besides, such pleading must be precise. That means he must include all and only
important and necessary facts that are necessary for the claim or defense in the pleading.
So, pleading must be concise and precise.

6.1.2. Alternative Pleadings

We will now consider the kinds of allegations that may be contained in pleadings, in
other words, whether a pleading may contain alternative or hypothetical allegations. An
alternative pleading (allegation) is an allegation to the effect that either one thing or

45
another thing happened. For example, the plaintiff would allege that the defendant
published a libel against the plaintiff or that he caused someone else to publish a libel
against the plaintiff. If either allegation is found to be true, the plaintiff is entitled to
recover, and he wishes to plead both sets of facts. Hypothetical pleading involves
allegation that one set of facts exists, but if it is found not to exist, another set of facts
exists, which would be the basis of a valid claim or defence. For example, the defendant
would allege that the parties never entered into a valid contract, but if there was a
contract, than the contract was subsequently cancelled. If either fact were found to be
true, the defendant would be absolved from liability.

Art. 237 of civil procedure code of Ethiopia states that:

“where the defendant relies upon several distinct
grounds of defence or set-off found upon separate
and distinct facts, they shall be stated, as far may
be, separately and distinctly”.

This provision indicates that a party defendant can defend a case, instituted against him,
by way of raising distinct grounds of defences, i.e. actually what we call alternative
pleading. On the other side also, although it does not expressly refers to the right of the
plaintiff to plead alternatively or hypothetically, there is no provision which prohibiting
such pleading, and no doubt, it would be permitted.

A party usually relies on testimony of witnesses to prove his case. Such party cannot
know what testimony the court will believe. It may believe some part of the evidence and
reject another part. Therefore, a party should be able to present all his grounds of liability
or defence to the court and have the court decide which grounds it will accept. This is one
of the reasons that alternative pleading is permitted.

6.1.3. The Statement of Claim and the Statement of Defense

Dear student, earlier, we have seen the general rules applied upon every pleading and
how alternative pleadings could be applied in a single pleading of a party. The statement

46
of claim and the statement of defense are also the two most important types of pleadings.
Hence, those general rules of pleading will be applicable to the statement of claim and
the statement of defense too. But since those are the basic forms of pleading it would be
important to discuss on the requirements to be followed in preparing the statement of
claim and the statement of defence in detail. This implies that the statement of claim and
the statement of defence have their own specific rules other than or in addition to the
general rules of pleading. The discussion on the statement of claim and the statement of
defence is very much important because both have prominent role in smooth flow
adjudicating civil litigations. So having a good knowledge and skill of writing statement
of claim and statement of defence will be a lot in civil litigation.

A. The Statement of Claim

In this sub-section, we will discuss on the specific rules applicable to the statement of
claim and the statement of defence one by one. The requirements for the statement of
claim are set forth in Arts. 222 - 228 of the Civil Procedure Code. Following let’s try to
see the contents of Art. 222 of the Civil Procedure Code
Art. 222 - Contents of Statement of Claim

(1) Every statement of claim shall contain:

1. the name and place of the court where the action is brought.
2. the title of the action
3. the name, description, place of residence and address for service of
the plaintiff and defendant:
4. where the plaintiff or defendant is a person under disability. a
statement to that effect;
5. where the plaintiff is suing in a representative capacities. a statement
showing the capacity in which he is suing;
6. the facts constituting the cause of action, and when and where it
arose:
7. the facts showing that the court has jurisdiction:
8. the facts showing that the defendant is or claims to he interested in the
subject-matter and is liable to be called upon to answer the claim:

47
 9. where appropriate, a statement of the value of the subject matter of
the claim;
10. in suits by or against the Government, instead of inserting the name
and description and place of residence of the plaintiff or defendant, it
shall be residence of the plaintiff or defendant. It shall be sufficient to
insert the appropriate name of the administrative authority concerned.

The contents of the statement of claim stated here above may be divided into five basic
portions: (1) the caption; (2) parties; (3) the facts constituting the cause of action; (4)
jurisdiction; (5) relief.

In the caption portion, the plaintiff must state the name and place of the court in which
the action is brought and the title of the action. In stating parties, he must include the
name, description, place of residence and address for service of all parties. When either
party is a person under disability, there must be a statement to that effect.

Moreover, where the plaintiff is suing in a representative capacity, i.e., if he is suing on

behalf of the estate that he is administering, the pleading must contain a statement
showing the capacity in which he is suing. Finally, he must allege the facts showing that
the defendant is interested in the subject-matter of the suit and is liable to be called upon
to answer the claim.

The third portion of the statement of claim is the most important one. Because it contains,
the facts constituting cause of action. The fourth portion involves jurisdiction. The
plaintiff must allege facts showing that the court has judicial, material and local
jurisdiction.

For example: in a First Instance Court of Lideta District at Addis Ababa, the plaintiff
could allege that the defendant is an Ethiopian National or has Domiciliary in Addis
Ababa (Judicial Jurisdiction); the case involves a TV set worth Eth. 3000 (Material
Jurisdiction) and the defendant is residing in Lideta District (Local Jurisdiction0.

48
The fifth portion of the statement of claim involves the relief sought. The statement of
claim shall state specifically the relief which the plaintiff claims. Thus, he must allege
whether he wants damages and if so, how much, or if not, what other kinds of relief he
wants. He may also ask for alternative relief. For example, the plaintiff might sue for
specific performance of a contract, but if specific performance will not be ordered, then
in the alternative, he seeks damages.

The other important requirement when preparing a statement of claim is the subject
matter of the suit. Art. 225 of the Civil Procedure Code clearly provide that the subject
matter of the suit must be clearly identified in the statement of claim.

Therefore, where the claim relates to a specific thing, e.g., an automobile, it must be
described with particulars. It would not be sufficient to allege that the plaintiff seeks to
recover an automobile from the defendant.

If plaintiff is claiming to recover an automobile from the defendant, he should describe

the automobile by make, year and color. When the claim relates to immovable property,
it should be described by boundaries, location, and numbers. In a public record as stated
under Arts. 226 - 228 of the Civil Procedure Code.

The plaintiff is required to indicate the amount of money that he would like to recover, or
the value i.e., the estimated value of the specific thing or even when the claim is not
known before settlement of accounts, he has to provide the approximate amount in the
statement of claim.

Earlier, we have seen that material jurisdiction of court could be determined by the
amount of controversy or dispute. Art. 226-228 also govern the pleading of the amount of
claim. This is very much important, because the amount in controversy for the purpose of
material jurisdiction. So the plaintiff has to take his case that has material jurisdiction and
the court has to ascertain that it has material jurisdiction. This will be clarified from the

49
statement of claim. Therefore, plaintiff is mandatory required to show the precise amount
or the approximate amount of money or the estimated value of the specific thing that he
claims so that the court that has material jurisdiction will be identified.

However, if the plaintiff seeks to enforce a right, the value of which can not otherwise be
determined, for purposes of pecuniary jurisdiction, he must indicate the estimated
pecuniary benefit which would accrue to him if judgment were rendered in his favor.
Example, if the plaintiff sues to enforce servitude to use the defendant’s land to pasture
his cows, he must estimate how much pecuniary benefit he would receive if the servitude
were recognized. Once plaintiff has prepared his statement of claim, in accordance to Art.
222 of the Civil Procedure Code, he has to state a list that describe the types and names
of evidence he has to prove his case in a separate sheet which will be annexed to the
statement of claim.
These are:
 a list of witnesses to be called by him at trail together with their addresses
and the purpose for which they are to be called;
 a list of documents on which he relies, specifying in whose possession
they are;
 the original and a copy of any document in his possession on which he
sues;
 if he has no documents to or witnesses to produce, state file a declaration
to that effect.

B. The Statement of Defence

Dear student, so far we have been discussing on the detail contents and requirements of
preparing statements of claim. Following also we will see the second basic part of
pleading i.e. the statement of defence. The statement of defence is the response of the
defendant to the allegations of plaintiff. Articles 234-238 of the Civil Procedure Code of
discuss on this issue.
In the statement of defence, the defendant may do three things. These are:
1. He must deal with the factual allegations of the statement of claim;

50
 2. He may raise affirmative grounds of defence;
3. He may also file a counter - claim or set-off.
a) He must deal with the factual allegations of the statement of
claim;
The defendant must respond to each allegation of fact contained in the statement of
claim, admitting or denying it. (234(I)(e). Where the defendant denies an allegation of
fact, he must deny it directly and not evasively. Evasive denial is prohibited under Art.
235 of the Civil Procedure Code.

For example, in a suit for breach of contract, it is not proper for the defendant to allege
that "the defendant denies that the tem1S of the agreement between himself and the
plaintiff were definitely agreed upon as alleged". Because, this is an evasive denial. The
defendant must answer whether or not they agreed on the teffi1S alleged by the plaintiff;
if they agreed on some and not others, he must allege the ones on which they agreed.

b) The defendant may raise affirmative grounds of defence.

The defendant must raise his ground of defence in a way that convinces the court to
decide in favor of him. This type of defence includes facts showing that the claim is
inadmissible on grounds of want of capacity or jurisdiction or limitation. It would also
include the material facts which he relies for his defence and any ground of defence
which if not raised, would be likely to take the plaintiff by surprise or raise of fact not
arising out of the statement of claim.

c) The third situation that the defendant may do when answering

the statement of claim is that he may raise a counter - claim or
set-off.
The defendant may raise a claim of counter claim or set-off. Here it should be clear for
you that what is meant by counter claim and set off. A counterclaim ordinarily refers to
any claim that the defendant may have against the plaintiff. It need not be related to the
original claim the plaintiff filed against the defendant and it need not be for an
ascertained sum.

51
Example:
If the plaintiff sued the defendant on a claim for breach of contract, under Art. 234(1)(f),
the defendant could in his statement of defence raise a counterclaim for breach of another
contract or even for a claim based on extra-contractual liability.
As a principle, there is no limit on the kind of counter claim that can be asserted. But, the
court has power to order separate trials and reject such defence incase it believed that the
principal claim and the counterclaim can not be tried together.

On the other hand set off is discussed on Art. 236 of civil procedure. Let’s see its content.

Art. 236 - Particular of set-off

1. Where ill a suit for the recovery of money the defendant claims to
setoff against the plaintiff's demand any ascertained sum of money
legally recoverable by him from the plaintiff. not exceeding the
pecuniary limits of the jurisdiction of the court, and both parties
fill the same character as they fill in the plaintiff's suit, the
defendant shall in his statement of defence give the particulars as
to the debt sought to be set-off.
2. The statement of defence shall have the same effect as a statement
of claim in across - suit so as to enable the court to give a final
judgment with respect both 10 the original claim and to the set-off.

As this provision indicates, a suit for set off is allowed against the Plaintiffs demand to
claim any ascertained sum of money legally recoverable by defendant from plaintiff.
Secondly, the sum claimed in the set off must not exceed the pecuniary limits of the
court's jurisdiction.
This means that the defendant must be setting off a specific sum of money, e.g., a debt
Br. 1,000. He could not sue on a claim which has not been liquidated, e.g., in claim for
damages arising from a personal injury inflicted by the plaintiff. Moreover, the claim
sough to be set-off must not exceed the pecuniary limits of the court's jurisdiction.
Therefore, if a defendant has something to claim from the plaintiff, he can raise it either

52
by way of counter claim or set off, depending on the nature of the claim.
6.1.4. Examination of the Statement of Defence
Dear student, so far, we have been already covered the discussion on the requirements
that has to be fulfilled in having acceptable pleadings, which actually includes the
statement of claim and statement of defence. However, parties may sometimes fail to
properly apply those stated rules of pleading. In such a case, there should be a mechanism
to check whether the pleading prepared and applied to a court, satisfies the technical and
substantial requirements of pleading or not.

Normally when a person prepares its statement of claim, it should submit to the registrar
of the court which it thinks has jurisdiction to see and determine such case. The registrar,
then, will exercise its power to check whether the statement of claim satisfied the
requirements of technical sufficiency or not. If it found that it is proper pleading in light
with technical requirements, it passes the statement of claim to the court and the court,
after it analyzes its substantial requirements, it orders defendant to answer. The defendant
then will submit his statement of defence, i.e. his answer directly to the court. Therefore,
the statement of defence of the defendant will not be examined by the registrar. It is the
court that will examine the statement of defence for both its technical and substantive
sufficiency.

6.2. Effect of Failure to Plead

Dear student, in the above discussion, we have already seen that how a litigant party can
properly plead to claim or defence. Such discussion includes the rules to be followed in
pleading. However, a party, for different reasons, may fail to properly plead. In such a
case, the civil procedure has put its own effect. Following we will see the two basic
effects of failure to plead i.e. variance and failure to Deny.

In this part of the Section on pleading, we will discuss the effect of failure to plead and
the effect of failure to deny. The rule, generally, is that plaintiff and defendant have to
raise what ever claims and allegations and defences they have in their pleadings. If they
fail to plead or to deny specifically, then such allegation or defence will not be considered

53
again.
6.2.1. Variance
Dear student, as we have said earlier, the primary purposes of the pleading is to develop
the issue for trial. At the first hearing, the court frames the issues for trial. And the issues
are generally framed on the basis of the allegations contained in the pleadings. At the trial
parties introduce evidence to support the allegations of fact contained in the pleadings
and put in issue by the court at the first hearing. The theory is that each party will prepare
his case based on the issues that have been framed for trial. He will have evidence to
support his side of those issues and' will not be prepared to introduce evidence on other
issues. It follows then that if an allegation of fact is not contained in the pleadings and,
therefore, not put in issue by the court at the first hearing, evidence to support that
allegation cannot be introduced at trial. Where evidence is introduced to prove a fact that
was not put in issue, there is a variance. The other party will have a proper ground of
objection to the introduction of the evidence where there is variance. This is because it is
not fair to require the other party to produce evidence on an issue that he was not notified
would be involved at the trial.
Example
In a statement of claim the plaintiff alleges that the defendant breached a contract with the
plaintiff, for which the plaintiff seeks damages. At the trial it appears that there was no
contract. The plaintiff then seeks to introduce evidence to the effect that he conferred a
benefit on the defendant and that, therefore, he is entitled to relief on the theory of
unlawful enrichment.

However, since the statement of claim only alleged facts raising an issue as to whether
there was a contract breached by the defendant and no allegation was forwarded as to that
whether there was another relationship by which the defendant was unjustly enriched, he
can not do so.

However, the court should find a variance only when it is clear that the pleading could
not be construed raising the issue as to which the party seeks to introduce evidence. In
other words, if the evidence sought to be introduced will ultimately prove a fact that is

54
not in issue in the case at hand, there is variance and the evidence will not be admitted.
Therefore, failure to plead has the effect of preventing a party from introducing evidence
on a fact that is not pleaded or that is not in issue. In other words, if a party .fails to allege
something and has not introduced that something as an issue, then he will bepr~clu4ed
from introducing evidence on a point that is not in issue.

The other aspect of failure to plead occurs with respect to the statement of defence. The
submission of the statement of defence is the crucial point in the framing of issues. It is
primarily by the statement of defence that the defendant indicates what facts and
questions he wants to put in issue at the trial. As I have told you before, the defendant
must do two things in the statement of defence (apart from making a counter - claim or
set-off). These are (1) he must deal with the factual allegations of the statement of claim;
and (2) he must raise grounds of defence. We will now see the effect of failure to raise
either of these requirements by the defendant.

6.2.2. Failure to Deny

Dear student, as we saw earlier, the defendant must respond to each allegation of fact
contained in the statement of claim, admitting or denying it. Any factual allegation not
denied in the statement of defence specifically or by necessary implication is deemed to
be admitted. This means that if defendant does not contest what is alleged by the plaintiff,
no issue will arise as to that allegation. Thus, at trial, the plaintiff would not ordinarily be
required to introduce evidence to prove that allegation.
Example:
In a suit for breach of contract, the plaintiff alleges the various terms of the contract. The
defendant agreed to deliver the on January 1, 2007, the price was Eth. $ 1 per kilogram,
and so forth. In the statement of defence, when dealing with the allegations of the
plaintiff respecting the terms of the contract, the defendant pleads "defendant denies that
he was to deliver the goods on January 1, 2007, but contends that it was to be delivered
on February 1, 2007." Since he did not deny that the price was Eth. $ 1 per kilogram, he
is deemed to have admitted the truth of the allegation. There is an issue as to the date of
delivery but not: is to the price of the coffee. Therefore, the court will not frame an issue

55
as to the price of the coffee, and at the trial plaintiff will not need to introduce evidence
showing that the price of the goods was Eth. $ 1 per kilogram.
However, the court may, in its discretion, require any fact so admitted to be proved at the
trial despite the admission. This power is specifically granted under Art. 233. But, the
court should not exercise this power unless it understands from the circumstances that
defendant might have failed to deny an allegation by mistake. In other words, where the
defendant has failed to deny an allegation contained in the statement of claim, it should
ordinarily be considered as admitted, and proof of it should not be required at trial.

6.3. Rejection or Admission of the Statement of Claim

Dear student, by now you are clear with the requirements of pleadings in general and the
statement of claim in particular. There fore, if a claimant prepares has prepared the
statement of claim in the appropriate form stated under Arts 222 - 228, he will submit the
same to the Registrar of the court. The next task of the court will be checking of whether
such pleading fulfills all the requirements of the law.
There are two basic requirements that every statement of claim should fulfils. Those are
said to be technical and substantial requirements. If the court assures that either of those
requirements failed then the court can reject the statement of claim with out the need to
call the defendant to respond. Following we will discuss what those requirements include
and who will take the rejecting measure on what bases.

a) Lack of Technical sufficiency

Dear student, you know that the statement of claim is first submitted to the registrar of
the court. The registrar of the court then before it transfers it to the court it will we have
the power to check the technical requirements of statement of claim. The requirements of
technical requirements are set forth under Art. 229 of the Civil Procedure Code.

Art. 229 – Rejection of statement of claim by registrar

The statement of claim shall be rejected by the registrar where:
1. It is not in the form provided for by Art.222;
2. It is not accompanied by the annexes provided for by Art. 223; or

56
 3. It is not verified in the manner provided by Art. 92.
Therefore the Registrar of the court will examine the statement of claim for its technical
sufficiency depending on the above stated provisions. The requirements provided for by
Art. 222 of the Civil Procedure Code are said to be technical because these requirements
basically are requirements of form. The registrar will, therefore, reject the statement of
claim if it doesn't contain the name and place of the court or if it doesn't show the title of
the action; or if the name of the plaintiff or defendant or their address is not mentioned or
where the statement of claim doesn't show the amount of money, i.e., precise or
approximate or estimated, claimed by plaintiff.

The non-fulfillment of the annexes required under Art. 223, i.e., list of evidence, original
and copy of documents, sufficient number of copies of the statement of claim and the
annexes will also result in the rejection of the statement of claim by the registrar.
The other requirement whereby the statement of claim will be rejected by the registrar is
if the plaintiff has not verified the statement of claim that the statements he alleged are
true to his best knowledge under Art. 92.

Here a question may be raised on the legal effect of rejection by the registrar may be? We
have already seen on what bases the registrar of the court may reject the statement of
claim. The next issue, then, will be: what is the fate of the plaintiff that his pleading is
rejected by the registrar.

So where the registrar finds that the statement of claim doesn't satisfy the requirements of
Art. 222, 223 and 92 of the Civil Procedure Code, he shall return it to the plaintiff with
the reasons of rejection under Art. 232(1)(a). The plaintiff then will have two
possibilities.
 If he is satisfied with the idea forwarded by the registrar, then it will take its
application and brought it in any other time by making such arrangements
accordingly. See Art. 232(2) of C.P.C
 However if plaintiff insists that the statement of claim is complete and fulfills the
technical requirements provided for under Art. 222, 223 and 92 of the Civil Procedure

57
 Code, he may apply within five days to the court for a revision of the registrar’s
decision. See Art. 232(1)(a).
The court, based on such application, may give an order either the rejection by the
registrar is appropriate or not. If it is found that the statement of claim is applied with the
required technical sufficiency, it will order the registrar to accept the statement of claim.
If not it will be rejected in accordance to the decision of the registrar. Therefore what we
can understand here is that the rejection by the registrar does not have an effect of
dismissing plaintiff’s claim.

Dear student, here above we have seen what happens if the registrar of the court found
the statement of claim is technically insufficient. Now also let’s try to see what will
happen if the registrar of the court is satisfied with the technical requirements.

So, if the registrar finds the statement of claim technically sufficient, he will enter the
statement of claim in the register of civil suits and give it a file number according to Art.
214 of Civil Procedure Code; and then submit it to the court. But before that it may ask
the plaintiff to pay court fee unless such suit is to be filed as a pauper file based on Arts.
467 - 479.

b) Lack of Substantive Sufficiency

Dear Student, you are now clear with the technical requirements of statement of claim.
But fulfilling of technical sufficiency of statement of claim by it self is not enough for the
court to order service of summon to the defendant to respond. There is another basic
requirement that a statement of claim should fulfill, i.e. substantial requirement. The
existence of substantial requirements of a statement of claim is checked by the court (i.e.
by judges).

The issue of substantive sufficiency refers to the content or substance of the statement of
claim. This implies that the court will examine if plaintiff alleges a cause of action or in
other words whether plaintiff has alleged a legal right that needs protection.

58
The court on receiving the statement of claim from the registrar will examine it if it states
a cause of action, or if the, matter alleged in the statement of' claim is within its material
and local jurisdiction. Art. 231 of the Civil Procedure Code provide the types of things
that will be examined by the court. The court must reject the statement of claim where
one or both of the following things fail to fulfill.
1. If the statement of claim appears out side the court’s jurisdiction; or
2. It does not disclose a cause of action

a. If the statement of claim appears out side the court’s jurisdiction

Dear student, you now understand that if the case brought to the registrar of the court, it
will check its technical sufficiency depending on Arts. 222, 223 and 92 of the civil
procedure code. If these are satisfied, it automatically transfers the suit to the court for its
substance. Then the while it tries to analyze its legal sufficiency, the suit appears to the
out side the court’s jurisdiction, the court must dismiss it. This is basically refers to the
lack of material jurisdiction. Because lack of judicial local jurisdiction may not have such
effect unless an objection is raised by the defendant.

a) If the statement of claim does not disclose a cause of action

The most important aspect of the matter of rejection pleading is the rejection of the
statement of claim on the ground that it does not state a cause of action. Because there is
no reason to proceed further, if is clear from the beginning that no cause of action. A may
reject a statement of claim for lack of cause of action if either of the following is
envisaged.
a. If the facts indicates in the statement of claim does not state to relief under the
law. For example: if the plaintiff alleges that: “the plaintiff is a poor man; the
defendant is a rich man. There fore the defendant should pay the plaintiff Eth.
$1000.” Here, even if true, do not entitle the plaintiff to relief under the law,
the court should reject it for lack of legal sufficiency.
b. If the pleader has, in effect, pleaded conclusions rather than facts. This
happens when the statement of claim appear to the registrar to contain the
facts constituting the cause of action, thus satisfying Art. 222, upper closer

59
 examination, the court may be convinced that the “facts constituting the cause
of action” merely state conclusions. In that a case the plaintiff has not stated a
cause of action, hence the court will reject the case for lack of substantial
requirements.
c. The third element of rejection by court is where the plaintiff has alleged facts
which affirmatively show that he is not entitled to recover under the law or
that the defendant has good defence. For example, the plaintiff seeks to
recover damages for physical assault under Art. 2038. The statement of claim
alleges that the defendant struck the plaintiff with his first, breaking his nose.
It also alleges that the defendant struck the plaintiff after the plaintiff attacked
him to punish him for insulting the plaintiff. Here in former the plaintiff has
stated a cause of action. However in the later he does not state a cause of
action. Rather he is affirmatively shows that the plaintiff is not entitled to
relief and that the defendant has a good defence.

There are also times where the court will ask the plaintiff to deposit security when; he
claims recovery of property under Art; 1403 of the Civil Code. In such cases, too, if
plaintiff can't deposit the required security, the court will dismiss the statement claim
before summoning defendant.

Therefore, the next issue that needs discussion is that what is the effect of rejection made
by the court for lack of legal sufficiency?

There are two types of effects where the statement of claim is rejected by the court. The
first effect is that plaintiff may institute a fresh file. This happens, where the court rejects,
the statement of claim, for lack of jurisdiction for example. In such cases, plaintiff will
file a fresh suit on the same cause of action in the court that has jurisdiction.

The second effect, however, will result in the dismissal of the suit for good. This happens
where the statement of claim is rejected for failing to state a cause of action. However, if
the court finds that the statement of claim is found substantively sufficient by the court, it

60
will order the summoning of the defendant so that the defendant will prepare his
statement of defence and submit on the day he is ordered to appear and answer the suit.
6.4. Amendment of Pleadings
Overview
Dear student, this is the last Section of the Unit. Under this Section, we will discuss the
rules on amendment of pleadings. Amendment refers to modification of pleadings. The
rule is primarily provided to avoid the adverse effects of the non-compliance of the rules
on pleadings. Read the Section carefully and try to understand when amendment is
necessary and when the court will give leave for amendment.

6.4.1. Amendment of Pleadings

General
Dear student, by now you are clear with the overall concept of pleading. Following also
we are going to deal with the solutions stated in the civil procedure code of Ethiopia in
relation to a party fails to properly plead and feels to loss rights for such reason. Thus
whether there are options to amend the pleading that creates problem. Off course a party
fail to properly plead may be allowed to amend its pleading provided that the court allow
such amendment for the reasons that are stated on the code. Hereunder we are going to
deal with those issues of amendment.

The basis of the rule on pleadings is the rule that no pleading may raise any new ground
of claim or contain any allegation of fact inconsistent with the previous pleadings of the
party except by way of amendment. This rule is provided under Art. 90 of the Civil
Procedure Code.

The rule is intended to dispose cases as expeditiously as possible. If a party is allowed to

introduce new things every time, the case will not end. It will create more complications
and the resolution of the dispute will not be expeditions and economical. This is why, in
the previous sub-section, I have said that if plaintiff fails to plead in his statement of
claim, he will not be allowed to bring in new claims afterwards. And if defendant failed
to plead his defence properly, he will be barred from bringing new defenses afterwards.

61
And we said that this is variance or departure. The ultimate effect of this is that plaintiff
will .be precluded from bringing a new suit on the subject again. Defendant will be
considered as admitting the statement of claim.

Then, the question is what if a plaintiff or defendant fails to plead because of ignorance
of the procedural rules or because of some other causes? Should they lose their
substantive rights, or put any mechanism to solve the problem. The answer is obviously
no. because, it would not be fair to force them abandon their substantive rights. The Civil
Procedure Code has designed a mechanism to alleviate this problem. That is, the
procedure of amendment.

If a plaintiff or a defendant failed to plead, it is obvious that he will not be allowed to

introduce new facts or the remaining facts afterwards. Besides he will not be in a poison
to introduce evidence to that effect. So such party may lose his rights for the sole reason
that he fails to properly plead at the beginning. Therefore the only means that this party
should do is to find out a means by which he can amend its pleading so that he will be
able to introduce its evidences at the trial stage and protect its interest. But amendment of
pleading is simply allowed by courts. There are procedures to be followed in asking and
allowing of amendment of pleading. Following we will discuss the rule on amendment of
pleadings, i.e., the requirements that must be fulfilled and the procedure.

We will first discuss the approaches to amendment on the basis of Art. 91.

6.4.2. Approach to Amendment

I have considered the rules of pleading which are designed to clarify the issues for trial.
The system of pleading incorporates the principle that if a party fails to act at an
appointed stage, he cannot do so subsequently. If the party fails to include an allegation
in his pleadings, it is not put in issue, and he cannot introduce evidence to support that
allegation in his pleadings at trial. If the defendant fails to deny an allegation in the
statement of defence, he is deemed to have admitted it. And I have said that if this
principle is applied rigidly, substantive rights will be negatively affected because of
pleading errors. To prevent this from happening more than necessary, it is recognized that

62
in certain circumstances pleadings could be amended.

Art. 91 (1) is a provision that is broadly worded. In other words, Art. 91 (1) seems to
allow amendments of pleadings whenever it is found necessary to determine the real
question in dispute. The provision also provides that amendment could be ordered by the
court on its own motion or on the application of the parties, i.e., a party will apply to
court .for leave to amend his pleadings. For instance, take the case where a party would
seek to make an amendment. One case would be where after the statement of claim was
filed, the plaintiff realized that he failed to include an important allegation. He would
then move to amend to include the allegation. If he is allowed to amend by the court, a
copy of the amended statement of claim would then be served on the defendant.

Example:
A was injured by B and suffered bodily injury and property damage. A filed a suit
claiming compensation for bodily injury. Afterwards, he found out that he cannot be
compensated for his property damage or he cannot even bring a new action to claim
compensation for his damaged property. So, A may apply to amend his pleading so that
he will include his claims for compensation to property damage.

Usually, a question of amendment arises at the trial where one party seeks to introduce
evidence and the other party objects on grounds of variance. The objection must, of
course, be sustained. But the party may seek to amend the pleading to include the
allegation as to which he sought to introduce evidence. It could also arise at the trial if the
defendant sought to raise an issue that he did not raise in his statement of defence. The
time to amend or the application to get leave to amend must always is submitted before
final judgment is rendered by the court.

Let’s now consider when amendments should be permitted. In other words, should the
court's approach to amendment be liberal or restrictive? This means if the court's
approach is liberal, amendments will be freely permitted except in certain compelling
circumstances. But if the courts' approach is restrictive, amendments will not be allowed

63
except in certain situations.

Allowing the amendment of pleadings freely and the restrictive approach to amendment
both have negative and positive consequences. If free amendment or pleadings is allowed
or the court's approach to amendment is liberal, then parties will tend to be careless when
preparing their pleadings because even if they made mistakes, they will correct it by
amendment. Especially, parties who would like to use delaying tactics so that the case
will not be disposed as quickly as possible will abuse the amendment procedure.
Currently, many cases cannot be disposed because courts arc allowing free amendments
of pleadings. So, free or liberal approach to amendments of pleadings has resulted in
congestion of cases unnecessarily. And this will prejudice the other parties. On the other
hand, liberal allowance of amendments will prevent the destruction of substantive rights
because of pleading errors. But the court has to be careful and use its power to impose
conditions on amendments so that the allowance of the amendment will not prejudice the
other party. Whenever an amendment is necessary to determine the real question in
dispute, it should be allowed. But the party who is applying to amend has to show to the
court that there is an important point that was not raised in the pleading.

6.4.3. The Problem of Limitation

From my discussion on amendment I hope you have observed that amendment should not
be permitted where it is technical, in other words, when the amendment will not affect the
ultimate result in the case. Because, it will not help to determine the real question in
dispute, i.e., whether plaintiff is entitled to recover from the defendant or not.

The other situation where amendment would not be permitted is when the amendment is
prejudicial to the rights of the other party. In other words, amendment will not be allowed
when the amendment will affect negatively or take away from a party a right which
already accrued at the time the amendment is sought to be made. This would occur where
the effect of the amendment would take away from a party a right that occurred as a
result of lapse of time or running of period of limitation.

Concerning the problem of amendment and period of limitation generally there are two

64
ways of solving the problem.
1. The first solution relates with the theory of relation back. Under this theory a party
could do something by amendment that he failed to do at the first or appointed time.
When an amendment is allowed under this condition. it will relate back to the date of
the original pleading. So even if the statute of limitation has run on the claim when
the amendment was made. it will be considered as if it were presented on the day
appointed to be presented.
2. The second situation where a party wants to amend his pleading and where the
amendment would take away the right of a party that accrued by period of limitation.
relation back theory will not apply or in general amendment will not be allowed.

6.5. Compulsory Amendment of Improper pleadings

Ok now! This is the last subsection on pleadings And in this sub-section, I will discuss
compulsory amendment of improper pleadings. As the wording implies, compulsory
amendment will be ordered by the court where it finds the pleading improper by the
motion of one of the parties, or by the motion of the court.

There are two situations where compulsory amendment may be ordered. The first is
where the pleading is not sufficiently definite. Art. 91(3) provides that if “a further and
better statement of the claim of defence, or further and better particulars of any matter
stated in any pleading may in all cases be ordered by the court”. As we saw earlier, the
purpose of pleadings is to give the opposite party and the court notice of the facts on
which the pleader bases his claim or defence. If the allegations are vague and imprecise,
the pleader should be required to amend his pleading to make the allegations more
specific, so that the court and the other party will know exactly what he is claiming
The second situation where compulsory amendment will be ordered is where the pleading
contains improper matter or is in such a form that the other party cannot properly reply to
it. It says that the court may at any time order to be struck out or amended in any pleading
any matter which is unnecessary or scandalous. Pleadings are a matter of public record. It
is not fair to the other party if a pleading contains scandalous matters unnecessary to the
decision of the case. In order for matter to be stricken, it clearly must be both scandalous

65
and unnecessary.

If for example, the plaintiff in a suit to recover property from defendant contends that the
defendant stole the property, the allegation is perfectly proper. It forms the basis of the
plaintiff’s right to recover and is necessary for the decision of the case, even though it
may be “scandalous”. But if a party includes matter that is not necessary for the decision
of the case and is scandalous, the court should order it stricken. For example, in a case,
the plaintiff sued the defendant for libel, alleging that the defendant called him a thief. In
the statement of defence, the defendant denied that he called the plaintiff a thief, but said
that he did call him an adulterer and that statement was true. The allegation that the
defendant called the plaintiff an adulterer should be stricken. Because the issue is whether
the defendant called the plaintiff a thief: and if he did not call him a thief. He will not be
liable. The defendant's allegation has nothing to do with the plaintiffs claim and is merely
designed to embarrass the plaintiff. So, since it has nothing to do with the case and is
scandalous, it should be stricken.
The court may also require a pleading to be amended where it contains “unnecessary
matter which would tend to prejudice, embarrass or delay the fair trial of the suit”. Art
80(2} requires that the pleading shall contain “only a statement in a concise form of the
material facts on which the party relics for his claim or defence.” So when a pleading
contains extraneous matter, i.e. evidence, allegation and argument, the court should order
the pleader to amend the pleading (Art. 91(4)). In most of our courts, pleaders always
state facts that show the personal relationships, and background story of the case which is
totally unnecessary in their pleadings. Such kinds of pleading should be amended by the
order of the court.

66
REFERENCE MATERIALS
 Sadler, Robert, Ethiopian Civil Procedure, (Faculty of Law, Haileselassie I
University, Addis Ababa: the Oxford University Press, 1968)
 The Civil Procedure Code of Ethiopia, Decree No. 52 of 1965, [Link].,
25th Year, No 3.
 The Constitution of the Federal Democratic Republic of Ethiopia of 1995,
[Link]., 1st Year, No 1.
 Civil Code of the Empire of Ethiopia of 1960, [Link]., 19th Year, No 2.
 The Criminal Procedure Code of Ethiopia, Extraordinary Issue No. 1 of
1961, [Link]., 21st Year No. 7
 Jain, Sampat, Public Interest Litigation, (Deep and Deep Publications [p]
LTD, 2002)
 Nahum, Fasil, Constitution for Nations of Nations: the Ethiopian Prospect,
(the Red Sea Press, Inc., 1997)
 H. Desai, Ashok and Muralidhamas, Public interest Litigation: Potential
and Problems, (Published in B.N. Kirpal et al. ends, New Delhi: Oxford
University Press, 2000)
 Planiol, Marcel, Treatise on the Civil Law, (Vol. I, Part 1, Published by
Lousiand State Law Institute, 1959)

 
 

67