Law of Civil Procedure I

Teaching Material

Developed By:

1) Alem Abraha
2) Tafesse Habte

Sponsored by the Justice and Legal System Research Institute

2009

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 TABLE OF CONTENTS

CHAPTER ONE: INTRODUCTION TO CIVIL PROCEDURE: CONCEPTUAL

AND HISTORICAL BACKGROUND (6Hrs)
Introduction……………………………………………………………………….. ……..1
Objectives…………………………………………………………………………………1
1.1. Conceptual Underpinnings: The Nature and Purpose of Civil Procedure……………2
1.1.1. The Nature of Civil Procedure: Definitional Aspects……………………...2
[Link]. Substantive Vs Procedural Laws: Significance………………..3
[Link]. Civil Vs Criminal Procedures: Scope of Application………...10
1.1.2. The Purpose of Civil Procedure Vis-à-vis Fundamental Procedural Rule..16
[Link]. Fair Hearing of a Suit/ Impartiality of the Courts……………21
A. Neutrality of the Presiding Judge…………………………….21
I. Personal Bias……………………………………………….22
II. Pecuniary/ Subject-Matter Bias……………………………22
B. The Right to be Heard……………………………………….22
C. Equality of Treatment………………………………………..23
[Link]. Public Hearing of a Suit…………………………………………24
[Link]. Independence Vis-a-Vis Accountability of the Judiciary……….25
I. Judicial Independence……………………………………….25
A. Institutional Independence ……………………………25
B. Functional Independence………………………………28
II. Accountability of the Judges………………………………...28
[Link]. Establishment of the Courts by Law…………………………….29
1.1.3. Rules of Civil Procedure Vis-à-vis Modes of Proceedings……………….33
[Link]. The Adversarial Procedure……………………………………….34
[Link]. The Inquisitorial Procedure……………………………………….35
1.2. Rules of Civil Procedure in Ethiopia: Historical Development……………………..36
1.2.1. Rules of Civil Procedure in Ethiopia: A Brief Historical Overview………36
1.2.2. Salient Features of the 1965 Civil Procedure Code………………………..41

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CHAPTER TWO: JUDICIAL SYSTEMS IN ETHIOPIA AND JURISDICTION
OF COURTS (9 Hrs)
Introduction……………………………………………………………………………..45
Objectives………………………………………………………………………………..45
2.1. The Ethiopian Judicial Systems: Past and Present………………………………46
2.1.1. The Unitary Court Structure: Historical Development…………………..46
2.1.2. The Present Dual Court Structure………………………………………..47
[Link] of Courts: Essential Elements…………………………………………..49
2.2.1. Judicial Jurisdiction: General Considerations……………………………..50
[Link]. Jurisdiction in Personam…………………………………………….52
I. Nationality or Domiciliary of the Defendant…………………….53
II. The Doing of an Act………………………………………………54
III. Consent of Parties………………………………………………..55
[Link]. Jurisdiction in Rem…………………………………………………..56
2.2.2. Material /Subject-Matter Jurisdiction……………………………………...57
[Link]. Subject Matter Jurisdiction…………………………………………...58
I. Matters outside the Jurisdiction of Courts…………………………..58
II. Federal Vs State Subject Matter……………………………………..60
[Link]. Jurisdictional Limits of Courts: Pecuniary Amount Vs Types
of Cases………………………………………………………………...64
I. Pecuniary Amount: Federal Vs States Courts Jurisdictional Limits…64
A. Federal Courts: General Vs Limited Jurisdiction………………64
B. States Courts: Original Vs Appellate Jurisdiction………………65
C. Determination of Amount in Controversy……………………...66
II. Types of Cases: Exclusive Jurisdiction………………………………66
2.2.3. Local Jurisdiction…………………………………………………………..67
[Link]. The Basic Place of Local Jurisdiction………………………………..68
[Link]. Suits Regarding Contracts……………………………………………71
[Link]. Change of Venue and Removal of Judges………………………….74

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 [Link]. Conflicts of Jurisdiction: Priority, Pendency and Consolidation of
Cases…………………………………………………………………..76
A. Priority…………………………………………………………77
B. Pendency………………………………………………………78
C. Consolidation of suits………………………………………….79
(Summary, Review Questions/ Activities)……………………………………………..80

CHAPTER THREE: PARTIES TO AND THE DIMENSIONS OF SUITS (12 Hrs)

Introduction…………………………………………………………………………….82
3.1. Parties to a Civil Suit: General Requirements………………………………...83
3.2. Party Plaintiff and Party Defendant…………………………………………..84
3.2.1. Party Plaintiff……………………………………………………………..84
[Link] Vested Interest……………………………………………………….84
[Link]. Effects of Lack of Vested Interest…………………………………..86
3.3. Party Defendant: Allegations…………………………………………………..87
3.4. Representation in Civil Suits: Types and Requirements……………………….88
3.4.1. Legal Representation: Types and Requirements……………………….88
3.4.2. Representative Class Suits: Requirements………………………………88
3.4.3. Agents and Pleaders…………………………………………………….90
3.5. Joinder of Parties and Causes of Action………………………………………91
3.5.1. Joinder of Parties…………………………………………………………..91
[Link]. Purpose and Significance……………………………………………91
[Link]. Forms and Types…………………………………………………….92
[Link]. Effects of Misjoinder and Nonjoinder………………………………94
3.5.2. Causes of Action: Definition and Joinder…………………………………98
3.6. Interventions: Conditions and Types………………………………………….99
3.7. Third- Party Practice (Imp leader): Purpose, Requirements and
Consequences……………………………………………………………..102
3.8. Change of Parties…………………………………………………………….105

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CHAPTER FOUR: PLEADINGS AND PRE-TRIAL PROCEEDINGS (18Hrs)
Introduction……………………………………………………………………………107
4.1. Pleadings……………………………………………………………………108
4.1.1. Definition and Purposes………………………………………………..108
4.1.2. General Pleading Rules: Requirements and Effects of Non-
Compliance……………………………………………………………..110
4.1.3. Major Types of Pleadings………………………………………………114
[Link]. Statement of Claim: Requirements and Contents………………...114
[Link]. Statement of Defense: Purposes and Contents……………………119
4.1.4. Effects of Failure to Plead………………………………………………121
4.1.5. Alternative and Subsequent Pleadings………………………………….122
4.1.6. Amendments of Pleadings……………………………………………...124
[Link]. Nature and Purpose………………………………………………124
[Link]. Grounds and the Process…………………………………………125
[Link]. Effects and Related Issues……………………………………….125
4.2. Pre-Trial Proceedings………………………………………………………..126
4.2.1. Service of Process……………………………………………………126
[Link]. Issuance of Summons………………………………………….126
[Link]. Modes of Service………………………………………………127
4.2.2. Effects of Non-Appearance of Parties……………………………….133

REFERENCE MATERIALS…………………………………………………………..141

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 Chapter One
Introduction to Civil Procedure: Conceptual and Historical
Background

Introduction

Being the first chapter of the course, this introductory part is intended to equip students
with the fundamental knowledge of the concepts and historical issues pertaining to
procedural rules in general and civil procedure in particular; thereby, laying the
foundation for the subsequent discussions.

Against this backdrop, it begins by comparing and contrasting the relations between, on
the one hand, substantive and procedural rules and, on the other, between civil and
criminal procedures with a view to highlighting the significance and scope of application
of civil procedure. This will be followed by a description of the overall purposes of civil
procedure as it relates to fundamental procedural rules. Finally, the administration of
justice in Ethiopia, in the context of civil matters namely, the historical antecedents of
rules of civil procedure in Ethiopia and the salient features of the 1965 Civil Procedure
Code, will be briefly reviewed.

Objectives:
Upon completing this chapter, students will, among other things, be able to:
 accurately point out the relations between procedural and substantive rules;
 make distinctions between civil and criminal cases and identify the scope of
application of civil procedure;
 sufficiently comprehend the significance of rules of civil procedure;
 properly appreciate the ultimate objectives that the rules of civil procedure are
designed to serve; and, describe and apprehend the past and present
administration of justice in Ethiopia-from the perspective of civil proceedings.

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1.1. Conceptual Underpinnings: Nature and Purpose of Civil Procedure

1.1.1. The Nature of Civil Procedure: Definitional Aspects

Preliminary Remarks

In the process of analyzing the nature of a vital and sensitive social phenomenon like law,
it is in order for most academic undertakings to start with an attempt to define key terms
and concepts that form the essential part of the subject under consideration. Yet, it has,
being in the nature of legal parlance, undeniably been a futile business to strive to come
up with a precisely refined description to everybody‟s satisfaction. But still, it becomes,
at times, unavoidably imperative to venture into such a task so as to gain sufficient
insight into and arrive at a proper appreciation of the matters being discussed.

Letting the legal wrangling aside, however, the term „civil procedure‟ may-for the sake of
simplicity, still be defined-in the context of bare technicality. To begin with, composed, it
is obviously, of two words: „civil‟ and „procedure‟. Separately treated, the former is
conventionally employed to denote matters related to „private‟ individuals‟ as opposed to
„public‟ affairs whereas; the latter refers to „the manner of carrying out a certain activity‟.
When combined, thus, „civil procedure‟ would viewed from the aspect of court
proceedings- mean no more than the „method of conducting legal actions relating to the
issues of private persons‟.

And, here comes the potential pitfalls of adopting such a merely literal approach. That is
to say in instances such as this, one may run the potentially damaging risk of failing to
properly appreciate the prime legal intent ingrained therein. Hence, a metaphorical
explanation of the matter would, it is hoped, not only avoid similar shortcomings, it
would, incidentally, have a some relative importance. First and foremost, such an
approach would enable one to sufficiently appreciate the significance of procedural rules
vis-à-vis the substantive ones.

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Moreover, one would, in the meantime, be properly equipped with adequate information
about the spheres of application (play ground) of civil procedure as opposed to the
criminal one and the criteria through which civil cases would be differentiated from the
penal ones. Most importantly, one would be well acquainted with the essential
attributive qualities and the overall purposes of rules of civil procedure and would
acquire the necessary knowledge so as to rationally attach the proper weight they
deserve.

In what follows, therefore, instead of starting with the definition of the term „ civil
procedure‟ as such, we would, in the first place, make distinctions between procedural
and the other bodies of law; and, subsequently, compare and contrast the purposes that
these legal rules are meant to serve. Such a teleological explanation would, in the final
analysis, enable us to appreciate the most distinguishing features of the law.

[Link]. Substantive Vs Procedural Laws: Significance

With a view to maintaining smooth and healthy societal interactions, all nations exert
concerted efforts to minimize (if not to entirely avoid) such social evils as disputes to the
extent possible. The adoption and implementation of legal prescriptions, as it has just
been mentioned, is one of the prominent mechanisms of achieving such an end.
Meanwhile, the laws so enacted have their own specific natures, purposes and systematic
arrangements.

Among the various ways of classifying laws, one involves making a broad distinction
between substantive and adjective legal rules. Adjective rules are, in turn, subdivided
into procedural and evidence laws with the former constituting the major portion of it.
The law of evidence, which governs the method of proof of allegations or assertions of
parties to a case, apparently falls beyond the domain of this course; and, we will
therefore concentrate be dwelling upon the remaining two species of law: substantive and
procedural.

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Substantive laws, for the most part, define rights, duties, privileges and liabilities of
persons and set out regulatory norms for their mutual relations in their ordinary course
of life.

Functionally expressed, they provide the basic rules governing the day-to–day activities
of individuals Vis-à-vis the community they live in and interact with- for the attainment
of orderly and smooth societal interactions, and as such, form the substantial portion of
the laws in the aggregate. Thus, these chief attributes of the laws and their relative
proportion, coupled with the fact that procedural laws are, comparatively speaking, but
means to the end contemplated by substantive laws; may, presumptively, hasten one
to attach more importance to the former than to the latter. Yet, there seem to be a strong
teleological foothold to challenge the proposition as a mere foretaste of the functional
purpose that the procedural laws are designed to serve and the ultimate objectives they
have in view.

As indicated, above substantive laws seek to avoid disputes between and among
individuals and groups in a society. They intend to achieve this by carefully delimiting
their respective legal spheres; by, primarily, predefining their rights and the
corresponding duties in an intelligibly ascertainable manner- in contemplation to
adjusting human conducts at various levels of relationships so as to ensure individual
freedom within the context of public order and societal harmony.

However, the ever renewed exigencies of human life and the correspondingly growing
interdependability of social relations do signify the inevitability of real or perceived
incompatibility and/ or divergence of interests; thereby, rendering the attempt to
potentially avoid disputes practically inconceivable. This phenomenon, in turn, indicates
the indispensable need for a formal and principled dispute resolution processes.

What is more, one may concede, to be fair, to the fact that the legal notions of substantive
rules are so general and carry with them a bundle of legal effect one of which is the
possibility of judicial enforcement. However, it is also tellingly true that even the very

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existence of those substantive rules is, more often than not, measured by their objective
enforceability essentially through, , the instrumentality of procedural rules in the
courts of law.

Moreover, it has nowadays been a well established fact that procedural irregularities
affect the ultimate fate of litigation dramatically not less than the substantive
problems. This assertion may well be substantiated by the following hypothetical
illustration.

Assume, for instance, that there is a legal rule of substantive nature guaranteeing one of
the rights to own/ possess property and make use of any benefit derived therefrom. Also
assume that there is a firm legal declaration-stipulating that no one may be deprived of
his ownership/ possesory right nor interfered with its enjoyment unlawfully and without
due process of law. Let‟s also imagine that the legal prohibition is illegitimately breached
in a given situation. Now, therefore, the point is, if the rightful owner/possessor, who is
deprived of his ownership right or possession; or, whose possession is interfered with, is
not otherwise provided with effective and efficient legal process through which one
would be able to reclaim the restoration of the thing he owned or possessed and/ or the
cessation of the interference and require damages for any injury he might have sustained
thereby and enforce the judicial remedy as against the wrong-doer or trespasser, it would
be as if there was no such a legal declaration(right )at all.

Accordingly, one may safely and boldly propound that, law, needless to mention, is not,
in its full sense, just prescription, rather, both prescription and application. Indeed,
prescription without application is nothing but pretence. This means that the rights
and duties envisaged by the laws would mean nothing unless they are fully enforced;
most importantly, when they are breached or violated. In other words, the mere
declarations of the rights in a document may not provide sustainable security when they
are infringed, unduly suspended or taken away. This means, under the pain of repetition,
that the bare statutory stipulations may not yield, for practical purposes, any good unless

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