Civil Procedure 11

187 Pages·2011·0.9 MB·English

Law of Civil Procedure II

Teaching Material

Developed By:

1) Alem Abraha
2) Tafesse Habte

Sponsored by the Justice and Legal System Research Institute

2009
Table of Content
Title Page
Introduction …………………………………………………………………………………………………………………. 1
Chapter One
Pre- Trial Proceedings …………………………………………………………………………………………………. 4
1.1 The First Hearing ……………………………………………………………………………………………………. 4
1.1.1 Non- Appearance of Parties ……………………………………………………………………………. 4
1.1.2 Examination of Parties …………………………………………………………………………………….. 13
1.1.3 Ruling on Preliminary Objections …………………………………………………………………….. 15
1.1.4 Farming of Issues ……………………………………………………………………………………………… 18
1.2 Adjudication without Trial …………………………………………………………………………………… 19
1.2.1 Agreement on Issue ……………………………………………………………………………………… 19
1.2.2 Parties Not at Issue ………………………………………………………………………………………. 20
1.2.3 Deposition of issues at the First Hearing ………………………………………………………… 21
1.3 Compromise and withdrawal …………………………………………………………………………… 22
1.3.1 Compromise …………………………………………………………………………………………………. 22
1.3.2 Withdrawal of suit ……………………………………………………………………………………… 23
Chapter Two
2. The Trial and Other Procedures ………………………………………………………………………………. 26
2.1 Ordinary Proceedings ………………………………………………………………………………………….. 27
2.1.1 Production of Evidence to The Court ………………………………………………………. 27
2.1.2 Conduct of The Trial ………………………………………………………………………………….. 37
2.1.3 Judgment and Decree ………………………………………………………………………………… 49
2.2 Special Proceedings ………………………………………………………………………………………………. 53
2.2.1 Summary Procedure ………………………………………………………………………………………. 53
2.2.2 Accelerated Procedure …………………………………………………………………………………. 56
2.3 Other Procedural Matters ……………………………………………………………………………………. 60
2.3.1 Arrest and Attachment before Judgment ………………………………………………….. 60
2.3.2 Arrest before Judgment …………………………………………………………………………… 61
2.3.3 Attachment before Judgment …………………………………………………………………….. 63
2.3.4 Temporary Injunctions, Interlocutory Orders and
Appointment of Receiver …………………………………………………………………………... 66
2.3.5 Temporary Injunctions ……………………………………………………………………………….. 67
2.3.6 Habeas Corpus …………………………………………………………………………………………… 76
2.3.7 Procedure in Arbitration and conciliation ……………………………………………………. 78
2.3.8 Cost ………………………………………………………………………………………………………….. 80
Chapter Three
3. Review of Judgments ……………………………………………………………………………………………. 86
3.1 Review by Court of Rendition ……………………………………………………………………………. 86
3.1.1 Procedural Irregularities ……………………………………………………………………………… 86
3.1.2 Newly Discovered Evidence ………………………………………………………………………… 89
3.1.3 Opposition ……………………………………………………………………………………………… 93
3.2 Review by Appeal to a Higher Court …………………………………………………………………… 96
3.2.1Right of Appeal ……………………………………………………………………………………………. 96
3.2.2 Types of Appeal ……………………………………………………………………………………………. 99
3.2.3 Grounds of Appeal ……………………………………………………………………………………. 103
3.2.4 Instituting Memorandum of Appeal …………………………………………………………….. 105
3.2.5 Procedure on Appeal …………………………………………………………………………………………… 111
3.2.6 Judgment on Appeal ………………………………………………………………………………………. 115
3.2.7 The Second Appeal ……………………………………………………………………………………….. 120
3.2.8 Restitution ………………………………………………………………………………………………………. 121
3.3 Revision in Court of Cassation ……………………………………………………………………… 121
Chapter Four
4. Execution of Decrees ………………………………………………………………………………………….. 124
4.1 Jurisdiction in Execution ……………………………………………………………………………………. 124
4.1.1 Transfer for Execution ……………………………………………………………………………….. 125
4.1.2 Powers of the Court upon Execution ……………………………………………………..… 127
4.2 Proceedings in Execution …………………………………………………………………………………… 128
4.2.1 Application for Execution ……………………………………………………………………….. 129
4.2.2 Limitation ………………………………………………………………………………………………. 133
4.2.3. Process of Execution ……………………………………………………………………………. 134
4.3. Attachment and Sale ………………………………………………………………………………………. 140
4.3.1. Methods of and Objections to Attachment …………………………………………………… 141
4.3.2 Sale of property ……………………………………………………………………………………………... 146
Chapter Five
5. RES JUDICATA AND SPLITTING OF CLAIMS ………………………………………………………………… 157
5.1 Persons Bound …………………………………………………………………………………………………… 160
5.1.1 Matters Which Has Been Heard and Finally Decided …………………………… 165
5.1.2 The Scope of Res Judicata …………………………………………………………… 170
5.2 Splitting of Claims …………………………………………………………………………………………….. 173
5.2.1 General Principles ……………………………………………………………………………..… 173
5.2.2 The Whole of the Claim with Respect to the Cause of Action ……………….. 178
Introduction
As you remember from your previous study on part one of Civil Procedure Law, it was
stated that the whole course is designed to be delivered in two semesters. By now, you
have already covered the first part of the study and the second part is to be conducted at
this semester, and it which covers a total of five major chapters.

The first chapter deals with the Pre-Trial Proceedings. Under this chapter, the role of the
court in hearing the parties to the suit, in determining the issues and preparing the case
for trail or adjudicate it with out trial will be discussed thoroughly.

The second chapter mainly deals with the procedure to be followed on the production of
evidence and how judgments and decrees are rendered.

Following the judgment and decree, there could be a party who is not satisfied by the
decision of the court. In that case, the procedure for reviewing judgment will be
important and these will be discussed under the third chapter.

The forth chapter is concerned with how decrees will be executed. The last two chapters
then will discuss the issues related with Res judicata and splitting of claims and other
procedural matters.

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COURSE OBJECTIVES
The Course is designed to equip students with a comprehensive understanding of the
conceptual issues underpinnings civil procedure, and, thereby enable them engage in a
wide range of skill enhancing factual activities.
Upon completion of the Course, the students will, among other things, be able to:
 determine the power of the court in hearing suits;
 understand the effect of non appearance of parties to litigation;
 identify cases that can be adjudicated with out the need for full scale trial;
 discuss how evidences will be produced to the court of law;
 explain the rules on review of judgment; and identify the types, proper procedure
and requirements for reviewing the judgment of the lower court;
 identify the court which has the jurisdiction to execute the decree;
 list down different possibilities for execution of judgment.
 differentiate what ordinary and special procedures are.
 discuss the effects of failure to appear in a court when ordered, explain procedural
problems before trial;
 describe the procedural issues that must be solved before a proceeding is
transferred to the trial stage;
 identify when to raise an objection and give response;
 apply the technique of raising objections and give responses;
 differentiate between the advantages of going to trial and discontinue a suit before
trial; and
 apply the procedures by balancing the interest of the parties and the system

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Introduction
As it stated above, the first chapter of this Material deals with the Pre-Trial Proceedings.
Under this chapter, the role of the court is mainly hearing the parties to the suit,
determining the issues and preparing the case for trail. However, there are possibilities
whereby the court may adjudicate the case with out trial. Hence, the discussion of this
chapter will revolve around those issues.

Besides, we would like to remind you that the discussion in this material is entirely
dependent on your previous studies of the civil procedure. So, you need to refer once
again to your material to recapitulate and to easily understand it.

Objectives:
After you have completed studying this chapter, you will be able to:
 determine the power of the court in hearing suits;
 explain the effects of appearance and non-appearance of a party;
 list down procedural problems before trial;
 understand the effect of non appearance of parties to litigation;
 identify when to raise an objection;
 discuss the effect of failure to raise such objections in the first hearing;
 describe the procedural issues that must be solved during the first hearing;
 identify cases that can be adjudicated with out the need for full scale trial; and
 differentiate between the advantages of going to trial and discontinue a suit before
trial.

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CHAPTER ONE
PRE -TRIAL PROCEEDINGS
1.1. The First Hearing
Overview
Under this topic, we are going to discuss the procedural steps that will be applicable
during the first hearing. In the first hearing, parties to litigation, mainly, party plaintiff
and party defendant, are expected to appear. If both parties appear as ordered by the
court, the court then will examine them. This is to clearly identify the controversial point
of the dispute. If the defendant has raised objections, the court will give a ruling on the
objection and if the objection will not result in striking out or dismissal of the suit, it will
proceed and frame the issues. However, some times, one or both of the parties may fail to
appear in the court of law at first hearing. In such cases, the court will order based on the
procedure.

In generall, at first hearing, the court reads the statement of defense, examines both
parties to determine their respective positions, rules on any preliminary objections, and
frames the issues for trial. In certain circumstances, the court may adjudicate the case at
the first hearing without requiring a full-scale trial. If the proceeding is transferred to the
trial stage, the court sets a date for the trial and at the trial it hears evidence and decides
the issues. Here under, we are going to discuss the procedural steps to be applied during
first hearing.

1.1.1. Non -Appearance of parties
As we have seen above, if a defendant appears in the first hearing with his statement of
defense, will the court holds what is called the first hearing. However, a question like the
following one may arise: ―what will happen where a party does not appear before the
court at the required time?‖ The problem of non-appearance may arise throughout the
proceeding and the provisions may be applicable to all stages of the proceedings. i.e. the
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first hearing, the trial and review. But the problem of non-appearance usually happens at
the first hearing.

An appearance involves coming before the court so that the court can adjudicate the case
or take any other action it deems necessary. A party to a suit is not mandatorily required
to appear personally at the hearing.

A party may appear through an agent or pleader. However, the court may require that the
party should appear in person, and if a party who has been ordered to appear fails without
good cause, it is considered as if there was no appearance. Where there are several
plaintiffs or defendants, anyone of them may be authorized to appear on behalf of them
all. (Art.66 (1). Such authority must be in writing and signed by the party giving it, and
filed in the court (Art. 66(2)). Where persons are sued as partners in the name of the firm,
each must appear individually in his own name. But subsequent proceedings will
continue in the firm name. So, if a partnership is sued in the firm name, all the partners
must appear individually at the first hearing (Art. 67). Where a body corporate is sued,
the court may require the personal appearance of the secretary, any director or other
principal officer who can answer questions relating to the suit (Art. 68(1)). The same is
true with government employees who may be able to answer questions in a suit involving
to government (Art 68(2)). In other words, while a personal appearance is not ordinarily
required, the court has the power to compel the personal attendance of parties or agents
where it concludes that such attendance is necessary for the determination of the
questions in the suit. Where a party appears through a pleader, the pleader must be able to
answer such questions or be accompanied by a person who can.

Action upon Non-appearance
The Civil Procedure Code is strict on the requirement of appearance. Of course, it has its
own rational. If one of the parties ordered by the court fails to appear and if the court
does not take immediate action, then the case would be delayed and the court would
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