Chapter 1: The Trial &other Procedures

 A full scale proceedings-based on issues framed at the

pre-trial proceedings.

 The 2nd phase of the proceedings-a way of enforcing the

right of access to justice(Art.37, FDRE Constitution)

 The court goes into the heart of the disputes between

the parties.

 All that has gone at the first hearing culminates in the

trial i.e. the issues developed at the first hearing would be
resolved, and then judgment and decree would be passed.

 To this effect, the trial stage essentially involves:

 the production of evidence - how witness and

documentary evidence are brought before the
court-

 the conduct of trial-the procedure on

production of evidence and,
 the giving of the judgment and passing the
decree.
 Two types of proceedings:
 Ordinary

 Special[Summary +Accelerated]
 1.1. Ordinary Proceedings

1.1.1 Production of Evidence to the Court

 The law of evidence is concerned with one of the most

complex undertakings in the entire litigation process-i.e. the
reconstruction of past events to arrive at the truth. Truth is
not sought in an absolute sense.

 Evidence is produced to prove factual allegation i.e.are

affirmed by one party and denied by the other.
 Evidences(Art 223):
 Documents produced by the parties
 Testimony of the parties

 Physical proof (material objects eg. photo, Video

etc) –produced in the same manner as that of
production of documents.(Art.146)

 What if the parties fail to produce the evidences?

Art.137 +256

 The trial stage is basically the stage where oral

testimony and documentary evidence are examined, thus tell
us the procedure for obtaining the attendance of witness
and oral testimony and then the procedure for obtaining the
production of documents.

 What does a plaintiff or a defendant do when he

files his pleading?
1.1.2. Opening of hearing in trial proceedings
 The party entitled to begin is usually the party who files the
suit.Art.258,259 i.e. plaintiff
 Rational: He who alleges a fact shall prove it.Art.2005
CC)-by analogy
 What if the plaintiff fails to prove the existence of his
allegation?
 In criminal case, the court does not allow the defendant
to defend himself .i.e.the court shall dismiss the case –
by motion of no case (Art.141,142,or 144 Cr.PC)-the
same is applicable to civil cases.
 However, there are exception in which the defendant is
entitled to begin the hearing i.e. when the defendant
admits but raises affirmative defense-the defendant
admits with reservation & raise affirmative action

 Example

-Ahmed alleges that the contract is breached and he

sustained damage .He demands compensation. Ali admits
the breach and damage sustained but alleges that he should
not pay compensation because the non-performance is due
to force majeure. Now, the position shifts from the plaintiff to
the defendant who shall explain as to the existence of the
force majeure & convince the court.
1.1.3.The Conduct of the Trail: Examination of witnesses

 Arts.258+259=The party entitled to begin shall state

his cases and produce his evidence in support of issue
 which he is bound to prove.
 The plaintiff and the defendant shall list the name of the
witnesses and annex to the statement of claim and defense
respectively (Arts.223+234)
1.1.4.Rules on Appearance of witnesses(Art.111)
 As a rule, no summon is issued to witnesses to secure
their attendance before court.
 Exception: unless their testimony is crucial –the court
must be convinced

 If a party applies for issuance of the summon

to his witnesses and the court believes that their
testimony is crucial ,that part shall deposit the
expenses of the witnesses (Art.112)
 What if the part has no money to deposit(poor)-
No witness expense=No issuance of summon

 Can the court name a person as witnesses even if the

parties fail to provide as a witness?

 This seems possible under Arts.249,256 , 264

CPC. i.e. the court has a discretionary power to call
and examine a person not named as a witnesses by the
parties-an inquisitorial nature which shows that the
court is inquiring into the substance of the litigation.
 If the witness so summoned fail to appear before court for
the testimony, he is compelled to appear by arrest (Art.118)
b/s of failure to aid administration of justice.
 Art.261-The witness shall take an oath to confess:

 Correct, truth
 Genuine

 Real

 After confession, if a person (witness)give false

statement (perjury),he faces criminal liability.

 Three stages in examination of witnesses

A. Examination-in-chief (Arts.261+263(1),263(2)

 It is made by a party who called the witness-proponent

witness
 The purpose of this examination is to support the allegation
of the party.
 The nature of this examination is that it
 is general and does not involve leading questions(Art
263(2)
 relates to matters that come to the knowledge of
witness direct or indirect manner

 Direct-when he witnesses the conclusion of contract

 Indirect-is it possible to testify by rumor /ear

say?...Evidence law

 Leading questions are questions that suggest their own

answer.eg. You know the contract signed between Abebe
and kebede. Don’t you?-this is not a testimony only what
 fulfils the interest of party asking.
 In exceptional cases leading questions may be asked.eg.
Child + old people witnesses-to refresh the memory of the
witnesses
 The court accept their testimony by refreshing their
memory through leading questions

B. Cross-Examination (Arts.263(3)

 Made by the opposite party-called opponent witness

 The purpose of this examination is to show to the
court that the testimony given by the witness during
in chief examination is :
 Erroneous,
 Doubt full,
 Untrue
 Cross examination aims at discrediting the testimony of the
witness(Art.263(3)

 The nature of cross examination is that it is full of

leading questions and thus any question relevant to the case
may be asked. However, if the question is irrelevant to the
case the opposite party can object it.

C. Re-Examination (Arts.263(4)

 It is made by the party who called the witness. This is a

 2nd chance to examine his witnesses
 The purpose of this examination is to
 revive testimony discredited by the cross
examination
 minimize the effects of cross examination

 It is limited only to questions raised during cross-

examination.(Art.263(4))
 Plaintiff -----------------in –Chief-Examination +Re
examination

 Defendant ---------------Cross Examination

 Primarily the examination of witnesses is made by
the parties(Art.256-264)
 However, the court can ask any questions which is
unclear-to clarify the matter.
 But the court cannot ask cross examination to
challenge the witnesses-Rational-Inquisitorial system
 Even the court can call and inquiry any person not
named as a witness by the parties, if it deems to it
necessary (Art.264(2)

 The court may at any stage of the suit recall any

witness and examine (Art.266)

 The witnesses could be

 any person who has witnessed when a document is

signed or who might have seen a certain accident or
 factual situation that gives rise to action.

 an expert witness who gives his expert opinion on a

given subject.

 Both types of witnesses are summoned and testified in

the court. The parties and the court may examine them.

 But, there are circumstances where a witness whose

testimony is necessary and cannot be brought before the
court due to physically incapability or other reasons-he
may be far from the jurisdiction of the court or he may be
about to depart from the jurisdiction of the court before the
hearing.

 Where a witness is not in a position to testify in court

because of physical incapacity or other causes, Article 122
provides that such witness may be examined on
commission.

 An examination on commission is the examination of a

witness by a person specifically authorized to examine the
witness.

 Art .125(1) Ci.Pr.C, the provisions of the code

applicable to the summoning, attendance and
examination of witnesses, and to the remuneration of and
impositions of penalties to be imposed upon witnesses
shall apply to persons required by the commissioner to
give evidence or to produce documents.
 Besides, it assumes the commissioner as a civil court.

 Where the witness resides outside the local limits of the

court issuing the commission, the commissioner may
apply to any court within the local limits of whose
jurisdiction the witness resides for the issuance of process
against that witness, and that court shall issue such
process against that witness, and that court shall issue
such process as it finds proper.

 There is another way of hearing or admitting the

testimony of a witness i.e. if such witness is required by
neither party to be examined, he may be permitted by the
court to give his testimony by affidavit. In other words, a
witness may put what he knows about the fact in issue by
an affidavit and submit the same to the court. However, if
either party bona fide desires the production of a
witness for cross-examination, and that such witness can
be produced, affidavit may not be given.

 where evidence is given by affidavit, the witness is

not present for cross-examination or examination by
the court, the court or the parties would not have a
chance to observe his demeanor and other factors that
affect his credibility. Thus, the court should use its power
of allowing a witness to testify by affidavit in rare and
exceptional cases. [Art. 204]
 Following the above procedural set up, Art. 205Civ.PC
 stipulate that affidavit shall be confined to such facts
as the deponent is able by his own knowledge to
prove, but on an interlocutory application, example on the
application of a temporary injunction, they may include
facts that the deponent believes to be true.

 In such a case it must be made clear how much of the

affidavit is based on the deponent‘s knowledge and how
much is based on facts that he believes to be true.

 The sources on which his belief is based should also be

disclosed.

 Thus, affidavits can be employed in two

situations.

 when the party proved the facts to the best

of his knowledge, and
 when the party may prove some fact by
affidavit where he believes that the facts are
happening or will happen.
 Examples:

 A plaintiff who does not have sufficient money to pay court fee
may apply to the court to sue as a pauper. In this case, he should
support his application by an affidavit to prove that he does not
have money, pursuant to Art.468 CPC. In such cases the
deponent is stating the facts as he knows them and not mere
belief.
 A plaintiff is also required to support his application by
affidavit for an order of temporary injunction the attachment of
the property of the defendant before judgment. In such
affidavits the deponent, I,e,, the plaintiff is stating his belief that
the other party is or will remove his property form the jurisdiction
of the court or that the subject matter of the suit would be
wasted.

 The second rule related to documents that is provided in the

Civil Procedure Code is the So-Called best evidence rule. The best
evidence rule requires a party to introduce the original document
or to establish that the original has been lost or destroyed before
other evidence of the document‘s content are to be admitted. [Art
140 and 223CPC ]

 each party must include with his pleading the original

copy of any document in his possession on which he
relies [read Art, 233(1), and 234(1)]. If a party alleges that
a document is in the possession of another person, the
court has the power to order the person who has
possession of the document appear in court with it.
Where a person is summoned for the sole purpose of
producing a document, he may simply produce the
document without personally appearing in court. The
rules on the production of document by persons who are
not parties to suits and who are not witnesses are
 provided under Art.115 and 119 of the Civil Procedure
Code. So, if a person is ordered to produce only the
document under Art .114, he can cause the document to
be produced. In other words, he can send the document
to the court instead of appearing in court to produce the
document under Art 115 CPC.

 The person in whose possession a document is alleged to

exist has a duty to respect the order of the court in producing
the document as per Art.119CPC.
1.1.2. Judgment and Decree
1.1.2.1. Judgment
 Defined under Art.3 CPC-i.e. Judgment is the final out come of the
proceedings that brings an end the litigation between the parties.
 Judgment culminates the life of a civil suit.
 Judgment may be given in two instances:
 Pretrial Judgment-considered as early judgment &amounts
to an exception to the rule.
 Trial Judgment-general rule on giving decision after
consideration of witnesses ,evidence-i.e. judgment is given
when all documentary evidences are investigated, witnesses
are examined ,physical proof ,if any, is considered and
parties are presented their arguments(Art.273CPC)

 When is judgment given?

 It shall be given in open court(Art.180)-This is

because justice is not only be done but also seen
 being done in open court-one of the fundamental
procedural principles.
 However, there is an exceptional circumstance
under which civil matters are entertained in
closed/camera proceedings. eg. Family
matters(H&W)

 NB-In family matters especially in divorce –no

representation

1.1.2.1.1. Formal Requirements for giving

judgment(Art.181(2))

 Must be reduced to writing

 Signature of a judge
 Majority vote in a proceeding with three or more judges is binding
 If there is a dissenting judge he must also put his dissenting
opinion and sign it
 The number of judges must be odd i.e.1,3,5,7,9,11,13,15 etc

1.1.2.1.2. Contents of Judgment (Art.182)

 Contents:
 Material facts-it shall contain concise statement of facts
 Issue-it shall contain points for determination
 Reasoning-It shall contain reasons for decision

 Holding-it shall contain judgment

 Finally, the judgment should be based only on facts raised by

 the parties-party autonomy i.e. parties fix the scope of the
litigation –resjudicata, period of limitation
 However, the court can frame a new issue and hear the
argument of the parties and give decision.
1.1.2.2. Decree(Art.183)
 It is final an operative part of judgment
 It deals with the relief to be awarded and thus, it
enforces the judgment made by the court
 Decree seems to be written in separate (or the last
paragraph) Art.183

 the decree must contain:

 The number of the suit,

 The names and description of the parties,

 The particulars of the claim,

 A clear order to do or to abstain from doing

something or to pay a definite sum of money or to
deliver a particular thing or surrender or restore
immovable property.

 The amount of costs incurred, and by whom or out

of what property they are to be paid,

 Such particulars as are necessary to render the

decree susceptible of execution; and
  Where the decree can be executed by the personal
obedience of the judgment debtor, the time within
which it shall be executed.

 Once the operative part of all judgments is reduced to the form

of decree, it must be signed and dated by the judge or judges who
passed it, exclusive of any dissenting judge

 Lastly, on the basis of Art 184(1) CPC, after the decree has
been passed, certified copies of the judgment or decree or both
shall be furnished to the parties on application to the registry of
the court which passed it and the date be mentioned thereon.
2.2 . Special Proceedings
 Are:
 Summary procedure &
 Accelerated procedure
 Both aim at instituting a claim without the necessity of instituting a
full scale suit. i.e. unlike ordinary procedure
2.2.1. Summary Procedure (Arts.284-292 CPC)
 A special procedure designed to dispose cases in a much more
faster than in other ordinary cases.
 Such cases are not complicated or disputed.
 Optional proceeding that is to be employed when ever the plaintiff
chooses
 Applicable in certain suits
 The defendant is not as in ordinary suit ,entitled as of right to
defend the suit i.e. the defendant must apply for leave to defend 10
days from the date of the service of summon if he has a defense.

 Classes of suits to which summary procedure is applied

are:Art.284(a-c)

 Suits upon bills of exchange ,promissory notes and

cheques

 The suit for recovery of debts or liquidated demands of

money which is payable by the defendant out of
-written contract
-guarantee given in respect of debt or liquidated demand
2.2.2. Acclerated Procedure (Art.300-314)
 Designated for cases that are not disputed.
 A procedure that is employed where the petitioner
requires a certificate to be issued.eg
 change of name(Art 42-43CC)
 Application for correction or cancellation of
records or entries in
theregisters(Art.121,127,1623&1630CC)
 Ex parte proceeding
 No provision by which interested party gets the
opportunity to appear and oppose the granting
of the certificate
 Requirements:
 Written
 Dated ,verified &

 Signed application
2.3. Other Procedural Matters
 Is the that come when a proceeding is initiated by the plaintiff
and the defendant demand a temporary relief until the case is
disputed .i.e. the life of such relief depends on the original claim.
2.3.1 Arrest before Judgment
 The court may order arrest of the defendant where it satisfied
that the defendant has

 Intent to delay or avoid the process of the court i.e.

obstruct evidence

 About to leave Ethiopia (Art.147-150CPC)

2.3.2 Attachment before Judgment

 Designed to prevent the defendant from disposing his

property so as to prevent execution
 Action against the property of defendant entirely
 The present conduct of the defendant is relevant(Art.151-
153 CPC)

 NB: Attachment may be withdrawn whenever the

defendant furnish the security required and cost
2.3.3 Temporary injunction
 is an order restraining a party from doing a particular acts or
requiring him to do or not to do such an act & the plaintiff
may request for injunctive relief as part of the final decree.
 Issued during the pendency of the suit to prevent certain
action from taking place that would hurt the other party.
 To restrain the act
 Read arts.154-order,158-discharge or varying or setting aside
the order
2.3.4 Interlocutory orders(Art.165-169CPC)

 Any order that the court considers necessary to be made

pending the determination of the suit
2.3.5.Habeas corpus
 Remedy for illegal detention.ie. violation for the 48hrs rule
 Art.15(2) CPC
 Art.5(1)(0)+11(1)(a)Proc.No.1234/2021

 The material jurisdiction of high court

 Read Art.177-179 CPC

2.3.6. Procedure in Arbitration& Conciliation

 A dispute resolution process in which the disputant

present their cas to panel of arbitrators(3rd party)`which
examined all the evidences and give decision

 Not formal and the parties are at liberty to al;ter the

rules so as to meet the parties need

 It is

 Binding
 Adversarial

 Has advantage

 Timely

 Cost effective
  Confidential

 Party autonomy

2.3.7 Cost

 All expenses directly related to the court litigation

 Art.462CPC-left to the discretion of the court

 The judgment creditor prepare an itemized bills of costs

showing the expenses he has incurred in the suit
 appealable