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Law of Civil Procedure II

Teaching Material

Developed By:

**1) Alem Abraha

2. Tafesse Habte**

Sponsored by the Justice and Legal System Research Institute

Table of Content

• Introduction …………………………………………………………………………………………………………………. Title Page
• Pre- Trial Proceedings …………………………………………………………………………………………………. Chapter One
• 1.1 The First Hearing …………………………………………………………………………………………………….
  • 1.1.1 Non- Appearance of Parties …………………………………………………………………………….
  • 1.1.2 Examination of Parties ……………………………………………………………………………………..
  • 1.1.3 Ruling on Preliminary Objections ……………………………………………………………………..
  • 1.1.4 Farming of Issues ………………………………………………………………………………………………
• 1.2 Adjudication without Trial ……………………………………………………………………………………
  • 1.2.1 Agreement on Issue ………………………………………………………………………………………
  • 1.2.2 Parties Not at Issue ……………………………………………………………………………………….
  • 1.2.3 Deposition of issues at the First Hearing …………………………………………………………
• 1.3 Compromise and withdrawal ……………………………………………………………………………
  • 1.3.1 Compromise ………………………………………………………………………………………………….
  • 1.3.2 Withdrawal of suit ………………………………………………………………………………………
• 2. The Trial and Other Procedures ………………………………………………………………………………. Chapter Two
• 2.1 Ordinary Proceedings ………………………………………………………………………………………….. - 2.1.1 Production of Evidence to The Court ………………………………………………………. - 2.1.2 Conduct of The Trial ………………………………………………………………………………….. - 2.1.3 Judgment and Decree …………………………………………………………………………………
• 2.2 Special Proceedings ………………………………………………………………………………………………. - 2.2.1 Summary Procedure ………………………………………………………………………………………. - 2.2.2 Accelerated Procedure ………………………………………………………………………………….
• 2.3 Other Procedural Matters ……………………………………………………………………………………. - 2.3.1 Arrest and Attachment before Judgment ………………………………………………….. - 2.3.2 Arrest before Judgment …………………………………………………………………………… - 2.3.3 Attachment before Judgment …………………………………………………………………….. - Appointment of Receiver …………………………………………………………………………... 2.3.4 Temporary Injunctions, Interlocutory Orders and - 2.3.5 Temporary Injunctions ……………………………………………………………………………….. - 2.3.6 Habeas Corpus …………………………………………………………………………………………… - 2.3.7 Procedure in Arbitration and conciliation ……………………………………………………. - 2.3.8 Cost …………………………………………………………………………………………………………..
• 3. Review of Judgments ……………………………………………………………………………………………. Chapter Three
• 3.1 Review by Court of Rendition …………………………………………………………………………….
  • 3.1.1 Procedural Irregularities ………………………………………………………………………………
  • 3.1.2 Newly Discovered Evidence …………………………………………………………………………
  • 3.1.3 Opposition ………………………………………………………………………………………………
• 3.2 Review by Appeal to a Higher Court …………………………………………………………………… - 3.2.1Right of Appeal …………………………………………………………………………………………….
  • 3.2.2 Types of Appeal …………………………………………………………………………………………….
  • 3.2.3 Grounds of Appeal …………………………………………………………………………………….
  • 3.2.4 Instituting Memorandum of Appeal …………………………………………………………….. - 3.2.5 Procedure on Appeal …………………………………………………………………………………………… - 3.2.6 Judgment on Appeal ………………………………………………………………………………………. - 3.2.7 The Second Appeal ……………………………………………………………………………………….. - 3.2.8 Restitution ……………………………………………………………………………………………………….
    • 3.3 Revision in Court of Cassation ………………………………………………………………………
• 4. Execution of Decrees ………………………………………………………………………………………….. Chapter Four
• 4.1 Jurisdiction in Execution ……………………………………………………………………………………. - 4.1.1 Transfer for Execution ……………………………………………………………………………….. - 4.1.2 Powers of the Court upon Execution ……………………………………………………..…
• 4.2 Proceedings in Execution …………………………………………………………………………………… - 4.2.1 Application for Execution ……………………………………………………………………….. - 4.2.2 Limitation ………………………………………………………………………………………………. - 4.2.3. Process of Execution …………………………………………………………………………….
• 4.3. Attachment and Sale ………………………………………………………………………………………. - 4.3.1. Methods of and Objections to Attachment …………………………………………………… - 4.3.2 Sale of property ……………………………………………………………………………………………...
• 5. RES JUDICATA AND SPLITTING OF CLAIMS ………………………………………………………………… Chapter Five - 5.1 Persons Bound …………………………………………………………………………………………………… - 5.1.1 Matters Which Has Been Heard and Finally Decided …………………………… - 5.1.2 The Scope of Res Judicata ……………………………………………………………
  • 5.2 Splitting of Claims ……………………………………………………………………………………………..
• 5.2.1 General Principles ……………………………………………………………………………..…
• 5.2.2 The Whole of the Claim with Respect to the Cause of Action ………………..

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

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.

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

adjourn the case to a later date. This will create a lot of problems to the parties, and to the court. This is not permitted under the code. Hence, if a party is ordered by the court to appear on a certain date, he has to appear. Non appearance results in affirmative action on the part of the court depending on who appears or who fail to appear the court will either struck out, dismiss, adjourn or proceed to hear the case in the absence of the non- appearing party.

In the following, section we are going to see these different rules applied during non- appearance of a party.

a. Action Upon non-appearance of both parties

Where both parties, i.e., party plaintiff and party defendant fail to appear in court of law, when the suit is called on for hearing, the court shall make an order that the suit be struck out, or in case of appeal, that the appeal be dismissed. (Art. 69(2))

Heres the court has no discretion to adjourn the case. However, this is not the case in the Indian code of Civil Procedure. According to order IX, rule 3 of the Indian code of Civil Procedure, the court has a discretionary power to adjourn the case instead of dismissing it.

Question 1: which one of these different approaches do you think is more appropriate? Why?

b. Action where defendant does not appear

If a plaintiff appears and the defendant does not appear, when the suit is called on for hearing, the court does not simply take action with out having enough information about the non-appearance. This is because such non-appearance may be due to the fact that the defendant did not receive notice of the proceedings. Hence, where the defendant does not appear, the first question the court must ask is whether he/she was duly served or not. Then, it is up to the plaintiff to convince the court that he/she has duly served the defendant.

On the other side, if it is proved that the defendant failed to appear in court of law on the date which is fixed for hearing because he was not duly served or the summons was not served on him in any of the modes of service that is sufficient to notify him, the court will order Second summon to be served on the defendant.

The third possibility with regard to non-appearance of defendant is, in case where the summons was served on him in so short time that he may not be able to appear. In such cases the defendant will be served with the summons but the summons might have not been served in sufficient time, in which case the court will adjourn the hearing so that the defendant will have sufficient time to consider the allegations of the statement of claim and able to appear at the day fixed with his/her defense. But despite the fact that the defendant has not been served, if he/she appears in that day, the suit will continue.

Question 2: What do you think is the fate of the defendant who appears at the adjourned date and fails to demonstrate good cause for his previous non-appearance?

c. Action where plaintiff does not appear

Where the defendant appears and the plaintiff does not, when the suit is called for hearing, the court shall make an order that the suit be dismissed, unless and otherwise the defendant, in his/her statement of defense, admits all or part of the claim. If there is admission, even though the plaintiff fails to appear, the court shall pass a decree based on that admission. If no admission by the defendant, the dismissal is mandatory, and the defendant cannot demand the suit to continue. But, sometimes the defendant may assert a claim of counterclaim or set off. In such a case, the court will proceed to hear that part of the case, since as to such counterclaim or set-off, the defendant occupies the position of plaintiff, and the rules relating to the non-appearance of the defendant apply. Here , we can also see the interpretation of the law made by the Federal cassation court interpretation under file14184, so that we can see the difference between the date that is

fixed for submission of statement of defence, in which the suit should not be dismissed and the date that is fixed for hearing, in which dismissing of suit is appropriate.

The problem of non-appearance may also arise in the case of multiple parties. Suppose that two plaintiffs have joined; or two defendants have been joined, and one does not appear. This situation is governed by Art. 75 of the Civil Procedure Code.

When does Art. 75(1) apply? Remember that the non-appearing plaintiffs have joined in the suit and are parties of record. The non-appearance does not affect the power of the court to enter a decree involving their rights. Striking out or dismissing the suit as to them would also require such action with respect to the appearing plaintiffs, since the suit cannot proceed in the absence of indispensable parties. This would be unfair to the appearing plaintiffs, and since the court may enter a decree as to non-appearing plaintiffs, it should proceed with the suit.

Non-appearance of one of the several defendants has also the same effect. Where one or more of the several defendants, although duly served, has failed to appear, the suit will proceed against all defendants or the suit may proceeded as ex-parte against the non- appearing defendant.

Question 3: Here above we have seen when court order Dismissal and Struck-out a case. Do you think there is a difference in between the two? Explain.

1. Effect of Non-appearance

We will now consider the effect of non-appearance. Where there has been non- appearance, depending on who has failed to appear, four things can happen:

However, the defendant against whom an order made ex-parte or third party defendant against whom a decree is passed may, within one month from the day he became aware of such action, apply to have it set aside. Article 78 Civil Procedure Code governs this situation.

You have to note here that the plaintiff seeking to have an order of dismissal set aside must apply within a month from the date of the order. But a defendant seeking to have an ex -parte decree set aside has one month from the time he was aware of the decree. There is a possibility that the defendant may not be aware of the decree until the plaintiff tries to enforce it against him, i.e., at the execution stage.

If the defendant does not apply within that time, or if the court finds that the summon was duly served and that there was not sufficient cause for non-appearance, the decree is valid and it will be enforced against the defendant notwithstanding that he never presented his defense. He had the opportunity to appear and cannot have the case responded to give him another chance.

A problem may arise where there are multiple defendants, and an ex-parte decree was given against all or some of them and is set aside only as to some. Suppose there are two defendants, neither of them appeared. Both defendants applied for the setting aside of the decree and the ex-parte decree against one of them was set aside but not against the other. Or, one appeared, judgment was entered against him, an ex-parte decree was entered against the other, which the later has applied to set aside.

Under such circumstances, if the decree is such that it cannot be set aside only against the non-appearing defendant entitled to have it set aside, it may be set aside against the other defendants also. The court is doing this because the defendants are indispensable parties. In such case a decree against some alone cannot stand. However, the decree against the other defendant or defendants should be set aside only where the decree is necessarily

indivisible. Where separate judgments can be entered against each defendant, there is no need to set aside the decree against the others.

The last but not the least effect of non-appearance is related with default proceeding. As we have seen above, if the defendant, while he is duly served, failed to appear in court of law on the date which is fixed for submitting his statement of defence, the court shall order default proceeding based on Article 233 of the Ci.Pr.C. The effect of such order is not equal to ex-parte proceeding. In ex-parte proceeding, the party whom an order is made against him will not have the right to be involved in the litigation proceedings following the order. Whereas in default proceeding, the non-appearing party, i.e; the defendant, should not be refused to be a party to the litigation. The only effect of such order is that he will be precluded to exercise the procedural rights that should be exercised on the date of his non-appearance. For example, he cannot exercise his right to submit his written statement of defence. In other words, in default proceeding, the non- appearing party can exercise his right to be a part to the litigation from the date he appears in court of law, but he loses to be benefited from those procedural rights that should be exercised during his non-appearance.

2. Sufficient Cause

Once the court has ordered following the non-appearance of a party, it does not mean that it is final and there is no ground for reviewing it. A party whose interest is affected due to the order up on non -appearance may apply to the court to set aside the order, provided that he has sufficient reason to justify his/her non appearance. If the court is satisfied that the non- appearing party was prevented due to sufficient reason, it may order to set aside the order and the case will continue to proceed. However, the following questions may be raised here:

 What are the elements of sufficient cause?  Whether the criteria for justifying sufficient cause would be the same in all cases?

framed as to that matter. In other words, the defendant may deny or admit the allegations in his statement of defense or at the examination. See Article 241 and 242 of the Cv.Pr.C

The examination of the plaintiff at this time is particularly important since the plaintiff file a responsive pleading to the statement of defense that he received in writing. Secondly, the defendant might have raised affirmative defenses, e.g., Force majeure. The case may be decided in whole or in part on the basis of the admissions made by the parties.

By examining the plaintiff, the court determines whether he admits or denies the facts constituting such defenses. Suppose that the defendant has admitted the contract but said that he had paid what plaintiff is claiming. The plaintiff could deny that the defendant had paid, in which case there would be an issue on this point. Or, plaintiff could say that what defendant had paid is some other payment not the debt claimed in the suit. Then, the court would frame an issue on whether the payment has already discharged the claim or not.

The main purpose of the examination at the first hearing is to help the court clarify and develop the issues for trial. The court examines each party, or where the party does not appear, the person accompanying the pleader for the purpose of answering such questions. Since the examination must be conducted by the court and only for this purpose it would not be proper for the court to put a party on the stand, examine him on the entire case and allow the other party to cross-examine him. The examination is simply to determine what admissions and denials are made by the defendant which assists the court in framing the issues. It must be conducted with reference to the allegations in the pleadings and only supplements the pleadings in developing the issue for trial.

If a party admits in the pleadings or on the oral examination, the other party may apply to the court for such judgment or order as he may be entitled to as a result of the admissions made by the parties. See Article 242 of the Cv.Pr.C

The defendant may admit that he is liable, but deny that the plaintiff suffered the damages he claimed. The court would issue a judgment to the effect that the defendant is liable to the plaintiff in an amount to be determined at the trial, which would then be limited to deciding the question of what damages the plaintiff suffered.

1.1.3. Ruling on Preliminary Objections

After the court has examined the parties, it proceeds to decide any preliminary objections that have been raised. A preliminary objection may be defined as an objection not going to the merits of the case that is, not involving the question of whether the defendant is liable to the plaintiff under the substantive law.

As you can remember from the discussion on part one of the civil procedure course, we have considered some objections that may be raised by parties to litigation. Art 244 (2) also sets forth certain preliminary objections. So, when such objections are raised the court is to proceed in accordance with the provisions of Art. 245. Under this Article, the court will hear the opposite party, order the production of such evidence as may be necessary and render a decision on the objection.

Question 5:Justify Whether the preliminary objections listed under Art. 244(2) are exhaustive or not?

Now, we are going to see the contents of Art. 244(2) on preliminary objections.

Art. 244 (2) – The provision of Art. 245 shall apply where either party states that:

a. the court has no jurisdiction b. the subject matter of the suit Res Judicata c. the suit is pending in another court d. the other party is not qualified for acting in the proceedings;