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    Ch1 p1 Civil Procedure

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    Ch1 p1 Civil Procedure

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    3 views17 pages

    Ch1 p1 Civil Procedure

    Uploaded by

    demelasheris

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    of 17

    Introduction to Civil Procedure: Conceptual &Historical Background

    • The Nature of Civil Procedure: Definitional Aspects-


    • The term ‘civil procedure’ composed of two
    words:-
    – 1.‘Civil’  ‘Private’ individuals’ and
    – 2. ‘Procedure’. manner of carrying out a
    certain activity’.
    • When combined, mean,
    • The aspect of court proceedings -OR ‘method of
    conducting legal actions relating to the issues of
    private persons’
    Substantive Vs Procedural Laws:- Significance
    • Function of procedural rules, to govern as
    to:-
    – How claims of persons are prepared;
    – Where and when presented; and,
    – How determined and finally enforced
    by a court of law.
    • In a nutshell, procedural rules, in essence,
    give effect (“life”) to the ends sought to
    be achieved by substantive laws.
    Civil Vs Criminal Procedures:- Scope of Application

    • All legal disputes before a court of law


    are thus either one of remedial or
    penal in nature;
    • Civil procedure is a set of rules
    employed in the disposition of civil
    cases while
    • Criminal procedure is meant to govern
    the steps to be followed in penal
    prosecutions.
    The three parameters differentiating civil cases
    from criminal ones
    • 1. Nature of the parties instituting the legal action.
    • A civil case is naturally initiated by a private person
    claiming redress for some wrong alleged to have been
    committed against him by another.
    • 2. The Purpose of initiating a law suit and the nature of
    the relief sought.
     Relief demanded in a civil case is mostly the payment of
    money or assessed in monetary values.
    • 3. Availability of alternative dispute settling mechanism
    • Civil cases are subject to negotiations
    Fundamental Procedural Rules

    • Assignment for Self-Assessment


    • Explain Fundamental
    values of procedural
    rules and procedural
    principles with their
    fundamental
    Civil Procedural Rules- Purpose

    • Rules of civil procedure aim to ensure


    disputes are handled by:-
    – an impartial legal tribunal
    – in a fair and orderly manner and a
    – as expeditiously and economically as possible.
    • Rules of civil are, meant to:-
    – Secure the just, speedy and inexpensive
    disposition of cases.
    – Treating the parties to a law suit equally
    – Make the decision within a reasonably fair
    and quick time
    The Cardinal Procedural Principles

    • 1. Fair Hearing of a Suit


    /Impartiality of the Courts
    • 2. Public Hearing of a Suit
    • 3. Independence of the Judiciary
    and Accountability of the Judges
    • 4. Establishment of Courts by
    Law
    Modes of Proceedings (litigations)

    • Laws of procedural rules adopt


    either :-
    • 1. The ‘Adversarial’ or
    • 2. The ‘Inquisitorial’ modes of
    modes of litigations.
    1. The Adversarial Procedure

    • Typical feature of English judicial process


    • Characteristics this court proceeding is that
    • Parties themselves shoulder the burden of initiating,
    shaping and fixing the scope of the litigation.
    • Truth is emerge as a bi-product of intensely partisan
    advocates.
    • ‘Litigant-driven’ fact-finding process taking a “win-at-all-
    costs” attitude.
    • Judges play a relatively passive role as their function is
    limited to regulating the proper conduct (smooth flow) of
    process.
    • Judge is merely there as an impartial umpire to see to it that
    the rules of the game are evenly and properly observed by
    the players.
    2.The Inquisitorial Procedure
    • This mode is tied to the traditional function of a
    strong and absolute government, namely the
    maintenance of public order and the
    suppression of crimes.
    • It is chiefly employed in Continent Europe
    • Judges can inquire deep into the merits and so
    play active roles
    • Judges are basically thereto ensure public
    control over the management of the individual
    cases by enforcing the law.
    What about Ethiopian court
    proceedings???
    • ‘Adversarial’ ???or ‘Inquisitorial’???
    • Why ???
    Rules of Civil Procedure in Ethiopia:
    Historical Development
    • Historically absence of a systematically
    organized judicial process & uniformly applied
    procedural laws up until the end of the 19th
    • Ethiopia's notoriously litigious practice through
    such customary adversarial contentions as the
    “Tattayaq-muget” with the following appeals
     Chiqa-ShumDeputy-GovernorGovernor
    Womber Rases“Afe-Negus”Zufan- Chilot’
    Development of Modern procedural laws
    • Proc No 2/1942 establish the country’s judicial
    structure and laid down the very foundation for
    the development of procedural laws in Ethiopia
    • ‘Leg. Not. No .33/1943’ in 1943, the first ever
    written procedural law
    • ‘Leg. Not. No 155/1951’ a rule relating to
    appeals to the Imperial Supreme Court
     The 1965 Civil Procedure Code,
    Material source of the Civil Procedural Code
    • R. A. Seddler, the author claims it was
    entirely remarkably of Ethiopian origin.
    • Scholars contend overwhelming majority of
    its provisions are, in a similar fashion to the
    1908 Indian Civil Procedure Code.
    • They conclude that the latter could safely be
    considered as the basic material source of
    our Code of Procedure
    Salient Features of the Civil Procedure Code
    • The Code have embodied comprehensive rules that
    apply to civil litigations of any sort
    • It is concise with only 483
    • It encompasses rules on:-
    – Jurisdiction of courts;
    – Framing of issues;
    – Parties to and scope of litigation;
    – Service of summons;
    – Pre –trial and trial proceedings;
    – Revision of decisions and
    – Modes of executions
    Distinguishing features of the code
    • Four schedules of forms governing pleading process,
    miscellaneous matters and execution
    • Should schedules should strictly be observed?
    • Contention?
    • Inconsistent prescriptions between Amharic & English
    text of Art. 80(2)
    • Amharic text make the use of the forms indispensably
    mandatory, but not the English
    • How about the practice?
    • However Art 244(4) of the Amharic Code stipulates that
    non- observance of formal requirements cannot be a
    ground for a preliminary objection.
    • The Code was issued as a “Decree” by the Emperor,
    Proclamations that have Civil Procedural
    natures
    • Proc No 25/96 and its amendment
    proclamation No.138/98, which
    preceded Proc No.454/2005 are of
    civil nature

    • Ch 2 JUDICIAL SYSTEMS IN ETHIOPIA AND


    JURISDICTION OF COURTS

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