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 general, 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.

 

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 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.

 

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.

 

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 without 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.

If the court is satisfied with the mode of service to the defendant, it automatically orders Ex-parte proceeding. (Art.70 (a)). However, we have to understand the distinction between Ex-parte proceeding made according to Article 70 of the Ci.Pr.C and Default proceeding made based on Article 233 of the Ci.Pr.C. On this point, the Federal Court of Cassation Division has made a very interesting interpretation under file15835.

 

The very interpretation of the court is, when the court should order Ex-parte proceeding and Default proceeding, what is the effect of those orders. Articles 70(a) and 233 of the code says:

Art. 70 Defendant failing to appear

Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing:

(a)    if it is proved that the summon was duly served, the suit shall be heard ex-parte;

Art. 233. - Service of statement of claim

Where there are no reasons for rejecting a statement of claim under Art. 231, the court shall cause the statement of claim and annexes to be served on the defendant together with a summons requiring him to appear with his statement of defence on a day to be fixed in the summons and informing him that the case will proceed with notwithstanding that he does not appear or that he appears without his statement of defence.

 

According to the Federal Court of Cassation Division interpretation, first we have to clearly differentiate the date for submitting statement of defence and the date of hearing. If the hypen happened on the date which is fixed for submission of statement of defence, and if it is proved that the defendant is duly served with the summon, the court should order Default proceeding based on Article 233 of the Ci.Pr.C. Whereas, if the hyphen  of the defendant is on the date which is fixed for hearing, the order of the court will be Ex-parte proceeding. We will see the effect of both proceedings later.

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.

 

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 proceed as ex-parte against the non-appearing defendant.

Even though the Code is said to have embodied comprehensive rules that apply to civil litigations of any sort, it is also concise in a sense that it contains only 483 articles-divided into chapters and paragraphs. It encompasses rules on, among others, 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.

Most importantly, however, the following distinguishing features of the code deserve special attention. To begin with, the four schedules of forms governing pleading process, miscellaneous matters and execution, stipulated at the rear most part of the Code demand distinctive discussion. The point here is that there is a contention as to whether such schedules should strictly be observed during actual litigation processes. There see to be inconsistent prescriptions between the two versions of the Code. In relation to the pleadings, for instance, Art. 80(2) of the Amharic text make the use of the forms indispensably mandatory, while such a strict prescription is missing from the English version. Surprisingly, Art 244(4) of the Amharic Code stipulates that non- observance of formal requirements cannot be a ground for a preliminary objection. This becomes, at times, a source of fierce conflict in the effective application of the provisions of the Code.

Be that as it may, however, it is beyond contention that the consistent application of formal requirements (though a perfect congruity may not be a necessity) is of paramount importance for the expeditious dispensation of justice.

Moreover, there are also blatant mismatches between the Amharic and the English versions. The master texts of the Code, being originally drafted in English, and, then, translated into Amharic, the inconsistencies are supposedly attributed to the Amharic mistranslations. In such instances, some lawyers suggest that it would be profitable to consult the English version the primary source material; and, if accessible, the relevant provisions of the Indian Civil Procedure Code, the original source document of the latter.

The problem does not stop there. Our substantive laws are essentially derived from the civil law legal system whereas the procedural law is from sources substantially influenced by the common law tradition.

In the enforcement of the laws, as the provisions of the Civil Procedure Code are to be read in conjunction with and interpreted (when the need arises) in the spirits of the substantive laws, the latter would undoubtedly have an appreciable effect on the former. Consequently, due mostly to such differences in origin between the two laws, practical problems may crop up in the process of litigation.

To cite but an instance, due to terminological differences between the two legal traditions, it may become insurmountably difficult to relate certain procedural concepts to their precise parallels in the relevant substantive law. As a result, the conclusion reached in such instances may sometimes lead to the defeat of the purposes sought to be achieved by the respective law. It has thus been suggested that in such deadlocks, references should preferably be made to materials of common law origin.

Last, but not least, ensuing from the fact that the Code was issued as a “Decree” by the Emperor, there could arise a problem relating to the approach to be taken in the process of interpreting its provisions. The problem here is that, since the Code was not promulgated by the parliament, there are no documents containing legislative debates (“travox preparatory”) on the drafts of its provisions, there is no thing published, indicating the drafters intent i.e. the background policy explaining the contents of the legal rules and prescribing guidelines for interpretation.

The absence of such basic documents, in effect, makes the “intention” method of interpretation (the most reliable one) of little use, if any, except in so far as such intentions can be inferred from the terms of the pertinent articles of the Code. In such instances, it is suggested that a more practice-oriented mode of interpretation would best facilitate the proceeding and help ensure the general purpose of the rules of procedure.

Even though the Code had empowered the then Ministry of Justice to issue regulations, concerning any matter which under the Code may or shall be prescribed; and, to make rules so as to add or amend the provisions of the Code, nothing was made to that effect up until 1975. In that year, however, two proclamations, Proc No 51/1975 and Proc No 84/1975 were enacted. While the former reduced the number (rights) of appeals to only one; the latter amended Art 31/1 of the Code to the effect that an application for change of venue could only be admitted before the hearing of evidence.

Moreover, if, as per the Proclamation, the other party has incurred expenses as a result of the rejection of the application, the petitioner might be required to compensate same.

Save such instances, therefore, up until the recent enactment of Proc. No. 454/2005, which re-amended (Proc No 25/1996 is amended by proc. No138/98) Proc No. 25/1996 (with the prescription that the legal interpretation reached upon by the Cassation Bench of the Federal Supreme Court, shall be binding upon the courts), no single procedural law of civil nature has been made. Proc No 25/96 and its amendment proclamation No.138/98, which preceded Proc No.454/2005 are of civil nature

 

To reiterate what has already been said, rules of procedure are commonly termed as means to an end and not end in themselves. They are there to ensure that legal disputes are handled as fairly and expeditiously as possible. In the process of arriving at the truth about the relevant facts and the pertinent laws applied thereto, the laws of procedural rules in any country chiefly adopt either the ‘Adversarial’ or the ‘Inquisitorial’ modes of fact- finding to the total, or, partial exclusion of the other; or, at times, an interplay of the two, where, of-course, one may flagrantly take over the upper hand. Given the difference in the degree of the roles played both by the actual parties to a case and the presiding judge are the distinguishing factors between the two modes of litigations, a brief explanation of their functional outline would be in order.

The Adversarial Procedure

The adversarial method, whose roots are traced to the early Anglo-Saxon court proceedings, is alleged to be the typical feature of English judicial process or the major proponent of the system (other countries as such as the USA, Australia and New Zealand do also belong to this category).

The prominent characteristics of an adversarial court proceeding, seen from the procedural point of view, is that the parties themselves (or represented by their advocates) shoulder the burden of initiating, shaping and fixing the scope of the litigation. The process is termed as the core of what might be called the ‘factual methodology’ of the system- in contrast to the other style of adjudication, which employs some purely theoretical reasoning to reach at a conclusion. The underlying proposition of the system is that truth is most likely to emerge as a bi-product of the vigorous combat between intensely partisan advocates. The advocates are not supposed, at least as a matter of fact; to see the resolution of the case as a question of what might be best for the society as a whole. Rather, their ultimate goal is to see the possible disposition of the controversy in terms of their clients’ best interest-taking a “win-at-all-costs” attitude.

Hence, due to such a ‘litigant-driven’ fact-finding process, the system has often been likened to a battle or sporting event on which the players and the players alone are responsible for the determination of the (nature and effect) outcome of the contest. Thus, an adversarial court proceedings judges play a relatively passive role. Their function is limited to regulating the proper conduct (smooth flow) of process. This restrictive mandate of the courts potentially circumscribes the intervention of the judges in the substance of the litigation. Thus, the 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.

The Inquisitorial Procedure

This mode of investigative procedure is originally 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 the judicial proceedings of the Continent Europe (France and Germany being the representative ones). ‘Inquisitorial’ procedure is self-expressive in that the judges can inquire deep into the merits of the case so as to be able to decide on what the real issues between the parties are. They can, for instance, order the parties to produce further evidence and critically examine the witnesses of either side, if and when they are of the opinion that a fair decision cannot otherwise be reached.

Yet, true to this system, the real parties do have active role to play in initiating, shaping and fixing the scope of the litigation. However, relatively speaking the system envisages, , a more active role for the judges to play instead of being a mere ‘pronouncer’ of the bi-product of the activities of fierce partisan advocates-as is the case with the adversarial proceeding. Judges are basically thereto ensure public control over the management of the individual cases by enforcing the law. They thus occupy a centerpiece in the ‘fact-finding’ process as opposed in contrast to the neutral umpire of the adversarial judge. Hence, from the above discussions , one may conclude that the prime difference between the two modes of litigations lies mainly on the degree of the roles played by the judge vis-à-vis the actual parties to the case.

Before winding up the brief description of the two modes of litigations, it is be imperative to say few words about the mode of Ethiopian court proceedings. Formally and theoretically speaking, identifying the primary source material of the Code is undoubtedly the determinant element for this purpose. Accordingly, irrespective of certain arguments in the contrary, the basic material source of the Code is observed to be the 1908 Indian Code of Civil Procedure-which itself was taken as a model procedure in some British colonies in Africa-such as the Sudan.

Hence, one may plausibly propound that the Code was extensively influenced by and originated from the Common Law Tradition-to which the UK  was (and still is) the typical representative.

Rules of Civil Procedure in Ethiopia: Historical Development

The historical development of rules of civil procedure in Ethiopia could well be studied by dividing it, for the sake of convenience, into two unequal periods taking 1965, the year, when the current Civil Procedure Code of Ethiopia was promulgated, as a point of departure.  Accordingly, briefly, in an attempt to provide a comfortable basis for subsequent discussions while the first sub-section explores, the historical scenarios attending procedural rules in Ethiopia; the second sub-section substantially deals with the attributive features of the Civil Procedure Code.

Rules of Civil Procedure in Ethiopia: A Brief Historical Overview

It is a common truism of legal history that the present legal rules and concepts do not stand in isolation from the past legal traditions. Rather they have their roots in and are fruits of long historical precipitations. In view of such premise, it would thus be instructive and beneficial to make preliminary historical considerations of certain customary and informal procedural rules. Hence, tracing back into their historical antecedents; briefly exploring into the nature and application of procedural rules; identifying the key issues attending them; and, assessing the way outs forwarded thereto would supposedly throw some light on the proper appreciation of the distinguishing features of the present procedural order.

Historically speaking, for the substantial portion of its legal tradition, Ethiopia was identified with the absence of a systematically organized judicial process or uniformly applied procedural laws. This was primarily associated, among others, with the absence of competent expertise- which, the implementation of modern procedural laws indispensably demands. Up until the end of the 19^th century, there was no adequately articulated and/or formally institutionalized system of administration of justice. Yet, the practice of dispensing justice was widely believed to be the duty of each and every peace-loving citizen as it had aptly been manifested through the voluntary and spontaneous establishment and operation of an informal road side adjudicatory tribunals by any passers- by or family friends-when and wherever a dispute arose.

Moreover, seen from procedural point of view, once engaged in argumentative proceedings, disputants were observed to be notoriously litigious in practice-as could well be illustrated through such customary adversarial contentions as the “Tattayaq-muget”.

They would furiously go through, at all costs, interminably repeated appellate procedures so as to have their case determined to the best of their interests. A contention which began, for instance, before the very humblest village elder, would go, more often than not, all along every available avenue, culminating in the royal institution of the emperor: known as the “Zufan Chilot” which is literally interpreted as the ‘Crown-Court’.

Sequentially stated, if, for instance, a litigant could not get his case resolved to the best of his satisfaction at the informal village tribunal, or, for that matter, for any reason what-so-ever, he would go to the lowest level official adjudicator- known as the “Chiqa-Shum”- wherein, the taking of an oath was an important part of the procedure. Besides, those personnel who assumed such adjudicatory status at that position were expected to be honest, sympathetic with the poor and endowed with the knowledge of the law.

A grievance by the discontented party could also be petitioned against the decision of the ‘Chiqa-Shum’ to the next higher official-the ‘Deputy- Governor’. A further appeal, from the decision of the Deputy-Governor, would go to the Governor of the district whose decision could, in turn, be reviewed upon by other higher officials called “Womber Rases” each representing the then provinces in the country-and presiding in the central court situated in Addis Ababa.

The litigation process could also be extended as far and high as the “Afe-Negus”, literally translated as the “Mouth” of the king. The marathon appellate procedure would however come to an end only after having reached, the apex of the judicial structure; i.e., a litigant who had exhausted his right of appeal was once more entitled, as a final resort, to request a review by the Imperial Majesty’s Bench which was presided by the Emperor himself. The decision of the Emperor, which would usually be made on the basis of a concise summary report of the ‘Afe-Negus’, was, however, final and binding.

Besides, the Emperor was not bound to decide cases on the basis of the provisions of the formal laws. Rrather, the authority and legitimacy of the ‘Zufan- Chilot’ lied both in the sovereign prerogative of the Emperor- to see to it that justice was done; and in the historically popular conception of the kings as the ‘ultimate source (fountain) of justice’- a thinking which found its way even in the country’s procedural laws (Art 138 of the Cr. Pr. Cd. and Art.322 of the CV. Pr. Cd could well be cited to this effect).

It was thus Proc.No.2/1942 (formally called the ‘Administration of Justice Proclamation’) which attempted to curtail the number of appellate rights to, only, one: whereby each court would hear an appeal from the next lower court. In practice, however, not only were multiple appeals taken in each case, the High Court would often hear appeals without even having the proper jurisdiction in that particular instance. Despite the legal prescription and the aspirations ingrained therein, the customary practices persisted with substantial resistance; even worse, the judges themselves showed tendency to cling to them.

In view of the deep rooted practice of repeated appeals, it may have supposedly been found difficult for the judges to accept a single appellate procedure; and, hence, may have believed that they should not refuse to hear the appeals irrespective of the restrictive stipulation of the law. To make matters worse, it was also possible for a defendant to obtain a transfer of his case from the lowest to the High Courts- a legal rule, which was occasionally misused- for the sole fact of entailing unbearable burden on the plaintiff (respondent) who would often have to travel all the way to Addis Ababa. Such improper usage of the legal rule, coupled with the absence of an effective and efficient procedural law, not only had the negative repercussion of substantially increasing case congestions, but also precipitated in an absurdly costly and lengthy litigation processes.

Be that as it may, it has, in the final analysis, been observed that procedural rules in the country were relatively more developed than their counterpart substantive ones.  For all intents and purposes, therefore, Proc No 2/1942 (which primarily was enacted to establish the country’s judicial structure) could safely be considered as the law that had laid down the very foundation for the development of procedural laws in Ethiopia.

The Proclamation, in addition to constituting the ever modern court structure in the judicial history of this country, also entrusted the judiciary to issue regulation that would be employed in court proceedings, subject, of course, to the approval of the then Ministry of Justice.

Subsequently, a number of procedural rules were issued. A year later, in 1943, the first ever written procedural law (called, ‘Court Procedure Rules’) was promulgated as ‘Leg. Not. No .33/1943’. Nonetheless, the ‘Rule’, which encompassed 99 articles of both civil and criminal procedures, was far from being comprehensive. The material source of the law is said to have been the Indian procedural laws, which could be attributed to the then British judges who were working in the judicial structure and rendered assistance in the drafting of the law. Afterwards, a rule relating to appeals to the Imperial Supreme Court was issued as ‘Leg. Not. No 155/1951’. It consisted of, 45 articles of both civil and criminal procedures out of which 36 articles were rules of civil procedure. Even though it is said to have incorporated certain rules of customary practices of the country, the substantial material source was still that of the Indian procedural laws.

Moreover, up until the promulgation of the 1965 Civil Procedure Code, a number of other laws of procedural nature were also made. These include:

• Proc. No. 130/1953 (and the amending Proc. No. 135/1954) for the establishment of judicial power;
• Leg. Not. No. 177/1953, on the enforcement of judicial relief;
• Leg. Not. No. 176/1953 (and the amending Leg. Not. No. 179/1954) on the execution of judicial decrees;
• State Leg. Not. No. 176/1954, on Insolvency and Advocates’ fees; and,
• Leg. Not. No. 195/1963, for the Determination of Material Jurisdiction of Courts.

However, these procedural laws were, on the whole, not sufficiently detailed and a number of areas of procedural matters were also left uncovered. Soon, it was found out that the absence of a systematically organized and all encompassing procedural law had potentially jeopardized the administration of justice in general. The critical problem in this regard was the indefinitely extended delays that existed in the resolution of cases. It was not uncommon, for instance, for some litigation to take a number of years to be finally disposed of.

Consequently, with the prime purpose of resolving those procedural irregularities, and for the sake of proper application of the existing rules, the then Ministry of Justice, started working on a comprehensive procedural law. Accordingly, the incumbent Civil Procedural Code, the basic text of which was drafted by the Codification Department of the Ministry of Justice, was issued as a Decree in 1965. Moreover, upon its effectiveness, with a view to encoding every rules relating to civil matters under one and single document, all procedural rules concerning matters now covered by the Code, that were previously in force were totally repealed-irrespective of the inconsistencies with the Code.

With respect to the drafting process, and the material source of the Code, R. A. Seddler, the author of the original credible text of reference on the Ethiopian Civil Procedure, claims that neither a foreign code was incorporated as such, nor it was entirely modeled after one; rather, he argues, it was remarkably of Ethiopian origin.

However, some scholars do not agree with the assertion of the author. They contend that a close scrutiny of the provisions of the Code does indicate that the overwhelming majority of its provisions, if not all, are, in a similar fashion to the earlier procedural laws, were verbatim copies of the 1908 Indian Civil Procedure Code. Hence, they conclude that the latter could safely be considered as the basic material source of our Code of Procedure.

Depending on the purposes and the ultimate objectives underlying their very establishment the types of relationships they chiefly govern; the nature of the legal interests that would be affected at their violations and, hence, the parties who would have sufficient stake therein so as to invoke a justifiable controversy, laws may also be classified into ‘civil’ and ‘criminal’. Here, a point has to be made of the fact that the very phraseology of the two terms is a purposive employment. That is, the adjective ‘civil’ is used, in this context, in contradistinction to the word ‘criminal’ so as to signify the distinction between their respective areas of applications since the former deals with ‘civil’ matters whereas, the latter is concerned with ‘ criminal’ cases. Thus, as a natural corollary to this, there comes a need to identify the essential attributes of the two areas of laws; the nature of the legal interests each intend to preserve and the basis of their classification. A brief introductory remark is thus in order.

Legal rules, in the general parlance, have, to reiterate what has already been said herein above, the purpose of adjusting human relations at various levels so as to preserve and ensure   the wellbeing of the public at large. In spite of this, however, the ever-growing complexities and interdependability of human relations have made it clear that there are a good number of situations whereby the legal interests of others may adversely be affected and an eventual evil maybe inflicted there upon.

The inevitability of such unfortunate instances, in turn, calls for corresponding remedial measures if the societal harmony is to be meaningfully preserved. Accordingly, the infringements or violations of legal interests which are so recognized and protected by law -are considered to be legal wrongs thereby entailing liabilities and incurring legal sanctions upon the wrongdoer. These wrongs and the attending liabilities are, in turn, considered to have either private or public nature. The former are breaches of private rights, affecting individual interests; and are called civil injuries; whereas, the latter are violations of public interests, affecting the society as a whole; and, are called crimes.  Even though both of the wrongs do, in a way, affect the private individual, the nature of certain wrongs are conceived to be so grave enough to affect; and, hence, involve the public at large in the controversy as an eligible interested party-represented through the state.

From the preceding discussions, it can be understood that the major distinction between the two lies in the degree of gravity of evils involved in their eventual consequences-wherein the severe ones are placed in the category of crimes. Thus, crimes are more serious and sufficiently injurious to the public as compared to civil wrongs which affect only the private victim.

In sum, a crime is an offence against the community as a whole for which the offender is held criminally liable and faces penal sanctions. A civil wrong, on the other hand, is an infringement of the legal interests of private individuals and is redressable, principally, through reparation of damages. Moreover, consequential to the nature of the legal interests affected in a civil dispute, the cases are to be initiated and instituted in a court of law by the aggrieved party himself (or his legal pleader); wherein law enforcement organs are but to avail remedies for those who have valid claims. In other words, in a civil litigation, the judge is there, in the whole, to decide whether any legal right of the plaintiff is affected; and, if so, whether one is entitled to any relief. It thus follows that the main purpose of administration of civil justice is primarily to enforce rights; and, hence, a civil case may end up in an award of compensation to the individual victim or dismissal of the case.

On the other hand, penal prosecutions, being the concern of the public at large, have the final aim of ensuring the overall peace and security of the nation as a whole and, may result into an acquittal or conviction of the accused- carrying with it, primarily, an element of penal liability, namely, punishment.

At this juncture, it would be of help, or, at least, not out of place, to say few words about the jurisprudential grounds for the establishment of civil or criminal liability. The basis of remedial liability is to be found in the legal maxim “ubi jus ibi remedium”, which means, where there is a right, there must be a remedy –taking into consideration the bare act irrespective of the intention of the wrongdoer. On the other hand, the fundamental rule underlying penal liability is contained in the jural dictum “actus non facit reum, nisimens sirea”; which means that a mere act does not amount to crime unless it is accompanied by guilty mind. That is, one is held criminally liable only for those wrongful commissions or omissions for which he does either willfully or negligently. In other words, criminal liability invariably requires moral guilt (intention or negligence), plus, personal act or forbearance.

Generally speaking, all legal disputes before a court of law are thus either one of remedial or penal in nature; and, civil procedure is, needless to mention, a set of rules employed in the disposition of civil cases while criminal procedure is, by the same token, meant to govern the steps to be followed in penal prosecutions. These specific areas of implementation of the two procedural laws, on the one hand ,obviates the scope of application of civil procedure; and, on the other, brings into picture the need to draw distinctions between civil and criminal cases.

In this regard, with a view to differentiating civil cases from criminal ones, three parameters, inherently based on the jurisprudential background of the two areas of laws discussed above, are commonly employed.

The first factor relates to the 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.

Accordingly, parties involved in a civil case can appear in either of the following ways:

• “A physical person against another physical person”; or,
• “A physical person against a legal person “, or,
• “A legal person against another legal person”.

Talking of legal persons, it has to be mentioned that a state is not usually interested and, hence, involved in civil proceedings. Sometimes, however, the government may initiate a legal action and be a party to a civil case. This occurs when it acts in and exercises its private capacity.  A government is said to have acted in its private capacity when it engages in matters typically undertaken by individuals. Such is the case when, for instance, it runs business transactions, essentially for the purposes of deriving profit from such commercial activities.  In its public aspect, the functions of a government are, predominantly, dispensing justice; defending the state and its population from foreign aggression; maintaining domestic peace and order; regulating social, economic and political activities; and levying and collecting taxes to finance these activities.

But, if the government is engaged in commercial transactions and a dispute arises from such activities, the matter is considered to be a civil case and disposed of as such by the legal tribunals.  In criminal cases, nonetheless, the parties are commonly the state (represented by the public prosecutor, usually, in place of the plaintiff) and an individual suspect (defendant) – who has allegedly committed a penal offence. There are, however, some limited possibilities for a penal prosecution to arise between an individual victim and the alleged offender. These are limited to cases for ‘offences upon complaints’ -as the law calls them. That is why, a criminal case is generally considered to be one not between the individual victim (and / or his relatives) and the alleged offender as such, but, a matter between the state and the offender.

The purpose of initiating a law suit and the nature of the relief sought thereby is the other yardstick used to make a distinction between civil and criminal cases. The relief demanded in a civil case is mostly the payment of money or is usually to be assessed in monetary values. This may include, for instance, the payment of damages for an alleged injury sustained by the victim (plaintiff).

In some exceptional civil cases, however, a specific relief (personal performance) or forced performance of legal obligations, such as, restitution or delivery of goods or an injunction could also be demanded. Whatever the case may be, nonetheless, the relief sought in either of such civil litigations has nothing to do with the loss of personal liberty, or deprivation of life of the parties involved therein. Consequently, a court entertaining a civil litigation cannot, in principle, impose a sanction depriving a party of his personal liberty; such as, an order of detention; or, of his life as in the case of death penalty. Nonetheless, one, who either refuses to furnish security for appearance-while the case is pending- (Arts 147-150);or, fails, without good cause, to satisfy a decree(Art 389),  may exceptionally be detained in a civil prison for a period not exceeding six months.

On the other hand, the overall purposes and aims for initiating a criminal case is the  maintenance of peace and order of the general public by, primarily, punishing the law breaker. That is, the state initiates a criminal case for the purpose of securing obedience to its laws by inflicting punishment and/ or other measures on the criminal offender. A penal case, thus, aims at punishing an offender- which appears in the form of loss of liberty (as in imprisonment) or deprivation of life (as in capital punishment) and fine.

The third test is concerned with the availability of alternative dispute settling mechanism in either of the cases. Seen from this perspective, civil cases are subject to negotiations; and, hence, a compromise could be reached upon independently between the parties themselves. This, by implication, means that the parties are not under legal obligations to bring their civil disputes before a court of law and have them disposed of. They, rather, bring them to the attention of a legal tribunal if and when they fail to settle their disputes peacefully as between themselves.   At this juncture, however, one must take note of the fact that a certain single act may give rise to both a civil and a criminal case whereby the parties are at liberty to negotiate over the civil aspect of the matter.

To sum up, a civil case is one instituted primarily by an individual for the purpose of securing redress in monetary terms. Understandably, civil procedure is, thus, a method employed in the initiation and disposition of such civil disputes. Moreover, the parties are at liberty to negotiate over their disputes even while the case is still pending; and have it withdrawn from the court any time, but before a final judgment is rendered. In contrast to this, criminal cases are not subject to such alternative dispute settlement mechanisms. This means, the matter lies exclusively within and is done under the power of the prosecution officers irrespective of the negotiations and the agreement that may be made between the victim and the offender; unless, of course, the case falls within the category of ‘offences upon complaint’.

The Purpose of Civil Procedure Vis-à-vis Fundamental Procedural Rules

The desire for the betterment and furtherance of legal rules regarding the administration of civil justice, as described in its preambular statement, was, indeed, the prime factor that necessitated the enactment of the 1965 Civil Procedure Code of the Empire of Ethiopia; Otherwise, formally speaking in no other place, does the Code expressly sets forth the purpose it aspires to achieve and/ or the functions it intends to undertake towards the attainment of the goal designed to be served.

However, there are certain fundamental values and legitimate interests that procedural rules, in any legal system, aim to preserve and specific purposes that underlie their establishment. In other words, there are, more often than not, well-articulated ultimate objectives which they indispensably envisage to attain. Thus, in the general parlance, rules of civil procedure aim to ensure that disputes are handled by an impartial legal tribunal in a fair and orderly manner and as expeditiously and economically as possible. They are, in brief, meant to secure the just, speedy and inexpensive disposition of cases. More specifically; they aim at treating the parties to a law suit equally in enforcing their rights and the corresponding duties and laying down the ground for a smooth and orderly flow of litigation so as to make the decision within a reasonably fair and quick time.

Nevertheless, viewed from the mechanical aspect of civil litigations, procedure may be considered as a means to an end not an end in itself. As stated, earlier procedure essentially exists to ensure the proper enforcement of rights and duties arising from substantive laws .This, however, cannot be an irrefutable security of the proposition that: procedures are devoid of inbuilt, significant process-values of their own independent of the ultimate outcome they are designed to preserve.

Yet, in spite of the implications of such a contention, where a dispute is brought before a court of law, it is the function of the court to adjudicate the controversy in accordance with precisely ascertainable legal prescriptions. In order for a court to properly perform those tasks, it must operate under a well-defined and effective procedure.  Specifically stated, the claims of both parties must be heard in an orderly manner; the issues for decision must be distinctively presented to the court; and, the court’s judgment must timely be enforced.  Accordingly, the efficacy of the law of civil procedure is measured against and is considered valuable in so far as it is employed in such a way as to enable the court to make a fairly prompt dispensation of civil justice

If, in contrast to this, the application of the rules of civil procedure leads to costly  litigations and excessive delays in the disposition of the case, the overall objectives of the law for which it has been designed is said to have failed.

Yet, make note of the fact that, though ‘justice delayed…’, as the oft-mentioned maxim goes, is said ‘justice denied’, it is also equally true that ‘justice rushed is justice crushed!’, meaning, sketchy judgments rendered at the expense of justice in a manner that obstructs or destroys justice itself would amount to a miscarriage of justice potentially jeopardizing the administration of justice. Hence, a reasonable balance has to be struck between the two extremes.

To state the obvious, therefore, they must not become the problem themselves, curtailing the legitimate interests of the parties by being erroneously employed in a manner that destroys justice. Actually, speedy and inexpensive determination of a law suit depends on a number of other factors; such as, the number and nature (complexity) of filed cases Vis-à-vis the number of the courts (benches) engaged in the business; and, the number of the judges (justice officials) operating therein; as well as the degree of compliance with the governing rules and case flow management techniques.

Be that as it may, the purpose of procedural rules and spirit of the law must in all cases be borne in mind when dealing with procedural issues and their application must always be geared towards the attainment of this end. In case, the application of a given procedural rule gives rise to legal arguments, it should be interpreted and given effect in such a way that it ensures the purposes and intents contemplated by the law and thereby serve the public interest.

Talking of the practical implementation of the rules of Civil Procedure Code, there have always been irrefutable criticisms and a considerably wide ranging strain of dissatisfaction both in the spheres of the legal profession and the litigating public. In view of this, the generally held belief has been that the indeterminable number and complexities of the procedural steps followed in the litigation process; lack of procedural transparency; the great uncertainty of the governing rules and the irreconcilably divergent inconsistencies in the application of the law, are some of the distinguishing features of our judicial processes. In fact, it is not uncommon to see people voicing of their dissatisfaction with the overall judicial proceedings.

In this regard one can say that, nothing expresses their distress than the usually mentioned statement: “It is better to be sued and stand as a defendant in our courts than claiming one’s right through them as a plaintiff”. Victims may, at times, go even to the extent of relinquishing their claims than demanding them through the existing intricate procedures due mostly to the intolerably sluggish, inefficient, unpredictable and costly litigation processes.

One the other side of the story, however, there is a parallel argument that the crucial problem of the system does not as such lie with the law itself. This, of course, is without denying the fact that there are certain defects and/or lacuna in the laws which are, relatively speaking, tolerable to some extent. Rather, it is actually meant to emphasize and implicate the fact that the chief problem in this regard lies with the self-imposed, deep -rooted and rampant customary practices which are repugnant to and observably inconsistent with the dictates of the existing law. In line with this, to raise but few irregularities, the expressive phrase  “ both a torture to write and a torture to read” , which is usually told of  ‘ prolix judgments’ would exactly fit, mutatis – mutandis, to the tiresome pleading practices, by and large, employed in our judicial proceedings. Neither the litigants worry themselves of complying with the prescription of the law in preparing their pleadings; nor, sadly enough, the court officials are seriously engaged in and bother themselves of ensuring the formal sufficiency of the pleadings as they seem comfortable with (and, hence, evidently complicit in) the bad practices.

Moreover, there is no tradition of managing law suits separately Vis-à-vis their specific natures. Cases, which need summary or accelerated procedures, for instance, are, more often than not, treated in accordance with the cases requiring ordinary procedures involving going through all the stages of stringent regular proceedings. Most importantly, there does not seem to be sufficiently defined adjournment policy or a strictly consistent implementation of adjournment procedures. Had these not been the case, the cumulative effect of them would have immensely saved, among other things, the time and money of both the litigants and the courts; thereby, serving the very purpose the law is meant to achieve.

In connection, to this for instance, it has been reported that in one old case a suit regarding succession was instituted in the High Court of the place while it ought to have been filed in a court of first instance jurisdiction. The High Court, however, proceeded to adjudicate the merits of the case; and after having dealt with it for an extensively long period, gave its judgment, against which an appeal was lodged to the Supreme Court. However, the Supreme Court, on its part, having dwelt on the appeal for another lengthy period, quashed the proceedings of the rendition court and to the dismay of the parties, the reinstitution and retrial of the case-back to square one- after it had stayed for eight years of its stay in both courts, down in the court of the lowest grade where it should have been originally filed.

The reporter of the case, a noted lawyer in the area, however, strongly criticized the decision of the Supreme Court as absurd. That is, even though the order of the Supreme Court was, apparently observed, procedurally correct, it was applied in such a way that defeated the very purpose and spirit of the law; and, disregarded the public interest. Justifying his argument, he further stated that the error that arose from the procedural irregularity of non- compliance with regard to material jurisdiction was neither to affect the merits of the case (and was unlikely to prejudice the parties) nor the Supreme Court was expressly barred from handling cases of lower courts’ material jurisdiction. Thus, he further suggested that the Supreme Court having stated the procedural irregularity that had occurred therein should have gone on to hear the appeal and finally disposed of the case so that justice would properly be served.

However, this view was attacked by another commentator who upheld the order of the Supreme Court and, in his dissenting opinion, argued that, in so far as original jurisdiction is expressly vested in the courts of first instances, there was no need to deviate from and interpret the clear rules of the law so as to legitimatize the otherwise void judgment of the High Court under the guise of dispensation of justice.

Generally speaking, however, in the modern judicial litigations, there are some procedural principles of fundamental importance that form the foundation of and apply to all sorts of procedural laws ; be it civil, criminal or administrative, so as to ensure the proper dispensation of justice. The rules are well settled; they have received a wide range of application and embraced the whole notion of fair play (procedure) or due process and failures to comply with them, in principle, vitiates a decision and discredit the judgment as lopsided so as to constitute a miscarriage of justice. For instance, Proc. No.2/1942 (Proclamation for the Administration of Justice), declared that “… no court shall give effect to any existing law that is repugnant to the natural justice or humanity or which makes harsh or inequitable differentiation between our subjects and foreigners”. Of these cardinal procedural principles the most significant requirements considered to be the essential ingredients of justice are briefly discussed below.

 

Fair Hearing of a Suit/Impartiality of the Courts

There are certain factors against which impartiality of courts is evaluated or through which “fair hearing of a suit” is ensured. The following are the major ones.

A. Neutrality of the Presiding Judge

Any person who sits in judgment over the interests of others must be able to bear an impartial and objective mind to the question in the controversy; i.e. he/ she should impart justice without fear or favor. That is, the authority empowered to decide dispute between opposing parties must be one free from bias-by which is meant an operative prejudice ; i.e., predisposition towards one party or against the other without proper  regard to the true merits of the case. Bias or prejudice has been defined as a leaning, inclination, bent or predisposition towards one side or another or a particular result.

In its application to judicial proceedings, it represents a predisposition to decide an issue or cause in a particular way which does not leave the judicial mind open to conviction.  Bias is a condition or state of mind, an attitude or point of view, which sways or colors judgment and renders a judge unable to exercise his or her functions impartially in a particular way.

There are two attributive features of impartiality. The first feature is subjective impartiality, which refers to the impartiality of the judge himself and second is objective impartiality of the tribunal; i.e., the tribunal/ court or bench should provide the public with the guarantee that it operates impartially; i.e., conditions that avoids suspicions of impartiality.  In other words, the impartiality of the judge (the subjective one) alone is not sufficient- there must be conditions that warrant the impartiality of the court (the objective one). Of course impartiality is not only about just ends, it also is concerned about just means. Consequently, where a person who is entrusted with discharging such judicial function has, by his conduct, shown that he is interested, or appears to be interested in the case, that should disentitle him from acting in that capacity.

In this regard, there are some common sources of bias that should disqualify a person from acting as a judge.

I. Personal Bias

Although with the ever-growing interdependability of human relations, this factor has always been a matter of judicial interpretations; there are, in fact, a number of scenarios that may create a personal bias in the judges’ mind. It usually arises from friendship, relationship (either personal or professional) or hostility or animosity against either of the parties; or, negativity from personal prejudices; or even political rivalry.

II. Pecuniary Bias/ Bias as to the Subject- Matter.

[No one should be a judge in his own case!]

The rule against pecuniary bias originates from the legal maxim: “nemo judex in cause sua”, implying that no one should be a judge in his own case; and, it arises from monetary interests in the subject matter of the dispute, no matter how small or insignificant it might be. Where the judge himself is a party or has some connection with the litigation so as to constitute a legal interest that should disentitle him from being a ‘judge in his case’. Generally, even if in some cases there may be no real likelihood of bias of any sort, one may still be disqualified from assuming the judicial position for justice should not only be done, but must appear to be done to the litigating public . Thus, the requirement of the rule against bias (whose observance is recommended in the name of impartiality) goes to the extent of imposing the duty upon the presiding judges to withdraw themselves from the proceedings where it causes ( or, appears to cause )  the violation of the rule (see, for instance, Art 27 of Proc No 25/1996).

B. Right to be Heard: Nobody should be condemned unheard!

Any one against whom an action is taken or whose right or interest is, thereby  being affected should be aware of the information against him and should also be granted a reasonable opportunity to defend him self. The governing maxim in this case runs: ‘audi alter am par tem’; meaning ‘Hear the other side’– no body should be condemned unheard. Two of the facets of the maxim are:

1. I. Notice has to be given to the party before the proceedings start and,
2. II. A party has to be given an adequate and reasonable (effective) opportunity to explain (hearing).

Moreover, a party should have the opportunity to adduce all relevant evidence on which he relies and opportunity for rebuttal of evidence submitted against him.

C. Equality of Treatment Every one is prima-facie equal before the law

This principle implies equal subjection of all persons to the ordinary laws of the land as administered by the regular courts of law; and, law extends protection to everyone. Hence, each party to a law suit should be treated equally without discrimination of any sort (i.e., sexual, religious, status, ethnic origin, political affiliation, etc). This rule is so grand that it is considered an approximate synonym for and equated with the entire notion of justice.

Moreover, the degree to which procedural rules facilitate equal opportunities of participation for the litigants to influence the judgment may be taken as the most important criterion by which procedural fairness is evaluated. In sum, there are three fundamental pillars used as ultimate test of procedural fairness (equality) i.e., sine qua non for even, handed dispensation of justice:

I. Equipage Equality

This implies equality between the litigants in preparing their respective pleadings in getting legal aids (services) in searching for evidence etc, irrespective of their differences in income levels. If a party, for example, is allowed to amend or alter his pleading same opportunity should be granted, when the circumstance so requires, to the other party (as per Art 91 of the Cv. Pr. Cd.).

II. Rule Equality

Under similar circumstances, each party should be subjected to and protected by, similar rules. Same issues should be resolved through similar legal rules. If, for instance, by virtue   of Art 58 (a) of the Cv. Pr. Cd, representation is allowed for a ‘brother’, the same rule should apply for a ‘sister’s’ representation-though not expressly articulated therein.

III. Outcome Equality

Similar issues, under same grounds /circumstances, should have similar outcomes for example instance, in such instances wherein ‘class action’ is allowed-pursuant to Art 38 of the Cv. Pr. Cd. Generally, speaking like cases should be treated alike.

1.1.2.2. Public Hearing of a Suit

Justice must not only be done but must also be seen being done

‘Hearing’, here, refers to the consideration by the court of the allegations and defenses of either side before rendering the final decision. In principle when the court undertakes such a hearing, the public at large, must have access to the litigation process (court-room) without, of course, negating exceptional situations  of inherently confidential nature-wherein courts may consider cases in a closed chamber (“in Camera”). Accessibility to the media-which serves as a bridge between the two-is another important aspect of transparency. In this regard, Art 12 Sub-Art 1 of the FDRE Constitution, for instance, expressly stipulates that “the conduct of the government shall be transparent”.   Such an open court proceedings ensures transparency of judicial activities and secures the acceptability and reliability (credibility) of the judiciary. It is in this sense that it is often said that justice must not only be done, but must also be seen being done!

1.1.2.3. Independence of the Judiciary and Accountability of the Judges

Under this sub-section, there is an interplay of two distinctive but correlative principles usually employed in juxtaposition with one another: independence and accountability.

I. Judicial Independence

Judicial independence, as one of the cardinal elements of the rule of law, is commonly elevated to the status of and provided with constitutional protection. Moreover, it is ensured through and possesses dual facets: institutional and personal/functional.

A. Institutional Independence

Institutional or administrative independence which is usually related to the concept of separation of powers-is a mechanism through which, on the one hand, a balanced coordination and cooperation among the three branches of the government is ensured; and, at the same time-signifies the freeing of the judiciary from an unwarranted encroachment or influence of any sort, particularly, from the executive wing or official of the government. For practical purposes, however, institutional independence of the judiciary is essentially ensured through the following means.

a. Legal Basis

So as to firmly establish institutional independence of the judiciary, there has to be a legal stipulation to that effect-it has to be legally declared. Such a declaration would not only provide a legal guarantee to the institutional independence, it would also confirm the fact that it is not something to be granted or, at times, withheld, of personal will-but one with a legal foundation.(See, for instance, Arts 78&79 of the FDRE Constitution.)

b. Independence to Administer Internal Affairs

On this regard, it has been commented that the attributive feature of the history of administration of justice in Ethiopia had rampantly been a fusion of judicial power with executive functions. A single person had been both a governor (administrative official) and a judge entrusted with judicial power and, hence, there was not a sharp distinction between the executive branch and the judicial organ. Consequently, such blend of judicial and executive functions had not been without implications and far-reaching repercussions.

First and for most, the judiciary has never had a separate existence of its own. Thus, external pressure on and intrusion in the internal affairs of the judiciary has deep-roots; it seemed natural and is not even without some hangover to our very day. Secondly, inherent to such conception and the objective realities, the judiciary never survived the regime it established.

It was thus not surprising or uncommon to see every new regime coming up with its own version of the judiciary- reconstituting and resetting it up in tune with its missions and visions. For all practical purposes and intents, therefore, the judiciary was never designed to be an independent institution as the third branch of the government. Such unfortunate instances had left on the people the impression that the reputation and reliability of the judiciary was associated with all evils of nepotism and corrupt practices, was at its lowest ebb-up until the coming in effect of the federal form of government. Formally speaking, however, it was only Proc.No.323/1975 which marked the ever first move for the institutional independence of the judiciary; at least, in theory.

Such a conception would, not only irreparably erode the credibility of the judicial process, but also may even go to the extent of  seriously shaking the entire system of administration of justice and hampering the  irreplaceable role the judiciary plays in the economic activities of the country . To substantiate this proposition, for instance, one of the most important conditions that investors require is the existence of a credible and predictable administration of justice in the country. That is they would confidentially be encouraged to engage themselves in the business transactions if only they believe that they would be provided with reliable legal protection and that commercial disputes would efficiently be resolved through an independent judiciary. Ideally, and most importantly, therefore, the judiciary should be able to win the trust of the general public: as an impartial justice rendering forum. The judiciary can only be considered as a forum wherein litigants would confidentially resort to-with their justiciable matters-and seek justice from-if it constitutes essential qualities that a genuinely independent and efficient judicial organ possesses. The basic distinctive features of such an institution are: independency, accountability, efficiency and accessibility.

Generally speaking, however, institutional independence of the judiciary is, most importantly, ensured when:

ð  Such independence is spelt out in black and white by the law ( see, for instance, Art. 79 of the FDRE Constitution);

ð  Courts have full authority over their internal  and, financial affairs; such as, the power of drawing up and implementating the administrative budge and management of its personnel  ( See, Art 79 (6) of the FDRE Constitution and Art 16. of Proc .No.25/96) : and,

ð  Judges are appointed in such a way that guarantees their independence including, enjoyment of a secured tenure of office; i.e., up until the retirement age); and, their removal from their judicial duty is made in due process as sanctioned by law and in restrictive grounds so prescribed.                       Moreover, there have to be sufficiently clear and unambiguously defined rules on training and promotional opportunities of the judges; their transfers; decisions on disciplinary measures; suspension or removal from their duty etc before reaching the legally mandated term of office, Hence, such crucial issues as merit, experience, integrity and remuneration schemes determine the extent to which judges are independent from all sorts of internal and external influence including  of course, of the litigants themselves.

B. Functional/Personal Independence

Complete and meaningful independence of the judiciary, can be guaranteed if only it is supplemented by a functional or individual independence-which could either be internal or external. It is axiomatic that, apart from any system of appeal, a judge deciding a case does not act on any order or instruction of a third party- inside or outside the judiciary. Any hierarchical organization of the judiciary and any difference in grade or rank shall, in no way, interfere with the right of a judge to pronounce the judgment freely, uninfluenced by extrinsic considerations or influences. This means that, in the process of discharging their judicial tasks, judges should be free, internally, from their own colleagues and/or from the influence of superior courts; or, externally, from any kind of outside intrusion, fear or influence; and they should solely be bound and guided by the law. Moreover, they should not be subject to and held liable to any administrative measures for the sole fact of their judicial decisions which may be inconsistent with the needs and interests of officials.

II. Accountability of the Judges

However, it is a well established fact that if left unregulated and unguided power corrupts and is liable to be abused. This means that it may improperly be employed in a manner and/ or for the purpose not contemplated by the law-eroding the overriding values of human right and freedoms. This would undoubtedly breed an unfortunate consequence of undermining the cornerstone of the judiciary: acceptability and reliability. Thus, independence should not be left without restraint, there has to be credible means of safeguarding those cherished human values.

Independence of the judiciary should not be taken as a special privilege of the judge himself. In addition to availing workable normative and institutional protective measures, litigants should be offered reasonably adequate appellate opportunities; judicial proceedings have to be transparent and open to the general public; and, judges should be ready and bold enough to receive criticisms on their decisions or analysis of the issues. Independence does not mean and should not lead to irresponsibility and arbitrariness. It should not be manipulated as an incentive for laziness, corrupt motives, or for a tremendous degree of discretion so as to end up in the ‘rule of the judges’. The judge is thereto interpret and implement the law and the fundamental assumptions that underpin it to the best of his abilities and in accord once with the dictates of the spirits of the law.

Hence, the judiciary has to be amenable to the law. Judges are to be held responsible for their decisions. In other words, they are not allowed to act as free riders. There should be no ambiguity in the fact that the principle of independence indispensably presupposes the existence of the burden of accountability; one should not be exercised at the expense of the other i.e. a reasonable compromise has to be struck between the two.

1.1.2.4. Establishment of Courts by Law

In the spectrum of the fundamental principles of administration of justice, an item which may, at first glance, seem to be more of technical and not so much important; but, in reality, no less weighty than others, is the requisite for courts to be established by law. In a sense, the structures of the courts; their hierarchical relations and their comparable jurisdictions have to be explicitly constituted by law; and, only courts so established can assume judicial function.

On the other hand, inherent in this premise is that special or temporary bodies that take away judicial powers from regular courts; and by and large, do not follow procedures prescribed by law ought not to be set up. Judicial power should principally and solely be vested in the regular courts. This, of course, is without negating the existence of the so-called ‘administrative tribunals’-which are constituted by law and entrusted with some quasi-judicial (delegated) power-as the present day compelling necessity of the proper dispensation of justice so demands. . The causal impetus being the vast proliferation of governmental activities and infinitely varied complexities of an intensive industrialization which gave rise to   multifarious social problems–requiring, in turn, technical and expert knowledge; which, the ordinary courts are less equipped with, if not seriously lack. These bodies are, thus, as a matter of fact, off-springs of compromise between the executive and the judiciary and are set up to share the burden of the case loads of the courts which had almost been unbearably heavy- there by warranting their establishment.

The other reason d’etre that led to the creation of these bodies include:

• Cheaper justice : In a sense, it is less expensive to get justice through this process; i.e., the total cost that a litigant or an applicant has to incur in getting the disposal of his case than the one available through the mechanism of the ordinary courts
• Speedy justice: It abandons the intricate (and stringent) procedures attending the regular court proceedings–thereby immensely saves the time in the determination of the controversy; and,
• It can be manned by sharp and well-trained who individuals possessing special experience and sharp, and expertise in a particular field.

In the same vein, the FDRE Constitution, having established, as may normally be expected of a federative  constitutional order, dual sets of courts-with their respective jurisdictions-also provides for a three- layered court- structure, at the pinnacle of which sits the Federal and States  Supreme Courts.  Moreover, the Constitution makes two additional determinations: one is that ‘ad hoc’ or ‘special’ courts outside the regular court system are prohibited; and, that other religious or customary courts-whose power is limited to personal or family matters-may be established or given official recognition. Accordingly, the phrase “… institutions legally empowered to exercise judicial functions…” under Art 78(4) of the FDRE Constitution, is said to have been included to denote and encompass administrative tribunals such as the ‘Labor Relations Board’, ‘Tax Appeal Commission’, ‘Civil Service Tribunals’ and the ‘Board of Privatization Agency’.

However, legally speaking, there seem to be ambiguity and imprecision, with regard to ‘Kebele Social Courts’ operating in Addis Ababa, Dire Dawa and in the Regional States.  Though these organs are considered as judicial branch of the administrations- within the meaning of ‘tribunals’ in the just foregoing discussion- they are actually empowered with judicial function; i.e., they have taken the jurisdiction of regular courts to that extent and they do not necessarily follow a legally ascertained procedure in their processes . On that count, therefore, unless a broad interpretation of the provision is made so as to embrace them within the domain of Art 78 (4), they seem to be falling, in the strict sense of the law, within the category of courts whose establishment is categorically outlawed by the Constitution.

Furthermore, there is a stringent requisite expected of judicial bodies to explicitly forward justifiable legal grounds for their decisions. The purpose that such a formal requirement furnishes is twofold. In the first place, it serves as a practical guarantee against the possible arbitrariness of the judiciary; and, most importantly, the party against whom the decision is passed; and, hence, affected, would get an opportunity to know the legal basis of the court and be able to effectively exercise his right of appeal. What is more, certain legal actions may embrace varied and diverse subject-matter giving rise to intricate issues of law and fact.  In such instances, it may be practically insurmountable for a lay party to meaningfully defend himself for the sole fact of lacking the required legal expertise.

Hence, availing one with reasonably adequate legal assistance- as a right to legal representation- is becoming a pressing necessity for an even- handed dispensation of justice- as it ensures one of the requisites of procedural fairness: equipage equality. In the final analysis, no law can ever be meaningfully effective if it fails to reach and win the heart of those whom it intends to serve and does not respond to their essential needs, values and to natural justice. Particularly, if the judiciary is to secure the acceptance of the litigant public and ensure its reliability, it should satisfy the following ingredients considered as sine qua non for even handed dispensation of justice.

Among other things, justice should not only be done, but should manifestly and undoubtedly be seen being done; no one should be condemned unheard; no-one should be a judge in his own case; everybody should be considered prima facie equal before the law; like cases should be treated alike and should produce similar out comes.

Moreover, the judiciary should be both free from an unwarranted encroachment fear or influence of any sort from any source what so ever; and, should equally and correlatively be amenable to the law.  A proper and effective restraint has to be put there upon so as to safeguard the rule of law and the overriding values of human rights and freedoms.                                                       

Specifically stated, the following can be considered as minimum requirements of a fair trial. The parties should be afforded:

• Adequate notice of the nature and purpose of the proceedings;
• Adequate opportunity (time and space) to prepare their case; the right to present arguments and evidence; and meet opposing arguments and evidence, either in writing, orally or by both means;
• Counsel or other qualified persons of his or her choice during all stages of the proceedings;
• An interpreter; if s/he cannot understand or speak the language used in the courts;
• The right to be tried in his presence; to defend himself in person or through legal assistance of his own choice and to be informed, if he does not have legal assistance, of this right;
• The guarantee that his or her rights or obligations affected only by a decision based solely on evidence known to the parties to the proceedings;
• The opportunity to have a decision rendered without undue delay and to which the parties are provided adequate notice and the reason thereof;
• The right, except in the case of the final appellate court, to appeal or seek leave to appeal, decisions to a higher judicial tribunal;
• The right to have legal assistance assigned to him, in any case where the interests of justice so requires; and, without payment by him in any such case if he does not have sufficient means to pay for it;
• The right to examine, or have examined, the witnesses against him;
• The right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.