02 March 2012 Written by  Alem Abraha and Tafesse Habte

Salient Features of the 1965 Civil Procedure Code

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

Last modified on Wednesday, 02 May 2012 13:05