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Appeal Opposition And Revison

BOOK V. APPEAL, OPPOSITION AND REVISON
CHAPTER 1. APPEAL FROM JUDGEMENT

PARAGRAPH 1. GENERAL PROVISONS
Art. 320.- When appeal lies
(1)    Unless otherwise expressly provided for by this Code or any other law, the plaintiff or the defendant may, on the conditions laid down in this Chapter, appeal against any final judgments of a civil court.
(2)    Where appeal shall lies from a judgment or order, but remedy under this Code is available in the court which gave such judgment or made such order, no appeal may be lodged unless such remedy has been exhausted.
(3)    No appeal shall lie from any decision or order of any court on interlocutory matters, such as a decision or order on adjournments, preliminary objections, the admissibility or inadmissibility of oral or documentary evidence or permission to sue as a pauper, but any such decision or order may be raised as a ground of appeal when an appeal is made against the final judgment.
(4)    Nothing in sub-art. (3) shall prohibit an appeal from any order under any provision of this Code directing the arrest or detention of any person, the transfer of property from the hands of one party into hands of the other or refusing to grant an application for habeas corpus.

Art. 321.- Courts having appellate jurisdiction
(1)    An appeal shall lie form a judgment of:
(a)    a  Woreda Guezat Court in its original jurisdiction to the Awaradja Guezat court in whose area of jurisdiction such Woreda Guezat Court lies;
(b)    an Awradja Guezat Court in its original jurisdiction to the High Court.
(2)    Where on appeal an Awradja Guezat Court or the High Court varies the judgment appealed from, a second appeal shall lie;
(a)    from an Awradja Guezat Court to the High Court;
(b)    from the High Court to the Supreme Imperial Court.
Art. 322.- His Imperial Majesty’s Chilot
Nothing in Art. 321 shall prevent an appellant who has exhausted his rights of appeal from making a potion to His Imperial Majesty’s Chilot for a revision of the cause under Art. 361-370 .

Art. 323- Form and time of appeal
(1)    Every appeal shall be lodged by filing in the registry of the Appellate Court, up on payment of the prescribed court fee, a memorandum of appeal in the form provided by Art. 327 signed by the appellant or his pleader.
(2)    The memorandum of appeal shall be filed within sixty days of the judgment appealed from being delivered.
(3)    Where there are several appellants, they may file one memorandum of appeal which shall be signed by all of them or by their pleader on behalf of all of them.
(4)    There shall be kept in every court a book called the Register of Appeals where in the particulars of all appeals shall be entered and numbered in order of reception.

Art. 324.- Appeal filed out of time
(1)    The registrar shall refuse to accept a memorandum of appeal filed after the expiry of the period laid down in Art. 323 and shall inform the appellant that he may within ten days file an application for leave to appeal out of time/
(2)    Where a memorandum of appeal is filed out of time and is accompanied by an application for leave to appeal out of time, the registrar shall refuse to accept such memorandum and shall accept such application only;
Provided that, where such application is contained in the memorandum of appeal, the registrar shall refuse to accept such memorandum and inform the appellant that the application must be filed separately.
(3)    A note of a refusal under this Article shall be entered in the Register of Appeals together with the date of such refusal.

Art. 325.- Application for leave to appeal out of time
(1)    An application for leave to appeal out of time shall be writing and show cause why the appellant did not appeal within the period laid down in Art. 323.
(2)    The application shall be accompanied by such evidence as may be necessary to enable the court to decide whether the appellant was prevented for good cause from appealing.
(3)    Prior to deciding on the application, the court may hear the applicant and the respondent and make with regard to evidence such orders as it thinks fit.

Art. 326.- Decision on application
(1)    On being satisfied that the appellant was prevented for good cause form appealing, the court shall record an order granting the application and the appellant shall file his memorandum of appeal within ten days of such order.
(2)    There shall not be good cause within the meaning of sub-art.
(1)    Where the failure to appeal in time is due to the default of the appellant’s pleader.
(3) No appeal shall lie from a decision dismissing an application under this Article.
(4) A note of any application under this Article and of the decision thereon shall be entered in the Register of Appeals.

Art. 327.- Contents of memorandum of appeal
(1)    The memorandum of appeal shall contain;
(a)    the name and place of the court in which the appeal is filed;
(b)    the names and addresses of the appellant and the respondent;
(c)    the name of the court which gave the judgment appealed from, the date of such judgment and the number of the suit in which it was given;
(d)    the address within the jurisdiction of the court for service on the appellant;
(e)    the grounds of appeal; and
(f)    the nature of the relief sought.
(2)    Attached to the memorandum of appeal there shall be a certified copy  of the full record of the proceedings in which the judgment appealed from was given and of such judgment.
(3)    The appellant shall sate whether he bases his appeal entirely on the record of the original hearing and shall, where appropriate, attach to the memorandum of appeal an application for permission to call additional evidence, stating the nature of such evidence, the names and address of the witnesses to be called, if any, the reasons why such evidence was not produced in the court which gave the judgment appealed from and why it should be produced in the Appellate Court.
(4)    The memorandum of appeal shall be made in such number of copies as shall permit of one copy being served on each of the respondents.

Art. 328- Grounds of appeal
(1)    The memorandum of appeal shall set forth concisely and under distinct head the grounds of objection to the judgment appealed form without any arguments and such grounds shall be numbered consecutively.
(2)    The appellant shall not, except by leave of the court, urge or he heard in support of any ground of objection not set forth in the memorandum of appeal.
(3)    The Appellate Court in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under sub-art. (2).
Provided that the court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

Art. 329- New facts and arguments
(1)    Subject to the provisions of Art. 345 the appellant ay not raise any fact which was not in evidence in the court which gave the judgment appealed from.
(2)    The Appellate Court may allow amendment of the memorandum of appeal and arguments upon such terms of service of notice, costs or otherwise as it may think fit.

Art. 330.- Rejection or amendment of memorandum
(1)    Where the memorandum of appeal is not drawn up as provided by Art. 327 it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the court or be amended then and there.
(2)    Where the court rejects any memorandum, it shall record the reasons for such rejection and a note of the rejection shall be entered in the Register of Appeals.
(3)    Where a memorandum of appeal is amended, the court shall make a record of the amendment.

Art. 331.- Several plaintiffs or defendants
Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed form proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendant may appeal form the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

PARAGRAPH 2. STAY OF PROCEEDINGS AND OF EXECUTION
Art. 332.- Stay by appellate Court

An appeal shall, not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order nor shall execution of a decree be stayed by reason only of an appeal having been preferred form the decree, but the Appellate Court may for sufficient cause order stay of execution of such decree.

Art. 333.- Stay by court which passed the decree
Where an application is made for stay of execution  of an appealable decree or order before the expiration of the time allowed for appealing thereform, the court which passed the decree or made the order may on sufficient cause being shown order the execution to be stayed.

Art. 334.- Stay by President
Nothing  in Art. 332 shall prevent the President of the Appellate Court, and nothing in Art. 333 shall prevent the President of the court which passed the decree or made the order from granting a stay of execution for a period not exceeding fifteen days:
Provided, when the appeal is not heard or an additional order for stay is not made by the court before the expiry of such period, the execution officer shall execute the decree or order after the expiry of the said period.

Art. 335.- Conditions for ordering stay
(1)    No order for stay of execution shall be made under Arts.332-334 unless the court or President making it is satisfied:
(a)    that substantial loss may result to the party applying for stay of execution unless the order is made:
(b)    that the application has been made without unreasonable delay; and
(c)    that money has been deposited, security given or a surety produced by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
(2)    The application shall be decided after the parties have been heard: Provided that the court may, on an application supported by affidavit, make an ex parte order for stay of execution pending the hearing of such application.

Art. 336.- Security in case of order for execution
Where an order is made for the execution of a decree or order from which an appeal is pending, the Appellate Court may, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or order for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court.

PARAGRAPH  3. ADMISSION AND HEARING OF APPEAL
Art. 337.- Power to dismiss appeal without calling on respondent

Where the appellant states in his memorandum of appeal that he bases his appeal entirely on the record of the original hearing and does not apply for permission to call additional evidence, the Appellate Court may, after fixing a day for hearing the appellant or his pleader and hearing him accordingly on that day, dismiss such appeal without calling on the respondent to appear, if it thinks fit and aggress with the judgment appealed from.

Art. 338.- Day for hearing appeal
(1)    Unless the Appellate Court dismisses the appeal under Art. 337, it shall cause the memorandum of appeal to be served  on the respondent, fix a day for hearing the appeal and summon the respondent to appear and answer on such day, informing him that the appeal will be heard notwithstanding that he does not appear on such day.
(2)    Such day shall be fixed with reference to the current business of the court, the place of residence of the respondent, and the time necessary for the service of the memorandum of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day.

Art. 339.- Appellant to begin
(1)    On the day fixed for hearing the appeal, the appellant shall be heard in support  of the appeal.
(2)    The court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply.
(3)    Nothing in sub-art (2) shall prevent the court from requiring the respondent to submit a written reply to the memorandum of appeal and the appellant to submit a written counter-reply.
(4)    The reply and counter-reply shall be filed within such time as the court shall fix.

Art. 340.- Cross-objection
(1)    The respondent may, on payment of the prescribed court fee, take any cross-objection to the decree or order which he could have taken by way of appeal notwithstanding that he did not appeal from any part of the decree or 0oder.
(2)    A cross-objection shall be in the form of a memorandum of appeal and shall be field in the Appellate Court within one month from the date of service on him or his pleader of the summons issued under Art. 338 (1).
(3)    Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(4)    A cross-objection taken under this Article may, after such notice to the other parties as the court thinks fit, be heard and determined notwithstanding that the original appeal is not proceeded with.

Art. 341.- Remand of case by Appellate Court
(1)    Where the court fro whose decree or order an appeal is preferred has disposed of the suit upon a preliminary point and the decree or order is reversed in appeal, the Appellate Court may if it thinks, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded.
(2)    Where a case is remanded under sub-art. (1), the Appellate Court shall send a copy of its judgment and order to the court from whose decree or order the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit.
(3)    The evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

Art. 342.-Judgment on record
Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree or order the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

Art. 343.- Appellate Court may frame issues and refer them for trial
(1)    Where the court from whose decree or order the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues and refer the same for trial to the court from whose decree or order the appeal is preferred, and in such case shall direct such court to take the additional evidence required.
(2)    The court to which issues are referred shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore, which evidence and findings shall form part of the record in the suit.

Art. 344.- Objections to finding
(1)    Either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding returned under Art. 343 (2)
(2)    After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.

Art. 345.- Additional evidence
(1)    The parties to an appeal shall not be entitled to produce additional evidence in the Appellate Court.
Provided that, where:
(a)    the court from whose decree or order the appeal is preferred has refused to admit evidence which ought to have been admitted; or
(b)    the Appellate Court requires any document to be produced or any witness to be examined to enable it pronounce judgment, or for any other substantial cause,
the  Appellate  Court may, of its own motion or upon an application for permission to call additional evidence being made under Art. 327 (3), allow such evidence or document to be produced, or witness to be examined.
(2)    Whenever additional evidence is allowed to be produced by an Appellate Court, the court shall record the reason for its admission.

Art. 346.- Mode of taking additional evidence
Where additional evidence is allowed to be produced, the Appellate Court:
(a)    may either take such evidence, or direct the court from whose decree or order the is preferred, or any other subordinate court, court, to take such evidence and to send it when taken to the Appellate Court; and
(b)    shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

Art. 347.-Giving of judgment
The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the court from whose decree or order the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment.

Art. 348.- Power of court of appeal
(1)    The judgment may confirm, vary or reverse the decree or order from which the appeal is preferred.
(2)    Where the parties to the appeal agree as to the from which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.

Art. 349.- Application for restitution
(1)    Where and is so far as a decree or order is varied or reversed, the court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed.
(2)    For the purpose of sub-art. (1), the court may make any orders including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits which are properly consequential on such variation or reversal.
(3)    No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-art (1).