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Appeals and Applications to Set Aside

BOOK V
Appeals and Applications to Set Aside
Judgments given in Default
TITLE 1
Appeal

Art.181-Principle

(1)    An appeal shall lie in accordance with the provisions of his Book from a judgment of a criminal court whether it be a judgment convicting, discharging or acquitting an accused person.
(2)    A second appeal shall lie in accordance with the provisions of Art. 182.

Art.182- Courts having appellate jurisdiction.

(1)    An appeal shall lie from the decision of:
(a)    A Woreda Court to the Awradja Court in whose area of jurisdiction  such Woreda Court lies.
(b)    An Awradja Court to the High Court:
(c)    The High Court to the Supreme Imperial Court.
(2)A second appeal shall lie from a decision of:
(a) the Awradja Court in its appellate jurisdiction to the High Court:
(b) the High Court in its appellate jurisdiction to the supreme Imperial Court.

Art.183-Applicaton to His Imperial Majesty’s Chilot.

(1)    Nothing in Art.182 shall prevent an appellant who has exhausted his rights of appeal under Art.182 from applying to His Imperial Majest’s Chilot for a review of the case.
(2)    The application to His Imperial Majesty Chilot shall be accompanied by:
(a)    A copy of the judgment or judgment with which the applicant is dissatisfied; and
(b)    A reasoned memorandum setting forth clearly and concisely the reasons on which the applicant bases his request for a review.

Art.184-No interlocutor appeals.

No interlocutory appeal shall lie from a decision of the court:
(a)    Granting or refusing an adjournment under Art.94:0r
(b)    Regarding an objection under Art.131;or
(c)    Regarding the admissibility or non-admissibility of evidence under Art.146.but any such decision may form the subject of a ground of appeal where an appeal is lodged against conviction, discharge or acquittal.

Art.185-Appeal against conviction and sentence.

(1)    A convicted person may appeal against his conviction sentence; Provided that no appeal may be lodged by a convicted person who has pleaded guilty and has been convicted on such plea except as to the extent or the legality of the sentence.
(2)    The public prosecutor may appeal against a judgment of acquittal,  discharge or on the ground of inadequacy of sentence.
(3)    Where a prosecution is conducted by a private prosecutor the private prosecutor may appeal in the same manner as is provided in sub-article (2).
(4)    An appeal by a young person or by an incapable person shall be through his legal representative.

Art.186-Appeal where injured party claims compensation

(1)    Where the court refuses to grant compensation under Art.100 penal Code the injured party may appeal against such decision.
(2)    Where the court grants compensation the accused may appeal against such decision.
(3)    An appeal shall lie against the amount of compensation awarded in accordance with the provisions of Art.2153 Civil Code.
(4)    An appeal under this Article shall be heard by the criminal court of appeal where there is an appeal against conviction or sentence, but shall be heard by the civil court of appeal where there is no appeal against conviction or sentence or such appeal is withdrawn.

Art.187.Notice of appeal and memorandum of appeal.

(1)    Notice of appeal against a judgment shall be given by the appellant or his advocate within fifteen days of the delivery of the judgment appealed against. On receipt of such notice of appeal, the registrar shall cause the judgment appealed against to be copied and handed to the appellant or his advocate and where the appellant is in custody the copy shall be sent to the superintendent of the prison in which he is confined for service on the appellant. Such copy shall be dated when completed and the date on which it is handed to the appellant or his advocate or is sent to the superintendent of the prison shall be certified by the registrar .
(2)    The memorandum of appeal under Art, 189 shall be filed within thirty days of the receipt of the copy of the decision appealed against. The notice and memorandum of appeal shall be field in the registry of the court which gave the judgment appealed against.
(3)    Where the appellant is in custody the superintendent of the prison in which he is confined shall forward the memorandum of appeal without delay to the curt against whose decision an appeal is made.
(4)    A copy of the memorandum of appeal shall be served on the respondent to the appeal.

Art.188-Stay of execution.

(1)    Where a convicted person has given notice of appeal no sentence of flogging shall be  carried out until the appeal has been heard or abandoned by the appellant.
(2)    Where an accused person is released on bail pending the hearing of his appeal the sentence of imprisonment shall not commence until the court of appeal delivers its judgment.
(3)    Any measures which have been ordered by the court against whose judgment an appeal has been filed shall be carried out notwithstanding an appeal.
(4)    There shall be no stay of execution in respect of the payment of compensation or costs.
(5)    An application for stay of execution  may be make to the court of appeal at any time before the appeal is heard or at the hearing of the appeal.

Art.189-Content of memorandum of appeal.

(1)    The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the judgment appealed against without and arguments and such ground shall  be numbered consecutively. The memorandum shall be accompanied by a copy of the judgment appealed against. The memorandum of appeal shall state the nature of the relief that is sought.
(2)    The memorandum of appeal shall be signed by the appellant and his advocate, if any.

Art.190-Record and exhibits to be forwarded to court of appeal.

(1)    On receipt of the memorandum of appeal the court against whose judgment an appeal has been filed shall prepare without delay within fifteen days  a copy of the record and forward it together with the appeal record (if any ), the notice and the memorandum of appeal and all exhibits to the court of appeal.
(2)    The court of appeal may dispense with the making of a copy of the record where the making of such copy may delay unduly the hearing of the appeal and the Court may order the original file to be produced.

Art.191- Application for leave to appeal out of time.

(1)    Where notice of appeal or a memorandum on appeal is filed out of time, the court against whose judgment the appeal is filed shall refuse to accept such notice or memorandum and shall require the person submitting such notice or memorandum to apply in writing to the court of appeal for leave to appeal out of time.
(2)    The application shall state clearly the reasons why the appeal should be heard out of time and the reasons which occasioned the delay.
(3)    The court of appeal shall not give leave to appeal out of time unless it is satisfied that the delay was occasioned by the default of the applicant.
(4)    Where leave to appeal out of time is given the court of appeal shall fix the date by which the memorandum of appeal is to be filed.

  Art.192-Hearing

         The president of the court of appeal shall fix a day on which the appeal will be heard and the parties to the appeal shall be notified. The appellant shall open the appeal, the respondent shall reply and the appellant shall be entitled to reply.

Art.193-Absence of a party to the appeal.

(1)    Where the appellant or his advocate is not present on the day fixed for the appeal and he has been notified of the hearing date, the appeal shall be struck out:
Provided that the appeal may be restored to the list where the appellant or his advocate can show that he was not present owing to circumstances beyond his control.
(2)    Where the respondent or his advocate is not present the appeal shall proceed in his absence.

Art:194-Additional evidence.

(1)    In dealing with an appeal the court of appeal, if it thinks additional evidence is necessary , shall record its reasons and may take such evidence itself.
(2)    Evidence taken in pursuance of sub-art (1) shall be taken as if it were evidence taken at the trial in the court of first instance.

 Art.195- Power of court of appeal.

(1)    At the hearing of an appeal the court of appeal shall dismiss the appeal where there is no sufficient ground for interference.
(2)    Where it consider that there is sufficient ground for interference, the court of appeal may:
(a)    On an appeal from an order of acquittal or discharge reverse such  order and direct that the accused be retried by a court of competent jurisdiction or find him guilty and sentence him according to law; or
(b)    On an appeal from conviction and sentence:
(i) reverse the finding and sentence and acquit the accused: or
(ii) with or without altering the finding, maintain, increase or reduce the sentence:
(C) on an appeal from conviction only reverse the finding and sentence and acquit the accused;
(d) on an appeal from sentence the conviction but alters the sentence or vice versa a second appeal shall lie only in respect of the conviction or sentence which has been altered.

Art.196-where one appeal in case concerning several convicted persons.

(1)    Where a court of appeal hears an appeal which concerns several convicted persons but only one of them appeals, it may direct that its judgment be applied to those other accused as though they had appealed where:
(a)    The judgment is to the benefit of the appellant, and
(b)    Had the accused appealed they would have benefitted similarly,
(2)    No order made to the prejudice of an appellant may be applied to a person who has not appealed.

TITLE II
Application to Set Aside Judgment given in Default

Art.197-Court having jurisdiction.

An application to set aside a judgment given in default may be made by the person sentenced in his absence to the court  which passed the judgment.

Art.198- Time and form of application.

An application under this Title shall be made within thirty days from the date on which the applicant became aware of the judgment given in his absence and shall contain the reasons on which he bases his application.

Art.199- Grounds for granting application.

No application under this Title shall be granted unless the applicant can show:
(a)    That he has no received a summons to appear: or
(b)    That he was prevented by force majeure from appearing in person or by advocate.

Art.200- Action upon filing of application.

(1)    on the filing of the application, a copy thereof shall be sent to the public prosecutor and the applicant and the public prosecutor shall be informed of the hearing date.
(2)    Where the applicant, having been duly summoned, fails to appear on the hearing date, the application shall be dismissed.

Art-201-Hearing

(1)    The applicant or his advocate shall speak in support of the application and the public prosecutor shall reply. The applicant shall have the right to reply.
(2)    The court shall then give its decision on the application.