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Parties To Suits

BOOK II. PARTIES TO SUITS

Art. 32- Scope of application

(1)    The provisions of the Book shall apply in any proceeding under this Code.
(2)    In applying the provisions of this Book to appeals, to so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.

CHAPTER 1. GENERAL PROVISIONS
 

Art. 33 – Qualifications

(1)    Any person capable under the law may be a party to a suit.
(2)    No person may be a plaintiff unless he has a vested interest in the subject-matter of the suit.
(3)    No person may be a defendant unless the plaintiff alleges some claim against him.

Art. 34- Representation

(1)    A person under disability may sue or be sued through his legal representative.
(2)    Where a person under disability is not represented by his legal representative, the proceedings shall be stayed until a legal representative is appointed in  accordance with the relevant provisions of the Civil Code.
(3)    Without prejudice to the provisions of the following Articles, bodies corporate may be represented in accordance with the relevant provisions of the Civil or Commercial Code, as the case may be.
(4)    Representation in maritime matters shall be as provided for by the Maritime Code.
(5)    In all suits concerning property administered by a trustee, executor or administrator,  where the contention is between the persons beneficially interested in such property and a third  person, the trustee, executer or administrator shall represent the persons so interested, and it shall not be necessary to make them parties to the suit unless the court otherwise directs.

Art. 35- Joinder o f  plaintiffs

All persons in whom any right to relief in respect of or arising from the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, may be joined in one action as plaintiffs where, is such persons borough separate actins any common question of law or fact would arise.

Art. 36- Joinder of defendants

(1) All persons against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, may be joined as defendants where. If separate suits were brought against such person, any common question of law or fact would arise.
(2)    The plaintiff may join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on the same contract, including parties to negotiable instruments.
(3)    Where a suit concerns property administered by several trustees, executors or administrators, all such persons shall be made parties to a suit against one or more of them, provided that trustees, executors or administrators outside Ethiopia need not be made parties unless otherwise ordered by the court on an application being made under Art 43.
(4)    Where the plaintiff sues for the recovery of immovable property free of occupants, such occupants, whatever their title, shall all be made parties to the suit.
(5)    Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants so that the question as to which, if any, of the defendants is liable, and so what extent, may be determined as between all the parties.
(6)    It shall not be necessary that every defendant be interested as to all the relief claimed in any suit against him.

Art. 37- Judgment for or against one or more parties judgment may be given:

(a)    for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to;
(b)    against such one or more of the defendants as may be found to be liable, according to their respective liabilities.

Art. 38- Representative party

(1)    Where several persons have the same interest in a suit, one or more of such persons may sue or be sued or may be authorized by the court to defend on behalf or for the benefit of all persons so interested on satisfying the court that all persons so interested agree to be so represented.
(2)    Any person on whose behalf or for whose benefits a suit is instituted or defended under sub-art. (1) may apply to the court to be made a party to such suit.
Art 39.- Misjoinder and nonjoinder
(1)    No suit shall be defeated by reason only of the misjoinder or nonjoinder of parties and the court may in every suit deal with the matter in dispute so far as regards the rights and interest of the parties actually before it.
(2)    Any objection on the ground of misijoinder or nonjoindr of parties shall be raised at the earliest possible opportunity and any objection not so raised shall be deemed to have been waived.

 Art.40.- Substitution or addition of parties

(1)    W here a suit has been institute in the name of a wrong person as plaintiff  or it is doubtful whether it has been instituted in the name of the right plaintiff, the court, on being satisfied that the suit has been instituted though a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do, may at any time order that any other person be substituted or added as plaintiff on such terms as it shall fix.
(2)    The court may at any time, of its own motion or on the application of either party and on such terms as it shall fix, order that the name of any party improperly joined as plaintiff or defendant be struck out and that there be added the name of any person who ought to have been joined as plaintiff or defendant or whose presence is necessary for the determination of all the questions involved in the suit:
Provided that no person shall be added as plaintiff without him consent.
(3)    Where a defendant is added, the statement of claim shall, unless the court otherwise directs, be amended accordingly and a copy thereof shall thereupon be served on the new defendant and, if the court thinks fit, on the original defendant.
(4)    Nothing in this Article shall prevent a third party at any time before judgment from substituting himself for either party with the consent of such party on showing that he is qualified under the provisions of Art. 33.
(5)    Where it appears to the court at the hearing of an appeal that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the court may adjourn the hearing and direct that such person be made a respondent.

Art. 41.- Intervention of third party

(1)    Any person interested in a suit between other parties may intervene therein at any time before judgment.
(2)    The intervention shall be made by the filing of a separate statement containing all the grounds which justify such person in intervening.
(3)    Where the intervention is allowed, the proceedings shall be stayed until the parties have been served with a copy of the statement of the intervening party.
(4)    Where service is not effected for a reason attributable to the intervening party, he shall be deemed to have withdrawn his statement.
(5)    Nothing in this Article shall affect the provisions of Arts. 293-299.

Art. 42.- Intervention of public prosecutor

The public prosecutor shall intervene whenever his intervention is required by law, in particular in cases relating to:
(a)    civil status (Arts. 116, 122 and 156 Civil Code);
(b)    incapacity (Arts. 234,254 and 377 Civil Code);
(c)    marriage (Arts. 592, 608, 609 and 612 Civil Code);
(d)    bankruptcy (Arts. 975, 978, 980, 1004 and 1017 Commercial Code).

Art. 43- Joinder of third party

(1)    Where a defendant claims to be entitled to contribution or indemnity from any person not a party to the suit, he may in his statement of defense show cause why the third party is liable to make contribution or indemnity and the extent of such liability and apply to the court for an order that such person be made a party to the suit.
(2)    Where the application is allowed, the third party shall be served with a copy of the statement of claim and defense and, upon being summoned to appear on such day as the court shall fix, shall be deemed to be in the same position as a defendant.
(3)    The claim as between the defendant and the third party shall be tried in such manner as the court shall direct.
(4)     The provisions of this Article shall apply by analogy where a defendant claims to be entitled to contribution or indemnity from any other defendant in the suit:
Provided that nothing in this sub-article shall prejudice the plaintiff against any defendant in the suit.

Art. 44- Suing partners in name of firm

Two or more persons claiming or being liable as partners and carrying on business in Ethiopia may sue or be sued in the name of the firm, if any, of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were at the said time partners in such firm, to be furnished and verified in such manner as the court may direct.

Art. 45- Disclosure of partners names

(1)    Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and place of residence of all the persons constituting the firm on whose behalf the suit is instituted.
(2)     Where the plaintiffs or their pleader fail to comply with any demand made under sub-art.(1), all proceedings in the suit may, upon an application for that purposes, be stayed upon such terms as the court may direct.
(3)    Where the names of the partners are declared in accordance with sub-art. (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the statement of claim:
Provided that all the proceedings shall nevertheless continue in the name of the firm

Art. 46.- Suing person carrying on business in name other than his own.

Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name and any provision in this Code which applies to suits by or against firms and persons carrying on business in a name other than their own shall apply so far as the nature of the case will permit.

Art. 47.- Suits between co-partners

Any provision in this Code which applies to suits by or against firms and persons carrying on business in a name other than their own shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common.