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Provisonal Remedies

CHAPTER 5. PROVISIONAL REMEDIES

PARAGRAPH 1. ARREST BEFORE JUDGMENT

Art. 147- Security for appearance

(1)    Where at any stage of suit, other than a suit regarding immovable property, the court is satisfied by affidavit or other evidence on oath that the defendant  or a plaintiff against whom a counter-claim has been lodged.
(a)    with intent to delay the plaintiff, or to avoid any process of the court or to obstruct or delay the execution of any decree that may be passed against him is about to abscond or leave, or has absconded or left, the local limits of the jurisdiction of the court, or has disposed of or removed his property or any part  thereof form such limits; or
(b)    is about to leave Ethiopia under circumstances affording reasonable probability that the plaintiff will nor may thereby be obstructed  or delayed in the execution of any decree that may be passed  against the defendant in the suit,
the court may issue a warrant to arrest the defendant and bring him before the court to show cause why be should-not furnish security for his appearance.
(3)    The defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant sc sum specified in the warrant as is sufficient to satisfy the plaintiff’s claim. Which sum shall be held in deposit by the court until the suit is disposed of or until the further order of the court.

Art. 148- Amount of security

(1)    Where the defendant fails to show such cause the court shall order him either to deposit in court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under Art. 147 (2)
(2)    Every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay such sum of money as the defendant may be ordered to pay in the suit.

Art. 149- Application by surety to be discharged

(1)    A surety for the appearance of a defendant may at any time apply to the court in which he becomes such surety to be discharged from his obligation.
(2)    On such application being made, the court shall summon the defendant to appear or , if it thinks fit, may issue a warrant for his arrest.
(3)    On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary surrender, the court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security.
(4)    Where the  defendant is unable to find fresh security, one court shall order him to deposit in court, if he is able to do so, money or other property sufficient to satisfy any decree that may be passed against him.

Art. 150- Refusal to furnish security

    In cases of refusal to comply with an order under Art 148 or 149 (4) the court may order the defendant to be detained in the civil prison until he complies with the order or until the decision of the suit or where a decree is passed against the defendant, until the decree has been satisfied:
Provided that the defendant may not be so detained for more than six months.

PARAGRAPH  2. ATTACHMENT BEFFORE JUDGMENT

Art. 151 . Security for production of property

(1)    Where, at any stage off a suit, the court is satisfied, by affidavit or otherwise, that the defendant or a plaintiff against whom a counter-claim has been lodged, with intent to obstruct or delay the execution of any decree that may be passed against him:
(a)    is about to dispose of the whole or any, part of his property, or
(b)    is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court,
the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required the said property or the value of the same, or such portion thereof as may be should not furnish security.
(2)    The plaintiff  shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3)    The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

Art. 152- Attachment of property.

(1)    Where the defendant fails to show cause why he should not furnish security, or fails to furnish  the security required, within the time fixed by the court, the court may order that the property specified , or such  portion thereof as appears sufficient to satisfy any decree which maybe passed in the suit, be attached.
(2)    Where the defendant shows such cause or furnishes the required security after the property specified or any portion of it has been attached, the court shall order the attachment to be with drawn, or make such other order as it thinks fit.

Art. 153- Making and effects of attachment

(1)    Unless otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution.
(2)    Attachment before judgment shall not affect the rights, existing prior to the attachment, or persons not parties to the suit, nor bar any person holding a decree against, the defendant from applying for the sale off the property under the attachment in execution of such decree.
(3)    Where any claim is preferred to property attached before judgment, such claim shall be investigated in the same manner as a  claim to property attached n execution of a decree for the payment of money.
(4)    Where an order is made for attachment before judgment, the court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.
(5)    Where property has been attached under this Article and a decree is subsequently passed  in  favour of the plaintiff,  It shall not be necessary upon an  application for execution of such decree to apply for a reattachment of the property.

PARAGRAPH  3. TEMPORARY INJUNCTIONS

Art. 154- When temporary injunction may be granted

    Where in any suit it is proved by affidavit or otherwise:
(a)    that any property in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b)    that the defendant threatens  or intends  to  remove or dispose of his property with a view to defraud his creditors.  The court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and the wasting, damaging, alienation, sale, removal or disposition  of  the property as the court thinks fit, until the disposal of the suit or further orders.

Art. 155- Injunction to restrain repetition or continuance of breach

(1)    In any suit for restraining the defendant from committing a breach of contract or other act prejudicial to the plaintiff,  whether compensation is claimed in the suit or not, the plaintiff may, at any time after the institution of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the  defendant from committing the  breach of contract or act complained of, any breach  of contract or act of a like kind arising out of the same contract or relating to the same property or right.
(2)    The court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as it thinks fit.
(3)    Nothing in this Article shall affect the provisos of At. 2121 of the Civil Code.

Art. 156- Failure to comply with injunction

(1)    In case of disobedience, or of breach  of any such terms, the court granting an injunction  may order the property of the person guilty of such disobedience or breach to be attached, and may also sentence such person for contempt of court in accordance with Art. 443 of the Penal Code.
(2)    No attachment under sub-art. (1)  shall remaining force for more than one year, at the end of which tie if the disobedience or breach continues, the property attached may be sold,  and out of the proceeds the court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitle thereto.

Art. 157- Notice to opposite party

The court shall in all cases, except where it appears that the object of granting the injection would be defeated by the delay, before granting an injection, direct notice of the application for the same to be given to the opposite party.

Art. 158- Order may be discharged, varied or set aside

    Any order for an injunction may be discharge, or varied, or set aside by the court, on application made thereto by any party dissatisfied with such order.
Art. 159- Injunction to body corporate binding on its officers
An injunction directed to a body corporate shall be binding on the corporation itself as well as on all the members and officers thereof whose personal action it seeks to restrain.

PARAGRAPH 4. INTERLOCUTROY ORDERS

Art. 160- Interim sale

    The court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property, being the  subjects matter of such suit, or attached before judgment in such suit, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable  to have sold at once.

Art. 161- Detention,  preservation and inspection

(1)    The court may,  on the application of any party to a suit, and on such terms as it thinks fit:
(a)    make an order for the detention, preservation or inspection  of any property which  is the subject-matter of such suit, or as to which any question may arise therein; and
(b)    for all or any of  the purposes aforesaid, authorize any person to enter upon or into any land or building in the possessions of any other party to such suit, or any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.
(2)    The provisions as to execution of process shall apply by analogy to persons authorized to enter under sub-art. (1)

Art. 162- Notice to opposite party

(1)    An application by the plaintiff for an order under Art. 160 or 161 may be made after notice to the defendant at any time after institution of the suit.
(2)    An application by the defendant for a like order may be made after notice  to the plaintiff at any time after appearance.

Art. 163- Suspension of sale

(1)    Where a party in possession of land or  tenure the subject-matter  of  a suit, neglects to pay the government revenue, or the rent due to the proprietor of the tenure, as the case may be, and such land or tenure  is consequently ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of he revenue  or rent due previously to the sale apply  to  the  court for the  suspension  off the  sale and the  court may  grant the application on such terms as  it thinks fit.
(2)    The court in its decree may award against the defaulter the amount paid under sub-art. (1), with interest thereon at such rate as the court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the court orders, in any adjustment of accounts which may be directed in the decree passed in the suit.

Art. 164- Deposit in court

Where the subject-matter of a suit is money or some other things capable of  delivery and any party thereto admits that he holds such money or other things as. A trustee for another party, or that it belongs or is due to another party, the court may order the same to be deposited in court or delivered to such last-named party with or without security, subject to the further direction of the court.

Art. 165- Other orders

Pending the decision of the suit, the court may at any time, on the application of any party of which notice shall be given to be other party,  make on such terms as it thinks fit such orders as it considers necessary or expedient  in the circumstances, including orders for the custody of a minor or the payment of alimonies.

PARAGRAPH  5. APPOINTMENT OF RECEIVERS

Art. 166- When receiver may be appointed

(1)    Where if appears to the court to be just and convenient, the court may by order:
(a)    appoint a receiver of any property, whether before or the after decree;
(b)    remove any person from the possession or custody of the property;
(c)    commit the same to the possession, custody or management of the receiver,
(d)    confer up on the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the court thinks fit.
(2) Where an application is made for an order under sub-art (1), the court shall have regard to the amount of the debt claimed by the applicant, to the amount which may possibly be obtained by the receiver and to the probable costs of his appointment and may before making the appointment, direct such inquires on these or other matters to be made as it thinks fit.

Art. 167- Remuneration

The court may by general or special orders fix the amount to be paid as remuneration for the services of the receiver.

Art. 168- Duties

Every receiver appointed under Art 166 shall:
(a)    furnish such security, if any, as the court thinks fit, duly to account for what he shall receiver in respect of the property,
(b)    submit is accounts at such periods and in such form  as the court directs:
(c)    pay the amount due from him s the court directs; and be
(d)    be responsible for any loss occasioned to the property by his willful  or gross negligence.

Art. 169- Enforcement of receiver’s duties

Where a receiver:
(a)    fails to submit his accounts at such periods and  in such from as the court directs:
(b)    occasions loss to the property by his  willful default or gross negligence, the court may direct his property to be attached and sold and may apply the proceeds to make god any amount found to be due from him or any loss occasioned by him, and shall pay the balance, if  any, to the receiver.

PARAGRAPH  6. AFFIXING OF SEALS AND MAKING OF INVENTORIES

Art. 170. Principle

(1)    Where for the purpose of preserving property which may be or is the subject of proceedings in court, the court considers that seals should be affixed the provisions of is Paragraph shall apply.
(2)    No seal when affixed shall be removed without an order of the court for which any interested party may apply.

Art. 171.- Application for affixing of seals

(1)    An application for the affixing of seals may be made to any court by any person who satisfies the court, by affidavit or otherwise, that property which may be the subject of proceedings in court should be preserved.
(2)    An order for the affixing of seals may be made at any stage of proceedings in court by the court of its own motion or on application.
(3)    On making an order for the affixing of seals, the court shall appoint such person (hereinafter referred to as the official sealer) as it thinks fit to carry out such order.

Art. 172.- Record

(1)    The official sealer after having affixed seals in accordance with the order of the court, shall prepare a dated and signed record showing.
(a)    the order of the court and the date thereof;
(b)    a list of the property to which seals have been affixed and that place where such property is to be found;
(c)    a list of the articles to be sealed which can not be found and
(d)    the name of the caretaker, it any, in charge of the  premises where the sealing has taken place.
(2)    The official sealer shall hand over to the registrar of the court any keys belonging to any locks he has sealed.

Art. 173- No seals to be affixed on certain property

(1)    No seals shall be affixed to:
(a)    perishable goods;
(b)    any property the affixing of seals to which might  cause deterioration;
(c)    any property  required for the use of a party to the suit specifically exempted from sealing by the court.
(2) Where any property is committed to the use of any person under sub-art (1), (c), the official sealer shall make and deposit in court an inventory of all such property.

Art. 174- Wills and other documents

(1) Where the official sealer finds wills, sealed papers or other documents he shall make a list of such papers and shall place them in a sealed bundle and forward such list to the court for instructions.
(2) The court shall make such order for the disposal of such documents as it thinks fit.

Art. 175- Removal of seals

(1) Where as application for the removal of seals is made or where the court of its own motion proposes to order such removal, all interested parties shall be informed of the day when the other will be made if they appear they may be heard, Any objection shall be considered by the court which shall, having heard the parties, give its decision forthwith.
(2) When an order for the removal of seals has been made the official sealer shall remove the seals and shall make a written dated and signed report to the court giving particulars of all property which he has unsealed.

Art. 176- Making of inventory

(1)    The court may, on the conditions laid down in Art. 171, order that an inventory of property, which is or may be the subject of proceedings in court, be made by such person (hereinafter referred to as the official record) as it thinks fit to appoint.
(2)    The official recorder shall, in the presence of not less than tow independent  witnesses; prepare an inventor of the property specified in the order of the court, containing:
(a)    a reference to the order of the court; and
(b)    an accurate description of each articles entered in the inventory and the  estimated value thereof.
(3) Where the court so orders, the estimation of value shall be made by an expert appointed under Art. 136, whose report, dated and signed, shall be  attached as an annex to the official recorder’s report.
(4) The report of the official recorder, dated and signed, shall be forwarded to the court and, after being registered by the registrar of the court in a special inventory register, shall form part of the record of the case.

PARAGRAPH  7. HABEAS CORPUS

Art. 177- Application for habeas corpus

(1)    An application for habeas corpus may be made to the High Court by any person restrained otherwise than in pursuance of an order duly made under this Code or the Criminal Procedure Code.
(2)    The application shall be accompanied by an affidavit by the applicant stating the name of the person under whose custody he is, the nature and place of the restraint and the names of the persons, if any, who can testify to the facts alleged in the application.
(3)    Where the person restrained if for whatever reason unable to make the application and/or affidavit himself, the same maybe made by any person on his behalf and the affidavit shall then state the name of the person restrained and that he is unable to make the application and/or affidavit himself.

Art. 178- Summons to appear

(1)    On receiving an application under Art 177, the High Court that forth with issue a summons directing the person under whose custody the restrained person is to appear before the High Court together with the latter person on such day as shall be fixed in the summons and to show cause why the person restrained should not be released.
(2)    Summonses shall also be issued for the appearance of such persons as may be able to testify to the facts alleged inn the application.

Art. 179- Hearing of and decision on, application

(1)    On the day fixed in the summons issued under Art. 178, the court shall investigate the truth or otherwise of the facts alleged in application and may make with regard to evidence such orders as it thinks fit.
(2)    Where the court is satisfied that the restraint is unlawful, it shall order the immediate release of the person restrained and the person under whose custody  the person restrained is shall not withstanding any other orders or instructions to the contrary by any person or authority forthwith release that person.
(3)    Where the court is in doubt as to the truth or otherwise of the facts alleged in the application, it may order the release of the person restrained on his executing a bond, with or without sureties, that he will appear in any court on any future day on which his appearance may be required and comply with such other order as the court ordering release may think fit to make in the circumstances.