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Trial Of Suit

CHAPTER  2. TRIAL OF SUIT
PARAGRAPH 1. PROCEDURE AT FIRST HEARING

Art. 241- Examination of parties
(1)    At the first hearing of the suit, the court shall, after verifying the identify of the parties if they appear in person, read the pleadings and ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the statement of the other party and as are not expressly or by necessary implication admitted or denied by the party against whom they are made.
(2)    Any party appearing in person or present in court, or any person able to answer any material question relating to the suit by whom  such party or his pleader is accompanied,  may be examined orally by the court which may, if it thinks fit, put in the course of such examination questions suggested by either party
(3)      Where the pleader of any party who appears by a pleader or any such personas is referred to in sub-art, (2) refuses or is unable to answer any material question relating to the suit which the court considers that the party whom he represents ought to answer and is likely to be able to answer if examined in person, the court may adjourn the hearing to a future day and direct that such party shall appear in person on that day.
(4)    The substance of the examination held under this Article and any admission or denial made in the course thereof shall be reduced to writing by the court and shall form part of the record.

Art. 242- Judgment on admissions
Any party may, when the opposite party has given notice by his pleading or otherwise in writing that the admits the truth of the whole or any part of the case of the other party, or has made admissions of fact during he examination held under Art. 241, apply to the court for such judgment or order as he may be entitled to upon such admissions, without waiting for the determination of any other questions between the parties and the court may thereupon make such order or give such judgment as it thinks fit.

Art. 243- Saving
Nothing in the preceding Articles shall prevent the court at any later stage of the suit form calling upon any party to admit a fact or document and shall then record whether such party admits or refuses or neglects to admit the same, whereupon it may in accordance with Art. 241 give judgment or make such other order as a thinks fit.

Art. 244- Preliminary objections
(1)    Before proceeding wit the trial of the suit, the court shall decide such preliminary objections as may be taken by the parties.
(2)    The provisions Art. 245 shall apply where either party state that:
(a)    the court has no jurisdiction:
(b)    the subject-matter of the suit is res judicata;
(c)    the suit is pending in another court;
(d)    the other party is not qualified for acting in the proceedings
(e)    prior permission to sue has not been obtained, when this is required by law,
(f)    the suit is barred by limitation; or
(g)    the claim is to be settled by arbitration or has previously been made the subject of a compromise of scheme of arrangement.
(3)    Where there are several objections under this Article, they shall all be taken together and any objection not taken at the earliest possible opportunity shall be deemed to have been waived, unless the ground of objection is such as to prevent a valid judgment form being given.

Art. 245- Decision on objection
(1)    The court shall decide any objection taken under Art. 244 after hearing the opposite party and ordering the production of such evidence as may be necessary for the decision to be made.
(2)    Where the court is satisfied that the objection is well-founded, if shall, in the case of an objection under Art. 244 (1) (b) or (f), dismiss the suit and, in other cases, strike out the suit and/or make such other order as it thinks fit.
(3)    The striking out of the suit shall not of its own force preclude the institution of a fresh suit with respect to the same cause of action and the court shall, in appropriate cases, inform the plaintiff that he may  sue in the ocurt having jurisdiction or in the court in which the previously instituted suit is pending.
(4)    Where a suit is dismissed on the ground of want of jurisdiction the prescribed portion of the court fee paid on the filing of the statement of claim shall be refunded.
(5)    Any decision taken under this Article shall be recorded together with the reasons for such decision.

Art. 246- Framing of issues
(1)    After preliminary objections, if any, have been decided, the court shall ascertain upon what material propositions of fact or of law the parties are a variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(2)    Nothing in sub-art. (1) shall compel the court to frame and record issues where the defendant at the first hearing of the suit makes no defense.

Art. 247- Issues defined
(1)    Issues arise when a material proposition of fact or of la is affirmed by one party and denied by the other.
(2)    Material propositions are those propositions of fact or of law which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defense.
(3)    Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4)    Where issues both of fact and of law arise in the same suit, and the court is of opinion that the case or any party thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it think is fit, postpone the settlement of the issues of fact until after the issues of law have been determined.

Art. 248- Materials from which issues may be framed
The court may frame the issues from all or any of the following materials;
(a)    allegations made in the pleadings;
(b)    the contents of documents produced by either party; or
(c)    allegations made by the parties, or by any person present on their behalf, or made by the pleaders off such parties in the course of the examination held under Art.241.

Art. 249- Court may examine witness or documents before framing issues
Where the court considers that the issues can not be correctly framed without the examination of some person not before the court or without the inspection of some document of a kind other than that mentioned in art. 137 (1) but which the Court deems relevant, it may adjourn the framing of the issues to a future day, and may compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process.

Art. 250- Dispute as to amount of claim
Where the parties disagree as to the amount or value of the subject matter of the suit, the court may adjourn the framing of the issues to a future day and issue a commission under Art. 132 or 136.

Art. 251- Power to amend and strike out issues
(1)    The court may at any time before judgment amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
(2)    The court may also, at any time before judgment, strike out any issues that appear to it to be wrongly framed or introduced.

Art. 252- Questions of fact or law may be stated in form of issues
Where the parties agree as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and enter into an agreement in writing that, upon the finding of the court in the affirmative or the negative of such issue.
(a)    a sum of money specified in the agreement or to be ascertained by the court, or in such manner as the court may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to some  right or subject to some liability specified in the agreement: or
(b)    some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct: or
(c)    one or more of the parties shall do or abstain from doing some particular act specified in the agreement and relating to the matter in dispute.

Art. 253- Judgment on agreement executed in good faith
(1)    Where the court is satisfied, after making such inquiry as it deems proper.
(a)    that the agreement under Art. 252 was duly executed by the parties;
(b)    that they have a substantial interest  in the decision of such question as aforesaid; and
(c)    that the same is fit to be tried and decided.
It shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by the court.
(2)    Upon the finding or decision on such issue, the court shall pronounce judgment in terms of the agreement.

Art. 254- Parties not at issue
(1)    Where after preliminary objections, if any, have been decided, it appears that the parties are not at issue on any question of law or of fact, the court move at once pronounce judgment.
(2)    Where any one of several defendants is not at issue with the plaintiff on any question of law or of fact, the court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.

Art. 255- Parties at issue
(1)    Where the parties are at issue on some question of law or of fact, and issues have been framed by the court as hereinbefore provided, if the court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the court may proceed to determine such issues.
(2)    If the finding on the issues is sufficient for the decision, the court may pronounce judgment accordingly.

Art. 256- Failure to produce evidence
(1)    Where evidence which should have been produced in accordance with Art. 137 or 249 is not so produced due to the default of either party, the court may at once pronounce judgment or may, for good cause to be recorded, adjourn the hearing on such terms as to costs or otherwise as it thinks fit.
(2)    Where a suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the court, against the claims of any other person upon such instrument, the court may at once pronounce such judgment as it would have pronounced if the instrument had been produced.

PARAGRAPH 2. HEARING OF SUIT AND EXAMINAITON OF WITNESSES
Art. 257- Summonses

Where the court is satisfied that evidence other than that produced under Art. 249, if any, is required for the proper determination of the suit, it may adjourn the hearing of the suit to some future day and summon the witnesses whose appearance is required by wither party to appear on such day.

Art. 258- Opening of hearing
(1)    On the day fixed for the hearing of the suit, the plaintiff shall be entitled to being unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant shall be entitled to begin.
(2)    In courts consisting of three judges evidence may be produced in accordance with the provision of the following Articles not withstanding that only tow judges are present.

Art. 259- Statement and production of evidence
(1)    The party entitled to begin shall state his case and produce is evidence in  support of the issues which he is bound to prove.
(2)    The other party shall then state his case and produce his evidence and may address the court generally on the whole case.
(3)    The party beginning may then reply generally on the whole case.

Art. 260- Evidence where several issues
(1)    Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve  it by way of answer  to the evidence produced by the other party.
(2)    When evidence is reserved, the party beginning may produce such evidence after the other party has produced all his evidence, and  the other party may then reply specially on the evidence so produced by the party beginning but the latter party  shall then be entitled to reply generally on the whole case.

Art. 261- Manner of giving evidence
(1)    The party entitled to begin shall call his witnesses who, after taking an oath or affirmation in the form provided for by the third schedule to this Code, shall be examined-in-chief by such other party and may be re-examined by the party beginning.
(2)    If a party wishes to give evidence on his own behalf, he shall do so before calling his witness and he shall then for all practical purposes be deemed to be a witness.
(3)    Witnesses shall give evidence orally in open court, unless the court otherwise directs for good cause to be recorded.
(4)    The court may at any time put to a witness any question which appears necessary for the proper determination of the suit.

Art. 262- When deposition to be interpreted
Where evidence is to be given in a language other than Amharic, it shall be interpreted by the official interpreter or by such other person as the court may appoint for the purposes, which person shall before interpreting the evidence, take the oath or affirmation in the form provided for by the Third Schedule to this Code.

Art. 263- Form of questions
(1)    Questions put in examination-in-chief shall only relate to facts relevant to the issues to be decided and only to such facts of which the witness has direct or indirect knowledge.
(2)    No leading question shall be put to a witness without the permission of the court.
(3)    Questions put in cross-examination shall tend to show to the court what is erroneous, doubtful or untrue in the answers given in examination-in-chief. Leading questions may be put in cross examination.
(4)    No questions shall be put in re-examination except for the purpose of clarifying matters which have been raised in cross-examination.

Art. 264- Court may examine other persons
(1)    Any person present in court  may be required by the court to give evidence or to produce any document then and there in his possession or power.
(2)    Where the court considers it necessary at any time to examine any person other than a party to the suit and not called as a witness by a party to the suit, it may of its own motion summon such person as a witness to give evidence or to produce any document in his possession on a day to be fixed and may examine him as a witness or require him to produce such evidence.
(3)    On issuing a summons under sub-art. (2), the court may, where it considers that such person should have been called as a witness by either party for  the proper determination of the suit require the defaulting party to comply with the provisions of Art. 112 of make such order as to costs as it thinks fit.

Art. 265- Power to examine witness immediately
(1)    Where at any time  after the institution of a suit the court is satisfied that the evidence of, a witness should be taken immediately, it may, on the application  of any party or of the  witness, take the evidence of such witness in the manner hereinbefore provided and such evidence may then be read at any hearing of the suit.
(2)    Where such evidence is not taken forthwith and in the presence of the parties such notice, as the court thinks sufficient of the day fixed for the examination, shall be given to the parties.

Art. 266- Court may recall and examine witness
The court may at any stage of a suit recall any witness who has been examined and may put to him such questions as it thinks fit.

Art. 267- Refusal of party to give evidence
Where any party to a suit present in court refuses, without lawful excuse,  when required by the court, to give evidence or to produce any document then and there in his possession or power, the court may pronounce judgment against him  or make such order in relation to the suit as it thinks fit.
Art. 268- Rules as to witnesses to apply to parties summoned
Where any party to a suit is required to give evidence or to produces a document, the provisions as to witness shall apply to him as far as they are applicable.

Art. 269- Recording of evidence
(1)    The evidence of each witness shall start with his name, age, occupation and address and an indication that he has been sworn or affirmed.
(2)    The evidence of each witness shall be taken down in writing by the presiding judge or, it he is for some reason unable to records by a judge or clerk under his personal direction and superintendence.
(3)    The evidence shall be divided into examination in chief, cross-examination and re-examination with a note as to where the cross examination and re-examination begin and end.
(4)    The evidence shall ordinarily be taken down in the form of a narrative, but the presiding judge may in his discretion take down or cause to be taken down any particular question and answer.
(5)    When completed, the record shall be signed by the court.

Art. 270 Recording of objections
Where any question put to a witness is objected to by a party or his pleader, and the court allows the same to the put, the question, the answer, the objection and the name of the person making is shall be recorded together with the decision  of the court thereon.

 Art. 271- Evidence recorded by another court
(1)    No change in the constitution of any court prior to the conclusion of a suit shall after evidence recorded in such court before such change occurred and the suit shall be proceeded with on that evidence as recorded.
(2)    The provisions of sub-art. (1) shall apply by analogy to evidence taken in a suit transferred under Art. 31.

Art. 272- Power of court to inspect
The court may at any stage of the suit inspect any property or thing concerning which any questions arises and shall in such a case draw up a process-verbal of its proceedings which shall form part of the recorded.

Art. 273- Judgment
After the evidence has been concluded and the address and reply under Art, 259, if any. Have been made, the court shall give judgment