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Ethiopian Civil Procedure Law- Compromise and withdrawal
Compromise and withdrawal
The fact that the issue will have been formulated prior to trial may have the effect of persuading a party that he is not likely to prevail if the case comes to trial. The plaintiff might then decide that he wishes to discontinue the suit. Or, the parties might decide to compromise the case. This may happen not only before trial is conducted, but it may also be raised after trial is conducted and before judgment is rendered. Following this we will deal with issues related with Compromise & withdrawal.
Compromise is basically an agreement reached by parties to a dispute. Parties who are involved in dispute could settle it by agreement before taking the case to court or after the case is taken to court and before judgment is rendered.
Art. 3307 of the civil code defines compromise as a contract whereby the parties, through mutual concessions, terminate an existing dispute or prevent a dispute arising in the future.
Art. 274(1) of the civil procedure code also defines compromise as follows:
The parties may by compromise agreement relating to all or some of the matters in issue terminate a dispute with respect to which a suit has been instituted.
This indicates that while the civil code defines compromise broadly; which includes agreement before the institution of the suit, civil Procedure code is restricted only on the compromise that will be made after the suit has been instituted. It does not include compromise that will be made before the institution of the suit.
If the parties have compromised the dispute, and; nonetheless, files a suit, the defendant may assert the compromise as a defense. He can do so by filing a preliminary objection on this ground at the first hearing. In such case, the court will consider whether a valid compromise has been effected in accordance with the civil code, and it if finds that such a compromise has been effected, it should enter a judgment in terms of the compromise. The judgment will be Res Judicata and will prevent a further suit by the plaintiff on the claim.
Valid requirements of compromise agreement: (Art. 276)
- The name and place of the court in which the suit is pending
- The title of the action and the number of the suit
- The name, description, place of residence and address for service of the parties; and
- The matter to which the agreement relates
It may also settle accessory matters such as costs, damages and execution.
Withdrawal of suit
In the above discussion, we have already seen how parties to the litigation settle their disputes through compromise agreement. In cases where such compromise agreement made out of the court, we have already said that plaintiff must notify the court that he has withdrawn the suit. However, the code did not simply put compromise as the only means of discontinuance of the proceedings of civil litigation. A case may also be discontinued by a party by way of withdrawal or abandon any of his claim against any or all defendants. Following this we are going to discuss on these issues.
Ordinarily, a party may withdraw the suit or abandon any of his claims against any or all defendants. Such withdrawal of suit can be made with the permission of the court or out of court permission. Hence there are two types of withdrawal of suit; namely, withdrawal with leave and withdrawal with out leave.
While the case is pending, the plaintiff may for different reasons decide to withdraw or abandon the suit. In such cases he/she may ask leave of the court to withdraw the suit. In such cases, the court will analyze whether the reason forwarded for withdrawal is satisfactory or not. The criteria for satisfaction of the court to permit the party to withdraw the suit are stated under Art. 278(2)(a)&(b).
These are: if a suit must fail by reason of some formal defect; or that there are other sufficient grounds for allowing the plaintiff to institute a fresh action for the subject matter of a suit or part of a claim, it may grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh action in respect of the subject matter of the suit. Therefore, for the court to permit withdrawal of suit with leave, the exception should be strictly construed. Otherwise if the court simply allows such permission for those who could possibly continue with the proceedings but are interested to initiate the suit in some any other time, which is convenient for them, the other party may be imposed to incur unnecessary expenses and inconveniencies.
However, once the court permits the plaintiff to withdraw or abandon with leave to institute fresh action on the subject matter of the suit, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.
On the other side space, a party may withdraw a suit with out leave for two reasons. The first reason is incase the reason he/she suggested to the court for permission to withdraw fail to satisfy and the party decide to withdraw regardless of the decision of the court on it. The other reason is also if the party simply withdraws the suit with out asking any permission to the court on that issue. Therefore, the ultimate outcome of withdrawal without leave to file a fresh suit is clear i.e., he/she can not institute a fresh suit in respect to the cause of action. However, according to Art. 279 of the civil procedure code, the plaintiff may institute a fresh suit against the defendant on the same subject matter with different claim.