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The Purpose of Civil Procedure Vis-à-vis Fundamental Procedural Rules

The desire for the betterment and furtherance of legal rules regarding the administration of civil justice, as described in its preambular statement, was, indeed, the prime factor that necessitated the enactment of the 1965 Civil Procedure Code of the Empire of Ethiopia; Otherwise, formally speaking in no other place, does the Code expressly sets forth the purpose it aspires to achieve and/ or the functions it intends to undertake towards the attainment of the goal designed to be served.

However, there are certain fundamental values and legitimate interests that procedural rules, in any legal system, aim to preserve and specific purposes that underlie their establishment. In other words, there are, more often than not, well-articulated ultimate objectives which they indispensably envisage to attain. Thus, in the general parlance, rules of civil procedure aim to ensure that disputes are handled by an impartial legal tribunal in a fair and orderly manner and as expeditiously and economically as possible. They are, in brief, meant to secure the just, speedy and inexpensive disposition of cases. More specifically; they aim at treating the parties to a law suit equally in enforcing their rights and the corresponding duties and laying down the ground for a smooth and orderly flow of litigation so as to make the decision within a reasonably fair and quick time.

Nevertheless, viewed from the mechanical aspect of civil litigations, procedure may be considered as a means to an end not an end in it self. As stated, earlier procedure essentially exists to ensure the proper enforcement of rights and duties arising from substantive laws .This, however, cannot be an irrefutable security of the proposition that: procedures are devoid of inbuilt, significant process-values of their own independent of the ultimate outcome they are designed to preserve.

Yet, in spite of the implications of such a contention, where a dispute is brought before a court of law, it is the function of the court to adjudicate the controversy in accordance with precisely ascertainable legal prescriptions. In order for a court to properly perform those tasks, it must operate under a well-defined and effective procedure.  Specifically stated, the claims of both parties must be heard in an orderly manner; the issues for decision must be distinctively presented to the court; and, the court’s judgment must timely be enforced.  Accordingly, the efficacy of the law of civil procedure is measured against and is considered valuable in so far as it is employed in such a way as to enable the court to make a fairly prompt dispensation of civil justice

If, in contrast to this, the application of the rules of civil procedure leads to costly  litigations and excessive delays in the disposition of the case, the over all objectives of the law for which it has been designed is said to have failed.

Yet, make note of the fact that, though ‘justice delayed…’, as the oft-mentioned maxim goes, is said ‘justice denied’, it is also equally true that ‘justice rushed is justice crushed!’, meaning, sketchy judgments rendered at the expense of justice in a manner that obstructs or destroys justice itself would amount to a miscarriage of justice potentially jeopardizing the administration of justice. Hence, a reasonable balance has to be struck between the two extremes.

To state the obvious, therefore, they must not become the problem themselves, curtailing the legitimate interests of the parties by being erroneously employed in a manner that destroys justice. Actually, speedy and inexpensive determination of a law suit depends on a number of other factors; such as, the number and nature (complexity) of filed cases Vis-à-vis the number of the courts (benches) engaged in the business; and, the number of the judges (justice officials) operating therein; as well as the degree of compliance with the governing rules and case flow management techniques.                                                                               

Be that as it may, the purpose of procedural rules and spirit of the law must in all cases be borne in mind when dealing with procedural issues and their application must always be geared towards the attainment of this end. In case, the application of a given procedural rule gives rise to legal arguments, it should be interpreted and given effect in such a way that it ensures the purposes and intents contemplated by the law and thereby serve the public interest.

Talking of the practical implementation of the rules of Civil Procedure Code, there have always been irrefutable criticisms and a considerably wide ranging strain of dissatisfaction both in the spheres of the legal profession and the litigating public. In view of this, the generally held belief has been that the indeterminable number and complexities of the procedural steps followed in the litigation process; lack of procedural transparency; the great uncertainty of the governing rules and the irreconcilably divergent inconsistencies in the application of the law, are some of the distinguishing features of our judicial processes. In fact, it is not uncommon to see people voicing of their dissatisfaction with the overall judicial proceedings.

In this regard one can say that, nothing expresses their distress than the usually mentioned statement: “It is better to be sued and stand as a defendant in our courts than claiming one’s right through them as a plaintiff”. Victims may, at times, go even to the extent of relinquishing their claims than demanding them through the existing intricate procedures due mostly to the intolerably sluggish, inefficient, unpredictable and costly litigation processes.

One the other side of the story, however, there is a parallel argument that the crucial problem of the system does not as such lie with the law itself. This, of course, is without denying the fact that there are certain defects and/or lacuna in the law which are, relatively speaking, tolerable to some extent. Rather, it is actually meant to emphasize and implicate the fact that the chief problem in this regard lies with the self-imposed, deep -rooted and rampant customary practices which are repugnant to and observably inconsistent with the dictates of the existing law. In line with this, to raise but few irregularities, the expressive phrase  “ both a torture to write and a torture to read” , which is usually told of  ‘ prolix judgments’ would exactly fit, mutatis – mutandis, to the tiresome pleading practices, by and large, employed in our judicial proceedings. Neither the litigants worry themselves of complying with the prescription of the law in preparing their pleadings; nor, sadly enough, the court officials are seriously engaged in and bother themselves of ensuring the formal sufficiency of the pleadings as they seem comfortable with (and, hence, evidently complicit in) the bad practices.

Moreover, there is no tradition of managing law suits separately Vis-à-vis their specific natures. Cases, which need summary or accelerated procedures, for instance, are, more often than not, treated in accordance with the cases requiring ordinary procedures involving going through all the stages of stringent regular proceedings. Most importantly, there does not seem to be sufficiently defined adjournment policy or a strictly consistent implementation of adjournment procedures. Had these not been the case, the cumulative effect of them would have immensely saved, among other things, the time and money of both the litigants and the courts; thereby, serving the very purpose the law is meant to achieve.

In connection, to this for instance, it has been reported that in one old case a suit regarding succession was instituted in the High Court of the place while it ought to have been filed in a court of first instance jurisdiction. The High Court, however, proceeded to adjudicate the merits of the case; and after having dealt with it for an extensively long period, gave its judgment, against which an appeal was lodged to the Supreme Court. However, the Supreme Court, on its part, having dwelt on the appeal for another lengthy period, quashed the proceedings of the rendition court and to the dismay of the parties, the reinstitution and retrial of the case-back to square one- after it had stayed for eight years of its stay in both courts, down in the court of the lowest grade where it should have been originally filed. 

The reporter of the case, a noted lawyer in the area, however, strongly criticized the decision of the Supreme Court as absurd. That is, even though the order of the Supreme Court was, apparently observed, procedurally correct, it was applied in such a way that defeated the very purpose and spirit of the law; and, disregarded the public interest. Justifying his argument, he further stated that the error that arose from the procedural irregularity of non- compliance with regard to material jurisdiction was neither to affect the merits of the case (and was unlikely to prejudice the parties) nor the Supreme Court was expressly barred from handling cases of lower courts’ material jurisdiction. Thus, he further suggested that the Supreme Court having stated the procedural irregularity that had occurred therein should have gone on to hear the appeal and finally disposed of the case so that justice would properly be served. However, this view was attacked by another commentator who upheld the order of the Supreme Court and, in his dissenting opinion, argued that, in so far as original jurisdiction is expressly vested in the courts of first instances, there was no need to deviate from and interpret the clear rules of the law so as to legitimatize the otherwise void judgment of the High Court under the guise of dispensation of justice.

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