Print this page
03 March 2012 Written by  Alem Abraha and Tafesse Habte

Effect of Non-appearance

 

We will now consider the effect of non-appearance. Where there has been non-appearance, depending on who has failed to appear, four things can happen:

 

  1. The suit may be struck out; (Art. 69(2) or 70(d))
  2. The suit may be dismissed; (Art. 73, 69(2) (2) 70(d) or 73)
  3. The court may proceed ex-parte; (Art. 70(a))
  4. The court may issue a default Proceeding; (Art. 233).

 

In the above discussion, we have already discussed when the court pass the above different types of orders. Following this we will also strictly focus on their respective effects. Each of those orders has their own distinct effect. To begin with, the effect of struck out, where the case is struck out; the plaintiff may as of right bring a fresh action on the payment of full court fees. On the other hand, if he satisfies the court that there was a sufficient cause for his/her non-appearance, the original suit may continue and the plaintiff is relieved from payment of court fee.

 

Where the plaintiff's suit has been dismissed, he/she will be precluded from bringing a fresh suit in respect of the same cause of action. However, if the plaintiff can show good cause for his non-appearance within one month from the dismissal, the court may, after giving notice of application to the opposite party, order setting aside the dismissal upon such terms and costs as it thinks fit. Accordingly, the court shall appoint a day for proceeding with the existing suit.

 

On the other hand, we have said that where the defendant, while he is duly served, does not appear on the date which is fixed for hearing, the court may proceed ex-parte (Art. 70(a)). The very effect of such order is not default decree. Rather, the court will proceed to adjudicate the suit in the absence of the non-appearing party. In effect, the non-appearing party will not have the right to participate in the process of litigation. Whereas, if a third party defendant does not appear, the court enters a default decree.

However, the defendant against whom an order made ex-parte or third party defendant against whom a decree is passed may, within one month from the day he became aware of such action, apply to have it set aside. Article 78 Civil Procedure Code governs this situation.

 

You have to note here that the plaintiff seeking to have an order of dismissal set aside must apply within a month from the date of the order. But a defendant seeking to have an ex -parte decree set aside has one month from the time he was aware of the decree. There is a possibility that the defendant may not be aware of the decree until the plaintiff tries to enforce it against him, i.e., at the execution stage.

 

If the defendant does not apply within that time, or if the court finds that the summon was duly served and that there was not sufficient cause for non-appearance, the decree is valid and it will be enforced against the defendant notwithstanding that he never presented his defense. He had the opportunity to appear and cannot have the case responded to give him another chance.

 

A problem may arise where there are multiple defendants, and an ex-parte decree was given against all or some of them and is set aside only as to some. Suppose there are two defendants, neither of them appeared. Both defendants applied for the setting aside of the decree and the ex-parte decree against one of them was set aside but not against the other. Or, one appeared, judgment was entered against him, an ex-parte decree was entered against the other, which the later has applied to set aside.

 

Under such circumstances, if the decree is such that it cannot be set aside only against the non-appearing defendant entitled to have it set aside, it may be set aside against the other defendants also. The court is doing this because the defendants are indispensable parties. In such case a decree against some alone cannot stand. However, the decree against the other defendant or defendants should be set aside only where the decree is necessarily indivisible. Where separate judgments can be entered against each defendant, there is no need to set aside the decree against the others.

 

The last but not the least effect of non-appearance is related with default proceeding. As we have seen above, if the defendant, while he is duly served, failed to appear in court of law on the date which is fixed for submitting his statement of defence, the court shall order default proceeding based on Article 233 of the Ci.Pr.C. The effect of such order is not equal to ex-parte proceeding. In ex-parte proceeding, the party whom an order is made against him will not have the right to be involved in the litigation proceedings following the order. Whereas in default proceeding, the non-appearing party, i.e; the defendant, should not be refused to be a party to the litigation. The only effect of such order is that he will be precluded to exercise the procedural rights that should be exercised on the date of his non-appearance. For example, he cannot exercise his right to submit his written statement of defence. In other words, in default proceeding, the non-appearing party can exercise his right to be a part to the litigation from the date he appears in court of law, but he loses to be benefited from those procedural rights that should be exercised during his non-appearance.

 

Sufficient Cause

 

Once the court has ordered following the non-appearance of a party, it does not mean that it is final and there is no ground for reviewing it. A party whose interest is affected due to the order up on non -appearance may apply to the court to set aside the order, provided that he has sufficient reason to justify his/her non appearance. If the court is satisfied that the non- appearing party was prevented due to sufficient reason, it may order to set aside the order and the case will continue to proceed. However, the following questions may be  raised here:

  • What are the elements of sufficient cause?
  • Whether the criteria for justifying sufficient cause would be the same in all cases?

When reading the provisions that have reproduced to you in the previous sub-sections, we hope you have observed the term "sufficient cause" mentioned in different contexts. The Code uses "sufficient cause" in more than one context. Where the suit has been struck out, Art 71(2) provides that the plaintiff may continue the suit without paying the court fees if there was ''sufficient cause for his non-appearance. Where the suit has been dismissed, Art. 74(2) provides that the plaintiff or appellant may have the order of dismissal set aside if he shows that there was, "sufficient cause" for his non-appearance when an "ex-parte" decree has been passed against a defendant or a default decree against a third party defendant. Under Art 78(2), the decree may be set aside if the defendant shows that he was prevented by sufficient cause from appearance. Should "sufficient cause" when used in Art. 71 (2) mean the same as when it is used in Art. 74(2) and 78(2)? If we consider the effect of a finding of "sufficient cause", the answer should clearly be no.

 

Examination of Parties

 

If the issue of appearance is decided and the case can be proceeded, the next task of the court in the first hearing will be examination of parties. Where the parties appear in person, the court verifies their identity. It then reads the pleadings and asks the parties on the pleadings. The question is whether each party or his pleader admits or denies the allegations of fact in the pleading of the other party that have not otherwise been denied. You remember that we have said when we discuss pleadings that every allegation of fact in the statement of claim that is not denied in the statement of defense is deemed to be admitted. However, the court has the power to examine the parties at the first hearing and record whatever is not said in the statement of claim or the statement of defense. If the court sees that the defendant has not denied or expressly admitted a particular allegation, of the statement of claim, it gives him a second chance, to speak. The court will specifically ask him whether he intended to admit that allegation is deemed denied. The court records all admissions and denial, and they form part of the record. Where a party makes an admission at the first hearing, that admission is conclusive, and no issue will be framed as to that matter. In other words, the defendant may deny or admit the allegations in his statement of defense or at the examination. See Article 241 and 242 of the Cv.Pr.C

The examination of the plaintiff at this time is particularly important since the plaintiff file a responsive pleading to the statement of defense that he received in writing. Secondly, the defendant might have raised affirmative defenses, e.g., Force majeure. The case may be decided in whole or in part on the basis of the admissions made by the parties.

 

By examining the plaintiff, the court determines whether he admits or denies the facts constituting such defenses. Suppose that the defendant has admitted the contract but said that he had paid what plaintiff is claiming. The plaintiff could deny that the defendant had paid, in which case there would be an issue on this point. Or, plaintiff could say that what defendant had paid is some other payment not the debt claimed in the suit. Then, the court would frame an issue on whether the payment has already discharged the claim or not.

 

The main purpose of the examination at the first hearing is to help the court clarify and develop the issues for trial. The court examines each party, or where the party does not appear, the person accompanying the pleader for the purpose of answering such questions. Since the examination must be conducted by the court and only for this purpose it would not be proper for the court to put a party on the stand, examine him on the entire case and allow the other party to cross-examine him. The examination is simply to determine what admissions and denials are made by the defendant which assists the court in framing the issues.  It must be conducted with reference to the allegations in the pleadings and only supplements the pleadings in developing the issue for trial.

If a party admits in the pleadings or on the oral examination, the other party may apply to the court for such judgment or order as he may be entitled to as a result of the admissions made by the parties. See Article 242 of the Cv.Pr.C

The defendant may admit that he is liable, but deny that the plaintiff suffered the damages he claimed. The court would issue a judgment to the effect that the defendant is liable to the plaintiff in an amount to be determined at the trial, which would then be limited to deciding the question of what damages the plaintiff suffered.

 

Ruling on Preliminary Objections

 

After the court has examined the parties, it proceeds to decide any preliminary objections that have been raised. A preliminary objection may be defined as an objection not going to the merits of the case that is, not involving the question of whether the defendant is liable to the plaintiff under the substantive law.

 

As you can remember from the discussion on part one of the civil procedure course, we have considered some objections that may be raised by parties to litigation. Art 244 (2) also sets forth certain preliminary objections. So, when such objections are raised the court is to proceed in accordance with the provisions of Art. 245. Under this Article, the court will hear the opposite party, order the production of such evidence as may be necessary and render a decision on the objection.

 

Now, we are going to see the contents of Art. 244(2) on preliminary objections.

Art. 244 (2) – The provision of Art. 245 shall apply where either party states that:

a. the court has no jurisdiction

b. the subject matter of the suit 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 or scheme of arrangement

 

As we can understand from the contextual meaning of the provision, the list of preliminary objections provided under Art. 244(2) are not exhaustive. None of these preliminary objections go to the merits of the case. In other words, they do not relate to the question whether the defendant is liable to the plaintiff under the substantive law or not. They should be disposed of as soon as possible, since it would be a waste of time for the court to examine the parties and frame issues for trial only to discover that due to the non-merits objection, a trial will not be necessary.

 

Therefore, Art. 244(3) provides that any preliminary objection not raised at the earliest possible opportunity, i.e., at the time the court call for the first hearing, is deemed waived unless the ground of objection is due to reasons such as to prevent a valid judgment from being given. This means, some preliminary objections, like lack of material jurisdiction, even if not raised at the first hearing may be taken as issues throughout the proceeding because their existence prevents the court from giving a valid judgment.

 

Generally, the acceptance of an objection has two effects. In other words, if a court sustains an objection, the effect on the suit may be dismissal of the suit or the suit may only be struck out.

 

Where the court sustains an objection on the ground that the subject matter of the suit is res judicata (that the suit has already been decided by a court previously) or the suit is barred by limitation, the suit will be dismissed. Even though the objection does not go to the merits of the case, the suit will be disposed once these objections are sustained. Because, if a case is said to have previously been seen and decided or if the claim of the plaintiff is said to have been barred by limitation, there is no chance for the suit to be instituted afresh. That is, there is no opportunity for the plaintiff to file a fresh suit.

 

In other cases, the order that sustains the objection would ordinarily result in striking out the suit. For example, if the court sustains an objection on jurisdiction, plaintiff has the opportunity to file a fresh suit in a court that has local or material or judicial jurisdiction. On the other hand, where the court sustains an objection on pendency, the suit will be struck out and the plaintiff would continue the prior suit.

 

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 court having jurisdiction or in the court in which the previously instituted suit is pending.

 

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. More specifically, the Amharic version of Article 245(4) of the Civil Procedure Code stated that the court might reduce, based on the regulation, certain amount of court fee to be refunded for the plaintiff.

 

To sum up, the court has, first, to decide on preliminary objections, before proceeding with the next step proceeding, i.e. framing of issue, if defendant has raised any. The court when making a ruling on preliminary objections has to give a chance to the plaintiff to respond on the objection raised by defendant. The court has to hear evidence if it is necessary to preliminary objections rose. Then, it will give ruling. If the ruling sustains the objection, the suit may be struck out or dismissed. Whereas, if it is overruled, the court will proceed on the suit.

 

Framing of Issues

 

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. However, if the defendant, at the first hearing of the suit, makes no defence the court will not be compelled to frame and re-cord issues. An issue is something on which the right decision of the case appears to depend. This may be framed based on the material proposition of fact or of law affirmed by one party and denied by the other. 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 defence. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

 

Where issues both of fact and of law arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until the issues of law have been determined.

 

In framing the issues, the court considers the allegations in the pleadings, the contents of the documents produced by either party, and the oral allegations made by the parties or their pleadings or persons present on their behalf. See Cv.Pr.C Article 248

The very advantage of framing issues is to limit the scope of litigation of the parties during the trial proceedings. Hence, the court must frame the correct issues, in order for the trial to proceed expeditiously and the parties will be prepared to produce evidence on those issues. Otherwise, if the court fails to do that, delay and inconvenience are likely to result.

Last modified on Tuesday, 12 June 2012 23:39