CHAPTER 1. GENERAL PROVISIONS
Introduction
The concept of jurisdiction is foundational to any legal system, defining the scope of authority of a court to hear and determine a case. Without proper jurisdiction, any judgment rendered by a court is a nullity. This chapter lays down the general principles governing the jurisdiction of courts, establishing the default rule of comprehensive judicial power and then introducing critical doctrines that limit or channel that power to ensure fairness, efficiency, and the finality of litigation. These principles are designed to prevent the multiplicity of suits, ensure judicial economy, and uphold the integrity of the judicial process.
Article 4 – Courts to try suits unless barred
Without prejudice to the provisions of the following Articles, the courts shall have jurisdiction to try all civil suits other than those of which their cognizance is expressly nor impliedly barred.
The Presumption of Jurisdiction
Article 4 establishes a fundamental principle of judicial power: courts possess a general, inherent jurisdiction to hear all civil disputes. This article creates a presumption of jurisdiction, meaning that unless a specific legal provision explicitly or implicitly removes a matter from the court’s purview, the court is empowered to adjudicate it.
This “unless barred” clause is crucial. It signifies that jurisdiction is not something that must be specifically granted for every type of case; rather, it exists by default. Limitations on this general jurisdiction typically arise from:
- Express Bars: These are clear statutory provisions that state a particular type of dispute cannot be heard by a civil court. For instance, certain administrative matters might be exclusively reserved for administrative tribunals, or specific family law issues might fall under specialized courts.
- Implied Bars: These arise when the legislative intent, though not explicitly stated, clearly indicates that a matter is outside the civil court’s jurisdiction. This could be inferred from the creation of specialized bodies with exclusive powers, or from the nature of the dispute itself, which might be deemed non-justiciable (e.g., purely political questions).
The principle enshrined in Article 4 ensures that there is a forum for the resolution of civil disputes, preventing a denial of justice on the grounds of a lack of specific jurisdictional grant. It underscores the court’s role as the primary arbiter of civil rights and obligations.
Article 5 – Res Judicata
(1) No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, and has been heard any finally decided. (2) Any matter which might and ought to have been made a ground of defense or attack in the former suit shall be deemed to have been directly and substantially in issue in such suit. (3) Any relief claimed in the former suit which has not been expressly granted by the decree passed in such suit shall, for the purposes of the Article, be deemed to have been refused. (4) Where persons litigate in good faith in respect of public or private rights claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this Article, be deemed to claim under the persons so litigating.
The Doctrine of Finality
Article 5 codifies the critical legal doctrine of res judicata (Latin for “a matter judged”), also known as the rule against double jeopardy in civil litigation. Its core purpose is to bring finality to legal disputes, promoting judicial efficiency, preventing harassment of litigants, and upholding the authority of court judgments. Once a matter has been “heard and finally decided” by a competent court, it cannot be re-litigated between the same parties or their privies.
The doctrine operates on two main principles:
- Interest reipublicae ut sit finis litium: It is in the public interest that there be an end to litigation.
- Nemo debet bis vexari pro una et eadem causa: No one should be vexed twice for the same cause.
Key elements for the application of res judicata under Article 5(1) are:
- Same Matter Directly and Substantially in Issue: The core dispute or a crucial issue must have been central to both the former and the current suit. “Directly” refers to the immediate subject of the dispute, while “substantially” refers to an essential or material issue.
- Former Suit: There must have been a prior legal proceeding.
- Between the Same Parties or Their Privies: The parties in the subsequent suit must be identical to, or derive their claim from, the parties in the former suit. “Parties under whom they claim” refers to those in privity (e.g., successors in title, legal representatives).
- Litigating Under the Same Title: The parties must have been litigating in the same capacity (e.g., as owner, as executor).
- Heard and Finally Decided: The previous court must have rendered a final judgment on the merits, not merely a dismissal on procedural grounds.
Sub-Article (2): Constructive Res Judicata This sub-article introduces the concept of constructive res judicata. It expands the scope of res judicata to include matters that might and ought to have been raised as a ground of defense or attack in the former suit, even if they were not actually raised. The rationale is to compel parties to bring forward their entire case at once, preventing them from holding back claims or defenses to initiate new litigation later. This prevents piecemeal litigation.
Sub-Article (3): Implied Refusal of Relief This provision clarifies that any relief sought in the former suit but not explicitly granted by the court’s decree is deemed to have been refused. This prevents a party from seeking the same ungranted relief in a subsequent suit, reinforcing the finality of the initial judgment.
Sub-Article (4): Representative Suits This sub-article addresses representative suits, where a few individuals litigate on behalf of a larger group sharing common public or private rights. In such cases, the judgment binds all persons interested in that right, even if they were not individually named parties. This is crucial for efficient resolution of disputes affecting large communities or groups, ensuring that the principle of res judicata extends to those effectively represented.
Article 6 – Review of Judgments
(1) Notwithstanding the provisions of Art.5, any party considering himself aggrieved by a decree or order from which an appeal lies, but from which no appeal has been preferred, or by a decree or order from which no appeal lies, may, on payment of the prescribed court fee, apply for a review of judgment to the court which gave it where: (a) subsequently to the judgment, he discovers new and important matter, such as forgery, perjury or bribery. Which after the exercise of due diligence, was not within his knowledge at the time of the giving of the judgment: and (b) had such matter been known at the time of the giving of the judgment, it would have affected the substance of the decree or order the review of which is sought. (2) An application for review shall contain the same particulars as a memorandum of appeal and shall be supported by an affidavit containing strict proof of the fulfillment of the conditions laid down in sub-art. (1) (a). The application shall be filed within one month of the ground of application having been discovered by the applicant. (3) On granting the application, after giving notice to the opposite party to enable him to appear and be heard in support of the decree or order the review of which is sought, the court shall make such order in regard to the re-hearing of the case as it thinks fit. (4) No appeal shall be lie from any decision of the court granting or rejecting an application for review.
Exceptions to Finality and Corrective Justice
Article 6 provides a limited exception to the strict finality imposed by res judicata, allowing for the review of judgments by the very court that rendered them. This mechanism is not a substitute for appeal but rather a safety valve for situations where a manifest injustice might occur due to circumstances unknown at the time of the original judgment.
The grounds for review are exceptionally narrow and stringent, reflecting the legal system’s strong preference for finality. A review is permissible only if:
- New and Important Matter Discovered: This refers to evidence or facts that were not available and could not have been discovered with “due diligence” at the time of the original judgment. The examples provided—forgery, perjury, or bribery—highlight the grave nature of the circumstances warranting review. This “new matter” must be truly new and not merely a re-evaluation of existing evidence.
- Impact on Judgment: The newly discovered matter must be “important” enough that, had it been known, it “would have affected the substance of the decree or order.” This establishes a high bar, requiring a clear causal link between the new information and the outcome of the case.
Procedural Requirements: Sub-article (2) outlines the procedural formalities for a review application. It mandates that the application resemble a memorandum of appeal and be supported by an affidavit providing “strict proof” that the conditions for review (especially due diligence and the nature of the new matter) have been met. Crucially, a strict time limit of “one month of the ground of application having been discovered” is imposed, emphasizing the need for prompt action.
Court’s Discretion and Re-hearing: Sub-article (3) grants the court discretion upon receiving a review application. If the application is granted, the opposing party must be given notice and an opportunity to be heard. The court then decides on the appropriate order for the re-hearing of the case, which could range from limited re-examination of the new matter to a full re-trial.
Non-Appealable Decision: Sub-article (4) makes the court’s decision on a review application (whether granting or rejecting it) non-appealable. This reinforces the exceptional nature of review and prevents a new layer of litigation solely over the review application itself, again emphasizing finality. Review is an extraordinary remedy, not a routine avenue for re-litigation.
Article 7 – Priority
(1) One and the same civil suit may not be instituted in more than one civil court. (2) Where a suit may be instituted in any one of several courts, the court in which the statement of claim was first filed shall have jurisdiction and the suit shall pending in such court.
Preventing Multiplicity and Forum Shopping
Article 7 addresses the problem of multiplicity of suits and forum shopping, ensuring that a single dispute is heard in a single court.
Sub-Article (1): Prohibition of Concurrent Suits This sub-article directly prohibits the institution of “one and the same civil suit” in multiple civil courts simultaneously. This is a fundamental rule to prevent conflicting judgments, allocate judicial resources efficiently, and avoid burdening parties with multiple parallel proceedings over the same cause of action. It underscores the principle of judicial economy.
Sub-Article (2): The “First-Filed” Rule Where a suit could legitimately be filed in more than one court (i.e., multiple courts have concurrent jurisdiction over the matter), this sub-article establishes the “first-filed” rule. The court where the statement of claim was initially filed gains exclusive jurisdiction over that specific suit, and the suit is deemed “pending” in that court. This rule provides a clear and objective criterion for resolving jurisdictional conflicts when multiple competent courts exist, preventing a race to judgment or strategic maneuvering by parties to choose a more favorable forum after the fact. It promotes certainty and order in the litigation process.
Article 8 – Pendency
(1) No court shall try any suit in which the matter in issue is also directly and substantially in issue in a previously instituted civil suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such civil suit is pending in the same or any other court in Ethiopia having jurisdiction to grant the relief claimed. (2) The pendency of a suit in a foreign court shall not preclude the courts in Ethiopia from trying a suit founded on the same cause of action. (3) Where the matter in issue in a suit pending in another court or is so closely connected with a suit pending in another court that it can not properly the tried separately the provisions of Arts. 11 or 244 and 245, as the case may be, shall apply.
The Doctrine of Lis Pendens
Article 8 introduces the doctrine of lis pendens (Latin for “a pending suit”), which is closely related to res judicata but applies before a judgment is rendered. While res judicata prevents re-litigation of a decided matter, lis pendens prevents the re-litigation of a pending matter. Its purpose is to prevent parallel proceedings, avoid conflicting judgments, and promote judicial efficiency.
Sub-Article (1): Abatement of Concurrent Domestic Suits This sub-article mandates that no court shall try a suit if the “matter in issue is also directly and substantially in issue” in a previously instituted civil suit that is “pending” in any competent Ethiopian court, between the same parties or their privies, litigating under the same title. The criteria for applying lis pendens are similar to those for res judicata regarding the subject matter and parties, but the key difference is the “pendency” of the prior suit. This effectively abates or stays the later-filed suit, ensuring that the first court to seize jurisdiction over the matter proceeds to judgment.
Sub-Article (2): Foreign Suits and Domestic Jurisdiction This sub-article clarifies that the pendency of a suit in a foreign court does not automatically prevent Ethiopian courts from trying a suit founded on the same cause of action. This reflects the principle of national sovereignty and the fact that foreign judgments may not always be recognized or enforceable domestically, or that domestic courts may have a superior interest in adjudicating disputes within their jurisdiction. While Ethiopian courts may proceed, they often have discretion to stay proceedings based on principles of comity or forum non conveniens if the foreign court is clearly the more appropriate forum. However, Article 8(2) explicitly states that there is no preclusion.
Sub-Article (3): Interconnected Suits and Consolidation This sub-article addresses situations where suits are not identical but are so “closely connected” that they cannot be properly tried separately. In such cases, it refers to Articles 11 (Consolidation of Suits) or Articles 244 and 245 (Objections to Jurisdiction and Procedure for Returning Claims). This provision acknowledges that judicial efficiency is not only about preventing identical suits but also about managing related litigation in a coherent manner, potentially through consolidation or by addressing jurisdictional issues proactively.
Article 9 – Want of Material Jurisdiction
(1) A statement of claim field in a court not having material jurisdiction shall be rejected in accordance with Art. 231. (2) When and as soon as a court is aware that it has not material jurisdiction to try a suit, it shall proceed in accordance with Art. 245 notwithstanding that no objection is taken under Art. 244 to its material jurisdiction.
Subject Matter Jurisdiction – A Fundamental Requirement
Article 9 deals with material jurisdiction, often referred to as subject matter jurisdiction. This is the power of a court to hear a particular type of case or controversy. It is a fundamental aspect of a court’s authority, derived from the constitution or statutes, and cannot be conferred by consent of the parties.
Sub-Article (1): Rejection of Claim If a statement of claim is filed in a court that lacks material jurisdiction, it “shall be rejected in accordance with Art. 231.” This emphasizes the mandatory nature of this jurisdictional requirement. A court without subject matter jurisdiction simply has no authority to proceed with the case, and any judgment it renders would be void. Article 231 would typically outline the procedure for such rejection, often involving a preliminary objection or a court’s own motion.
Sub-Article (2): Court’s Own Motion This sub-article highlights the non-waivable nature of material jurisdiction. Even if no party raises an objection under Article 244 (which deals with objections to jurisdiction), the court itself, “as soon as it is aware” of its lack of material jurisdiction, is obligated to act. It “shall proceed in accordance with Art. 245,” which would typically involve returning the statement of claim or transferring the case to a court with proper jurisdiction. This underscores that material jurisdiction is a matter of public policy and judicial competence, not merely a procedural right of the parties.
Article 10 – Want of Local Jurisdiction
(1) A statement of claim field in a court not having local jurisdiction shall be rejected in accordance with Art. 231. Provided that a court which has jurisdiction under Arts. 19-30 may not reject a statement of claim on the ground that another court also has local jurisdiction. (2) Any objection taken under Art. 244 to the local jurisdiction of a court shall be finally decided by the said court and no order made, judgment given or decree passed by the said court may be invalidated unless such an objection was taken and the decision thereon has caused a failure of justice.
Territorial Jurisdiction – A Waivable Defect
Article 10 addresses local jurisdiction, also known as territorial jurisdiction or venue. This refers to the geographical area over which a court has authority to hear a case. Unlike material jurisdiction, local jurisdiction is generally considered a matter of convenience for the parties and is often waivable.
Sub-Article (1): Initial Rejection and Concurrent Local Jurisdiction Similar to material jurisdiction, a statement of claim filed in a court lacking local jurisdiction “shall be rejected in accordance with Art. 231.” However, a crucial proviso is added: if a court does have local jurisdiction under the specific rules (Arts. 19-30 would likely define these rules, e.g., based on the defendant’s residence, location of property, or where the cause of action arose), it cannot reject a claim simply because another court also possesses concurrent local jurisdiction. This prevents unnecessary rejections and allows for flexibility where multiple venues are legally permissible.
Sub-Article (2): Waivability and “Failure of Justice” This sub-article is the most significant distinction from material jurisdiction. It states that an objection to local jurisdiction (taken under Art. 244) must be raised by a party, and the court’s decision on that objection is final. Crucially, a judgment or order of a court cannot be invalidated on the ground of lack of local jurisdiction unless two conditions are met:
- An objection to local jurisdiction was actually taken by a party.
- The court’s decision on that objection “has caused a failure of justice.”
This implies that if a party does not object to local jurisdiction, or if they object but no “failure of justice” results from the court’s decision, the judgment remains valid. This highlights the waivable nature of local jurisdiction; parties can implicitly consent to the court’s territorial authority by not raising a timely objection, or if the defect is merely technical and does not prejudice the outcome. The “failure of justice” requirement sets a high bar for overturning a judgment on this ground, emphasizing that minor procedural irregularities should not undermine the finality of decisions.
Article 11 – Consolidation of Suits
(1) Where two or more suits or appeals are pending between the same parties in the same court, in which the same or similar questions of law or fact are involved, the court may, of its own motion or on the application of either party, order a consolidation of such suits or appeals on such terms as it thinks fit. (2) Where two or more suits are pending between the same parties in different courts, in which the same or similar questions of law or fact are involved, or where two or more suits pending between the same parties indifferent court are so closely connected that they can not properly be tried separately, either party may, at any time before evidence is taken in any of such courts, apply for an order that such suits be consolidated. (3) An application under sub-art. (2) shall be made to the High Court, where the suits are pending in courts which are all subordinate thereto, or to the Supreme Court, where one or more of the courts in which the suits are pending is a division of the High Court on circuit. (4) The court to which the application is made shall, on granting the same, direct by which of the subordinate courts the suit shall be tried. (5) The provisions of sub-arts. (2)-(4) shall also apply where two or more appeals, in which the same or similar questions of law of fact are involved, are pending between the same parties is difference courts of the same grade.
Judicial Efficiency Through Consolidation
Article 11 provides for the consolidation of suits, a procedural mechanism aimed at promoting judicial efficiency, preventing inconsistent judgments, and reducing litigation costs when multiple related cases are pending.
Sub-Article (1): Consolidation within the Same Court This sub-article addresses the simplest scenario: two or more suits or appeals involving the “same or similar questions of law or fact” between the “same parties” are pending in the “same court.” In such cases, the court has the discretion (“may, of its own motion or on the application of either party”) to order consolidation. This allows for a single hearing and decision on common issues, streamlining the process.
Sub-Article (2): Consolidation Across Different Courts This sub-article deals with a more complex situation where related suits are pending in “different courts.” The grounds for consolidation are similar (“same or similar questions of law or fact”) but also include cases “so closely connected that they cannot properly be tried separately.” This is crucial for managing interconnected disputes that might otherwise lead to fragmented litigation. The application for consolidation must be made “at any time before evidence is taken,” indicating a preference for early consolidation to maximize efficiency.
Sub-Article (3): Hierarchical Application for Consolidation Given that suits are pending in different courts, a higher court must decide on the consolidation. This sub-article specifies the appropriate forum for such an application:
- High Court: If all the courts where the suits are pending are subordinate to the High Court.
- Supreme Court: If one or more of the courts involved is a division of the High Court on circuit (implying a higher level of judicial authority is needed to coordinate across different High Court divisions or their equivalents).
Sub-Article (4): Direction on Trial Court Upon granting the application for consolidation, the higher court (High Court or Supreme Court) will direct “by which of the subordinate courts the suit shall be tried.” This ensures a clear designation of the forum that will hear the consolidated matter, preventing further jurisdictional ambiguities.
Sub-Article (5): Consolidation of Appeals This final sub-article extends the principles of consolidation to appeals. If two or more appeals involving “the same or similar questions of law or fact” are pending between the same parties in “different courts of the same grade,” the provisions for consolidating suits in different courts (sub-articles 2-4) apply mutatis mutandis. This ensures that even at the appellate stage, related matters can be heard together for consistency and efficiency.
In essence, Article 11 provides a vital tool for judicial administration, allowing the courts to manage their caseload effectively and ensure that related disputes are resolved coherently, even when initially filed in separate forums.