Operation and Effect of Presumptions in Civil Proceedings: An Inquiry into the interpretation of Art 2024 of the Ethiopian Civil Code

Author:Worku Yaze Wodage
Position:(LL.B, LL.M), Lecturer in Law, Dean (later on re-named as Director) of the Law School of Bahir Dar University (October 2007- 2010)
Pages:258-296
SUMMARY

'Presumption’ is an ambiguous term that one often finds in substantive and procedural laws. The controversy regarding the operation and effect of 'presumption’ in civil proceedings has not yet been conclusively resolved despite efforts of scholars. In Ethiopia, it has been subject to different judicial interpretations. The Cassation Division of the Federal Supreme Court has adopted a binding... (see full summary)

 
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OPERATION AND EFFECT OF PRESUMPTIONS IN
CIVIL PROCEEDINGS:
AN INQUIRY INTO THE INTERPRETATION OF ART 2024 OF THE ETHIOPIAN CIVIL CODE
Worku Yaze Wodage
“Although presumption is not evidence and has no weight as such, it does
make a prima facie case for the party in whose favor it exists and points out
the party who has the burden of going forward […], but it must be
remembered at all times that basic facts must be supplied before a
presumption comes into existence, […], and it has a binding effect until
successfully rebutted by the other party.”1
Abstract
‘Presumption’ is an ambiguous term that one often finds in substantive and
procedural laws. The controversy regarding the operation and effect of
presumption’ in civil proceedings has not yet been conclusively resolved
despite efforts of scholars. In Ethiopia, it has been subject to different judicial
interpretations. The Cassation Division of the Federal Supreme Court has
adopted a binding interpretation of Art 2024 of the Civil Code on the
presumption of payment of debts. Yet, the propriety of this authoritative
interpretation has become contentious. This Article examines the operations
and effects of presumptions in civil actions in general and inquires into the
propriety of the precedent adopted by the Cassation Division. It argues that the
Division’s interpretation needs to be reconsidered when the issue arises in
future cases.
Key words:
Presumptions, kinds of presumption, rebuttable presumptions of law, operation
of presumptions, effects of presumption, persuasive & evidential presumptions.
(LL.B, LL.M), Lecturer in Law, Dean (later on re-named as Director) of the Law
School of Bahir Dar University (October 2007- 2010); Former judge of the High
Court and Supreme Court of Amhara National Regional State (Sept. 1994 to April
2002)
The author is very grateful to the helpful comments of Ato Elias N. Stebek, the
anonymous external assessors, and the reviewer of an earlier draft of this Article. The
author alone remains responsible for any errors. He can be contacted via e-mail at:
workusos@yahoo.com
1 Freeman, F (1971- 1972) ‘A Trial Lawyer Utilizes the Concepts of Judicial Notice and
Presumptions’, 7 Forum, at 248.
4(2) Mizan Law Rev. OPERATION AND EFFECT OF PRESUMPTIONS IN CIVIL PROCEEDINGS 259
Introduction
Since the re-amendment of the Federal Courts Proclamation2 (which
reintroduced the doctrine of precedent in Ethiopia3), the Cassation Division of
the Federal Supreme Court has exercised its (statutory and constitutional)
cassation and precedential powers.4 It has reviewed cases it considered to have
had fundamental errors of law5 and rendered binding precedents. As per Art 2
(1) of the Proclamation, an “interpretation of a law by the Federal Supreme
Court rendered by the Cassation Division with not less than five judges shall be
binding on federal as well as regional (courts) at all levels.” (Emphasis added).
It is, however, important to note that it is the interpretation of a given law (by
2 Federal Courts Proclamation No.25/1996, Fed. Neg Gaz. 2nd Year, No.13.
3 Since 1962 there had been, at least on paper, the principle of stare decisis (or doctrine
of precedent) with regard to interpretation in the Ethiopian legal system. According to
Art 15 of the Courts Proclamation of 1962, (Proclamation No. 195/1962, Neg. Gaz,
22nd year, No.7) decisions of superior courts on matters of law were binding on
subordinate courts. This Proclamation was however repealed thirteen years later by
the Administration of Justice Proclamation No. 52/1975, Neg. Gaz. 35th Year No. 2.
Ethiopia once again re-introduced the doctrine of precedent into her legal system in
2005 by the Federal Courts Proclamation Re-amendment Proclamation No. 454/ 2005,
hereinafter, the Proclamation. This Proclamation entered into force as of 14 June,
2005/ Sene 7, 1997 E.C.
4 By virtue of Art 80-(3) (a) of the Constitution of the Federal Democratic Republic of
Ethiopia, hereafter the Constitution, and Art 10(1), (2), and (3) of the Federal Courts
Proclamation, the Federal Supreme Court is empowered to review final court
decisions in cassation. It is clear that this court has statutory and constitutional power
of cassation today. Such practice of reviewing in cassation is believed to have been
introduced into Ethiopia for the first time during the era of Emperor Menilik II in
1908. (See Yohannes Heroui (2009), ‘Brief Notes about Cassation Power and its
Procedure’, (in Amharic), Ethiopian Bar Rev. Vol 3, No. 1, at 132. Since 1987,
Ethiopia adopted clear legal frameworks regarding cassation power of the last resort
court in the country. During the Dergue era, Arts 4 & 5 of the Supreme Court
Establishment Proclamation No. 9/1987 expressly gave cassation power to the
Supreme Court. Following the overthrow of the Dergue by the EPRDF (Ethiopian
Peoples’ Revolutionary Democratic Front) in 1991, this was replaced by Art 12 of the
Central Government Courts Establishment Proclamation No. 40/1993 (Neg. Gaz. 52nd
Year.No.25) of the Transitional Government of Ethiopia. This was again followed by
the above cited provisions of the FDRE Constitution and the Federal Courts
Proclamation. At this juncture, it is essential to bear in mind the inherent differences
that exist between cassation power and precedential power of a court.
5 See the decisions of the Cassation Division of the Federal Supreme Court of Ethiopia,
published in various volumes. According to the above-mentioned articles of the
Constitution and the Federal Courts Proclamation only cases that allegedly contain
fundamental or basic errors of law can be reviewed in cassation.
260 MIZAN LAW REVIEW Vol. 4 No.2, Autumn 2010
the Cassation Division in the presence of five or more judges) that is binding,
and not the case decision as such. Case precedent, per se, enables courts to
derive case law from the principles enshrined in the case analysis and decision,
while binding interpretation is half-way between a purely statutory regime and a
case law system because it does not require lower courts to use case law, as
such. It rather obliges them to be bound by the cassation interpretation given to
a law (i.e. statutory provision) in a certain fact situation so that the interpretation
can be binding when similar issues and comparable fact situations are involved.
By exercising its judicial powers, the Supreme Court Cassation Division is
playing a decisive role in ensuring the consistent application of national laws
across the country and enhancing predictability of outcomes in court litigation.
However, some of the interpretations that the court rendered in a few of the
cases have, arguably, triggered controversy.6 A binding precedent of the
Cassation Division which has provoked such a controversy is the legal
interpretation it adopted in the Agency for the Administration of Rented Houses
v Mr. Bironi Atikpo case.7 The case involved various issues that pertain to
presumptions, particularly presumptions of law, and burdens of pleading and
proof. Issues such as nature of presumptions, operation and effect of
presumptions, relationship of burdens of proof and presumptions of law etc,
were at the forefront of the judicial analysis and exposition.
There was no unanimity of opinion regarding the nature of presumptions of
law and how they come into operation. They were divided on whether Art 2024
of the Civil Code (1960) applies to a case where a defendant appears in court
but does not deny plaintiff’s allegation of non-payment of a debt that is more
than two years overdue or in the case of an ex-parte proceeding. They disagreed
on whether it is necessary to follow special rules of procedure and evidence if
litigation involves a presumption of law such as the one embodied under Art
2024 of the Civil Code. The binding precedent in the case was rendered by a
close majority of 3 judges to 2 judges.
The majority’s exposition of presumptions of law, operation and effect of
such presumptions, the alleged roles and responsibilities of litigating parties and
courts in such a case, their subsequent interpretation of Art 2024 of the Civil
Code as well as the contrary exposition by the minority, etc., evoke a couple of
6 See for example Mekbib Tsegaw (2007), ‘Contracts relating to an immovable and
Questions of Form’, (in Amharic), Ethiopian Bar Rev. Vol.2. No. 1; Yohannes
Heroui (2008), ‘Registration of Immovables under the Ethiopian Civil Code: An
overview in Comparative perspective’, Ethiopian Bar Rev. Vol. 2 No. 2; Mehari
Redae (2008), ‘Case Comment; Dissolution of Marriage by Disuse: A Legal Myth’,
J. Eth. L. Vol. 22, No. 2.
7 File No 17068, Supreme Court Cassation Division decided on 19/11/1997 E.C.

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