Ethiopian Law of Evidence Lecture Notes ppt

1. Lecture
on
Chapter Two of Evidence Law
By:
Berhe Gessesew (LL.B, LLM)
Adigrat University
School of Law
2011 E.C

2. Facts, which may be Proved Other than by
Evidence
In principle:
• A party has legal &/ evidentiary burden to prove his allegation
Exception:
• Some allegations of fact by a party does not necessarily need proof:
i.e.
– where a party admits a fact by making a formal admission
before trial or at the trial
– where the proof of the fact in issue may be presumed by z judge
– acc. to z doctrine of judicial notice (for so well known &
notorious facts)

3. Admitted facts
Admission?
is a statement of fact, which waives z production of evidence by
conceding that the fact asserted by the opponent is true
Why admitted facts need no proof? b/c
– in the normal course of things, a person does not make himself
liable by admitting facts against him self unless those
allegations are true
– what a person himself admits to be true may reasonably be
presumed to be so, as he is expected to know facts relating to
him more than any one else
– Courts are set up to try issues in dispute. Thus, where a party
admits the truth of a fact in issue in the case, the fact ceases to
be in dispute b/n the parties, & as such, any evidence to prove
the fact will be ruled as in admissible on the ground of
irrelevancy; b/c requiring to proof admitted fact would result
undue delay w/c create injustice to others w/c await court
attention, except in some serious criminal cases like a homicide

4. That is why Art 242 Civ.p.c & 134 Cri.p.c required z court to pass
judgment on z admitted facts, provided that, the court may, in its
discretion, require the facts admitted to be proved otherwise as
provided under 235(2) Civ.p.c & 134(2) Cr.p.c…The latter provisions
connote limitations as ff
Limitations of Admissions
• This is especially true in criminal cases in w/c z court may exclude
confessions on z grounds of oppression (coercion), unfairness…
• Art 134 Cr.p.c requires that plea of guilt has to be without
reservation. However, even though the confessions are made
without reservation, the court may reject them if it is satisfied from
other circumstances that they are untrue (Art 134(2), 135 of Cr.p.c).
– B/c, experience has shown that suspects confess for some sorts of reasons
even where they know that they are innocent of the allegation made against
them, for fame, to cover others…
• If z admission is vague/doubtful, z court may require proof even in
civil cases–Art 235(2) Civ.p.c, esp: for persons with disability .

5. Ways of admission & its effect
Civil case:
• admission by implication: 83 implied admission & 235 Evasive
denial …are left to discretion of court
• Express admission : 83 & 242, in pleadings or during litigation:
– it says “የካደውን ነገር ያምን ወይም ይክድ እንደሆነ ይጠይቀዋል” ….
– “ያመነውን ነገር አይልም” so, we can conclude that, there is no
discretion of court to allow him to deny what he previously
admitted.
– “በታመነበት ጉዳይ ዳኝነት እንድሰጠው ልጠይቅ ይችላል” should it be necessarily up on
application?
Criminal case:
– Silence does not amount to admission -133(1)
– Admission should be to each & every element of the case without
reservation -134 (1), 133(2)
– 140 provides “failure to cross-examine on a particular point does
not constitute an admission”…we can apply this to civil cases, since
x-examination is optional

6. Types of Admissions
Formal:
• admission given to person who have authority to accept admission
may it be judicial or quasi-judicial
Informal:
• To persons who do not have authority to accept admission
Judicial:
• Admission given to z court while z court is handling z case (not in
any session)
Extra- Judicial:
• given outside of court
– may be as per Art 27 (interrogation), 85 (preliminary inquiry) called
evidentiary admission

7. Examples
• Mr. x admitted for police officer (27 Cr.p.c)
– Formal: b/c, police officer has z power to accept
– Extra-judicial: b/c, it is given outside of z court
• Mr. x admitted for any court (35, 85 Cr.p.c)
– Formal: b/c, court has z power to accept
– Extra-judicial: b/c it may not be necessarily z trail court
• Mr.x admitted to commissioner (court or person,
124(2) + 128(2) Civ.p.c)
– Formal & judicial by w/c trial court represent it formally
• Mr. x admitted for court (134 Cr.p.c, “plea of guilty”)
– Formal: b/c, court has z power to accept
– Judicial: b/c, it is trial court
• Mr. x admitted to friends in café
– Informal & extra-judicial

8. Which one is outweighed ?
• More weight is given to formal admission: b/c
– If s/he admitted in front of s/one who has authority or in
court (in witness doc), such is outweighed b/c:
• there is psychological effect to tell truth &
• due to religious influence of making oath
+
– Z remaining have less probative value in criminal cases
but considered in civil cases (E.g. in arbitration)
– Even z confession given acc. to Art 35 Cr.p.c may be
rejected, b/c one who gives his confession may fear &
repeat z confession given during police interrogation, b/c
he may fear as he get back to police station after
confessed as per Art 35 to court.

9. “plea bargain”
• a procedure, w/c encourages z accused to admit a charge brought
against him &
• In this procedure, if the accused admits z fact before z court, in
return the public prosecutor may apply to the court to mitigate the
punishment, just as a reward for z accused's contribution in saving
a court's time
– Eg: if z accused has charged in 3 charges(counts), z public
prosecutor may promise to drop two or one count, if z accused
admits his guilty.

10. Co-offender
Does plea of guilty be taken based on incriminating statements made
by one of the co-offenders on z other co-offender?
In criminal cases
Rule:
it is unconstitutional w/c contravene “Miranda warning”
+
“Miranda warning”…r/f z right of z accused
• to be informed that he has the right not to answer & that;
• any statement he may make in his free will may be used in
evidence against him before the court of law. (27(2) Cr.p.c & 19(2)
FDRE Cons.)…+ …
• Co-offender’s incrimination violates z right of “presumption of
innocence” (20(3) of FDRE Cons….+ …
• Co-offenders might not be trustworthy as they may need to escape
to be criminal
Exception:
• Anti-corruption

11. Exception
• Anti-corruption proclamation recognizes co-offender’s
confession/admission as evidence against z other (co-offender)
– E.g; The prosecutor may promised to either of z co-offender if
confessed to z charge to set him free (0), o/w punished for abt 5
years imprisonment . It’s criticized as irrational as z co-offender
may falsify to use z chance.
In civil case:
• If joint liability exists in b/n z co-defendants, admission of z
indispensible party is considered as partial admission; whereas,
• if the co-defendants are jointly & severally liable z admitted party
is required to pay z whole debt, and then, z litigation remains in b/n
z defendants (as a kind of subrogation)

12. Presumption
• Is an inference made about one fact or an assumption of fact
• Rule of evidence w/c shifts burden of production
• Rule of law that fix burden of persuasion
• An argument by w/c s/one benefited from z presumption
Why do we need presumption?
Policy reasons?
To save time:
• the law draws presumption on those facts w/c are more likely to
exist by nature or by probabilistic r/n, just to save time
– “If fact “A” is true, then fact. “B” is probably true”
For procedural convenience:
• E.g: capacity is presumed by z law unless z other side alleges z
disability of person in w/c case he is required to prove that, such
person is incapabile.(Art 196 Civ. c)

13. cont’d
Presumptions provided solution to cases, w/c are difficult to prove:
+
– E.g: If two persons are dead in the same accident, as to who
died first & who died next is difficult to prove for purpose of
succession unless the law of succession provides so (832 Civ.c)
+
To develop confidence of z society on public officials since those
officials are acting on behalf of the government: (2010 (2)Civ.c)
– Authenticated documents are conclusive evidences
In order to protect the peace & order of the family:
– E.g: the law presumed all property acquired during marriage as
a common property of spouses.(Art 62 RFFC)

14. Types of presumption
With basic fact:
• arise after z initial establishment of some other
basic fact
– E.g: in paternity case, if z Pf proved that there was marriage b/n Pf (mother)
& Dt (a certain man), & proved as z child was born while the marriage was
intact, the court must draw a conclusion that : z Dt is the father of z child,
acc. to Art 126 RFFC.
• The beneficiary of such presumption with basic fact is required to
prove first, z non/existence, un/truth or non/occurrence of some
basic fact(s) via introduction of evidence – (oral, documentary, or
real)
• It is also possible to establish such basic fact by the formal
admission of the other party, or by judicial notice

15. Without Basic Facts
• arise without prior proof of any particular fact or no preliminary
presumption is set for z operation of z presumption
• Such presumptions are rules of substantive law that fix burden of
proof (fix burden of persuasion). E.g
– presumption of innocence (Art 20(3) FDRE Cons.)
– presumption of capacity (Art 192 Civ.c)
– presumption of criminal responsibility (sanity), (Art 48 of Rev.
Cir.c)
Presumption of fact…vs…presumption of law
• Presumption of fact:
• are permissive presumptions /inferences…depends on discretion of
court
• Court is under no obligation to draw conclusion
– Eg: if a person refuses to submit himself to medical examination
(that does not involve any danger) w/c a court needs to dis/prove
an allegation invoked in a statement of claim, z court can, acc. to
Art 22 of z Civ. c, consider z fact under inquiry as established

16. Presumption of law
• is what the law requires a court to make where certain facts are
established
• are mandatory, z court cannot refuse to presume
• Such presumptions may be irrebuttable or rebuttable
Irrebuttable:
• is conclusive or absolute presumption….b/c…
• it is not open for any other party/ court to rebut the presumed fact;
i.e.,
• no rebutting evidence is allowed/admissable to the contrary
• Once a basic fact is established, z court must draw a conclusion
about z non/existence, un/truth of z presumed fact
– Eg: A child shall be deemed to have been conceived in wedlock
if s/he is born within 300 days after z dissolution of marriage.
Art 128(1) of z FRFC… Sub (2) provides: “No proof to the
contrary shall be admitted.”

17. Rebuttable:…………………………(freely/restri
ctively)
• once a basic fact is proved, the court must draw a conclusion
about the non/existence, un/truth of the presumed fact, however;
• such conclusion is, susceptible to rebuttal evidence by the party
against whom that presumption operates.
• the legislature determines whether such party against whom a
rebuttable presumption operates can rebut freely (with any type of
evidence) or restrictively (with some limited type of evidence)
Freely rebuttable presumption/unlimited/:
– Rebut with any type of evidence
– E.g: Art 97, 106, 169, RFC…&… 1147 Civ.c
Restrictively rebuttable presumption/limited/:
• Rebuttable but by producing based on limited types of evidences
• E.g: 4(2), 172, 1147, 1153, 1196, 1200, 1201, 2132, 2025, 2026,
2782 Civ.c

18. Judicial notice
• r/f to circumstances in w/c z judge assumes a factual
proposition to be true even without proof of that
proposition
• Why?
• To save time
• Forms
1. Judicial notice after inquiry:
– applies to those facts that are not so notorious/ not part of
common k/dge; such as, peculiar to profession, history, politics
– Via...: referring to text books, works of reference, certificates
from government officials & oral statements from witnesses
2. judicial notice without inquiry

19. 2. judicial notice without inquiry/adjudicative judicial notice
• it may be capable of certain determination by sources whose
authority is not questioned (verified documents).
A. Facts of common k/dge:
• facts generally known by the ordinary intelligence of the people
• A judge may not take judicial notice of matters known to him to be
true b/c of his private k/dge unless they are generally known. Here,
personal knowledge is excluded to increase z confidence of the
society on the judiciary.
• A fact to be subject of judicial notice does not have to be
universally known (to be true). Rather it is sufficient if a fact is a
fact of common k/dge at least in z territorial jurisdiction of a trial
judge.
• Scope (magnitude) of common k/dge
– Universal: existence of UN, AU, White color people, Fasil palace
– National: Feb 23 is Victory of Adwa, Meskerem 1 Ethio’n New year,
Dr. Abiy is PM of Ethiopia, Fasiledes castle situated in Gondar town
– Local: ADU is situated @ a place called “genahti”

20. B. Judicial notice of law
• is the process by w/c, z courts determine the applicable law in a
case. B/c, the issue that arise b/n parties may not only be issues of
fact but also issues of law. [Art 240 of Civ.p.c ]
• judge can take judicial notice of laws in a confident manner in civil
law countries than common law countries.
• The federal Negarit gazeta establishment Proclamation No. 3/1995
of art 2(3) provides that; “all federal or regional legislative,
executive & judiciary organ as well as any natural or judicial
person shall take judicial notice of laws published in Federal
Negarit Gazeta”
• According to Art 6 of the federal courts establishment proclamation
No 25/96, the federal courts may apply a state laws. In doing so, a
federal court can take judicial notice of state laws
• Generally, even if it is compulsory to z judge to know it, z
discretion of z court prevails to achieve fair trial, & accordingly
can order z attachment when there is slight doubt

21. Are judges required to take judicial notice of
treaties which are ratified but are not yet published in federal
Negarit Gazeta?
 decisions of the cassation division of the federal Supreme Court
?

22. .
Thank
You