Intervention

and
third party practice

Tsegaye Workayehu

August 2009 G.C

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 1. Intervention [Art 41]

By law [Art 42]

Forms
By permission [Art 41]
Defn.
Is a procedural device where a person who is not an initial party to the original action is admitted in order
to assert a right.

A. Intervention by law

Who is allowed to intervene?

Anyone is not allowed. One must show that

• he has an interest in the suit that has been filed; (has an interest related to the property or the
transaction that is the subject matter of the action)
• a right under the substantive law which will be affected if proceedings go on in his absence; (his
interest, may as a practical matter, be impaired, if the person is not allowed to intervene in the
case) - one who will gain or lose by the direct operation of the judgment
• the absentees interest is not adequately represented.

The above being the formula to allow, the court shall always consider the following

• Would it help to shape the relief?

• Would the cost of litigation be higher by unnecessarily complicating the litigation?
• Would the claim cause potential prejudice to the plaintiff?
• Will the party seeking to intervene be affected by the direct outcome of the judgment?

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Who could these people be?

Joint creditors?- to take a share out of the obligation? Can one of the joint creditors intervene?

Joint debtors?- to raise a defence that could reduce the intensity of the claim? Can one of the
absent debtors intervene?

Warranty for the goods sold?

People under Art 36 (3) (4) (5)?

Neither a joint creditor nor a debtor, but one who claims that his right cannot be a subject of
controversy between the original parties.

አበበ በየጊዜው የሚከፈል የሮያልቲ ክፍያ ሊያገኝ ባደረገው ስምምነት መሠረት ፓተንቱን ለበቀለ አከራየው፡፡
አከራየው፡፡ ሱራፌል በቀለ
የሚጠቀመው ዋጋ በሌለው ፓተንት ስለሆነ ለደረሰብኝ ጉዳት ካሣ ሊከፍለኝ ይገባል በማለት በቀለን ከሰሰው፡፡ አበበ ጣልቃ ሊገባ
ይችላል?
ይችላል?

አዎ፡፡ ምክንያቱም ፓተንቱ ዋጋ የለውም የሚባል ቢሆን የሚያገኘውን ሮያልቲ ያጣል፡፡ መብቱ ይነካል፡፡ እርሱ ሊያቀርብ
የሚችለው መብትም በቀለ በሚያደርገው ክርክር በአግባቡ ይወከላል ማለት አይቻልም፡፡ ምክንያቱም በበቀለ እና በአበበ
መካከል እንደጋራ ባለዕዳዎች ያለ አንድነት የለም፡፡ የአንዱ ዋና መብት የሁለተኛው ደግሞ derivative right ነው፡፡

በአዊ ዞን ውስጥ የውሃ ጋን አለ፡፡ በአዊ ዞን ውሃ እንዲያወጣ የተፈቀደለት የግል ድርጅት ለባህር-
ለባህር-ዳር እና ለአዊ ዞን ውሃ ያከፋፍላል፡፡
የባህር-
የባህር-ዳር ህዝብ ያለውን የህዝብ መጠን ከግምት በማስገባት ከፍ ያለ ውሃ መጠን እንዲለቀቅለት ለማድረግ ክስ መሠረተበት
መሠረተበት፡፡
በት፡፡ የአዊ
ዞን አስተዳደር በክሱ ውስጥ ጣልቃ ሊገባ ይችላል ወይ?
ወይ?

አዎ፡፡ ምክንያም ለባህር-ዳር አካባቢ የሚለቀቀውየው መጠን መጨመር ለአዊ ዞን የሚለቀቀውን የውሃ መጠን ሊቀንስ
ስለሚችል መብቱ በቀጥታ ሊነካ ይችላል፡፡

በሱማሌ ዞን ውስጥ የወጣ ጋዝ አለ፡፡ ይህን ጋዝ ወደመሃል አገር ለመውሰድ በሐረሪ ከተማ መሃል እንዲያልፍ መደረግ ነበረበት፡፡
የከተማው አስተዳደር ይህን በመቃወም ክስ አቀረበ፡፡ የከተማው ነዋሪ የሆነ ሌላው ሰው ጋዙ በአጋጣሚ የሚያፈተልክበት
የሚያፈተልክበት አጋጣሚ
ቢኖር ጉዳት ሊያደርስ ይችላል በሚል ምክንያት በክርክሩ ውስጥ ጣልቃ ሊገባ ይችላል ወይ?
ወይ?

አይችልም፡፡ ምክንያቱም

• ጣልቃ ልግባ ባዩ ይደርስብኛል የሚለው ጉዳት ሩቅ (remote)ነው፡፡ ቀጥታ የሆነ ጉዳት አይደርስበትም፡፡ ስጋት
ነው፡፡
• ከዚህ በተጨማሪም ይደርሳል የተባለው ጉዳት የታወቀ/የተለየ/የተጨበጠ (specific/concrete) አይደለም፤ [make
note- that በከሳሹ ክስ መሠረት ውሳኔ የሚሰጥ ቢሆን ጣልቃ ልግባ ባዩ ሊጠቀም የሚችልበት ዕድል ያለ
ቢሆንም የርሱ መብት በከሳሹ ክርክር ይወከላል ማለት አይቻልም፡፡ ጣልቃ ለመግባት ያቀረበው ምክንያት
በባህሪው በከሳሹ ክርክር የሚወከል/የተወከለ አይደለም፡፡]

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 Take care

Anyone who could have joined the suit under art 35 or art 36 cannot always be
allowed to intervene.

Eg.1

A has suffered damage to property as a result of an accident caused by B. C has

also suffered personal injury on that same accident. C cannot intervene in the suit
between A and B. They could have joined under Art 35 originally. But once the
suit is going on between A and B, he cannot intervene. This is because he will
not be affected by the direct outcome of the judgment to be given. So, the
existence of the possibility to join as a plaintiff will not automatically entitle C to
intervene.

Scope

The scope of the claim of the intervener is limited by the scope of the original claim. If he seeks an
independent relief, he is not considered to be interested in the existing suit to that extent. ለምሳሌ
በወራሾች መካከል በሚደረግ ክርክር በክርክሩ ውስጥ ተሳታፊ ያልነበረ ሌላ ወራሽ ጣልቃ ልግባ ብሎ ሲጠይቅ በአቤቱታው ላይ
የመጀመሪያው ከሳሽ ያልጠየቀውን ሌላ የውርስ ንብረትም አብሮ የሚጠይቅበት ሁኔታ አለ፡፡ ጥያቄው ይቻላል ወይ የሚል ነው፡፡

Issues

Is the intervener expected to pay court fee? Is he going to enjoy the fruits of judgment directly or is
judgment going to be limited in protecting his interest in the subject matter only?

B. Intervention by the public prosecutor

Have a look at

Art. 116-122 of civ.c

Art. 234-354 of civ.c

Art. 592, 608, 609, 612 of civ.c

Art 975-978, 980, 1004 & 1017 of comm.c.

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Issues

What will happen when the intervener is a resident of another state in a suit that was instituted in a state?

Is his claim to be rejected? Or is transfer of the case the answer to the problem? See Art 90 (5) of the civil
procedure code.

2. Third party practice [Impleader (Art 43)]

What is it?

It is a procedural device whereby a defending party with the leave of the court files a claim
against a person not a party to the original action for contribution, indemnity, subrogation or any
other relief in respect of his opponents demand.

The defendant brings another party on the ground that if he is found to be liable to the plaintiff
the third party defendant will be liable to him (the defendant)

Purpose

To promote efficiency and effectiveness by trying to conclude cases that arises from the same
cause of action.

Reasons for calling

• Contribution to the obligation

• To pay indemnity in whole or in part

Who could these people be?

Joint tort feasors?

Guarantors?

Warranty?

Insurance?

Relation of the 3rd party defendant with the plaintiff

The plaintiff made no claim against the third party defendant

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When is it to be raised?

Not clear, but possibly at the date of answering the suit. Care must be taken not to prejudice the
plaintiff as it delays.

Take care

• The defendant must show why the 3rd party is liable to contribution or indemnity
• The defendant cannot claim the 3rd party share the contribution or indemnity for claims that are
unrelated to the original claim. The aim is to dispose of related contentions in one action.
• Court adjudicates the claims between the defendant and the 3rd party defendant and not between
the plaintiff and the 3rd party defendant (this is because the plaintiff’s right to choose his
adversary cannot be affected). If in the process of litigation the dispute seems to be with the 3rd
party defendant and the plaintiff, it is only to determine the liability of the 3rd party defendant to
the defendant.
• The relation of the defendant to the 3rd party defendant does not affect the plaintiff- setoff, period
of limitation raised by the 3rd party against the defendant
• Decree for the plaintiff shall not directly affect the 3rd party defendant. But the judgment would
normally state that the 3rd party defendant is liable to the defendant.

ለምሳሌ -

“…..ተከሳሹ ለከሳሽ ብር 20‚000 (ሃያ ሺህ ብር) እንዲከፍል ወስናል፡፡ ሦሥተኛው ወገን ተከሳሽ ደግሞ ተከሳሽ
ለከሳሽ እንዲከፍል የተወሰነውን ብር 20‚000 (ሃያ ሺህ ብር) እንዲከፍል ወስነናል” ብሎ መወሰን ማለት ነው፡፡

አንዳንድ ጊዜ ፍርድ ቤቶች ሦሥተኛው ወገን ተከሳሽ ወደ ክርከሩ እንደገባ ተከሳሽን ከክርክሩ ያወጡታል፡፡
ያወጡታል
በመጨረሻም ተከሳሹ ለከሳሽ እንዲከፍል የሚገደደውን ዕዳ ሦሥተኛ ወገን ተከሳሹ እንዲከፍል ይወስናሉ፡፡ can
the debtor simply walk out? የዚህ ፍርድ ተገቢነት እንዴት ይታያል? ምን ችግሮችን ያስከትላል?
ተወያዩበት

Scope of litigation of the third party

3rd party defendant cannot claim set-off, period of limitation or counter-claim against the plaintiff. He
is not allowed to bring new wings of claims to the litigation.

Issues

• What will happen when the 3rd party defendant (impleader) is divers with the plaintiff? What will
be the solution?

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 • Rehel sued Biniam for a faulty engineering. Sami wants to implead Helen alleging that it was
actually Helen who did the calculations as a result of which damage was caused. Will the
impleading be proper?
• Rehel sued Biniam for a faulty engineering. Sami wants to implead Helen alleging that if there
was a fault at all it was actually the fault of Helen who is liable to him. Will the impleading be
proper?

3. Interpleader (Art 293 of civ.pro.c.)

What is it?

A Plaintiff is confronted with a problem that he may be liable to more than one person on the same claim.
It is a situation where the plaintiff does not know to whom he is supposed to discharge his obligation

E.g

Insurance company to pay life insurance to the wife of the deceased will be confronted with two
wives.

Debtor of the deceased is mixed up to which heir he is going to pay the debt.

Conditions (see Art 294ff)

• Plaintiff must not claim any interest in the subject matter of other than the cost and
charges
• The claim must be such as to expose him to multiple liabilities
• There must be no collusion between the plaintiff and the any of the defendants
• He must admit that he is liable

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 Death of parties upon a pending action

When one of the parties in litigation dies, their heirs would be invited to continue the litigation in the foot
of the deceased. Bu this depends upon the nature of the action. If the action is purely personal the death of
the party extinguishes.

Eg.

• Dissolution of marriage other than the bed and the board

• Action for support
• Moral injury

Recovery of money claim (ownership of immovable property)

• Move legal representatives to be substituted or

• Court orders to procure the appointment of an executor or administrator for the estate of the
deceased.
• Heirs may be allowed to be substituted without requiring the appointment of executors
• Court may appoint a guardian