Summon by Telegram Cassation Number 213020

Cassation Decision Number:213020 ሚያዚያ 25 ቀን 2014 ዓ.ም

Theme of Disputes:The underlying case began as a spousal property dispute (ባልና ሚስት ንብረት ክርክር) initiated in the Federal First Instance Court. The respondent (original plaintiff) sought the division of a jointly acquired house (Mahiber Bet) and the determination of child maintenance (ልጅ ቀለብ).

However, the dispute that reached the Cassation bench focused primarily on **procedural law and the fundamental constitutional right to be heard**. Specifically, the issue revolved around the legality of decisions made *in absentia* following the lower court’s procedure for the **service of summons (መጥሪያ አደራረስ)** via newspaper publication, despite the applicant residing abroad.

Undisputed Facts

1. The applicant (Ato Dagnachew Demeke Kebele) and the respondent (W/ro Alembeza Yeshaw) lived together as husband and wife without a formal marriage for 10 years, starting in 2000 E.C..

2. They jointly acquired a house and had one child.

3. The Federal First Instance Court, in its decision dated 14/8/2012 E.C., ruled the house was joint property and ordered the applicant to pay 3000 Birr per month for child support.

4. The applicant is a British citizen and has been residing in London, England, since January 1994 E.C. (ጥር ወር 1986 ዓ.ም).

5. The applicant and respondent communicated regularly via phone and Viber/Telegram.

6. The applicant learned of the default judgment on November 17, 2020 (Hidar 8, 2013 E.C.), when the respondent phoned him and sent the decision via Viber.

7. The respondent had filed a claim stating the applicant was not in the country and that she could not deliver the summons.

8. The lower court subsequently ordered the summons to be published in the Addis Zemen newspaper after the police reported they could not locate the applicant at the designated address.

Legal Issues Identified by the Cassation Bench

The central issue framed by the Cassation screening bench was: **Whether the failure to accept the applicant's appeal (made under Civil Procedure Code Article 78) to set aside the default judgment—based solely on the fact that summons was published in the newspaper—constituted a fundamental legal error, especially since it was confirmed that the applicant was residing abroad when the claim was filed

This boiled down to assessing whether the lower courts followed the established legal sequence for serving a summons using the **best available alternative method** when the defendant is known to be residing outside the country.

Fundamental Legal Errors Lower Courts Committed in Their Decisions

The lower courts, including the Federal First Instance Court (in its decisions of 14/8/2012 E.C. and 20/5/2013 E.C.) and the Federal High Court (in its decision of 5/12/2013 E.C.), committed fundamental legal errors:

1. Improper Use of Substitute Service:** The courts prematurely utilized the **last resort method of summons service (publication in the newspaper) without making sufficient effort to employ better alternative means.

2. *Failure to Prioritize Better Alternatives:** The respondent (plaintiff) failed to inform the court that she maintained regular communication with the applicant via phone and electronic means (Viber/Telegram). Had the respondent disclosed this, the court could have attempted to use a more effective method of delivery.

3. **Denial of Right to be Heard:** The failure to ensure the summons reached the applicant through a better alternative method **deprived the applicant of his constitutional right to be heard and the right to fair litigation (ፍትሓዊ ሙግት የመስማት ሂደትና የመሰማት ሕገመንግስታዊ መብትን)**.

4. **Neglect of Procedural Sequence:** The lower court failed to follow the required **sequential order of summons delivery methods** outlined in the Civil Procedure Code (Civ. Pro. Code Arts. 94-110). The process requires proceeding through delivery to the person, delivery to an agent, delivery by post, before resorting to substitute service.

5. **Lack of Attempted Affixation:** The lower court failed to show that it had attempted to affix (post) the summons at the address specified in the applicant’s power of attorney, even as a preceding step to newspaper publication.

**Key Legal Reasoning of the Cassation Bench**

The Cassation Bench determined that the lower courts’ decisions were legally unsupported for the following reasons:

1. **Requirement for Sequential and Optimal Service:** The Civil Procedure Code (Arts. 94-110) lays out a four-stage, sequential process for serving summons. A court must adhere to this sequence and ensure that the method used is the **best possible alternative** to reach the defendant.

2. **Abuse of Newspaper Publication:** The court’s reliance on newspaper publication was flawed because it was based on the premise that the applicant’s address was "absolutely unknown" and that the respondent had no connection with him. This assumption was false, as the respondent admitted to maintaining regular contact with the applicant while the case was pending.

3. **Duty to Use Available Information:** If the respondent had informed the Federal First Instance Court that she was communicating with the applicant in London via phone/Telegram, the court would have been obligated and enabled to use a better method of service.

4. **Procedural Imperfections:** The court did not demonstrate that it made adequate efforts to deliver the summons using the best alternative method. Serving summons based on an outdated address from a 2002 E.C. power of attorney was insufficient, especially since the person was known to be living abroad.

5. **Binding Precedent:** The ruling affirms the applicability of the binding precedent established by the Cassation Bench in **Decision No. 53113 (Volume 12)**.

**Conclusion of the Cassation Bench**

The Cassation bench concluded that the decisions of the Federal First Instance Court (14/8/2012 E.C. decision and 20/5/2013 E.C. order) and the Federal High Court (5/12/2013 E.C. decision) were fundamentally flawed and were **annulled (ተሽሯል)** based on Civil Procedure Code Art. 341(1). The case was remanded to the Federal First Instance Court to reopen the file, ensure the statement of claim is properly served upon the applicant, allow both parties to argue the merits of the case, and issue a decision accordingly, pursuant to Civ. Pro. Code Art. 343(1).