Dilla University

School of Law

THE TITLE: THE ADMISSIBILITY OF HEARSAY EVIDENCE IN CIVIL CASES:

LAW AND PRACTICE IN DILLA TOWN FIRST INSTANCE COURT.

A THESIS SUBMITTED IN PARTIAL FULFILLMENT FOR THE REQUIREMENT OF BACHELOR

DEGREE IN LAWS (LLB)

PREPARED BY: HABTAMU AYELE ID NO: RSS- 9204/20

ADVISOR: HAILEMARIAM MAMO (LL.B, LLM)

SEPTEMBER, 2024
DILLA, ETHIOPIA
DECLARATION

I hereby declare that the thesis comprises my own work. In compliance with widely accepted
practices, I have duly acknowledged and referenced all materials used in this work. While
submitting this thesis in the partial fulfillment of the requirements for the Degree of Bachelor of
Law (LLB) to the School of Law, Dilla University, I confidently declare that the thesis has never
been submitted to any other institutions.

Declared by:

Name:
Signature: _____________
Date: _________________
Confirmed By:
Name:
Signature: _________________
Date: _____________________

I
ACKNOWLEDGEMENT

First of all I would like to thank the Almighty God for everything he did on my life since nothing
could be done without his help. I would like to extend my appreciation to my advisor, H/Marim
Mamo (LLB, LLM) for his continuous assistance and feedback including interesting comments
throughout the final accomplishment of the study. Next, I would like to thank my family who are
always on my side at every step of my life so far, special thanks to my mom Molite talore. Also, I
would like to extend my hearty gratitude for my best friends who inspired and supported me to
accomplish the study, special thanks to Mr. Dameke Habte. Finally, I want to extend my
appreciation to the staff members of Judges of Dilla Town First Instance Court for their sincerity
in responding all the interview questions properly.

ACRONYMS

II
AAUFL Addis Ababa University Faculty of Law

DER Draft Evidence Rule

FDRE Federal Democratic Republic of Ethiopia

DTFIC Dilla Town First Instance Court

RFC Revised Family Code

USA United States of America

III
Abstract
Since Ethiopia has no codified material on law on law of evidence, the rules of evidence are
found scattered on various substantive and procedural laws. These scattered rules of evidence
did not incorporated a clear rule on the issue of admissibility of evidence including the
admissibility or otherwise of hearsay evidence in court. Due to this fact there is controversy
among legal scholars in relation to the status and admissibility of hearsay evidence under the
Ethiopian legal system. The base for the existence of such controversy has been the phrase
indirect knowledge incorporated under the civil procedure codes of the Ethiopia. In addition to
the existence of variation among scholars, the practice of the courts in Ethiopia shows confusion
on the admissibility of hearsay evidence. Accordingly some judges made it admissible as a rule
while others no. Despite the vagueness of the currently operating civil procedure code of
Ethiopia, the DER of 1967 considers hearsay evidence as an exception. Based on these
controversies the researcher try to answer three questions, namely; the status of hearsay
evidence under the Ethiopian legal system, the intention of the law maker in relation to the issue,
and the practice of (DTFIC). In the absence of clear rule dealing with the admissibility of
hearsay admitting hearsay as a rule in Ethiopia clearly contradicts with the right of party
because it limits the right of confrontation of evidence. During the codification of the procedure
code it was not the intention of the law maker to incorporate hearsay evidence under the phrase
indirect knowledge under the procedure codes to admit hearsay as a rule since hearsay had been
incorporated under DER as an exception by the same law maker. Hearsay evidence was
admissible in DTFIC as supportive evidence and the court does not admit hearsay alone as a
rule since it does not satisfy the required weight of proof by the court. However exceptionally
dying declaration of has been admissible as primary evidence to the court.

IV
Contents
DECLARATION...............................................................................................................................................I
ACKNOWLEDGEMENT.................................................................................................................................II
ACRONYMS.................................................................................................................................................III
Abstract......................................................................................................................................................IV
CHAPTER ONE: INTRODUCTION...................................................................................................................1
1.1. Background of the Study......................................................................................................................1
1.2. Statement of the Problem................................................................................................................4
1.3. Objectives of the Study.....................................................................................................................5
1.3.1. General Objective......................................................................................................................5
1.3.2. Specific objectives of the Study..................................................................................................5
1.4. Significance of the Study...................................................................................................................5
1.5. Research Questions..........................................................................................................................5
1.6. Scope of the study............................................................................................................................6
1.7. Research Methodology.....................................................................................................................6
1.7.1. Data Sources..............................................................................................................................6
1.7.2. Data collection method..............................................................................................................7
1.7.3. Sampling Technique...................................................................................................................7
1.7.4. Data Analysis..............................................................................................................................7
1.8. Limitation of the research.................................................................................................................7
1.9. Organization of the Study.................................................................................................................8
CHAPTER TWO: LITERTURE REVIEW............................................................................................................9
2.1. GENERAL OVERVIEW ON EVIDENCE..................................................................................................9
2.2. Types of Evidences............................................................................................................................9
2.3. Relevancy and Admissibility of Evidence.........................................................................................11
2.3.1. Relevancy of Evidence in Civil Matters.....................................................................................11
2.3.2. Admissibility of Evidence in Civil Matters.................................................................................11
2.3.3. Balancing Relevancy and Admissibility in Civil Matters............................................................12
2.4. Evidence under the Ethiopian Legal System....................................................................................12
2.5. Hearsay Evidence............................................................................................................................13
2.5.1. General overview on the Rule of Hearsay Evidence.................................................................13
2.5.2. The Emergence of the Exception to the Hearsay Rule.............................................................15
2.5.3. The Approaches Adopted in various Jurisdictions Regarding the Rule of Hearsay...................17

V
 2.5.4. The Hearsay Rule in Civil Cases................................................................................................18
2.5.5. General Overview on the Ethiopian Legal system on the Issue of Hearsay Evidence...............20
2.5.6 THE BASIC JUSTIFICATIONS FOR THE EXCLUSION OF HEARSAY EVIDENCE IN CIVIL MATTE.......21
CHAPTER THREE: DATA PRESENTATION AND ANALYSIS..............................................................................23
3.1. The status of hearsay evidence under the Ethiopian legal system..................................................23
3.2. The intention of the law maker in relation to admissibility of hearsay evidence under the Ethiopian
legal system...........................................................................................................................................25
3.3 The practice of Dilla town first instance court in relation to the admissibility of hearsay evidence in
civil matter.............................................................................................................................................27
CHAPTER FOUR: CONCLUSION AND RECOMMENDATION.........................................................................29
4.1. Conclusion......................................................................................................................................29
4.2. Recommendations..........................................................................................................................29
BIBLOGRAPHY............................................................................................................................................31

VI
CHAPTER ONE: INTRODUCTION

1.1. Background of the Study

Evidence is defined as “something that furnished or tends to furnish proof, especially; something
(as testimony, writing, or objects) presented at judiciary or administrative proceeding for the
purpose of establishing the truth or falsity of an alleged matter of fact. 1 Historically, it was said,
the term “evidence “was originated from the Latin term “evidentia”, which means to show
clearly or to make clear to the sight to discover clearly certain; to ascertain or to prove. 2 Thus,
from these definitions of the term evidence is the means by which the existence or non-existence
of certain disputed fact is going to be proved or disproved before a competent body.

In Ethiopia, even if there is no currently operating a single codified evidence rule, the draft
evidence rules 3 (here in after called DER) defines evidence as” a means whereby any alleged
matter of fact, the truth of which is submitted to investigation, is provide and is includes
statements by party, admission, judicial notice, presumption of the law and observation by the
court in its judicial capacity.” Similarly, we can infer the function of evidence from the definition
provided under the DER, as a means of providing or disproving certain disputed fact before a
court of law.

When we go back to the historical development of evidence, the use of evidence as means of
proving or disproving certain alleged fact can be traced back to the time when people started to
settle disputes before third parties and it was said that the need for evidence was well known by
ancient Greek, Egyptians and civilization near Tigris River.3

In these civilizations the concepts of evidence law such as relevance of evidence, the duty to
come up with evidence, proof by witness were practiced and contributed a lot for the
development of the current rules and principles of Evidence law. Evidence forms the very

1
Evidence, Available at WWW. Merian [Link], dictionary vidence, (here in after Evidence at Merian
Webster).
2
Kahsay D. and Andualem E, Teaching Material on Law of Evidence, Prepared under the Sponsorship of the Justice
and Legal System Research Institute, 2009.
3
Id.p.7

1
foundation of every legal system, without which law would be subject to the will of those with
power.4

Relevancy in evidence is the first principle in civil matter and it is a necessary condition for
certain evidence to be admissible.5

As mentioned above, all relevant evidences are not admissible. Accordingly, hearsay evidence is
one category of evidences which is relevant but made inadmissible in many jurisdictions as a
rule. In this regard we can cite the USA, South Africa, Ireland and others.6

Before dealing about the rationale for excluding hearsay evidence from being admissible in
principle, it is better to see what hearsay evidence is in the international jurisprudence as well as
the DER of Ethiopia, which is not yet being effective.

Black’ Law Dictionary says the following about hearsay; “the term applies to that piece of
testimony given by a witness who relates, not what he knows personally, but who others told him
or what he has heard Saied by others.7

The Federal Rule of Evidence of USA defines hearsay as “statement that was made other than by
witness while testifying at the hearing and that is offered to prove the truth of the matter stated. 8

In general, hearsay is a legal term that describes statements made outside of court, but we should
bear in mind that all statements made outside court are not hearsay. 9 Thus, it is obvious that,
since hearsay is evidence made by another person other than one who testifies it before court, it
cannot be verified by direct cross examination of the person purporting to have the direct
knowledge to the fact in issue. To this effect, hearsay is excluded from all court cases from being
admissible as a rule almost in all jurisdictions in the world.10

4
The purpose of Evidence available at [Link] the free encyclopedia, last accessed in April 2024 (here in
after purpose of evidence at Wikipedia)
5
Law of Evidence
6
Hearsay Rule available at [Link] the free encyclopedia, last accessed in April, 2024 (here in after Hearsay
rule at Wikipedia)
7
Bryan A. Garner, black’s Law Dictionary, 9th edition
8
American Federal Evidence Rule, available at [Link] evidence rule, last accessed in April 2024 (US Federal
Rule of Evidence)
9
Law of evidence, p.80
10
Hearsay Evidence, available at [Link] paper on hearsay in civil case/Law reform commission, 2010
1stpub, last accessed in April 2024.

2
However, it is not to mean that it has no exception, rather there are certain exceptions to the
general rule. The common law legal system exceptions of hearsay evidence, particularly, the
Federal Evidence Rule of USA and the DER of Ethiopia provide exceptions to rule of hearsay
almost in similar fashion. So, to avoid redundancy, it’s better to see the exception under the
Ethiopian DER. The first exception is dying declaration which is defined under the DER as
follow:

It is made by a person who is dead, or as any of the circumstances of the transaction which
resulted in his death, sin cases in which the case of that person’s death comes in to question,
whether that person was or was not at that time the statement was made, under expectation of
death and whatever may be the nature of the proceeding in which the case of his death comes in
to question.11

Pursuant to this rule, the death of the person needs to be eminent and at the time when the
evidence has been heard before the court, the person need not be alive.

The other exception is in relation to statement made in the ordinary course of business since it 12.
Has been presumed that statements made in ordinary course of business are less likely to be false
Further, declaration made against one’s interest, particularly in relation to pecuniary interest,
proprietary interest, or if the statement exposes a person to civil liability.13

The other exception relates to statements of opinion as to the existence of a public or general
right or custom.14 Unlike other nations legal system, the current Ethiopian legal system did not
have single, defined and effective evidence rule that address the issue of evidence, specifically
admissibility or otherwise of hearsay evidence.

The absence of clear legal provision that either made hearsay evidence admissible as a rule or
not, contributed a lot for the existence of controversy between legal scholars as well as judges in
relation to the admissibility of hearsay evidence in Ethiopia legal system.

The bases for the existence of contending argument in relation to hearsay evidence are the
phrases provided under civil procedure codes that states “questions put in examination chief shall

11
The Ethiopian Draft Evidence Rule hear in after called DER) ,1967(unpublished), Rule 29
12
Ibid.
13
Ibid.
14
The Ethiopian Draft Evidence Rule hear in after called DER) ,1967(unpublished), Rule 29(d)

3
only relate to facts which are relevant to the issue to be decided and to such facts only of which
the witness has direct or indirect knowledge.15 Thus, the ground for the existence of different out
looks in relation to the admissibility of hearsay evidence is the phrase that says “indirect
knowledge.

Accordingly, some argue that, the phrase “indirect knowledge “is intended to include hearsay
evidence, so hearsay evidence in Ethiopia is admissible as a rule. 16 The other group of persons
argues that the phrase “indirect knowledge” implies circumstantial evidence rather than hearsay
evidence.

Thus, they say hearsay evidence need to be exceptionally, admitted before court like that of the
practice in the common law legal system. 17 In addition to the existence of variation among
scholars, the practice of courts in Ethiopia shows confusion on the admissibility of hearsay say
evidence and accordingly some judges made it in principle admissible while others not 18. Despite
vagueness of the currently operating procedural laws of Ethiopia, the DER considers hearsay
evidence as an exception.19 The lack of adequate and deep study conducted on the area of the
admissibility of hearsay evidence which is available in published manner necessitated to conduct
this research.

Therefore, the researcher would examine what the law says and what the practice seems in Dilla
town first instance Court (here in after DTFIC) in relation to the admissibility of hearsay
evidence, since evidence could take away a person’s life or property it needs to be clearly
understand and strictly evaluated by courts.

1.2. Statement of the Problem

Absence of clearly defined and effectively operating legal provision in the Ethiopian legal
framework followed by the possibility of the existence of discrepant decisions rendered by courts
in relation to the admissibility of hearsay evidence fascinated the researcher to conduct this
research.

15
Civil procedure code of the Empire of Ethiopia, Art.263(1), Decree No 52 of 1965,Negarit Gazette
Extraordinary Issue No.3, 25th year, Addis Ababa, 8 October 1965
16
Daniel Haile, Lecture note on Law of Evidence, Addis Ababa University, Faculty of law, 1994
17
Ibid.
18
Tesfaye Abate Abebe, Hearsay Evidence, (2012) Vol,6:1,Mizan Law Review
19
DER,Rule,29

4
The existence of different out looks in relation to the admissibility of hearsay evidence in the
mind of different court, lawyers and scholars. So, this creates confusion among the courts.

Moreover, lack of publicized, adequately and deeply conducted research in the admissibility of
hearsay evidence triggered the researcher to conduct this research.

1.3. Objectives of the Study

1.3.1. General Objective
The general objective of this research is assessing and examining the law and the practice Dilla
town first instance Court in relation to the admissibility of hearsay evidence.

1.3.2. Specific objectives of the Study.

This research specifically aimed to:

 To examine the place of hearsay evidence in the Ethiopian legal system;

 To analyses and ascertain the intention of the law maker in relation to the admissibility of
hearsay evidence in Ethiopia;
 To examine the practice of Dilla town first instance Court in relation to the admissibility
of hearsay evidence.

1.4. Significance of the Study.

It is believed that the final outcome of this research will be significant to avoid, if not at least to
minimize the existing controversy of courts in relation to the admissibility of hearsay evidence.

Also, the expected result of this paper would help in academic teaching and learning process of
law students, particularly to those who will study on the same topic.

In addition to these, the finding of this research would be very crucial to minimize the existing
confusion among courts in relation to admissibility of hearsay evidence in Ethiopia.

1.5. Research Questions.

This research would attempt to give answer for the following questions:

 What is the status of hearsay evidence under the Ethiopian legal system?
 What is the intention of the legislature in relation to the admissibility of hearsay evidence
under Ethiopian legal system?

5
  What is the practice of Dilla town first instance Court in relation to the admissibility of
hearsay evidence civil matter?

1.6. Scope of the study.

This research paper is limited to examining the legal framework of Ethiopia in general and the
practice of Dilla town first instance court (DTFIC) particularly in relation to admissibility of
hearsay evidence. Emphasis is given to hearsay evidences in civil matters the law and practice.

1.7. Research Methodology

This research employed a qualitative research method because qualitative research is concerned
with how the social world is interpreted, understood, experienced, produced or constituted and
the qualitative research method describes qualitative method as method that focuses on trait,
meaning and characteristics of people and events. 20 Thus, researchers in qualitative research
method collect data in the form of words than numerical data and make a detailed exploration of
the topic.21

More importantly, the selection of a given research method depends on the objectives of the
research and the research questions framed to achieve the objectives. Qualitative research
questions often start with ''what?'', ''how?'' and ''why?'' to encourage a complex answer than a
simple ''yes'' or ''no''. Thus, seen from these vantage points, qualitative method is appropriate to
answer the research questions framed and the objectives identified in this research.22

1.7.1. Data Sources

The study has been conducted by employing doctrinal and non-doctrinal (empirical) legal
research methodologies. The doctrinal part would be conducted by assessing laws, literatures of
scholars, and other relevant materials. The non-doctrinal part would be conducted through
interview of lawyers, Judges, and as well as analysis of court decisions. The researcher
interviewed judges from Dilla town first instance Court and others.

20
Jennifer Mason, Qualitative Researching, 2nd edition, Sage Publication, London, 2002
21
Kristina Simion, Qualitative and Quantitative Approaches to Rule of law Research: Practitioner's Guide,
International Network to Promote Rule of Law
22
Jane Ritchie et al., 'Designing and Selecting Samples', in Jane Ritchie and Jane Lewis(eds.), Qualitative Research
Practice: A Guide for Social Science Students and Researchers, First Published in 2003, Sage Publication, London

6
1.7.2. Data collection method
To collect the desired information for the proper conduct of the study, the researcher
concentrated on both primary and secondary source of data. As primary source the researcher
used interview of the concerned persons (judge) and lawyers. As a secondary source the
researcher used court decisions, literatures of scholars, and other relevant materials.

Interview, for the collection of qualitative data from the sampled respondents, the researcher
would employ a semi-structured interview.

1.7.3. Sampling Technique.

The researcher used purposive sampling technique since there is no other better technique for
conducting qualitative research as well as the questions presented on the interview are related to
legal issues, further such technique has been preferred to get relevant and the desired
information.

1.7.4. Data Analysis.

After collecting the desired information, the researcher employed descriptive way of analyzing
data to reach at a conclusion.

Before analyzing the data, since the data gathered through interview has been scattered, collected
in Amharic in a jotted form, the researcher first prepared the collected data in understandable
manner, then made deep reading to internalize the raw data and finally translated the data in to
English language. Through this process the researcher organized and analyzed the raw data to
reach at a conclusion.

1.8. Limitation of the research.

Among others, shortage of time takes the lion share from those limitations that hindered the
proper accomplishment of this research.

Lack of access of published cases in the area as well as non- accessibility of important journals
and books in the library which are mandatory for the effective accomplishment of the study was
the other limitation while conducting the study.

Further, Poor internet connection and financial constraint was one among the other factors that
hindered the researcher while conducting the research.

7
1.9. Organization of the Study
The research paper is organized in to four chapters. The first chapter deals with the proposal part
of the research including; background of the study, statement of the problem, research objective,
research method and the like.

Chapter two is tasked with examining various literatures regarding the subject matter of the
research such as overview on evidence, historical development of hearsay evidence, hearsay in
civil proceedings.

Chapter three covers data analysis and finally conclusion and recommendation based on the
finding of the research is covered under chapter four.

8
CHAPTER TWO: LITERTURE REVIEW

2.1. GENERAL OVERVIEW ON EVIDENCE

Evidence is described as information presented in judicial or administrative settings to establish
the truth or falsity of a matter of fact. The origin of the term "evidence" is traced back to the
Latin word "evidentia," which means to clearly show or prove something.23

The historical background of evidence shows that the use of evidence to prove or disprove
alleged facts dates back to ancient times when disputes were settled before third parties. Ancient
civilizations such as the Greeks, Egyptians, and those near the Tigris River recognized the
importance of evidence, even though it was not as organized and comprehensive as modern
evidence law.24

Even though they are not in an organized &comprehensive manner in ancient civilizations the
concepts of evidence law like relevancy of evidence, the burden to come up with evidence
&proof by witness were practiced and contributed a lot for the development of the current rules
and principles of evidence.25 It is believed that evidence forms the foundation of every legal
system, as without it, the law would be subject to the will of those in power.26

2.2. Types of Evidences27

Types of evidence can be categorized into various categories based on their nature, source, and
admissibility in court. Analyzing the types of evidence provides a deeper understanding of the
different forms of evidence that can be presented in legal proceedings.

Here are some common types of evidence.

23
Evidence at Merian Webster
24
Kahsay D. and Andualem Teaching Material on Law of Evidence, Prepared under the Sponsorship of the Justice
and Legal System Research Institute, 2009
25
Ibid
26
Evidence at Merian Webster
27
Types of Evidence Admissible in a Law Court, available at [Link]/court proceedings/ last accessed
In April 2024

9
Direct Evidence: Direct evidence is evidence that directly proves a fact without the need for
inference or interpretation. An example for direct evidence is an eyewitness testimony. The
parties to the proceedings will usually give oral evidence in open court, as will any witness who
is called to provide oral evidence. A witness statement is a true, accurate summary of a lay
witness’s evidence as to the facts.

Circumstantial Evidence: Circumstantial evidence is indirect evidence that requires inference

to establish a fact. It does not directly prove the fact but allows the fact-finder to draw
conclusions based on the circumstances surrounding the evidence. For example, fingerprints
found at a crime scene would be considered circumstantial evidence.

Physical (Real) Evidence: Physical evidence includes tangible objects or materials that are
relevant to a case. This can include weapons, DNA samples, documents, photographs, and other
physical items that can provide information or support a claim

Documentary Evidence: Documentary evidence consists of written or recorded documents that

are presented in court to prove a fact. Documentary evidence can be wide ranging & includes
any documents or written records that help prove or defend a claim & it may essentially anything
that contains writing, including digital records, this type of evidence ranges from diaries,
spreadsheets, and work accident log books, employment contracts, and medical notes, to vehicle
repair invoices, pay slips, transcripts of phone calls and emails.

Demonstrative Evidence: Demonstrative evidence includes visual aids or exhibits used to

illustrate or demonstrate a point in court. This can include maps, charts, diagrams, photographs,
videos, and other visual materials that help clarify complex information for the fact-finder

Scientific Evidence: Scientific evidence involves the use of scientific methods and techniques to
analyses and interprets data relevant to a case. This can include forensic evidence, DNA analysis,
ballistics reports, and other scientific findings that support or refute a claim

Hearsay Evidence: Hearsay evidence is an out-of-court statement offered in court to prove the
truth of the matter asserted. Hearsay is generally not admissible in court unless it falls under an
exception to the hearsay rule. Hearsay evidence is a statement made on oral evidence in the
proceeding that is evidence of the matter stated. Evidence is said to be hearsay where a witness

10
in proceedings seeks to give evidence of a particular facts on the basis of what was said to him or
her by a third party.

2.3. Relevancy and Admissibility of Evidence

In civil matters, the concepts of relevancy and admissibility of evidence are crucial for the fair
and efficient resolution of disputes. These principles are guided by the rules of evidence, which
vary by jurisdiction but generally aim to ensure that only relevant and reliable evidence is
presented in court.

All types of evidences are not admissible before a court proceeding to prove certain alleged fact
even though they are relevant to the fact in issue.28

2.3.1. Relevancy of Evidence in Civil Matters29

Relevancy of evidence in civil cases is determined by its probative value in proving or
disproving a fact that is in dispute and is material to the case. The Federal Rules of Evidence
(FRE) Rule 401 defines relevant evidence as evidence having any tendency to make a fact more
or less probable than it would be without the evidence. Courts assess the relevancy of evidence
based on whether it logically connects to the issues in the case and helps establish the elements
of the legal claims or defenses asserted by the parties.

Materiality refers to the rational aspects of relevancy and for evidence to be relevant a logical
relationship needs to be established between the evidence tendered and the fact to be proved. 30

2.3.2. Admissibility of Evidence in Civil Matters

Admissibility of evidence in civil cases is governed by rules such as the FRE, state rules of
evidence, and case law interpreting evidentiary standards. FRE Rule 402 states that relevant
evidence is admissible unless otherwise provided by the Constitution, federal statute, or other
rules. Courts evaluate the admissibility of evidence based on factors such as authenticity,
reliability, hearsay exceptions, privilege, and fairness considerations.31

28
Law of Evidence, p. 50
29
Federal Rules of Evidence (FRE), Rule 401: [Link]
30
Relevancy and Admissibility of Evidence available at Www Abyssinia [Link], last accessed in April
2024 (here in after Relevancy & Admissibility of Evidence
31
Federal Rules of Evidence (FRE), Rule 401: [Link]

11
2.3.3. Balancing Relevancy and Admissibility in Civil Matters
Attorneys must carefully select and present evidence that is both relevant and admissible to
support their arguments effectively. Judges have discretion to exclude evidence that is irrelevant,
unduly prejudicial, or inadmissible under the rules of evidence to ensure a fair trial. Adhering to
evidentiary rules and principles helps maintain the integrity of the legal process and promotes the
just resolution of civil disputes.

By understanding the principles of relevancy and admissibility of evidence in civil matters,

parties can navigate the evidentiary requirements effectively and present compelling arguments
supported by admissible evidence. Legal practitioners should be familiar with the applicable
rules of evidence and case law to strategically leverage evidence in civil litigation proceedings.

2.4. Evidence under the Ethiopian Legal System

Since, Ethiopia has no codified material on law of evidence, the rules of evidence are found
scattered in various substantive and procedural laws of the country. Under the Ethiopian legal
system, evidence is governed by various laws and regulations, including the Criminal Procedure
Code, Civil Procedure Code, and other relevant legislation.32

In Ethiopia, each area of law has incorporated rules of evidence regulating how disputes may be
raised under that specific area could be proved. 33 For instance, currently operating family laws of
Ethiopia; particularly the Federal Revised Family Code has incorporated rules of evidence on
how assertions on family matters are going to be attested. 34 Similarly, the civil code on law of
general contract has provided a separate chapter of evidence rules on how allegations in contract
would be established.35

When we come to the issue of hearsay evidence, the scattered Ethiopian evidence rules does not
provide a clear rule as to the admissibility or otherwise of hearsay evidence before a court
proceeding.36 The absence of a clear legal provision on hearsay evidence to the effect that either

32
Law of Evidence available at Www. Abyssinia [Link] last accessed in October 2017
33
Ibid.
34
The Revised Family Code of The Federal Democratic Republic of Ethiopia (herein after RFC),
Proclamation No.213/ 2000, Art 94-97
35
Civil Code of Ethiopia, 1960, Art 2001-2026c. No. 165/1960, Fed. Neg. Gaz.
(Extraordinary issue), Year 19, No. 2
36
Law of Evidence, p. 83

12
hearsay evidence is admissible or not before a court triggered the controversy among judges in
relation to the admissibility of hearsay evidence in Ethiopia.37

2.5. Hearsay Evidence

2.5.1. General overview on the Rule of Hearsay Evidence
The hearsay rule generally operates to prohibit a witness from reporting a statement made by
another person where the truth of any fact asserted in that statement is incapable of being tested
in court. This rule is designed to ensure the reliability and accuracy of evidence presented in
court by requiring witnesses to testify based on their personal knowledge rather than repeating
what others have said.38

The origins of the approach of hearsay rule may be traced back to the early 13th century where
the need to exclude hearsay was first recognized. Hearsay evidence is one type of oral evidence.
This is a type of evidence given by a witness based on the information he has attained from the
statements made by others.39

Definition of hearsay

It is clear that in most of the legal doctrines’ definition of a certain concept necessarily
determines the scope. Thus, definition and scope are inextricably linked. In the coming
discussions, the definition of hearsay is analyzed together with its dimensions that fall within the
concept.

Bronstein gives a precise definition and essential elements thereof. Accordingly, hearsay is
defined in pertinent part as ‘a statement, other than one made by the declarant while testifying at
the proceeding or hearing, offered in evidence to prove the truth of the matter asserted.’ In turn,
the term "statement" is defined to include "(1) an oral or written assertion or (2) nonverbal
conduct of a person, if it is intended by the person as an assertion.40

At least two people are necessary for hearsay evidence to exist. The person who made the out-of-
court statement - the declarant -and the person on the witness stand telling the court what the

37
Ibid.
38
Law Reform Commission Consultation Paper, Hearsay in Civil and Criminal Cases (LRC CP 60-2010). Available
At [Link] last accessed in April 2024
39
Kahsay D. and Andualem E., Teaching Material on Law of Evidence, Prepared under the Sponsorship of the
Justice and Legal System Research Institute, 2009
40
BRONSTEIN DANIEL, LAW FOR THE EXPERT WITNESS, 2nd edition, CRC press, (1999),

13
declarant has said. Hearsay is oral, written, or nonverbal conduct of a person intended as a
statement, and who has not seen, or known of the fact by himself/herself, but who has heard that
statement and later testified what he/she has heard to the court.41

There are two types of definitions of hearsay: assertion-centered and declarant-centered. Under
an assertion-centered definition, an out-of-court statement is hearsay when it is offered in
evidence to prove the truth of the matter asserted. 42 Under a declarant-centered definition, an
out-of-court statement is hearsay when it depends for value upon the credibility of the
declarant.43 This implicates that statement is a fact that the declarant intended to communicate
orally, in writing, or with nonverbal conduct. In order for an utterance to fall within the scope of
hearsay, first it must be capable of constituting a statement and then it must be asserted as a truth.
Many utterances do not amount to statement at all in that the words carry no descriptive content
capable of being true or false.44

Raymond claims that “hearsay is any out-of-court proceedings statement tendered to prove the
truth of the matter, and a statement is any representation of fact or opinion made by a person by
whatever means (including any representation made in a sketch, photo fit or other pictorial form)
45
Sometimes, a statement is offered into evidence for some reason other than to prove the truth
of the matter asserted therein. In instances where a statement is significant merely because of the
fact that it was made, it is not considered to be hearsay because it is not being offered to prove
the truth of the assertion contained within the statement.46 Where there is no need to test its truth,
it is not hearsay. Thus, the concept or scope of hearsay is limited to those statements that are
made to prove the truth of the matter asserted there in.

Generally, hearsay is any form of statement generated out of the court by a person who is the
facts which have been asserted.47 In spite of this, it is not always easy to draw a distinction
41
Chang Ming-woei, Adoption of the Common Law Hearsay Rule in a Civil Law Jurisdiction: a Comparative
Study of the Hearsay Rule in Taiwan and the United States, ELECTRONIC JOURNAL OF COMPARATIVE LAW,
Vol. 10
No.2 October 2006)
42
Ibid.
43
Ibid.
44
REAY ROSAMUND, EVIDENCE, Old Bailey Press, 3rd edition 2001
45
EMSON RAYMOND, EVIDENCE, Palgrave Macmillan, 4th Edition Replika Press Pvt Ltd, 2006 and reprinted
2008.)
46
Ibid.
47
Law Reform Commission, Consultation Paper: hearsay in civil and criminal cases, March 2010. .Available at
[Link]

14
between statements that fall within the ambit of the rule and those that fall outside it. This is
especially so in the context of the distinction between original evidence and hearsay. Byrne
makes a distinction between original evidence and hearsay evidence as follows:
It is a long-established rule in the law of evidence that original evidence of a statement is
admissible not to prove that the statement is true but to prove that it was made. A statement may
be admissible as original evidence because it is itself a fact in issue or the statement is relevant to
a fact in issue (emphasis added) in the proceedings. If the evidence is adduced for either purpose,
the fact that a statement is made out of court does not render it hearsay.

The hearsay rule excludes extrajudicial utterances only when offered for a special purpose,
namely as assertions to evidence the truth of the matter asserted. 48 It is well-established that the
essence of hearsay encompasses not merely oral statements but also written and documentary
statements depending on the purpose for which they are adduced in evidence. Conduct also
amounts to hearsay in so far as those gestures amount to 'verbal' assertions, that is, statements
equivalent to words.49 It is generally accepted that conduct falls within the scope of hearsay
where it is intended to be communicative or to the extent that it asserts some fact.

2.5.2. The Emergence of the Exception to the Hearsay Rule

By the beginning of 19th century, the hearsay rule had become well established and the emphasis
shifted to definition of its range and the creative of expectations to the rule50 these expectations

Include admissions, spontaneous statements connected with the subject matter of the case
(resgestae rule); dying declarations public documents; and certain statements made in previous
proceedings.51

Originating in common law, the inadmissibility of hearsay evidence rule was designed to curb
the abuses inherent in presenting a jury with a witness‟ prior out of court statements where the
accuracy, truth, clarity, and credibility of the statements have not been tested by cross-

48
Ibid
49
Donnelly Roy, The Hearsay Rule and the Uniform Evidence Act, UNIVERSITY OF TASMANIA LAW
REVIEW, Vol. 25, No. 1 (2006),
50
Tapper Cross & Tapper on Evidence 8th ed. 1995
51
Law Reform Commission Consultation paper

15
examination.52 The other justification for the inadmissibility of hearsay is that it is not the best
evidence and it is not delivered on oath.53

 Automatically Admissible Hearsay.54

A. Unavailability of declarant

The first category of automatically admissible hearsay is a hearsay which is the best evidence
available, because the declarant is not available to give oral evidence. This category includes a
first-hand hearsay statement made by an identifiable person who is unavailable to give oral
evidence because he/she:-

 Is dead or too ill to be a witness;

 Is outside the state and it is not reasonably practicable to secure attendance; or
 Cannot be found.

A party would not be allowed to adduce hearsay evidence in any of the above cases where that
had deliberately caused the unavailability of the declarant in order to prevent him or her from
testifying

B. Reliable Hearsay: -

It is the second category of automatic admissibility where the hearsay material has come in to
being on such circumstances that it is sufficiently reliable to be admissible. An example is
“business documents”, namely documents created or received by a person in the course of the
trade, business profession or other occupation or as a holder of a paid or unpaid office. An
additional example can be the res gestate exception under which a statement made by a person so
emotionally over powered by an event that the possibility of concoction or distortion can be
disregarded is admissible.

C. Admissions: -

52
J. Weinstein & M. Berger, Weinstein‟s Evidence, available at [Link] (here in after J.
53
Evidence in Criminal Proceedings: Hearsay & Related Topics, available at [Link] last
Accessed in April 2024.
54
Ibid

16
This is the final category of automatic admissibility and such it would continue to be admitted on
the general assumption that what the person says against the person’s own interests is likely to be
true.

2.5.3. The Approaches Adopted in various Jurisdictions Regarding the Rule of Hearsay
Formerly, it was generally accepted that hearsay was inadmissible except in corroboration of
other evidence, a doctrine which emphasizes comparative value rather than admissibility. 55
When the Anglo-Norman inquisitorial system of litigation transformed into the adversarial
system, the rule rejecting hearsay was also adopted. What makes inquisitorial system quite
distinct from adversarial is that witness's answer to the court's question is allowed to be free-
flowing and lengthy, uninterrupted by evidentiary objections from opposing counsel, and hence
much evidence that otherwise might be prohibited is tired in open court. 56 The rule hearsay
evidence has been developed in the common legal system nothing is said about hearsay in the
civil law legal system following countries, thus the following common law countries are selected
by the researcher to examine the approach adopted regarding hearsay evidence.

1. The Experience of Japan

The Japanese Civil procedure acts provided that hearsay evidence is not admissible unless it
satisfied one of the hearsay expectations provided under the act. 57 The hearsay expectations are
classified in to two categories, namely, consent by the plaintiff and other exceptions. 58

In practice, in Japan the plaintiffs give consent to documentary evidence which he or she did not
challenge at an earlier stage of the proceeding, and that evidence is admitted straightway. 59
However if the plaintiff does not consent to the evidence being admitted, the proceeding bears
onus of proving that the evidence satisfies one of the hearsay exceptions. 60 One common hearsay
exception in Japan provides that a signed written statement containing a prior representation of a

55
Morgan Edmund, Hearsay Dangers and the Application of the Hearsay Concept, HARVARD LAW REVIEW Vol.
62 No. 2 (December, 1948)
56
GLENDON, CAROZZA, AND PICKER, COMPARATIVE LEGAL TRADITIONS, (West Publishing Co., 3rd
ed., 1982), at
252-253 [hereafter GLENDON et al]
57
Kyoto Ishida, Evidence law in Japan & Australia: Principles, Practice & Reform, Nr. /No.22(2006) (here in after
Evidence Law in Japan & Australia: Principles, Practice & Reform)
58
Ibid.
59
Ibid.
60
Ibid.

17
person other than the plaintiff and recorded by court is admissible if the person is not available to
give 61the evidence.

2. The Experience of United States

In America hearsay evidence is generally inadmissible in civil proceeding. 62 In 1975, the

American congress officially incorporated the common law rule against admission of hearsay
evidence into the Federal Rules of evidence and simultaneously codified many of the common
law exceptions.63

Although the rules apply only to federal courts, most states have patterned their own evidentiary
rules after the federal system.64 The exceptions provide for admission of hearsay evidence when
a witness made statements under conditions that guarantees of trustworthiness and under various
circumstances where the declarant is unavailable for proceeding 65. The hearsay rules do prohibit
the proponent of hearsay evidence from using an unavailability exception to admit the evidence
when that party caused the declarant to be unavailable to testify at proceeding.

2.5.4. The Hearsay Rule in Civil Cases66

In civil cases hearsay is, in general, admissible for example, England, Northern Ireland,
Scotland, Australia, South Africa, and the United States. In general this has been justified on the
basis of combination of: the absence of juries on civil proceeding; that the consequences in terms
of outcomes in civil litigation are different; but, perhaps just as importantly, that civil
proceedings often involve sufficient procedural protections, such as advance disclosure and
discovery of documents, that any potential prejudice arising from the introduction of hearsay is
minimized.

In Ireland the hearsay rule applies, in principle to civil cases. In practice, however, in civil
cases, parties are free to, and often do, waive any objections to evidence which is hearsay,
notably in the case of documentary information and expert reports.

61
Ibid.
62
Paul T. Markland, „The Admission of Hearsay Evidence‟, American University Law Review, Vol.43, p.995, (here
in after Paul T., Admission of Hearsay Evidence)
63
Ibid.
64
Ibid.
65
Ibid.
66
Law Reform Commission Consultation Paper.

18
In South Africa the law of evidence amendment Act 1988 provides a declarant-oriented
definition of hearsay as well as more flexible criteria for admissibility but allow relevant
evidence to be admitted. The effect of the 1988 Act is that the court has discretion to admit or
exclude hearsay in contested cases where the maker of the statement does not testify.

The English law commission was of the view that the weakness of the hearsay rule cannot be
remedied just by way of clear explanation. It is not justifiable to exclude relevant evidence solely
because of its hearsay nature and the interests of justice may be better served by providing the
court with all the relevant information necessary to make an informed choice. In the principle,
there is no objection to allowing hearsay to be admitted in civil proceedings and the key issue is
the weight that the court should attach to hearsay.

The consensus was that in civil proceedings hearsay may be admitted, subject to judicial
discretion both to exclude the evidence & to decide the weight to be accorded to the evidence. It
was suggested that first the court should consider the reason why direct evidence is not being
offered before accepting the hearsay.

South Africa follow wide judicial discretion to admit hearsay evidence, to the effect that judges
would be permitted to admit hearsay evidence after considering certain conditions of a general
character. The court would be authorized to admit hearsay evidence once the reliability, probity,
& fairness were met. In addition, the admission of the evidence had to be in the interests of
justice. It is generally recommended that in civil proceedings, hearsay is admissible where:

a) The maker of the statement is unavailable as a witness because he/she: -

 Is dead
 Is in ill health and is unable to testify
 Cannot be identified or found
 Is outside the jurisdiction and it is not possible to obtain his/she evidences

b) Requiring the maker of the statement to be a witness would cause undue delay or

Expense and,

c) The court is satisfied that cross-examination of the witness is not necessary.

19
2.5.5. General Overview on the Ethiopian Legal system on the Issue of Hearsay Evidence
As have said earlier, since Ethiopia has no codified material on law of evidence, the rules of
evidence are found scattered in various substantive and procedural laws of the country. 67 None
of these substantive or procedural laws does regulate the issue of admissibility or otherwise of
hearsay evidence before a court proceeding. 68 The absence of a clear hearsay evidence rule that
either made it admissible as a rule or as an exception contributed a lot for the existence of
controversy between legal scholars69 and judges in relation to the admissibility of hearsay
evidence in the Ethiopian legal system.70

The bases for the existence of such controversy are the provisions provided under the civil
procedure code which says:” questions put in examination in chief shall only relate to facts
which are relevant to the issue to be decided and to such facts only of which the witness has
direct or indirect knowledge”.71 Accordingly there are practically contradicting court decisions
regarding the admissibility of hearsay evidence in different court.

let see an argument provided by an Ethiopian lawyer regarding hearsay evidence, Daniel Hailu,
lecturer in AAU, who has a long-time experience and knowledge regarding evidence law argue
that hearsay evidence in Ethiopia is made admissible, like that of the civil law legal system, in
principle and he asserts as follow: -

Even though there are occasions in which hearsay evidence is excluded from being admissible
before Ethiopian courts, as per the clear stipulation of article 263(1) of the civil procedure code,
hearsay evidence is incorporated in principle as being admissible before courts as evidence to
prove a fact in issue. Particularly, the Amharic version of the procedure codes clearly witnesses
the inclusion of hearsay evidence Under Ethiopia Legal system.72

Now let us examine the practice of courts:

67
Law of Evidence, available at [Link], last accessed on November 2017
68
Kahsay D. and Andualem E., Teaching Material on Law of Evidence, Prepared under the Sponsorship of the Justice
and Legal System Research Institute, 2009
69
Tesfaye Abate, Hearsay Evidence.
70
Ibid.
71
Civil procedure code of the Empire of Ethiopia, Art.263(1), Decree No 52 of 1965,Negarit Gazette
Extraordinary Issue No.3, 25th year, Addis Ababa, 8 October 1965
72
Tesfaye Abate, Hearsay Evidence.

20
In a given case, which is brought before the federal Supreme Court, the court ruled against the
admissibility of hearsay evidence. The issue of the case was in relation to maintenance of car and
the witness testified before the court what they have heard from the person who maintained the
car. The experts testified that what they have said was all what they have heard from the

mechanic, how on the supreme court rejected the testimony of the experts by saying that their
testimony cannot be qualified an expert opinion (witness), since the base for their information
was not their technical knowledge and what they have seen rather what they have reduced from
the mechanic. So, this fact makes their opinion hearsay rather than expert opinion.73

2.5.6 THE BASIC JUSTIFICATIONS FOR THE EXCLUSION OF HEARSAY EVIDENCE IN

CIVIL MATTE.74
A. LACK OF CROSS-EXAMINATION

Absence of cross- examination is the most important justification to exclude hearsay statement,
because the declaration was made out of court rather than before the court, and not subject to the
test of cross- examination.

Cross- examination is described as the greatest legal engine invented for the discovery of truth. It
is a means by which the other party tries to show how the testimony given by a witness against
him is doubtful, erroneous or untrue. To this end the right person to be cross-examined is not the
hearsay witness but the person who has the original information.

The hearsay witness may be cross-examined, but the witness may refer the answer to the original
declaration where cross-examination becomes ineffective. He may simply say that is how he
heard it or told. If it were the original person he cannot transfer because he said he had personal
knowledge about the fact he testifies. He cannot say that he was told so.

This shows that the lack of opportunity for the adversary to cross examine the absent declarant
whose statement is reported by a witness is one of the main justifications for exclusion of
hearsay.

B. ABSENCE OF OATH

73
Kulmanit Adriano Vs Gebremedhin Bukure; Federal Supreme court, Civil File No.201/77, Cited in Tesfaye Abate,
Hearsay Evidence.
74
Kahsay D. and Andualem E., Teaching Material on Law of Evidence, Prepared under the Sponsorship of the
Justice and Legal System Research Institute, 2009

21
The other most important reason next to cross examination is that the declarant is not under oath.
Usually the out-of-court declarant was not under oath at the time of declaration. It is similar with
the concept that, “hearsay statement is not testimony” due to the lack of oath purposes like
solemnity of the proceedings and court’s commitment to the truth and the witness’s legal duty to
tell the whole truth.

C. TESTIMONIAL INFIRNITY

A testimonial infirmity is a concept dealing with problems of misperception, faulty memory,

ambiguity and distortion in relation to an oral statement of an out of court declarant. This mean
the person who made the statement may have wrongly perceived the events in question, and
because of fallibility of human nature, the memory of the person who heard the statement may be
affected and finally there may be distortion of events.

22
CHAPTER THREE: DATA PRESENTATION AND ANALYSIS

3.1. The status of hearsay evidence under the Ethiopian legal system
It is well known fact that Ethiopia does not have a separate and codified law of evidence. Rather
our evidentiary rules are found scattered here and there throughout the substantive and
procedural laws mainly under the civil Procedure Codes of the country. This here and there
scattered evidence rules are not comprehensive and far from being complete. There are manifest
gaps on these scattered statutory evidence provisions which opened a door for a great deal of
judicial discretion, particularly in relation to admissibility of evidence. 75

Accordingly, in order to fill the existing gaps, many of the principles of the Draft Evidence Rules
of 1967(here in after DER) have been on use on our courts without citing them as binding law
due to the fact that they are not yet ratified by legislature of the country.76

Regarding the admissibility or otherwise of hearsay evidence, the scattered evidence rules of
Ethiopia in nowhere provided a single provision dealing about the issue of hearsay evidence, in
fact as mentioned in chapter two, the scattered rules also did not incorporated a comprehensive
rules regarding the admissibility of other categories of direct evidence.

Let us see the rules of evidence found in the civil procedure codes. The civil procedure code
provided that “questions put in examination in chief shall only relate to facts relevant to the issue
to be decided and only to such facts of which the witness has direct or indirect knowledge”.77

75
Evidence in Ethiopia, available at [Link] last accessed in MAY 2024(here in after
Evidence in Ethiopia )
76
Ibid
77
Civil procedure code of the Empire of Ethiopia, Art.263(1), Decree No 52 of 1965 Negarit Gazette
Extraordinary Issue No.3, 25th year, Addis Ababa, 8 October 1965.

23
As said earlier here in, as per the Ethiopian civil procedure codes a witness could testify any fact
of which he has direct or indirect knowledge. The phrase incorporated under the civil Procedure
codes as “indirect knowledge” raises the question whether it has been intended to incorporate
hearsay evidence under it or otherwise. For this question we can categorize the response of legal
practitioners in to two categories.78

Some provides that the phrase “indirect knowledge” under the civil procedure codes include
hearsay, in this respect Mr. Daniel (a long experienced evidence law lecturer in Addis Ababa
University) argues that even though there are occasions in which hearsay evidence is excluded
from being admissible before Ethiopian courts, as per the clear stipulation of article 263(1) of the
civil procedure code, hearsay evidence is incorporated in principle as being admissible before
courts as an evidence to prove a fact in issue. Particularly Daniel argues that the Amharic version
of the codes clearly witness the inclusion of hearsay evidence under the Ethiopia legal system. 79

While others argue that the phrase “indirect knowledge” implies circumstantial evidences rather
than hearsay which have the effect of making hearsay evidence admissible before courts as a
rule. They argue that, particularly Tesfaye Abate, since admitting hearsay evidence as a rule
results in the effect of contradicting the constitutional rights of accused persons to confront their
accusers evidences as provided under article 20(4) of the FDRE constitution, thus we have to
admit hearsay evidence only in exceptional circumstance like the practice of common law
countries in order to be in line with the constitution.80

Also judges in Dilla town first instance Court (here in after DTFIC) interpret the phrase indirect
knowledge in two opposing lines. Particularly, Mr. Shemalise mengesha argue as follow:

The phrase indirect knowledge incorporated under the civil procedure codes should be
interpreted to include hearsay and circumstantial evidence. Because, during the stage of
examination of witnesses the court asks the witnesses to testify what they have seen; heard and
understood in relation to the fact in issue. Thus, what the witnesses testify on the basis of what
they had heard includes hearsay evidence. Thus the major question should not be whether the
testimony is direct or hearsay evidence, rather it should be whether the evidence satisfies the
78
Minilik Alemu, Testimonial Evidence and Ethiopian Law (A.A.U.F.L, unpublished) Cited at Tesfaye Abate
Hearsay Evidence.
79
Tesfaye Abate Hearsay Evidence, P.42(Translation by the Researcher)
80
Id p.14(Translation by the Researcher)
24
required weight of proof by the court. Since there is no general analysis of rules of admissibility
of proof under the Ethiopian rules of evidence, judges would have a discretion to determine the
admissibility or otherwise of any evidence by applying their own personal evaluation.81

Whereas Mr. Damise jabo who are judges in Dilla town first instance court argue as follow: The
phrase “indirect knowledge‟‟ under article 263(1) of the civil procedure codes should be
interpreted with the effect to include circumstantial evidences but not to include hearsay.
otherwise, interpreting indirect knowledge to include hearsay would have the effect of making
hearsay admissible as a rule under the Ethiopia legal system which would result in unfair
prejudice to the party right of cross examining witnesses.82

Accordingly, in line with these opposing interpretations, some judges argue that hearsay
evidence was not admissible as a rule rather as an exception, while others argue that the major
question should not be whether the evidence submitted was direct or hearsay, rather it should be
whether the evidence satisfies the required weight of proof by the court.

3.2. The intention of the law maker in relation to admissibility of hearsay evidence under
the Ethiopian legal system
Since it helps to know the intention of the law maker and one means of interpreting unclear legal
provisions, let us examine the legislative history of the codification process of the 1960‟s
Ethiopian codes, particularly emphasis will be made on the Draft Evidence Rule(here in after
DER).

In the 1950‟s, Emperor Haile Selassie established Codification Commission that was actually
established to carry out the tasks of codification as well as supervising the works of the foreign
drafts persons.83 There are sub-committees under the commission that are assigned to work
closely with a foreign drafts person.84 When the sub-committee finished the assigned task, the
work was submitted to the codification and up on approval by the commission it passes to the
Council Of Ministers.85

81
Interviewed on May 27, 2024 G.C
82
Interviewed on May 27, 2024 G.C
83
Murado Abdo, Ethiopian Legal History and Tradition, Prepared under the Sponsorship of the
Justice and Legal System Research Institute, 2009, pp. 256-257(here in after Ethiopian Legal
History and Tradition)
84
Ibid.
85
Ibid.
25
Then, the council of ministers passes the draft documents to the joint meeting of the two
chambers, finally up on the assent of Emperor Haile Selassie; the draft documents obtained the
status of a valid law.86 This pattern had been followed in respect of the codification process of all
codes. Unlike the civil procedure codes which had been drafted and adopted within the same
decade with the DER of 1967, unfortunately the DER had remained ineffective. It has been said
that the DER basically copies the Indian evidence act which had been highly influenced by the
common law adversarial system.87

Thus, we can infer the fact that civil procedural code and DER are transplanted from the
common law legal system. Unlike the provisions of the civil procedure codes which had been
silent as to whether hearsay evidences are admissible as a rule or as an exception, the DER
incorporated hearsay evidence as an exception which is admissible on exceptional grounds but
not as a rule.88

The exceptions provided under the DER include, dying declaration; statements made in the
ordinary course of business; declaration against once interest and statements of opinion as to the
existence of a public right or custom.89 When we come to the issue, as mentioned here in above
the point of controversy in relation to admissibility or otherwise of hearsay evidence in Ethiopia
has been the phrase “indirect knowledge” provided under article 263(1) of the civil procedure
code of Ethiopia. Accordingly, some argue that the phrase “indirect knowledge” has been
incorporated under the Procedure Codes was intended to include hearsay evidence.90

When we came to the DER, it clearly excluded the admissibility of hearsay as a rule and it had
stipulated the exceptional situations by which hearsay is going to be admitted. In fact the DER
and the procedure codes had been drafted during the same era under the supervision of the
codification commission as said herein above, thus had it been the intention of the law maker to
incorporate hearsay under the procedure codes within the phrase of “indirect knowledge” which
have the effect of making hearsay admissible as a rule, why the law maker again made the
admissibility of hearsay evidence as an exception under the DER? That is, if it had been the
intention of the law maker to make hearsay evidence admissible as a rule under the procedure
86
Ibid.
87
Evidence in Ethiopia
88
DER, Rule 29
89
Ibid.
90
Interview made with Dilla town first instance court judge on May 27,2024 G.C

26
codes, it should have been incorporated hearsay evidence to be admissible as a rule under the
DER. To this effect, the DER could be cited as an exception to the hearsay, and similarly until a
clear hearsay rule is proclaimed hearsay evidence need to be used as an exception like the
practice in the common law legal system.

3.3 The practice of Dilla town first instance court in relation to the admissibility of hearsay
evidence in civil matter.
On the preceding sub sections, the researcher examined and analyzed the status of hearsay
evidence under the Ethiopia legal system as well as the intention of the law maker regarding the
admissibility of hearsay evidence in civil matter. Now under this sub section, the researcher has
been devoted to analyze the practice of Dilla town first instance court (DTFIC) regarding the
admissibility of hearsay evidence based on the collected date through interview made with
judges and lawyers in light with the legal framework of Ethiopia regarding hearsay evidences.

All judges in DTFIC almost confirmed that hearsay evidence in the court has been admissible as
supportive evidence and exceptionally as primary evidence, but not as a rule in every case. For
the sake of clarity let examine the response of some judges regarding their experience in the
Dilla town first instance court.

While presiding before DTFIC, Mr. Shemalise mengesha said, he often admits hearsay evidence
as supportive evidence to direct or primary evidences and exceptionally as he said; he admitted
the dying declaration of party as main evidence to the alleged defendant.91

Further, as [Link] jabo said regarding the practice of DTFIC, while he has been presiding
before the court he admits hearsay evidence on exceptional grounds but he does not admits
hearsay evidence as a rule.92

Generally regarding the practice of DTFIC, as the judges said, a number of hearsay testimonies
had been brought before the court while they had been presiding before the court. Accordingly,
as the judge said, hearsay evidences that had been brought together with other evidences are
made admissible. Mostly hearsay evidences alone had not been admitted since they do not satisfy
the required weight of proof by the court.

91
Interviewed on May 27 2024 E.C.
92
Interviewed on May 28 2024 E.C.
27
From the response of judges in DTFIC, we can infer that hearsay evidence was often admitted by
the court as supportive evidence together with other direct evidences, since, as the judges said, it
alone does not satisfy the required weight of proof by the court to be admissible. As mentioned
here in the preceding section the Ethiopian evidence rules does not provide a clear provision as
to the admissibility of hearsay evidence, however from the response of the judges we can infer
that the court often admits the dying declaration by deceased alone as a sufficient evidence to
plaintiff. Thus the DTFIC has been impliedly using the exception of hearsay rule provided under
the DER particularly in relation to dying declaration. Plus, in DTFIC hearsay evidence was often
inadmissible as a rule rather as an exception as it can be inferred from the response of judges.

28
CHAPTER FOUR: CONCLUSION AND RECOMMENDATION
Under this section a precise conclusion could be made on the bases of the analysis conducted
under the preceding chapter of the study. Then, next based on the finding of the study the
possible recommendations by the researcher would be provided.

4.1. Conclusion
The researcher concludes the following based on the findings of the research:

 With the exception of the draft evidence rule, there is no a clear rule of evidence that
addressed the admissibility of hearsay evidence under the Ethiopian legal frame work.

 Hearsay evidence was admissible in DTFIC as supportive evidence together with other
direct evidences. The court does not admit hearsay evidence alone as a rule since the
evidence does not satisfy the required weight of proof by the court.

 Dying declaration of deceased had been made admissible as primary evidence to party in
DTFIC.

 There was a contending argument among judges of DTFIC regarding the interpretation of
the phrase indirect knowledge under the civil procedures codes. Some judges interpret it to
include hearsay which others not.

4.2. Recommendations
 Under the preceding sections the researcher has been tried to investigate and prove the
existing controversy regarding the status of hearsay evidence under the Ethiopian legal
system in general and examined and proved the practice of Dilla town first instance court
(DTFIC) in particular. Now the researcher recommends the following based on the finding
of the study that has been believed to overcome the existing gap and controversy regarding
the status of hearsay evidence.

29
 The parliament should proclaim a codified evidence rule that comprehensively regulates the
admissibility of evidence including hearsay, because doing so could provide protection for
citizens not to be subject to unfair judgment. Further, if the rule is stipulated in clear and
accessible terms, it will enhance the administration of justice more efficiently and
consistently.

 The phrase indirect knowledge should not be interpreted to include hearsay, because doing
so will have the effect of admitting the evidence as a rule under the Ethiopian legal system.
Because the witnesses absence from trail possess a serious right of party beyond mere
evidentiary considerations.

 Until the codification of effective evidence rule, the admissibility of hearsay evidence
should be seen in light with the rights of party.

 Further, the researcher recommends the judges of (DTFIC) to continue in their practice of
admitting hearsay evidence as a supportive evidence and as an exception if it is alone until a
comprehensive evidence rule has being proclaimed.

30
BIBLOGRAPHY

1, Books

 Dawn Snape and Liz Spencer, 'The foundations of qualitative Research', in Jane Ritchie
and Jane Lewis(eds.), Qualitative Research Practice: A Guide for Social Science
Students and Researchers, First Published in 2003, Sage Publication, London
 Healy, Irish Law of Evidence, Thomson Round Hall, 2004
 Jane Ritchie et al., 'Designing and Selecting Samples', in Jane Ritchie and Jane
Lewis(eds.), Qualitative Research Practice: A Guide for Social Science Students and
Researchers, First Published in 2003, Sage Publication, London
 Jennifer Mason, Qualitative Researching, 2nd edition, Sage Publication, London, 2002
 John W. Creswell, Research Design: Qualitative, Quantitative, and Mixed Methods
Approaches, 3rd edition, Sage publication, London, 2009
 Kristina Simion, Qualitative and Quantitative Approaches to Rule of law Research:
Practitioner's Guide, International Network to Promote Rule of Law (INPROL),2016
 Margaret, C. Harrell and Malissa, A. Bradley, Data Collection Methods: Semi-Structured
Interview and Focus Groups, Training Manual, RAND National Defense Research
Institute, 200
 Tapper Cross & Tapper on Evidence, 19th ed. Butterworth, 1999,
 Turner Kenny, Outlines of criminal Evidence (19th ed. Cambridge university press,
1966)
 Wigmore, Evidence in Trials at common law, 3 rd ed. little Brown & co-1974

2, Laws
31
  Civil Code of the Empire of Ethiopia, 1960, Negarit Gazette, Proc. No.165 3. Civil
Procedure Code of the Empire of Ethiopia, 1965, Negarit Gazette, Extraordinary Issue
No.3
 Civil Code of the Empire of Ethiopia, 1960, Negarit Gazzeta, Proc. No.165
 Constitution of the Federal Democratic Republic Of Ethiopia, 1995, Federal Negarit
Gazzeta, Proc. No.1
 Federal Rule of Evidence of United State of America.
 The Ethiopian Draft Evidence Rules, 1967(unpublished).
 The Revised Family Code of The Federal Democratic Republic of Ethiopia, 2000, Proc.
No. 213, Extra Ordinary Issue No.1

3, Journals and other materials

 Bryan A. Garner, Black‟s Law Dictionary, Ninth Ed

 Daniel Haile, Lecture note on Law of Evidence, Addis Ababa University, Faculty of
Law, 1994
 Kahsay D. and Andualem E., teaching material on Law of Evidence, Prepared under the
Sponsorship of the Justice and Legal System Research Institute, 2009
 Kyoto Ishida, Evidence law in Japan & Australia, principles, practice, & Reform,
Nr./No.22(2006)
 Lands man „The Rise of the Contentious Spirit and Advocacy Procedure in 18th century
England‟ Cornell Law Review, 1990
 Minilik Alemu, Testimonial Evidence and Ethiopian Law (A.A.U.F.L, unpublished)
Cited at Tesfaye Abate Hearsay Evidence
 Morgan, „Hearsay Dangers & the Application of the Hearsay Concept‟, Harvard Law
Review,1948
 Murado Abdo, Ethiopian Legal History and Tradition, Prepared under the Sponsorship of
the Justice and Legal System Research Institute, 2009
 Paul T. Markland, „The Admission of Hearsay Evidence‟ American University Law
Review, Vol.43 40
 Richard Tewksbury, 'Quantitative versus Quantitative Methods: Understanding Why
Qualitative Methods are Superior for Criminology and Criminal justice', Journal of

32
 Theoretical and Philosophical Criminology, Vol.1 (1)2009, University of Louisville,
pp.38-58
 Tesfaye Abate Abebe, „Hearsay Evidence‟, Mizzan Law Review, vol.6 No.1, pp. 136-
144, June2012

4, Internet sources

 Evidence available at [Link] [Link], dictionary evidence last accessed in

April 2024
 The purpose of evidence available at [Link] the free encyclopedia, last April
2024
 Hearsay rule available at [Link] the free encyclopedia, last accessed in April
2024
 American Federal Evidence Rule, available at [Link] evidence rule, last accessed in
April 2024
 Hearsay evidence available at [Link] paper on hearsay in civil &criminal
case/Law reform commission, 2010 1stpub last accessed in April 2024
 Types of evidence admissible in a law court, available at [Link]/court
proceedings
 Relevancy and Admissibility of Evidence available at Www. Abyssinia [Link] last
accessed in April 2024
 Purpose of The Law of Criminal Evidence available at
[Link]/Ipc/Criminal Litigation
 Law Reform Commission, AThchoiriu An Dri (LRC‟ CP 60-2010) available at
[Link]
 J. Weinstein & M. Berger, Weinstein‟s Evidence available at
[Link]
 The American Federal Rule Of Evidence available at [Link] Law
Review VOL.43.:995 12 American University Law Review VOL.43:995, available at
[Link] [Link]

5. Appendix. A

A. Interview Guide: Dilla University School of Law

33
 THE TITLE: THE ADMISSIBILITY OF HEARSAY EVIDENCE IN CIVIL CASES: LAW AND PRACTICE
IN DILLA TOWN FIRST INSTANCE COURT.

Prepared by: HABTAMU AYELE

INTERVIEW FOR JUDGES
1. Is there any hearsay evidence issue that you have faced while presiding
before the court? If yes, how you handled the case? If not, how will you
handle such cases?
2. What do you think regarding the status of hearsay evidence under the
Ethiopian legal system?
3. How could you interpret the phrase “indirect knowledge” under the civil
procedure code of Ethiopia ARTICLE 263(1)

6, Appendix B

List of Interviews

1. Mr. SHEMALSE MENGASHE Judge of DTFIC Interviewed on May 27, 2024 E.C

2. Mr. DAMISE JABO Judge DTFIC Interviewed on May 28, 2024 E.C

34