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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Mengiste & Anor v Endowment Fund for the Rehabilitation of Tigray & Ors  EWHC 4196 (Ch) (11 December 2014)
Cite as:  EWHC 4196 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| (1) Mulugeta Guadie Mengiste
(2) ADDIS Trading Share Company
|- and -
|(1) Endowment Fund For The Rehabilitation of Tigray
(2) ADDIS Pharmaceutical Factory Plc
(3) Mesfin Industrial Engineering Plc
Mr Assersohn (instructed by MS Legal) for the Defendants
Hearing dates: 28th – 31st July 2014
Crown Copyright ©
Peter Smith J:
REVIEW IN ETHIOPIA
"If the Claimants are successful then they will have their fair trial in Ethiopia based on the new material and if accepted a panel of Judges which does not involve Judge Mehretab and an independent judiciary.
On the other hand if that application fails depending on the reasons for its failure that may provide more compelling evidence that the Claimants will not obtain a fair hearing in Ethiopia. I must stress that I am not saying that a failure to obtain relief necessarily leads to the conclusion that the hearings were unfair. It depends entirely on how the hearings were disposed of."
EVENTS IN THE ETHIOPIAN COURTS AFTER THE HEARING
"Article 6 of the Ethopian Civil Code provides:
Art 6 Review of judgments
(1) Notwithstanding the provisions of Art 5., any party considering himself aggrieved by a decree or order from which an appeal lies, but from which no appeal has been preferred, or by a decree or order from which no appeal lies, may, on payment of the prescribed court fee, apply for a review of judgment to the court which gave it where: a. subsequently to the judgment, he discovers new and important matter, such as forgery, perjury or bribery, which after the exercise of due diligence, was not within his knowledge at the time of giving the judgment; and
b. had such matter been known at the time of the giving of the judgment, it would have materially affected the substance of the decree or order the review of which is sought.
(2) An application for review shall contain the same particulars as a memorandum of appeal and shall be supported by an affidavit containing strict proof of the fulfilment of the conditions laid down in sub-art (1)(a).
The application shall be filed within one month of the ground of application having been discovered by the applicant.
(3) On granting the application, after giving notice to the opposite party to enable him to appear and be heard in support of the decree or order the review of which is sought, the court shall make such order in regard to the re-hearing of the case as it thinks fit.
(4) No appeal shall lie from any decision of the court granting or rejecting an application for review."
THE NEWLY DISCOVERED EVIDENCE
"There were suggestions in the evidence that Mr Mengiste was aware of the connection but I was not convinced that was made out. In any event whether he was aware of the connection does not advance the Defendants' position. The duty of the Judge is clear; she must address the potential appearance of injustice that would ensue if she sat on the case. This she never did. I have no doubt that if this case was tried in England and the allegations were made in respect of an English Judge that Judge would be removed if he did not remove himself. "
ARTICLE 6 MANDATORY
DECISION OF TIGRAY SUPREME COURT
REASONS FOR TIGRAY SUPREME COURT DECISION
JUDGMENT OF TIGRAY SUPREME COURT
"What should be recognised here is that CPC Article 6 was intended to rectify a situation whereby and adverse judgment was passed against another arising from a criminally tainted act but not to give an individual the opportunity to present evidence that he failed to present during the main proceedings due to personal problems or his own failings. It cannot be imagined that the legislator would pass a law that would permit endless litigation."
JUDGMENT OF THE CASSATION COURT
"Its content, goal and objective, on the one hand, allow the review of judgments in the interest of correcting any misjudgement, by focusing on the proper service of justice and setting aside any expenses spent in the process arriving at a correct judgment. On the other hand, it makes the process of the review of judgments contingent upon circumstances that lend credence to the judgment passed by a judicial body so that litigation is not interminable and without resolutions.
There are three preconditions indicated in this provision, namely:
1st When new evidence is presented which proves that the evidence on which the judgment has been made was by perjury, bribery, forgery or anything obtained through criminal or illegal means.
2nd When the other litigant, during the horizontal or bottom up litigation conducted, could not have been aware of such evidence in spite of exercising due diligence, and had such matter been known it would have changed or materially affected the judgment.
3rd Provided that the Plaintiff making the appeal for review of judgment made the appeal within one month of discovering the new evidence.
It is clear, self-explanatory, and incontrovertible that the provision is applicable only when all three preconditions have been met simultaneously. Thus, according to the provision, when these three conditions have been met, it is a right given to the applicant for review to rectify a wrong judgment."
CRITICISMS OF THE ETHIOPIAN COURTS
DECISION OF CASSATION DIVISION
CLAIMANTS' APPLICATION DATED 27TH MARCH 2014 FOR RELIEF IN RESPECT OF £200,000 PAYMENT
INABILITY TO PAY