Can a person present while discharging his duties be considered as a witness in a public will?

It is stipulated under article 881 of the Ethiopian Civil Code that for a public will to be considered valid, one of the requirements that should be fulfilled is it should be made in the presence of four witnesses. Article 882 has also put a certain condition where it would be valid if it is made in the presence of two witnesses; it is when it is made in front of a registrar or a judge in discharge of his duties. 

 But there is one confusing issue here. What happens in circumstances when a will is made in the presence of a registrar or a judge but this person is not enlisted in the will as a witness? 

A similar issue was entertained in the Federal First Instance Court. The court is its decision stated that since the will was made in front of the proper authorities, they should be considered as witnesses though they were not specifically enlisted in the will. 

But, up on appeal the Federal High Court decided other wise. If stated that, according to art-881 the number of witnesses present should be four. The mere fact that it was made in front of a judge or a registrar doesn’t automatically decrease the number of witnesses to two. This is because the only way two witnesses would be enough is where the registrar or the judge has been listed as witnesses. 

Having said that the court rejected the lower courts decision and invalidated the will. 

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Is it mandatory to pay Provident fund and severance payment together?

According to the rationales of Ethiopian labour law the main purpose of severance pay to an employee is, to minimize any financial instability that may arise while the employee is searching for a new job due to termination of employment. It is obvious that the same principle also applies for provident funds. So, will it be fair to enforce an employer to pay for both severance pay and provident fund when it is known that they both serve the same objective.

The suit between the applicant Awash International Bank and defendant Ephrem Newaymariam was based up on the above issue. The suit initiated up on the claim of the defendant in the Federal First Instance Court. He stated that he was working in the applicants company for several years. But the contract of employment terminated up on the initiation of the employee. The applicant made all the necessary payments including provident funds. The complaint was that payment of severance pay was not made.

The court that entertained the case rejected the claim of the defendant stating that the defendant admitted to accepting provident funds as per proclamation 494/98 a person can not ask for payment twice. The suit was appealed to the Federal High Court the court; accordingly the court rejected the decision of the lower court and ordered the applicant to pay severance pay for the employee.

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Will a Contract of employment cease when a particular project ends?

As stipulated under art 10(C) of proclamation 377/96 an irregular work relating to permanent part of the work of an employer but performed on an irregular interval is considered to be a contract of employment for a definite period of time.

So, any employee working in a company for a specific project, the contact of employment will no longer exist as soon as the project ends. The mere fact that there are other projects administered by the company doesn’t give the employee the right to claim the contract is still valid there is also no provision that obligates the company to transfer employees from one project to the other.

A decision rendered in the Cassation bench on Oct 19, 2009 reflected the above fact. The defendants on this bench were the first to institute the claim. They claimed that their employer has unlawfully terminated their contract saying the specific project they were assigned for has ended while there were other projects running else where. So, they asked for compensation and other payments.

The court, after framing the issue whether the contract was lawfully terminated or not, heard the arguments of both parties. It stated that though the position of the employer is as a permanent the employee, but the fact that they are carpenters shows that the nature of their work is temporary. Giving the above argument, it stated the contract was terminated lawfully.

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በውል ውስጥ የስራን ግዴታ ሳይወጡ ሌላው ወገን ግዴታን አልተወጣም የሚል ክስ ማቅረብ ይችላል?

በፍ/ብ/ሕ/ቁ 1757 ላይ በግልፅ እንደተደነገገው አንድ ውል እንዱፈፀምለት የ+ሚጠይቅ አካል መጠየቅ የሚችለው በውሉ መሠረት አስቀድሞ ሲወጣው የሚገባግዴታ ካለ ይህንን ግዴታ ከተወጣ በኋላ መሆኑን ነው፡፡ 

በአማራ ክልል በሰሜን ሸዋ ከፍተኛ ፍ/ቤት የተጀመረ ክርክርም ይህን የሳያል ጉዳዩ የነበረው በከሳሽ ወኪል በኩል ለተከሳሽ በብር 50,000 ብር የሰጡላቸው መሆኑን ለቅድሚያም 19,000 ብር ከፍለውኝ መኪናውን አስረክቤያቸዋለሁ፡፡ ነገር ግን ጠሪውን 31,000 ብር ከፍለው መኪናውን በስማቸው እንዲዞሩ ተከሳሹን ብጠይቃቸው ፍቃደኛ ባለመሆናቸው ተገደው እንዲያዞሩ ይደረግልኝ በማለት አመልክተዋል፡፡ 

ተከሳሹም በሰጡት መልስ በሽያጭ ውሉ ውስጥ መኪናው ሽያጭ ቀሪ ገንዘብ ይስጡኝ ማለታቸው ተገቢነት የለውም በማለት ተከራክረዋል፡፡ 

የስር ፍ/ቤትም የግራ ቀኙን ክርክር ከሰማ በኋላ በውሉ ላይ እንደተመለከተው ተከሳሽ ግዴታቸውን እንዳልተወጡና በዚህም ሁኔታ የመኪናው ሽያጭ ቀሪ ገንዘብ ይከፈለኝ ጥያቄ ማንሳታቸው ተቀባይነት እንደሌለው በመወሰን የተከሳሽን ክስ ሰርዞታል፡፡ ይግባኝ የተባለለት ፍ/ቤትም ይግባኙን በፍ/ብ/ስ/ስ/ህ/ቁ 337 መሠረት ሰርዞታል፡፡ 

ክርክሩም ሰበር ችሎት ድረስ ይግባኝ በመባሉ ችሎቱ ጉዳዩን አግባብነት ካላቸው ህጐች ጋር በማገናዘብ ተመልክቶታል፡፡ ግራቀኙ ወገኖች አደረጉት በተባለው የመኪና ሽያጭ ውል ውስጥ የካምቢዮ ብልሽተ እንዳለውና ይህን የሚሰራት ወይም የመተካት ግዴታ እንዳለባቸው ተመልክቷል፡፡ የመናውን ካምቢዮን አሰርተው መክናውን ለተጠሪው ስለ ማስረከባቸወ የሚገልፅ ማስረጃ አመልካቹ አላቀረቡም፡፡ ተጠሪው መክናውን ተረክበው በእጃቸው ማስረከባቸው ብቻ ይህንን ሊያስረዳ አይችልም፡፡ 

ስለሆነም የስር ፍ/ቤቱ አመልካቹ የመኪናው ካምቢዮን የማስተካከል ግዴታቸውን ላይወጡ የቀሪ ገንዘብ ክፍያ ማንሳት አይችሉም በማለት ከፍተኛው ፍ/ቤት የሰጠው ውሳኔ አግባብነት አለው በማለት አፅንቶታል፡፡

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