England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
CHANCERY DIVISION
THE HONOURABLE MR JUSTICE PETER SMITH
[2014] EWHC 4196 (Ch)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/09/2017

LADY JUSTICE ARDEN:

1. The issue on this appeal is whether Peter Smith J was wrong to refuse to lift a stay in these proceedings. The judge had imposed the stay in unusual circumstances for the reasons given in his judgment ("the stay judgment") in these proceedings on 22 March 2013 ([2013] EWHC 599 (Ch)), from which no party appealed. The aim of the stay was to enable the appellants to take proceedings in the forum, Ethiopia, which was more obviously appropriate for determining the dispute between the parties. The anticipated proceedings in Ethiopia consisted of an application for the review of a previous judgment which the respondents had obtained against the appellants in litigation in Ethiopia ("the Ethiopian litigation") and which the appellants contended had been obtained by fraud. In the event the appellants were not successful on their application for a review in the Ethiopian litigation. That led them to apply to the judge to lift the stay he had imposed. By his order dated 11 December 2014, the judge refused to lift the stay and at the same time declined to vary an order he had made for the payment of costs on account.

The Ethiopian litigation

2. The parties to these proceedings were parties to a joint venture, the second respondent ("APF"), to manufacture pharmaceutical products in Ethiopia. The appellants owned 49% of the shares, and the first respondent ("EFFORT") 51%. The first appellant, Mr. Mengiste, was originally the general manager of APF. On 12 March 1998 he was replaced by Dr Asgedom. On 7 July 1998 Dr Asgedom authorised APF to bring the Ethiopian litigation against the appellants for repayment of the price of goods which the appellants had agreed to deliver to APF, together with other claims. The respondents among other things claim that the goods were paid for but not delivered. The respondents largely succeeded in the Ethiopian litigation. They obtained judgment and subsequently an order for the sale of the appellants' shareholding.

The facts in more detail

3. Mr Gebrue, a board member of EFFORT since 1995, was appointed chairman of APF in 1997, and he continued to hold that appointment until 2001. The appellants allege that Mr Gebrue was heavily involved in the Ethiopian litigation.
4. The Ethiopian litigation went to the Regional Supreme Court of Tigray ("the Tigray Supreme Court"), of which Judge Mehretab was a member. As all material times, Mr Gebrue was married to Judge Mehretab. There were some twenty-five instances in which Judge Mehretab was in some way involved in the Ethiopian litigation. For example, Judge Mehretab was a member of a three-judge panel which granted a freezing order against Mr Mengiste and the second appellant ("AIT") in 1998. The appellants contended that this order had ruined AIT's business. Again, Judge Mehretab was a member of a three-judge panel which on 17 November 1999 rejected the appellants' argument that the Ethiopian litigation was improperly constituted because Dr Asgedom lacked authority to initiate them.
5. Judge Mehretab did not, however, form part of the panel which on 1 January 2001 held that Mr Mengiste was responsible for not ensuring the delivery of the goods in issue. There was a further judgment against the appellants in January 2003.
6. In 2004, the appellants made an application for review of that judgment under Article 6 of the Civil Procedure Code of Ethiopia on the grounds that they had discovered new evidence. A panel of the Tigray Supreme Court, of which Judge Mehretab was a member, dismissed that application. Judge Mehretab then ceased to be involved in the Ethiopian litigation.
7. The appellants then on 16 April 2010 brought the present proceedings in the English courts. They alleged that the orders of the Ethiopian courts had been obtained by fraud and that their shareholding had been misappropriated. They now had an inventory, signed by Mr Teferie and one other, showing that the goods of the relevant description were at APF's factory. This inventory had not been in evidence in the Ethiopian litigation. The respondents applied for a stay on the grounds that this was not a convenient forum. All the parties were Ethiopian and the property involved was in Ethiopia. The parties' contractual relationship was governed by Ethiopian law and the allegedly wrongful acts took place in Ethiopia.
8. The appellants contended that they could not obtain a fair trial in Ethiopia. In the stay judgment, Peter Smith J decided to grant a stay of the English proceedings. He considered that the evidence about inability to obtain a fair trial in Ethiopia was not cogent. He did not consider that there was evidence of any general bias against the appellants. However, he accepted that there might be issues over the inventory and the participation of Judge Mehretab. The evidence showed that the appellants might be able to apply for a review of the judgments against them in Ethiopia. There was expert evidence that, following a prior case in Ethiopia, the Fissehaye case, such an application might be made even though a stipulated one-month time limit had been exceeded. The judge's judgment contemplated that, if the Ethiopian courts did not deal with a review application fairly, the appellants could apply to lift the stay.
9. So the claimants applied for a review of the judgment of the Ethiopian courts against them in Ethiopia.

Decisions of the Ethiopian courts on the appellants' application for review

10. The appellants made their application to the Tigray Supreme Court on 22 April 2013 under Article 6 of the Civil Procedure Code of Ethiopia ("CPC"), seeking a review of the Tigray Supreme Court's January 2001 and January 2003 judgments.
11. At the appellants' own request, it ruled that none of the documents from the London hearings (including the stay judgment) could be produced. The appellants relied on the newly-discovered inventory, the evidence of Mr Gebrue, given in the English proceedings, confirming his marriage to Judge Mehretab and also that Dr Asgedom had been appointed around March 1998, showing that the Ethiopian litigation had not been properly instituted due to lack of authority, and indicating that a memorandum of Dr Asgedom's appointment from 1997 might be a forgery, the evidence of a Mr Cantu, given in England, stating that the goods and training had been supplied, and the evidence of Mr Teferie, again given in the English proceedings, testifying that the equipment identified in the inventory report was installed earlier than the factory's official opening in 1997.
12. On 7 October 2013, the Tigray Supreme Court dismissed the appellants' review application. Relevant extracts from its judgment appear in Appendix 1 to this judgment. It held that Article 6 CPC was enacted to rectify a situation where judgment arose from a criminally tainted act, not to allow individuals to present evidence they failed to present first time around. In this case, the appellants had not shown a criminally tainted act, nor had they demonstrated or explained why they failed to produce the witnesses at first instance. In response to the appellant's arguments that the goods had been received, the Tigray Supreme Court concluded that the main issue below had not been whether such goods were received but who made the payment.
13. The Tigray Supreme Court also concluded that the appellants had been aware of Judge Mehretab's relationship at the time of trial, and they had not asked her to recuse herself then. Such an argument was, therefore, denied them now. In any case, had that application been made, it would not have been successful as Mr Gebrue had not been employed by APF at the time, and he and his wife did not discuss work; that there was not enough evidence to show a potential impartiality; and that Judge Mehretab did not have a major role in the decisions. Moreover, even if the evidence was new, it was not maliciously concealed by the respondents, and the evidence the respondents produced showing the appellants were aware of the relationship demonstrated the appellants had not exercised due diligence.
14. The appellants appealed to the Cassation Division of the Federal Supreme Court of Ethiopia, which also dismissed their case. Relevant extracts from the judgment appear in Appendix 2 to this judgment. The Cassation Division stated that they had reviewed documents from the English proceedings. They dismissed the appeal on 2 December 2013, publishing their reasons on 19 February 2014. The Cassation Division held that the evidence relied on, which was said to have been discovered during the London proceedings, was not "new evidence" within the meaning of Article 6. It did not demonstrate the 2001 and 2003 judgments of the Tigray Supreme Court were obtained through criminal or improper means, and was not "new" because it could have been obtained earlier with due diligence. Furthermore, even if it was new evidence, the time limit of one month allowed for making an application under Article 6 ought to start running from the date on which the appellants received a copy of such evidence from the High Court; and the application had been made after the one-month limitation period had expired. The appellants should have obtained a "judgment copy" or explained why they could not, but, in the absence of doing so, the appellants could not argue time should run from the date of receipt of judgment. This is difficult to follow but the Cassation Division went on to hold that, in any case, the one-month time limit was absolute. Fissehaye did not apply to the current case, as it is authority only for the proposition that, if new evidence is discovered after the appeals from a judgment are exhausted, an application must be made within one month of the discovery of that evidence.
15. The Cassation Division then considered the evidence, in case its interpretation of the law was incorrect. It concluded that the evidence sought to be adduced would not have materially changed the judgment. The evidence of Mr Teferie about the inventory only confirmed the content of the schedule, not who bought the goods (the subject matter of the dispute), how much for, who delivered them, or where they came from. It did not show that APF pretended not to have received the goods, or that it sued on a false basis. The evidence of Mr Cantu that Mr Mengiste arranged for the purchase of the goods by APF was conflicting and unconvincing. His statement that he recalled factory training being provided was brief and uncorroborated. Moreover, the explanation for the evidence of delivery of the goods was that "in order to get the factory operational, [APF] had to make another purchase."
16. Moreover, the Cassation Division considered that the allegations about Judge Mehretab did not justify the grant of relief. Mr Gebrue's evidence, that he was married to Judge Mehretab, also disclosed that Mr Mengiste was aware of this marriage at the time of the original Tigray Supreme Court proceedings. Moreover, the Cassation Division had "ascertained" the impartiality of Judge Mehretab. She had not delivered either the 2001 or 2003 judgment of the Tigray Supreme Court. So, in the judgment of the Cassation Division, her marriage was not relevant to the current case. In any case, even if the allegations could support such a claim, the appellants should have brought it before.
17. Finally, the Cassation Division dismissed the appellants' arguments that Mr Gebrue's evidence demonstrated that Dr Asgedom did not have the authority to issue proceedings at the time of doing so. The appellants should have presented Mr Gebrue's testimony when the issue was first raised.

Application to lift the stay and the judge's reasons for dismissing it

18. The appellants applied to Peter Smith J to have the stay lifted. The respondents applied to have the action dismissed in its entirety. In his judgment ("the 2014 judgment") the judge held that the issue was whether the Cassation Division's decision on Article 6 CPC provided cogent evidence that the claimants would not have a fair trial. There was no evidence to support that proposition. He held that the Ethiopian courts had interpreted Article 6 in a way which was sustainable. His own previous conclusions in the stay judgment about Judge Mehretab had been "tentative". Further, the fact that the Cassation Division had come to a different conclusion on the facts did not mean that the appellants had not had a fair trial. In any event, the Cassation Division's decision on Article 6 CPC was a reasonable one for it to have made and put an end to any possibility of a review by the appellants. The judge granted the respondents' application to dismiss the action in its entirety. He also refused to vary an order he had previously made which required the appellants to pay to the respondents £200,000 on account of costs.

Appellants' grounds of appeal

19. The appellants have seven grounds of appeal:

Ground 1: The judge should have found that the treatment of the Judge Mehretab issue by the Ethiopian courts was biased and unfair – their finding was inconsistent with the judge's, they took no account of Judge Mehretab's duty to disclose her marriage, and they were wrong to say there was no evidence of impartiality.

Ground 2: The judge should have found the treatment of his own 2013 judgment by the Ethiopian courts (first declaring it inadmissible, then admitting it without informing the parties) was unfair.

Ground 3: The judge should have found it was unfair of the Ethiopian courts to criticise the time between the handing down of the stay judgment and their bringing of a new review in Ethiopia, by finding that time for Article 6 purposes did not run from the time of hand down.

Ground 4: The judge should have found it was unfair of the Ethiopian courts, having found that time did not run from the date of hand-down, to criticise the appellants for failing to obtain a copy of the judgment of the judge.

Ground 5: The judge misdirected himself in concluding that an irrational decision of the Tigray Supreme Court does not mean the appellants had not had a fair trial.

Ground 6: The judge should have "acted on the new evidence produced in England", in particular the witness statement of Mr Getachew in the English proceedings that Mr Asgedrom was not APF's General Manager until March 1998.

Ground 7: The judge erred treating their application for relief from the £200,000 costs order as an application for a relief from sanction.

Respondents' Notice

20. The respondents seek to uphold the judgment for the following additional reasons:

Respondents' Ground 1: The judge was right not to lift the stay, as the court should not lift a stay for a claim that is incapable of success, which the appellants' claims are as they are now time-barred.

Respondents' Ground 2: The judge was right not to lift the stay as there was no proper evidential basis to challenge the Cassation Division's ruling on the time limit issue.

Respondents' Ground 3: The judge was right to dismiss the appellants' application to serve the second and third respondents out of jurisdiction, as they have a complete legal defence to the appellants' claims, which do not amount to a "serious issue to be tried".

Submissions on this appeal

21. It is common ground that the test to be applied on the application for a stay was whether there is a "real risk" that justice will not be obtained in the foreign court: see Altimo Holdings v Kyrgyz Mobil Tel Co [2012] 1 WLR 1804. In that case, Lord Collins, giving the advice of the Privy Council, held:

95 The better view is that, depending on the circumstances as a whole, the burden can be satisfied by showing that there is a real risk that justice will not be obtained in the foreign court by reason of incompetence or lack of independence or corruption. Of course, if it can be shown that justice "will not" be obtained that will weigh more heavily in the exercise of the discretion in the light of all other circumstances…

97 Comity requires that the court be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court, and that is why cogent evidence is required.

22. What the appellants seek to do in these proceedings is to reopen the judgments entered against them in the Ethiopian litigation by showing that the determination of the review application was unfair. Mr Lance Ashworth QC, for the appellants, contends that a foreign judgment may be impeached for fraud even though no newly-discovered evidence is produced, and even if that evidence was rejected in a foreign court (see the decision of this Court in Abouloff v Oppenheimer & Co (1882) 10 QBD 295, approved by the House of Lords in Owens Bank Ltd v Bracco [1992] 2 AC 443). He also contends that, in principle, a claimant can adduce evidence of fraud in opposition to a defendant's reliance on a foreign judgment, without having to set that judgment aside (thus circumventing issues of res judicata where fraud is alleged). The appellants recognise that they can only recover damages in these proceedings, not an order reversing the sale of their shareholding in APF.
23. Mr Andrew Short QC for the respondents, points out that the appellants previously accepted the Ethiopian doctrine of res judicata would be applicable, and so the only issue, were the claim to be tried in England, would be Article 6 CPC. He also makes the point that even if the review decision could be impeached for fraud, that would only have an impact in England, not Ethiopia (see Dicey, The Conflict of Laws, 15^th edition, 14-139 which states that: "when fraud is alleged in relation to a foreign judgment, the effect is only to prevent enforcement in England; no impact will be felt in the State whose courts produced the judgment"). In any event, the appellants have not provided expert evidence to dispute the "time limit" issue, which is an answer to everything.
24. Mr Ashworth submits that in the 2014 judgment at paragraph 78, the judge held that the appellants had to show there is a real risk, on the basis of cogent evidence, that "they will have not obtained a fair trial," but then, at paragraph 79 that the appellants had to "establish on the balance of probabilities that there will be no fair trial." Mr Ashworth submits that that latter imposition sets the bar too high.
25. Mr Short rebuts the appellants' submissions. He submits that the judge did not apply the wrong legal test. He provided a summary, which must be read in the context of his fuller exposition of the test in the stay judgment. Moreover, the judge was not wrong to describe his conclusions in the stay judgment as tentative; and in any case the issue is what the Ethiopian courts found, and the process there did not provide cogent evidence of a real risk of unfairness. The respondents continue to dispute the English courts' jurisdiction, and (in the case of the second and third respondents) to contend that they have not been served.

Ground 1: Role of Judge Mehretab

26. The appellants submit that the Tigray Supreme Court's conclusion on Judge Mehretab was flawed. Mr Ashworth submits that the judge was also wrong, at paragraph 91 of his 2014 judgment to describe his conclusion in the stay judgment that the appellants did not know of Judge Mehretab's marriage, as "tentative". Such errors, submit Mr Ashworth, infect the rest of the 2014 judgment. He submits that the judge had rejected the suggestion that the appellants knew of Judge Mehretab's marriage in the stay judgment.
27. Mr Ashworth further submits that the Tigray Supreme Court was wrong to suggest that a recusal application would have failed, particularly on the ground that Mr Gebrue was not APF's employee or that he and his wife did not discuss work.
28. On Mr Ashworth's submission, the Cassation Division also erred: they had no basis on which to conclude that the appellants knew of the marriage or that the involvement of Judge Mehretab was not substantial. The Cassation Division's finding, that they had "ascertained" her impartiality, is unexplained. In short, the Ethiopian courts do not recognise the issue of apparent bias, without which a fair trial is not possible. The judge, therefore ought to have held that the determination of the review application was unfair.
29. The Ethiopian courts had also held that the appellants were out of time to bring a review application. The judge should have held that the right to be judged by an impartial tribunal is too fundamental to have a time limit attached, let alone a short one of only 30 days.
30. The respondents contend Judge Mehretab's marriage was not cogent evidence of unfairness. As she was not involved in the 2013/2014 review, her role was relevant only insofar as that review dealt with her previous involvement. The reasoning of both Ethiopian courts is not irrational such as to amount to evidence of unfairness. The Tigray Supreme Court differed from the judge on the appellants' knowledge, but, as the judge noted, the appellants had applied for the English documents to be excluded. The respondents submit that the Tigray Supreme Court was also right to conclude Mr Gebrue was not APF's employee at the time and that he was not chairman when Judge Mehretab ruled on the appellants' review application in 2004. Moreover, the appellants' bare assertion that the Tigray Supreme Court was wrong to conclude that there was no reason to comply with a recusal request has not been supported by any expert evidence.
31. The respondent also submit that the Cassation's Division's conclusions were not evidence of unfairness. The Cassation Division was justified in concluding the appellants knew of Judge Mehretab's marriage prior to the English proceedings. Contrary to the appellants' submissions, the Cassation Division did not state that Judge Mehretab had "nothing to do" with the judgments under review. They submit that it was not "strange" or "unexplained" for the Cassation Division to state that it had ascertained Judge Mehretab's impartiality, as they are referring to the 2001 and 2003 decisions on which she did not adjudicate. The appellants' argument that the Ethiopian legal system does not recognise apparent bias ignores the fact that it was Article 6, with its attendant time limit and requirement for new evidence, that the Cassation Division needed to apply. Once that is appreciated, the other concerns fall away. As for the complaint that Judge Mehretab should have disclosed her relationship, the respondents contend this is answered by the Cassation Division's express acceptance that judicial independence is important and the appellants could have raised the issue.
32. Finally, the respondents refute the appellants' argument that the time limit was unfair, because the appellants had not previously taken this point. In any event, the time limits were fair in the interests of the finality of litigation.

Ground 2: Cassation Division's use of the stay judgment

33. On the appellants' recent application for review, the Tigray Supreme Court held that none of the documents from the English proceedings could be produced at the appellants' request. However, the Cassation Division obtained and reviewed some of these documents. The appellants submit that this was unfair and in breach of the rules of natural justice, and that the judge erred in not finding this was evidence of a real risk the appellants would not receive a fair trial.
34. The respondents accept that the judge did not deal with the Cassation Division's use of his judgment without inviting submissions. However, had he done so, he would have concluded it was no ground for lifting the stay, as no expert evidence had been adduced showing that this was a breach of the Cassation Division's normal rules or practice, or was inappropriate, or that it was evidence of bias.

Grounds 3 and 4: Criticism of the time in bringing the review

35. The appellants do not pursue these grounds separately, but contend that the Cassation Division criticised them unfairly for not making the review application earlier when they did make that application within 30 days of the stay judgment being handed down.

Ground 5: Whether an unreasonable conclusion shows an unfair trial

36. This ground challenges the holding of the judge at paragraph 90 of his judgment that:

even if it is established that there were no reasonable grounds for the Tigray Supreme Court to come to the conclusions that does not mean that the Claimants have not had a fair trial. If it were every time a decision was overturned on that basis a judge's error would be elevated to an allegation that the parties did not obtain a fair trial.

37. The appellants contend that an unreasonable conclusion is evidence of unfairness in the trial process. Multiple unreasonable conclusions is evidence that there is considerably more than a risk of injustice. In Altimo Holdings at [143], Lord Collins held:

there was substantial evidence of specific irregularities, breach of principles of natural justice, and irrational conclusions, sufficient to justify a conclusion that there was considerably more than a risk of injustice.

38. Multiple fundamental errors were made by the Cassation Division here: they misconstrued the case, stating the issue was whether Mr Mengiste used the goods for his own benefit. This in turn led it to undervalue Mr Teferie's inventory evidence; and to come to an irrational conclusion on the issue of Dr Asgedom's authority (see further ground 6). It is argued that the judge should have taken this as demonstrating a real risk that the appellants could not receive a fair trial.
39. Further, the appellants submit the judge erred in concluding the Cassation Division's decision on Article 6 was reasonable as, although, as the judge held, the English Courts cannot be taken to sit on an appeal from the Ethiopian courts, the right to a fair trial is so fundamental that it cannot be constrained in this blanket fashion by an artificial and unreasonable time limit.
40. The respondents submit that the judge did not find the Tigray Supreme Court's decision had been irrational. Moreover, he was right to conclude that an irrational decision does not necessarily prove there has been an unfair trial (though the respondents concede it could be evidence of such). Irrational decisions could be arrived at in other ways, such as mistake.
41. The respondents in any event refute the further "irrational decisions" which the appellants argue the Cassation Division made. The argument that the Cassation Division misstated the issue is incorrect. Mr Mengiste had stated there was to be no challenge to the evidence of the existence of the machinery at the factory; the Cassation Division must have been right to hold that the issue was who procured the goods, and who used them. The Cassation Division was rational in how it dealt with both Mr Teferie's evidence and the Dr Asgedom issue.

Ground 6: new evidence

42. The factual background to this ground concerns the authority of Dr Asgedom to cause APF to initiate the Ethiopian litigation. A contemporary minute of a meeting records that Dr Asgedom was appointed general manager of APF, effective 9 July 1997. The Ethiopian litigation was commenced in July 1998. The appellants launched a preliminary challenge alleging that the litigation was irregular as Dr Asgedom did not have authority, but the Tigray Supreme Court dismissed that challenge primarily on the basis of the July 1997 minute.
43. During the English proceedings, Mr Gebrue had said that Mr Mengiste was only removed in March 1998. On the review application, the appellants submitted that the minute of Dr Asgedom's earlier appointment was fabricated and that Dr Asgedom was not validly appointed. The Cassation Division rejected this argument on the basis that this evidence could have been adduced earlier.
44. In the hearing which led to the 2014 judgment, there appears to have been some disagreement between Mr Getachew (solicitor for the respondents), and the appellants, over the dates of Dr Asgedom's appointment. This appears to come in no small part from the differences between the Ethiopian and Gregorian calendar. Mr Getachew's evidence was that Mr Gebrue admitted Dr Asgedom was appointed in March 1998.
45. The appellants contend that the Cassation Division was wrong to dismiss the new evidence in this case on the basis that the evidence should have been brought at the original application in 1998. It is not the appellants' fault Mr Gebrue only disclosed the dates of appointment 10 years later. They contend that the judge should have held that this shows they could not have a fair hearing. The truth about Dr Asgedom's appointment was further confirmed, the appellants argue, by the evidence of Mr Getachew. The judge on their submission failed to address this, and should have held it showed the Cassation Division's refusal to act on it was evidence of the appellants' failing to receive a fair hearing.
46. The respondents argue this ground should be dismissed. They argue that it is absurd to say that Mr Gebrue's evidence that Dr Asgedom's appointment was in or about March 1998 is an admission that the minute showing his appointment in 1997 was fraudulent. In any case, the particulars of claim show the appellants concede that Dr Asgedom was appointed in March 1998, before the proceedings were issued in July that year.
47. The respondents further submit that the holding of the Tigray Supreme Court in the original proceedings that "even if [he] is not registered, he can still do his work in accordance with his obligation", shows that, under Ethiopian law, his formal registration does not matter. This has not been contradicted by expert evidence. Even if it was, however, it does not establish Article 6 CPC is made out. There is still the time-bar issue. There has been no expert evidence that, even if the appellants are correct about authority, the proceedings were a nullity or the judgments void.

Ground 7: relief from the £200,000 payment

48. After his judgment in March 2013, the judge ordered the appellants to pay £400,000 to the respondents on account of costs, by 19 April 2013. The respondents agreed to vary the costs award down to £200,000, to be paid by 30 November 2013, extended to 31 March 2014.
49. Before the judge, Mr Mengiste contended that the appellants could not pay even the reduced sum. The judge did not however, accept this on the evidence. He accordingly refused to vary or stay the order for payment.
50. The appellants contend the judge dismissed the action for the appellant's failure to make the payment of £200,000. The order imposed in March 2013 was not an "unless" order, so an order dismissing the action on that basis was not appropriate (Michael Wilson v Sinclair [2015] 4 Costs LR 707, [34]-[36].
51. The respondents concede that, if the appellants' other grounds of appeal succeed, non-payment of costs would not spell the end of the case, absent an unless order. Otherwise, they oppose this ground of appeal.

Respondents' Notice

52. The respondents contend that the appellants' case has no prospect of success. Any trial in England would have to apply Ethiopian law, including the time limit, and so would be unsustainable. Therefore the stay should not be lifted (Respondents' Ground 1), and there was no evidential basis to challenge the Cassation Division's ruling on the time limit issue (Respondents' Ground 2). Given that the respondents have a complete defence to any action, there is no serious issue to be tried, which is a pre-requisite of the court giving permission to serve out of the jurisdiction (CPR 6.36-6.37, PD 6B3(a)). It follows, therefore, that the judge was right to dismiss the appellants' application to serve the second and third defendants out of the jurisdiction.

Discussion

Ground 1

53. The appellants submit correctly that it is not just a question of justice being done but of justice being seen to be done. They rely on apparent, not actual, bias. It is an essential ingredient of the rule of law that the judge should be independent. I would accept the appellants' argument that Judge Mehretab should have recused herself. Her conduct in failing to recuse herself and in continuing to participate in the proceedings, even if Ethiopian law in some way did not prevent her from leaving the actual decision to her fellow judges, fell below internationally accepted standards of judicial conduct: see, for example, the Bangalore Principles of Judicial Conduct, issued by the United Nations Office on Drugs and Crime (September 2007), which states at paragraph 4.4 that:

A judge shall not participate in the determination of a case in which any member of the judge's family represents a litigant or is associated in any manner with the case.

54. But what we are concerned to consider is the consequence in Ethiopian law of her action. The Bangalore Principles do not deal with the consequences for any litigation if a judge fails to recuse himself when he should have done so and continues to sit. That is in general a matter for local law.
55. Numerous points are taken by the appellants under ground 1 but, as the respondents point out, at the end of the day the dispositive points are that (1) the Ethiopian courts were prepared, in conspicuously thorough and careful judgments, to hold that Mr Mengiste (and thus the appellants) knew of Judge Mehretab's interest at the time of the original proceedings and should have applied for her to recuse herself then (and there was an evidential basis in Mr Gebrue's evidence for this conclusion); and (2) the appellants' review was out of time under Ethiopian law.
56. However strong the criticisms which the appellants make of Judge Mehretab, they cannot, as I see it, avoid the conclusion that the objection to Judge Mehretab could have been made if they had made an application to the Ethiopian courts expeditiously. It is nothing to the point that Peter Smith J did not consider that Mr Mengiste had at the time known of her connection with Mr Gebrue since that was a question of fact which the Ethiopian courts were entitled to consider and determine for themselves, and there was nothing to show that their decision was induced by fraud.
57. I repeat that the right to an impartial tribunal is an essential ingredient of the rule of law, but that does not mean, in my judgment, that a court is bound to accept an application to set aside a judgment because a judge should have recused himself or herself whenever that application is made. The time limit under Article 6 CPC ran from the date of knowledge of the grounds and gave only 30 days. However, in my judgment, the time limit was not illusory and therefore it was not cogent evidence of unfairness. The appellants were able to make their application within this time period following the stay judgment.
58. In House of Spring Gardens v Waite [1991] 1 QB 241, this Court held that where the courts of an overseas jurisdiction have already considered in a second action and rejected the argument whether the first judgment was obtained by fraud, there is no basis for bringing a separate action here.  Mr Ashworth QC argues that the present case is distinguishable because there was no new action but simply a review.  However, it is not necessary to go that far. The issue in this case is whether the result in the overseas jurisdiction demonstrated by cogent evidence a real risk of unfairness, and in my judgment that cannot for the reasons given be sustained.
59. The judge expressed himself in inexact language in his 2014 judgment when he held the applicable test in paragraph 79 of his 2014 judgment (see paragraph 24 above).  However it did not matter because he incorporated the previous correct statement of the test in paragraph 78 (by reference to paragraph 139 of the stay judgment).  In any event, the issue was what had been and not what would be done in the future so it is paragraph 78, not paragraph 79, which was applicable.  So the appellants' argument that he misdirected himself is in my judgment not made out.

Ground 2

60. The appellants have not shown why it was irregular under Ethiopian law or why a real risk of unfairness is demonstrated by cogent evidence if the Cassation Division had regard to the stay judgment or other materials from the English proceedings. Nor have they shown that there were submissions which would have affected the outcome that they would have wanted to make but did not make or could not make without knowing that the Cassation Division had the material in question. (It also appears to me from the Tigray Supreme Court's decision, although this point was not taken, that that Court had in any event put the appellants on notice that the Ethiopian courts had additional material from the English proceedings). Accordingly, I would reject this ground.

Grounds 3 and 4

61. The appellants effectively accept that these grounds did not assist. The Cassation Division criticised their delay in making a stay application because they could have made that application much earlier when (on the Cassation Division's finding) they realised that they were entitled to object to Judge Mehretab.
62. The appellants rely on factual points which in the circumstances it is not necessary to deal with in detail. The Cassation Division did not accept that the inventory was a good reason for setting aside the judgments given against them because this was equally consistent with the respondents' case that the inventory merely showed that APF had been obliged to purchase the goods from another source. As to the alleged irregularity to Dr Asgedom's appointment, even if Dr Asgedom was not appointed until after the commencement of the proceedings, and someone in his position had to take the decision to start legal proceedings, ratification may have been possible under Ethiopian law. It is difficult to conclude that the defect in Dr Asgedom's appointment would naturally have led to some different overall outcome in the Ethiopian proceedings.
63. There is in my judgement no basis for concluding that either cumulatively or separately the Ethiopian courts reached irrational conclusions on these issues which ought to lead to the conclusion that there is cogent evidence of a real risk of unfairness in their determination of the review application.

Grounds 5 and 6

64. In my judgment, the judge was right to say that the English courts do not sit on appeal from the Ethiopian courts. The Ethiopian courts reached their own decisions on such matters as the inventory, the appointment of Dr Asgedom and Mr Mengiste's knowledge of Judge Mehretab's marriage to Mr Gebrue. It was open to the Tigray Supreme Court and the Cassation Division to reach these conclusions and it is not suggested that their conclusions were in any way induced by fraud or bias. In those circumstances, the arguments under these heads do not assist the appellants' challenge to the 2014 judgment. They make points which would not change the overall outcome and therefore this Court is not required to answer them in further detail in its reasons for dismissing the appeal.

Ground 7

65. In my judgment, there is no basis shown for varying or discharging the order for payment of £200,000. The order was not the basis on which the judge dismissed the action.

Conclusion

66. Mr Ashworth accepted that if the review application was fair he would lose on the application to lift the stay.  Therefore, the only issue was how the Ethiopian courts dealt with that application.  For the reasons given above, I do not consider that there is cogent evidence of a real risk of unfairness in the way the review application was determined. It follows from those reasons that the respondents' notice succeeds.
67. For the reasons given above, I would dismiss this appeal.

LORD JUSTICE DAVIS:
 


68. I agree. I add the following observations.
69. In the present case the parties at the relevant times were all domiciled and resident, or had their place of business, in Ethiopia (the first appellant is now resident in the USA). The contract was made in Ethiopia. It was governed by Ethiopian law. It was to be performed in Ethiopia. The matter thus has every connection with Ethiopia: none whatsoever with England and Wales.
70. I regard it as artificial that this present claim by the appellants (for damages for the alleged wrongful appropriation in Ethiopia of the appellants' shares and investments by way of enforcement of the adverse Ethiopian judgments) has been commenced in London at all.
71. The appellants have throughout relied on what they allege is the fraud of the respondents in advancing – successfully thus far in Ethiopia – claims that the good and services contracted for were never supplied by the appellants: coupled with their criticisms of the fairness of the Ethiopian legal process. In the context of an English judgment which is ostensibly final and conclusive on the merits such a judgment can ordinarily only be set aside on the production of material fresh evidence not available at trial. Were it otherwise, litigation would potentially be never ending. It might be queried why the position should be any different for a foreign judgment given after a trial which itself is ostensibly final and conclusive on the merits. However, it has been held at the highest level (in Owens Bank Limited v Bracco [1992] 2AC 443) that the decision in Abouloff is not to be confined in its application to the century in which it was decided. So be it. But even then, and whether the allegation that the foreign judgment has been procured by fraud is advanced by way of claim or by way of defence, the allegation is conventionally made to rebut reliance by the opposing party in the jurisdiction of England and Wales on the foreign judgment for purposes of recognition or enforcement. Put another way, the Abouloff principle ordinarily operates, as it were, by way of a shield not a sword. But in the present case that is not the position. Indeed, the respondents have neither taken nor threatened any steps at all, whether by enforcement or otherwise, in this jurisdiction as against the appellants. On the contrary, it is the appellants who are asserting the invalidity of the Ethiopian judgments in order to advance their claims that their Ethiopian shares and investments were wrongfully appropriated.
72. Thus I have real doubts as to whether the present claim has ever properly been justiciable against the respondents in this jurisdiction in the first place: see also Altimo at paragraphs 118 and 119 of the judgment of the Board. But, assuming that it was, it still remains to be considered whether the proceedings should in the circumstances be permitted to continue here.
73. It is noticeable that most of the attempts by the appellants to adduce purported fresh evidence to show that the original Ethiopian judgments were procured by fraud – most notably by reliance on the inventory – have in effect withered away.
74. The first appellant may himself fervently believe that he has never had and never will have a fair trial in Ethiopia. But matters have to be resolved on an objective basis, not by reference to subjective beliefs of a party. At all events, Peter Smith J expressly found in the stay judgment that an application to the Ethiopian Courts under Article 6 was the only remedy then available to the appellants. They have in consequence sought to avail themselves of that remedy in Ethiopia. They have failed, both before the Supreme Court of Tigray and in the Cassation Court. As Arden LJ has pointed out, it is not for this Court to act in effect as an appeal court from the decisions of those Ethiopian Courts on the very points in issue.
75. It has not been alleged before us that there is a wholesale systemic failure of fairness and justice in the entire legal system operating in Ethiopia. It has not been alleged before us that the judges involved in the 2013 hearings in Ethiopia were themselves actually partial. The case has been primarily focussed on the appearance of injustice in the prior proceedings in Ethiopia: leading, so it is said, to there being a real possibility of a lack of fairness in the Ethiopian proceedings so far as the appellants are concerned, such that justice has not been and cannot be obtained by them there.
76. I accept that the prior involvement of Judge Mehretab gives rise to real concerns. But those concerns were before the Supreme Court of Tigray and the Cassation Court in 2013. Those courts, after fully and thoroughly reviewing the arguments then being advanced by the appellants' Ethiopian lawyers (although Mr Ashworth in fact sought to supplement those arguments before us), rejected them. It is to be noted that, in so doing, the Cassation Court in terms had referred to the International Charter of Civil and Political Rights as to a fair trial and in terms had referred to the constitutional right to be judged by an impartial judicial body. Mr Ashworth asserted that the Cassation Court simply paid "lip service "to that principle. A fair reading of the judgment, however, shows that not to be the case.
77. In this regard, I also note that there was evidence that the first appellant himself knew in 2004 of the involvement of Judge Mehretab in the 2004 review and that she was Mr Gebrue's wife; and he also knew in 2012, as he accepts, of her wider involvement in the prior litigation. It may be that he had by then lost all faith in the Ethiopian Courts. But the fact remains that he took no prompt steps then to seek to set aside the earlier judgments.
78. As to Article 6, Mr Ashworth took the point that the judgments themselves are not evidence of Ethiopian Law: see Dicey and Morris 15^th ed. at para 9-013. But he adduced no evidence himself on behalf of the appellants that the conclusions reached did not represent Ethiopian Law; and the actual wording of Article 6, as translated, is consistent with the conclusions reached in the Ethiopian courts.
79. To the extent that Mr Ashworth then sought to impeach Article 6 itself as unfair that is hopeless. Any civilised jurisdiction, in order to achieve finality in litigation, is entitled to place time limits on applications to set aside ostensibly regular final judgments. For Mr Ashworth to assert that a 30 day time limit from the date of the discovery of the new evidence, as provided in Article 6, is unfair either connotes that there should be no time limit at all (which is unworkable) or that the time limit could only properly be that which corresponds to English law (which is presumptuous). It is in any event to be noted that the Ethiopian courts did not dispose of the application solely on procedural grounds by reference to Article 6: they also addressed the substance of the points being advanced.
80. As to the point about Dr Asgedom, I note that the appellants have throughout been free with their allegations of fraud. I am simply not myself prepared to assume – as Mr Ashworth did – that the memorandum of 30 June 1997 was a forgery. As Mr Short observed, there could well be other explanations. In any event, the Supreme Court of Tigray and the Cassation Court addressed this point and held that the original proceedings had been properly commenced and constituted.
81. I am not impressed by this appeal. Viewed objectively, the decisions of the Ethiopian courts in 2013 and 2014 involved a fair and thorough review of the validity of the previous Ethiopian judgments. There is no cogent evidence of a real risk of unfairness having arisen.
82. The judge's ultimate conclusion therefore was justified on the facts and circumstances of this case. To the extent necessary, I would also accept the points made in the Respondents' Notice. As to the judge's further conclusion as to the relief to be granted it plainly was open to him as a matter of discretion (and, indeed, as a matter of practical justice) to dismiss the entire claim and also to affirm the requirement to pay costs on account.
83. Accordingly, I agree with Arden LJ that this appeal should be dismissed.

APPENDIX 1

Extracts from judgment dated 7 October 2013 of the Tigray Supreme Court

[457, 8] The other related issue that should be considered here is that an application for a review of a

[9] previous judgment on the ground that in the course of that preceding the judge was impartial is not

[10] covered under CPC Art. 6. Article 6 is a provision which should be narrowly interpreted, and not one

[11] that can be stretched beyond its scope and applied. Their detailed argument can be found in the record.

[12] The issue under consideration is that the judgment of this court handed down on 1 January 2001

[13] and 3 January 2003 is obtained as a result of false evidence. Petitioners' state that after that judgment

[14] was handed down they have now discovered new evidence and therefore pursuant to CPC Art. 6 they

[15] seek from this court a review of the previous judgment. The Respondent has been served with the

[16] petition and the respondent submitted a reply together with documentary evidences. Petitioners

[17] objected for these evidences that came from overseas without authentication by the Ethiopian

[18] Embassy. The court made an order excluding those documents and proceeded to oral argument. It is not

[19] necessary to put here now the contents of the oral argument.

[20] Consideration of the Petition and the Reply pursuant to Article 6 of the Civil Procedure Code:

[21] In their application, the Petitioners mentioned that representatives of both parties have signed an

[22] Inventory report that shows that the goods and training that the Respondent claimed were not delivered were actually

[23] delivered. The Petitioners further stated that new evidences were obtained from

[24] testimony given during the proceedings in England against the defendant showing that when the factory

[25] was inaugurated in 1997 the goods were in the factory and training was given. In the previous

[26] proceedings they said the Respondent concealed the truth and obtained judgment against the

[27] Petitioners. In order to assess these new evidences, this court recalled the main file from the Court

[28] record and examined the substance of the issues at that time and this court found that the main issue

[29] was not whether or not the goods were in the factory but as to who made the payment. This was

[30] adequately dealt with in the hearing and main decisions; that the respondent had procured the goods

[31] and evidence have been submitted to that effect and decision rendered. In the proceedings in England,

[32] Mr Abraham Ghirmay gave evidence that the purpose of the inventory report was solely to ascertain

[33] the presence of the goods.

[34] Even if the evidence showing that the goods were present at the factory was submitted to the court

[35] at that time that would not have been sufficient to alter the judgment. With regard to the training, the

[36] main issue was about payment having been made without training having been provided. The new

[37] evidence presented is the testimony of a person who says training has been given, no less by someone

[38] coming from the company which was alleged not to have provided the training. There was no evidence

[458, 1] presented as to why no due effort was made to call this witness previously. What should be recognised

[2] here is that CPC Art. 6 was intended to rectify a situation whereby an adverse judgment was passed

[3] against another arising from a criminally tainted act but not to given an individual the opportunity to

[4] present evidence that he failed to present during the main proceedings due to personal problems or his

[5] own failings. It cannot be imagined that the legislature would pass a law that would permit endless

[6] litigation. Thus, CPC Art. 6(a) provides the following conditions "subsequently to the judgment discovers

[7] new and important matter, such as forgery, perjury or bribery, which after the exercise of due diligence,

[8] was not within his knowledge at the time of the giving of the judgment."

[9] In the case at hand, the Petitioners did not call Mr. Cantu or Mr. Abraham as witnesses during

[10] the previous proceedings while they were able to do so. It is this court's opinion that not only did

[11] the Petitioners not make due effort to present the witnesses who gave evidence at the London

[12] court, they have not demonstrated with evidence that there was some act of criminality by the

[13] Respondent to prevent the witnesses from giving evidence.

[14] Notwithstanding the above, even if the evidence was admitted as new evidence, it would not

[15] destroy the force of the evidences that led to the previous judgment nor would it change the

[16] original judgment. The Petitioners say, on 18 October 2005, following a negotiation they obtained a

[17] signed document showing that the goods were present at the factory. However, according to CPC Art.

[18] 6(2) the Petitioners should have submitted their application for review within one month of the

[19] discovery of this new evidence but this evidence is presented to this court six years later and

[20] therefore we say the application for review is out of time.

[21] Next we consider the Petitioners' contention under paragraph 2.7 of their application. The

[22] application states Dr Mamo Asgedom was appointed by the shareholders as general manager of

[23] Addis Pharmaceutical Factory not on 29 June 1997 but March 2006 and Mr. Abadi Zemo confirmed

[24] this when he gave evidence in the court in London. Further the Petitioners state that the Respondent

[25] presented a forged packing list to convince the court that they purchased the electrical equipment

[26] and by pretending that they purchased twice. On the other hand the Petitioners claim that it was

[27] the First Petitioner who, pursuant to his agreement with Serteci purchased all the electrical

[28] equipment and that this has been confirmed by witness evidence and therefore it is new evidence.

[29] First of all, as has been stated above the Petitioners have not explained as to why they did not

[30] present those witnesses in the first instance court and they had not shown whether the Petitioners

[31] exercised due diligence to find and produce those witnesses who testified in London to give

[32] evidence in the first instance court hearing. Furthermore, there is no evidence to show that the

[33] judgment was obtained as a result of a criminally tainted act and therefore the petition does not

[34] satisfy the requirements provided in CPC Art. 6(a). The other issue in this application is that Dr.

[35] Mamo Asgedom was appointed on 29 June 1997. Documentary evidence to that effect was

[36] presented to the first instance court and according to CPC Art. 2006(2) such evidence cannot be

[37] challenged by oral evidence and therefore the argument is not accepted. Even if it is accepted as

[38] evidence it would not change the substance of the previous judgment.

[459, 1] Regarding the electrical equipment, on 19 March 2004 Petitioners have under paragraph 1 of

[2] their petition filed an application for review and argued

[3] that they have obtained new evidence and that they should be granted a review pursuant to CPC Art. 6. That

application for review was

[4] determined by a judgment rendered on 10 June 2005. Now although it is presented again as new

[5] evidence, the Petitioners failed to show evidence of their inability to present these new evidences

[6] after exercising due diligence. Furthermore, there is nothing to suggest that the Respondents by

[7] their malicious act withheld these evidences. For the reasons stated above the court rejects the

[8] petition.

[9] Finally, the court considers the Petitioner's contention that the decision was not a product of

[10] neutral and impartial judgment. In support of this contention, Petitioners allege that Mr Abadi

[11] Zemo, being the one who brought legal action against the Petitioners and was closely following the

[12] proceedings has in his testimony confirmed that one of the judges who presided over the case was

[13] his wife. The Petitioners claim that they learned this from the witness evidence given before the

[14] court proceeding in London. If Petitioners were aware of this fact during the first instance hearing,

[15] they would have lodged their objection with the court at the time.

[16] Here one should note that according to Article 28(2) of Proclamation No. 25/1988 any litigant if

[17] he believes that the judge presiding over the case cannot see the case impartially he can make an

[18] application to the judge to rescue himself and if there is sufficient evidence the judge can be

[19] removed.

[20] This is possible if the application for the removal of the judge is made before the proceedings

[21] have started or immediately after the complainant is aware of the reasons for the recusal. In the

[22] present case, the evidence is the oral testimony of Mr. Abadi Zemo at the London court which states

[23] that one of the judges, Mrs. Hiriyti Mihreteab, who reviewed the case was his wife; in the same

[24] testimony, however, Mr. Abadi Zemo has testified that he and the First Petitioner were well

[25] acquainted through a close working relationship, and that the First Petitioner was also acquainted with

[26] Mr. Zemo's wife prior to the court case. Since it is appropriate to consider evidence in its entirety,

[27] it is not appropriate to selectively pick only the part that is found useful. In conclusion, since the

[28] request to have the duly appointed judge recuse herself was an opportunity they had and which

[29] they did not exercise, they cannot now argue on the basis of recently discovered new evidence.

[30] In fact, even if the request for the judge's removal had been made at the hearing, it is not a

[31] matter covered by the reasoning in Article 27(1) a-d of Proclamation No. 25/1988, since the judge's

[32] spouse, Mr. Abadi Zemo, was not the Factory's (the then plaintiff) employee and since he had

[33] confirmed in his testimony that he and his wife did not discuss their day-to-day work related affairs.

[34] We also believe, that since there was no evidence presented to show that she could not review the

[35] case impartially, had the request for her removal been made there would have been sufficient

[36] reason to comply with the request. Furthermore, while this application for review is with regards to

[37] the judgment of this court handed down on 1 January 2001 and 3 January 2003, that judgment was

[38] made by three other judges and Judge Hiriyti was not one of them. The judgment of which she was a

[39] part as the second judge was at the hearing of the application for review made by the plaintiffs to

[460, 1] which a judgment was made on 10 June 2004. It is not clear as to which judgment the Petitioners

[2] allege was not adjudicated impartially. Even if the evidences were considered to be new,

[3] pursuant to the provisions laid down in CPC Art. 6 there was no evidence to show that, it was

[4] maliciously concealed by the Respondent. Evidence has been given that the First Petitioner is aware

[5] of the relationship between Mrs. Hiryti and Mr. Abadi and this shows that the Petitioners have not

[6] exercised due diligence.

[7] In conclusion we declare that this petition has not satisfied the requirements for review of

[8] judgment as provided for under Article 6 of the Civil Procedure Code and therefore unanimously

[9] dismissed the application.

APPENDIX 2

Extracts from the judgment of the Cassation Division of the Supreme Court of Tigray dated 2 December 2013

[4, 111] There are three preconditions indicated in this provision, namely:

[112] 1st When new evidence is presented which proves that the evidence on which the

[113] judgment has been made by perjury, bribery, forgery or anything obtained

[114] through criminal or illegal means.

[115] 2nd When the other litigant, during the horizontal or bottom up litigation conducted,

[116] could not have been aware of such evidence in spite of exercising due diligence, and

[117] had such matter been known it would have changed or materially affected the

[118] judgment.

[119] 3rd Provided that the plaintiff making the appeal for review of judgment made the appeal

[120] within one month of discovering the new evidence.

[121] It is clear, self-explanatory, and incontrovertible that the provision is applicable only when

[122] all three preconditions have been met simultaneously. Thus, according to the provision,

[123] when these three conditions have been met, it is a right given to the applicant for review

[124] to rectify a wrong judgment. …

[5, 138] The evidence, presented in three parts, both to the Tigray Court and this Cassation Court

[139] as new evidence by the current plaintiffs is as follows.

[140] 1st The testimony given by the Defendant's engineer, Mr. Abraham Ghirmay, to the

[141] English High Court and the Inventory report of 18 October 2005 prepared by the

[142] litigants' representatives;

[143] 2nd The testimony given by Mr. Pierre-Guissepe, a senior engineer at the Italy based

[144] company called Serteci that was said to have sold factory equipment and provided

[145] training to the Defendant's factory; and,

[146] 3rd The evidence claimed to show that one of the judges, Hirfyt Mihreteab, who heard the

[147] arguments during the initial hearings at the Tigray Supreme Court, could not have been

[148] an impartial judge because she was married to Mr. Abdi Zemu, who holds a high

[149] position in the Respondent Company. …

[152] The argument by the Petitioners is that these new evidences are sufficient and adequate

[153] to warrant the requested review of judgment, that these are evidences that prove that the

[154] defendant's factory had received all the disputed equipment and training that was procured,

[155] and that if the regional Supreme Court's judgment were reviewed, the material proposition of

[156] fact that the Tigray Supreme court held previously is undermined by these evidences and the

[157] judgment would be changed or materially affected. …

[206] The evidence that the current Petitioner presented in three categories as belatedly

[207] obtained new evidence warranting the review of the judgment based on CPC Art. 6 was not

[208] found to meet, in its kind or content, the code's requirements indicated above for the proper

[209] applicability of its provision. That is, the evidence does not demonstrate that the ruling of 1

[210] January 2001 and 3 January 2003, Doc. No. 1/90, was passed on the basis of evidence obtained

[211] through criminal or improper means. …

[220] Thus, the evidence was such that the First Petitioner knew about and, had he so wished,

[221] could have presented without any trouble when the Tigray Supreme Court was conducting the

[222] proceedings to determine the issue of whether or not the current First Petitioner purchased the

[223] goods and services with the money he took out for the purpose and delivered the goods and

[224] services to the factory. The evidence, however cannot be considered as new evidence

[225] discovered after the judgment was passed. Thus, the material facts show that there was

[226] nothing to prevent the Petitioner from presenting the evidence at the time he was sued. …

[14, 450] The Petitioner argued that he found out that the said judge was the spouse of Mr. Abdi

[451] Zemo, who was the chairman of the defendant's company through the testimony given by Mr

[452] Abdi Zemo at the English High Court. He also argued that Mr. Abdi Zemo had testified

[453] admitting that he exerted influence on the court as a result of his marital relationship.

[454] According to our review of the testimony, the witness admitted his marriage to the judge, but

[455] did not assert that he exerted influence on the court as a result of his marital relationship. If the

[456] relevance of the testimony to the case were to be considered, it should be by taking the

[457] testimony as a whole and not based only on the part presented by separating what is helpful

[458] from what is harmful. Thus, the witness has additionally testified that the 1st plaintiff had

[459] known for a long time about his marital relationship as a result of his close relationship with

[460] him. This is not something that the Petitioner had denied in the English High Court.

[461] Hence, regarding the issue of whether the plaintiff knew about the marital relationship

[462] between Mr. Abdi Zemo and the judge, while the witness's testimony demonstrated that the

[463] Petitioner did know about the relationship, the Petitioner's claim that he learned about the

[464] relationship at the English High Court proceeding is one that is not supported by material fact

[465] or evidence.

[466] This is not all. That the judgment requested to be reviewed through this application is the

[467] one passed by the Tigray Supreme Court in Doc. No. 1/90 of 1 January 2001 and 3 January 2003,

[468] to which hearing three other judges, and not the judge in question, were appointed. The

[469] judgment of the hearing to which the said judge was appointed was one the Tigray Supreme

[470] Court passed on the hearing of 10 June 2004, rejecting the application previously filed by the

[471] Petitioners requesting the review on the basis of CPC Art. 6. We have learned from the

[472] judgment it passed in Doc. No. 1/90 of 8 October 2003, that the court had ascertained her

[473] impartiality.

[474] This second application for the review of judgment under CPC Art. 6 is concerned with the

[475] decision of other judges who sat on 01/01/2001 and 03/01/2003 and the resulting judgment

[476] and not the one which the judge sat on the hearing dated 10 June 2004 and has no relationship

[477] to it.

[478] The petition to Tigray Supreme Court for a review under CPC Art. 6 and the petition that

[479] came to this Cassation Division is based on a complaint about a proceeding on which the Judge

[480] did not preside over. If this is the case, then the argument whether the judge was independent

[481] is made for argument's sake, and does not indicate its relevance to this case.

[482] Even if it were argued that the issue of whether the judge was or was not impartial should

[483] be examined on the grounds that the judgment of 10 June 2004 to which she was a member of

[15, 484] the bench may have a hearing, albeit indirect, on the judgment passed on 1 January 2001 and 3

[485] January 2003, we have considered whether this falls under CPC Art. 6.

[486] As long as it is ascertained that the plaintiff had prior knowledge of this marital

[487] relationship between the judge and Mr. Abdi Zemo, from the beginning he could have exercised

[488] his right by raising the issue and arguing that this judge should not hear my case, but has

[489] missed the opportunity. The said right stems from the Constitution of the Federal Democratic

[490] Republic of Ethiopia and the provision of Articles 2 and 5 of the International Charter of Civil

[491] and Political rights (ICCPR), as well as the Articles 27-28 of Proclamation No. 25/88 issued to

[492] realize these provisions, which guarantee within our national legal system that any individual

[493] has the right to obtain judgment from an impartial judicial body. We have also recognized that,

[494] when the judgment at the hearing to which this judge was appointed was passed, it was

[495] possible to present the reasons for claiming that the judge was not impartial along with

[496] supporting evidence to the Federal Supreme Court's Cassation Division through a cassation

[497] application, and thus have the situation rectified. Nevertheless, other than raising the judge's

[498] marital relationship as an issue, the plaintiff did not file an application to this Cassation Court

[499] with arguments and evidence that could lead to the conclusion that the judgment was biased

[500] due to this martial relationship.

[501] The right to be judged by an impartial judicial body is a constitutional right and closely

[502] related to the right of access to justice. In view of the above even if it is argued that the

[503] requirements of CPC Art. 6 shall be extended to cover the issue of impartiality of a judge after

[504] judgment is rendered, such argument must be supported by sufficient evidence.

[16, 534] To summarise, based on the detail analysis of the law given above:-

[535] Whereas, the new evidence and legal argument submitted by the to current Petitioners do

[536] not meet the requirements for new evidence as set out in CPC Art. 6.

[537] Moreover, the evidences presented by the Petitioners as new evidences, when examined

[538] in relation to the underlining dispute in the original proceeding and the judgment that followed,

[539] these were evidences that should have been presented at the time and that they were under

[540] the control of the Petitioners. Even if they could not present these evidences at the horizontal

[541] level of proceedings they could have certainly presented them during the vertical level of the [542] litigation stage and therefore they do not satisfy the application of CPC Art. 6.

[543] Whereas, the new evidences do not meet the requirements of the to law for "…new

[544] evidence…" as set out in CPC Art. 6. Even if it were considered to have satisfied the criteria of

[545] new evidence, the application for review has not been made within one month of the discovery

[546] of these new evidences and therefore the application for review is barred by limitation.

[547] Whereas, beyond the criteria indicated as preconditions for the to proper application of the

[548] law, when the explanatory relevance and strength of the supposed new evidence is examined,

[549] with respect to, first, the material facts based on the previous proceedings, and the judgment

[550] passed, it was not found to be sufficient to either alter or improve the material facts and the

[551] judgment; …