Contumacia : requisites thereof and procedural status

Abstract

The aim of this thesis is to provide clarification as regards the institute of contumacia, under Civil Procedural law. The institute of contumacia is an everyday occurrence in the ordinary mode of procedure before our Courts. The defendant's failure to file an appearance in Court, and simultaneously file a note of exceptions is customary both before the Inferior Courts, and also before the Superior Courts. Predominantly, the institute of contumacia in the Maltese legal system evolved through jurisprudence. Our Courts currently award the institute of contumacia with a uniform and constant interpretation, and one can affirm that the principles regulating this institute have nowadays been standardized by Court practice and jurisprudence. Our Code of Organization and Civil Procedure provides sparse provisions regulating this institute, but fails to articulate en bloc the effects of this institute. In the first four chapters of this thesis I shall analyze the requisites and the implications of the institute of contumacia. Chapters 5 and 6 provide an analysis of the procedural status of the party who is in contumacia, and the rights granted to such party. In Chapter 5, we discover that the majority of the rights appertaining to a defendant who is in contumacia before the Court of Appeal emanate from jurisprudence. Upon delivering judgement, the Court plays an imperative role in safeguarding the rights of the defendant who is in contumacia. The ultimate objective of the Court is the ascertainment of the truth, by thereby pronouncing a just and equitable judgement vis-a-vis all the parties involved. The party who is in contumacia is precluded from fully contributing towards his defense, and therefore the Court has to examine the claim of the plaintiff in the light of the defendant's state of contumacia Accordingly, once a defendant is in contumacia, the Court has to take cognizance of any possible defenses that such party could have presented, bad he not been in contumacia. Chapter 6 analyzes the process of instituting the defendant who is in contumacia back in integrum. Throughout this chapter, I accentuate the particular traits that our Courts constantly pursue in order to consider contumacia as excusable.