Date: Sene 28, 2015 E.C.
Brief Summary of the Case:
While the applicant had filed a petition to set aside a default judgment rendered in their absence, the judge handling the case recused themselves upon the applicant’s request. However, the other bench to which the file was directed closed the file without effect, without examining the submitted Article 78 petition.
Key Legal Interpretation:
Courts have a constitutional and procedural obligation to investigate and render judgment on a petition submitted pursuant to Article 78 of the Civil Procedure Code. Closing a file without deciding on the petition is a violation of the right to access justice.
It is provided that where a case is heard and a decision is rendered in the absence of a defendant, he may request the setting aside of the decision or order given in his absence in accordance with Article 78 of the Civil Procedure Code. Under this provision, the petition submitted by the petitioner can be accepted only when he submits a petition stating that the summons was “not properly served” on him and is able to prove this with evidence. The defendant is considered to have waived his right to defend only when it is proven that the summons was served on him in accordance with the procedure and sequence established by law, and he failed to appear despite knowing that there is a pending litigation. As provided under Article 78(2) of the Civil Procedure Code, when a petition is submitted to set aside a judgment given in absentia, the court hearing the case must ensure that the petition is served on the plaintiff, conduct the appropriate inquiry, and render an appropriate judicial decision on the petition to set aside the default judgment. Since this provision is enacted with the intention of enforcing the rights of the litigating parties to be heard, to defend against the claim, and to obtain justice, it must be properly implemented. Because these rights are constitutionally protected rights in accordance with the spirit and content stipulated under Articles 20(1, 2, and 4) and 37(1) of the FDRE Constitution, courts have the obligation to respect and enforce them pursuant to Articles 9(1 and 2) and 13(1) of the Constitution.
Reasoning and Decision:
Closing the file without providing a response to the applicant’s request to set aside the default judgment rendered in their absence is a fundamental error of law. Therefore, the case is remanded so that the file is reopened and the applicant’s petition is heard in accordance with the procedural law.