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Debtors Act [Cap 32]

LAWS OF FIJI

CHAPTER 32

DEBTORS

Ordinances Nos. 7 of 1886, 20 of 1944.
The Civil Procedure Rules of 1876

AN ACT RELATING TO IMPRISONMENT FOR DEBT.

[22nd April, 1886.]

Short title

1. This Act may be cited as the Debtors Act.

Interpretation

2. In this Act, unless the context otherwise requires, "court" means the Supreme Court.

Imprisonment for debt restricted

3. Except as hereinafter in subsequent sections mentioned and except as may be provided by the Magistrates' Courts Act, and by the bankruptcy law in force for the time being no person shall be arrested or imprisoned for making default in payment of a sum of money. But this enactment shall not apply to default-
(Cap. 14)

(a) in payment of a penalty or sum in the nature of a penalty other than a penalty expressly provided for by contract;

(b) in payment of any sum recoverable summarily before a magistrate;

(c) by a trustee or person acting in a fiduciary capacity in obeying an order of the court for payment of a sum in his possession or under his control;

(d) by a barrister and solicitor in payment of costs when ordered to pay costs for misconduct as such or in payment of a sum of money when ordered to pay the same in his character of an officer of the court;

(e) in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which the court is authorised to make an order.
(Section amended by 20 of 1944, s. 68.)

Court may commit to prison defaulting judgment debtor

4. Subject to the provisions hereinafter mentioned and to the rules in the Schedule the court may commit to prison for a term not exceeding six months or until payment of the sum due any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of any competent court:

Provided that the jurisdiction given by this section shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default and has refused or neglected or refuses or neglects to pay the sum. For the purpose of this section, the court may direct any debt due from any person in pursuance of any order or judgment of any competent court to be paid by instalments and may from time to time rescind or vary such order.

Imprisonment not to operate as extinguishment of debt

5. No imprisonment under section 4 shall operate as a satisfaction or extinguishment of any debt or cause of action or deprive any person of any right to take out execution against the lands, goods or chattels of the person imprisoned in the same manner as if such imprisonment had not taken place.

Absconding defendant may be arrested and detained until security given

6. If it is shown to the satisfaction of the court that the defendant in any action for the recovery of a sum exceeding ten dollars is about to abscond, the court may, in its discretion, issue a warrant to arrest the defendant and commit him to prison, there to be kept until he shall have given bail or security in such sum, to be expressed in the warrant, as the court thinks fit, not exceeding the probable amount of debt or damages and costs, for his appearance at any time when called upon while the action is pending and until execution or satisfaction of any judgment that may be made against him in the action; and the surety or sureties shall undertake, in default of such appearance, to pay any sum of money that may be adjudged against him in the action with costs:

Provided that the court may at any time, upon reasonable cause being shown, release the defendant from such arrest.
(Rule 381 of Civil Procedure Rules of 1876 incorporated under 7 of 1886, s. 6.)

Removal of property to delay execution
May be seized and detained until security given

7. If it is shown to the satisfaction of the court that the defendant, with intent to obstruct or delay the execution of any judgment which may be passed against him, is about to remove any of his goods, chattels or effects out of Fiji, the court may, in its discretion, on the application of the plaintiff, order that the goods, chattels and effects of the defendant, or any part thereof, be forthwith secured and taken into custody of the sheriff as a pledge or security to answer the just demands of the plaintiff until the trial of such action and judgment thereon:

Provided that the court may at any time, upon reasonable cause being shown, and upon such terms, if any, as to security or otherwise as may seem just, release the property seized and order the same to be returned.
(Rule 382 of Civil Procedure Rules of 1876 incorporated under 7 of 1886, s. 6.)

Compensation for needless arrest or seizure. Measure of damages

8.-(1) If it appears to the court that the arrest of the defendant or the seizure of his goods was applied for on insufficient grounds, or if the action of the plaintiff is dismissed, or judgment is given against him by default or otherwise, and it appears to the court that there was no probable ground for instituting the action, the court may, on application of the defendant, award against the plaintiff such amount as it may deem a reasonable compensation to the defendant for the expense or injury occasioned to him by such arrest or seizure:

Provided that the court shall not award a larger amount of compensation under this rule than it is competent to the Court to give in an action for damages.

(2) An award of compensation under this section shall bar any action for damages in respect of such arrest or seizure.
(Rule 383 of Civil Procedure Rules of 1876 incorporated under 7 of 1886, s. 6.)

Rules

9. The rules in the Schedule shall be followed for the purpose of carrying this Act into effect:

Provided that the Chief Justice may from time to time amend, rescind or add to such rules by rules of court made and published in manner provided by the Supreme Court Act. (Cap. 13)

SCHEDULE
(Section 9)

RULES

1. All applications to commit to prison for non-payment of a judgment debt shall be made by summons which shall specify the date and other particulars of the judgment or order for non-payment of which the application is made, together with the amount due.

2. On the return day of the summons the judgment debtor may be examined on oath as to his means of payment and the court may, for the purpose of ascertaining the said means of payment, order the production of any document or the attendance of any person for examination on oath at such time and place as may be specified in the order, and wilful failure of the debtor to attend or disobedience of any person to any such order shall be deemed a contempt of court and shall be punishable accordingly.

3. The hearing of the summons may be adjourned from time to time.

4. The order of committal may be in the Form SCL out at the foot of this Schedule. Concurrent orders may be issued for service in different districts.

5. A judgment creditor or (in the case of an absconding debtor), a plaintiff applying for a committal order, shall pay for the subsistence of the judgment debtor or defendant such daily sum as may be prescribed under the provisions of the Prisons Act to be paid to the officer in charge of the prison at Suva, Lautoka or Labasa, according as the order for committal shall direct, by monthly payment in advance before the first day of each month, the first payment to be made for such portion of the current month as may remain unexpired before the defendant is imprisoned. Sums disbursed for subsistence as aforesaid shall be added to the judgment debt and shall not form a separate debt for the non-payment of which the debtor may be imprisoned.
(Amended by Rules, 15th July, 1958 and 4th November, 1969.)

6. A defendant shall be released before the expiration of the term for which he was imprisoned on the judgment being satisfied or at the request of the person at whose instance he was imprisoned or by order of the court on such person omitting to pay the fees for subsistence as above provided for or if the Court shall think fit on an adjudication in bankruptcy being made against him.

7. A magistrate shall have power to issue summonses for the examination of judgment debtors and to hold the examination herein provided for with respect to their means of payment, and for that purpose to exercise all the powers of the court with respect to the attendance of witnesses and the production of documents. Every magistrate holding such an examination shall take a minute of the evidence of all witnesses examined thereat and shall forward such minute or a certified copy thereof, together with any document or documents which may have been produced before him, to the court, who shall then have power to make any such order upon the summons as might have been made if the examination of the debtor had been held before the court.

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FORM

UPON hearing or reading, etc. {names of the debtor and of the party claiming] it is ordered that the said A.B. be for default in payment of the debt hereinafter mentioned committed to prison at ...................... for the term of ...................... from the date of his arrest including the day of ...................... such date or until he shall pay $......... being the amount (of an instalment due to the said C.D. upon [or of] a judgment of the Supreme Court [or due under an order of the Supreme Court]) bearing date the day ........................ of together with $.......... for costs of this order and sheriff's fees for the execution thereof and it is ordered that the sheriff do take the said A.B. for the purpose aforesaid if he shall be found within Fiji.

Dated, etc.

[L.S.]

Chief Registrar of the Supreme Court.

Controlled by Ministry of the Attorney-General

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