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Fiji Legislation |
LAWS OF FIJI
CHAPTER 14
MAGISTRATES' COURTS
ARRANGEMENT OF SECTION
PART I-PRELIMINARY
SECTION
1.
Short title.
2.
Interpretation.
PART II-CONSTITUTION OF THE COURTS
3. Establishment of
magistrates' courts.
4. Territorial
limits of jurisdiction of courts.
5.
Seals.
6. Contempt of
court.
PART III-OFFICERS OF THE COURT
Magistrates
7. Appointment of
magistrates.
8. Territorial
jurisdiction of magistrates.
9.
Procedure when magistrate personally interested in case before
him.
10. Records and
returns.
Justices of the Peace
11. Appointment and
removal of justices of the peace.
12.
Powers and functions of justices of the peace.
Clerk of the Court
13. Clerk of the
court.
14. Duties of clerk of the
court.
Sheriff
15. Sheriff to execute
process of magistrates' courts.
PART IV-JURISDICTION OF THE COURTS
16. Civil jurisdiction of
magistrates.
17. Criminal
jurisdiction.
18. Special jurisdiction
in certain cases.
19. Extension of
jurisdiction.
20. General powers of
magistrates.
21. Acts of magistrate
not affected by error as to venue.
22.
Proceedings by or against officer of the
court.
23. Administration of oaths in
proceedings.
24. Magistrates to be
Commissioners for Oaths.
Law to be Administered
25. How far law of England
in force.
26. Rules as to application
of Imperial laws.
27. Law and equity
to be concurrently administered but equity to prevail in certain
cases.
Reconciliation
28. Courts to promote
reconciliation.
29. In pending civil
cases.
30. In criminal
cases.
Power of Transfer
31. Transfer between
magistrates in same Division.
32.
Magistrates may report cases for transfer.
33. Transfer of cases by a judge.
34. Effect of order of
transfer.
35. Judgment may be entered
in Supreme Court on judgment of magistrates' court.
PART V-APPEALS
Appeals in Civil Cases
36. Civil
appeals.
37. Power to reserve question
of law for the opinion of the Supreme
Court.
38. Conditions precedent to
appeal.
39. Discretionary power of
Supreme Court.
40. Appeals from second
and third class magistrates.
Appeals in Criminal Cases
41. Criminal
appeals.
PART VI-SITTINGS OF THE COURT
42. Place and time for
sittings of courts.
43. Nature of
business at any sitting.
44.
Adjournment of court.
45. Adjournment
over Sunday or holiday.
PART VII-PRACTICE AND PROCEDURE OF THE COURT
46. Practice and
procedure.
47. Completion by
magistrate of process begun by his
predecessor
48. Process of magistrate
valid throughout Fiji.
49. Issue of
process.
50. Duty of police officers
to obey magistrates.
Language of the Court
51. Language of the
court.
PART VIII-EVIDENCE
52. Summoning
witnesses.
53. Compelling
attendance-penalty for
non-attendance.
54. Refusal to be
sworn or to give evidence.
55.
Bystander may be required to give
evidence.
56. Prisoners may be brought
up by order to give evidence.
57.
Allowances to witnesses.
58. How
defrayed.
59.
Inspection.
60. No person entitled to
inspection of copy of record of
evidence
61. Recording of evidence
before magistrates' courts.
PART IX-MISCELLANEOUS
Fees and Costs
62. Fees and
costs.
63. By whom fees
payable.
64. All fees and moneys
received in courts to be subject to foregoing provisions.
Protection
of Magistrates, Justices of the Peace
and
Officers of
the Court
65. Protection of judicial
officers.
Representation of Parties
66. Representation of
Crown and Government departments.
67.
Employment of legal practitioners.
Rules of Court
68. Rules of
court.
Saving
69. Jurisdiction of Fijian
courts not to be affected.
70.
Application of Act to Rotuma.
71.
Enforcement of judgments of Fijian courts.
-------------------------------------------------
'Ordinances
Nos. '20 of 1944, '19 of 1947, "19 of 1960, *41 of 1962, '37 of
1966,
'Order 31st
Jan., 1967, "19 of 1973, "12 of
1974,
"Order 7th
Oct.,
1970,
'"Order 4th
Nov., 1970,
"Order
10th July, 1970, 13 of 1977.
AN ACT FOR THE
CONSTITUTION OF MAGISTRATES' COURTS, FOR THE APPOINTMENT OF MAGISTRATES AND
OTHER OFFICERS THEREOF AND OF JUSTICES
OF THE PEACE, AND FOR THE REGULATION OF
THEIR DUTIES AND JURISDICTION.
[1st May, 1945.]
PART I-PRELIMINARY
Short title
1.
This Act may be cited as the Magistrates' Courts Act.
Interpretation
2.
In this Act, unless the context otherwise requires-
"Imperial Act" used with reference to legislation means an Act of the Imperial Parliament;
"cause" includes any action, suit or other original proceeding between a plaintiff and a defendant, and any criminal proceeding;
"cause of action" in suits founded on contract does not necessarily mean the whole cause of action; but a cause of action is deemed to have arisen within the jurisdiction if the contract was made therein, though the breach may have occurred elsewhere, and also if the breach occurred within the jurisdiction, though the contract may have been made elsewhere;
"clerk of the court" includes an assistant clerk of the court or other officer performing, or assisting a clerk of the court in, his duties;
"court" means a magistrates' court established under this Act;
"criminal" includes quasi-criminal, and with reference to matters of jurisdiction, comprehends all such matters not falling within the term "civil";
"existing" means existing at the commencement of this Act;
"Imperial laws" means any Imperial Act and includes general rules or orders made thereunder;
"judge" has the same meaning as in the Supreme Court Act;
(Cap. 13)
"judgment" includes a decree;
"magistrate" means any person appointed under this Act to hold a magistrates' court of any class;
"matter" includes every proceeding in the court not in a cause;
"sheriff" means the sheriff of Fiji appointed under the Supreme Court Act, and includes any deputy appointed by the sheriff;
(Cap. 13)
"suit" includes action, and means a civil proceeding commenced by writ of summons or in such other manner as may be prescribed by rules of court, and does not include a criminal proceeding;
"Supreme Court" means the Supreme Court of Fiji.
PART II-CONSTITUTION OF THE COURTS
Establishment of magistrates' courts
3.-(1)
There shall be and are hereby constituted magistrates' courts subordinate to the
Supreme Court.
(2) There shall be
the following classes of magistrates:-
(a) resident magistrate;
(b) second class magistrate;
(c) third class magistrate.
(3)
There shall be, in each Division, such magistrates' courts as the Chief Justice
may direct.
(4) Any power,
authority, function or discretion vested in a magistrates' court by this or any
other Act shall be possessed and may
be exercised by a magistrate having
adequate jurisdiction.
(5) All
magistrates' courts shall be courts of record.
Territorial limits of jurisdiction of courts
4.-(1)
Subject to any express provisions of this or any other Act, every magistrates'
court shall exercise jurisdiction within the
limits of the Division within which
it is situated:
Provided that when
there is more than one magistrates' court in the same Division, the Chief
Justice may direct the distribution of
business between such
courts.
(2) The jurisdiction of a
magistrates' court shall extend over any territorial waters adjacent to the
Division within which it is
situated as well as over inland waters whether
within or adjacent to such Division.
Seals
5.
All magistrates' courts shall use seals of such nature and pattern as the Chief
Justice 10 may, by notice in the Gazette, direct.
Contempt of court
6.
The Supreme Court shall have the same power to deal with cases of contempt of
its authority as the High Court of Justice in England,
and such power shall
extend to the upholding of the authority of magistrates' courts.
PART III-OFFICERS OF THE COURT
Magistrates
Appointment
of magistrates
7.-(1)
The Judicial and Legal Services Commission may appoint persons admitted as
barristers and solicitors in Fiji, or having the
qualifications specified in
paragraphs (a), (b) and (c) of section 4 of the Legal Practitioners Act, to be
resident magistrates and
may appoint from among such resident magistrates a
chief magistrate who shall continue to be, and to have and to hold all the
powers
of, a resident magistrate in addition to any other powers specific to his
appointment.
(Substituted
by 13 of 1977 s. 3 amended by s. 3 of 12 of
1998)
(Cap.
254)
(2) The Judicial and Legal
Services Commission may appoint fit and proper persons to be second and third
class
magistrates.
(Amended
by s. 3 of 12 of 1998)
(3) All
magistrates, when so appointed, shall have and exercise the powers and
jurisdiction conferred upon them by this or any other
Act:
Provided that the Judicial
and Legal Services Commission" may, by the terms of the appointment, restrict
the powers to be exercised
by a person appointed to be a third class magistrate
in such manner and to such extent as it may think fit, and such person shall
thereupon have and exercise the powers and jurisdiction conferred by this Act
only to the extent authorised by the
appointment.
(Amended
by s. 3 of 12 of 1998)
Territorial jurisdiction of magistrates
8.
Subject to any restrictions imposed under the provisions of sub-section (3) of
section 7 (3), every magistrate shall have jurisdiction
throughout Fiji but may
be assigned to any specified Division or Divisions and transferred from one
Division to another. Notwithstanding
any such assignment a magistrate so
assigned may, without any special notification or appointment to that effect,
exercise jurisdiction
in any other Division or Divisions.
Procedure when magistrate personally interested in case before him
9.
Where a magistrate is a party to any cause or matter, or is unable, from
personal interest or any other sufficient reason, to adjudicate
on any cause or
matter, the Chief Justice shall direct some other magistrate to act instead of
such first named magistrate for the
hearing and determination of such particular
cause or matter, or may direct that such cause or matter shall be heard and
determined
in a court of any other Division.
Records and returns
10.-(1)
All magistrates' courts shall keep written records and furnish returns of cases
tried by them to the Supreme Court in such manner
as the Chief Justice may from
time to time direct.
(2) A judge
of the Supreme Court shall periodically inspect the records of all magistrates'
courts and may give such instructions
and advice thereon as he may deem
necessary.
Justices of the Peace
Appointment and removal of justices of the peace
11.-(1) The Chief Justice
in consultation with the Minister, may appoint any person to be a justice of the
peace in and for Fiji or
in and for such part of Fiji as the Chief Justice in
consultation with the Minister may specify, and the Chief Justice may remove
any
person so appointed from the office of justice of the
peace.
(2) Every magistrate shall
be ex officio a justice of the peace for Fiji.
Powers and functions of justices of the peace
12.
Subject to the provisions of this and of any other Act, every Justice of the
Peace shall, subject to any exceptions which may be
contained in the
appointment, within the area in and for which he holds such office,
have-
(a) all the powers, rights and duties of a magistrate under this or any other Act to-
(i) issue summonses and warrants for the purpose of compelling the attendance of accused persons or persons as witnesses before a court;
(ii) issue search warrants; and
(b) such other powers and rights and perform such duties of magistrates as may be conferred or imposed upon him by rules of court made under any Act not involving the trial of causes or, in criminal cases, the holding of preliminary investigations.
Clerk of the Court
Clerk of the court
13.
The clerk of the court attached to a magistrates' court shall, subject to the
general supervision and control of the Chief Justice,
be under the immediate
direction and control of the magistrate.
Duties of clerk of the court
14.
The duties of the clerk of the court shall be-
(a) to attend at such sittings of the court as the magistrate may direct;
(b) to fill up or cause to be filled up summonses, warrants, orders, convictions, recognizances, writs of execution and other documents, and submit the same for the signature of the magistrate;
(c) to issue civil process in accordance with rules of court for the time being in force;
(d) to make or cause to be made copies of proceedings when required to do so by the magistrate, and to record the judgments, convictions and orders of the court;
(e) to receive or cause to be received all fees, fines and penalties, and all other moneys paid or deposited in respect of proceedings in the court, and to keep or cause to be kept accounts of the same; and
(f) to perform or cause to be performed such other duties connected with the court as may be assigned to him by the magistrate.
Sheriff
Sheriff to execute process of magistrates' courts
15.
The sheriff shall be charged with the execution of all orders and process of a
magistrates' court and for that purpose shall have
the same powers and authority
as may be conferred upon him by the law for the time being in force in respect
of the orders and process
of the Supreme Court.
PART IV-JURISDICTION OF THE COURTS
Civil jurisdiction of magistrates
16.-(1)
A resident magistrate shall, in addition to any jurisdiction which he may have
under any other Act for the time being in force,
have and exercise jurisdiction
in civil causes-
(a) (i) in all personal suits arising out of any accident in which any vehicle is involved where the amount, value or damages claimed, whether as a balance claimed or otherwise, is not more than three thousand dollars;
(ii) in all other personal suits, whether arising from contract, or from tort, or from both, where the value of property or the debt, amount or damage claimed whether as a balance claimed or otherwise, is not more than two thousand dollars;
(b) (i) in all suits between landlords and tenants for possession of any land (including any building or part thereof) claimed under any agreement or refused to be delivered up, where the annual value or annual rent does not or did not exceed two thousand dollars;
(ii) in all suits involving trespass to land or for the recovery of lands (including any building or part thereof) irrespective of its value, where no relationship of landlord and tenant has at any time existed between any of the parties to the suit in respect of the land or any part of the land (including any building or part thereof);
(c) in any type of suit covered by paragraphs (a) and (b), whatever the value, amount, debt, damages sought to be recovered is, or whatever the annual value or annual rent is, if all the parties or their respective barristers and solicitors consent thereto in writing:
Provided that where any such suit has already been commenced in the Supreme Court it may only be transferred to a resident magistrate's court with the prior consent of the Supreme Court;
(d) to issue writs of habeas corpus for the production before the court of any person alleged upon oath to be wrongfully imprisoned and detained, and to make orders thereon;
(e) to appoint guardians of infants, and to make orders for the custody of infants;
(f) to grant in any suit instituted in the court injunctions or orders to stay waste or alienation or for the detention and preservation of any property the subject of such suit, or to restrain torts or breaches of contracts;
(g) to enforce by attachment any order made by the court;
(h) to commit to prison for a term not exceeding six weeks, 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 the court or any other competent court:
Provided that such jurisdiction 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 same.
For the purposes of this paragraph, any court may direct any debt due from any person, in pursuance of any order or judgment of that or of any other competent court, to be paid by instalments, and may, from time to time, rescind or vary such order.
The expression "competent court" in this paragraph shall include the Supreme Court.
(i)" in all other suits or actions in respect of which jurisdiction is given to a resident magistrates' court by this Act or any other written law:
Provided that a magistrates' court shall not exercise jurisdiction-
(i) in suits wherein the title to any right, duty or office is in question; or
(ii) in suits wherein the validity of any will or other testamentary writing or of any bequest or limitation under any will or settlement is in question; or
(iii) in suits wherein the legitimacy of any person is in question; or
(iv) except as specifically provided in the Matrimonial Causes Act or any other Act for the time being in force, in suits wherein the validity or dissolution of any marriage is in question; or
(Cap. 51)
(v) in any action for malicious prosecution, libel, slander, seduction or breach of promise of marriage.
(2) Second and
third class magistrates shall have and exercise jurisdiction in civil cases
similar in all respects to that set out
in paragraphs (a), (g) and (h) of
subsection (1) save that such jurisdiction shall in any cause or matter be
limited to $200 in the
case of a second class magistrate and to $50 in the case
of a third class magistrate.
(3)
Where in any action the debt or demand consists of a balance not exceeding three
thousand dollars' two thousand dollars' two hundred
dollars or fifty dollars, as
the case may be, after an admitted set-off of any debt or demand claimed or
recoverable by the defendant
from the plaintiff, a magistrate shall have
jurisdiction and power to hear and determine such action within the limits of
his personal
jurisdiction and power.
Criminal jurisdiction
17.
In the exercise of their criminal jurisdiction magistrates shall have all the
powers and jurisdiction conferred on them by the Criminal Procedure Code, this
Act or any other law for the time being in
force.
(Cap.
21)
Special jurisdiction in certain cases
18.
Where an offence is committed or any cause or matter arises over which a
magistrate has jurisdiction in any ship, boat or canoe,
such offence may be
prosecuted or such cause or matter heard and determined either by the magistrate
exercising jurisdiction over
the place where the ship, boat or canoe may be at
the time when the offence was committed or the cause or matter arose, or by the
magistrate exercising jurisdiction over any place where the ship, boat or canoe
may call at after the commission of the offence or
the arising of the cause or
matter.
Extension of jurisdiction
19.
The Chief Justice may, by order under his hand and the seal of the Supreme
Court, authorise an increased jurisdiction in civil causes
and matters to be
exercised by the magistrate named in the order, within the division prescribed
in the order, and to the extent
specified in the order. Such order may, at any
time, be revoked by the Chief Justice by an instrument under his hand and the
seal
of the Supreme Court.
General powers of magistrate
20.
Every magistrate shall have power to issue writs of summons for the commencement
of actions in a magistrates' court, to administer
oaths and take solemn
affirmations and declarations, to receive production of books and documents and
to make such decrees and orders
and issue such process and exercise such powers
judicial and administrative in relation to the administration of justice, as
shall
from time to time be prescribed by any Act, or by rules of court, or,
subject thereto, by any special order of the Chief Justice.
Acts of magistrate not affected by error as to venue
21.-(1)
Subject to the provisions of the Criminal Procedure Code, no act done by or
under the authority of a magistrate shall be void or impeachable by reason that
such act was done, or that any
act, offence or matter in respect of or in
relation to which such act was done, occurred or was situated beyond the limits
of the
area of the jurisdiction of such
court.
(Cap.
21)
(2) If the defendant in any
civil cause or matter wherein such objection might but for this enactment be of
force, shall at or before,
but not after, the time when he is required to state
his answer in such cause or matter before the court, allege specially any such
objection, the court shall consider the same, and if there is
prima
facie proof of the objection the
magistrate shall report such cause or matter to a judge and the judge shall make
an order directing where
the cause or matter shall be heard and determined, and
such order shall not be subject to appeal.
Proceedings by or against officer of the court
22.
Subject to the provisions of section 9, any civil or criminal proceedings by or
against any magistrate or officer of a magistrates'
court for any offence or
matter cognizable by a magistrates' court may be brought in any other court
before a magistrate having jurisdiction
and power in the case of any particular
proceeding.
Administration of oaths in proceedings
23.-(1)
Every magistrate and every justice of the peace is hereby authorised to
administer all oaths which may require to be taken before
him in the exercise of
any of the jurisdictions and powers conferred upon him by this or any other
Act.
(2) Any such oath may also be
administered by the clerk of the court or other officer of the court under the
direction and in the
presence of the magistrate.
Magistrates to be Commissioners for Oaths
24.
Every magistrate shall be a Commissioner for Oaths and shall have and may
exercise the powers thereof.
Law to be Administered
How far law of England in force
25.
Subject to the provisions of any Act, the common law, the rules of equity and
the statutes of general application which were in
force in England on the second
day of January, 1875 (being the date when Fiji obtained a local legislature)
shall be in force within
the jurisdiction of magistrates'
courts:
Provided that, subject as
aforesaid, any Imperial 9 Act of later date now applied to Fiji, or which
hereafter is applied thereto by
any Act or otherwise, shall be in force within
the jurisdiction of magistrates' courts.
Rules as to application of Imperial laws
26.-(1)
All Imperial laws declared to extend or apply to the jurisdiction of the courts
constituted by this Act shall be in force so
far only as the limits of the local
jurisdiction and local circumstances permit and subject to any existing or
future local Act.
(2) Every
magistrate or officer of any of the said courts having or exercising functions
of the like kind, or analogous to the functions
of any magistrate, justice of
the peace or officer referred to in any such law, shall be deemed to be within
the meaning of the enactments
thereof relating to such last mentioned
officer.
(3) Whenever the great
seal or any other seal is mentioned in any such law it shall be read as if the
seal of the court were substituted
therefor.
(4) In matters of
practice all documents may be written on ordinary paper, notwithstanding any
practice or directions as to printing
or engrossing on vellum, parchment or
otherwise.
Law
and equity to be concurrently
administered
but
equity to prevail in certain cases
27.-(1)
In every civil cause or matter which shall be instituted in any of the
magistrates' courts constituted by this Act law and equity
shall be administered
concurrently.
(2) A magistrate in
the exercise of the jurisdiction vested in him by this Act shall have power to
grant, and shall grant, either
absolutely or on such reasonable terms and
conditions as shall seem just, all such remedies or relief whatsoever,
interlocutory or
final, as any of the parties thereto may appear to be entitled
to in respect of any and every legal or equitable claim or defence
properly
brought forward by them respectively, or which shall appear in such cause or
matter; so that as far as possible all matters
in controversy between the said
parties respectively may be completely and finally determined and all
multiplicity of legal proceedings
concerning any of such matters
avoided.
(3) In all causes or
matters in which there is any conflict or variance between the rules of equity
and the rules of the common law
with reference to the same subject the rules of
equity shall prevail.
Reconciliation
Courts to promote reconciliation
28.
In civil causes magistrates and their officers shall, as far as there is proper
opportunity, promote reconciliation among persons
over whom such magistrates
have jurisdiction, and encourage and facilitate the settlement in an amicable
way and without recourse
to litigation of matters in difference among
them.
In pending civil cases
29.
Where a civil suit or proceeding is pending, the magistrate may promote
reconciliation among the parties thereto and encourage and
facilitate the
amicable settlement thereof.
In criminal cases
30.
In criminal causes a magistrate may promote reconciliation in the cases and in
the manner provided in the Criminal Procedure
Code.
(Cap.
21)
Power of Transfer
Transfer between magistrates in same Division
31.
Where two or more magistrates are appointed to any Division, any such magistrate
with such Division may, at any stage of the proceedings
before final judgment,
transfer, within the limits of such Division, any cause or matter before him to
any other such magistrate
and such cause or matter shall be commenced
de
novo, inquired into, tried and disposed
of, by any magistrate of competent jurisdiction to whom it has been transferred
as if it had been
instituted before
him:
Provided that no cause or
matter which has been specifically transferred by the Supreme Court for inquiry
or trial by a particular
magistrate shall again be transferred without leave of
a judge.
Magistrates may report cases for transfer
32.
Subject to the provisions of the Criminal Procedure Code, a magistrate may, of
his own motion, or on the application of any person concerned, report to the
Supreme Court the pendency of
any cause or matter which in the opinion of such
magistrate ought for any reason to be transferred from his court to any other
magistrates'
court or to the Supreme Court. The Supreme Court shall direct in
what mode and where the cause or matter shall be heard and
determined.
(Cap.
21)
Transfer of cases by a judge
33.-(1) (a) The Supreme Court may at any time at any stage thereof before judgment-
(i) transfer to a magistrates' court any civil cause before the Supreme Court, being a civil cause which is not excluded from the jurisdiction of such magistrates' court;
(ii) transfer any civil cause or matter before a magistrates' court, to any other magistrates' court, being a civil cause which is not excluded from the jurisdiction of such other magistrates' court, or to the Supreme Court.
(b) Any civil cause may be transferred either entirely or in respect of any part thereof or procedure required to be taken therein.
(2)
The power of transfer shall be exercised by means of an order under the hand of
a judge and the seal of the court, and may apply
either to any particular cause
or causes, matter or matters in dependence either entirely or in respect of any
part thereof or procedure
required to be taken therein, or generally to all such
causes and matters as may be described in such order, and in the latter case
may
extend to future causes or matters as well as to such as may at the time of
making such order be in
dependence.
(3) The Supreme Court
may at all times cancel, alter, add to or amend any such
order.
(4) The Supreme Court may,
if it appears expedient, in the first instance cause the contents of any such
order to be telegraphed,
and such telegram shall, until receipt of the said
order, have the same validity and effect as if it were the said
order.
Effect of order of transfer
34.-(1)
Every order of transfer shall operate as a stay of proceedings in the court to
which it may be addressed in any cause or matter
to which the order extends or
is applicable, and the process and proceedings in every such cause or matter,
and an attested copy
of all entries in the books of the court relative thereto,
shall be transmitted to the court to which the same shall be transferred
and
henceforth all proceedings in the cause or matter shall be taken in such court
as if the cause or matter had been commenced
therein.
(2) Any order given under
section 31, 32 or 33 shall not be subject to appeal.
Judgment
may be entered in the Supreme
Court
on a
judgment of a magistrates' court
35.-(1)
A judge of the Supreme
Court, if satisfied that a person whether
resident within Fiji or not against whom judgment for an amount exceeding $40
has been obtained
whether by way of a claim or counterclaim or by way of costs
or otherwise, in a magistrates' court, has no goods or chattels within
Fiji
which can be conveniently seized to satisfy the judgment, may if he thinks fit,
and upon such terms as to costs as he may direct,
by order under his hand and
the seal of the Court, remove the judgment into the Supreme
Court.
(2) Upon the removal of a
judgment into the
Supreme
Court in pursuance of this section no
further proceedings shall be had or taken thereon in the magistrates' court and
judgment shall
be entered in the
Supreme
Court for the amount due and payable
under the judgment of the magistrates' court together with the costs aforesaid,
and a judgment
so entered shall have the same force and effect and the same
proceedings may be had thereon as if it were a judgment originally obtained
in
the Supreme
Court.
(3)
This section applies to orders obtained in a magistrates' court as it applies to
judgments so obtained.
PART V-APPEALS
Appeals in Civil Cases
Civil appeals
36.-(1)
Subject to the provisions of this Act, an appeal shall lie to the
Supreme
Court from a resident magistrate in the
following cases:-
(a) from all final judgments and decisions; and
(b) from all interlocutory orders and decisions made in the course of any suit or matter before a magistrates' court.
(2)
An appeal shall lie to the
Supreme
Court from all judgments, decisions or
orders of a resident magistrate sitting in its appellate jurisdiction under
section 40.
Power to reserve question of law for the opinion of the Supreme Court
37.
In addition to and without prejudice to the right of appeal conferred by this
Act, a magistrate may reserve for consideration by
the
Supreme
Court, on a case to be stated by him, any
question of law which may arise on the trial of any suit or matter, and may give
any judgment
or decision subject to the opinion of the
Supreme
Court, and the
Supreme
Court shall have power to determine, with
or without hearing argument, every such question.
Conditions precedent to appeal
38.
Subject to the provisions of section 39, the Supreme Court shall not entertain
any appeal unless the appellant has Court, as prescribed
by rules of court.
Discretionary power of Supreme Court
39.
Notwithstanding anything hereinbefore contained, the Supreme Court may entertain
any appeal from a magistrates' court, on any terms
which it thinks
just.
Appeals from second or third class magistrates
40.-(1)
An appeal from all judgments, decisions or orders of a second or a third class
magistrate shall lie to a resident
magistrate.
(2) The provisions of
sections 37 and 38 shall,
mutatis
mutandis, apply to appeals from second
and third class magistrates.
Appeals in Criminal Cases
Criminal appeals
41.
Appeals in criminal causes shall lie from magistrates' courts in accordance with
the provisions of the Criminal Procedure
Code.
(Cap.
21)
PART VI-SITTINGS OF THE COURT
Place and time for sittings of courts
42.-(1)
Magistrates' courts shall ordinarily be held at such places as the Chief Justice
may direct, but should necessity arise they
may also be held at any other place
within the limits of their jurisdiction. In the absence of any such directions
by the Chief Justice,
magistrates' courts shall continue to be held at such
places as existing courts of a like character have been
held.
(2) Subject to the
directions of the Chief Justice, each magistrates' court shall be held at such
time as the presiding magistrate
shall deem most adapted to facilitate the
despatch of the business of the court.
Nature of business at any sitting
43.
At any sitting of the court both civil and criminal causes and matters may be
heard, determined and dealt with, or either one or
the other.
Adjournment of court
44.-(1)
The magistrate may adjourn the court from day to day or to any convenient
day.
(2) If the magistrate is not
present at the time and place appointed for any sitting of the court, an officer
of the court or any
other person authorised in that behalf by the magistrate,
may, by public notice, written or oral, adjourn the sitting until such
time and
to such place as may have been communicated to him by the magistrate, and, in
the absence of any such communication, to
such time and to such place as may be
convenient; and all persons bound to be present at the sitting so adjourned
shall be equally
bound to be present at the time and place appointed by such
notice.
Adjournment over Sunday or holiday
45.
When any day appointed for the sitting or adjourned sitting of the court falls
on a Sunday or a public holiday, the magistrate shall
in such case, if
practicable, attend and transact the business appointed to be heard at such
sitting as aforesaid on the day (not
being a Sunday or public holiday) next
after the day appointed for such sitting.
PART VII-PRACTICE AND PROCEDURE OF THE COURT
Practice and procedure
46.
The jurisdiction vested in magistrates shall be exercised (so far as regards
practice and procedure) in the manner provided by this
Act and the Criminal
Procedure Code, or by such rules and orders of court as may be made pursuant to
this Act and the Criminal Procedure Code, and in default thereof, in substantial
conformity with the law and practice for the time being observed in England in
the county
courts and courts of summary
jurisdiction.
(Cap.
21)
Completion by magistrate of process begun by his predecessor
47.
Where a magistrate has issued any summons or warrant or otherwise taken or
commenced any proceeding or matter whether civil or criminal,
under any
authority however conferred, and subsequently ceases to act as such magistrate,
it shall be lawful for the person in whose
hands such summons or warrant may be
to execute or serve the same in the same manner as if the magistrate who issued
such summons
or warrant had not ceased to act as such magistrate and any
successor of such magistrate, or any person acting for such magistrate,
may
hear, determine, execute, enforce and carry to completion any proceeding or
matter so commenced as aforesaid save that, except
where otherwise provided by
the Criminal Procedure Code, such magistrate shall commence the trial of any
such cause or matter
ab
initio.
(Cap.
21)
Process of magistrate valid throughout Fiji
48.
Subject to the provisions of the Criminal Procedure Code, all summonses,
warrants, orders, judgments, writs of execution or other process or proceedings,
whether civil or criminal, issued
or taken by or by the authority of any
magistrate respecting any cause or matter within his jurisdiction shall have
full force and
effect, and may be served or executed anywhere within Fiji by the
sheriff or by the member of the Police Force to who the same are
directed or by
any other member of the Police
Force.
(Cap.
21)
Issue of process
49.
All summonses, warrants, orders, convictions and recognizances, and all other
process, whether civil or criminal, shall be issued
or made under the hand of a
magistrate or, where so authorised by this or any other Act, under the hand of a
justice of the peace:
Provided
that where expressly authorised by rules of court, writs of summons and other
civil process may be issued under the hand
of a clerk of the
court.
Duty of police to obey magistrates
50.
All police officers are hereby authorized and required to obey the warrants,
orders and directions of a magistrate in the exercise
of his criminal
jurisdiction, and so far as such obedience may be authorised and required by any
Act in that behalf, of his civil
jurisdiction.
Language of the Court
51.
The language of magistrates' courts shall be English.
PART VIII-EVIDENCE
Summoning witnesses
52.-(1)
In any civil suit or matter, and at any stage thereof, a magistrate may, either
of his own motion or on the application of any
party, summon any person within
Fiji to attend to give evidence, or to produce any document in his possession or
power, and may examine
such person as a witness, and require him to produce any
document in his possession or power, subject to just
exceptions.
(2) In criminal causes
magistrates shall have such powers with respect to compelling the attendance of
and examining witnesses as
are conferred on them by the Criminal Procedure
Code.
(Cap.
21)
Compelling attendance-penalty for non-attendance
53.
If the person summoned as provided in section 52, having reasonable notice of
the time and place at which he is required to attend,
after tender of his
reasonable travelling expenses to and from the magistrates' court, fails to
attend accordingly, and does not
excuse his failure to the satisfaction of the
court he shall, independently of any other liability, be guilty of a contempt of
court,
and may be proceeded against by warrant to compel his
attendance.
Refusal to be sworn or to give evidence
54.
If, in any civil suit or matter, any person whether appearing in obedience to a
summons or brought up under warrant, being required
to give evidence, refuses to
take an oath, or to answer any question lawfully put to him, or to produce any
document in his possession
or power, and does not excuse his refusal to the
satisfaction of the court, he shall, independently of any other liability, be
guilty
of a contempt of court.
Bystander may be required to give evidence
55.
Any person present in court, whether a party or not in a cause or matter, may be
compelled by a magistrates' court to give evidence,
or produce any document, in
his possession or in his power, in the same manner and subject to the same rules
as if he had been summoned
to attend and give evidence, or to produce such
document, and may be punished in like manner for any refusal to obey the order
of
the court.
Prisoners may be brought up by order to give evidence
56.
A magistrate may issue an order under his hand to bring up any person confined
as a prisoner under any sentence or otherwise to
be examined as a witness in any
suit or matter pending in any magistrates' court, and the officer of the Prisons
Service, or person
in whose custody such prisoner shall be, shall obey such
order and shall provide for the safe custody of the prisoner during his
absence
from the prison for the purpose aforesaid.
Allowances to witnesses
57.
Subject to any rules made under section 68 or under section 349 of the Criminal
Procedure Code, the presiding magistrate may, in civil as well as criminal
proceedings, order and allow to all persons required to attend or be
examined as
witnesses, such sum or sums of money as shall seem fit, as well for defraying
the reasonable expenses of such witnesses
as for allowing them a reasonable
compensation for their trouble and loss of time. But it shall not be lawful, in
any criminal proceeding,
for any person to refuse to attend as a witness or to
give evidence, when so required by process of the court, on the ground that
his
expenses have not been first paid or provided
for.
(Cap.
21.)
How defrayed
58.
All sums of money allowed under the provisions of section 57 shall be paid in
civil proceedings by the party on whose behalf the
witness is called, and shall
be recoverable as ordinary costs of the suit, if the magistrate shall so order,
and, in criminal proceedings,
they shall, where not ordered to be paid by the
party convicted or the prosecution, be paid out of the Consolidated
Fund.
Inspection
59.
In any cause or matter, a magistrate may make such order for the inspection by
the court, the parties or witnesses of any real or
personal property, the
inspection of which may be material to the determination of the matter in
dispute, and may give such directions
with regard to such inspection as to the
court may seem fit.
No person entitled to inspection of copy of record of evidence.
60.
No person shall be entitled, as of right, at any time or for any purpose, to
inspection of a copy of the record of evidence given
in any case before any
magistrates' court, or to a copy of the notes of such court, save as may be
expressly provided by any rules
of court.
Recording of evidence before magistrates' courts
61.-(1)
Subject to Part V of the Criminal Procedure Code, in every case heard before a
magistrates' court, and at every stage thereof, the presiding magistrate shall,
save as hereinafter
provided, take down in writing the oral evidence given
before the court or so much thereof as he deems
material:
(Cap.
21)
Provided that, should the
presiding magistrate, in any case, find himself temporarily incapacitated from
taking down such evidence,
he may direct that such evidence shall be taken down
by the clerk of the court or other officer performing his duties in
court.
(2) Such clerk of the court
or other officer shall take down in writing the oral evidence in manner as
aforesaid, under the supervision
and control of the presiding magistrate, who
may, at any time before appending his signature to such writing, amend anything
therein
which he may consider require to be amended; and, before so appending
his signature, such magistrate shall peruse and examine such
writing, and
satisfy himself that it is, in substance, an accurate and faithful record of the
oral evidence given.
(3) (a) Notwithstanding the provisions of subsections (1) and (2), in all suits before a resident magistrate where the value of property or the debt or damage claimed, whether as balance claimed or otherwise, or where such value of property, debt or damage remaining in dispute, is not more than forty dollars, it shall be sufficient for the magistrate to record the names of the witnesses and such notes if any of the evidence and finding as he considers desirable.
(b) The magistrate shall, in such cases, if requested by either party, record a sufficient note of any question of law and of any relevant evidence relating thereto which arises in the course of the trial.
(c) If notice of intention to appeal is given the magistrate shall record briefly the reasons for his decision in the case.
PART IX-MISCELLANEOUS
Fees and Costs
62.
The fees and costs set forth in the rules of court made under this Act or the
Criminal Procedure Code may be demanded and received by the clerk of the court
or other person, appointed to receive such fees and costs for and in respect
of
the several matters therein
mentioned:
(Cap.
21)
Provided that in the absence
of the clerk of the court or in the event of there being no clerk of the court
or other person appointed
to receive such fees and costs, such fees and costs
may be demanded and received by the magistrate.
By whom fees payable
63.
All fees and costs payable under or by virtue of this Act shall in the first
instance be paid by the party applying for the summons,
warrant or other process
or document in respect whereof the same are
payable:
Provided that no fees
shall be payable in any case instituted by a public officer when acting in his
official capacity or in any case
in which the magistrate endorses on the plaint,
information or complaint, as the case may be, that it is a fit one for the
remission
of fees on account of the poverty of the party or for any other
sufficient reason; and in every such case such fees and costs shall,
in the
discretion of the magistrate, be recoverable from the other party, if the
decision be given against him.
All fees and moneys received in courts to be subject to foregoing provisions
64.
The provisions of sections 62 and 63 shall apply to all moneys received by the
clerk of the court or other person under the provisions
of this or any other
Act, whether the same be fees, costs, fines, forfeitures, penalties or money
paid into court for any purpose,
or received or recovered under or by virtue of
any process of execution or distress.
Protection
of Magistrates, Justices of the Peace
and
Officers of
the Court
Protection of judicial officers
65.-(1)
No magistrate, justice of the peace or other person acting judicially shall be
liable to be sued in any civil court for any
act done or ordered to be done by
him in the discharge of his judicial duty whether or not within the limits of
his jurisdiction
provided that he at the time, in good faith, believed himself
to have jurisdiction to do or order the act complained
of.
(2) No officer of any court or
other person bound to execute the lawful warrants or orders of any such
magistrate, justice of the
peace or other person acting judicially shall be
liable to be sued in any civil court for the execution of any warrant or order
which
he would be bound to execute if within the jurisdiction of the person
issuing the same.
Representation of Parties
Representation of Crown and Government departments
66.
In any suit or matter in which the Crown or any public officer in his official
capacity is a party or in any suit or matter affecting
the revenues of Fiji, the
Crown or that officer may be represented by a law officer, crown counsel,
district officer or by any [barrister
and
solicitor]
[legal practitioner] or other person duly
authorized in that behalf by or on behalf of the Attorney-General or by the head
of the
department concerned.
Employment of legal practitioners
67.
The employment of [barristers and solicitors] [legal practitioners] shall, save
as may be otherwise specifically provided, be allowed
in causes and matters,
whether civil or criminal, before a magistrates' court.
Rules of Court
Rules of Court
68.
The Chief Justice may make rules of court for all or any of the following
purposes:-
(a) for regulating the practice and procedure of magistrates' courts in matters not specifically provided for in this or any other Act;
(b) for regulating the forms to be used and all matters connected therewith;
(c) for regulating the receipt of moneys paid into court, or received or recovered under or by virtue of any process of execution or distress;
(d) for regulating the payment out of court of all moneys to the persons entitled thereto;
(e) for prescribing the books and forms of account to be kept or used in magistrates' courts;
(f) for prescribing fees, costs and amounts for service of process which may be demanded and received by clerks of court and others in connection with the practice and procedure of the courts;
(g) for prescribing the acceptance, retention and disposal of fees and costs;
(h) for fixing tables of fees and costs recoverable by barristers and solicitors for their services on taxation and providing for the taxation of the same;
(i) for prescribing the allowances and expenses to be paid to any witness in any civil proceedings;
(j) for the better carrying into effect of the provisions and objects and intentions of this Act.
Saving
Jurisdiction of Fijian courts not to be affected
69.
Subject to the provisions of section 71, nothings in this Act contained shall
does not
affect the jurisdiction of any court
established under the Fijian Affairs
Act.
(Cap.
120)
Application of Act to Rotuma
70.
This Act shall, in its application to Rotuma, be subject to the provisions of
the Rotuma
Act.
(Cap.
122)
Enforcement of judgments of Fijian courts'
71.-(1)
Where any judgment or order has at any time been made by a court established
under the provisions of the Fijian Affairs Act and such judgment or order
provides for the making of periodic payments, any court shall have jurisdiction
to enforce any such judgment
or order registered therein under the provisions of
this
section.
(Cap.
120)
(2) A judgment or order
referred to in sub-section (1) shall be registered in the register of a court if
the person entitled to receive
the payments thereunder, or any other person on
his behalf and with his written authority, presents a certificate of the said
judgment
or order issued under the hand of an officer nominated by the Permanent
Secretary responsible for Fijian Affairs in writing in that
behalf.
(3) Every certificate
issued under the provisions of subsection (2) shall be in a form approved by the
Chief Justice.
(4) Subject to the
provisions of subsections (5) and (6); when a judgment or order has been
registered in a court under the provisions
of this section, it shall be
enforceable in the same manner as an order made under the provisions of the
Maintenance and Affiliation
Act.
(Cap.
52)
(5) Written notice of the
registration of a judgment or order under the provisions of subsection (2)
together with a copy of the certificate
issued under the provisions of that
subsection shall be served, by or on behalf of the person entitled to receive
payment thereunder,
on the person liable to make payments thereunder and such
judgment or order shall not be enforced until-
(a) fourteen days after the date of the said service of the said notice and copy of the certificate or the day after the determination of any application made under the provisions of subsection (6), whichever shall be the later; and
(b) proof of the said service by affidavit or evidence on oath is filed in the court.
(6)
Within fourteen days of the service upon him of the notice of registration and
of the copy of the certificate under the provisions
of subsection (5), the
person liable to make the payments under the judgment or order registered may
apply to the court to have the
certificate and the registration thereof set
aside or to have any errors therein corrected and to have such corrected
certificate
issued by and ordered to be registered by the
magistrate.
(7) In any proceedings
for the enforcement of a judgment or order registered under the provisions of
this section, the certificate
issued and registered under the provisions of
subsection (2), or the corrected certificate issued and registered under the
provisions
of subsection (6), as the case may be, shall be conclusive proof of
the facts stated therein.
Controlled by Ministry of the Attorney-General
---------------------------------
CHAPTER
14
MAGISTRATES'
COURTS
SECTION 3 (3).-MAGISTRATES' COURTS
Direction by the Chief Justice
Notice 23 Sept., 1958
There shall be courts of
resident, second and third class magistrates at each of the following
places:
Central Division: Suva, Nausori, Navua, Vunidawa and Korovou, Tailevu;
Eastern Division: Kadavu, Levuka and Makogai;
Western Division: Lautoka, Ba, Nadi, Ra, Sigatoka and Tavua;
Northern Division: Labasa, Bua, Buca Bay, Savusavu, Taveuni and Rabi.
_____
SECTION 4 (1).-MAGISTRATES' COURTS BUA AND LABASA
Notice 26th Oct., 1955
1.
The local limits of the jurisdiction of the Magistrates' Court, Bua, shall be
restricted to that part of the Province of Bua lying
to the South of latitude
16°
40'.
2.
The local limits of the jurisdiction of the Magistrates' Court, Labasa, shall
include that part of the Province of Bua situate North
of latitude 16°
40'.
_____
SECTION 5-SEAL
Direction by the Governor
Notice
26th April,
1946
[in force
30th April, 1946]
Magistrates' courts shall
use seals of the following nature and pattern:-
A circular stamp of rubber on a base of wood with the Royal Coat of Arms engraved in the centre of the stamp surrounded by circles, in between which are the words "Magistrates' Court" followed by the name of the place at which the court is situated.
_____
SECTION 68-MAGISTRATES' COURTS RULES
Rules 16th April, 1945 [in force 1st May, 1945] 29th Nov., 1946, 6th Nov., 1950, 29th Dec., 1950, 11th Aug., 1953, 19th Feb., 1958, 21st Aug., 1958, 23rd Sept., 1958, 24th Sept., 1958, 1st Oct., 1958, 26th Feb.. 1959, 6th Oct., 1959, 14th Nov., 1959, [in force 1st Jan., 1960], 5th May, 1961, [in force 1st Aug., 1961], 20th Oct., 1961, 5th Nov., 1962 [in force 1st Jan., 1963], 18th April, 1963, 7th Aug., 1965, [in force 1st Oct., 1965], 31st March, 1966, 18th March, 1967, 26th November, 1968, 24th August, 1972, 22nd January, 1974, 29th January, 1975, 27th April, 1984, [in force 7th May, 1984]
SECTION 68-MAGISTRATES' COURTS RULES
Made by the Chief Justice
Short title
1.
These Rules may be cited as the Magistrates' Courts Rules.
Definitions
2.
In these Rules, unless the context otherwise requires-
"the Act" means the Magistrates' Courts Act;
"appellate court" means, in the case of appeals from a resident magistrate, the Supreme Court, and, in the case of appeals from a second or third class magistrate, a resident magistrate;
"Chief Registrar" means the Chief Registrar of the Supreme Court and includes a Deputy Registrar;
"court" means a magistrates' court;
"magisterial area" means the area within which a magistrates' court normally exercises jurisdiction in accordance with directions issued by the Chief Justice under sub-section (1) of section 4 of the Act;
"name" includes in the case of an Indian his father's name.
3.
These Rules are divided into the following Orders:
Order I. Forms, Fees, Allowances and Costs
Order II. Computation of Time.
Order III. Miscellaneous Provisions.
Order IV. Employment of Barristers and Solicitors.
Order V. Evidence.
Order VI. Form and Commencement of Suit.
Order VII. Service of Process.
Order VIII. Parties.
Order IX. Particulars of Claim.
Order X. Guardian for Purposes of Suit.
Order XI. Alteration of Parties.
Order XII. Discontinuance of Suits.
Order XIII. Place of Trial and of Instituting Suits.
Order XIV. Amendment.
Order XV. Admissions.
Order XVI. Pleadings.
Order XVII. Settlement of Issues.
Order XVIII. Inquiries and Accounts.
Order XIX. Appearance of Parties.
Order XX. Arrest of Absconding Defendant.
Order XXI. Interim Attachment of Property.
Order XXII. Preservation of Disputed Property.
Order XXIII. Equitable Relief, Counterclaim, Set-off.
Order XXIV. Tender.
Order XXV. Interrogatories, Discovery and Production of Documents.
Order XXVI. Motions.
Order XXVII. Listing of Causes for Hearing.
Order XXVIII. Postponement of Hearing.
Order XXIX. Sittings of Court.
Order XXX. Non-attendance of Parties at Hearing.
Order XXXI. Proceedings at the Hearing.
Order XXXII. Judgment.
Order XXXIII. Costs.
Order XXXIV. Enforcement of Orders.
Order XXXV. Interpleader other than under Executions.
Order XXXVI. Execution.
Order XXXVII. Appeals.
Order XXXVIII. Recovery of Costs by Legal Practitioners.
(Amended
by Rules 18th April, 1963.)
ORDER I.-FORMS, FEES, ALLOWANCES AND COSTS
Sealing writs
1.
The sealing of any writ or process shall not be necessary in addition to the
signature of a magistrate or clerk of the Court, as
the case may be, unless
sealing is particularly prescribed by some law or rule of court.
Forms. Appendix A
2.
The forms in Appendix A or forms to the like effect, may be used in all matters,
causes and proceedings to which they are applicable,
with such variations as
circumstances may require.
Provision for additional forms
3.
In proceedings for which forms are not provided in Appendix A or prescribed by
any Act or rules or orders of court, the Chief Registrar
may, subject to the
approval of the Supreme Court, from time to time, frame the forms required,
using as guides those which may have
been provided.
Fees. Appendix B
4.
The fees specified in Appendix B shall be paid by the party at whose instance
they are incurred, and may be afterwards recovered
as costs of the cause if the
court shall so order. The court may, on account of the poverty of any party,
although such party may
not have been formally admitted to sue or defend as a
pauper, or for other sufficient reasons, dispense, if it sees fit, with the
payment of any fees or any part
thereof.
5.
Where the costs of a barrister and solicitor are required to be taxed there
shall be allowed such costs, not exceeding the amounts
prescribed in the scale
of costs in Appendix C appropriate to the work done, as the taxing master shall
in his discretion think
fit:-
Provided that unless the
court otherwise orders,-
(a) in defended causes or matters in which the subject matter or amount recovered does not exceed $100 in value such costs shall be allowed in accordance with the scale set forth in Part I of Appendix D; and
(b) in undefended causes or matters such costs shall be allowed in accordance with the scale set forth in Part 2 of Appendix D.
(Amended
by 26th November, 1968.)
Fees-Matrimonial Causes Act
6.
The fees specified under the Matrimonial Causes Act shall be paid by the party
at whose instance they are incurred, and may be afterwards recovered as costs of
cause if the Court shall
so
order.
(Inserted
by Rules 11th August, 1953.)
Costs-Matrimonial Causes Act
7.
In the case of petitions presented and heard under the Matrimonial Causes Act,
costs shall be allowed to barristers and solicitors in accordance with Part 3 of
Appendix
D.
(Inserted by
Rules 11th August, 1953.)
ORDER II.-COMPUTATION OF TIME
How to be made
1.
Where, by any section of the Act, or any order or rule of court, or any special
order, or the course of the court, any limited time
from or after any date or
event is appointed or allowed for the doing of any act or the taking of any
proceeding, and such time is
not limited by hours, the following rules shall
apply:
Commencement of a time limited
(a) The limited time shall not include the day of the date or of the happening of the event, but shall commence at the beginning of the day next following that day.
When act to be done
(b) The act or proceeding must be done or taken at latest on the last day of the limited time.
Sundays and holidays
(c) When the limited time is less than six days, the following days shall not be reckoned as part of the time, namely, Saturdays, Sundays and any public holidays.
Time expiring on Sunday or holiday
(d) When the time expires on a Saturday, Sunday or any public holiday, the act or proceeding shall be considered as done or taken in due time, if it is done or taken on the next day afterwards, not being one of those days.
(Amended
by Rules 18th March, 1967.)
Enlargement or abridgement of time
2.
Parties may, by consent, enlarge or abridge any of the times fixed for taking
any step, or filing any document, or giving any notice,
in any suit. Where such
consent cannot be obtained, either party may apply to the court for an order to
effect the object sought
to have been obtained with the consent of the other
party, and such order may be made although the application for the order is not
made until after the expiration of the time allowed or appointed.
ORDER III.-MISCELLANEOUS PROVISIONS
Public or private sittings of court
1.
The sittings of the court for the hearing of causes and matters shall ordinarily
be public; but the court may, for a reason to be
specified by it on the minutes,
hear any particular cause or matter in the presence only of the parties, with
their barristers and
solicitors, if any, and the officers of the
court.
What orders to be made
2.
Subject to any particular rules, the court may, in all causes and matters, make
any interlocutory order which it considers necessary
for doing justice, whether
such order has been expressly asked by the person entitled to the benefit of the
order or not.
Consolidation of cases
3.
Causes or matters pending in the court may, by order of the court, be
consolidated, and the court shall give any directions that
may be necessary as
to the conduct of the consolidated actions.
Interpreter
4.
If, in any cause or matter, any accused person, party, witness or other person
is unable to speak or understand the English language,
the court may direct a
fit and proper person to attend and interpret the proceedings so far as may be
necessary. Before so interpreting,
such person shall swear on oath in the
following form:-
"I swear that I will well and truly interpret and explanation make of all such matters and things as shall be required of me .to the best of my skill and understanding. So help me God."
Receipts
5.-(1)
When any fee is paid or when, in any criminal cause, any fine or any costs are
paid, the clerk of the court shall issue a receipt
therefor in the name of the
person by whom such fee is payable or the person ordered to pay such fine or
costs as the case may be.
(2) When
any fee is paid in respect of a document the clerk of the court shall endorse a
note of the amount of the fee paid and the
number of the receipt issued therefor
upon the original and upon the filing copy of such document.
Court records
6.
There shall be kept in magistrates' courts books to be called "Cause Books", in
such form as the Chief Registrar may direct, in
which all actions instituted in
the court shall be entered and numbered consecutively in each year, according to
the order in which
the same shall be commenced; and the particulars of each
action, and a note of the steps and proceedings therein, shall be entered
in the
said books in such manner as the Chief Registrar may from time to time
direct.
Application of Rules
7.
Except where it is otherwise specifically provided these Rules shall apply to
civil procedure only.
Application of Supreme Court Rules
8.
In the event of there being no provision in these Rules to meet the
circumstances arising in any particular cause, matter, case
or event, the court
and/or the clerk of the court and/or the parties shall be guided by any relevant
provision contained in the Supreme
Court Rules.
Power to enlarge or abridge time
9.
A court or a judge shall have power to enlarge or abridge the time appointed by
these Rules, or fixed by any order enlarging time,
for doing any act or taking
any proceedings, upon such terms (if any) as the justice of the case may
require, and any such enlargement
may be ordered although the application for
the same is not made until after the expiration of the time appointed or
allowed:
Provided that when the
time for delivering any pleading or document or filing any affidavit, answer or
document, or doing any act
is or has been fixed or limited by any of these Rules
or by any direction or order of the court or a judge the costs of any
application
to extend such time and of any order made thereon shall be borne by
the party making such application unless the court or a judge
shall otherwise
order.
Commissioners' fees. Appendix E
10.
The fees set out in Appendix E shall be taken by commissioners for oaths in the
exercise of their duties under the Act.
ORDER
IV.-EMPLOYMENT OF
BARRISTERS
AND
SOLICITORS
Change of practitioners during the hearing of a cause or matter
1.
A party suing or defending by a barrister and solicitor in any cause or matter
shall be at liberty to change his barrister and solicitor
in such cause or
matter, without an order for that purpose, upon notice of such change being
filed in the office of the clerk of
the court in which such cause or matter may
be proceeding. But, until such notice is filed and a copy served, the former
barrister
and solicitor shall be considered the barrister and solicitor of the
party until final judgment, unless allowed by the court, for
any special reason,
to cease from acting therein; but such barrister and solicitor shall not be
bound, except under express agreement
or unless re-engaged, to take any
proceedings in relation to any appeal from such judgment.
Liability to pay costs
2.
When it shall appear to the court that any civil cause or matter has been
commenced or carried on maliciously or without probable
grounds, and the party
by whom or on whose behalf such cause or matter has been so commenced or carried
on has been represented therein
by a barrister and solicitor who had knowledge
of such malice or lack of probable grounds, or if it shall appear that any
barrister
and solicitor has, by any sort of deceit, induced his client to enter
into or continue any litigation, every such barrister and solicitor
shall, on
failure of his client to pay any costs which he may be ordered to pay, be
liable, if the court so orders, to pay the amount
thereof to the party to whom
costs are given. Such failure shall be deemed to have taken place if the client
shall have refused or
neglected to make payment after a demand has been made on
him, although no process of execution may have been issued against
him:
Provided that no order for
the payment of costs of a barrister and solicitor under this rule shall have
effect until it is confirmed
by a
judge.
This rule shall not be
construed to restrict the liability of any barrister and solicitor in respect of
the abovementioned or any
other misconduct for which he would otherwise be
punishable.
ORDER V.-EVIDENCE
1.-Exclusion of Witnesses
Ordering witnesses out of court
1.
On the application of either party, or on its own motion, the court may order
witnesses on both sides to be kept out of court; but
this rule does not extend
to the parties themselves or to their professional representatives, although
intended to be called as witnesses.
Preventing communication with witnesses
2.
The court may, during any trial, take such means as it considers necessary and
proper for preventing communication with witnesses
who are within the court
house or its precincts awaiting examination.
II.-Documentary Evidence
Production of documents without giving evidence
3.
Any person, whether a party or not, in a cause or matter may be summoned to
produce a document, without being summoned to give evidence;
and, if he causes
such document to be produced in court, the court may dispense with his personal
attendance.
III.- Affidavits
Affidavits to be filed
4.
Before an affidavit is used in the court for any purpose, the original shall be
filed in the court, and the original or an office
copy shall alone be recognized
for any purpose in the court.
Not to be sworn be/ore certain persons
5.
An affidavit shall not be admitted which is proved to have been sworn before a
person on whose behalf the same is offered, or before
his barrister and
solicitor, or before a partner or clerk of his barrister and
solicitor.
Defective in form
6.
The court may permit an affidavit to be used, notwithstanding it is defective in
form according to these Rules, if the court is
satisfied that it has been sworn
before a person duly authorised.
Amendment and re-swearing
7.
A defective or erroneous affidavit may be amended and resworn, by leave of the
court, on such terms as to time, costs or otherwise
as seems
reasonable.
No extraneous matter
8.
An affidavit shall not contain extraneous matter by way of objection or prayer
or legal argument or conclusion.
Contents of affidavits
9.
Every affidavit used in the court shall contain only a statement of facts and
circumstances to which the witness deposes, either
of his own personal knowledge
or from information which he believes to be true.
Grounds of belief to be stated
10.
When a witness deposes to his belief in any matter of fact, and his belief is
derived from any source other than his own personal
knowledge, he shall set
forth explicitly the facts and circumstances forming the ground of his
belief.
Informant to be named
11.
When the belief of a deponent is derived from information received from another
person, the name of his informant shall be stated,
and reasonable particulars
shall be given respecting the informant, and the time, place and circumstances
of the information.
Costs of affidavits
12.
The costs of every affidavit contravening any of the provisions of rules 8, 9,
10 or II shall be paid by the party filing the same.
Rules in taking affidavits
13.
The following rules shall be observed by commissioners and others before whom
affidavits are taken:-
To be properly entitled
(a) Every affidavit taken in a cause or matter shall be headed in the court and in the cause or matter.
Description of witness
(b) It shall state the full name, trade or profession, and residence of the deponent.
In first person
(c) It shall be in the first person and divided into convenient paragraphs, numbered consecutively.
Alteration to be attested
(d) Any erasure, interlineation or alteration made before the affidavit is sworn shall be attested by the commissioner, who shall affix his signature or initials in the margin immediately opposite to the interlineation, alteration or erasure.
If improperly written
(e) Where an affidavit proposed to be sworn is illegible or difficult to read, or is, in the judgment of the commissioner, so written as to facilitate fraudulent alteration, he may refuse to swear the deponent, and require the affidavit to be re-written in an unobjectionable manner.
Deponent to sign
(f) The affidavit shall be signed by the deponent (or, if he cannot write, marked by him with his thumbprint or mark in the presence of the commissioner).
Form of jurat
(g) The jurat shall be written, without interlineation, alteration or erasure (unless the same be initialled by the commissioner), immediately at the foot of the affidavit, and towards the left side of the paper, and shall be signed by the commissioner.
Date and place
It shall state the date of the swearing and the place where it is sworn.
In presence of commissioner
It shall state that the affidavit was sworn before the commissioner or other officer taking the same.
Illiterate or blind deponent
Where the deponent is illiterate or blind, it shall state the fact, and that the affidavit was read over (or translated into his own language in the case of a deponent not having sufficient knowledge of English), and that the deponent appeared to understand it.
Mark or thumbprint
Where the deponent makes his thumbprint or mark instead of signing, the jurat shall state that fact, and that the thumbprint or mark was made in the presence of the commissioner.
Joint affidavit
Where two or more persons join in making an affidavit, their several names shall be written in the jurat, and it shall appear by the jurat that each of them has been sworn to the truth of the several matters stated by him in the affidavit.
If affidavit altered., to be re-sworn
(h) The commissioner shall not allow an affidavit, when sworn, to be altered in any manner without being re-sworn.
New jurat
(i) If the jurat has been added and signed, the commissioner shall add a new jurat on the affidavit being re-sworn; and, in the new jurat, he shall mention the alteration.
New affidavit
(j) The commissioner may refuse to allow the affidavit to be re-sworn, and may require a fresh affidavit.
Declarations without oath
(k) The commissioner may take, without oath, the declaration of any person affirming that the taking of any oath whatsoever is, according to his religious belief, unlawful, or who, by reason of immature age or want of religious belief, ought not, in the opinion of the commissioner, to be admitted to make a sworn affidavit. The commissioner shall record in the attestation the reason of such declaration being taken without oath.
IV.-Objections to Evidence
When to be made
14.
In every case, civil or criminal, and at every stage thereof, any objection to
the reception of evidence by a party affected thereby
shall be made at the time
the evidence is offered:
Provided
that an appellate court may, in its discretion, entertain any objection to
evidence received in the court below, though not
objected to at the time it was
offered.
Where question objected to
15.
Where a question proposed to be put to a witness is objected to, the court,
unless the objection appears frivolous, shall, if required
by either party, take
a note of the question and objection, and mention on the notes whether the
question was allowed to be put or
not and, if put, the answer to
it.
Marking of rejected documents
16.
Where a document is produced and tendered in evidence and rejected by the court,
the document shall be marked as having
been so tendered and rejected.
V.-Taking of Evidence
Evidence of witnesses, how taken
17.
In the absence of any agreement between the parties, and subject to these rules,
the witnesses at the trial of any suit shall be
examined viva voce and in open
court; but the court may, at any time, for sufficient reason, order that any
particular fact or facts
may be proved by affidavit, or that the affidavit of
any witness may be read at the hearing or trial, on such conditions as the court
may think reasonable; or that any witness whose attendance in court ought, for
sufficient cause, to be dispensed with be examined
by interrogatories or
otherwise before an officer of the court or other
person:
Provided that, where it
appears to the court that the other party bona fide desires the production of a
witness for cross-examination,
and that such witness can be produced, an order
shall not be made authorising the evidence of such witness to be given by
affidavit.
Admission o/ affidavits
18.
In any suit, the court may, in its discretion, if the interests of justice
appear absolutely so to require (for reasons to be recorded
in the minutes of
the proceedings), admit an affidavit in evidence, although it is shown that the
party against whom the affidavit
is offered in evidence has had no opportunity
of cross-examining the person making the affidavit.
Evidence on commission
19.
The court may, in any suit where it shall appear necessary for the purpose of
justice, make an order for the examination, before
any officer of the court or
other person, and at any place, of any witness or person, and may order any
deposition so taken to be
filed in the court, and may empower any party to any
such suit to give such deposition in evidence therein on such terms, if any,
as
the court may direct.
How to be taken
20.
Evidence on commission, when not directed to be taken upon interrogatories
previously settled, shall be taken, as nearly as may
be, as evidence at the
hearing of a suit, and then the notes of the evidence shall be read over to the
witness and be signed by him.
If the witness refuses, the officer of the court
or other person shall add a note of his refusal, and the statement may be used
as
if he had signed it.
Evidence before suit instituted
21.
Evidence may be taken in like manner, on the application of any person, before
suit instituted, where it is shown to the satisfaction
of the court on oath that
the person applying has good reason to apprehend that a suit will be instituted
against him in the court,
and that some person within the jurisdiction at the
time of the application can give material evidence respecting the subject of
the
apprehended suit, but that he is about to leave the jurisdiction, or that, from
some other cause, the person applying will lose
the benefit of his evidence if
it be not at once taken; and the evidence so taken may be used at the hearing,
subject to just
exceptions:
Provided always that
the court may impose any terms or conditions with reference to the examination
of such witness, and the admission
of his evidence, as to the court may seem
reasonable.
Facilities for proving deed or instrument
22.
Any party desiring to give in evidence any deed or other instrument which shows
upon the face of it that it has been duly executed
may deliver to the opposite
party, not less than four clear days before the return day, a notice in writing
specifying the date and
nature of and the parties to such deed or instrument,
and requiring the opposite party to admit that the same was executed as it
purports to have been, saving all just exceptions as to its admissibility,
validity and contents; and if, at or before the hearing
of the suit, the party
so notified shall neglect or refuse to give such admission, the court may
adjourn the hearing in order to
enable the party tendering such deed or
instrument to obtain proof of the due execution thereof, and, upon production of
such proof,
the court may order the costs of such proof to be paid by the party
so neglecting or refusing, whether he be the successful party
or
not.
ORDER VI.-FORM AND COMMENCEMENT OF SUIT
Commencement by writ of summons
1.
Every suit shall be commenced by a writ of summons to be issued by the
magistrate or the clerk of the court. The summons may issue
without application
in writing.
Contents of writ of summons. Appendix A. Form 2.
2.
The writ shall contain the name, place of abode and occupation of the plaintiff
and of the defendant, so far as they can be ascertained,
and the date (called
"return day") and place of hearing; and there shall be endorsed on the writ
particulars of the claim signed
by the plaintiff or his barrister and solicitor
which shall state briefly and clearly the subject matter of the claim and the
relief
sought.
Date
3.
Every writ of summons shall bear the date of the day on which it is
issued.
Void if altered without leave
4.
Any alteration of the writ, without leave of the court, shall render the writ
void.
Time for service of writ
5.
Every writ of summons shall be served eight clear days before the date of
hearing when the defendant resides within the magisterial
area of the court from
which the writ is issued and in all other cases the period shall be fixed by the
court when the writ is issued
and shall be endorsed on the
writ:
Provided that the court may
from time to time extend the date of hearing of a writ of summons which has not
been served in time.
Filing of notice of intention to defend
6.
If the party served with the writ of summons deliver to the clerk of the court,
and serve on the plaintiff, not less than three
days before the day fixed for
hearing, a notice in writing that he intends to defend the suit, then and in
such case the suit shall
be entered for hearing on the aforesaid date for
hearing.
(Amended
by Rules 21st August 1972.)
Special leave to defend where foregoing rule not complied with
7.
When any defendant neglects to deliver and serve the notice of defence, as
prescribed by rule 6, within the time limited by the
said rule, the court may,
at any time before judgment is entered, on the defendant disclosing a defence on
the merits, let in the
defendant to defend upon such terms as the court may
think
just.
(Substituted
by Rules 31st March, 1966 and amended by Rules 21st August 1972)
Disposal of undefended suit
8.
In the case of liquidated demands only, where any defendant neglects to deliver
and serve the notice of defence prescribed by rule
6 within the time limited by
the said rule, and is not let in to defend in accordance with the provisions of
rule 7, then and in
such case the plaintiff may enter final judgment against
that
defendant.
(Substituted
by Rules 21st August 1972.)
Saving o/ court's powers
9.
Nothing herein shall preclude the court from hearing or requiring oral evidence,
should it so think fit, at any stage of the proceedings.
Division of causes of action
10.
It shall not be lawful for any plaintiff to divide any cause of action for the
purpose of bringing two or more actions, but any
plaintiff having a cause of
action in excess of the amount for which an action might be brought in any court
may abandon the excess,
and, on proving his case, recover such amount; and the
judgment of the court in respect of that amount shall be in full discharge
of
all demands in respect of such cause of action, and entry of the judgment shall
be made accordingly.
Service through court or by solicitor
11.
A writ of summons shall be served through the court unless a magistrate directs
that service shall be arranged by the barrister
and solicitor for the
plaintiff.
(Substituted
by Rules 23rd September, 1958.)
ORDER VII.-SERVICE OF PROCESS
Service may be effected by any person
1.-(1)
Without prejudice to Order VI, rule II, personal service of a petition, notice,
summons, order or other document of which service
is required may be made by any
person.
(Amended
by Rules 23rd September, 1958.)
Document to be explained
(2) Any person serving any
document shall, on the request of the party served, explain to such party the
nature of such document.
When proof shall be oral or by affidavit
2.
Proof of service shall be oral or by affidavit, and the court, if not satisfied
that service has been properly effected, may direct
that it be effected by a
police officer or by a bailiff or other officer of the court, before proceeding
further with the hearing
of the cause or matter.
Service to be personal
3.
Unless, in any case, the court thinks it just and expedient otherwise to direct,
service shall be personal; that is, the document
to be served shall be delivered
to the person to be served himself.
Original need not be shown
4.
Service shall be completely effected by the delivery of a duplicate or attested
copy of any document, without the exhibition of
any original.
Service other than personal
5.
Where it appears to the court (either after or without an attempt at personal
service) that, for any reason, personal service cannot
be conveniently effected,
the court may order that service be effected-
Delivery to inmate
(a) by delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served; or
To agent
(b) by delivery thereof to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document will, through that agent or other person, come to the knowledge of the person to be served; or
By advertisement
(c) by advertisement in the Gazette, or in some newspaper circulating within the jurisdiction of the court; or
By notice
(d) by notice put up at the court house, or some other place of public resort, of the district wherein the proceeding in respect of which the service is made is instituted, or at the usual or last known place of abode or of business of the person to be served; or
(e) by sending the document by prepaid registered post addressed to the person to be served at his last known place of abode or business; or
(f) by any two or more of the foregoing methods.
(Paragraphs
(e) and (f) inserted by Rules 31st March, 1966.)
Varying order of service
6.
An order for service may be varied, from time to time, with respect to the mode
of service directed by the order.
Dies non
7.
Service in a civil case shall not be made on Sunday, Good Friday or Christmas
Day.
On partners
8.
(1) Where partners are sued in the name of their firm, the writ or other
document shall be served either upon any one or more of
the partners, or at the
principal place of business of the partnership upon any person appearing to be
over the age of 16 years and
to have, at the time of service, the control or
management of the partnership business there; and such service shall be deemed
good
service upon the firm.
(2)
Where a writ is issued against a firm, every person upon whom it is served shall
be informed by notice in writing given at the
time of such service whether he is
served as a partner or as a person having the control or management of the
partnership business,
or in both characters. In default of such notice, the
person served shall be deemed to be served as a partner.
On company
(3) Service on a company
shall be effected in accordance with the provisions of the Companies
Act.
(Cap.
247)
On prisoner
9.
Where the person on whom service is to be effected is a prisoner in a prison, it
shall be sufficient service to deliver the writ
or document at the prison to the
officer in charge of such prison, who shall cause the same to be served on such
prisoner.
On person in asylum or prison
10.
Where the person on whom service is to be effected is employed and dwells in any
mental hospital or other public asylum or in any
prison, it shall be sufficient
service to deliver the writ or document to the gatekeeper or lodgekeeper of such
hospital, asylum
or prison, who shall cause the same to be served on such
person.
Where defendant resides out of but carries on business within Fiji
11.
Where the suit is against a defendant residing out of but carrying on business
within Fiji in his own name, or under the name of
a firm, through an authorised
agent, and such suit is limited to a cause of action which arose within the
jurisdiction of the court,
the writ or document may be served by giving it to
such agent, and such service shall be equivalent to personal service on the
defendant.
When court may direct service out of Fiji
12.
Service out of Fiji may be allowed by the court-
(a) whenever the whole or any part of the subject-matter of the suit is land or stock or other property situate within its jurisdiction, or any act, deed or thing affecting such land, stock or property; or
(b) whenever the contract which is sought to be enforced or rescinded, dissolved, annulled or otherwise affected in any such suit, or for the breach whereof damages or other relief are or is demanded in such suit, was made or entered into within its jurisdiction; or
(c) whenever there has been a breach within its jurisdiction of any contract, wherever made; or
(d) whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within its jurisdiction.
Application for leave to serve out of Fiji
13.
Every application for an order for leave to serve a writ or document on a
defendant out of Fiji shall be supported by evidence by
affidavit or otherwise,
showing in what place or country such defendant is or probably may be found, and
the grounds upon which the
application is made.
Order to prescribe mode of service
14.
Any order giving leave for service out of Fiji shall prescribe the mode of
service and the date of hearing, and the court may receive
an affidavit of such
service having been effected as prima fade evidence thereof.
Service in another Division
15.
Where a writ or other document is required to be served in the Division of
another court, the clerk of the court from whose office
the writ or other
document is issued may, if the magistrate so directs, transmit the same and a
copy thereof, together with any other
documents annexed thereto and copies
thereof, to the clerk of such other court for service.
Where service refused or threatened
16.
Where the officer or person charged with the service of any writ or document on
any person is prevented by the refusal of such person
to receive such writ or
document or by the violence or threats of such person, or any other person in
concert with him, from personally
serving the writ or document, it shall be
sufficient to inform the person to be served of the nature of the writ or
document, and
to leave the writ or document as near such person as it is
practicable.
Time of service
17.-(1)
Every writ of summons and every judgment summons shall be served within six
months from the date of issue thereof and if not
served within such period shall
thereafter be of no effect unless renewed as hereinafter
provided.
(2) The Court may if it
thinks fit, on application made by the plaintiff not less than seven days before
the expiry of the said period
of six months on ex parte notice of motion,
supported by an affidavit showing the reason why service has not been effected,
renew
any such writ of summons or judgment summons for one further period of six
months.
Any writ of summons or
judgment summons so renewed and not served within such extended time shall
thereafter be of no
effect.
(Rule
inserted by Rules, 26th February, 1959.)
Witness Summons
18.-(1)
Where any party to a suit or matter desires a person to be summoned as a witness
to give evidence at the hearing in Court or
to produce at the hearing in Court a
document in his possession or power, the Court shall, on application by the
party, issue a witness
summons:
Provided that unless it
appears at the time of any such application that there is a reasonable
probability that service of the summons
can be effected not less than three
clear days before the date of hearing, the summons shall not be issued except on
the express
direction of a
magistrate.
(2) The summons shall
be served on the witness personally a reasonable time before the day fixed for
hearing.
(3) There shall be paid
or tendered to the witness at the time of the service of the summons the sum
estimated to be payable to that
witness for allowances and travelling
expenses.
(Rule
inserted by Rules 31st March, 1966.)
ORDER VIII.-PARTIES
Suit on behalf of others
1.
If any plaintiff sues, or any defendant is sued, in any representative capacity,
it shall be expressed on the writ. The court may
order any of the persons
represented to be made parties either in lieu of, or in addition to, the
previously existing parties.
Joint ground of suit
2.
Where a person has jointly with other persons an alleged ground for instituting
a suit, all those other persons ought ordinarily
to be made parties to the
suit.
Where joint interest, parties may be authorised to sue or defend for others
3.
Where more persons than one have the same interest in one suit, one or more of
such persons may be authorised to sue or to defend
in such suit for the benefit
of or on behalf of all parties so interested.
Joint and several demand
4.
Where a person has a joint and several demand against two or more persons,
either as principals or sureties, it is not necessary
for him to bring before
the court as parties to a suit concerning that demand all the persons liable
thereto, and he may proceed
against any one or more of the persons severally or
jointly and severally liable. Where a defendant claims contribution, indemnity
or other remedy or relief over against any other person, he may apply to have
such person made a party to the suit.
Non-joinder
5.-(1)
If it shall appear to the court, at or before the hearing of a suit, that all
the persons who may be entitled to, or who claim
some share or interest in, the
subject-matter of the suit, or who may be likely to be affected by the result,
have not been made
parties, the court may adjourn the hearing of the suit to a
future day, to be fixed by the court, and direct that such persons shall
be made
either plaintiffs or defendants in the suit, as the case may be. In such case,
the court shall issue a notice to such persons,
which shall be served in the
manner provided by the rules for the service of a writ of summons or in such
manner as the court thinks
fit to direct; and, on proof of the due service of
such notice, the person so served, whether he shall have appeared or not, shall
be bound by all proceedings in the
cause:
Provided that a person so
served, and failing to appear within the time limited by the notice for his
appearance, may, at any time
before judgment in the suit, apply to the court for
leave to appear, and such leave may be given upon such terms (if any) as the
court shall think fit.
Misjoinder
(2) The court may, at any
stage of the proceedings, and on such terms as appear to the court to be just,
order that the name or names
of any party or parties, whether as plaintiffs or
as defendants, improperly joined, be struck
out.
(3) No suit shall be defeated
by reason of non-joinder or misjoinder of parties.
Claims by the Government
6.
Claims by the Government against any person may be brought by the
Attorney-General or by any officer authorised by law to prosecute
such claims on
behalf of the Government, as the case may be.
Proceedings by or against partners
7.
Any persons claiming or being liable as co-partners may sue or be sued in the
name of their respective firms (if any); and any party
to an action may, in such
case, apply to the court for a statement of the names of the persons who are
co-partners in any such firm,
to be furnished in such manner and verified on
oath or otherwise as the court may direct.
Distinct causes of action in one writ
8.
In case a writ states two or more distinct causes of action by and against the
same parties, and in the same rights, the court may,
either before or at the
hearing, if it appears inexpedient to try the different causes of action
together, order that the trials
be had separately, and make such order as to
adjournment and costs as justice requires.
Misjoinder of actions
9.
In case a writ states two or more distinct causes of action, but not by and
against the same parties, or by and against the same
parties but not in the same
rights, the writ may, on the application of any defendant, be amended or
dismissed, as justice may require.
ORDER IX.-PARTICULARS OF CLAIM
Particulars of claim
1.
It shall be sufficient for the plaintiff to state his claim in the writ of
summons briefly in a general form, but he may deliver
to the clerk of the court,
at the time of making application for the writ of summons, particulars of his
demand in any form which
shall give the defendant reasonably sufficient
information as to the details of his
claim.
Whenever the plaintiff
shall deliver such particulars, he shall also deliver to the clerk of the court
as many duplicates thereof
as there are defendants and such particulars shall be
served with the writ.
Further particulars
2.
The court may, on the application of the defendant, or on its own motion, order
further or better particulars.
Judgment not to exceed claim
3.
The plaintiff shall not, at the hearing, obtain a judgment for any sum exceeding
that stated in the particulars, except for subsequent
interest and the cost of
suit, notwithstanding that the sum claimed in the writ for debt or damages
exceeds the sum stated in the
particulars.
Amendment thereof
4.
Particulars of claim shall not be amended except by leave of the court, but the
court may, on any application for leave to amend,
grant the same, on its
appearing that the defendant will not be prejudiced by the amendment. Otherwise,
the court may refuse leave
or grant the same, on such terms as to notice,
adjournment or costs as justice requires.
Amendment thereof at trial
5.
Any variance between the items contained in the particulars and the items proved
at the hearing may be amended at the hearing, either
at once or on such terms as
to notice, adjournment or costs as justice requires.
ORDER X.-GUARDIAN FOR PURPOSES OF SUIT
Court may appoint guardians to infant defendants and persons of weak mind
1.
Where, on default of a defendant in answering or otherwise defending the suit,
after service of the writ, it appears to the court
that he is an infant, or a
person of weak or unsound mind, so that he is unable by himself to defend the
suit, the court may, if
it thinks fit, on the application of the plaintiff, or
of its own motion, appoint, by order, some fit person to be guardian of the
defendant for the purposes of the suit by whom he may defend it.
Notice and service thereof
2.
Before such an order is made, the court shall cause such notice as it thinks
reasonable to be served on or left at the dwellinghouse
of the person with whom
or under whose care the defendant is, and also, unless the court sees good
reason to the contrary, in the
case of an infant not residing with or under the
care of his guardian, to be served on or left at the dwellinghouse of his
guardian.
Suits by infants and persons of weak minds
3.
Infants or persons of weak or unsound mind may sue as plaintiffs by their
committees or next friends on such terms as to the liability
for costs and
otherwise of such committees or next friends as the court shall consider
just.
Guardian not liable for costs
4.
A guardian ad litem of an infant or a person of weak or unsound mind shall not
be personally liable for any costs not occasioned
by his personal negligence or
misconduct.
Power to set aside judgment where no guardian
5.
Where a judgment has been obtained or an order made against a defendant who was
at the time an infant or a person of weak or unsound
mind without a guardian
having been appointed, the court or a magistrate may set aside the judgment or
order and order a new trial
or make such order as the court or magistrate think
just.
(Rules 4 and
5 inserted by Rules 31st March, 1966.)
ORDER XI.-ALTERATION OF PARTIES
Where change of interest, court may make order enabling suit to proceed
1.
Where, after the institution of a suit, any change or transmission of interest
or liability occurs in relation to any party to the
suit, or any party to the
suit dies or becomes incapable of carrying on the suit, or the suit in any other
way becomes defective
or incapable of being carried on, any person interested
may obtain from the court any order requisite for curing the defect, or enabling
or compelling proper parties to carry on the
proceedings:
Provided that any
person served with such an order may, within such time as the court in the order
directs, apply to the court to
discharge or vary the order.
Death of party not to abate suit, if cause of action survive
2.
The death of a plaintiff or defendant shall not cause the suit to abate, if the
cause of action survive.
Cause of action surviving to surviving plaintiff or plaintiffs
3.
If there be two or more plaintiffs or defendants, and one of them die, and if
the cause of action survive to the surviving plaintiff
or plaintiffs alone, or
against the surviving defendant or defendants alone, the suit shall proceed at
the instance of the surviving
plaintiff or plaintiffs, and against the surviving
defendant or defendants.
Cause
of action surviving to surviving plaintiff and personal
representative
of
deceased plaintiff
4.
If there be two or more plaintiffs, and one of them die, and if the cause of
action shall not survive to the surviving plaintiff
or plaintiffs alone, but
shall survive to them and the personal representative of the deceased plaintiff
jointly, the court may,
on the application of the personal representative of the
deceased plaintiff, enter the name of such representative in the suit in
the
place of such deceased plaintiff, and the suit shall proceed at the instance of
the surviving plaintiff or plaintiffs, and such
personal representative of the
deceased plaintiff. If no application shall be made to the court by any person
claiming to be the
personal representative of the deceased plaintiff, the suit
shall proceed at the instance of the surviving plaintiff or plaintiffs;
and the
personal representative of the deceased plaintiff shall, after notice to appear,
be interested in, and shall be bound by,
the judgment given in the suit, in the
same manner as if the suit had proceeded at his instance conjointly with the
surviving plaintiff
or plaintiffs, unless the court shall see cause to direct
otherwise.
Death of sole or surviving plaintiff
5.
In case of the death of a sole plaintiff, or sole surviving plaintiff, the court
may, on the application of the personal representative
of such plaintiff, enter
the name of such representative in the place of such plaintiff in the suit, and
the suit shall thereupon
proceed: if no such application shall be made to the
court within what it may consider a reasonable time by any person claiming to
be
the personal representative of the deceased sole plaintiff or sole surviving
plaintiff, it shall be competent to the court to
make an order that the suit
shall abate, and to award to the defendant the reasonable costs which he may
have incurred in defending
the suit, to be recovered from the estate of the
deceased sole plaintiff or surviving plaintiff; or the court may, if it thinks
proper,
on the application of the defendant, and upon such terms as to costs as
may seem fit, make such order for bringing in the personal
representative of the
deceased sole plaintiff or surviving plaintiff, and for proceeding with the suit
in order to reach a final
determination of the matters in dispute, as may appear
just and proper in the circumstances of the case.
Dispute as to personal representative
6.
If any dispute arise as to who is the personal representative of a deceased
plaintiff, it shall be competent to the court either
to stay the suit until the
fact has been duly determined in another suit, or to decide, before the hearing
of the suit, who shall
be admitted to be such personal representative for the
purpose of prosecuting the suit.
Death of one of several defendants or of a sole surviving defendant
7.
If there be two or more defendants, and one of them die, and the cause of action
shall not survive against the surviving defendant
or defendants alone, and also
in case of the death of a sole defendant or sole surviving defendant, where the
action survives, the
plaintiff may make an application to the court specifying
the name, description and place of abode of any person whom the plaintiff
alleges to be the personal representative of such defendant, and whom he desires
to be made the defendant in his stead; and the court
shall thereupon enter the
name of such representative in the suit in the place of such defendant, and
shall issue an order to him
to appear on a day to be therein mentioned to defend
the suit; and the case shall thereupon proceed in the same manner as if such
representative had originally been made a defendant and had been a party to the
former proceedings in the suit.
Bankruptcy of plaintiff
8.
The bankruptcy of the plaintiff, in any suit which the assignee or trustee might
maintain for the benefit of the creditors, shall
not be a valid objection to the
continuance of such suit, unless the assignee or trustee shall decline to
continue the suit and to
give security for the costs thereof, within such
reasonable time as the court may order; if the assignee or trustee neglect or
refuse
to continue the suit and to give such security within the time limited by
the order, the defendant may, within eight days after such
neglect or refusal,
plead the bankruptcy of the plaintiff as a reason for abating the
suit.
ORDER XII.-DISCONTINUANCE OF SUITS
Discontinuance of suit
1.
If, before the date fixed for the hearing, the plaintiff desires to discontinue
any suit against all or any of the defendants, or
to withdraw any part of his
alleged claim, he shall give notice in writing of discontinuance or withdrawal
to the clerk of the court
and to every defendant as to whom he desires to
discontinue or withdraw.
After the
receipt of such notice, such defendant shall not be entitled to any further
costs, with respect to the matter so discontinued
or withdrawn, than those
incurred up to the receipt of such notice, unless the court shall otherwise
order; and such defendant may
apply ex parte for an order against the plaintiff
for the costs incurred before the receipt of such notice and of attending the
court
to obtain the order. Such discontinuance or withdrawal shall not be a
defence to any subsequent suit. If, in any other case, the
plaintiff desires to
discontinue any suit or to withdraw any part of his alleged claim, or if a
defendant desires to discontinue
or withdraw his counterclaim or any part
thereof, such discontinuance or withdrawal may, in the discretion of the court,
be allowed
on such terms as to costs and as to any subsequent suit and otherwise
as to the court may seem just.
Stay of subsequent suit
2.
If any subsequent suit shall be brought before payment of the costs of a
discontinued suit, for the same or substantially the same
cause of action, the
court may order a stay of such subsequent suit until such costs shall have been
paid.
ORDER
XIII.-PLACE OF TRIAL AND
OF
INSTITUTION OF
SUITS
(Substituted
by Rules 18th April, 1963.)
Place of trial
1.
Subject to the law respecting transfer, the place for the trial and institution
of any suit or matter shall be regulated as follows:-
Suits upon contract
(a) All suits arising out of the breach of any contract may be commenced and determined in the court nearest to the place in which such contract ought to have been performed, or in which the defendant, or one of the defendants, resides or carries on business.
Suits other than suits upon contract
(b) Any suit other than a suit founded on contract, may be commenced and determined in the court nearest to the place in which the defendant, or one of the defendants, resides or carries on business.
Suits commenced in wrong court
(c) Where any suit shall have been commenced in the wrong court, and whether or not the defendant shall plead specially in objection to the jurisdiction, the court may:-
(i) if the suit should have been commenced in some other court in the same Division in which it was commenced, transfer the suit to the court in which it ought to have been commenced; or
(ii) order that the suit shall continue in the court in which it was commenced; or
(iii) order the proceedings to be struck out; or
(iv) report to the Supreme Court pursuant to section 32 of the Act the pendency of the action.
Procedure on transfer
(d) Where a transfer of a suit to another court is ordered the clerk of the court in which the suit was commenced shall send to the clerk of the court to which the suit is transferred a certified copy of all the entries in the books of the first mentioned court, together with all the documents in his possession relating to the proceedings, and the clerk of the court to which the proceedings are transferred shall appoint a day for the hearing and send notice of the hearing to all parties interested and all subsequent proceedings shall be taken in that court.
ORDER XIV.-AMENDMENT
Under what circumstances
1.
The court may, at any stage of the proceedings, either of its own motion or on
the application of either party, order any proceedings
to be amended, whether
the defect or error be that of the party applying to amend or not; and all such
amendments as may be necessary
or proper for the purpose of eliminating all
statements which may tend to prejudice, embarrass or delay the fair trial of the
suit,
and for the purpose of determining, in the existing suit, the real
question or questions in controversy between the parties, shall
be so made.
Every such order shall be made upon such terms as to costs or otherwise as shall
seem just.
ORDER XV.-ADMISSIONS
Notice of admissions
1.
Any party to a suit may give notice, by his own statement or otherwise, that he
admits the truth of the whole or any part of the
case stated or referred to it
in the writ of summons, statement or particulars of claim, defence or other
statement of any other
party.
Notice to admit. Appendix A. Forms 6 and 7
2.
Any party may call upon any other party to admit, saving just exceptions, any
document or fact.
Costs on refusal to make reasonable admissions
3.
In case of refusal or neglect to admit after notice, the costs of proof of the
document or fact shall be paid by the party refusing
or neglecting to admit,
whatever be the result of the suit, unless the court is of opinion that the
refusal or neglect to admit was
reasonable.
Admissions by defendants
4.
If any defendant shall sign a statement admitting the amount claimed in the
summons or any part of such amount, the court, on being
satisfied as to the
genuineness of the signature of the person before whom such statement was
signed, and unless it sees good reason
to the contrary, shall, in case the whole
amount is admitted, or in case the plaintiff consents to a judgment for the part
admitted,
enter judgment for the plaintiff for the whole amount or the part
admitted, as the case may be, and, in case the plaintiff shall
not consent to
judgment for the part admitted, shall receive such statement in evidence as an
admission without further proof.
ORDER XVI.-PLEADINGS
Written statements, in what cases
1.
Suits shall ordinarily be heard and determined in a summary manner without
pleadings; but, where it appears to the court (for reasons
recorded in the
minutes) that the nature and circumstances of any case render it expedient in
the interests of justice to do so,
the court may order the plaintiff to file a
written statement of his claim, and may likewise order the defendant to file a
written
answer or statement of his defence. The filing of a statement of claim
need not necessitate, unless the court so directs, that an
answer shall also be
filed. The order may be made at any stage of a suit, either before or at the
hearing.
Illiterate parties
2.
In making any such order, the court shall have regard to the condition of the
parties, and shall not require any party to file a
written statement who, from
want of education, is incapable of preparing or understanding the same. If, in
any case, the court considers
it necessary in the interests of justice that any
statement of such party should be reduced into writing prior to the hearing, the
court may direct that the same be taken down in writing by the clerk of the
court, and, after verifying the statement so prepared
by oral examination of the
party, where necessary, may direct, if it thinks fit, that such statement be
filed as a pleading.
Where pleadings ordered
3.
Whenever any pleading, statement or answer is ordered to be filed, the
provisions of the following rules shall be observed:-
The pleading to state all material facts
(a) Every pleading shall contain a statement of all the material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively, and each paragraph containing, as nearly as may be, a separate allegation.
How facts to be stated
(b) The facts shall be alleged positively, precisely and distinctly, and as briefly as is consistent with a clear statement.
The relief claimed to be stated
(c) Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief, and the same rule shall apply to any counterclaim made or relief claimed by the defendant in his statement of defence.
Grounds of claim founded on separate facts to be separately stated
(d) Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly. And the same rule shall apply where the defendant relies upon several distinct grounds of set-off or counterclaim founded upon separate and distinct facts.
Defendant's pleading to meet allegations in statement of claim
(e) The defendant's pleading shall deny all such material allegations in the statement of claim as the defendant intends to deny at the hearing.
Every allegation of fact, if not denied specifically or by necessary implication or stated to be not admitted, shall be taken as established at the hearing.
Allegations shall not be met generally, but specifically
(f) It shall not be sufficient to deny generally the facts alleged by the statement of claim but the defendant must deal specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) staling that he does not know whether such allegation or allegations is or are true or otherwise.
Denial of fact must answer point of substance
(g) When a party denies an allegation of fact, he must not do so evasively, but answer the point of substance. And when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given.
Admissions: their effect
(h) The answer shall admit such material allegations in the statement of claim as the defendant knows to be true or desires to be taken as admitted, and such allegations may be taken as established without proof thereof.
Allegation of new facts in defence
(i) The answer must allege any fact not stated in the statement of claim on which the defendant relies in defence, as establishing, for instance, fraud on the part of the plaintiff, or showing that the plaintiff's right to recover, or to any relief capable of being granted on the statement of claim, has not yet accrued, or is released or barred or otherwise gone.
Set-off or counterclaim to be pleaded
(j) Where any defendant seeks to rely upon any facts, as supporting a right of set-off or counterclaim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counterclaim, and the particulars of such set-off or counterclaim shall be given.
Evidence in denial of allegation or in support of defence not set up in pleading
(k) The answer of a defendant shall not debar him, at the hearing, from disproving any allegation of the plaintiff not admitted by the answer, or from giving evidence in support of a defence not expressly set up by the answer, except where the defence is such as, in the opinion of the court, ought to have been expressly set up by the answer, or is inconsistent with the statements thereof, or is, in the opinion of the court, likely to take the plaintiff by surprise and to raise new issues not fairly arising out of the pleadings as they stand and such as the plaintiff ought not to be then called upon to meet.
Costs in certain cases
(l) Where the court shall be of opinion that any allegations of fact, denied or not admitted by any pleading, ought to have been admitted, the court shall make such order as may be just with respect to costs.
Verification of pleadings
(m) The court may order any plaintiff or defendant to verify his statement, or any part thereof, on oath or affidavit.
Filing and service of pleadings
(n) Every pleading shall be filed at such time as the court directs, and be served on the opposite party, if the court thinks fit, at such time and in such manner as it directs.
ORDER XVII.-SETTLEMENT OF ISSUES
At or before hearing
1.
At any time before or at the hearing, the court may, if it thinks fit, on the
application of any party or of its own motion, proceed
to ascertain and
determine what are the material questions in controversy between the parties,
and may reduce such questions into
writing and settle them in the form of
issues, which issues, when settled, may state questions of law on admitted
facts, or questions
of disputed facts, or questions partly of the one kind and
partly of the other.
Court may direct parties to prepare issues
2.
The court may, if it thinks fit, direct the parties to prepare issues, and the
same shall be settled by the court.
When to be settled
3.
The issues may be settled, without any previous notice, at any stage of the
proceedings at which all the parties are actually present,
or at the hearing. If
otherwise, notice shall be given to the parties to attend at the settlement of
the issues.
The court may amend or frame additional issues
4.
At any time before the decision of the case, if it shall appear to the court
necessary for the purpose of determining the real question
or controversy
between the parties, the court may amend the issues or frame additional issues,
on such terms as to it shall seem
fit.
ORDER XVIII.-INQUIRIES AND ACCOUNTS
Questions of fact or of account may be investigated by referee
1.
In any civil cause or matter in which all parties interested who are under no
disability consent thereto, and also, without such
consent, in any civil cause
or matter requiring any prolonged examination of documents or accounts or any
scientific or local examination
which cannot, in the opinion of the court,
conveniently be made by the court in the usual manner, the court may, at any
time, on
such terms as it may think proper, order any question or issue of fact,
or any question of account arising therein, to be investigated
or tried before a
referee, to be agreed on between the parties or appointed by the
court.
Instructions to referee
2.
Where an order has been made under rule I, the court shall furnish the referee
with such part of the proceedings and such information
and detailed instructions
as may appear necessary for his guidance, and shall direct the parties, if
necessary, to attend upon the
referee during the inquiry. The instructions shall
specify whether the referee is merely to transmit the proceedings which he may
hold on the inquiry, or also to report his own opinion on the point referred for
his investigation.
Interim inquiries or accounts
3.
The court may, at any stage of the proceedings, direct any necessary inquiries
or accounts described in rule I to be made or taken,
notwithstanding that it may
appear that there is some special or further relief sought for or some special
issue to be tried, as
to which it may be proper that the cause or matter should
proceed in the ordinary manner,
General powers of referee
4.
The referee may, subject to the order of the court, hold the inquiry at or
adjourn it to any place which he may deem most convenient,
and have any
inspection or view which he may deem expedient for the disposal of the
controversy before him. He shall, so far as is
practicable, proceed with the
inquiry de die in diem.
Evidence
5.
Subject to any order to be made by the court ordering the inquiry, evidence
shall be taken at any inquiry before a referee, and
the attendance of witnesses
may be enforced by subpoena; and every such inquiry shall be conducted in the
same manner, as nearly
as circumstances will admit, as trials before a
magistrate, but not so as to make the tribunal of the referee a public court of
justice.
Referee's authority in the inquiry
6.
Subject to any order as mentioned in rule 5, the referee shall have the same
authority in the conduct of any inquiry as a magistrate
when presiding at any
trial.
Referee may report questions or facts specially
7.
The referee may, before the conclusion of any inquiry before him, or by his
report under the reference, submit any question arising
therein for the decision
of the court, or state any facts specially.
Effect of report by referee
8.
The proceedings and report in writing of the referee shall be received in
evidence in the case, unless the court may have reason
to be dissatisfied with
them, and the court shall have power to draw such inferences from the
proceedings or report as shall be just.
Powers of court
9.
The court shall have power to require any explanations or reasons from the
referee, and to remit the cause or matter, or any part
thereof, for further
inquiry or consideration to the same or any other referee, as often as may be
necessary, and shall pass such
ultimate judgment or order as may appear to be
right and proper in the circumstances of the case.
ORDER XIX.-APPEARANCE OF PARTIES
Court may permit party to appear by proxy
1.
In every civil cause or matter pending before the court, in case it shall appear
to the satisfaction of the court that any plaintiff
or defendant who may not be
represented by a barrister and solicitor is prevented by some good or sufficient
cause from attending
the court in person, the court may, in its discretion,
permit any other person who shall satisfy the court that he has authority
in
that behalf to appear for such plaintiff or
defendant:
Provided that nothing
in this rule shall be deemed to authorize any person other than a barrister and
solicitor to charge a fee for
any advice given or services rendered in relation
to any such cause or matter.
Proceeding without authority
2.
Any person doing any act or taking any proceeding in the name or on behalf of
another person, not being lawfully authorized thereunto,
and knowing himself not
to be so authorized, shall be guilty of a contempt of court.
ORDER XX.-ARREST OF ABSCONDING DEFENDANT
Defendant
leaving Fiji or removing
property.
Appendix
A. Form
8.
Application for
security
1.
If, in any suit for an amount of value of ten dollars or upwards, the defendant
is about to leave Fiji, or has disposed of or removed
from Fiji his property, or
any part thereof, the plaintiff may, either at the institution of the suit or at
any time thereafter until
final judgment, make an application to the court that
security be taken for the appearance of the defendant to answer any judgment
that may be passed against him in the suit.
Warrant to arrest. Appendix A. Form 9
2.
If the court, after making such investigation as it may consider necessary,
shall be of opinion that there is probable cause for
believing that the
defendant is about to leave Fiji, or that he has disposed of or removed from
Fiji his property, or any part thereof,
and that, in either case, by reason
thereof the execution of any decree which may be made against him is likely to
be obstructed
or delayed, it shall be lawful for the court to issue a warrant to
bring the defendant before the court, that he may show cause why
he should not
give good and sufficient bail for his appearance.
Bail
for
appearance.
Appendix
A. Forms 10 and 11
3.
If the defendant fails to show cause as aforesaid, the court shall order him to
give bail for his appearance at any time when called
upon while the suit is
pending, and until execution or satisfaction of any decree that may be passed
against him in the suit; and
the surety or sureties shall under take, in default
of such appearance, to pay any sum of money that may be adjudged against the
defendant in the suit, with costs.
Deposit in lieu of bail
4.
Should a defendant offer, in lieu of bail for his appearance, to deposit a sum
of money or other valuable property sufficient to
answer the claim against him,
with costs of the suit, the court may accept such deposit.
Committal in default
5.
In the event of the defendant neither finding security nor offering a sufficient
deposit, he may be committed to custody until the
decision of the suit, or, if
judgment be given against the defendant, until the execution of the decree, if
the court shall so order:
Provided
that the court may, at any time, upon reasonable cause being shown and upon such
terms as to the security or otherwise as
may seem just, release the
defendant.
In what courts proceedings may be taken
6.
The application may be made to any court of the Division in which the defendant
may be, and such court may issue the warrant for
detaining and bringing the
defendant before the court, and may make such further orders as shall seem just.
In case the warrant shall
be issued by a different court from that in which the
suit is pending, such court shall transmit the application and the evidence
therein to the court in which the suit is so depending, and take sufficient
security for the appearance of the defendant in that
court, or send him there in
the custody of a police officer or an officer of court, and the court in which
the suit is pending shall
thereupon examine into and proceed in the application
in accordance with the foregoing provisions, in such manner as to it shall
seem
just.
Costs of executing warrant
7.
It shall be lawful for a court, before issuing the warrant, to require the
plaintiff to deposit in court such sum as the court may
think sufficient for the
costs of executing the warrant and of bringing the defendant before the court,
and, where necessary, of
sending him in custody to the court in which the suit
is pending.
Costs of subsistence of person arrested
8.
The expenses incurred for the subsistence in prison of the person so arrested
shall be paid by the plaintiff in the action in advance.
The court shall fix
whatever allowance it shall think sufficient for such subsistence not exceeding
35 cents per diem. The amount
so disbursed may be recovered by the plaintiff in
the suit, unless the court shall otherwise order. The court may release the
person
so imprisoned on failure by the plaintiff to pay the subsistence money,
or, in case of serious illness, order his removal to hospital.
During the period
of such person's stay in hospital, the subsistence allowance shall be paid by
the plaintiff, unless the court shall
see fit, in any case, to order
otherwise.
(Amended
by Rules
24th
September, 1958.)
ORDER XXI.-INTERIM ATTACHMENT OF PROPERTY
In what cases
1.
If the defendant, in any suit for an amount or value of ten dollars or upwards,
with intent to obstruct or delay the execution of
any decree that may be passed
against him, is about to dispose of his property, or any part thereof, or to
remove any such property
from Fiji, the plaintiff may apply to the court, either
at the time of the institution of the suit, or at any time thereafter until
final judgment, to call upon the defendant to furnish sufficient security to
fulfil any decree that may be made against him in the
suit, and, on his failing
to give such security, to direct that any property, real or personal, belonging
to the defendant, shall
be attached until the further order of the
court.
Application for attachment
2.
The application shall contain a specification of the property required to be
attached and the estimated value thereof, so far as
the plaintiff can reasonably
ascertain the same, and shall be supported by oral evidence or by
affidavit.
Form of order
3.
If the court, after making such investigation as it may consider necessary,
shall be satisfied that the defendant is about to dispose
of or remove his
property, with intent to obstruct or delay the execution of the decree, it shall
be lawful for the court to order
the defendant, within a time to be fixed by the
court, either to furnish security, in such sum as may be specified in the order,
to produce and place at the disposal of the court, when required, the said
property, or the value of the same, or such portion thereof
as may be sufficient
to fulfil the decree, or to appear and show cause why he should not furnish
security. The court may also, in
the order, direct the attachment, until further
order, of the whole or any portion of the property specified in the
application.
Where
defendant fails to show cause or give
security.
Appendix
A. Form 12
4.
If the defendant fail to show such cause, or to furnish the required security
within the time fixed by the court, the court may
direct that the property
specified in the application, if not already attached, or such portion thereof
as shall be sufficient to
fulfil the decree, shall be attached until further
order. If the defendant show such cause, or furnish the required security, and
the property specified in the application, or any portion of it, shall have been
attached, the court shall order the attachment to
be withdrawn.
Rights of third parties not to be affected
5.
The attachment shall not affect the rights of persons not parties to the suit,
and, in the event of any claim being preferred to
the property attached before
judgment, such claim shall be investigated in the manner prescribed for the
investigation of claims
to property attached in execution of a
decree.
Removal of attachment
6.
In all cases of attachment before judgment, the court shall, at any time, remove
the same on the defendant furnishing security as
hereinbefore required together
with security for the costs of the attachment.
In what courts proceedings may be taken
7.
The application may be made to any court of the Division where the defendant or,
in case of emergency, where the property proposed
to be attached may be, and
such court shall make such order as shall seem just. In case an order for the
attachment of property shall
be issued by a different court from that in which
the suit is depending, such court shall, on the request of either of the
parties,
transmit the application and evidence therein to the court in which the
suit is so depending, retaining the property in the meantime
when attached, or
taking sufficient security for its value, and the court in which the suit is
depending shall thereupon examine
into and proceed in the application in
accordance with the foregoing provisions, in such manner as shall seem
just.
ORDER XXII.-PRESERVATION OF DISPUTED PROPERTY
Orders to stay waste, damage or alienation
1.
In any suit in which it shall be shown, to the satisfaction of the court, that
any property which is in dispute in the suit is in
danger of being wasted,
damaged or alienated by any party to the suit, it shall be lawful for the court
to issue an injunction to
such party, commanding him to refrain from doing the
particular act complained of, or to give such order, for the purpose of staying
and preventing him from wasting, damaging or alienating the property, as to the
court may seem meet.
Appointment of receiver
2.
In all cases in which it may appear to the court to be necessary for the
preservation or the better management or custody of any
property which is in
dispute in a suit, it shall be lawful for the court to appoint a receiver or
manager of such property, and,
if need be, to remove the person in whose
possession or custody the property may be from the possession or custody
thereof, and to
commit the same to the custody of such receiver or manager, and
to grant to such receiver or manager all such powers for the management
or the
preservation and improvement of the property, and the collection of the rents
and profits thereof, and the application and
disposal of such rents and profits,
as to the court may seem proper.
Orders for sale of perishable goods
3.
It shall be lawful for the court, on the application of any party to a suit, to
make any order for the sale by any person named
in such order, and in such
manner and on such terms as to the court may seem desirable, of any goods, wares
or merchandise, the right
to which is in dispute in the suit, which may be of a
perishable nature, or likely to depreciate from keeping, or which, for any
other
just and sufficient reason, it may be desirable to have sold at
once.
Detention and inspection of property in dispute
4.
It shall be lawful for the court, upon the application of any party to a suit,
and upon such terms as may seem just, to make any
order for the detention,
preservation or inspection of any property being the subject of such suit, and,
for all or any of the purposes
aforesaid, to authorise any person or persons to
enter upon or into any land or building in the possession of any party to such
suit;
and, for all or any of the purposes aforesaid, to authorise any samples to
be taken, or any observations to be made or experiments
to be tried, which may
seem necessary or expedient for the purpose of obtaining full information or
evidence.
Orders to restrain breaches of contract or torts
5.
In any suit for restraining the defendant from the committal of any breach of
contract or other injury, and whether the same be
accompanied by any claim for
damages or not, it shall be lawful for the plaintiff, at any time after the
commencement of the suit,
and whether before or after judgment, to apply to the
court for an injunction to restrain the defendant from the repetition or the
continuance of the breach of contract or wrongful act complained of, or the
committal of any breach of contract or injury of a like
kind arising out of the
same contract, or relating to the same property or right, and such injunction
may be granted by the court
on such terms as to the duration of the injunction,
keeping an account, giving security or otherwise, as to the court shall seem
reasonable and just:
Provided
always that any order for an injunction may be discharged, varied or set aside
by the court, on application made thereto
by any party dissatisfied with such
order.
Notice of application
6.
The court may, in every case, before making an order or appointment as
aforesaid, direct such reasonable notice of the application
for the same to be
given to the opposite party, as it shall see fit.
ORDER XXIII.-EQUITABLE RELIEF, COUNTERCLAIM SET-OFF
Counterclaim. Set-off
1.
A defendant in an action may set off, or set up by way of counterclaim against
the claim of the plaintiff, any right or claim, whether
such set-off or
counterclaim sound in damages or not, and such set-off or counterclaim shall
have the same effect as a statement
of claim in a cross action so as to enable
the court to pronounce a final judgment in the same action, both on the original
and on
the cross claim. But the court may, if, in the opinion of the court, such
set-off or counterclaim cannot be conveniently disposed
of in the pending
action, or ought not to be allowed, refuse permission to the defendant to avail
himself thereof, and the court
shall refuse permission in respect of any
counterclaim for an amount or value exceeding the maximum amount or value of the
subject-matter
in respect of which a claim may be heard in such
court.
Notice of counterclaim or set-off
2.-(1)
No defendant shall be allowed to set up any such counterclaim or set-off, unless
he shall have lodged with the clerk of the
court, four clear days before the
return day, a notice in original, and as many duplicates thereof as there are
plaintiffs, containing
his name and address and a concise statement of the
grounds of such counterclaim or set-off, and shall have paid the same court and
service fees as would be payable if he were claiming by writ of
summons:
Provided that the court
may, in its discretion and on such terms as may seem just, allow the defendant
to set up a counterclaim or
set-off, notwithstanding that such notice has not
been duly lodged.
(2) On receipt
of notice of counterclaim or set-off, and on due payment of the fees, the clerk
of the court shall cause a duplicate
of such notice to be served on the
plaintiff.
(3) The provisions of
Order IX, as to particulars of claim shall apply, as far as they are applicable,
to counterclaim and set-off.
Defendant may have judgment for balance due on counterclaim
3.
Where, in any action, a set-off or counterclaim is established as a defence
against the plaintiff's claim, the court may, if the
balance is in favour of the
defendant, give judgment for the defendant for such balance, or may otherwise
adjudge to the defendant
such relief as he may be entitled to upon the merits of
the case.
Payment into court where partial set-off. Costs
4.
The court, if it sees fit, may order that a defence of partial set-off shall be
accompanied by payment into court of the amount
to which, on the defendant's
showing, the plaintiff is entitled, unless the plaintiff's claim to that amount
is resisted on some
other ground of defence; and, in default of such payment,
the defendant shall be liable to bear the costs of the suit, even if he
succeed
in his defence to the extent of the set-off on which he relies.
ORDER XXIV.-TENDER
Payment into court of the amount tendered
1.
A defence alleging tender by the defendant must be accompanied by payment into
court of the amount alleged to have been tendered.
ORDER
XXV.-INTERROGATORIES, DISCOVERY AND PRODUCTION
OF
DOCUMENTS
When
interrogatories may be
delivered.
Appendix
A. Form 13
1.
Any party may, by leave of the court (but, if he is required to deliver any
pleading, not until he has delivered a sufficient pleading),
deliver
interrogatories in writing for the examination of the opposite party, upon any
matter as to which discovery may be sought.
Amendment
2.
The court may strike out or permit to be amended any interrogatory which, in the
opinion of the court, is scandalous or irrelevant,
or not put bona fide for the
purposes of the action, or not sufficiently material, or in any other way
objectionable.
Answer
3.
The party interrogated shall answer the interrogatories subject to just
exceptions.
If answer insufficient
4.
If any party interrogated omits to answer or answers insufficiently, without
having just cause, the party interrogating may apply
to the court for an order
requiring him to answer or to answer further. Thereupon, or upon the court's own
motion, if the court thinks
fit, an order may be made requiring him to answer,
or to answer further, either by affidavit or by viva voce examination, as the
court may direct.
Discovery of documents
5.
The court may order any party to the suit to make discovery, upon oath, of the
documents which are or have been in his possession
or power relating to any
matter in question in the suit.
Production
of
documents.
Appendix
A. Forms 14 and 15
6.
The court may, at any time during the pendency therein of any suit or
proceeding, order the production by any party thereto, upon
oath, of any
documents in his possession or power relating to any matter in question in such
suit or proceeding, and the court may
deal with such documents, when produced,
as shall appear just.
Inspection of documents
7.
The court may, in its discretion, on the application of any of the parties to
any suit or proceeding, compel any other party to
allow the applicant to inspect
all or any documents in the custody or under the control of such other party
relative to such suit,
and, if necessary, to take examined copies of the
same.
Notice
to
produce.
Appendix
A. Form 16
8.
Whenever any of the parties to a suit is desirous that any document or other
thing which he believes to be in the possession or
power of another of the
parties thereto should be produced at any hearing of the suit, he shall, at the
earliest opportunity, serve
the party in whose possession or power he believes
the document or other thing to be with a notice in writing calling upon him to
produce the same.
Order for production
9.
In case it shall appear to the court that there is reasonable ground to believe
that such document or thing will not be produced
pursuant to such notice, the
court may make an order for the production of the same at the hearing of the
suit by the party served
with the notice, subject to just
exceptions.
Where right to production depends on questions in dispute
10.
If the party from whom discovery of any kind or production or inspection is
sought objects to the same or any part thereof, the
court, if satisfied that the
right to the discovery or production or inspection sought depends on the
determination of any issue
or question in dispute in the suit, or that, for any
other reason, it is desirable that any issue or question in dispute in the suit
should be determined before deciding upon the right to the discovery or
inspection, may order that such issue or question be determined
first, and
reserve the question as to the discovery or inspection.
Penalty on failure to comply with order to answer or for discovery
11.
If any party fails to comply with any order to answer interrogatories, or for
discovery or production or inspection of documents,
he shall be liable to
attachment. He shall also, if a plaintiff, be liable to have his action
dismissed for want of prosecution,
and, if a defendant, to have his defence, if
any, struck out, and to be placed in the same position as if he had not
defended, and
the party interrogating may apply to the court for an order to
that effect, and an order may be made accordingly.
ORDER XXVI.-MOTIONS
I. General
Motion may be made at any time
1.
Interlocutory applications may be made by motion at any stage of a cause or
matter.
Motion paper
2.
Unless the court shall otherwise order, no motion shall be entertained until the
party moving has filed a motion paper distinctly
stating the terms of the order
sought.
Motion list
3.
The clerk of the court shall make up, for each day on which the court appoints
motions to be heard, a motion list, on which he shall
enter the names of each
cause in which a motion is made, the party moving and the terms of the order
sought by him.
Affidavits
4.
There shall be filed with the motion paper all affidavits on which the person
moving intends to rely.
Hearing of motions
5.
The motion shall be made on such days and at such times as are, by the
regulations of the court, appointed for hearing motions.
In cases of urgency the
motion may, by leave of the court, be made at any time while the court is
sitting.
Adjournment
6.
The hearing of any motion may, from time to time, be adjourned upon such terms
as the court may deem fit.
Motions ex parte or on notice
7.
Motions may be made either ex parte or after notice to the parties to be
affected thereby.
II. Ex Parte Motions
Absolute order, or order to show cause
8.
On a motion ex parte, the party moving shall apply for either an immediate
absolute order of the court, in the terms of the motion
paper, on his own
showing and evidence, or an order on the other party to appear on a certain day
and show cause why an order should
not be made in terms of the motion
paper.
Argument on motion
9.
Any party moving in court ex parte may support his motion by argument addressed
to the court on the facts put in evidence; and no
party to the suit or
proceeding, although present, other than the party moving, shall be entitled to
be then heard, except by leave
of the court.
Orders on ex parte motions
10.
When a motion is made ex parte, the court may refuse to make the order sought,
or may grant an order to show cause why the order
sought should not be made, or
may allow the motion to be made on notice to the parties to be affected
thereby.
Court may vary or discharge order
11.
Where an order is made on a motion ex parte, any party affected by it may,
within seven days after service of it, or within such
further time as the court
shall allow, apply to the court by motion to vary or discharge it; and the
court, on notice to the party
obtaining the order, either may refuse to vary or
discharge it, or may vary or discharge it, with or without imposing terms as to
costs or security, or otherwise, as seems just.
III. Orders to Show Cause
Return day to be specified
12.
An order to show cause shall specify a day when cause is to be shown, to be
called the return day to the order, which shall ordinarily
be not less than
three days after service.
Counter-evidence
13.
A person served with an order to show cause may, before the return day, produce
evidence to contradict the evidence used in obtaining
the order, or set forth
other facts on which he relies to induce the court to discharge or vary such
order.
Further service in certain cases
14.
On the return day, if the person served does not appear, and it appears to the
court that the service on all proper parties has
not been duly effected, the
court may enlarge the time and direct further service, or make such other order
as seems just.
Appearance or proof of service
15.
If the person served appear, or the court is satisfied that service has been
duly effected, the court may proceed with the matter.
General powers as to orders
16.
The court may either discharge the order or make the same absolute, or adjourn
the consideration thereof, or permit further evidence
to be produced in support
of or against the order, and may modify the terms of the order so as to meet the
merits of the case.
IV. Notice of Motion
Notice of motion
17.
Unless the court gives special leave to the contrary, there shall be at least
two clear days between the service of a notice of
motion and the day named in
the notice for hearing the motion.
Service on barrister and solicitor
18.
Where a party acts by a barrister and solicitor, service of notice of motion on
such barrister and solicitor shall be deemed good
service on such
party.
Copy of affidavit to be served with notice
19.
Along with the notice of motion there shall be served a copy of any affidavit on
which the party moving intends to rely at the hearing
of such
motion.
Where all parties not served
20.
If, at the hearing of the motion, the court shall be of opinion that any person
to whom notice has not been given ought to have
or to have had such notice, the
court may either dismiss the motion, or adjourn the hearing thereof in order
that such notice may
be given, upon such terms as to the court may seem
fit.
Service with writ of summons
21.
The plaintiff may, by leave of the court, cause any notice of motion to be
served upon a defendant with the writ of summons.
V. Evidence in Interlocutory Proceedings
Oral evidence
22.
Oral evidence shall not be heard in support of any motion, unless by leave of
the court.
Evidence in addition to or in lieu of affidavits
23.
In addition to or in lieu of affidavits, the court may, if it thinks it
expedient, examine any witness viva voce, or receive documents
in evidence, and
may summon any person to attend to produce documents before it, or to be
examined or cross-examined before it, in
like manner as at the hearing of a
suit.
Notice to parties
24.
Such notice as the court, in each case according to the circumstances, considers
reasonable shall be given to the persons summoned,
and to such persons (parties
to the cause or matter or otherwise interested) as the court considers entitled,
to inspect the documents
to be produced, or to examine the persons summoned, or
to be present at their examination, as the case may be.
Evidence how taken
25.
The evidence of a witness, on examination, shall be taken in like manner, as
nearly as may be, as at the hearing of a suit.
Affidavit not filed with motion paper
26.
Upon the hearing of any motion, the court may, on such terms at it may deem fit,
allow any affidavit to be used, although such affidavit
has not been filed with
the motion paper, and although a copy thereof has not been served on the
opposite side along with the notice
of motion.
ORDER XXVII.-LISTING OF CIVIL CAUSES FOR HEARING
Causes to be placed on the cause list
1.
It shall not be necessary for the defendant to enter a formal appearance, but,
on the return day marked on the writ of summons,
the cause shall be placed on
the cause list for that day.
Order of causes on list
2.
Subject to the discretion of the court, causes shall be placed on the cause list
in the order of the date of the issue of their
respective writs of
summons.
Causes to be taken in order
3.
Causes shall be taken for hearing in the order in which they stand on the cause
list for the day:
Provided that
the court may direct any cause to be heard out of its ordinary
turn.
Adjournment of causes
4.
Any cause on the cause list not disposed of during the course of the day may be
adjourned to a future day. Any causes not so adjourned
shall be placed on the
cause list of the following day before all causes returnable for hearing on that
day, and in the same order
as they stood on the cause list of the previous day.
No further notice to either party of any such adjournment, or of any cause being
placed on the cause list of the following day, shall be requisite, unless
otherwise ordered by the court.
ORDER XXVIII.-POSTPONEMENT OF HEARING
In what cases
1.
The court may postpone the hearing of any civil cause or matter, on being
satisfied that the postponement is likely to have the
effect of better ensuring
the hearing and determination of the questions between the parties on the
merits, and is not made for the
purpose of mere delay. The postponement may be
made on such terms as to the court seem just.
Absence of witness
2.
Where such an application is made on the ground of the absence of a witness, the
court shall require to be satisfied that his evidence
is material, and that he
is likely to return and give evidence within a reasonable time.
Witness out of Fiji
3.
Where an application is made for the purpose of enabling the party applying to
obtain the evidence of a witness resident out of
Fiji, the court shall require
to be satisfied that the evidence of the witness is material, and that he is
permanently residing out
of Fiji, or does not intend to come within Fiji within
a reasonable time.
ORDER XXIX.-SITTINGS OF COURT
Days of sitting
1.
Subject to the provisions of the Act, the court may, in its discretion, appoint
any day or days, from time to time, for the hearing
of causes and matters, as
circumstances require.
Order of business at sittings
2.
Subject to special arrangements for any particular day, the business of the day
shall be taken, as nearly as circumstances permit,
in the following
order:-
(a) Judgements standing over for delivery.
(b) Ex parte motions.
(c) Motions on notice, and arguments on showing cause against orders.
(d) Civil causes and matters for hearing.
The
above shall be taken in the order in which they stand in the lists, unless the
court sees fit to vary the order.
Interlocutory matter may be heard in chambers
3.
The court may, if it thinks fit, hear any interlocutory matter in
chambers.
ORDER XXX.-NON-ATTENDANCE OF PARTIES AT HEARING
Non-appearance of both parties
1.
Where a civil cause on the cause list has been called, if neither party appears,
the court shall, unless it sees good reason to
the contrary, strike the cause
out of the cause list.
Of plaintiff
2.
If the plaintiff does not appear, the court shall, unless it sees good reason to
the contrary, strike out the cause (except as to
any counterclaim by the
defendant), and make such order as to costs, in favour of any defendant
appearing, as seems just:
Provided
that, if the defendant shall admit the cause of action to the full amount
claimed, the court may, if it thinks fit, give
judgment as if the plaintiff had
appeared.
Of defendant
3.
If the plaintiff appears, and the defendant does not appear or sufficiently
excuse his absence, or neglects to answer when duly
called, the court may, upon
proof of service of the summons proceed to hear the cause and give judgment on
the evidence adduced by
the plaintiff, or may postpone the hearing of the cause
and direct notice of such postponement to be given to the
defendant.
Counterclaim where plaintiff does not appear
4.
Where the defendant to a cause which has been struck out under rule 2 has a
counterclaim, the court may, on due proof of service
on the plaintiff of notice
thereof, proceed to hear the counterclaim and give judgment on the evidence
adduced by the defendant,
or may postpone the hearing of the counterclaim and
direct notice of such postponement to be given to the plaintiff.
Setting aside of judgment made in absence of party
5.
Any judgment obtained against any party in the absence of such party may, on
sufficient cause shown, be set aside by the court,
upon such terms as may seem
fit.
Re-listing of cause struck out
6.
Any civil cause struck out may, by leave of the court, be replaced on the cause
list, on such terms as to the court may seem fit.
ORDER XXXI.-PROCEEDINGS AT THE HEARING
Procedure
1.
The order of proceedings at the hearing of a civil cause or matter, in cases in
which statements of claim and of defence have been
filed, shall be in accordance
with rules 2 to 6, inclusive.
Plaintiff's case
2.
Subject to rule 6, the plaintiff shall state his case. He shall then produce his
evidence and examine his witnesses.
Witnesses
3.
The defendant shall have the right to cross-examine any witness and the
plaintiff may then re-examine the witness with regard to
any matter arising out
of the cross-examination.
Procedure where defendant produces no evidence
4.
At the conclusion of the plaintiff's evidence,-
(a) if the defendant decides to produce no evidence, oral or documentary, the plaintiff shall be at liberty to sum up his case; the defendant shall then be entitled to state his defence and reply generally;
Procedure where defendant produces evidence
(b) if the defendant decides to produce evidence, the plaintiff shall have no right to address the court at the conclusion of his own evidence; the defendant shall then state his defence and produce his evidence. At the conclusion of the defendant's evidence, he shall be entitled to sum up his defence and comment upon the evidence generally; and the plaintiff shall then be entitled to reply generally upon the whole case.
Defendant's witnesses
5.
Any witness called by the defendant shall be subject to cross-examination by the
plaintiff, and may be re-examined by the defendant
in respect of any matter
arising out of the cross-examination.
Right to begin
6.
Where by reason of the nature of the issues between the parties the burden of
proof is thrown upon the defendant, he shall, if the
court shall so determine,
have the right to begin. In such cases rules 2, 3, 4 and 5 shall be applied as
though the word "defendant"
were substituted therein for the word "plaintiff",
and the word "plaintiff" were substituted for the word
"defendant".
Documentary evidence
7.
Documentary evidence must be put in and read, or taken as read by
consent.
Marking documents
8.
Every document put in evidence shall be marked by the clerk of the court at the
time, and shall be retained by the court during
the hearing, and returned to the
party who put it in, or from whose custody it came, immediately after the
judgment, unless it is
impounded by order of the court.
Where written pleadings not filed or parties are illiterate
9.
In cases where written pleadings have not been filed, or the parties or either
of them are incapable of understanding their effect
with sufficient accuracy,
the preceding rules respecting the order of proceedings at the hearing shall be
varied by the court so
far as may be necessary. In particular, the statement of
the defendant in defence, where he does not admit the whole cause of action,
shall be heard immediately after the plaintiff has concluded the statement of
his claim and of the grounds thereof, and before any
witnesses are examined,
unless, in any case, the court shall see reason to direct
otherwise.
Disallowance of vexatious questions in cross-examination
10.
The court may, in all cases, disallow any question put in cross-examination to
any party or other witness, which may appear to it
to be vexatious and not
relevant to any matter proper to be inquired into in the cause or
matter.
ORDER XXXII.-JUDGMENT
Delivery of judgment
1.
The decision or judgment in any suit shall be delivered in open court, unless
the court otherwise directs.
Notice when reserved
2.
If the court reserves judgment at the hearing, parties to the suit shall be
served with notice to attend and hear judgment, unless
the court, at the
hearing, states the day on which judgment will be delivered, in which case there
shall be no further notice.
When parties deemed to have notice
3.
All parties shall be deemed to have notice of the decision or judgment, if
pronounced at the hearing, and all parties served with
notice to attend and hear
judgment shall be deemed to have notice of the judgment when
pronounced.
Minute
of judgment: its
effect.
Appendix
A. Form 17
4.
A minute of every judgment, whether final or interlocutary, shall be made, and
every such minute shall be a decree of the court,
and shall have the full force
and effect of a formal decree. The court may order a formal decree to be drawn
up on the application
of either party.
Where set-off allowed
5.
If the defendant shall have been allowed to set off any demand or counterclaim
against the claim of the plaintiff, the judgment
shall state what amount, if
any, is due to the plaintiff, and what amount, if any, is due to the defendant,
and shall be for the
recovery of any sum which shall appear to be due to either
party. The judgment with respect to any sum awarded to the defendant shall
have
the same effect and be subject to the same rules as if such sum had been claimed
by the defendant in a separate suit against
the plaintiff.
Decree to be obeyed without demand
6.
A person directed by a decree or order to pay money or do any other act is bound
to obey the decree or order without any demand
for payment or performance, and,
if no time is therein expressed, he is bound to do so immediately after the
decree or order has
been made (except as to costs, the amount whereof may
require to be ascertained by taxation), unless the court shall enlarge the
time
by any subsequent order.
Court may direct time for payment or performance
7.
The court, at the time of making any judgment or order, or at any time
afterwards, may direct the time within which the payment
or other act is to be
made or done, reckoned from the date of the judgment or order, or from some
other point of time, as the court
thinks fit.
Interest
8.
Where a judgment or order is for a sum of money, interest at five per cent per
annum shall be payable thereon, unless the court
otherwise
orders.
Payment by instalments
9.
Where any judgment or order directs the payment of money the court may, for any
sufficient reason, order that the amount shall be
paid by instalments, with or
without interest. Such order may be made at the time of giving judgment, or at
any time afterwards,
and may be rescinded, upon sufficient cause, at any time.
Such order may state that, upon failure of any instalment, the whole amount
remaining unpaid shall forthwith become due.
Judgment by consent
10.
If the plaintiff and defendant shall agree as to the terms and conditions on
which judgment shall be entered, the court, unless
it sees good reason to the
contrary, shall enter judgment on such terms and conditions.
Setting aside default judgments
11.
Any judgment by default may be set aside by the court or a magistrate upon such
terms as to costs or otherwise as the court or magistrate
may think
fit.
(Inserted by
Rules 31st March, 1966.)
ORDER XXXIII.-COSTS
What included in costs
1.
Under the denomination of costs is included the whole of the expenses
necessarily incurred by either party on account of any cause
or matter, and in
enforcing the decree or order made therein, including the expenses of summoning
and of the attendance of the parties
and witnesses, and of procuring copies of
documents, the fees of court, and the remuneration of referees.
How amount of costs determined
2.
All questions relating to the amount of costs shall, unless specially referred
for taxation, be summarily determined by the court.
Any costs referred for
taxation shall, after notice of taxation to the parties, be ascertained by the
magistrate as taxing master.
Any
party who may be dissatisfied with the certificate or allocatur of the taxing
master as to any item or part of any item which
may have been objected to before
the taxing master may, within seven days from the date of the certificate or
allocatur, or such
other time as the taxing master, at the time he signs his
certificate or allocatur, may allow, apply to the Chief Registrar for an
order
to review the taxation as to the said item or part of an item, and the Chief
Registrar may thereupon make such order as the
Chief Registrar may think fit;
but the certificate or allocatur of the taxing master, subject to the proviso to
this rule, shall
be final and conclusive as to all matters which shall not have
been objected to before the taxing master. Such application shall
be heard and
determined by the Chief Registrar upon the evidence which shall have been
brought in before the taxing master, and no
further evidence shall be heard on
the hearing thereof, unless the Chief Registrar shall otherwise
direct:
Provided always that,
where any party fails to appear at the taxation after notice, and the taxation
has been proceeded with in his
absence, such party may apply to the magistrate
for a review of taxation within seven days from such taxation, and the
magistrate,
if satisfied that the non-appearance is due to no default of such
party, may set aside or review such taxation.
Costs in discretion of court
3.
The costs of every suit or matter and of each particular proceeding therein
shall be in the discretion of the court; and the court
shall have full power to
award and apportion costs, in any manner it may deem just, and, in the absence
of any express direction
by the court, costs shall abide the event of the suit
or proceeding: Provided that the court shall not order the successful party
in a
suit to pay to the unsuccessful party the costs of the whole suit; although the
court may order the successful party, notwithstanding
his success in the suit,
to pay the costs of any particular proceeding therein.
Security for costs
4.-(1)
Where a plaintiff does not, or does not ordinarily, reside in Fiji, the court
may, either on its own motion or on the application
of any defendant, require
any plaintiff in any suit, either at the commencement or at any time during the
progress thereof, to give
security for costs, to the satisfaction of the court
by deposit or otherwise, or to give further or better
security.
(2) The court may direct
that security for costs shall be given in any cause or matter in which a similar
direction could be given
had the action been taken in the Supreme
Court.
Stay of proceedings pending payment or security for costs
5.
Where the court orders costs to be paid, or security to be given for costs by
any party, the court may, if it thinks fit, order
all proceedings by or on
behalf of that party in the same suit or proceeding, or connected therewith, to
be stayed until the costs
are paid or security given accordingly, but such
orders shall not supersede the use of any other lawful method of enforcing
payment.
Costs out of fund in suit
6.
The court may order any costs to be paid out of any fund or property to which a
suit or matter relates.
Discretion of taxing master
7.
Upon any taxation of costs, the taxing master may, in determining the
remuneration to be allowed, have regard, subject to any rule
of court, to the
skill, labour and responsibility involved.
Taxation
8.
In taxation of costs between party and party, nothing shall be allowed in
respect of fees paid to the court beyond what was necessary
having regard to the
amount recovered on judgment.
Folio to be 72 words
9.
A folio is to comprise seventy-two words, every figure comprised in a column, or
authorised to be used, being counted as one word.
Liability of barrister or solicitor to pay costs
10.
Where upon the trial of any cause or matter it appears that the same cannot
conveniently proceed by reason of the barrister and
solicitor for any party
having neglected to attend personally, or by some proper person on his behalf,
or having omitted to deliver
any paper necessary for the use of the court, and
which according to the practice ought to have been delivered, such barrister and
solicitor shall personally pay to all or any of the parties such costs as the
court shall think fit to award.
ORDER XXXIV.-ENFORCEMENT OF ORDERS
Orders in general
1.
Any order of the court made in any civil cause or matter may be enforced in the
same manner as a decree to the same effect.
Interlocutory orders
2.
Any interlocutory order may be enforced by any of the methods applicable thereto
by which a final order is enforceable.
Staying proceedings and judgment by default
3.
Interlocutory orders may also be enforced according to the following
provisions:-
If a plaintiff in a
suit makes default or fails in fulfilling any interlocutory order, the court
may, if it thinks fit, stay further
proceedings in the suit until the order is
fulfilled, or may give a judgment of non-suit against such plaintiff, with or
without
liberty of bringing any other suit on the same grounds of action, or may
make such other order on such terms as to the court shall
seem fit. If a
defendant in any suit makes such default or failure, the court may give judgment
by default against such defendant,
or make such other order as to the court may
seem just:
Provided that any such
judgment by default may be set aside by the court, upon such terms as to costs
or other wise as the court may
think fit.
ORDER
XXXV.-INTERPLEADER OTHER THAN UNDER
EXECUTIONS
(Inserted
by Rules 21st August, 1958, and amended by Rules 20th October, 1961.)
Relief by interpleader
1.
Where any person (in this Order called the applicant) is under a liability for
any debt or other thing in action or any money or
goods for or in respect of
which adverse claims have been made upon him by two or more claimants he may
apply to the court for relief
by way of interpleader.
Affidavit to be filed. Appendix A. Form 18
2.-(1)
Where the applicant is a defendant in an action he shall file in the court in
which he is sued an affidavit in the Form No.
18 in Appendix A.
Appendix A, Form 19
(2) Where the applicant is
not a defendant in an action he shall file in the court in which he might be
sued an affidavit in Form
19 in Appendix A.
Time for filing
3.
Where the applicant is a defendant the affidavit shall subject as hereinafter
provided, be filed within twenty-one days of the service
of the writ of summons
upon him inclusive of the day of service and in any event on or prior to the day
originally appointed for
the hearing of such writ of summons.
Claims may be adverse
4.
The applicant shall not be disentitled to relief by reason only that the claims
of the claimants are adverse to and independent
of each other.
Procedure
5.
On the filing of the affidavit the applicant,-
(a) if a defendant in the action, shall-
Appendix A. Form 20
(i) prepare and take out an interpleader summons in the form No. 20 set out in Appendix A or to the like effect; and
(ii) serve the interpleader summons on each claimant together with a copy of the writ of summons and a copy of the affidavit referred to in the interpleader summons; and
Appendix A. Form 21
(iii) serve on the plaintiff a notice in the form No. 21 set out in Appendix A or to the like effect together with a copy of such affidavit.
(b) if not a defendant in an action, shall-
Appendix A. Form 22
(i) prepare and take out an interpleader summons, directed to each claimant, in the form No. 22 set out in Appendix A or to the like effect; and
(ii) serve the interpleader summons and a copy of such affidavit on each claimant.
Magistrate may postpone trial
6.
If the application is made by a defendant in an action the magistrate shall, if
necessary, postpone the trial of the action.
Magistrate may order subject matter to be brought into Court
7.
A magistrate may, before or after the issue of the interpleader summons, direct
the applicant to bring the subject matter into court
or to dispose of it in such
manner as the magistrate thinks fit pending such order as the court might
make.
Service of summons
8.
An interpleader summons shall be served, not less than fourteen clear days
before the day fixed for the hearing of such summons,
in accordance with the
rules for the service of a writ of summons.
Claimant to file notice or particulars
9.
A claimant shall within eight days of the service on him of the interpleader
summons inclusive of the day of service, file in the
court
either-
(a) one copy of a notice that he makes no claim; or
(b) one copy of particulars stating the grounds of his claim to the subject matter,
and
shall serve a copy of the notice upon each of the other parties; provided that
the magistrate may, if he thinks fit, hear the
proceedings although no
particulars have been filed.
Procedure on leaving of proceedings
10.
On the day fixed for the hearing of the proceedings-
(a) where the applicant is a defendant-
(i) if the plaintiff does not appear, the action including the interpleader proceedings shall be struck out; or
(ii) if the claimant does not appear, the magistrate shall hear and determine the action as between the plaintiff and the defendant and may make an order dismissing the claim of the claimant; or
(iii) if both the plaintiff and the claimant appear, the magistrate shall, whether the defendant appears or not, hear the proceedings and give judgment finally determining the rights and claims of all parties;
(b) where the applicant is not a defendant-
(i) if any claimant does not appear, the magistrate shall make an order finally determining the claim as between the applicant and any claimant who appears and may make an order barring the claim of the absent claimant; or
(ii) if all the claimants appear, the magistrate shall, whether the applicant appears or not, hear the proceedings and make an order finally determining the rights and claims of all parties;
(c) In any such case as is referred to in paragraphs (a) and (b) a magistrate may make such order as to costs as to him shall seem just.
ORDER XXXVI.-EXECUTION
I.-Writs of Fieri Facias and Sale
Execution
1.
A party in whose favour any judgment of a court for the payment of money is
given may sue out of the office of the clerk of that
court execution for the
same, if the same is not satisfied.
Execution
by writ of fieri
facias.
Appendix
A. Form 23
2.
The process for the execution of any judgment shall be by writ of fieri facias
under the hand of the magistrate of the court in
which the judgment was given,
and shall be directed to the sheriff, who shall be empowered to levy, by
distress and sale of the personal
property, wherever found within Fiji, of the
person against whom the judgment was given (hereinafter in this Order called the
judgment
debtor) such sum as shall be specified in the writ, together with the
costs of execution, and all police officers shall aid in the
execution.
Property liable to execution
3.
All personal property belonging to a party against whom execution is to be
enforced, and whether held in his own name or by another
party in trust for him
or on his behalf (except the wearing apparel and bedding of himself or his
family and the tools and implements
of his trade, if any, to the value of ten
dollars) is liable to attachment and sale in execution of the
decree.
Fourteen days' grace after judgment
4.
Subject to rule 5, a writ of execution shall not be issued until fourteen days
after the day of the date of the order or judgment.
Immediate execution
5.
Notwithstanding anything contained in rule 4, the court may, if it sees fit,
order immediate execution.
Procedure on execution
6.
No sale of goods taken in execution shall be made until the end of five days
next after such goods were seized, unless such goods
are perishable, or on the
request of the party whose goods are seized. Where the property seized is of a
value estimated to exceed
forty dollars, the sale shall be by public auction
after such advertisement as the court shall direct.
Sale in execution
7.
Any property sold in execution of the process of the court shall be sold
publicly and for ready money by the sheriff or his agent
to the highest bidder;
and the said sheriff shall cause a notice of the sale and of the day and place
thereof to be fixed on the
door of the Court House or some other like public
building where the said court is holden, and also where or as near as may be to
the place where the said sale is actually to take place, three days at least
before the day appointed for the said sale.
Payment before sale
8.
If the party against whom such execution has issued shall, before actual sale,
pay or tender to the court or to the sheriff or his
agent the amount specified
on the writ or so much thereof as the person entitled thereto shall agree to
accept in full discharge,
together with the costs of the execution, the
execution shall be superseded and the property discharged.
II.-Judgment Summons and Commitment
Judgment summons to be served personally. Appendix A. Form 24
9.-(1)
No order of commitment under paragraph (g) of section 16 of the Act shall be
made unless a summons to appear and be examined
on oath (hereinafter in this
Order called a judgment summons) has been personally served upon the judgment
debtor.
Time for service
(2) A judgment summons
shall be served not less than ten clear days before the day fixed for the
hearing.
(Inserted
by Rules 31st March, 1966.)
Application in writing for issue
10.
A person entitled to enforce a judgment or order, and requiring a judgment
summons to issue, shall apply in writing to the clerk
of the court for the issue
of the same. Such application shall be signed by the applicant or by his
barrister and solicitor, on his
behalf and shall give the full names and
addresses of, or otherwise sufficiently identify, every person against whom the
judgment
summons is to be issued.
When two or more defendants
11.
Where a judgment has been given or an order made against two or more persons,
the person entitled to enforce the judgment or order
may require a judgment
summons to be issued against all or any one or more of the persons liable under
the judgment or order.
Against
a firm or person not trading in his own
name.
Appendix A.
Form 25
12.
Where a judgment or order is against a firm, or against a person not in his own
name but in some other name in which he is carrying
on business, and the person
entitled to enforce the judgment or order desires to do so by judgment summons
against any person whom
he alleges to be liable under the judgment or order as a
partner in or the sole member of the firm, or as the person carrying on
business
in a name other than his own as aforesaid, he shall file an affidavit, together
with a copy thereof, staling the grounds
upon which the person against whom the
judgment summons is sought is alleged to be liable, with the deponent's sources
of information
and grounds of belief, and thereupon a judgment summons may issue
directed to the person alleged to be liable as aforesaid, and there
shall be
annexed to such judgment summons and served therewith a copy of the said
affidavit.
If, on the return day,
such person denies his liability, the court may decide the question on the
evidence then before it, or may
order the question to be tried and determined in
an action to be commenced by summons in the ordinary way.
Evidence as to means
13.
Witnesses may be summoned to prove the means of a judgment debtor in the same
manner as witnesses are summoned to give evidence
upon the hearing of an action,
and their expenses may be allowed.
Compelling attendance of witnesses
14.
A person served with a judgment summons and who has been paid or tendered his
reasonable travelling expenses to and from the magistrates'
court, and any
person summoned under rule 13, shall be deemed a person duly summoned to give
evidence within the meaning of section
53 of the
Act.
(Amended by
Rules 19th February, 1958.)
Adjournment
15.
The hearing of a judgment summons may, by leave of the court, be adjourned from
time to time.
Where
Judgment summons applied for at a court in
which
judgment was
not obtained
16.
Where a judgment creditor desires to apply for a judgment summons to a court
other than the court in which the judgment or order
was obtained, he shall
obtain from the clerk of the last-mentioned court a certified copy of the
judgment or order in the action
and file the same with his application. The
certificate shall, where the amount to be paid was directed to be paid into
court either
forthwith or at a specified time or by instalments, state the date
on which the last payment into court, if any, under such judgment
or order was
made, or, if no payment into court has been made, the date upon which default
was made.
Evidence by affidavit
17.
Where a judgment creditor at whose instance a judgment summons is issued, or a
judgment debtor summoned to appear by a judgment
summons, does not reside within
the Division of the court in which the summons is to be heard, he may forward to
the court from which
the summons is issued an affidavit setting forth any facts
which he may wish to be before the court prior to any order being made
on the
summons. And the court may, if it thinks fit, on the hearing of the judgment
summons, admit the affidavit as evidence of the
person by whom the same is
made.
Where
judgment summons heard in a court other than that in
which
judgment was
obtained
18.-(1)
Where a judgment summons is heard in a court other than that in which the
original judgment or order was obtained, a certified
copy of the order (if any)
made on such hearing shall be sent by the clerk of the court to the clerk of the
court in which the original
judgment or order was obtained, and shall be entered
by such last-mentioned clerk of the court on the minute of the original judgment
or order.
(2) If, on such hearing,
an order of commitment or an order altering the terms of the original judgment
or order is made, the proceedings
shall be thereby transferred to the court in
which such order is made; and execution or other process for enforcing either
the order
of commitment or the original judgment or order, or the new order,
shall be issued by the court making such order of commitment or
new
order.
(3) If, on such hearing, no
order is made, the judgment or order shall remain in the court in which it was
obtained, and the certified
copy thereof, filed in conformity with rule 16,
shall be returned to that court; and subsequent proceedings for the enforcement
thereof
may be taken in such last-mentioned
court.
(Rule
amended by Rules 31st March, 1958.)
Provisions if receiving order has been made
19.-(1)
Where, upon the return day of a judgment summons, the judgment debtor satisfies
the magistrate that a receiving order has been
made for the protection of his
estate, or that he has been adjudicated bankrupt, or that a composition order
has been made against
him, and that the debt was provable therein, no order of
commitment shall be made.
(2)
Where an order of commitment has been made, and the magistrate making the same
shall thereafter be satisfied that a receiving
order has been made for the
protection of the estate of the judgment debtor against whom such order was
made, or that he has been
adjudicated bankrupt, or that a composition order has
been made against him, and that the debt in respect of which the order was
made
was provable therein, the order of commitment shall not issue, and, if issued
and not executed, shall be recalled. If such order
has been executed, the
magistrate, on being satisfied as to the aforesaid facts, shall order the
judgment debtor to be discharged.
Order on judgment summons
20.-(1)
On the hearing of a judgment summons, the magistrate, if he is of opinion that
an order of commitment ought not to be made,
may refuse to make any order, or
may make a fresh order for payment of the amount remaining due and unpaid under
the judgment or
order, either at a specified time or by
instalments.
Suspension of order of commitment
(2) If an order of
commitment is made, the magistrate may direct that the execution of such order
be suspended to enable the debtor
to pay the amount in respect of which such
order is made, by instalments or otherwise. When such direction is given, notice
thereof
shall be sent to the debtor, unless he be present in court when such
direction is given.
The magistrate
may, from time to time, upon the application of either party after reasonable
notice to the other party of the time
and place when such application will be
heard, vary the amount of such instalments by such amount as will in his opinion
meet the
ability of the judgment debtor to pay the same.
Payments to be made into court
(3) Subject to the
provisions of rules 22 and 23, all payments under a fresh order or order of
commitment shall be paid into court.
Form,
date, duration and extension of order of
commitment.
Appendix
A. Forms 26 and 27
(4) An order of commitment
shall be according to such one of the forms in Appendix A as shall be applicable
to the circumstances of
the case, and shall, on whatever date it may be issued
from the office of the clerk of the court, bear date on the day on which the
order of commitment was made, and shall, if unexecuted, remain in force for one
year only from and exclusive of such date, unless
renewed in manner hereinafter
provided; but the magistrate may, at any time before or after the expiration of
such year, and so on
from time to time, extend the time within which the order
may be executed, for any time not exceeding one year from the date upon
which it
would otherwise have ceased to be in force. An order of extension may be made
either before or after the order of commitment
is issued, and the fact of an
extension having been made shall be endorsed on the order of
commitment.
Costs may be allowed
on the renewal of an order of commitment.
Execution of order of commitment
(5) An order of commitment
shall be executed by the sheriff or a bailiff or police officer acting under his
direction (hereinafter
in this Order referred to as the
sheriff).
(6) If no order of
commitment or fresh order for payment is made on the hearing of a judgment
summons, but the magistrate considers
that under the circumstances the action of
the judgment creditor in applying for a judgment summons was justified, the
magistrate
may, instead of dismissing the summons, adjourn the
same.
Commitment order in respect of instalments
21.
Where a judgment or order has been given or made for payment by instalments, and
an order of commitment is made in respect of the
non-payment of one or more of
such instalments before the whole of such instalments have become due, then, if
the magistrate orders
the execution of the order of commitment to be suspended
to enable the debtor to pay the amount in respect of the non-payment of
which
the order is made, by instalments or otherwise, he may, if he thinks fit, order
that the judgment or order for payment of instalments
shall also be suspended
for so long as the execution of the order of commitment is suspended, or for any
less period. If the magistrate
makes such order as last mentioned, he may, at
any subsequent time, order that the suspension of the judgment or order for
payment
of instalments shall cease; and, if the plaintiff withdraws or abandons
the order of commitment, the suspension of the judgment or
order for payment of
instalments shall cease to operate on such withdrawal or
abandonment.
Debtor may pay amount endorsed on commitment order at any time
22.
When an order of commitment for non-payment of money is issued, the debtor may,
at any time before the body is delivered into the
custody of the officer in
charge of the prison, pay to the sheriff the amount endorsed on the order as
that on the payment of which
he may be discharged; and, on receiving such
amount, the sheriff shall discharge the debtor, and shall, within twenty-four
hours
after receiving such amount, pay over the same to the clerk of the
court.
How and where amount may be paid
23.-(1)
After the making of an order of commitment for non-payment of money, money in
respect of the amount due may be paid into the
court making the order. Instead
of being paid into court as aforesaid, such money, prior to the person against
whom the order of
commitment has been made being delivered into the custody of
the officer in charge of the prison, may be paid to the sheriff holding
the
order of commitment, and, after delivery into the custody of the officer in
charge of the prison, to such
officer.
(2) Where payment is made
into court, the clerk of the court shall notify the fact and amount of such
payment to the sheriff holding
such order, if the judgment debtor has not yet
been delivered into the custody of the officer in charge of the prison, and to
such
officer, if the judgment debtor has been delivered into custody as
aforesaid.
Discharge of debtor on payment
24.-(1)
The sheriff holding an order of commitment, on receipt of the amount or the
balance of the amount in respect of which the order
of commitment was made, or
the notice mentioned in rule 23, shall liberate the judgment debtor, if in his
custody, and return the
order to the court from which it was
received.
(2) The officer in
charge of the prison in whose custody the judgment debtor has been lodged shall,
on receipt of the amount or the
balance of the amount in respect of which the
order of commitment was made, or of the notice mentioned in rule 23, forthwith
liberate
the judgment debtor.
Receipt of moneys
25.
All moneys received by the sheriff or the officer in charge of the prison shall
be paid forthwith to the clerk of the court, who
shall, subject to the deduction
of all proper costs, charges and expenses, pay the same to the judgment
creditor.
Judgment creditor may obtain discharge of debtor
26.
Upon the judgment creditor lodging with the clerk of the court a request in
writing that the judgment debtor, if in prison, may
be discharged from custody,
the clerk of the court shall notify the officer in charge of the prison in whose
custody the judgment
debtor is, and such officer shall forthwith liberate the
judgment debtor.
Costs of abortive execution not to be included in judgment summons
27.
Costs incurred in endeavouring to enforce a judgment or order by way of
execution against the property of the judgment debtor, and
not recovered under
such execution, shall not be included in the amount due under such judgment or
order for the purposes of a judgment
summons, or of an application for a fresh
order for payment, nor shall money paid into court, otherwise than under
execution, be
attributed to payment of such costs.
Writ of execution to be lodged in court upon issue of judgment summons
28.
Upon the issue of a judgment summons against a party upon a judgment or order of
the court out of which the judgment summons is
issued, the sheriff shall lodge
in court any writ of execution against the property of such party which may have
been issued in the
action, whether executed or not; but any such writ, if not
fully executed, may be re-issued by leave of the magistrate.
Safeguards in respect of certified copies of judgments
29.
Where a certified copy of a judgment or order is obtained from a clerk of a
court for the purpose of taking proceedings thereon
in any other court, such
clerk shall make on the minute of the judgment or order a memorandum of such
certified copy having been
given, and the sheriff shall lodge in court any writ
of execution or judgment summons or order of commitment which may have been
issued by such court upon such judgment or order; and no such writ, summons or
order shall be re-issued, nor shall any subsequent
writ of execution or judgment
summons upon such judgment or order be issued by the court, unless it is shown,
to the satisfaction
of the court, that no order has been made against the person
liable under such judgment or order in any other court upon such certified
copy.
III-Attachment of Debts
Proceedings
against
garnishee.
Appendix
A. Form 28. Appendix A. Form 29
30.-(1)
Any person who has obtained a judgment or order for the recovery or payment of
money may, either before or after any oral examination
of the debtor liable
under such judgment or order, upon lodging with the clerk of the court in which
the judgment or order was given
or made an affidavit by himself or his barrister
and solicitor in the form in Appendix A, apply for a summons to obtain payment
to
him of the amount of any debt due to the debtor from any other person
(hereinafter called the garnishee) who is indebted to such
debtor, or so much
thereof as may be sufficient to satisfy the said judgment or order, together
with the costs of the garnishee proceedings;
and thereupon a summons in the form
in Appendix A calling upon the garnishee to show cause why he should not pay to
the person who
has obtained such judgment or order (hereinafter called the
judgment creditor) the debt due from him to such debtor, or so much thereof
as
may be sufficient to satisfy the judgment or order, together with the costs
aforesaid, shall be issued by the clerk of the court;
and the name and address
of the applicant, or of his barrister and solicitor, shall be entered on the
summons. In this rule, the
expression "debtor" includes a married woman against
whom judgment has been obtained in respect of her separate
estate.
Where
debt sought to be attached exceeds the amount for
which
an action
could be brought
(2) For the purposes of
this rule, the garnishee shall be deemed to be within the jurisdiction of the
court in respect of the debt
due from him to the debtor, or so much thereof as
may be sufficient to satisfy the judgment or order, together with the costs of
the garnishee proceedings, notwithstanding the fact that the debt due from him
to the debtor, or the amount thereof required to satisfy
the judgment or order
and the costs of the garnishee proceedings, exceeds the sum in respect of which
the court has jurisdiction.
Where garnishee not within jurisdiction
31.
Where the garnishee is not, in respect of such debt, within the jurisdiction of
the court in which the judgment or order was obtained,
the judgment creditor,
upon lodging with the clerk of the court in the Division in which the garnishee
resides or carries on business
a certified copy of the judgment or order, and
also an affidavit similar to that prescribed by rule 30, may apply for a summons
against
the garnishee in such other court; and thereupon a summons shall be
issued and all proceedings shall be had and taken thereon as
if the judgment or
order had been obtained in that court.
Service and effect of garnishee summons
32.-(1)
The summons shall be served on the garnishee not less than eight clear days
before the return day of the summons, and, when
so served, it shall bind in the
hands of the garnishee all debts due and payable from him to the debtor liable
under the judgment
or order.
(2)
When the garnishee is a firm or a person carrying on business in a name or style
other than his own, or a company or other corporation,
the summons may be served
in the same manner as a writ of
summons.
(3) If and so often as
service of the summons shall not be effected upon the garnishee within the time
hereinbefore prescribed the
clerk of the court shall from time to time fix a new
date of hearing to enable such service to be effected and shall from time to
time amend the summons and all issued copies thereof accordingly.
Affidavit
of
service.
Appendix
A. Form 3
33.
An affidavit of service of the summons upon the garnishee in the form
(mutatis
matandis) provided in Appendix A for an
affidavit of service of a writ of summons shall, unless the garnishee shall have
made a payment into
court in accordance with rule 35, be filed with the clerk of
the court by the judgment creditor at any time before the return day
of the
summons; and the costs of such affidavit may be included in the costs entered on
the summons.
Notice
to judgment
debtor.
Appendix
A. Form 30
34.-(1)
At the time of issue of the garnishee summons, the clerk of the court shall
issue a copy of the summons for service on the debtor
liable under the judgment
or order, with a notice according to the form in Appendix A, that, if he has any
cause to show why the
court should not order the garnishee to pay to the
judgment creditor the debt alleged to be due from the garnishee to the judgment
debtor, or so much thereof as may be sufficient to satisfy the sum due from the
judgment debtor to the judgment creditor, with the
costs of the garnishee
proceedings, he must appear at the court on the return day of the summons and
show cause accordingly.
Service of notice
(2) The copy and notice
mentioned in paragraph (1) shall be served on the judgment debtor after the
garnishee shall have been served
with the summons in accordance with rule 32 and
at least five clear days before the return day of the summons, and, if
necessary,
the clerk of the court shall adjourn the hearing of the garnishee
summons to enable such service to be effected, and shall enter
in the notice to
be served on the judgment debtor the day of the adjourned hearing as the day on
which he must appear, and shall
give notice of such adjournment to the judgment
creditor and to the garnishee. An affidavit of service of the copy and notice
shall
be filed with the clerk of the court in the manner provided in rule
33.
Payment into court by garnishee
35.-(1)
The garnishee may, at any time before the return day of the summons, pay into
court the amount admitted by him to be due from
him to the debtor liable under
the judgment or order, or, if the amount so admitted is more than sufficient to
satisfy the amount
in respect of which the judgment or order is unsatisfied and
the fees and costs (if any) endorsed on the garnishee summons, the garnishee
may
pay into court a sum sufficient to satisfy such amount, fees and
costs.
Appendix A. Form 31. Appendix A. Form 32
(2) The clerk of the court
shall send notice by post or otherwise of any payment into court to the judgment
creditor or to his barrister
and solicitor as endorsed on the summons, and to
the judgment debtor, warning the latter that the money paid into court will be
ordered
to be paid out to the judgment creditor, unless the judgment debtor
appears on the return day of the summons, and shows cause to
the
contrary.
(3) If the judgment
creditor elects to accept the money paid into court in satisfaction of his claim
against the garnishee, he shall
send notice of such acceptance to the clerk of
the court and the garnishee, and thereupon all further proceedings against the
garnishee
shall abate, except as herein provided, and the judgment creditor
shall not be liable to any costs incurred by the garnishee after
receiving such
notice.
(4) If payment into court
is made by the garnishee five clear days before the return day, he shall not be
liable for any further costs
incurred by the judgment creditor; but if it is
made less than five clear days before the return day, the court may, in its
discretion,
order the garnishee to pay such fees and costs, beyond the fees and
costs (if any) paid into court by the garnishee, as the judgment
creditor may
have properly incurred for work done before receipt of the notice of payment
into court, and in attending the court
to obtain the order for the same; and, if
the judgment creditor intends to apply for such costs, he shall give notice of
his intention
in his notice of acceptance of the sum paid in; or, where the time
of payment into court by the garnishee does not permit of notice
of acceptance
being given, he may apply for such costs without giving such
notice.
(5) Where the judgment
creditor has not given notice of acceptance in accordance with paragraph (3), he
may, nevertheless, accept
the money paid into court at any time before the case
is called on and opened, subject to the payment of any costs which may have
been
reasonably incurred by the garnishee since the date of payment into court, and
which may be allowed by the court. (6) In default
of acceptance by the judgment
creditor, the proceedings against the garnishee may proceed.
Payment out of court of money paid in by garnishee
36.
Subject to the following provisions, money paid into court by the garnishee and
accepted by the judgment creditor shall, on application
made by the judgment
creditor on the return day of the summons, be ordered to be paid out to
him:-
(a) Before such money is paid out, the court shall be satisfied, by evidence on oath or affidavit or otherwise, that the judgment creditor has not received payment of the amount payable under the judgment or order from any other source, and has not obtained an order for payment of such amount under any other garnishee proceedings; and, if it appears that he has received payment or obtained an order for payment of any part of such amount, so much only of the money paid into court shall be paid out to him as will, with the amount so received, or for payment whereof an order has been obtained, make up the full amount payable under the judgment or order, and any fees or costs allowed to the judgment creditor in the garnishee proceedings; and the balance of the money paid into court shall be dealt with as the court shall direct.
(b) If the judgment debtor appears and shows cause, according to the notice sent to him, why the money should not be paid out to the judgment creditor, the court may thereupon make such order as to the money paid into court, and as to costs, as may be just.
(c) If the judgment debtor alleges, or it is otherwise made to appear to the court, that the money paid into court belongs to or is claimed by some third person, or that any third person has or claims to have a lien or charge on it, the court may proceed in accordance with rule 40.
(d) If the judgment creditor does not intend to apply for an order against the garnishee for payment of any further costs, and obtains the consent in writing of the judgment debtor to the payment out of the money paid into court, he may apply for an order for payment out on any day earlier than the return day, and, on the production of such consent to the clerk of the court, the money shall, subject to paragraph (c) and to rule 40, be ordered to be paid out accordingly.
(e) The costs of any application for payment out under this rule, including the costs of any affidavit required under paragraph (a), or of obtaining any consent under paragraph (d), may be allowed as costs in the garnishee proceedings, and may be retained by the judgment creditor out of the money recovered by him in accordance with rule 42.
Order on return day, if garnishee does not appear or dispute liability
37.
If the garnishee does not, before the return day of the summons, pay into court
the amount admitted by him to be due from him to
the judgment debtor or so much
thereof as shall be sufficient to satisfy the amount in respect of which the
judgment or order is
unsatisfied, and the fees and barrister and solicitor's
costs (if any) endorsed on the garnishee summons, and does not, on the return
day dispute the debt due or claimed to be due from him to the judgment debtor,
or if he does not appear on the return day, the magistrate
may, if the judgment
debtor does not appear and show cause to the contrary, give judgment for the
judgment creditor against the garnishee
for the amount due from him to the
judgment debtor, or so much thereof as shall be sufficient to satisfy the
judgment or order, and
any costs allowed, and, in default of payment, execution
may issue to levy such amount; or, if the judgment debtor appears and shows
cause, the magistrate may make such order in the garnishee proceedings, and as
to the party by whom the costs of the proceedings
shall be paid, as may be
just.
Proceedings on return day, if garnishee disputes liability
38.
If no amount is paid into court, or the amount (if any) paid into court under
rule 35 is not accepted, and the garnishee appears
on the return day and
disputes his liability, the magistrate may, after hearing the judgment creditor
and the garnishee, and the
judgment debtor, if he appears, determine as to the
liability of the garnishee to pay any sum or further sum on account of the debt
claimed to be due from him to the judgment debtor, and as to the party by whom
the costs of the garnishee proceedings shall be paid,
and make such order as may
be in accordance with such determination; or he may, instead of giving judgment,
order that any issue
or question necessary for determining the liability of the
garnishee to pay any sum or further sum be tried or determined in any
manner in
which any issue or question in an action may be tried or
determined.
Certificate
where garnishee sued in court other
than
that in which
judgment obtained
39.
Where the court in which the garnishee is sued is not the court in which the
judgment or order upon which he is garnished was given
or made, the clerk of
such first-mentioned court shall send forthwith a certificate of the order of
his court to the court in which
such judgment or order was given or made, and
shall also send notice, from time to time, of any payment made on, before or
after
the return day.
Where
debt is stated to belong to a third
person,
or there
is a lien thereon
40.
Whenever, in proceedings to obtain an attachment of debts, it is alleged by the
garnishee or the debtor liable under the judgment
or order, or it is otherwise
made to appear to the magistrate, that the debt sought to be attached belongs to
or is claimed by some
third person, or that any third person has or claims to
have a lien or charge upon it, the magistrate may order such third person
to
appear and state the nature and particulars of his claim upon such debt. After
hearing the allegations of such third person, and
of any other person whom the
magistrate, by the same or any subsequent order, may order to appear, or in case
of such person not
appearing when ordered, the magistrate may decide in favour
of the person who obtained the judgment or order, or may order any issue
or
question to be tried or determined between such third person and the person who
obtained the judgment or order, and may bar the
claim of such third person or
make such other order as he may think fit, upon such terms, in all cases, with
respect to the lien
or charge (if any) of such third person, and to costs, as
the magistrate may think just and reasonable.
Payment by or execution levied on garnishee a discharge against debtor
41.
Payment made by or execution levied upon the garnishee, under any proceedings as
aforesaid, shall be a valid discharge to him, as
against the debtor liable under
the judgment or order, to the amount paid or levied (inclusive of any amount
allowed to the garnishee
for costs, and which he is by these Rules or by order
of court allowed to deduct from the amount due from him to the judgment debtor)
although such proceedings may be set aside, or the judgment or order
reversed.
Costs
42.
The costs of any application for an attachment of debts, and of any proceedings
arising from or incidental to such application,
shall be in the discretion of
the court. Any costs allowed to the judgment creditor which are not ordered to
be paid by the garnishee
personally shall, unless otherwise directed, be taxed
and retained by the judgment creditor out of the money recovered by him in
the
garnishee proceedings, in priority to the amount due under the judgment or order
obtained by him against the debtor.
Magistrate may refuse to interfere
43.
In proceedings to obtain an attachment of debts, the magistrate may, in his
discretion, refuse to interfere, where, from the smallness
of the amount to be
recovered, or of the debt sought to be attached, or otherwise, the remedy sought
would be worthless or vexatious.
Attachment of wages
44.
No order shall be made for the attachment of the wages of any servant, labourer
or workman.
IV.-Interpleader Summons
Interpleader proceedings
45.
If any claim shall be made to or in respect of any goods or chattels taken in
execution, or in respect of the proceeds or value
thereof, by any person, it
shall be lawful for a magistrate, upon application of the sheriff, to issue a
summons calling before the
court as well the party issuing process of execution
as the party making such claim, and the court shall hear and determine such
claim, and make such order between the parties in respect thereof, and of the
costs of the proceedings, as it shall think fit, and
shall also adjudicate
between such parties, or either of them and the sheriff, with respect to any
damage or claim of or to damages
arising or capable of arising out of the
execution of such process, and make such order in respect thereof, and of the
costs of the
proceedings, as to him shall seem fit; and such orders shall be
enforced in like manner as any order in any action brought in such
court, and
have a like force and effect; and upon the issue of the summons, any action
which shall have been brought in any court
in respect of such claim, or of any
damages arising out of the execution of such process, shall be
stayed.
Interpleader summons
46.
A summons issued pursuant to the provisions of rule 45 shall be in two
parts.
Appendix A. Forms 33 and 34
The respective parts of
such summons shall be according to the forms set out in Appendix A. The form
entitled "Interpleader Summons
(1)" shall be served upon the party issuing
process of execution, and the form entitled "Interpleader Summons (2)" shall be
served
upon the party making a claim. No fee shall be payable upon the issue of
an interpleader summons on the application of the sheriff
but the magistrate, at
the hearing, shall order by which party the court fees shall be paid and may
assess the value of the goods
for the purpose of any calculation of the court
fees which depends on such value. Any order made under this rule may be enforced
in the like manner as a judgment debt.
V.-General
Property in the custody of a public officer or in custadia legis
47.
Property in the custody or under the control of any public officer in his
official capacity shall be liable to attachment in execution
of a decree with
the consent of the Attorney-General, and property in custodia legis shall be
liable to attachment by leave of the
court. In such cases the order of
attachment must be served on such public officer, or on the clerk of the court,
as the case may
be.
ORDER XXXVII.-CIVIL APPEALS
I.-Notice of Intention to Appeal
Notice of intention to appeal
1.
Every appellant shall within seven days after the day on which the decision
appealed against was given, give to the respondent and
to the court by which
such decision was given (hereinafter in this Order called "the court below")
notice in writing of his intention
to
appeal:
Provided that such notice
may be given verbally to the court in the presence of the opposite party
immediately after judgment is
pronounced.
(Substituted
by Rules 29th November, 1946, and amended by Rules 6th November,
1950.)
II.-Security for Payment of Costs
Security
for payment of
costs.
Appendix A.
Form 35
2.-(1)
Upon receiving notice of intention to appeal the court below may in its
discretion order the appellant to give security, to
the satisfaction of the
court if the parties differ, in such sum as the court shall direct, either by
deposit, or by bond in Form
35 of Appendix A, for the payment of all such costs
as may be awarded to any respondent by the appellate
court.
(2) Where the security is
by bond-
(a) the bond shall, unless the court otherwise directs, be given to the respondent;
(b) if the appellant is unrepresented, the bond shall be prepared by the court.
(Substituted by Rules 6th November, 1950.)
III.-Grounds of Appeal
Grounds of appeal to be filed
3.-(1)
The appellant shall within one month from the date of the decision appealed
from, including the day of such date, file in the
court below the grounds of his
appeal, and shall cause a copy of such grounds of appeal to be served on the
respondent.
*(2) At the time the
appellant files the grounds of his appeal he shall deposit with the clerk of the
court below such sum as the
clerk shall consider sufficient to cover the fees
prescribed in Appendix B for the preparation, certification and copying of the
record.
* Inserted
by Rules 26th November, 1968.
Effect of failure to file grounds of appeal
4.
On the appellant failing to file the grounds of appeal within the prescribed
time, he shall be deemed to have abandoned the appeal,
unless the court below or
the appellate court shall see fit to extend the time.
Amendment of grounds of appeal
5.
The appellant may, at any time, by leave of the appellate court, amend or add to
the grounds of his appeal upon such terms, as to
payment of costs or otherwise,
as the appellate court may prescribe.
IV.-Execution Pending Appeal
Appeal not to operate as stay of execution
6.
Neither notice of intention to appeal nor an appeal shall operate as a stay of
execution or of proceedings under the judgment or
decision appealed from, except
so far as the court below or the appellate court may order, and no intermediate
act or proceeding
shall be invalidated except so far as the court below may
direct.
V.-Transmission of Record
Contents of record of appeal
7.
Within seven days from the filing of grounds of appeal, the court below shall,
without the application of any party, make up the
record of appeal, which shall
consist of the writ of summons, the pleadings (if any), all documents admitted
as evidence or tendered
as evidence and rejected, the notes of the evidence, the
judgment or order of the court below and the grounds of appeal. The record
of
appeal, when completed, shall be forwarded to the Chief Registrar or clerk of
the appellate court as the case may be.
Copies of the record of appeal
8.-(1)
The Chief Registrar or clerk of the appellate court, as the case may be, shall
cause a copy of the record of appeal to be made
at the cost of the appellant for
the use of the appellate court and shall, on the application and at the cost of
any party to the
appeal, furnish such party with a like copy or any part
thereof. (2) The copy of the record of appeal for the use of the appellate
court
shall be certified by the trial magistrate or, in his absence, by another
magistrate.
(Rules
3 to 8 substituted by Rules 29th November, 1946 and amended by Rules
26th
November, 1968.)
VI.-Proceedings in the Appellate Court
Control by appellate court while appeal pending
9.
After the record of appeal has been transmitted, until the appeal is disposed
of, the appellate court shall be in possession of
the whole proceedings as
between the parties to the appeal. Every application in the proceedings shall be
made to the appellate court,
and not to the court below, but any application may
be made through the court
below:
Provided that, in cases of
urgency, the court below may make any interim order to prevent prejudice to the
claims of any party pending
an appeal, but every such order may be discharged or
varied by the appellate court.
Additional security
10.
The appellate court may, where necessary, require security for costs or for
performance of the orders to be made on appeal, in addition
to what the court
below has thought fit to direct, and may make any interim order or grant any
injunction which the court below is
authorised to make or grant, and which may
be necessary.
Notice to parties in interlocutory appeals
11.
If the appeal is from an interlocutory order, the appellate court shall not
cause notice to be given to the parties of the day when
the appeal shall be
disposed of, unless, in the special circumstances, it thinks fit to do so; but,
where a party to the appeal notifies
to the appellate court his desire to
attend, he shall be at liberty to do so, and to be heard, at such time as the
appellate court
directs.
Notice to parties in appeals from final judgments
12.
If the appeal is from a final judgment or decision, the Chief Registrar or clerk
of the court of the appellate court, as the case
may be, shall give notice of
the date of hearing to the parties to the appeal.
Failure of appellant to appear
13.-(1)
If the appellant fails to appear, in person or by barrister and solicitor, when
his appeal is called on for hearing, the appeal
shall, on proof of service upon
him of the notice of the hearing, stand dismissed with
costs.
(2) When an appeal has been
dismissed owing to the non-appearance of the appellant or his barrister and
solicitor, the appellate court
may, if it thinks fit, and on such terms as to
costs or otherwise as it may deem just, direct the appeal to be re-entered for
hearing.
Failure of respondent to appear
14.
If the respondent fails to appear, in person or by barrister and solicitor, when
the appeal is called on for hearing, the appellate
court shall, on proof of the
service upon him of notice of the hearing, proceed to hear the appeal ex
parte.
Hearing in absence of parties
15.
Notwithstanding anything in rules 13 and 14 contained, if any party to the
appeal is desirous that the appeal should be disposed
of without his attendance,
either in person or by his barrister and solicitor, he shall notify the court
below, and the court below
shall so inform the Chief Registrar or clerk of the
court of the appellate court, as the case may be, at the time of transmitting
the record; and thereupon, if the appellate court sees fit, it may determine the
appeal in the absence of that
party.
If any party so notifies
the court below, it shall not be necessary for the Chief Registrar or clerk of
the court of the appellate
court, as the case may be, to give him notice in
accordance with rule 12.
New evidence on appeal
16.
It is not open, as of right, to any party to an appeal to adduce new evidence in
support of his original case; but, for the furtherance
of justice, the appellate
court may, where it thinks fit, allow or require new evidence to be adduced. A
party may, by leave of the
appellate court, allege any facts essential to the
issue that have come to his knowledge after the decision of the court below, and
adduce evidence in support of such allegations.
Interlocutory order not to prejudice decision on appeal
17.
No interlocutory order from which there has been no appeal shall operate so as
to bar or prejudice the appellate court from giving
such decision upon the
appeal as may seem just.
General powers of appellate court
18.
The appellate court may, from time to time, make any order necessary for
determining the real question in controversy in the appeal,
and may amend any
defect or error in the record of appeal, and may direct the court below to
inquire into and certify its finding
on any question which the appellate court
thinks fit to determine before final judgment in the appeal, and, generally,
shall have
as full jurisdiction over the whole proceedings as if the proceedings
had been instituted and prosecuted in the appellate court as
a court of first
instance, and may rehear the whole case, or may remit it to the court below to
be reheard, or to be otherwise dealt
with as the appellate court
directs.
Power of appellate court to give any decision or make any order
19.
The appellate court shall have power to give any judgment and make any order
that ought to have been made, and to make such further
or other orders as the
case may require, including any order as to costs. These powers may be exercised
by the appellate court, notwithstanding
that the appellant may have asked that
part of a decision may be reversed or varied, and may also be exercised in
favour of all or
any of the respondents or parties, although such respondents or
parties may not have appealed from or complained of the decision.
VII.-Enforcement of Judgments, Decrees or Orders on Appeal
Execution to be as directed by appellate court
20.
Any judgment, decree or order given or made by the appellate court may be
enforced by the appellate court or by the court below,
according as the
appellate court may consider most expedient and may direct.
Execution by court below in terms of certificate
21.
When the appellate court directs any judgment, decree or order to be enforced by
the court below, a certificate under seal of the
appellate court and the hand of
the Chief Registrar or clerk of the court of the appellate court, as the case
may be, setting forth
the judgment, decree or order of the appellate court shall
be transmitted to the court below and the latter shall enforce the judgment,
decree or order made by the appellate court in terms contained therein or in the
certificate of the Chief Registrar or clerk of the
court of the appellate court,
as the case may
be.
(Substituted
by Rules 6th October, 1959.)
VIII.-Fees Payable
Fees.
Appendix
B. Part 2
22.
The fees prescribed in Appendix B shall be charged in respect of the matters to
which they are respectively assigned, and shall
be paid to the Chief Registrar
or the clerk of the court of the appellate court or the court below, as the case
may be. The appellate
court or the court below may, on account of the poverty of
any party, although such party may not have been formally admitted to
sue or
defend as a pauper, or for other sufficient reasons, dispense, if it sees fit,
with payment of any fees.
ORDER XXXVIII.-RECOVERY OF COSTS BY LEGAL PRACTITIONERS
Bill to be sent before suit
1.
Subject to rule II, no practitioner shall commence any suit for the recovery of
any costs for any business done by him until the
expiration of one month after
he shall have delivered to the party to be charged therewith or sent by
registered letter to or left
for him at his office, place of business,
dwelling-house or last known place of abode, a bill of such costs, such bill
either being
signed by such practitioner (or, in the case of a partnership, by
any of the partners, either in his own name or in the name of the
partnership)
or being enclosed in or accompanied by a letter signed in like manner referring
to such bill.
Party charged may apply to court to tax bill
2.
Upon the party to be charged applying to the court, within such month as in rule
I mentioned, it shall be lawful for the court to
refer the bill and the demand
of the practitioner to be taxed and settled by the taxing master of the court,
and the court shall
restrain such practitioner from commencing any suit touching
such demand pending such reference.
Where no application to tax made within one month
3.
In case no application shall be made within one month, as in rule 2 provided, it
shall be lawful for such reference as aforesaid
to be made, either upon the
application of the practitioner making the demand, or upon the application of
the party to be charged,
with such directions and subject to such conditions as
the court making the reference shall think proper, and the court may restrain
such practitioner from commencing or prosecuting any suit touching such demand
pending such reference, upon such terms as shall be
thought
proper.
When application not to be granted
4.
No such reference as aforesaid shall be directed, upon application made by the
party to be charged, after judgment shall have been
obtained in any suit for the
recovery of the demand of such practitioner as aforesaid, or after the
expiration of twelve months after
any bill as aforesaid shall have been
delivered, sent or left as aforesaid, except under special circumstances to be
proved to the
satisfaction of the court to which application for such reference
shall be made.
Non-attendance of party at taxation
5.
Upon any reference as aforesaid, if either the practitioner or the party to be
charged, having due notice, shall refuse or neglect
to attend the taxation, the
taxing master may proceed to tax and settle the bill and demand ex
parte.
Cost of taxation
6.
If, on any reference as aforesaid, the party to be charged shall attend on
taxation, the cost of the reference shall (except as
in rule 7 provided) be paid
according to the event of such taxation: that is to say, if such bill, when
taxed, be less by a sixth
part than the bill delivered, sent or left, then such
practitioner shall pay such costs, and if such bill, when taxed, shall not
be
less by a sixth part than the bill delivered, sent of left, then the party to be
charged making such application or so attending
shall pay such
costs.
Form of order to be made, special cases
7.
Every order to be made for any reference as aforesaid shall direct the taxing
master to certify what shall be found to be due to
or from such practitioner in
respect of the bill and demand referred, including the costs of the
reference:
Provided
that-
(a) the taxing master may certify specially any circumstances relating to such bill or reference, and the court may make any such order as it may think right respecting the costs of such reference;
(b) where any reference is made under rule 4, the court may, if it thinks fit, give any special directions relative to the cost of such reference.
Proof of compliance with rules
8.
It shall not in any case be necessary in the first instance for any
practitioner, in proving a compliance with these rules, to prove
the contents of
the bill he may have delivered, sent or left, but it shall be sufficient to
prove that a bill for costs signed in
the manner provided or enclosed in or
accompanied by such letter as provided was duly delivered, sent or
left.
Completion of taxation
9.
Upon the completion of the taxation of any bill referred as aforesaid, the
result of the taxation, including the costs thereof,
shall be final and
conclusive as to the amount of the bill and costs. And it shall be lawful for
the court to order that judgment
be entered for the amount submitted, unless the
retainer is disputed, or to make such other order therein as the court may deem
proper.
Court may order delivery of bill
10.
It shall be lawful for the court to make an order for the delivery by any
practitioner of any bill of costs for business done by
him.
Where practitioner may begin suit within month of delivery of bill
11.
It shall be lawful for the court to authorise any practitioner to commence a
suit for the recovery of his costs against the party
chargeable therewith, and
also to refer his bill of costs and the demand of the practitioner thereupon to
be taxed and settled by
the taxing master of the court, although one month shall
not have expired from the delivery of such bill, on proof, to the satisfaction
of the court, that there is probable cause for believing that the party
chargeable is about to leave Fiji or to become a bankrupt
or to take any other
steps or to do any other act which, in the opinion of the court, would tend to
defeat or delay such practitioner
in obtaining judgment.
Applications to be by motion
12.
All applications made under this Order to refer any bill to be taxed and settled
shall be by motion in the matter of the practitioner
concerned.
Definitions
13.
In this Order, unless the context otherwise requires "practitioner" includes
barrister and solicitor and notary public, and the
executor, administrator and
assignee of a barrister and solicitor or notary public; and "costs" include
charges and disbursements.
APPENDIX A.
LIST OF FORMS
1. General Title of Writs
and Other Documents in a Suit. (O. I., r.
2.)
2. Writ of Summons. (O. VI, r.
2.)
3. Affidavit of
Service.
4. Summons to a
Witness.
5. Subpoena Duces
Tecum.
6. Notice to Admit and Inspect.
(O. XV, r. 2.)
7. Notice to Admit
Facts. (O. XV, r. 2.)
8. Affidavit on
Making Application for Security from Defendant. (O. XX, r.
1.)
9. Warrant to Arrest an Absconding
Defendant. (O. XX, r. 2.)
10. Order on
Defendant to Find Bail. (O. XX, r.
3.)
11. Bail Bond by Defendant and
Sureties. (O. XX, r. 3.)
12. Warrant
to Attach Property before Judgment. (O. XXI, r.
4.)
13. Order for Delivery of
Interrogatories. (O. XXV, r. 1.)
14.
Order for Affidavit as to Documents. (O. XXV, r.
6.)
15. Affidavit as to Documents. (O.
XXV, r. 6.)
16. Notice to Produce
(General Form). (O. XXV, r. 8.)
17.
Formal Decree. (O. XXXII, r. 4.)
18.
Affidavit by Defendant in Support of an Interpleader Summons in an Action. (O.
XXXV, r. 2.)
19. Affidavit by
Applicant in Support of an Originating Interpleader Summons. (O. XXXV, r.
2.)
20. Interpleader Summons in an
Action. (O. XXXV, r, 5.)
21. Notice to
Plaintiff of Interpleader Summons. (O. XXXV, r.
5.)
22. Originating Interpleader
Summons. (O. XXXV, r. 5.)
23. Writ of
Fieri Facias. (O. XXXVI, r. 2.)
24.
Judgment Summons. (O. XXXVI, r.
9.)
25. Judgment Summons on Firm. (O.
XXXVI, r. 12.)
26. Order of Commitment
on a Judgment or Order. (O. XXXVI, r.
20.)
27. Order of Commitment on a
Judgment or Order against a Firm. (O. XXXVI, r.
20.)
28. Affidavit for Leave to Summon
Garnishee. (O. XXXVI, r. 30.)
29.
Summons to Garnishee. (O. XXXVI, r.
30.)
30. Notice to Judgment Debtor of
Issue of Garnishee Summons. (O. XXXVI, r.
34.)
31. Notice to Judgment Creditor
of Payment into Court by Garnishee. (O. XXXVI, r.
35.)
32. Notice to Judgment Debtor of
Payment into Court by Garnishee. (O. XXXVI, r.
35.)
33. Interpleader Summons (1). (O.
XXXVI, r. 46.)
34. Interpleader
Summons (2). (O. XXXVI, r. 46.)
35.
Bond for Costs on Appeal. (O. XXXVII, r.
2.)
36. Warrant for Prisoner to Give
Evidence.
37. Certified Copy of
Proceedings.
38. Default Judgment. (O.
VI, r. 10.)
1.
GENERAL TITLE OF WRITS AND OTHER DOCUMENTS IN A SUIT
In
the Magistrates' Court at
C. A. No. of
19
Between -
A.B., Plaintiff,
and
C.D., Defendant.
or
In the matter of G.H., etc.
2.
WRIT OF SUMMONS
(General Title)
To
of
the above-named
Defendant.
YOU are hereby
commanded in Her Majesty's name to attend this Court at the Court House, , on
the day of , 19 , at o'clock
in the forenoon then and there to answer a
suit by of against you.
ISSUED
at the day of 19
Signature
of Magistrate or Clerk
of the Court.
PARTICULARS OF CLAIM
The Plaintiff
Claims:
Sum claimed
...............................
Court
Fees
...................................
Bailiff's
Fees
................................
Solicitors
Costs (undefended scale)
............
Total..........................
N.B.-If
the above amount is paid days before the return day, you will have no further
costs to pay.
Signature of
Plaintiff or his
Solicitor.
Memorandum to be
endorsed on the Writ
N.B.-This writ
shall be served clear days before the date of
hearing.
If the defendant wishes to
contest this claim he must comply with the provisions of Order VI rules 6, 7 and
8.
ORDER
VI
Filing of notice
of intention to defend
6. If the party served
with the writ of summons deliver to the clerk of the court, and serve on the
plaintiff, not less than three
days before the day fixed for hearing, a notice
in writing that he intends to defend the suit, then and in such case the suit
shall
be entered for hearing on the aforesaid date for hearing. Special leave to
defend, where foregoing rule not complied
with.
7. When any defendant
neglects to deliver and serve the notice of defence, as prescribed by rule 6,
within the time limited by the
said rule, the court may, at any time before
judgment is entered, on an affidavit or, if the court sees fit, on oral evidence
disclosing
a defence on the merits and satisfactorily explaining his neglect,
let in the defendant to defend, upon such terms as the court may
think just.
Disposal of undefended suit in action for liquidated
demand
8. In the case of
liquidated demands only, where any defendant neglects to deliver and serve the
notice of defence prescribed by rule
6 within the time limited by the said rule,
and is not let in to defend in accordance with the provisions of rule 7, then
and in
such case the plaintiff may enter final judgment against that
defendant.
3.
AFFIDAVIT OF
SERVICE
Plaintiff
Defendant
I,
make
oath and say as follows:-
1.I did
on the day of ,19 , at
(a)
personally serve (b) the
within-named defendant (or as the case may be) with a true copy of the within
writ of summons in this action
which appeared to me to have been regularly
issued out of the said Court against the within-named defendant (or defendants)
and which
was dated the day of ,
19
2. At the time of the said
service the writ and a copy thereof were subscribed in the manner and form
prescribed by the rules of the
said
Court.
SWORN by the
said
at on the}
...........................
day of ,19 }
Before
me
Magistrate or Commissioner for
Oaths.
(a) Place where service
effected.
(b) Name of defendant or
person served.
No.
of
In the Magistrate's
Court
WRIT OF
SUMMONS
This writ was issued
by
4. SUMMONS
TO A WITNESS
(General Title)
To
You
are hereby commanded in Her Majesty's name to attend in person before this Court
at on the day of and so from day to day
till the above cause be tried, to
testify all that you know in the said
cause.
You are summoned at the
instance of .
Issued at the
day of , 19
(Signature of
Clerk of the
Court.)
5.
SUBPOENA DUCES TECUM
(General Title)
To
You
are hereby commanded in Her Majesty's name to attend in person before this Court
at on the day of and so from day to day
till the above cause be tried, to
testify all that you know in the said cause and also to bring with you and
produce at the time
and place aforesaid
.
Issued at the day of ,
19
(Signature of Clerk of the
Court.)
6.
NOTICE TO ADMIT AND INSPECT
(General Title)
Take notice that the
plaintiff (or defendant) in this action proposes to adduce in evidence the
several documents hereunder specified,
and that the same may be inspected by the
defendant (or plaintiff) or his barrister and solicitor at on the day of ,
19 , between
the hours of and , and the defendant (or plaintiff) is hereby
required within forty-eight hours from the last-mentioned hour
to admit, saving
all just exceptions to the admissibility of all such documents as evidence in
this action, that such of the said
documents as are specified to be originals
were respectively written, signed or executed as they purport respectively to
have been;
that such as are specified as copies are true copies, and that such
documents as are stated to have been served, sent or delivered
were so served,
sent or delivered
respectively.
Dated at the day
of , 19
(Signature of Plaintiff
or his Barrister and Solicitor
or of
Defendant or his Barrister and
Solicitor.)
To
Originals
Copies
Description
of Document
Original or Duplicate
served,
sent or delivered, when,
how
and by
whom
7. NOTICE
TO ADMIT FACTS
(General Title)
Take notice that the
plaintiff (or defendant) in this action requires the defendant (or plaintiff) to
admit, for the purposes of this
action only, the several facts respectively
hereunder specified, and the defendant (or plaintiff) is hereby required, not
later than
three clear days before the return day, to admit the said several
facts, saving all just exceptions to the admissibility of such
facts as evidence
in this action.
Dated at the
day of , 19
(Signature of
Plaintiff or his Barrister and
Solicitor
or of Defendant or his
Barrister and
Solicitor.)
To
The
facts the admission of which are required
are:
8.
AFFIDAVIT ON MAKING APPLICATION FOR SECURITY FROM DEFENDANT
(General Title)
I, of , the
above-named plaintiff, make oath, and say as
follows:-
1. , the above-named
defendant, is justly and truly indebted to me in dollars for (state ground of
action).
2. I have caused a writ
of summons to be issued out of this Court at my suit against the said
defendant.
3. The said defendant
is about to leave Fiji, if he is not immediately apprehended, as appears from
the following circumstances (state
the circumstances from which the defendant's
intention to abscond is inferred) (or The said defendant with intent to obstruct
or
delay execution of any decree that may be passed against him in the said suit
has disposed of (or removed) his property from Fiji
as follows) (state
particulars respecting the property removed or disposed of, and the manner of
disposal):
Sworn by the said at
on
the day of
,19.
Before
me
9. WARRANT
TO ARREST AN ABSCONDING DEFENDANT
(General Title)
To the
Sheriff,
You are hereby commanded
in Her Majesty's name to take and arrest the body of of , the above-named
defendant, and him to deliver
to the keeper of the prison at there to be kept
until he shall have given bail or security by deposit or otherwise to the
satisfaction
of the said Court, for his appearance at any time when called upon
while the above suit is pending, and until execution or satisfaction
of any
decree that may be passed therein against him, or until he shall otherwise be
lawfully delivered from custody under the said
arrest, and also that you bring
and have the said before the Court forthwith after the execution of this writ,
in order that he may
show cause touching the matter of such bail or security,
and have there then this
writ.
Dated at the day of ,
19
(Signature of
Magistrate)
10.
ORDER ON DEFENDANT TO FIND BAIL
(General Title)
Whereas of , the
above-named plaintiff, hath proved that there is probable cause for believing
that of is about to leave Fiji
(or that he has removed from Fiji his property,
or part thereof), and that by reason thereof the execution of any decree which
may
be made against the said is likely to be obstructed or
delayed;
And whereas the said ,
having been allowed and required to show cause why he should not give bail as
afterwards herein ordered, has
failed to show any such sufficient
cause:
I do hereby order that the
said do find security, by deposit or otherwise, to the satisfaction of the
Court, for his appearance at
any time when called upon while the above suit is
pending, and until execution or satisfaction of the decree of the Court, in case
judgment be given against him, and further that the said be committed to the
prison at until the decision of the above-mentioned
suit or execution of the
decree, if judgment shall be given against the said , or until he comply with
this order.
Dated at the day
of , 19
(Signature of
Magistrate.)
11.
BAIL BOND BY DEFENDANT AND SURETIES
(General Title)
Know all men by these
presents, that we (the defendant arrested) of , of , and of , are held and
firmly bound to of in the sum of
dollars of lawful money, to be paid to the said
, his executors, administrators or assigns, for which payment well and truly to
be
made, we bind ourselves, and each of us for himself, in the whole, our and
every of our heirs, executors and administrators, firmly
by these
presents.
Sealed with our
seals.
Dated the day of ,
19
Whereas a suit has been brought
in the said Court at , wherein is plaintiff, and the above-bounden is
defendant;
And whereas the said
hath been ordered to give bail to the satisfaction of the Court for his
appearance at any time when called upon
while the suit is pending, and until
execution or satisfaction of the decree of the Court in case judgment therein be
given against
him;
And whereas the
above-named and, at the request of the said , have agreed to enter into this
obligation for the purposes
aforesaid:
Now the condition of
this obligation is such, that if the said shall appear when called upon as
aforesaid, or if in default of such
appearance as aforesaid, the said and ,
any or either of them, shall pay unto the said or his executors, administrators
or assigns,
any sum of money that may be adjudged against the said , the
defendant in the suit, with costs, then this obligation shall be void,
otherwise
shall remain in full
force.
Signed, sealed and
delivered in the 1 (L.S.)
presence
of \
(L.S.)
(L.S.)
(Signature
of the Clerk of the
Court.)
12.
WARRANT TO ATTACH PROPERTY BEFORE JUDGMENT
(General Title)
To the
Sheriff.
Whereas it has been shown
to the satisfaction of this Court that of , the defendant in the above suit,
with intent to obstruct or
delay the execution of any decree which may be passed
against him therein, is about to dispose of or remove out of Fiji his goods
and
chattels:
You are hereby commanded
to seize, attach and take into your hands the real and personal property of the
defendant (or certain property
specified to the value of $ ), and to hold the
same until the further order of the Court; and you are also commanded forthwith
after
the execution of this writ to return the same into the Court, with the
place, time and particulars of execution endorsed
thereon.
Dated at the day of
, 19
(Signature of
Magistrate.)
13.
ORDER FOR DELIVERY OF INTERROGATORIES
(General Title)
Upon hearing it is ordered
that the on payment of the sum of $ into court (or without giving security) be
at liberty within days
from the date of this order to deliver to the
interrogatories in writing and that the said do answer the interrogatories by
affidavit
and return such answer to me for filing and deliver a copy thereof to
the within days from the service of this order {add, where
payment into court
ordered, and a copy of the receipt for payment into court] upon him and that the
costs of this application
be
.
Dated at the day of ,
19
(Signature of
Magistrate.)
14.
ORDER FOR AFFIDAVIT AS TO DOCUMENTS
(General Title)
Upon hearing it is ordered
that on payment by of the sum of $ into court (or without security given by
the ) the do within
days from the service of this order [add, where
payment into court ordered, and a copy of the receipt for the payment into
court]
upon him, answer on affidavit stating what documents are or have been in
possession or power relating to the matters in question
in this action and
return such affidavit to me for filing and deliver a copy thereof to the and
that the costs of this application
be
Dated at the day of ,
19
(Signature of
Magistrate.)
15.
AFFIDAVIT AS TO DOCUMENTS
(General Title)
I, the above-mentioned,
make oath and say as follows:-
1.
I have in my possession or power the documents relating to the matters in
question in this action set forth in the first and second
parts of the First
Schedule hereto.
2. I object to
produce the said documents set forth in the second part of the said First
Schedule hereto.
3. That [here
state upon what grounds the objection is made and verify the facts as far as may
be].
4. I have had but have not
now in my possession or power the documents relating to the matters in question
in this action set forth
in the Second Schedule
hereto.
5. The last-mentioned
documents were last in my possession or power on [state
when].
6. That [here state what
has become of the last-mentioned documents and in whose possession they now
are].
7. According to the best of
my knowledge, information and belief I have not now, and never had in my
possession, custody or power
or in the possession, custody or power of my
barrister and solicitor or of any other person on my behalf any deed, account,
book
of account, voucher, receipt, letter, memorandum, paper or writing or any
copy of or extract from any such document or any other
document whatsoever
relating to the matter in question in this action or any of them of wherein any
entry has been made relative
to such matters or any of them other than and
except the documents set forth in the said First and Second Schedules
hereto.
Sworn by the said at
on
the day of
,19
Before me
First
Schedule
Second Schedule
16.
NOTICE TO PRODUCE (GENERAL FORM)
(General Title)
Take notice that you are
hereby required to produce and show to the Court on the trial of this action all
books, papers, letters,
copies of letters and other writings and documents in
your custody, possession or power containing any entry, memorandum or minute
relating to the matters in question in this and particularly [specify
them].
Dated at the day of
, 19
(Signature of Plaintiff or
his Barrister and Solicitor or of
Defendant
or his Barrister and
Solicitor.)
To
17.
FORMAL DECREE
(General Title)
It is decreed in the above
suit that the above-named plaintiff do recover from the above-named defendant
the sum of $ together with
$ for costs, and the said defendant is hereby ordered
to pay the sum of $ forthwith (or by the following
instalments).
Dated
at
Debt
....$
Costs
....$
the day of ,
19
(Signature of
Magistrate.)
18.
AFFIDAVIT BY DEFENDANT IN SUPPORT OF AN INTERPLEADER SUMMONS IN AN
ACTION
(Substituted
by Rules 20th October, 1961.)
(General Title)
I, of (a person in
the employment of) the abovenamed defendant make oath and say as
follows:-
1. This action has been
brought by the plaintiff for
2.
Claims adverse to that of the abovenamed plaintiff have been received by the
defendant from of and of to the subject
matter of this
action.
3. The defendant claims no
interest in the subject matter in dispute other than for costs and charges and
does not collude with either
or any of the said
claimants.
4. The defendant is
willing to bring into Court or to pay or dispose of the subject matter in
dispute as the Court may
direct.
Sworn by the
said ,
at on the day of , 19
.
19. AFFIDAVIT
BY APPLICANT IN SUPPORT OF AN ORIGINATING INTERPLEADER
SUMMONS
(Substituted
by Rules 20th October, 1961.)
(General Title)
I, of (a person in
the employment of) the abovenamed applicant make oath and say as
follows:-
1. Claims have been
received by the applicant
from:
(i) of ;
and
(ii)
of ,
to
(a)
2. The applicant claims no
interest in the subject matter in dispute other than for costs and charges and
does not collude with either
of the said
claimants.
3. The applicant is
willing to bring into Court or to pay or dispose of the subject matter in
dispute as the Court may
direct.
Sworn by the
said
at this day
of
A Commissioner for Oaths.
(a) Give brief description
of the property together with its
value
20.
INTERPLEADER SUMMONS IN AN
ACTION
(Inserted
by Rules 21st August, 1958, and amended by Rules 20th October,
1961.)
(General Title)
WHEREAS the defendant in
this action (copy of the summons and particulars wherein is hereto annexed) has
filed an affidavit (copy
whereof is also hereto annexed) stating that he has
received a claim from you to the subject matter of this action, (or, to part
of
the subject matter of this
action).
You are therefore
summoned to appear at a Court to be holden at on the day of , 19 , at
the hour of in the noon when judgment
will be given determining the rights
and claims of the plaintiff, the defendant and
yourself.
Dated this day of ,
19
Clerk of the Court.
To of (here insert
name, address and occupation of the person to be
summoned).
Note.-You are required
within eight days after the service of this summons on you, inclusive of the day
of service, to file in the
Court either a notice that you make no claim, or
particulars staling the grounds of your claim to the subject matter of the
action
and to serve a copy upon each of the parties to this
action.
21.
NOTICE TO PLAINTIFF OF INTERPLEADER
SUMMONS
(Inserted
by Rules 21st August, 1958.)
(General Title)
Whereas the defendant in
this action has filed an affidavit (copy whereof is hereto annexed) staling that
he has received a claim
from of to the subject matter in this action (or, to
part of the subject matter of this
action).
Take notice that a
summons has been issued to the said to appear at a Court to be holden at on
the day of , 19 , at the hour
of in the noon, (and that the hearing of
this action has been adjourned to the same place, day and hour) when judgment
will be
given determining the rights and claims of yourself, the defendant and
the said .
To the
Plaintiff
Note.-The claimant is
required within eight days after the service of the said summons on him,
inclusive of the day of service, to
file in the Court and to serve a copy upon
you and the defendant either a notice that he makes no claim, or particulars
stating the
grounds of his claim to the subject matter in the action, (and upon
the filing of such notice or particulars a copy will be sent
to you and a copy
to the
defendant).
22.
ORIGINATING INTERPLEADER
SUMMONS
(Inserted
by Rules 21st August, 1958.)
(General Title)
Whereas of has filed
an affidavit (a copy whereof is hereto annexed) stating that he has received
adverse claims from of
and of to (here state the debt or other
thing in action, money or goods to which the adverse claims are
made).
You are therefore summoned
to appear at a Court to be holden at on the day of , 19 , at the hour of
in the noon when judgment
will be given determining the rights and claims of
the said and the said .
Dated
this day of , 19
To the
Claimants.........
Clerk of the Court.
Note.-You are each
required within eight days after the service of this summons on you, inclusive
of the day of service, to file in
the Court either a notice that you make no
claim, or particulars stating the grounds of your claim and serve a copy upon
each of
the other
parties.
23.
WRIT OF FIERI FACIAS
(General Title)
To the Sheriff of Fiji,
Greeting:
You are commanded in Her
Majesty's name that of the goods and chattels of C.D. within Fiji you cause to
be made the sum of $ and also
interest thereon at the rate of per cent per
annum from the day of , (a) which said sum of money and interest were
lately
in the said Court in a certain suit (or in a certain matter there
depending intituled "In the matter of E.F., etc., or as the case
may be) wherein
A.B. is plaintiff and C.D. is defendant by a decree (or order as the case may
be) of the said Court bearing date
the day of , adjudged (or ordered, as
the case may be) to be paid by the said C.D. to A.B. together with $ for
costs. And
that of the goods and chattels of the said C.D. within Fiji you
further cause to be made the said sum of $ costs together with
interest
thereon at the rate of 5 per cent per annum from the day of , (a) and that
you have that money and interest before
the said Court immediately after the
execution hereof to be paid to the said A.B. in pursuance of the said decree (or
order, as the
case may be). And in what manner you shall have executed this writ
make appear to the Court immediately after the execution thereof.
And have there
then this writ.
Dated at this
day of , 19
(Signature of Magistrate.)
Indorsement
Levy
$ and $ for costs of execution, etc., and also interest on $ at 5 per cent
per annum from the day of , 19 , (b) until
payment; besides sheriff's
poundage, officer's fees, costs of levying, and all other legal incidental
expenses.
This writ was issued by
of
The is a and resides
at
Items
Amount
for which Judgment was obtained ............
$
Costs awarded by Court
..........................................
$
Costs of writ of execution
.......................................
$
Interest
.....................................................................
$
Sheriff's fees (received and
entering writ of execution,
precept to
bailiff and seizure fee) .............................
$
N.B.-The goods are not to be
sold until after the end of days next following the day on which they are seized
unless they are of a
perishable nature or on the request of the party whose
goods are seized.
(a) Day of decree or order, or day on which money directed to be paid, or day from which interest is directed by the order to run, as the case may be.
(b) Date of issue of writ of fieri facias.
24.
JUDGMENT SUMMONS
(General Title)
Whereas the plaintiff
obtained a judgment (or order) against the above-named defendant in this Court
(or in the Magistrates' Court
at on the day of , 19 , for the payment of
$ and costs, forthwith (or on the day of ,19 , or by instalments of $
for every days), and subsequent costs have been incurred in pursuance thereof
amounting to $ ;
And whereas
default has been made in payment of the sum of $ payable in pursuance of the
said judgment (or order), and the plaintiff
has required this judgment summons
to be issued against you the
defendant;
You are hereby summoned
to appear personally in this Court at on the day of , 19 , at o'clock
in the noon to be examined
on oath by the Court touching the means you have or
have had since the date of the said judgment (or order) to satisfy the sum
payable
in pursuance of the said judgment (or order), and also to show cause why
you should not be committed to prison for such
default.
Dated at the day of
, 19
(Signature of Magistrate or Clerk of the Court.)
To the
Defendant.
$
c
Amount of judgment (or order) and
costs
..............................
Add:
Costs of previous judgment
summonses,
hearings and commitments
(if any) since date of
judgment (or
order) allowed by the Magistrate
........................
Deduct:
Paid
into court:
.............................................................
Otherwise
than under execution
.......................................................
Under
execution (After deducting costs
of
execution)
.........................................................................................
Amounts
in respect of which an order
of
commitment has been made
since
date of judgment (or order), and
in
respect of which defendant has
been
or may be imprisoned
.......................................................................
Amounts
which were not required to have
been
paid before the date of this
summons
...........................................................................................
Sum
in payment of which defendant has
made
default.......................................................................................
Costs
of this summons
......................................................................
Note;-In
default of your attendance you will be liable to be proceeded against by warrant
to compel your attendance and to pay the
costs of the warrant whether it be
executed or
not.
25.
JUDGMENT SUMMONS ON JUDGMENT OR ORDER AGAINST A FIRM, OR A PERSON CARRYING ON
BUSINESS IN A NAME OTHER THAN HIS OWN
(General Title)
To (a)
of
Whereas the plaintiff
obtained judgment (or an order) against the defendant in the name of (b) of
above described in this Court (or
in the Magistrates' Court at ) on the day
of , 19 , for the sum of $ (and costs) and there is now due and payable
under the
said judgment (or order) from the said (b) to the said plaintiff the
sum of $ ;
And whereas the
plaintiff has filed an affidavit in this Court a copy whereof is hereto annexed
wherein it is alleged that you the
above-named (a) are liable as one of the
partners in (or sole member of) the said firm of (b) (or as the person carrying
on business
on your own behalf in the name of (b)) to pay the sum payable under
the said judgment (or order):
You
are hereby summoned to appear personally in this Court at on the day of ,
19, at the hour of in the noon, to be examined
on oath by the Court touching
the means you have or have had since the date of the said judgment (or order) to
pay the said sum of
$ now due and payable under the said judgment (or order);
and also to show cause why you should not be committed to prison for default
in
payment of the said sum;
And take
notice that if you deny that you are liable as one of the partners in (or the
sole member of) the said firm of (or as
the person carrying on business on
your own behalf in the name of ) to pay the sum payable under the said
judgment (or order)
you must appear at this Court on the day and at the hour
above-mentioned, and that in default of your so appearing you will be deemed
to
admit your liability as aforesaid to pay the amount due and payable under the
said judgment (or order).
Dated at
the day of , 19
(Signature of Magistrate or Clerk of the Court.)
$
c
Amount remaining due under judgment
(or order) .....................
Costs
of this summons
........................................................................
Total
sum due
(a) Insert the name of
person alleged to be a partner in the firm or sole member thereof or of the
person alleged to be carrying on
business in a name other than his
own.
(b) Insert name as in the
original summons with any amendment made by the
Court.
26.
ORDER OF COMMITMENT ON A JUDGMENT OF ORDER OF A COURT
(General Title)
To the Sheriff and the
Controller of Prisons.
Whereas the
plaintiff obtained judgment (or an order) against the defendant in this Court
(or in the Magistrates' Court at ) on
the day of , 19 , for the payment
of $ for debt (or damages) and costs, and subsequent costs have been incurred
in pursuance
thereof amounting to
$
And whereas the defendant has
made default in payment of $ payable in pursuance of the said judgment (or
order);
And whereas a summons was
at the instance of the plaintiff duly issued out of this Court by which the
defendant was required to appear
personally at this Court on the day of ,19
, to be examined on oath touching the means he then had or had had since the
date
of the said judgment (or order) to satisfy the sum then due and payable in
pursuance of the said judgment (or order) and to show
cause why he should not be
committed to prison for such default, which summons has been proved to this
Court to have been personally
and duly served on the
defendant;
And whereas at the
hearing of the said summons it has been proved to the satisfaction of the Court
that the said defendant now has
(or has had since the date of the said judgment
(or order)) the means to pay the sum due and payable in pursuance of the said
judgment
(or order) and refuses (or neglects or has refused or neglected) to pay
the same, and the said defendant has shewn no cause why he
should not be
committed to prison:
Now therefore
it is ordered that for such default as aforesaid the said defendant shall be
committed to prison for , unless he shall
sooner pay the sum stated below as
that upon payment of which he is to be discharged or an order for his discharge
shall be granted
pursuant to rule 19 of Order XXXVI. These are therefore to
require you the said to take the said defendant and to deliver him to
the
officer in charge of the prison and you instruct the said officer to receive the
said defendant and him safely keep in the said
prison for from the arrest under
this order or until he shall be sooner discharged by due course of
law.
Dated at the day of ,
19
(Signature of Magistrate.)
$
c
Sum in payment of which defendant
had made default at time of
issue of
judgment
summons........................................................................
Fees
and costs on issue and hearing of judgment
summons.......................
Deduct
amount paid into court since issue of judgment summons
.........
Fee on issue of this order
............................................................................
Sum
on payment of which the debtor is to be discharged
...........................
27.
ORDER OF COMMITMENT ON A JUDGMENT SUMMONS ON A JUDGMENT OR ORDER AGAINST A FIRM,
OR A PERSON CARRYING ON BUSINESS IN A NAME OTHER
THAN HIS OWN
(General Title)
To the Sheriff and the
Controller of Prisons.
Whereas the
plaintiff obtained a judgment (or order) against the defendant by and in the
name of (a) above described in this Court
(or in the Magistrates' Court at )
on the day of 19 , for the sum of $ (and costs), and there is now due and
payable under
the said judgment (or order) from the said defendant to the said
plaintiff the sum of $ ;
And
whereas the said plaintiff having filed an affidavit in this Court, wherein it
was alleged that (b) was liable as one of the partners
in (or the sole member
of) the said firm of (or as the person carrying on business on his own behalf
in the name of ) to pay
the sum payable under the said judgment (or order) a
summons was, at the instance of the said plaintiff, duly issued out of this
Court, by which the said was required to appear personally at this Court on
the day of ,19 , to be examined on oath touching
the means he had then or
had had since the date of the said judgment (or order) to pay the sum due and
payable under the said judgment
(or order), and also to show cause why he should
not be committed to prison for default in payment of the said sum, and notice
was
thereby given to the said that if he denied that he as liable was one of
the partners in (or the sole member of) the said firm
of (or as the person
carrying on business on his own behalf in the name of ) to pay the sum
payable under the said judgment (or
order) he must appear at this Court on the
day above mentioned, and that in default of his so appearing he would be deemed
to admit
his liability as aforesaid to pay the amount due an payable under the
said judgment (or order);
And
whereas the said summons came on for hearing this day, and the said summons has
been proved to this Court to have been personally
and duly served on the
said ;
And whereas the said did
not appear at the hearing of the said summons; (or And whereas the said appeared
at the hearing of the said
summons, and admitted his liability as one of the
partners in (or the sole member of) the said firm of (or as the person carrying
on business on his own behalf in the name of ) to pay the sum payable under
the said judgment (or order);) (or And whereas the
said appeared at the hearing
of the said summons, and denied liability but proof has been made to the
satisfaction of the Court that
the said is liable as one of the partners in (or
the sole member of) the said firm of (or as the person carrying on business on
his own behalf in the name of ) to pay the said
sum;)
And whereas at the hearing
of the said summons it has now been proved to the satisfaction of the Court that
the said now has (or has
had since the date of the said judgment (or order)) the
means to pay the sum due and payable under the said judgment (or order),
and
refuses (or neglects or has refused or neglected) to pay the same and the said
has shewn no cause why he should not be committed
to
prison;
Now therefore it is
ordered that for such default as aforesaid the said shall be committed to prison
for , unless he shall sooner
pay the sum stated below as that upon payment of
which he is to be discharged or an order for his discharge shall be granted
pursuant
to rule 19 of Order
XXXVI.
These are therefore to
require you the said and others to take the said and to deliver him to the
officer in charge of the prison
and you instruct the said officer to receive the
said and him safely keep in the said prison for from the arrest under this order
or until he shall be sooner discharged by due course of
law.
Dated at the day of ,
19
(Signature of Magistrate.)
28.
AFFIDAVIT FOR LEAVE TO SUMMON GARNISH
(General Title)
Garnishee.
I,
A.B. of (or I, C.D. of , barrister and solicitor to) the above-named
plaintiff, make oath and say:
1.
That I (or A.B.) on the day of recovered judgment (or obtained an order) in
the Court holden at in this action (or matter)
against the above-named
defendant, for the sum of $ , for debt (or damages) and
costs.
2. That the said judgment
(or order) is still wholly unsatisfied (or is unsatisfied as to the sum of $
).
3. That I am informed and
verily believe that the above-named garnishee of is indebted to the defendant
in the sum of (about) $
.
4. That
the garnishee is in respect of the said debt to the defendant within this
jurisdiction of this Court and could be (or has
been) sued in respect thereof in
this Court on the following ground [state grounds of
Jurisdiction],
Sworn by the
said .
at on the day of ,19
.
Before
me
29. SUMMONS
TO GARNISHEE
(General Title)
Whereas the plaintiff at a
Court holden at on the day of , 19 , recovered judgment (or obtained an
order) against the defendant
who resides at and is a [description of trade or
calling] for the sum of $ for debt (or damages) and costs which judgment (or
order)
remains unsatisfied as to the sum of $
;
And whereas the plaintiff has
filed an affidavit staling that you are indebted to the defendant in the sum of
$
You are hereby summoned to
appear at a Court to be holden at on the day of , 19 , at the hour of
in the noon, to show cause
why an order should not be made upon you for the
payment to the plaintiff, of the amount of the debts due and payable from you to
the defendant, or so much thereof as will satisfy the debt due under the said
judgment (or order) and the plaintiff's costs of this
proceeding;
And take notice that
from and after the service of this summons upon you all such debts are attached
to answer the said judgment (or
order);
And further take notice
that if you pay to the Clerk of the Court the amount of such debts, or so much
thereof as will satisfy the
debts due under the said judgment (or order) (and
the fees and barristers and solicitor's costs endorsed on this summons), five
clear
days before the day upon which you are required to appear, you will incur
no further costs.
Dated at the
day of , 19
(Signature of Clerk of the Court.)
To
Amount
remaining due under judgment (or order)
..............
Court fees, including
hearing fee
..............................................
Barrister
and solicitor's
costs.....................................................
Total
amount..............................................................................
$
c
This summons is issued at the
instance of , the above-named plaintiff (or barrister and solicitor for the
above-named
plaintiff).
30.
NOTICE TO JUDGMENT DEBTOR OF ISSUE OF GARNISHEE SUMMONS
(General Title)
and
Garnishee.
Take
notice that the garnishee summons, a copy of which is hereunto annexed, was
issued on the day of , and that if you have any cause
to show why the Court
should not order , the garnishee named in the said summons, to pay to the
judgment creditor the debt alleged
to be due from the garnishee to you, or so
much thereof as may be sufficient to satisfy the sum due to the judgment
creditor from
you, with the costs of the garnishee proceedings, you must appear
at this Court on the day of at the hour of in the noon,
and show such
cause accordingly.
Dated at the
day of , 19
(Signature of Clerk of the Court.)
31.
NOTICE TO JUDGMENT CREDITOR OF PAYMENT INTO COURT BY
GARNISHEE
(1)
WHERE WHOLE CLAIM PAID IN
(General Title)
and
Garnishee.
Take
notice that the garnishee has paid into Court the full amount of your claim in
these proceedings, together with your costs
therein.
The amount paid into
Court will on application made by you on the day of at the hour of in the noon
be ordered to be paid out to you,
unless cause is shewn to the contrary; or you
may apply for payment out on any earlier day, on the production of the consent
in writing
of the judgment debtor to the money paid into court being paid out to
you.
Dated at the day of ,
19
(Signature of Clerk of the Court.)
To
(2)
WHERE PART OF CLAIM PAID IN
(General Title)
and
Garnishee.
Take
notice that the garnishee has paid into court the sum of $ in respect of your
claim in these proceedings, and the sum of $
in respect of fees and
costs.
If you elect to accept the
sum paid in in full satisfaction of your claim against the garnishee and the
costs you have incurred, and
send to the Clerk of the Court and to the garnishee
a written notice of such acceptance forthwith, by post, or by leaving the same
at the office of the Clerk of the Court and at the garnishee's residence or
place of business, the proceedings against the garnishee
will abate, and you
will not be liable to any costs incurred by the garnishee after receiving such
notice, and the amount paid into
court will on application made by you on the
day of at the hour of in the noon be ordered to be paid out to you, unless cause
is
shewn to the contrary; or you may apply for payment out on any earlier day,
on the production of the consent in writing of the judgment
debtor to the money
paid into court being paid out to
you.
In default of such notice the
proceedings will proceed; and if you do not appear at the hearing you will be
liable to pay to the garnishee
such costs as he may incur for appearing at the
hearing, or such other sum of money as the Magistrate may order for expenses
subsequent
to the payment into
court.
Dated at the day of
, 19
(Signature of Clerk of the Court.)
32.
NOTICE TO JUDGMENT DEBTOR OF PAYMENT INTO COURT
BY
GARNISHEE
(General Title)
and
Garnishee.
Take
notice that M.N., the garnishee named in the proceedings herein, has paid into
court the sum of $
And further
take notice that the said sum will be ordered to be paid out to the judgment
creditor, A.B., unless you appear at this
Court on the day of at the hour
of in the noon, and show cause to the
contrary.
Dated at the day of
, 19
(Signature of the Clerk of the Court).
To
33.
INTERPLEADER SUMMONS
(1)
(To be Served
on Execution Creditor)
(General Title)
WHEREAS has made a claim
to certain property (or to the proceeds of sale (or value) of certain property)
taken in execution under
process issuing out of this Court at your instance (or
certain rent alleged to be' due to him in respect of and issuing out of the
premises upon which certain property was taken in execution under process
issuing out of this Court at your
instance):
You are hereby summoned
to appear at a Court to be holden at on the day of ,19 , at the hour of
in the noon, when the said
claim will be adjudicated upon, and such order
made thereupon as to the Court shall seem
fit.
Dated at the day of ,
19
(Signature of Magistrate or Clerk of the Court.)
To
34.
INTERPLEADER SUMMONS
(2)
(To be Served
on the Claimant.)
(General Title)
You are hereby summoned to
appear at a Court to be holden at on the day of 19 at the hour of in
the noon to support a claim
made by you to certain property (or to the proceeds
of sale (or value) of certain property) taken in execution under process issuing
out of this Court at the instance of (a), and in default of your then
establishing such claim the said property will then be sold
and the proceeds
thereof paid over (or the said proceeds of sale (or value) will be paid over)
according to the exigency of the said
process.
Dated at the day of
, 19
(Signature of Magistrate or Clerk of the Court.)
(a) Here insert name of
execution
creditor.
35.
BOND FOR COSTS OF APPEAL
(General Title)
Know all men by these
presents that we [Name and address of appellant and surety or sureties] of and
of are jointly and severally
held and firmly bound to [Name and address of
respondent] in the sum of dollars of lawful money to be paid to the said his
executors,
administrators or assigns, for which payment well and truly to be
made we bind ourselves and each of us for himself, in the whole,
our and each of
our executors and administrators, firmly by these presents sealed with our
seals.
Dated this day of ,
19
Whereas of the
plaintiff/defendant in the above suit has given notice of his intention to
appeal from the judgment of the court in
the said suit given on the day of
19
And whereas by an order of
the court dated the day of , 19 , the aforesaid appellant was ordered to
find security in the sum of
dollars for payment of all such costs as may be
awarded to the respondent by the appellate
court.
Now the condition of this
obligation is such that if the above bounden [Name and address of appellant and
surety or sureties] and
or any of them or their executors or administrators
shall pay unto the said [Name and address of respondent] his executors,
administrators
or assigns, all such costs as may be awarded to the respondent by
the appellate court, then this obligation shall be void, but otherwise
to remain
in full force and effect.
Signed,
sealed and delivered by the
said
[L.S.
FL.S.]
in
the presence
of
(Substituted
by Rules 6th November,
1950.)
36.
WARRANT FOR PRISONER TO GIVE EVIDENCE
(General Title)
To the Officer in charge
of the Prison.
You are hereby
commanded to have a prisoner under your custody, before the Court at on the
day of next at o'clock in the
noon, to give evidence in the above-named
cause, and immediately after he has there and then given his evidence to
return.
Issued at the day of
, 19
(Signature of Magistrate.)
37.
CERTIFIED COPY OF PROCEEDINGS
(General Title)
I, , Clerk of the Court
of , hereby certify and declare that the attached is a true copy of the
proceedings in the above
case.
Dated this day of ,
19
(Signature of Clerk of the Court.)
38.
DEFAULT JUDGMENT IN ACTION FOR LIQUIDATED DEMAND
(General Title)
No notice of defence
having been served by the defendant herein, it is this day adjudged that the
defendant do pay the plaintiff $
and $
costs.
Dated this day of ,
19
(Signature of the Clerk of Court)
APPENDIX
B
(Order I, rule
4)
(Substituted by
Legal Notice No. 53 of 1984
PART I-GENERAL FEES
The fees prescribed in
this Part shall be taken in all causes except where separate fees are
prescribed.
$
1.
On filing and issue of a Writ of Summons-
(a) for the recovery of a sum of money, for damages or for
specific performance-
(i) where the amount claimed, or the relevant
consideration, does not exceed $100............... 4.00
(ii) where the amount claimed, or the relevant
consideration, exceeds $100.......................... 10.00
(b) for the recovery of possession of land or premises ....... 10.00
(c) for the recovery of both a sum of money and the
possession of land or premises-
(i) where the amount of money claimed does not
exceed $100.............................................. 14.00
(ii) where the amount of money claimed exceeds
$100........................................................ 20.00
(d) in any other case ................................................. 10.00
2. (a)
On filing any application originating any proceedings in a
magistrate's court unless a fee is otherwise provided 20.00
(b) On filing any motion in interlocutory proceedings.......... 8.00
3.
On filing a defence or an affidavit setting out the grounds
of
defence or a statement of defence
or an answer ...................
4.00
4. On filing a formal decree,
order or judgment ......................
2.00
5. On filing a
counterclaim.................................................Fees as in I
(a)
6. On filing any affidavit or
any other document for which no fee
is
specially provided......................................................
1.00
7. On issuing witness summons
or subpoena duces tecum ..........
2.00
8. On issuing an order or
reference (O.XVII).........................
2.00
9. A commission to take
evidence (O.V.)..............................
2.00
10. On issuing a writ of
possession, or a combined writ
of
fieri-facias and
possession...............................................
4.00
11. On issuing a judgment
summons (including cost of praecipe)
4.00
12. On issuing bench warrant,
committal order or absconding
debtor
warrant or any writ, warrant or order for which no
fee
is specially prescribed herein
(including the cost of
applica-
tion)..........................................................................
2.00
13. On issuing a garnishee
summons (including notice thereof
to
the judgment debtor)
....................................................
4.00
14. On issuing interpleader
summons or otherwise than under
an
execution...................................................................Fees
as in I (a)
15. For supplying a
typed, carbon or duplicated copy of any
court
record, document, judgment,
order or decree, per page-with
a
minimum of $5 (provided that a magistrate may, for
special
reason, waive the whole or
part of this fee).........................
0.40
16. For supplying a photocopy
of any document, per page ..........
0.20
17. For marking any document
as an office copy or a true copy ....
1.00
18. For certifying a true
copy of the record, per page (with
a
maximum fee of
$10).....................................................
0.20
19. For search in any one
matter...........................................
0.50
20. On filing a bill of costs
for taxation-
For a bill not exceeding
$50 (including taxation)............
4.00
For a bill exceeding $50
(including taxation).................
8.00
21. On administering any oath
or declaration (except in court)
or
taking any affidavit or an
affirmation for each deponent ........
1.00
And in addition thereto for each
exhibit therein referred to
and
required to be marked..............................................
0.40
PART II-FEES IN CIVIL APPEALS
22. On filing notice of
intention to appeal ...............................
5.00
23. On filing grounds of
appeal.............................................
20.00
24. On filing every bond or
deposit as security..........................
4.00
25. On sealing an order made
on the hearing of an appeal by
a
resident
magistrate.......................................................
2.00
26. On application for leave
to appeal out of time ..................... 2.00
PART III-FEES IN ADOPTION PROCEEDINGS
27. On filing an
application for an adoption order.....................
5.00
28. On filing an application
for appointment of a guardian ad litem ....
2.00
29. Order appointing a
guardian ad litem................................
4.00
30. On filing every
consent..................................................
2.00
31. On sealing an order for
adoption......................................
4.00
32. For notice to
Registrar-General....................................... 2.00
PART
IV-FEES IN SEPARATION, MAINTENANCE AND
AFFILIATION
PROCEEDINGS
33. For taking a complaint
and issuing a summons to
commence
proceedings................................................................
2.00
34. For taking a complaint of
non-payment and issuing a warrant
for
defendant to be brought before the court (whether
the
warrant be executed or not)
............................................
5.00
35. For issuing and serving a
warrant of distress (whether
the
warrant be executed or
not)-
(a) served within 3 km of the nearest court house ............ 5.00
(b) served beyond 3 km from the nearest court house, in
addition to (a), for every km in excess of 3 km........ 0.25
36.
For expenses of sale: for every $2 or part of $2 realised..........
0.20
37. For issuing a warrant of
commitment ................................
5.00
38. On filing grounds of
appeal............................................. 10.00
PART
V-FEES IN MATRIMONIAL CAUSES, PROCEEDINGS
AND
MATTERS
39. On filing a petition
or answer (this fee includes filing
petition
with supporting affidavit,
issue of summonses, filing
of
affidavit of service, appointment
of guardian ad litem as
necessary,
issue of decree nisi, the filing of the application
for
decree absolute and issue of
certificate of no cause and the
decree
absolute)...........................................................
10.00
40. On motion for
substituted service (this fee includes filing
of
affidavit in support and the
sealing of any order made)..........
5.00
41. On filing any pleading or
application not otherwise
provided
for............................................................................
5.00
42. For service of summons or
any pleading-
(a) within 3 km of the nearest court house...................... 3.00
(b) exceeding 3 km from the nearest court house, for every
additional km, in addition to (a).......................... 0.25
PART VI-FEES ON APPLICATION UNDER DISTRESS FOR RENT ACT
43. On the issue of a
bailiffs certificate:
(a) for a special certificate.......................................... 3.00
(b) for a general certificate............................................. 10.00
(c) for the renewal of a general certificate ...................... 5.00
(d) for approving security by bond or guarantee ............. 2.00
(e) for receiving a deposit as security............................... 2.00
PART
VII-FEES IN CRIMINAL CAUSES,
APPEALS
PROCEEDINGS
AND MATTERS
44. On filing any
complaint or information on oath ...................
4.00
45. On drawing up and signing
a formal charge.........................
4.00
46. On drawing
summons............................................................
3.00
47. On issuing summons to
defendant ........................................
4.00
48. For each duplicate
summons issued for service ....................
1.00
49. On the issue of a witness
summons .......................................
3.00
50. On filing affidavit of
service...................................................
1.00
51. For search in any one
matter...................................................
1.00
52. On the issue of a warrant
to arrest a defendant or a witness
at
the first
instance............................................................................
4.00
53. On the issue of a warrant
of commitment in default of
payment of
a fine, or costs, or of other moneys payable
under
an order of the court (whether
the warrant be executed or
not)
excluding a warrant of commitment
in default of or in lieu
of
distress............................................................................................
8.00
54. On application for a
search warrant .........................................
3.00
55. On the issue of a search
warrant................................................
3.00
56. Service of any
document-
(a) within 3 km of the nearest court house.......................... 3.00
(b) exceeding 3 km from the nearest court house, for every
additional km, in addition to (a) .......................... 0.25
57.
Subject to the provisions of the Criminal Procedure
Code,
supplying a certified copy of
record, per page or part thereof
(with
a minimum fee of $5).............................................
0.40
58. On filing a complaint to
show cause under the
Criminal
Procedure
Code...........................................................
4.00
59. On the issue of an order
to show cause.................
4.00
60. For issuing a warrant of
distress (whether the warrant
be
executed or
not)...........................................................
4.00
61. Upon the issue of a
warrant of a commitment (whether
the
warrant be executed or
not)
(NOTE:-This fee is to be
endorsed on the warrant and
is
recoverable in addition to any
amount distrained for
and
costs).........................................................................
4.00
62. On filing grounds of
appeal or cross appeal (this fee
includes
the fees for setting down
notice of hearing and hearing).........
20.00
63. On an application for
leave to appeal and enlargement of time
20.00
64. On filing any
motion..................................................... 2.00
PART VIII-SHERIFF'S FEES
Service
65.
For receiving and entering process for service .....................
2.00
66. For service of any
process-
(a) within 3 km from the nearest deputy sheriffs office .... 3.00
(b) exceeding 3 km from the nearest deputy sheriffs
office, for every additional km in addition to (a)...... 0.30
Fieri-Facias
67.
Receiving and entering writ of execution ...........................
2.00
68. Receiving and entering
order of suspension of execution .......
1.00
69. On every enlargement of
return......................................
1.00
70. Poundage per $1 or part
thereof.......................................
0.10
71. Precept to
bailiff..........................................................
2.00
72. Seizure, or collection of
the sum endorsed on the writ
of
execution without
seizure:
(a) within 3 km of nearest deputy sheriffs office.............. 5.00
(b) exceeding 3 km from the nearest deputy sheriffs
office, for every additional km, in addition to (a) 0.20
73.
For man-
(a) in actual physical possession, per diem...................... 10.00
(b) in walking possession, per diem............................... 3.00
74.
For nulla bona return ....................................................
4.00
75. Commission on sale per
$1.00 or part thereof......................
0.05
76. Delivery of goods in
replevin-
(a) within 3 km of the nearest deputy sheriffs office......... 4.00
(b) exceeding 3 km from the nearest deputy sheriffs
office, for every additional km, in addition to (a)..... 2.00
77.
For taking a replevin bond..............................................
6.00
78. For assignment of
replevin bond ......................................
4.00
79. For taking a bond of
indemnity........................................
8.00
80. When goods or animals are
removed, for warehousing and
taking
charge of the same (including feeding of animals) 5c
for
each dollar or part thereof of the
value of the goods or animals
removed
or of the sum endorsed on the writ of
execution
whichever is the less. No
fee for keeping possession of
the
goods or animal is to be charged
after they have been removed.
81.
For work done by Sheriffs officer in inquiring into any
claim
for rent or claim to the goods
..........................................
8.00
82. For preparing notice to
execution creditor to admit or
dispute
title to claim and sending
same by post ..............................
5.00
83. For taking and handing
over possession of property
specified
in writ of
possession-
(a) per man, per diem................................................ 10.00
and
(b) travelling expenses, per km.................................... 0.30
Arrest/Commitment
84.
Receiving and entering a writ of warrant............................
3.00
85. Precept to
bailiff..........................................................
2.00
86. For every arrest or
collection of the amount endorsed on
the
warrant, by way of payment or a
deposit, without arrest-
(a) within 3 km of deputy sheriff's office........................ 5.00
(b) exceeding 3 km from the nearest deputy sheriffs
office, for every additional km, in addition to (a)..... 0.50
87.
For conveying to court or to prison from place of arrest,
not
exceeding per diem, besides
reasonable travelling
expenses
actually
incurred..........................................................
10.00
88. For release on bail or a
bond when authorised and filing
the
bail
bond....................................................................
2.00
89. For assignment of a bail
bond..........................................
4.00
General
90.
Receiving and entering any process not otherwise provided for
3.00
91. For executing process for
possession, attachment or committal
or
for collecting any sum entered on any process without execution:
(a) within 3 km from the nearest deputy sheriffs office..... 5.00
(b) exceeding 3 km from the nearest deputy sheriff's
office, for every additional km, in addition to (a)..... 0.50
92.
For any duty not herein provided for: such sum as the
court
may
allow.
93. Reasonable expenses,
additional or otherwise,
necessarily
incurred in all matters,
including subsistence
allowance
payable to
bailiff.
94. For sheriff or his
deputy attending court on the hearing
of
interpleader proceedings: per hour
of part thereof ... 2.00
APPENDIX
D
(Order I, rule
5)
(Substituted by
Rules* 4 May 1984)
* See Legal Notice
No. 53 of 1984.
SCALE
OF LEGAL PRACTITIONERS FIXED
COSTS
(Exclusive of Court
Fees)
PART I-DEFENDED CASES
$
1.
Where the subject matter or amount recovered does not exceed $40 ...........
10.00
2. Where the subject matter or
amount recovered exceeds $40 but
does
not exceed $60.............................................................
15.00
3. Where the subject matter or
amount recovered exceeds $60 but
does
not exceed $80.............................................................
20.00
4. Where the subject matter or
amount recovered exceeds $80 but
does
not exceed $100............................................................
25.00
5. Where the subject matter or
amount recovered exceeds $100 but
does not exceed $200............................................................
30.00
6. Where the subject matter or
amount recovered exceeds $200 but
does not exceed $400............................................................
35.00
7. Where the subject matter or
amount recovered exceeds $400 but
does not exceed $600............................................................
40.00
8. Where the subject matter or
amount recovered exceeds $600 but
does not exceed $800............................................................
50.00
9. Where the subject matter or
amount recovered exceeds $800 but
does not exceed $1,000.........................................................
60.00
10. Where the subject matter or
amount recovered exceeds $1,000 but
does not exceed $1,500.........................................................
75.00
11. Where the subject matter or
amount recovered exceeds $1,500 but
does not exceed $2,000.........................................................
90.00
12. Where the subject matter or
amount recovered exceeds $2,000...... 100.00
PART II-UNDEFENDED CASES
1. Where the subject
matter or amount recovered does not exceed $40
5.00
2. Where the subject matter or
amount recovered exceeds $40 but
does
not exceed $60.............................................................
8.00
3. Where the subject matter or
amount recovered exceeds $60 but
does
not exceed $80.............................................................
10.00
4. Where the subject matter or
amount recovered exceeds $80 but
does
not exceed $100............................................................
12.00
5. Where the subject matter or
amount recovered exceeds $100 but
does not exceed $200............................................................
15.00
6. Where the subject matter or
amount recovered exceeds $200 but
does not exceed $400............................................................
20.00
7. Where the subject matter or
amount recovered exceeds $400 but
does not exceed $600............................................................
23.00
8. Where the subject matter or
amount recovered exceeds $600 but
does not exceed $800............................................................
25.00
9. Where the subject matter or
amount recovered exceeds $800 but
does not exceed $1,000.........................................................
28.00
10. Where the subject matter or
amount recovered exceeds $1,000 but
does not exceed $2,000.........................................................
30.00
11. Where the subject matter or
amount recovered exceeds $2,000...... 35.00
PART III-MATRIMONIAL CAUSES ACT
1. On an undefended
petition, an amount not exceeding..................
25.00
2. On a defended petition, an
amount not exceeding....................... 50.00
APPENDIX
E
(Order III, rule
10)
(Substituted
by Rules* 4 May 1984.)
1. On taking an affidavit,
affirmation or declaration for each
person
making the same
.................................................................
1.00
2. And in addition, for each
exhibit therein referred to and required
to
be
marked.........................................................................
0.50
______________________
Rules
7th Nov., 1950 [in force 17th Nov.,
1950],
17th Nov.,
1953.
* See Legal Notice No. 53 of 1984.
SECTION
68-MAGISTRATES' COURTS (JUSTICES OF THE
PEACE)
RULES
Made by the Chief Justice
Short title
1.
These Rules may be cited as the
Magistrates' Courts (Justices of the Peace) Rules.
Exercise of powers under section 79 Crim. Proc. Code
2.
A justice of the peace may, if specifically authorised in writing in that behalf
under the hand of the Chief Registrar of the Supreme
Court, perform the duties
and exercise the powers imposed or conferred upon a magistrate by section 78 of
the Criminal Procedure Code in cases where a formal charge is presented by a
police or other public officer and owing to the absence of the magistrate
unreasonable
delay would otherwise
occur.
Affidavits
3.
Affidavits of service to be used in civil proceedings before a magistrates'
court may be sworn before a justice of the
peace.
(Inserted
by Rules dated 17th November, 1953.)
Complaints
4.
A justice of the peace may, if specifically authorised in writing in that behalf
under the hand of the Chief Registrar of the Supreme
Court, take a complaint, in
the prescribed form, by a person entitled to receive payments under an order
made by a magistrates' court
under the provisions of sections 4 (c) or 4 (d) or
18 of the Maintenance and Affiliation Act, for the enforcement of arrears of
payments due under any such
order.
(Inserted
by Rules dated 2nd January, 1963.)
*SECTION
68.-MAINTENANCE AND AFFILIATION (FORMS)
RULES
*Incorporating Separation and
Maintenance (Summary Jurisdiction)
(Forms)
Rules and Bastardy (Forms)
Rules.
Made by the Chief Justice
1. These Rules may be
cited as the Maintenance and Affiliation (Forms)
Rules
2. The forms contained in
the Schedule or forms to the like effect may be used, with such variation as the
circumstances may require
in connexion with proceedings under the provisions of
the Maintenance and Affiliation Act.
SCHEDULE
MAINTENANCE
AND AFFILIATION ACT
(Form No.
1)
COMPLAINT
FOR AN ORDER
IN THE
MAGISTRATES' COURT,
Maintenance Case
No.
a married woman residing
at in Fiji makes complaint to the undersigned Magistrate that her
husband of in
Delete where
inapplicable
was on the day of
, 19 , convicted by the court at of an assault upon her and sentenced to pay a
fine of more than ten dollars
or to a term of imprisonment exceeding two
months;
is an habitual
drunkard;
deserted her on the
day of , 19 ;
has been guilty
of persistent cruelty to her and/or her
children;
has wilfully neglected
to provide reasonable maintenance for her or her infant children whom he is
legally liable to maintain;
has
been guilty of adultery with one
;
while suffering from a
venereal disease and knowing that he was so suffering insisted on having sexual
intercourse with her;
has
compelled her to submit herself to
prostitution;
and applies for an
order or orders to be made under the provisions of the Maintenance and
Affiliation Act.
Sworn at this
day of , 19
Before
me
Magistrate.
MAINTENANCE
AND AFFILIATION ACT
(Form No.
2)
SUMMONS
IN
THE MAGISTRATES' COURT,
Maintenance Case
No.
To
of .
Complaint has been made
this day by a married woman residing at in Fiji that you being the husband of
the said complainant:-
Delete
where inapplicable
were on the
day of , 19 , convicted by the Court at of an assault upon her your wife,
and sentenced to pay a fine of more than
ten dollars or to a term of
imprisonment exceeding two
months;
are an habitual
drunkard;
deserted your wife on
the day of , 19 ;
have been
guilty of persistent cruelty to your wife and/or her
children;
have wilfully neglected
to provide reasonable maintenance for your wife or her infant children whom you
are legally liable to
maintain;
have been guilty of
adultery in that on day of , 19 , that you did commit adultery with
while suffering from a venereal disease
and knowing that you were so suffering
insisted upon having sexual intercourse with your
wife;
have compelled your wife to
submit herself to
prostitution;
you are hereby
summoned to appear before the Magistrates' Court at the Court House on the
day of , 19 , at the hour of o'clock
in the noon to answer to the said
complaint and to show cause why an Order or Orders should not be made upon you
under the provisions
of the Maintenance and Affiliation
Act.
Dated this day of ,
19
Magistrate.
MAINTENANCE
AND AFFILIATION ACT
(Form No.
3)
(Amended by
Rules 20th September, 1965.)
ORDER
IN
THE MAGISTRATES' COURT,
Maintenance Case
No.
The day of ,
19
Complaint has been made by a
married woman (hereinafter called the Complainant) residing at in Fiji
that (hereinafter called
the Defendant) of in Fiji being the husband of
the Complainant
(a) State grounds
of
complaint.
(a)
And
the complainant has made application that an Order or Orders may be made against
the Defendant under the provisions of the abovementioned
Act.
*Delete where
necessary
It is adjudged that the
complaint is true and it is
ordered:
That the complainant be
no longer bound to co-habit with her husband the
Defendant.
That the legal custody
of the child(ren) of the marriage between the complainant and the Defendant
namely aged years, aged years
while under the age of sixteen years be
committed to the complainant.
That
the (Defendant) (Complainant) do have the right of reasonable access to the said
child(ren) (on the following terms- ) (on such
terms as in default of agreement
the Court may order).
And it is
further ordered that the Defendant do pay to the Complainant through the Clerk
of the Magistrates' Court at the sum of
weekly and, in addition, a weekly sum
of for the maintenance of the (each) child as aforesaid until such child(ren)
respectively
attain(s) the age of sixteen
years.
And it is also further
ordered that the Defendant do pay to the Complainant through the Clerk of the
Magistrates' Court at the sum
of the costs of the court and of the Complainant
in obtaining this Order.
The
Defendant while under an obligation to make payments under this order shall give
notice to the Clerk of the Court at of any change
of address.
Magistrate.
MAINTENANCE
AND AFFILIATION ACT
(Form No.
4)
COMPLAINT
IN
THE MAGISTRATES' COURT,
Affiliation Case
No.
a single woman residing at
in Fiji makes complaint to the undersigned Magistrate
that:
*(1) she is now with child;
or
*(2) she was delivered of an
illegitimate child at in Fiji on the day of , 19 ;
or
*(3) she was delivered of an
illegitimate child at in Fiji on the day of , 19 , and having given proof
that the within mentioned
alleged father of such child has within twelve months
next after the birth of such child paid money for its maintenance;
or
*(4) she was delivered of an
illegitimate child at in Fiji on the day of , 19 , and having given proof
that within mentioned
alleged father did within the twelve months next after the
birth of such child cease to reside in Fiji and has returned to Fiji within
the
last twelve months.
And that of
in Fiji is the father of such child, and she applies for a summons to be
served upon him to answer the said
complaint,
Complainant
Sworn
at this day of , 19
Before
me
Magistrate.
* Delete where
inapplicable.
MAINTENANCE
AND AFFILIATION ACT
(Form No.
5)
SUMMONS
IN
THE MAGISTRATES' COURT,
Affiliation Case
No.
To of in
Fiji
Complaint has been made this
day by a single woman residing at in Fiji who states
that-
*(1) she is now with child;
or
*(2) she was delivered of an
illegitimate child at in Fiji aforesaid on the day of , 19 ;
or
*(3) she was delivered of an
illegitimate child at in Fiji aforesaid on the day of , 19 ; and for the
maintenance whereof she
has given proof that you did within twelve months next
after its birth pay money; or
*(4)
she was delivered of an illegitimate child at in Fiji aforesaid on the day of
, 19 , and has given proof that you did within
the twelve months next after
the birth of such child cease to reside in Fiji, and have returned to Fiji
within the last twelve months;
And
that you are the father of such child, and she applies for a summons to be
served upon you to answer such
complaint.
You are therefore
hereby summoned to appear before the Magistrates' Court at the Court House on
the day of , 19 , at the hour
of o'clock in the noon to answer the said
complaint.
Dated the day of ,
19
Magistrate.
Note.-If you neglect to
appear as above required, the Court, upon proof that this summons has been duly
served upon you, or left at
your last place of abode, may proceed, if the Court
thinks fit, to make an Order upon you, as the putative father of the child above
referred to, to pay a weekly sum for its maintenance, and other sums for costs
and expenses.
* Delete where
inapplicable.
MAINTENANCE
AND AFFILIATION ACT
(Form No.
6)
ORDER
IN
THE MAGISTRATES' COURT,
Affiliation Case
No.
The day of , 19
Complaint has been made by a
single woman residing at in Fiji (hereinafter called the complainant) that
she was with child (or
delivered of an illegitimate child) of which child she
alleged that of in Fiji (hereinafter called the defendant) was the father
(*and she gave proof upon oath that he had paid for the maintenance of the said
child within the twelve months next after the birth
of such child or that he had
ceased within the twelve months next after the birth of such child to reside in
Fiji and that he had
returned to Fiji within the twelve months next before the
date of complaint).
On the
appearance of the defendant (*or on proof that a summons to answer the said
complaint was duly served on the defendant or left
at his last place of abode a
reasonable time before the
hearing).
*And on hearing the said
complaint and the evidence of the complainant and other evidence satisfactorily
corroborating in a material
particular her evidence, (and also the evidence
tendered by or on behalf of the defendant), and being satisfied of the truth of
the
said complaint (and that the said child was born on the day of
,19).
It is adjudged that the
defendant is the putative father of the said
child.
And it is ordered that the
defendant do pay the sum of per week for the maintenance and education of
the said child from the birth
of the child until the child shall attain the age
of years, or if it shall die under that age, until the date of its
death.
And it is also ordered that
the defendant do pay the sum of $ for the expenses incidental to the birth of
the said child, and the
sum of $ for the costs incurred in obtaining this
Order.
And it is further ordered
that the said sums be paid by the defendant through the Clerk of the
Court,
And it is further ordered
that the defendant do give notice of any change of address to the Clerk of the
Court at .
Magistrate.
$
c
Amount accrued from date of birth
.......................
Expenses
................................................................
Costs.......................................................................
*
Delete where inapplicable
MAINTENANCE
AND AFFILIATION ACT
(Form No.
8)
COMPLAINT
FOR ENFORCEMENT OF
ORDER
IN THE
MAGISTRATES' COURT,
Maintenance Case
No.
a married woman residing
at in Fiji makes complaint to the undersigned Magistrate that her husband of
(hereinafter called
the Defendant) by an Order made by this Court on the day
of , 19 , was duly ordered to pay to her or for her use to the Clerk
of the
Magistrates' Court at the weekly sum of together with the weekly sum of
for the maintenance of (each of) the child(ren)
named in the said Order and the
sum of for costs and that the payments directed to be made by the said Order
have not been made
according thereto by the said Defendant, and that there is
now in arrear for the same the sum of
.
Sworn this day of ,
19
Before me
Magistrate.
MAINTENANCE
AND AFFILIATION ACT
(Form No.
9)
(Amended by
Rules 20th September, 1965.)
WARRANT
OF APPREHENSION FOR
ARREARS
IN THE
MAGISTRATES' COURT,
Maintenance Case
No.
To all Police Officers within
Fiji.
Complaint has been made this
day upon oath by (hereinafter called the Complainant) a married woman
residing at in Fiji that
by an Order duly made under the provisions of the
abovementioned Act on the day of ,19 , by this Court, of in Fiji the
husband of the said Complainant was ordered to pay to her or for her use to the
Clerk of the Magistrates' Court at the sum of
per week (and the sum of for
costs incurred in obtaining such Order) and that the payments directed to be
made by the said Order
have not been made according thereto by the Defendant and
that there is now in arrear for the same the sum of and the said sum of
for
costs.
You are therefore hereby
commanded forthwith to apprehend the Defendant and bring him before this Court
at the Court House at to answer
the said complaint unless the said sums and all
costs and charges as appear hereunder be sooner
paid.
Dated this day of ,
19
Magistrate.
Arrears............................................................
$ : :
Costs under the Order
.................................... $ :
:
$
Cost
of this warrant.......................................
$
Total
Sum............................ $
MAINTENANCE
AND AFFILIATION ACT
(Form No.
10)
(Inserted by
Rules, 20th September, 1965.)
WARRANT
OF DISTRESS
*(AND
DETENTION PENDING
RETURN)
IN THE
MAGISTRATES' COURT,
Maintenance/Affiliation
Case No.
To all Police Officers
within Fiji *(and to the Officer in Charge of
Prison).
WHEREAS of in Fiji
(hereinafter called the Defendant) has been apprehended and brought this day
before this Court by virtue
of a warrant of apprehension for arrears in the sum
of and costs payable under an Order made in pursuance of the Maintenance and
Affiliation Act on the day of , 19 , in favour of the
complainant;
AND WHEREAS the
Defendant neglects or refuses to pay the said sum(s) together with the costs
attending such warrant, apprehension
and bringing up of him the
defendant;
These are therefore to
command you, the said Police Officers, in Her Majesty's name forthwith to make
distress of the goods and chattels
of the Defendant and if the sums stated at
the foot of this warrant, together with the reasonable costs and charges of
making and
keeping of the said distress, be not paid, then, not earlier than the
(sixth) day after the making of such distress, unless the Defendant
consents in
writing to an earlier sale, to sell the said goods and chattels so by you
distrained and pay the money arising by such
sale unto the Clerk of the
Magistrates' Court at that he may pay and apply the same as by law directed and
may render the overplus
(if any) on demand to the
Defendant.
AND if no such distress
can be found then that you certify the same unto me to the end that such further
proceedings may be had therein
as to the law doth
appertain.
*(AND these are further
to command you, the said Police Officers, in Her Majesty's name to take the
defendant and convey him to prison
and deliver him to the Officer in Charge
thereof who is hereby directed in Her Majesty's name to imprison him and produce
him before
the Court on the day appointed for the return to the distress, namely
the day of , 19 ).
Dated this
day of ,19
Arrears under the
Order
......................................
Costs
payable under the Order
............................
Costs
attending warrant of apprehension
.........
Fee on issuing this warrant
..................................
$
c
Magistrate.
And, in addition, fees for
mileage, possession and sale, etc. .
.
$
MAINTENANCE
AND AFFILIATION ACT
(Form No.
11)
(Inserted by
Rules 20th September, 1965.)
WARRANT OF COMMITMENT
In the Magistrates'
Court
Maintenance Affiliation Case
No.
To all Police Officers within Fiji
and to the Officer in Charge of
prison.
WHEREAS late of
(hereinafter called the defendant has been brought on the day of ,19 ,
before this Court by virtue of a warrant
in that behalf and it has been proved
that he doth owe to of the sum of $ under an order for maintenance and the sum
of $ for costs
thereunder and that the
defendant
"To be deleted unless
defendant is ordered to be detained pending the return, neglects or refuses to
pay the said sums together with
the costs attending such warrant, apprehension
and bringing up of him the
defendant;
*(a) AND WHEREAS on the
day of 19, a distress warrant was issued for levying the said sums and
costs but no sufficient distress
whereon to levy the same could be found, as
appears by the return
thereto;
*(a) AND WHEREAS it
appears upon the admission of the defendant that he has no property whereon
distress may be levied;
AND
WHEREAS the defendant is unable to satisfy the Court that he is bona fide unable
to pay the said sums and
costs;
These are therefore to
command you, the said Police Officers, in Her Majesty's name, to take the said
defendant and convey him to
prison and deliver him to the Officer in Charge
thereof who is hereby directed, in Her Majesty's name, to imprison him for the
space
of *(b) unless he shall sooner pay the following sums of
money:-
Arrears under the Order
........................................
Costs
under the Order
...........................................
Costs
attending warrant of apprehension
...........
Fee on issuing distress
warrant
.............................
Costs
attending the warrant of distress
............
Fee on issue of this
warrant
.................................
Total
sum due ....................
$
Dated this day of ,
19
Magistrate.
"(a) Delete wherever
inapplicable (Section 27 or Cap.)
*(b)
Not exceeding 3 months in section 27 of Maintenance and Affiliation
Act.
SCHEDULE
MAINTENANCE
AND AFFILIATION ACT
(Form No.
12)
COMPLAINT
(FOR ENFORCEMENT OF
ORDER)
IN THE
MAGISTRATES' COURT,
Affiliation Case
No.
The day of ,
19
Complaint of of in Fiji
(hereinafter called the complainant) who upon oath states that by an Order duly
made on the day of
, 19 , (therein and hereinafter called the defendant)
was adjudged to be the putative father of an illegitimate child of which
the
complainant was the mother and was ordered to pay the sum of per week for the
maintenance and education of the said child until
the child should attain the
age of years, or if it shall die under that age until the date of its death, and
it was also ordered
that the defendant should pay the sum of $ for the
expenses incidental to the birth of the said child and the sum of $ for costs
incurred in obtaining the said Order, and it was further ordered that the said
sums should be paid by the defendant through the Clerk
of the Court
at
And the complainant further
states that there is now in arrear for the same the sum of $ being the amount
due for the maintenance
and education of the said child and also the
abovementioned expenses of the said birth and the abovementioned costs of the
said Order.
Sworn at this day
of , 19
Before me
Magistrate.
MAINTENANCE
AND AFFILIATION ACT
(Form No.
13)
WARRANT
OF APPREHENSION FOR
ARREARS
IN THE
MAGISTRATES' COURT,
Affiliation Case
No.
To all Police Officers within
Fiji.
Complaint has been made this
day upon oath by of in Fiji (hereinafter called the complainant) that by
Order duly made on the
day of , 19 , of (therein and hereinafter
called the defendant) was adjudged to be the putative father of an illegitimate
child of which the complainant was the mother, and was ordered to pay the sum of
per week for the maintenance and education of the
said child until the child
should attain the age of years or if it shall die under that age until the date
of its death, and it was
also ordered that the defendant should pay the sum of $
the expenses incidental to the birth of the said child and the sum of $ for
costs incurred in obtaining the said Order and that the payments directed to be
made by the said Order have not been made according
thereto by the defendant and
that there is now in arrear for the same the sum of $ being the amount due for
maintenance and expenses
and costs as
aforesaid.
You are therefore
hereby commanded forthwith to apprehend the defendant and bring him before this
Court at the Court House at to answer
the said complaint unless the said sum and
all costs and charges appearing hereunder be sooner
paid.
Dated this day of ,
19
Arrears........
Expenses......
Costs
of Order
Magistrate.
Costs of this
warrant............
Total sum
.....................$ c
SECTION 19-EXTENSION OF JURISDICTION ORDER
Legal Notice No. 58 of 1984
The Chief Justice orders
that Moti Chandra Rai, a Magistrate empowered to hold court of the second class,
from 26 July 1983, is authorised
to exercise increased jurisdiction to the
extent following, that is to say that he shall have and may exercise within
Fiji, all the
jurisdiction, powers and authorities of a Resident
Magistrate:
(a) to give judgment by consent, or on admission of liability, or in default, or otherwise however than upon a trial on the merits, in any civil cause or matter; and
(b) to make any interlocutory or interim order in, or give any direction which shall be incidental or ancillary to, any civil cause or matter, not involving the decision thereof on the merits; and
(c) with the consent of the parties, to hear and determine on the merits, and give judgment in any civil cause or matter where-
(i) the amount or value of the subject matter, or the annual value or rent; or
(ii) the amount or value of the subject matter remaining in dispute, after any payment, admission, or set off, does not exceed $1,000.
Controlled by Ministry of Justice
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