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Fiji Consolidated 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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