SUBORDINATE COURTS ACT (CHAPTER 6) MAGISTRATES' COURTS (CIVIL PROCEDURE) RULES

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SUBORDINATE COURTS ACT (CHAPTER 6) MAGISTRATES' COURTS (CIVIL PROCEDURE) RULES

SUBORDINATE COURTS ACT

(CHAPTER 6)

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

S 6/92

Amended by

S 27/96

REVISED EDITION 2001

(31st January 2001)

SUBSIDIARY LEGISLATION

Rules under section 25

ARRANGEMENT OF RULES

Rule

PART I

PRELIMINARY

1. Citation.

2. Interpretation.

PART II

JURISDICTION AND LAW

3. Civil proceedings to be summary.

4. Claim not to exceed Magistrate’s jurisdiction.

5. Money recoverable by written law.

6. Division of causes of action.

7. Abandonment of part of claim.

8. Executor may sue and be sued.

9. Action by infant for wages.

10. Procedure when persons jointly liable.

11. Suits by infants.

PART III

INSTITUTION OF ACTIONS

12. Where action may be commenced.

13. Action to be by plaint.

14. Issue of summons to defendant.

15. Effect of misnomer in plaint or summons.

PART IV

SERVICE OF PROCESS

16. Normal mode of service.

17. Substituted service.

18. Service of Government officers.

19. When service may be effected.

20. Proof of service.

PART V

JOINDER OF PARTIES

21. Persons who may be joined as plaintiffs.

22. Power to order separate trials.

23. Joinder of defendants.

24. Joinder of parties liable on same contract.

25. One party may sue or defend on behalf of others.

26. Action not to fail by reason of mis-joinder or non-joinder.

27. Court may substitute or add parties.

28. Appearance of one of several plaintiffs or defendants forothers.

29. Objections as to mis-joinder or non-joinder.

30. Judgment for or against one or more of joint parties.

PART VI

THIRD PARTY PROCEDURE

31. Written statement and summons to third party.

32. Non-appearance of third party.

33. Appearance of third party.

34. What directions may be given.

35. Costs.

36. Defendant claiming against co-defendant.

37. Powers exercisable in chambers.

PART VII

ENTERING JUDGMENT

38. Admitting debts or parts of debts and judgment thereon.

39. Agreement as to amount of debt and conditions of payment.

40. Payment into Court by defendant and notice to plaintiff.

41. Judgment in default.

PART VIII

PROCEDURE AT HEARING

42. Public or private sittings of the Court.

43. Right of evidence.

44. Enlargement or abridgment of time.

45. Adjournment of Court.

46. Powers of amendment.

47. Notes of evidence and minutes of civil proceedings.

48. Procedure when both parties appear.

49. Examination of witnesses.

PROCEDURE WHEN ONLY ONE PARTY APPEARS

50. When plaintiff fails to appear or to prove his case.

51. Counter-claim where plaintiff does not appear.

52. Costs of defendant where plaintiff does not appear.

53. When defendant fails to appear.

54. Setting aside of judgment given in absence of party.

55. Re-listing of causes struck out.

56. Power to refer to referee.

57. How security is to be given and enforced.

58. Court may direct security to be by deposit of money orotherwise.

59. Service of summons to witnesses.

60. Power to require persons present in Court to give evidence.

PART IX

ADDRESSES, JUDGMENTS AND COSTS

61. Addresses.

62. Giving of judgment on conclusion of hearing.

63. What orders to be made.

64. Judgment to be complied with without demand.

65. Payment and suspension of judgments and orders.

66. Judgment debt to carry interest.

67. Apportionment and payment of costs.

68. Costs may be set off against sum admitted or found to be due.

69. Interest on costs and payment of costs out of subject-matter.

70. Security for costs.

71. Forms.

71A. Procedure if no provision in Rules.

SCHEDULE

___________________________

SUBSIDIARY LEGISLATION

Rules under section 25

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

Commencement: 27th March 1992

[S 6/92]

PART I

PRELIMINARY

Citation.

1. These Rules may be cited as the Magistrate’ Courts (CivilProcedure) Rules.

Interpretation.

2. In these Rules —

“civil proceedings” means a civil action triable by a Magistrateand an order by a Magistrate for the payment of any sum of money or for thedoing or abstaining from doing of any act or thing not enforceable by fine orimprisonment in the first instance;

“claim” means a debt, demand, damage or relief claimed and aclaim for the recovery of a chattel or thing;

“Clerk” means the Clerk of the Magistrates’ Court in whichproceedings have been commenced;

“counter-claim” includes a claim by way of cross-action;

“Court” means a Magistrate’s Court established under theAct;

“defendant” means a person against whom a claim is made;

“district” means the administrative district in which the Courthouse is situated;

“judgment” means any adjudication, order, or decision of aMagistrate;

“Magistrate’s Court” means a Magistrate’s Courtestablished under the Act;

“plaintiff” means the person making a claim.

PART II

JURISDICTION AND LAW

Civil proceedings to be summary.

3. A civil proceeding within the jurisdiction of a Magistrate’sCourt shall be heard and determined in a summary manner under these Rules.

Claim not to exceed Magistrate’s jurisdication.

4. Subject to the provisions of section 17 of the Act, a Magistrateshall have jurisdiction to hear and determine an action if the claim consists ofa balance not exceeding the amount of his jurisdiction after a set off of anydebt or demand by the defendant and admitted by the plaintiff in his claim.

Money recoverable by written law.

5. (1) Subject to the provisions of section 17 of the Act, a Courtshall have jurisdiction to hear an action for the recovery of a penalty,contribution or other like sum which is recoverable under a written law, if—

(a) it is not expressly provided by that or any other written lawthat the demand shall be recoverable only in some other Court; and

(b) the amount claimed in the action does not exceed the amount of the jurisdiction of the Magistrate concerned.

(2) For the purposes of this rule the expression “penalty” shallnot include a fine to which a person is liable on conviction of an offence incriminal proceedings.

Division of causes of action.

6. (1) A plaintiff may not divide a cause of action for the purposeof bringing two or more actions in the Court.

(2) An action pending in the same Court may be consolidated by order of a Magistrate, of his own motion or on the application of any partyon notice, whether or not such Magistrate finally adjudicates thereon.

(3) An action may not be consolidated if the effect of such consolidation isto bring the total of the consolidated action above the jurisdiction of theMagistrate adjudicating.

(4) If several actions by different plaintiffs against the same defendant are proceeding in the same Court, in respect of causes of action arising out of the same circumstances, the defendant may, on filing an undertaking to be bound, so far as his liability in the several actions is concerned, by the decision in such one of the actions as may be selected by the Court, apply to the Court for an order to stay the other actions until judgment is given in the selected action. Application under this paragraph shall be made on notice to the plaintiffs who would be affected by any order made thereon.

Abandonment of part of claim.

7. (1) Subject of the provisions of section 17 of the Act, aplaintiff may, if he has a cause of action for more than the amount of thejurisdiction of the Magistrate adjudicating, abandon the excess. Thereupon theCourt shall have jurisdiction to hear and determine the action.

(2) If a Court has jurisdiction to hear and determine an action by virtue ofrule 7(1) the judgment of the Court in the action shall be in full discharge ofall demands in respect of the cause of action, and entry of the judgment shallbe made accordingly.

Executor may sue and be sued.

8. An executor or administrator may sue and be sued in the Court inlike manner as if he were a party in his own right, and judgment and executionshall be such as, in the like case, would be given or issued in a Court.

Action by infant for wages.

9. An infant may bring an action in the Court for any sum of money, not exceeding $5,000 which may be due to him for wages or piece work or for work as a servant, in the same manner and in all respects as if he were of full age.

Procedure when persons jointly liable.

10. (1) Where a plaintiff has a demand against two or more personsjointly liable, it shall be sufficient to serve any of those persons withprocess, and judgment may be obtained and execution issued against any person soserved, notwithstanding that others jointly liable may not have been served orsued or may not be within the jurisdiction of the Court.

(2) If judgment is obtained against a person as aforesaid and is satisfiedby that person, he shall be entitled to recover in a Court contribution from anyother person jointly liable with him.

(3) The provisions of this rule shall not be deemed to affect the rights orliabilities of joint tort feasors.

Suits by infants.

11. Subject to the provisions of rule 9 an infant may sue by his next friend and may defend by his guardian.

PART III

INSTITUTION OF ACTIONS

Where action may be commenced.

12. (1) Civil proceedings shall be commenced in the nearest Courtwithin the district in which —

(a) the defendant or one of the defendants resides or carries onhis business at the time of commencing the action;

(b) the cause of action arose wholly or in part; or

(c) the land, person or thing, which is the subject-matter ofthe civil proceedings is situated.

(2) Notwithstanding rule 12(1), if it appears to a Magistrate that it is thegeneral convenience of the parties or witnesses for a cause to be heard in anyother Court within Brunei Darussalam, he may so direct.

Action to be by plaint.

13. (1) On the application of a person wishing to institute civilproceedings, and on payment of the prescribed fee, the Clerk shall register inthe Civil Cause Book a statement in writing, hereinafter called a plaint,stating the names and last known places of the residence of the parties and thesubstance of the action intended to be brought. The Clerk shall deliver a plaintnote to the applicant in Form 1 in the Schedule.

(2) The Court may refuse to register a plaint which appears to disclose nocause of action. It shall so refuse if the plaint is in respect of a matter notwithin the jurisdiction of the Court.

(3) The Clerk shall enter such refusal and the grounds thereof in the Civil Cause Book and so inform the applicant.

(4) Any person aggrieved by a decision of the Court under rule 13(2) mayappeal against such decision as if it were an order of the Court.

(5) The refusal to register a plaint under this rule shall not preclude theplaintiff from presenting a fresh plaint in respect of the same matter.

Issue of summons to defendant.

14. (1) Upon registration of a plaint the Court shall issue a summonsdirected to the defendant, requiring him to appear before the Court at a certaintime, being not less than 7 days from the date of service of such summons, toanswer to the plaint.

(2) Upon issue of the summons, the Court shall direct the defendant to file a written statement of defence in answer to the plaint within such time as the Court may think fit.

(3) A defendant who files a written statement of defence, shall not beprecluded thereby from raising at or prior to the trial of the action grounds ofdefence other than those disclosed in his written statement of defence.

Effect of misnomer in plaint or summons.

15. (1) No misnomer or inaccurate description of any person or placein in any such plaint or summons shall vitiate the same, so long as the personor place is so described therein as to be commonly known.

(2) If any misnomer or inaccurate description appears to the Court at thehearing to be such that the defendant has been thereby deceived or misled, theCourt may make any necessary amendments, and adjourn the further hearing of thecase, upon such terms as it may think fit.

PART IV

SERVICE OF PROCESS

Normal mode of service.

16. (1) Service of a summons shall be effected by the process serveror other person appointed by the Court for the purpose of delivering the mode ofsummons —

(a) if on an individual, to him personally;

(b) if on a firm or corporation —

(i) to one of the partners;

(ii) to a director;

(iii) to the secretary;

(iv) to an agent within the district;

(v) by leaving the summons at its principal place of business in Brunei Darussalam; or

(vi) to anyone having control of this business.

(2) Where service has been effected by leaving a summons at an address givenby the plaintiff, the Court may, if it is doubtful whether the defendant hasactual knowledge of the summons, require the plaintiff to satisfy it that thesummons has in fact come to the knowledge of the defendant.

(3) The provisions of this rule shall, with the necessary modifications as to the document, apply to any process.

(4) The Court may authorise any person to effect service either generally orfor any particular case.

Substituted service.

17. (1) The Court may if it appears that ordinary service ofany process cannot conveniently be effected order that service may be effected—

(a) by delivery to an agent of the person to be served, or to someother person, on it being proved that there is reasonable probability that thedocument would through that agent or other person, come to the knowledge of theperson to be served;

(b) by advertisement in some newspaper circulating within BruneiDarussalam;

(c) by notice at the Court house or some other place of public resortin the district, or at the usual or last known place of abode, or of business,of the person to be served;

(d) by affixing the document to the last known place of abode orbusiness of the person to be served; or

(e) in such other manner as the Court may direct.

(2) Upon compliance with such order, the service shall be deemed to be goodand sufficient service of the said document upon the person to be served.

Service of Government officers.

18. When a person to be served is in the service of the Government,the Court may transmit a duplicate of the document to be served to the head ofthe department in which the person is employed, and such head shall causethe same to be served on the party accordingly.

When service may be effected.

19. Service shall not be made before 6 a.m. nor after 10 p.m. unlessthe Court directs otherwise by order indorsed on the document to be served.

Proof of Service.

20. If a summons or other process, issued from a Court, is served by a process server or other person appointed for the purpose, an indorsement on a copy of the summons or process under the hand of such person showing the fact and the mode of service shall be prima facie evidence thereof.

PART V

JOINDER OF PARTIES

Persons who may be joined as plaintiffs.

21. Any person may be joined as a plaintiff against whom a right torelief arising out of the same act or series of acts is alleged to exist, whether jointly, severally, or in the alternative where, if suchpersons brought separate actions, any common question of law or fact wouldarise.

Power to order separate trials.

22. The Court may, if it appears that a joinder of plaintiffs mayembarrass or delay the trial of the action, order separate trials or make suchother order as may be expedient.

Joinder of defendants.

23. A person may be joined as a defendant against whom a right torelief arising out of the same act or series of acts is alleged to exist, whether jointly, severally, or in the alternative, where, ifseparate actions were brought against such persons, any common question of lawor fact would arise.

Joinder of parties liable on same contract.

24. The plaintiff may join as parties to the same action any of thepersons severally, or jointly and severally, liable on any one contract,including parties to bills of exchange and promissory notes.

One party may sue or defend on behalf of others.

25. (1) If there are numerous persons having the same interest in oneaction, one or more of such persons may, with the permission of the Court, sueor be sued, or may defend, on behalf of or for the benefit of all persons sointerested.

(2) The Court shall in such a case give notice of the institution of theaction to all such persons, either by personal service or (when by reason of thenumber of persons or any other cause such service is not reasonably practicable)by public advertisement, as the Court may direct.

(3) A person on whose behalf or for whose benefit an action is instituted ordefended under this rule may apply to the Court to be made a party to suchaction.

Action not to fail by reason of mis-joinder or non-joinder.

26. (1) No action shall be defeated by reason of the mis-joinder or non-joinder of parties.

(2) The Court may in every action deal with the rights and interests of theparties actually before it.

Court may substitute or add parties.

27. (1) If an action has been instituted in the name of the wrongperson as plaintiff, or if it is doubtful whether it has been instituted in thename of the right plaintiff, the Court may order any other person to besubstituted or added as plaintiff upon such terms as the Court thinks just.

(2) The Court may either upon or without the application of either party,order that any party improperly joined, be struck out, and that any person whoought to have been joined, be added.

(3) If a plaintiff or defendant is added, the plaint and the summons shall,unless the Court otherwise directs, be amended in such manner as may benecessary. Amended copies of the summons shall be served on every defendant.

(4) Subject to the provisions of any law relating to the limitation of actions, proceedings against any person added as defendant shallbe deemed to have been instituted on the service of the summons on him.

Appearance of one of several plaintiffs or defendants for others.

28. (1) If there are more plaintiffs or defendants than one, any oneor more of them may be authorised by any other of them to appear, plead or actfor the others in any proceeding.

(2) The authority shall be in writing signed by the party giving it, andshall be filed in Court.

Objections as to mis-joinder or non-joinder.

29. An objection on the ground of mis-joinder or non-joinder ofparties shall be taken at the earliest possible opportunity.

Judgment for or against one or more of joint parties.

30. Judgment may be given without any amendment —

(a) for such one or more of the plaintiffs as may be found to beentitled to relief;

and

(b) against such one or more of the defendants as may be found to be liable.

PART VI

THIRD PARTY PROCEDURE

Written statement and summons to third party.

31. (l) A defendant who clairns to be entitled to a contribution orindemnity against any person who is not a party to the action, may file in theCourt a written statement setting forth the nature and grounds of the claim.

(2) A summons may then, by leave of the Court, be issued to suchperson, hereinafter called the third party, to appear on the date fixed for thehearing of the action. Such a summons shall contain details of the plaint andshall be accompanied by a copy of the written statement.

Non-appearance of third party.

32. (1) If a third party does not appear, when the action is calledon for hearing, if it is not proved that the summons was duly served on thethird party, he shall be dismissed from the action, but without prejudice to theright of the defendant upon whose application the summons was issued to enforcehis claim to a contribution or indemnity in a separate action.

(2) If a third party does not appear, when the action is called on for thehearing, if it is proved that the summons was duly served on the third party—

(a) the defendant shall, if he suffers judgment by default, beentitled to obtain judgment against the third party to the extent of thecontribution or indemnity claimed in the summons:

Provided that it shall be lawful for the Court to set aside or vary anyjudgment so obtained upon such terms as may seem just; and

(b) if the action is tried and there is a judgment for theplaintiff the Court may, enter judgment for the defendant.

(3) No execution shall be issued, without leave of the Court, until aftersatisfaction by the defendant of the judgment against him. If the action is finally decided in the plaintiff’s favour otherwise thanby trial the Court may, on application made, order judgment to beentered for the defendant against the third party after satisfaction by thedefendant of the amount recovered by the plaintiff against him.

Appearance of third party.

33. If a third party appears, the defendant may apply to the Court for directions. The Court may, if satisfied that there is a question to be tried as to the liability of the third party to make the contribution or indemnity claimed, in whole or in part, order the question of liability to be tried in such manner as the Court may direct. If not so satisfied the Court may order judgment to be entered in favour of the defendant.

What directions may be given.

34. The Court, on the hearing of the application mentioned in rule 33may give such directions as shall appear proper for the determination of thequestion.

Costs.

35. The Court may order any party to pay the costs of any other partyor may give such directions as to costs as it may think fit.

Defendant claiming against co-defendant.

36. (1) If a defendant claims to be entitled to contribution orindemnity against any other defendant to the action, a summons may be issued.The same procedure shall be adopted for the determination of such questionsbetween the defendants as would apply if the last mentioned defendant were athird party.

(2) Rule 36(1) shall not prejudice the rights of the plaintiff against anydefendant in the action.

Powers exercisable in chambers.

37. Any of the powers conferred upon the Court by rules 31 to 36inclusive may be exercised by a Magistrate sitting in chambers.

PART VII

ENTERING JUDGMENT

Admitting debts or parts of debts and judgment thereon.

38. (1) A person against whom a plaint shall be entered in any Court may sign a statement admitting the amount of the claim, or part ofthe amount of the claim, for which the plaint is entered.

(2) It shall be the duty of the Clerk of the Court in which the plaint wasentered, to send notice thereof to the plaintiff by post, or by causing it to bedelivered at the address furnished in the plaint or at his usual place of abodeor business. Thereupon it shall not be necessary for the plaintiff to prove theclaim as admitted as aforesaid.

(3) The Court shall, upon proof by affidavit or otherwise of the signature of the party, enter judgment for the claim so admitted. ]

Agreement as to amount of debt and conditions of payment.

39. (1) If a defendant agrees with the plaintiff as to the amount ofthe claim, and as to the terms and conditions upon which it shall be paid andsatisfied, they may sign a statement to that effect.

(2) The Court shall enter judgment for the plaintiff for the amount soagreed on, upon the terms and conditions mentioned in the statement. Thejudgment shall have the same effect, and shall be enforceable in the samemanner, as if it had been a judgment of the Court.

Payment into Court by defendant and notice to plaintiff.

40. (1) The defendant may, at any time before the hearing, file aconsent in writing to judgment; or may pay into Court a sum of money in fullsatisfaction of the claim of the plaintiff, together with the costs incurred bythe plaintiff up to the time of such payment.

(2) Notice of the payment shall be communicated by the Court to theplaintiff, either personally or in accordance with the provisions of rules 16,17 and 18.

(3) The payment shall without delay be paid by the Clerk to the plaintiff.If the plaintiff elects to proceed and recovers no further sum in the actionthan has been paid into Court, he shall pay to the defendant the costs incurredby him in the action after the payment into Court, together with suchcompensation, not exceeding $500 as the Magistrate directs. An order shall bemade by the Magistrate for the payment of such costs, and compensation, by theplaintiff, to be recovered as in the case of a judgment against him.

Judgment in default.

41. (1) A plaintiff may apply to enter judgment if no defence orcounterclaim has been filed.

(2) An application for entry of judgment under rule 41(1) shall be made inwriting to a Magistrate.

(3) If application is made under rule 41(2) a Magistrate shall causejudgment to be entered for the plaintiff with costs.

(4) If the defendant files a defence or counterclaim before judgment has been entered, the provisions of this rule shall not apply.

(5) Judgment shall not be entered under this rule unless the Magistrate issatisfied that the defendant has been served with the plaint.

(6) A Magistrate may, on such terms as he thinks fit, set aside or varyjudgment entered under this rule.

(7) An applicant for entry of judgment shall complete Form 7 in the Schedule.

PART VIII

PROCEDURE AT HEARING

Public or private sittings of the Court.

42. The sittings of the Court shall be in public; but the Court may,for special reasons to be recorded in writing, hear any particular matter in thepresence only of the parties, the representatives, if any, qualified to appearon their behalf, and the officers of the Court.

Right of evidence.

43. In any civil proceedings in a Court, the following persons mayaddress the Court —

(a) any party to the proceedings, including in the case of a personunder a legal disability, his next friend or guardian ad litem or otherproper person;

(b) any person duly admitted under the Legal Profession Act (Chapter 132) either generally or for the purposes of the proceedings; and

(c) any other person, at the discretion of the Magistrate, if thelatter is satisfied that such person is not appearing for fee or reward.

Enlargement or abridgment of time.

44. (1) The parties may by consent enlarge or abridge any of the times fixed by these Rules for taking any step, or filing any document, or giving any notice.

(2) The Court may, at any time extend the time for doing any act or takingany proceeding, even if such time has expired.

Adjournment of Court.

45. (1) A Court may, from time to time, adjourn any civil proceedingsheld by it and shall note such adjournment in the record or draw up a formalorder.

(2) If by reason of death or unavoidable absence, a Magistrate is notpresent at any sitting of a Court, the Clerk, after exercising any powers whichhe is authorised to exercise by any written law, shall adjourn generally allcivil proceedings to such day as he thinks convenient, and enter in the recordthe cause of the adjournment.

(3) If there has been an adjournment, the Court may summon the parties toappear before the Court before the expiration of the period to which the casewas adjourned.

Powers of amendment.

46. (1) A Court may, at any time before judgment, amend any defect and error in any proceedings, whether the defect or error is that of the party applying to amend or not.

(2) A Court may make any amendment as may be necessary for the purpose ofdetermining the real question in issue between the parties.

(3) Any amendment may be made with or without costs and upon such terms as the Court may order.

Notes of evidence and minutes of civil proceedings.

47. (1) At the hearing of a civil proceeding the Court shall takenotes in writing of —

(a) any question of law raised at the hearing;

(b) any legal submission made;

(c) the substance of the oral evidence given before the Court; and

(d) unless he reserves judgment, of his determination of theproceedings.

(2) Such notes shall form the record and be signed by the Magistrate.

(3) The Court shall, whether notice of appeal has been given or not, on the application of any party to the civil proceedings, and on paymentby that party of such fee as may be prescribed, furnish him with a copy of therecord.

Procedure when both parties appear.

48. (l) If, on the day of hearing, both parties appear the plaintshall be read to the defendant and the Court shall require him to make hisdefence thereto. On such defence being made, the Court shall record it andshall, except where it considers it necessary to order otherwise, proceed in asummary way to hear and determine the cause, without further pleading or formaljoinder of issue.

(2) The Court may order the parties to state more fully their respectivecases and may thereupon frame issues before determining the cause.

Examination of witnesses.

49. (l) Before the hearing of any civil proceedings in whichwitnesses are to be examined, the Court shall direct that all witnesses otherthan parties shall leave the Court.

(2) The Court may in its discretion permit professional and technicalwitnesses to remain in Court.

(3) Failure to comply with the provisions of this rule shall not invalidate the proceedings.

(4) The Court after an opening address, if any, shall hear the plaintiff, and such witnesses as he may examine and such other evidence as he may adduce in support of his plaint.

(5) Subject to rule 53(2) the Court shall also hear the defendant and suchwitnesses as he may examine and such other evidence as he may adduce in hisdefence and such other witnesses as the plaintiff may, with leave of the Court,examine in reply.

(6) Addresses shall be made in accordance with the provisions of rule61.

PROCEDURE WHEN ONLY ONE PARTY APPEARS

When plaintiff fails to appear or to prove his case.

50. (l) If, on the day of hearing or at any continuation or anyadjournment of the Court or cause, the plaintiff shall not appear orsufficiently excuse his absence, the cause shall, unless the Court sees goodreason to the contrary, be struck out except as to any counter- claim by thedefendant.

(2) If the plaintiff appears but does not prove his claim to thesatisfaction of the Court, the Court may strike out the cause or give judgmentfor the defendant without calling on the defendant for his defence.

(3) If the plaintiff does not appear when called upon, but the defendantappears and admits the cause of action to the full amount claimed, the Court mayproceed to give judgment, with or without costs, as if the plaintiff hadappeared.

Counter-claim where plaintiff does not appear.

51. If the defendant to a cause which has been struck out under rule50 has a counter- claim the Court may, on due proof of service on the plaintiffof notice thereof, proceed to hear the counter-claim and give judgment on theevidence adduced by the defendant, or may postpone the hearing of thecounter-claim and direct notice of such postponement to be given to theplaintiff.

Costs of defendant where plaintiff does not appear.

52. If the plaintiff does not appear on the day of hearing, or at anycontinuation or adjournment of the Court or cause and the defendant appears, theCourt may award costs to the defendant.

When defendant fails to appear.

53. (1) If on the day of hearing or at any continuation or adjournment of the Court or cause the plaintiff appears and the defendant does not appear or sufficiently excuse his absence or neglects to answer when called in Court the Court may, on due proof of service of the summons, and if satisfied that the time between the date of service and the date of hearing was sufficient for the defendant to have appeared had he wished so to do, proceed to the determination of the cause and the judgment thereon shall be as valid as if both parties had appeared.

(2) If the Court is not satisfied that the defendant has had such reasonabletime, the Court shall adjourn the hearing to a convenient date and notify the defendant of the adjournment.

(3) If the Court has determined any cause or matter in the absence of thedefendant under the provisions of sub-rule (1) and the defendant has filed acounter-claim, the counter- claim shall, unless the Court sees good reason tothe contrary, be struck out.

Setting aside of judgment given in absence of party.

54. The Court, at the same or any subsequent sitting, may set asideany judgment or order given or made against any party in the absence of suchparty, and the execution thereupon, and may grant a new trial or hearing, uponsuch terms, if any, as it may think just, on sufficient cause being shown to theCourt.

Re-listing of causes stuck out.

55. Any cause struck out may, by leave of the Court, be re-institutedon such terms as to the Court may seem fit.

Power to refer to referee.

56. (1) A Court may send to a referee, on being satisfied thatadequate provision has been made, whether by payment into Court or by givingsecurity or otherwise for payment of the costs of the reference, for inquiry andreport —

(a) a civil proceeding which requires the prolonged examination ofdocuments or any scientific or local investigation which cannot, in the opinionof the Court, conveniently be carried out before it;

(b) a civil proceeding where the question in dispute consistswholly or in part of matters of account; and

(c) with the consent of the parties, any other matter arising out of acivil proceeding before it in which, for reasons to be recorded by the Court, itis satisfied that it is proper so to do.

(2) If a proceeding or matter is sent as aforesaid, the Court may direct howthe reference shall be conducted, and may send back any report for furtherinquiry and report and, on consideration of any report or further report maygive such judgment or make such order in the proceeding as it thinks fit.

(3) In this section a “referee” is a person appointed by theChief Registrar.

How security is to be given and enforced.

57. (1) If either party to a cause makes an application to a Court that the other party shall give security, whether with or without sureties, and the Court is of the opinion, after hearing the parties, that such security should be given, it shall specify the amount of security and direct whether it be given with or without sureties and whether it shall be given by way of a cash deposit.

(2) If a party is required to give security by way of a bond with or withoutsureties or by any way other than a cash deposit, it shall be at the cost of theparty giving it.

(3) If the Court has ordered that security, other than a cash deposit, begiven, it shall be given to the satisfaction of an officer of the Court unlessthe Court directs that it be to the satisfaction of the other party.

(4) If security, other than a cash deposit, is required to be given, theparty to whose satisfaction the security is to be given may require the Court todirect, or the Court may direct, that the value of the security offered or thestanding of the sureties, if any, be verified by affidavit of the party offeringthe security or by some other person with a knowledge of the security or thesureties.

(5) The Court to which any action on the security shall be brought may, byorder, give such relief as may be just and such order shall have the effect of adefeasance of such bond or the fulfilment of such security.

Court may direct security to be by deposit of money or otherwise.

58. The Court may direct that a party required to give security shall,instead of entering into a bond, give such other security, by deposit of moneyor otherwise, as the Court may deem sufficient.

Service of summons to witnesses.

59. A party to a cause may obtain from the Court summonses towitnesses, with or without a clause requiring the production of the books,deeds, papers, and writings in the possession or control of the person summoned as a witness in accordance with the provisions of rules 16, 17and 18.

Power to require persons present in Court to give evidence.

60. Any person present in Court may be required by the Court to giveevidence or to produce any document in his possession or power.

PART IX

ADDRESSES, JUDGMENTS AND COSTS

Addresses.

61. (1) The party on whom the burden of proof lies shall be entitled to address the Court at the commencement of the case.

(2) When the party who began has closed his case, his opponent shall,provided there is any case to meet, announce whether he intends to adduceevidence or not.

(3) If he announces that he does not intend to call evidence, the partybeginning shall be entitled to address the Court for a second time, for thepurpose of summing up his evidence, and his opponent shall have a right ofreply.

(4) When the party beginning has concluded his case, if the opponent decidesto call witnesses, he shall be at liberty to open his case, call his witnessesand sum up and comment not only on his own evidence but on the whole case.

(5) If the party opposed to the party who begins adduces evidence,the party beginning shall be at liberty to reply generally on the wholecase.

Giving of judgment on conclusion of hearing.

62. On the conclusion of the hearing, the Court shall either at thesame or at a subsequent sitting deliver judgment in the cause and shall, if sorequired by the plaintiff or defendant and on payment of the prescribed fee,cause to be delivered to the plaintiff or defendant, as the case may be, acertified copy of the judgment so delivered.

What orders to be made.

63. Subject to any written law, the Court may in any civil proceedingsmake any order which it considers necessary, whether such order has or has notbeen expressly asked for by the person entitled to the benefit of the order.

Judgment to be complied with without demand.

64. If a person is directed by a judgment or order to pay any money,or to deliver up or transfer any moveable property to another, the person sodirected shall be bound to obey such judgment or order without demand.

Payment and suspension of judgments and orders.

65. (l) If a judgment is given or an order is made by a Court underwhich a sum of money is payable, whether by way of satisfaction of the claim orcounter-claim or by way of costs or otherwise, the Court may order the money tobe paid either —

(a) in one sum, whether forthwith or within such period as theCourt may fix; or

(b) by such instalments payable at such times as the Court mayfix.

(2) If it appears to the Court that a party to civil proceedings is unable to pay any sum ordered against him, whether by way of satisfaction of the claim or counter-claim or by way of costs or otherwise, or any instalment thereof, the Court may suspend or stay any judgment or order given or made or reduce the amount of any instalment ordered to be paid on such terms as the Court thinks fit.

Judgment debt to carry interest.

66. (1) Unless it has been otherwise agreed between the parties, ajudgment debt shall carry interest at the rate of 6% per annum calculated fromthe date of the judgment till the judgment is satisfied, unless the Courtotherwise orders.

(2) Interest at a rate exceeding 6% per annum shall not be ordered.

Apportionment and payment of costs.

67. (1) The fees and costs of civil proceedings shall be paid by orapportioned between the parties in such manner as the Court may think fit, and,in default of any special direction, shall follow the event of suchproceedings.

(2) Execution may issue for the recovery of such fees and costs togetherwith interest thereon, if any, in like manner as it issues for the amount of anyjudgment obtained in the said Court.

(3) The Court shall have power to refuse costs in whole or in part to eitherparty.

Costs may be set off against sum admitted or found to be due.

68. The Court may direct that the costs payable to one party byanother shall be set off against any sum which is admitted or is found in theproceedings to be due from the former to the latter.

Interest on costs and payment of costs of subject-matter.

69. (1) The Court may, on the application of the party entitled tocosts, order interest to be paid on such costs at a rate not exceeding 6% perannum from the date on which they became due.

(2) The Court may direct that costs, with or without interest, be paid outof or charged upon the subject-matter of the proceedings.

Security for costs.

70. In civil proceedings the Court may, either of its own motion or onthe application of a defendant, require a plaintiff, to give security for coststo the satisfaction of the Court, by deposit or otherwise, or to give further orbetter security, and may likewise require any defendant to give security orfurther or better security, for the costs of a proceeding.

Forms.

71. The forms contained in the Schedule may, with such variations as the circumstances of the particular case may require, be used, and when so used shall be sufficient in law.

Procedure if no provision in Rules. [S 27/96]

71A. Where there is no provision in these Rules for the appropriateprocedure or form, the procedure and forms in force or used in the High Courtmay, if the Court thinks fit, be followed and adopted, as near as maybe.

SCHEDULE

FORM 1

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 13)

PLAINT NOTE

In the ......................................................... Court, .......................................................... Between ..................................................................................................................... Plaintiff of (address) ......................................................................................................................

and

....................................................................................................................... Defendant of (address).......................................................................................................................

......................................................................................................................................... No. of plaint .............................................................................................................................. Fees paid: on filing plaint $

hearing fee $

Total $

Receipt No. ........................

The above action was entered this day, and, if the plaint is entertained bythe Court, the place, date and time of hearing will be notified to you in duecourse.

Dated this ............................. day of............................., 20 .............. .

(Seal)

...................................................
Clerk

Notes:

(l) The hearing fee must be paid before an action or matter is called on.

(2) Bring this plaint note with you when you come to the Court house forany purpose connected with these proceedings.

(3) On the day of hearing bring all books and papers necessary to proveyour claim.

FORM 2

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 14)

SUMMONS (CIVIL)

In the ....................................................... Court, ............................................................. To .............................................................................................................................................. of (address) ...................................................................................................................... WHEREAS ......................................................................................................................

of (address) ............................................................................................................................... has instituted a suit in this Court against you for (state cause of action, with brief particulars of the facts, and the damages or sum claimed or other remedy sought)

...................................................................................................................................................

you are hereby summoned to appear in this Court in person on the ........................................ day of ....................................... at ..................................... in the ................................... noon to answer the above-named plaintiff. And as the day fixed for your appearance is appointed for the final disposal of the suit you must be prepared to produce all your witnesses and documentary evidence on that day. And you are hereby required to take notice that, in default of your appearance on the day before-mentioned, the suit will be heard and may be determined in your absence.

Dated this ................................ day of............................., 20 ............... .

(Seal)

....................................................... Magistrate

I hereby acknowledge that I have received a copy of this summons No.......................

dated ................................, 20 .............. .

....................................................

The summons of which this is a true copy was served by me on the defendant, personally, at ......................................................on the ........................................................... day of..........................................., 20 ................ .

..........................................................
Person effecting service

FORM 3

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 17)

SUBSTITUTED SERVICE IN THE GAZETTE OR NEWSPAPER

In the ........................................... Court,................................................

No. of plaint ......................................................

TAKE NOTICE that an action has been commenced against you in the above Court by .............................................................................................................................................. of (address) ........................................................... for ............................................................. and an order has been made that publication of a notice of the entry of such action in the Gazette (or the ............................................................................ newspaper) shall be deemed to be good and sufficient service of the proceedings on you.

The action will be heard at .............................................................................................. on ........................................ the ....................................... day of ........................................... at the hour of .................................................... in the .................................................... noon, on which day you are to appear, and if you do not appear either in person or by a representative qualified to appear on your behalf at the time and place above-mentioned, such order will be made as the Court thinks just.

Dated this ................................ day of............................., 20 .............. .

.......................................................
Magistrate

To .........................................

of (address) ................................................

FORM 4

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 17)

ORDER FOR SUBSTITUTED SERVICE

In the ........................................................ Court, ............................................................ UPON READING the Affidavit of ................................................................................. of ................................ sworn the ................................. day of .......................... 20 .............. . IT IS ORDERED [that a copy of the ......................................................... issued in this action together with a copy of this order be served on some inmate of or above the apparent age of eighteen years at .......................................................... being the usual (or last known) place of residence (or business) of ........................................................................... (name of plaintiff, defendant, witness or party)]

[or that a copy of the ................................................. issued in this action together with a copy of this order, be sent by registered post addressed to ................................................... (name of plaintiff, defendant, witness or party)] at .................................................. being the usual (or last known) place of residence (or business) of the said ......................................... ]

[or that notice of the ............................................................ be published in the Gazette ]

[or that notice of the ................................................................................... be published in the ........................................................................ newspaper in (number) separate issues]

[or that a copy of the.................................................................... in thisaction shall be affixed to premises at............................................................. being the usual(or last known) place of residence (or business) of........................................... (name of plaintiff, defendant,witness or party)]

(or as may otherwise be ordered by the Court).

Dated this ................................ day of............................., 20 .............. .

.......................................................
Magistrate

To .........................................

FORM 5

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 40(1))

JUDGMENTS FOR PLAINTIFF FOR COSTS WHERE WHOLE CLAIM PAID OR AMOUNT PAIDINTO COURT ACCEPTED IN SATISFACTION

In the ......................................................... Court,...........................................................

The defendant having paid into Court the whole amount of the plaintiff’s claim (or the sum of $ ............................................... paid into Court by the defendant having been accepted by the plaintiff in satisfaction of his claim) and the plaintiff’s costs having been allowed at the sum of $ ............................

IT IS ADJUDGED that the plaintiff do recover against the defendant the sum of $ .................................... for his costs (including the costs of entering judgment).

AND IT IS ORDERED that the defendant do pay the same to the Clerk of thisCourt forthwith.

Dated this ................................ day of............................., 20 ................ .

.......................................................
Magistrate

FORM 6

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 40(2))

NOTICE TO PLAINTIFF OF PAYMENT INTO COURT OF PART OF CLAIM

In the ......................................................... Court,..........................................................

TAKE NOTICE that the defendant.................................................................. has paid intoCourt the sum of $ ................................ in satisfaction of yourclaim in this action (add, if so, with a defence of tender before action or witha denial of liability).

If you elect to accept the payment made in satisfaction of your claim you must within 7 days after the receipt by you of this notice send to the Court by post or otherwise a written notice of acceptance. Your acceptance will not prelude you from recovering any costs properly incurred before the receipt by you of this notice.

Dated this ................................ day of............................., 20 .............. .

.......................................................
Magistrate

(Note: When applying for the above amount you must produce the plaint note issued to you on the entry of the plaint).

FORM 7

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 41)

NOTICE OF APPLICATION FOR ENTRY OF JUDGMENT

In the ............................................................ Court,........................................................

Between.................................................................................Plaintiff and

..................................................................................................Defendant

Application is hereby made in accordance with rule 41 that judgment beentered for the plaintiff in the above action for the amount claimed, with costs and court fees, namely —

Amount claimed

Costs Court fees Total

Less amount paid

by defendant to plaintiff since the issue of the plaint

Net total

Dated this ................................ day of ............................., 20 ............... .

FORM 8

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 57)

BOND

In the ................................................ Court of.........................................

No. ..................................., 20 ............... . Between .......................................................... Plaintiff,

and ....................................................... Defendant.

I/we ....................................... of...................................... and ...................................of

.............................. am/are bound to.......................................... of.......................................... in the sum of $.............................. to be paid to the said.................................. his executors, administrators or assigns, forwhich payment I/we bind myself ourselves, and each of us for himself in thewhole, my/our and every of my/our heirs, executors, and administrators.

Dated this ................................ day of............................., 20 ............... .

WHEREAS a suit has been brought in the said Court at................................................ wherein......................................... is the plaintiff and....................................... is defendant.

AND WHEREAS the said ....................................... has been orderedto give bail to the satisfaction of the Court until execution or satisfaction ofthe decree of Court in case judgment therein be given against him.

AND WHEREAS the above-named...............................................................................and ....................................................... at the request ofthe said ............................................ have agreed to enter intothis obligation for the purpose aforesaid.

THE CONDITION of this obligation is such, that if the said........................................ shall satisfy the judgment of the Courttherein which may be given against him, with costs, then his obligation shall bevoid; otherwise his obligation shall remain in full force.

Signed, sealed and delivered )

by the above-named in the ) (L.S.)

presence of —

FORM 9

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 59)

SUBPOENA TO GIVE EVIDENCE

In the .................................................. Court, ..................................................................

......................................................................... vs ................................................................... To .................................................................................................................................... of ............................................................................................................................................... Your attendance is required in Court because it is understood that you are likely to be able to give material evidence in the above case.

You are hereby summoned to appear before the ............................................................................................................... Court .............................................. on the ........................... day of ............................................. at ................................ o’clock to testify what you know concerning the matter in the said case, and not to depart thence without leave of the Court. If you, without just excuse, neglect to appear on the said date, a warrant will be issued to compel your attendance.

You are further required to bring with you and to produce to the Court thefollowing documents which are believed to be in your possession,

viz:— .......................................................................................................................................

...................................................................................................................................................

Given under my hand and the seal of the Court this.......................................................

...................................... day of.........................................., 20 ............... .

Fee $ .................................

....................................................... Magistrate

(SEAL)

I hereby acknowledge that I have received a copy of this subpoena No........................

dated .........................................., 20 .............. .

I hereby declare that I duly served a copy of this subpoena upon the personnamed therein.

.......................................................
Person effecting service

FORM 10

MAGISTRATES’ COURTS (CIVIL PROCEDURE) RULES

(Rule 65)

JUDGMENT FOR PLAINTIFF

(Payment by Instalments)

In the ........................................................... Court,......................................................... IT IS ADJUDGED thatthe plaintiff do

recover against the defendant the sum of ..................................................... $ for debt (or damages), and costs ................................................................... $ amounting together to the sum of $ (And the defendant having paid the sum of $ ................................................................. into Court (or to the plaintiff).

IT IS ORDERED that the defendant do pay the sum of $ .............................................. to the Clerk of this Court by instalments of ............................................................................. for every .......................................................................; the first instalment to be paid on the .......................................... of ................................... 20 .............. .

IF DEFAULT is made in payment of any instalment according to this order, execution or succesive may issue for the whole of the said sum and coststhen remaining unpaid, or for such portion thereof as the Court shall order.

Dated this ................................ day of............................., 20 ............. .

.......................................................
Magistrate

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