TONGA

BAILIFFS ACT 2000

Act No 5 of 2000

Arrangement of Sections

Section
PART I - PRELIMINARY

1 Short Title.
2 Interpretation.

PART II - ADMINISTRATION

3 Establishment of Bailiffs office.
4 Appointment.
5 Temporarily Appointments.
6 Bailiffs Districts.

PART III - DUTIES AND FUNCTIONS OF BAILIFFS

7 Duties and functions of Chief Bailiff.
8 Special Seizure.
9 Discharge of Undertaking.
10 Bailiffs' Oath.
11 Proof of Service.

PART IV - BAILIFFS' INTERPLEADER

12 Claim to goods seized.
13 Bailiffs' Interpleader.
14 Power of Court hearing Summons.
15 Protection of Bailiff under Execution without Notice by third Party.
16 Power to stay proceedings.

PART V - LIABILITY, OFFENCES, POWER TO ARREST

17 Exemption from liability.
18 Misconduct and Offences.
19 Civil Liability.
20 Offences.
21 Police Officers to assist.

PART VI - MISCELLANEOUS

22 Process to be addressed to the Registrar where Chief Bailiff is a party or witness.
23 Bailiffs Costs.
24 Transitional Provision.
25 Priority of Executions.
26 Bailiffs Funds.
27 Regulations.

SCHEDULE
SPECIAL SEIZURE UNDER DISTRESS
OATH TO BE TAKEN BY BAILIFF
CERTIFICATE OF SERVICE

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BAILIFFS ACT 2000

Act No 5 of 2000

AN ACT TO PROVIDE FOR THE ESTABLISHMENT AND OPERATION OF THE BAILIFFS' OFFICE

I assent,
TAUFA'AHAU TUPOU IV,
4th August, 2000

[18th July, 2000]

BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature of the Kingdom as follows:

PART I - PRELIMINARY

1 Short Title

This Act may be cited as the Bailiffs Act 2000.

2 Interpretation

In this Act, unless the context otherwise requires-

"Bailiff" means the Chief Bailiff and any other Bailiff appointed pursuant to section 4;

"Bailiffs' district" means a district specified under section 6;

"Court" means the Supreme Court of Tonga or any Court;

"Judgment debtor" means a person liable under a judgment or distress warrant issued by a Court;

"Registrar" means Registrar of the Supreme Court; "Minister" means the Minister of Justice; "Ministry" means the Ministry of Justice; "Secretary" means the Secretary of Justice.

PART II - ADMINISTRATION

3 Establishment of Bailiffs' office

There is hereby established a Bailiffs' Office which shall be under the administration of the Ministry of Justice.

4 Appointment

The Prime Minister, with the consent of Cabinet, may appoint a Chief Bailiff and such other Bailiffs as are required for each Bailiffs' district.

5 Temporarily Appointments

In any case of necessity the Minister may in writing appoint any competent person to assist a Bailiff in the discharge of his duties and any such person shall have the same powers and be entitled to the same protection as the Bailiff whom he is assisting.

6 Bailiffs' Districts

The Kingdom shall be dividend into the following Bailiffs' districts:

(a) Tongatapu and 'Eua;

(b) Ha'apai Island group;

(c) Vava'u Island group;

(d) Niuafo'ou; and

(e) Niuatoputapu.

PART III - DUTIES AND FUNCTIONS OF BAILIFFS

7 Duties and functions of Chief Bailiff

(1) The Chief Bailiff shall have the following duties and functions:

(a) to execute writs, warrants and orders of a Court.

(b) to serve summonses and other documents or process required to be served by the Rules of any Court.

(c) to attend any Court when required to do so.

(d) to perform any other functions required by a Court, or under any other law.

(e) to ensure the safe keeping of all copies of any document required by the Court to be executed, served or used for any function required by the Court.

(f) to ensure the safe keeping of all money, goods, chattels or proceeds which are required to be in the custody of the Bailiffs in performance of their duties and functions until disposed of as ordered by the Court.

(2) Notwithstanding subsection (1), the Chief Bailiff may for the purposes of this Act, allocate any of the functions specified in subsection (1) to any Bailiff.

8 Special Seizure

(1) Where a Bailiff executing a writ of distress or distress warrant considers it impractical to remove any item seized, he may declare that the item or items have been specially seized and leave it in the place where it is being kept at the time of the execution of the writ or warrant.

(2) All items specially seized under subsection (1) shall be listed in Form 1 of the Schedule and the person at the time in possession of the item seized shall be required to sign the undertaking on the form.

(3) If the person in possession of the item seized refused to sign the completed form, the Bailiff shall endorse the form to that effect.

(4) Whether or not the person in possession of the item has signed the form, he shall be bound by the terms of the undertaking and those terms shall be explained to him by the Bailiff and a copy of the form served upon him before the Bailiff leaves the place where the item specially seized is kept.

(5) Any person bound by the undertaking shall maintain the item seized in proper repair and shall not dispose of it and shall allow the Bailiff reasonable access to inspect it or to arrange for its disposal in accordance with the Court order under which it was seized.

(6) Any person who fails to perform any obligation under the undertaking shall commit an offence and shall be liable on conviction to a fine not exceeding $500 or to imprisonment not exceeding 6 months or both.

9 Discharge of Undertaking

Any person who is subject to an undertaking in relation to any item specially seized under section 8 may apply to the Court which issued the order for his discharge from the undertaking upon the following grounds:

(a) another person has the rightful possession;

(b) another person is the owner thereof; and

(c) such other grounds that may be acceptable to the Court.

10 Bailiffs' Oath

Every Bailiff shall, on his appointment and before performing any duties, take an oath before a Magistrate which shall be as set out in Form 2 in the Schedule.

11 Proof of Service

(1) Where any summons or any other document is served by a Bailiff or any other officer it shall be sufficient to prove service of such document if the serving officer shall complete the Certificate of Service in Form 3 of the Schedule.

(2) Any Bailiff or other officer who endorses a Certificate of Service with intent to defraud any person commits an offence and shall be liable on conviction to a fine not exceeding $500 or to imprisonment not exceeding 6 months or both.

PART IV - BAILIFFS' INTERPLEADER

12 Claim to goods seized

Where any person claims title to any property seized by a Bailiff under an order of any Court that person shall notify the Chief Bailiff or his office in writing within 7 days of the seizure of the property setting out the following:

(a) the nature of his entitlement;

(b) a list of the items claimed; and

(c) his address, which shall be his address for service.

13 Bailiffs' Interpleader

Upon receipt of a claim under section 12, the Chief Bailiff shall notify the judgment creditor and the Court which issued the process. Unless the judgment creditor admits the claim within 7 days the Court shall issue a summons to all interested parties.

14 Power of Court hearing Summons

(1) At the hearing of the interpleader the Court may:

(a) where all the claimants consent or a party so requests; or

(b) the facts are not disputed and the question at issue is a question of law;

summarily determine the issue and make an order in such terms as may be just.

(2) Where a party fails to appear, and the Court is satisfied that the party has been properly served, the Court may, on application by a party attending, make an order in his absence.

15 Protection of Bailiff under Execution without Notice by third Party

(1) When no claim has been made at the time of sale or disposal of any property seized:

(a) a bona fide purchaser of the property shall have good title to it; and;

(b) no person shall be entitled to recover against the Chief Bailiff or any Bailiff for sale or disposal of such property unless it is shown that the Chief Bailiff or person acting under his authority had notice that the property did not belong to the Judgment debtor.

(2) The right of any claimant, who may prove he had such title to any property, to any other remedy, shall not be affected.

16 Power to stay proceedings

Where there are proceedings in which there is a claim to possession of property subject to process for distress, the Court may, on the application of any interested party, order a stay of those proceedings until the interpleader action has been determined.

PART V - LIABILITY, OFFENCES, POWER TO ARREST

17 Exemption from liability

Subject to this Act, no liability attaches to a Bailiff for any act committed by him in good faith in the performance of his duties.

18 Misconduct and Offences

A Bailiff who knowingly does anything amounting to neglect, misconduct or breach of duty commits an offence and is liable on conviction to a fine not exceeding $1,000 or imprisonment for a term not exceeding 12 months or both.

19 Civil Liability

Notwithstanding section 18 of this Act civil proceedings may be instituted against a Bailiff for any refusal, neglect, wilful delay or improper conduct in the performance of his duties.

20 Offences

(1) Any person who:

(a) conceals any goods against which a Writ or Warrant has been issued or makes a pretended sale or gift of those goods in order to evade the levy of a Writ or Warrant or makes a false declaration of the value of the goods; or;

(b) interferes with, hinders or offers any bribe or other inducement to prevent a Bailiff in the performance of his duties in any way other than that in subsection (2);

commits an offence and is liable on conviction to a fine not exceeding $2000 or imprisonment for a term not exceeding 2 years or both.

(2) Any person who assaults, resists, obstructs or intimidates a Bailiff in the performance of his duties commits an offence and is liable on conviction to a fine not exceeding $1000 or imprisonment for a term not exceeding 12 months or both.

21 Police Officers to assist

(1) Upon request by any Bailiff a police officer shall aid and assist him in the execution of any duty imposed under this Act.

(2) In any Bailiffs' district where there is no Bailiff a police officer may exercise the powers of a Bailiff under this Act.

PART VI - MISCELLANEOUS

22 Process to be addressed to the Registrar where Chief Bailiff is a party or witness.

(1) In any proceedings in a Court to which the Chief Bailiff is a party or a witness all writs and other process therein shall be addressed for service or execution to the Registrar; and

(2) the provisions of this Act shall apply as if the Registrar were the Chief Bailiff and the said Registrar may direct a Bailiff to serve or execute the same.

23 Bailiffs Costs

All expenses properly and reasonably incurred by the Bailiffs' Office shall be charged on and paid out of the matter or suit in respect of which they were incurred before any other payments are made.

24 Transitional Provision

Nothing in this Act shall render invalid or void anything done by any Bailiff under a court order made prior to this Act coming into force.

25 Priority of Executions

Where a writ of distress is issued against any property by the Supreme Court and a distress warrant is issued against the same property by the Magistrates Court, the rights to the goods seized shall be determined by the priority in time of the application for the issue of the writ or warrant.

26 Bailiffs Funds

(1) The Secretary shall open and maintain an interest bearing bank account, called the Bailiffs' Fund Account for the purpose of depositing and paying out Bailiffs' funds.

(2) The Chief Bailiff shall ensure that all money or proceeds from the sale of seized property are received, recorded and signed for by the Secretary. The Secretary shall deposit those moneys into the Bailiffs' Fund Account.

(3) The Secretary shall firstly pay the costs of the Chief Bailiff as determined under section 23.

(4) The Secretary shall then ensure that the amount directed by the Court be paid to any person out of the money paid in to the Bailiffs' Fund Account be paid to that person upon presentation of the relevant Court order and any surplus returned to the Judgment debtor.

(5) The Bailiffs' Fund Account shall be subject to annual audit to be carried out by the Auditor General.

27 Regulations

The Minister may, with the consent of Cabinet, make any regulations for carrying out the purpose and for the administration of this Act.

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SCHEDULE

SCHEDULE (Section 8) - FORM 1

SPECIAL SEIZURE UNDER DISTRESS

Court of issuing process:
Name of case:
Number of case:
Number of writ/warrant of distress:

I ............................................................., an authorised Bailiff, having on the ............ day of ........................................, 20.............. executed the above-named court process at .................................................... in the presence of ................................................. who is the person at present in possession of the items listed below;

And as I consider that it is impractical at this stage to remove the items listed below; I declare the following items to be specially seized:

Signed this ........... day of .......................... 20.........
Bailiff

Undertaking by the person at present in possession:

I ......................................................................, having been present at the time the above-named items were specially seized, HEREBY UNDERTAKE:

1. to maintain the said items in proper repair
2. not to dispose of the said items
3. to allow the Bailiff reasonable access in order to examine the said items and to dispose of them in accordance with any order of the court

Signed this ........... day of .......................... 20.........

Person in Possession

Endorsement by bailiff where the person in possession refuses to sign the undertaking:

I, ......................................... invited the person in possession, ....................................., to sign the above undertaking and he refused.

Bailiff

FORM 2 (SECTION 10)

OATH TO BE TAKEN BY BAILIFF

I, ........................................................., will carefully perform all the functions of my office faithfully, honestly, diligently, impartially, without fear or favour, or wilful delay, according to the best of my knowledge and abilities.

Bailiff

Taken this .................day of .................................20..............

Before me at ..........................................................
Magistrate

FORM 3 (Section 11)

CERTIFICATE OF SERVICE

Case No.........

Between: ..........................................................................Plaintiff
And: ..................................................................................Defendants

I ..............................................................do hereby certify that at ......................am/pm on the ............. day of .......................................... 20 ............ at........................................

I did serve
Whose identity I knew because

Signature:...........................................
Date:...................................

Documents served:

Passed by the Legislative Assembly this 18 day of July, 2000.

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