[Reprinted in 1920-1977 Edition]
SAMOA

MAGISTRATES' COURTS

ANALYSIS
Title

PART I
PRELIMINARY

1. Short title and commencement
2. Interpretation

PART II
CONSTITUTION

Magistrates' Courts

3. Courts constituted
4. Exercise of civil or criminal jurisdiction in Courts appointed

Magistrates and Fa'amasino 
Fesoasoani

5. Appointment and qualifications of Magistrates
6. Appointment of Fa'amasino Fesoasoani
7. Salaries and allowances 
8. Tenure of office
9. Magistrates to be Coroners
10. Acting Magistrates and Fa'amasino Fesoasoani

Registrars

11. Appointment of Registrar
12. Record of proceedings to be kept by Registrar 
13. Deputy Registrars

Bailiffs and Others

14. Appointment of bailiffs
15. Powers and duties of bailiffs 
16. Court administrative officers

PART III
JURISDICTION

General
17. Jurisdiction of Magistrate
18. Jurisdiction of Fa'amasino Fesoasoani
19. Persons who may exercise jurisdiction of Court
20. General ancillary jurisdiction
21. Ancillary powers of Magistrate and Fa'amasino Fesoasoani
22. Application of this Act

Civil Jurisdiction of Magistrate

23. General jurisdiction in actions on contract and tort
24. Money recoverable by statute
25. Jurisdiction in actions for recovery of freehold land
26. No jurisdiction in relation to customary land
27. Jurisdiction to divide chattels 
28. Equity jurisdiction
29. Abandonment of part of claim to give Court jurisdiction
30. Extension of jurisdiction by agreement between the parties 
31. Division of cause of action not allowed 
32. Administration in simple form

Civil jurisdiction of Fa'amasino Fesoasoani

33. Civil jurisdiction
34. Extended jurisdiction
35. Jurisdiction by abandonment of part of claim or by agreement

Criminal and Other Jurisdiction of Magistrate

36. General criminal jurisdiction
37. Jurisdiction in proceedings under the Customs Act 1977

Criminal Jurisdiction of Fa'amasino Fesoasoani

38. Criminal jurisdiction of all Fa'amasino Fesoasoani
39. Matters covered by that criminal jurisdiction
40. Extended jurisdiction

PART IV
CIVIL PROCEDURE

Parties

41. Trustees, executors, and administrators
42. Court may join beneficiaries
43. Infants
44. Mentally defective persons
45. Persons jointly liable
46. Proceedings against absent defendant
47. Bankruptcy of plaintiff

Transfer of Proceedings

48. Transfer to Supreme Court of proceedings within jurisdiction
49. Transfer of proceedings beyond jurisdiction
50. Transfer of proceedings where there is a counterclaim
51. Transfer of proceedings from Supreme Court by agreement between parties
52. Procedure and effect of transfer of proceedings from Supreme Court to Magistrate's Court
53. Costs in cases transferred or removed

Interpleader

54. Interpleader

Hearing

55. Right of audience
56. Equity and good conscience

Witnesses and Evidence

57. Witness entitled to expenses
58. Penalty for failing to comply with witness summons
59. Persons who may take an affidavit or affirmation
60. Evidence of witness out of Court

Reference to Arbitrator or Referee

61. Power to refer to arbitration
62. Power to refer to the Registrar or a referee for inquiry
63. Power to refer mere matter of account to the Registrar for inquiry

Judgments and Orders

64. Finality of judgments and orders
65. Payment of judgments and orders

Removal of Judgments

66. Removal of judgment of Magistrate's Court into Supreme Court
67. Action in Supreme Court on judgment or order of Magistrate's Court
68. Removal of judgment or order of Supreme Court into Magistrate's Court
69. Removal of judgment from one Magistrate's Court to another

Appeals

70. Right to appeal
71. Notice of appeal
72. Time for appeal: security for appeal
73. Cross-appeals
74. Procedure where appeal not prosecuted
75. Procedure on hearing of appeal
76. Further powers of Supreme Court on hearing of appeal
77. Court appealed from to be advised of determination
78. Stay o£ proceedings on appeal

Rehearing and Power to Set Aside

79. Rehearing
80. Magistrate may set aside proceedings of Fa'amasino Fesoasoani
81. Magistrate may set aside judgment or order of Registrar

Enforcement of Judgments Generally

82. Proceedings for enforcement of judgment
83. Enforcement of judgments more than 6 years old
84. Enforcement of order for payment by instalments
85. Proceedings on cross-judgments
86. Power to stay proceedings for enforcement

Warrant of Distress

87. Warrant of distress
88. Disposal by bailiff of bills of exchange, etc., seized
89. Recovery of money secured by bills of exchange, etc.
90. Penalty for rescue of goods seized

Sale of Goods Seized

91. Period to elapse before sale
92. Sale of goods by public auction unless otherwise ordered
93. Protection of bailiff selling goods under execution without notice of claim by third party
94. Procedure when goods seized are Officers of the Court secured under bill of sale
95. Priority of Supreme Court and Magistrate's Court executions
96. Sale of goods where claim made thereto
97. Bailiff's interpleader

Garnishee Proceedings

98. Garnishee proceedings

Recovery of Land

99. Warrant for recovery of land
100. Irregularity in execution of warrant can only be sued for as special damage
101. Person illegally obtaining warrant liable for trespass

Recovery of Chattels

102. Warrant for recovery of chattels
103. Further proceedings if chattels not recovered 

Absconding Defendant 

104. Absconding defendant may be arrested
105. Successful plaintiff entitled to execution, successful defendant entitled to compensation

PART V
GENERAL

Trial

106. Trial by Magistrate or Fa'amasino Fesoasoani
107. Fa'amasino Fesoasoani may sit with Magistrate
108. Magistrate or Fa'amasino Fesoasoani to take notes

Protection of Magistrate and 
Fa'amasino Fesoasoani.

109. No action against Magistrate or Fa'amasino Fesoasoani unless act in excess of or without jurisdiction
110. No action against Magistrate or Fa'amasino Fesoasoani to be brought in Magistrate's Court
111. Onus of proof
112. Plaintiff may be ordered to give security for costs
113. Indemnity to Magistrate or Fa'amasino Fesoasoani
114. Proceedings not to be questioned for want of form
115. Penalty for resisting or obstructing officer
116. Misconduct of officers
117. Officers of Court not to act as solicitors therein 
118. Neglect by bailiffs
119. Irregularity in executing 
120. Actions against bailiffs acting under warrants
121. Production of warrant sufficient proof of Court's authority

Contempt of Court

122. Repealed

PART VI
ADMINISTRATION

Sittings

123. Place of sittings
124. Times of sittings
125. Adjourned sittings

Financial Provisions

126. Payment and recovery of fees in civil proceedings
127. Fees to be paid to Public Account
128. Payment and recovery of fees in criminal proceedings
129. Money to be payable in first instance to Registrar

PART VII
MISCELLANEOUS

130. Summonses and other documents to be under seal 
131. Proof of service of documents
132. Language of documents
133. Actions on lost instruments 
134. No privilege to barristers or solicitors
135. Constables to assist Court
136. Magistrates' Courts Rules
137. Regulations
138. Repeals and savings
139. Amendments of enactments
140. Amendments of regulations Schedules

------------------------------------

THE MAGISTRATES' COURTS ACT 1969

1969, No. 2

An Act to consolidate, amend and extend the law providing for Magistrates' Courts and for the exercise of civil and criminal jurisdiction by Magistrates and Fa'amasino Fesoasoani in
Magistrates' Courts

[2l March 1969]

PART I
PRELIMINARY

1. Short title and commencement - (1) This Act may be cited as the Magistrates' Courts Act 1969.

(2) This Act shall come into force on the 1st day of April 1969.

Cf. 1947, No. 16, s. 1 (N.Z.)

As to exemptions from legal processes of the operations and personnel of the International Development Association, the International Bank for Reconstruction and Development, the International Finance Corporation and the International Monetary Fund, see s. 9 of the International Finance Agreements Act 1971.

2. Interpretation - (1) In this Act, unless the context other-wise requires,-

"Act" includes Ordinance:

"Action" means any civil proceedings in a Court which may be commenced as prescribed by statement. of claim:

"Bailiff" means a bailiff of a Court and includes any deputy bailiff and any person acting as bailiff pursuant to section 14 of this Act:

"Constable" includes every corporal and constable of [the Police Service]:

"Constitution" means the Constitution of the State:

"Court" and "Magistrate's Court" means a Court constituted under this Act:

"Defendant", in civil proceedings, means any person against whom an action has been commenced or an application for relief has been made and includes every party served with notice of or entitled to attend the proceedings otherwise than as a plaintiff; and in any other proceedings, means any person charged with an offence or against whom an application has been made for an order binding him over to keep the peace or for an affiliation or maintenance order or for any other order which the Court has jurisdiction to make: 

"Fa'amasino Fesoasoani" means a Fa'amasino Fesoasoani appointed under this Act or under any corresponding former Act:

"Gazette" means the Western Samoa Gazette:

"Infant" means any person under the age of 21 years:

"Judicial Service Commission" means the Judicial Service Commission constituted by Article 72 of the Constitution:

"Magistrate" means a Magistrate appointed under this Act or under any corresponding former Act:
"Matter", in any civil proceedings, means any proceeding in a Court which may be commenced as prescribed otherwise than by statement of claim:

"Minister" means the Minister of Justice:

"Officer", in relation to a Court., includes any Registrar of that Court, and any clerk, bailiff, usher, or messenger in the service of that Court:

"Party", in any civil proceedings, includes every person served with notice of, or attending, any proceeding other than as a witness or spectator, whether named as a party to that proceeding or not:

"Plaintiff" includes every person asking any relief (otherwise than by way of counterclaim as a defendant) against any other person by any form of civil proceedings:

"Prescribed" means prescribed by this Act or by the rules for the time being in force:

"Proceedings", with reference to civil proceedings, includes both actions and matters:

"Registrar" means the Registrar of the Court and includes any Deputy Registrar:

"Rules" means the Magistrates' Courts Rules made under section 136 of this Act:

"Rules Committee" means the Rules Committee constituted by and under section 40 of the Judicature Ordinance 1961:

"Secretary" means the Secretary for Justice:

"State" means the independent State of Western Samoa. 

(2) A non-suit, determination, direction, decision, judgment or order shall be deemed for the purposes of this Act to be given or made when it is delivered, whether orally or in writing, whether or not reasons therefore are subsequently delivered, and whether or not a formal judgment or order is subsequently drawn up, signed and sealed.

Cf. 1947, No. 16, s. 2 (N.Z.); 1961, No. 26, s. 2

In subs. (1), in the definition of the term "constable", the reference to the Police Service was substituted for a reference to the Police (as substituted for a reference to the Police Force by s. 3 (3) of the Police Act 1969) by s. 3 (3) of the Police Service Act 1977.

PART II
CONSTITUTION

Magistrates' Courts

3. Courts constituted - (1) There shall be within Western Samoa a subordinate Court of record, possessing civil and criminal jurisdiction, to be called the Magistrates' Court.

(2) The Head of State, acting on the advice of Cabinet, may at any time by order subdivide the Magistrates' Court and create separate Magistrates' Courts.

(3) Each Court shall have a seal which shall be kept by the Registrar.

Cf. 1947, No. 16, s. 4 (N.Z.); 1961, No. 26, s. 3

See Article 74 of the Constitution of Western Samoa.
For the creation of a separate Magistrates' Court at Tuasivi, Savai'i, see Order in Gazette 24 June 1974, p. 494.

4. Exercise of civil or criminal jurisdiction in Courts appointed - (1) The Minister may from time to time appoint places in Western Samoa in which Courts may be held for the exercise of civil and criminal jurisdiction.

(2) The Minister may at any time amend or revoke any appointment made under the provisions of subsection (1) of this section.

(3) Notwithstanding anything in the foregoing provisions of this section, a Magistrate may hold or direct the holding of a particular sitting of a Court at any place he deems convenient.

Cf. 1947, No. 16, s. 4 (N.Z.); 1961, No. 26, s. 3

Magistrates and Fa'amasino Fesoasoani

5. Appointment and qualifications of Magistrates - (1) For the purpose of this section, the Head of State, acting on the advice of the Judicial Services Commission, may from time to time by Order published in the Gazette and the Savali designates as an approved country any country which, in the opinion of the Commission, has legal system similar to that existing in Western Samoa.

(2) The Head of State, acting on the advice of the Judicial Service Commission, may from time to time by warrant published in the Gazette and the Savali appoint fit and proper persons to be Magistrates to exercise criminal and civil jurisdiction within Western Samoa.

(3) A person shall not be appointed a Magistrate unless he has been in practice as a barrister or solicitor in Western Samoa or in an approved country, or partly in one and partly in another or others, for a period of, or for periods amounting in the aggregate to, not less than 5 years.

[(3A) Notwithstanding subsection (3), a person may be appointed a Magistrate if he holds the office of Registrar of the Supreme Court, and has held that office for a period of, or for any periods amounting in the aggregate to, not less than 15 years.]

(4) The office of a Magistrate may be held in conjunction with any other office which the Head of State, acting on the advice of the Judicial Service Commission, shall deem not incompatible with the office of Magistrate.

Cf. 1961, No. 26, ss. 4, 23

As to subs (3), for a designation of approved countries, see Order, Gazette, 21 July, 1969, p.14, reprinted in this title.
Subs. (3A) was inserted by s.2 of the Magistrates' Courts Amendment Act 1976. See s.2(1) of the Act.
The following enactments provide for appointments to offices of a judicial nature:
Judges of the Supreme Court and Court of Appeal: See the Constitution of Western Samoa, Part VI, and the Judicature Ordinance 1961, Parts II and III.
Samoan Judges and Assessors of the Samoa Land and Titles Court: See Article 74 of the Constitution of Western Samoa, and Part VII of the Samoan Land and Titles Protection Ordinance 1934.
Magistrates and Fa'amasino Fesoasoani: See Article 74 of the Constitution of Western Samoa, and Part II of the Magistrates' Courts Act 1969.
Coroners: See the Coroners Ordinance 1959

6. Appointment of Fa'amasino Fesoasoani - The Head of State, acting on the advice of the Judicial Service Commission, may from time to time by warrant published in the Gazette and the Savali appoint fit and proper persons to be Fa'amasino Fesoasoani. 

Cf. 1961, No. 26, s.5

7. Salaries and allowances - Every Magistrate and Fa'amasino Fesoasoani (including any appointed temporarily under section 10 of this Act) shall be paid such salary or allowance and such travelling expenses and allowances and other allowances as may be fixed by the Head of State, acting on the advice of Cabinet after receiving the advice of the Judicial Service Commission, and as may be appropriate from time to time by the Legislative Assembly for those purposes.

Cf. 1961, No. 26, s.6; 1964, No. 17, s.8

See W.S.R. 1977/8, reprinted in title Samoan Land and Titles Protection.

8. Tenure of office - (1) The Head of State, acting on the advice of the Judicial Service Commission, may at any time by order published in the Gazette and the Savali remove a Magistrate or Fa'amasino Fesoasoani for inability or misbehaviour. 

(2) Every Magistrate or Fa'amasino Fesoasoani shall retire from office on reaching the age of 62 years: 

Provided that the Head of State, acting on the advice of the Judicial Service Commission, may by Order published in the Gazette and the Savali extend the period of office of a Magistrate or Fa'amasino Fesoasoani who has reached the age of 62 years.

(3) Any person of any age who is not a citizen of Western Samoa and who is qualified for appointment under the provisions of this Act may be appointed to hold the office of the Magistrate for a term of years. 

(4) Nothing done by the Magistrate or a Fa'amasino Fesoasoani in the performance of his duties shall be deemed to be invalid by reason only that he has reached the age at which he is required by this section to retire or that his term of office has expired.

(5) A Magistrate or Fa'amasino Fesoasoani may resign his office by writing under his hand addressed to the Secretary, which shall take effect,-

(a) In the case of a Magistrate appointed pursuant to subsection (3) of this section, on the expiration of 3 months from the receipt of such resignation by the Secretary, or as agreed;

(b) In any other case, on the receipt of such resignation by the Secretary, or as agreed.

Cf. 1961, No. 26, s.7; 1947, No.16, s.7 (N.Z.)

9. Magistrates to be Coroners - Every Magistrate shall, by virtue of his office, be deemed to have been appointed a Coroner. 

Cf. 1961, No. 26, s. 8; 1947, No. 16, s. 8 (N.Z.)

As to Coroners, see the Coroners Ordinance 1959.

10. Acting Magistrates and Fa'amasino Fesoasoani - (1) The Head of State, acting on the advice of the Judicial Service Commission, may at any time, after the removal, retirement or resignation or during the illness or absence of any Magistrate or Fa'amasino Fesoasoani, or for any other temporary purpose, by warrant published in the Gazette and the Savali appoint a Magistrate or Fa'amasino Fesoasoani to hold office until a permanent appointment is made or for such other time as is specified in such warrant.

[(2) No person shall be appointed a Magistrate under this section unless -

(a) He possesses the qualifications specified in subsection (3) of section 5 of this Act for appointment as a Magistrate under that section; or

(b) He holds the office of Registrar of the Supreme Court, and has held that office for a period of, or for any periods amounting in the aggregate to, not less than 10 years.

(3) No person shall be precluded from appointment as a Magistrate under this section by reason only of the fact that he has attained the age of 62 years.]

Cf. 1961, No. 26, s. 9; 1966, No. 1, s. 3; 1947, No. 16, s. 10 (N.Z.)

Subss. (2) and (3) were substituted for the original subs. (2) by s. 3 of the Magistrates' Courts Amendment Act 1976. See s. 1 (2) of that Act.

Registrars

11. Appointment of Registrar - (1) The Public Service Commission shall from time to time appoint a Registrar for each Court.

(2) The Registrar shall be responsible to the Secretary for Justice and the Minister for the administration and control of the Court offices.

(3) One person may be appointed Registrar for 2 or more Courts and one such Court may be the Supreme Court.

Cf. 1947, No. 16, s. 12 (N.Z.); 1961, No. 26, s. 10

12. Record of proceedings to be kept by Registrar - (1) The Registrar of each Court shall keep or cause to be kept such records of and in relation to proceedings in the Court as may be prescribed by the rules.

(2) Any entry in a book or other document required by the rules to be kept by the Registrar, or a copy thereof or extract therefrom sealed with the seal of the Court and purporting to be signed and certified as a true copy or correct extract by the Registrar, shall at all times without further proof be admitted in all Courts and places whatsoever as evidence of the entry and of the proceeding referred to thereby and of the regularity of that proceeding.

(3) If the existence of a record of the Court is in dispute the existence of that record shall be determined by the Court.

Cf. 1947, No. 16, s. 13 (N.Z.); 1961, No. 26, s. 10

13. Deputy Registrars - (1) The Public Service Commission may from time to time appoint one or more Deputy Registrars for any Magistrate's Court as may be necessary.

(2) Each Deputy Registrar shall, subject to the control of the Registrar, have the same powers and privileges, perform the same duties, and be subject to the same provisions and penalties as if he were the Registrar for the time being, whether those powers, privileges, duties, provisions or penalties are conferred, imposed or enacted under this Act or any other Act, or otherwise.

Cf. 1947, No. 16, s. 14 (N.Z.); 1961, No, 26, s. 11

Bailiffs and Others

14. Appointment of bailiffs - (1) The Public Service Commission may from time to time appoint a chief bailiff and may from time to time appoint such other bailiffs for each Court as may be necessary.

(2) A Magistrate may appoint a constable or other person to act for a particular occasion as bailiff at any Court or place. 

(3) Whenever any summons, warrant, or other process issued under the authority of this Act is received by any constable for service or execution, the constable in the service or execution of the process shall for all the purposes of this Act be deemed to be bailiff duly appointed under the provisions of this section.

Cf. 1947, No. 16, s. 15 (N.Z.); 1961, No. 26, s. 12

15. Powers and duties of bailiffs - Every bailiff shall -

(a) Have the powers of a constable under this Act, and shall, in the manner set out in [section 14 of the Police Service Act 1977], take and subscribe the oath set out therein, or to the like effect;

(b) Attend each sitting of the Court to which he is appointed for such time as is required, unless his presence is excused by the Court;

(c) Serve all summonses and orders and execute all warrants issued out of any Court and coming to his hands for the purpose of service or execution;

(d) Conform to all rules and regulations affecting the execution of his office, and in other respects be subject to the lawful directions of the Magistrate or Fa'amasino Fesoasoani or Registrar.

Cf. 1947, No. 16, s. 17 (N.Z.)

In para. (a), s. 14 of the Police Service Act 1977, being the corresponding enactment in force at the date of this reprint, has been substituted for s. 10 (1) of the repealed Police Force Ordinance 1951.

16. Court administrative officers - The Public Service Commission shall from time to time appoint such interpreters, clerks and other administrative officers as may be necessary, who shall perform such duties relating to the administration of the Court as may be assigned to them by the Registrar, with the approval of the Secretary.

Cf. 1961, No. 26, s.12

PART III

JURISDICTION 

General 

17. Jurisdiction of Magistrate - A Magistrate and a Court presided over by a Magistrate shall have the jurisdiction prescribed in this Act.

As to jurisdiction to make certain orders in respect of the return of, damages for, etc., property taken on search under the Poisons Act 1968, see s.31 of that Act.
As to maintenance and affiliation, see ss. 48 and 49 of the Maintenance and Affiliation Act 1967.
As to customary land, see s.26 of this Act.
As to carriage by air, see s.11 of the Carriage by Air Act 1964.
For exclusive jurisdiction of the Supreme Court, see s.17 of the Exclusive Economic Zone Act 1977.
As to failure to disclose or deliver property inquired for by the Public Trustee, see s.105 of the Public Trust Office Act 1975; and as to rules for proceedings under that Act, see s.128 thereof.

18. Jurisdiction of Fa'amasino Fesoasoani - A Fa'amasino Fesoasoani and a Court presided over by a Fa'amasino Fesoasoani shall have the jurisdiction prescribed in this Act:

Provided that the jurisdiction hereby conferred shall be exercised by the Fa'amasino Fesoasoani pursuant to such written instructions as may from time to time be given by the Chief Justice through the Registrar of the Supreme Court or as to any point not covered thereby by any Magistrate through the Registrar of the Magistrate's Court:

And provided further that the Chief Justice may by certificate published in the Gazette and in the Savali confer extended jurisdiction on any Fa'amasino Fesoasoani.

Cf. 1961, No. 17, ss. 5, 7

See also s. 2 (1) of the Offenders Probation Act 1971.
As to maintenance and affiliation, see ss. 48 and 49 of Maintenance Affiliation Act, 1967.

19. Persons who may exercise jurisdiction of Court - Any jurisdiction and powers conferred on Magistrates' Courts by this or any other Act may be exercised by any Magistrate or, to the extent authorised by this or any other Act or by the rules, by any Fa'amasino Fesoasoani or the Registrar or any person authorised to discharge the functions of the Registrar.

20. General ancillary jurisdiction - Every Magistrate's Court, as regards any cause of action for the time being within its jurisdiction, shall (subject to the provisions of section 56 of this Act) in any proceedings before it-

(a) Grant such relief, redress, or remedy, or combination of remedies, either absolute or conditional; and

(b) Give such and the like effect to every ground of defence or counterclaim equitable or legal - 

as ought to be granted or given in the like case by the Supreme Court and in as full and as ample a manner.

Cf. 1947, No. 16, s. 41 (N.Z.)

21. Ancillary powers of Magistrate and Fa'amasino Fesoasoani - A Magistrate or a Fa'amasino Fesoasoani may, in any proceedings pending within his jurisdiction, make any order or exercise any authority or jurisdiction which, if it related to an action or proceeding pending in the Supreme Court, might be made or exercised by a judge of the Supreme Court in Chambers.

Cf. 1947, No. 16, s. 42 (N.Z.)

22. Application of this Act - Where under any other Act, any power, authority or jurisdiction is given to a Magistrate or Fa'amasino Fesoasoani, the proceedings shall be had and determined in a Magistrate's Court in accordance with this Act and the rules, unless some other procedure is specially provided or required, and a Magistrate or Fa'amasino Fesoasoani in the exercise of that power, authority or jurisdiction shall have all the powers given under this Act to Magistrates or Fa'amasino Fesoasoani, as the case may be, but except as aforesaid or as expressly provided in this Act or the rules, nothing in this Act or the rules shall derogate from or affect the provisions of any other Act conferring any power, authority or jurisdiction on Magistrates or Fa'amasino Fesoasoani or on Magistrate's Courts.

Cf. 1947, No. 16, s. 124 (N.Z.)

As to fundamental rights, see Part II of the Constitution of Western Samoa.

Civil Jurisdiction of Magistrate

23. General jurisdiction in actions on contract and tort - A Court presided over by a Magistrate shall have jurisdiction to hear and determine any action founded on contract or on tort:
(a) Where the debt, demand or damage, or the value of the chattels, claimed is not more than $1,000; and

(b) Where the debt or demand claimed consists of a balance not exceeding $1,000, after a set-off of any debt or demand claimed or recoverable by the defendant from the plaintiff, being a set-off admitted by the plaintiff in the particulars of his claim or demand.

Cf. 1947, No. 16, s. 29 (N.Z.); 1961, No. 26, s. 14

24. Money recoverable by statute - A Court presided over by a Magistrate shall have jurisdiction to hear and determine any action for the recovery of any penalty, expenses, contribution or other like demand which is recoverable by virtue of any enactment for the time being in force, if - 

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

(b) The amount claimed in the action does not exceed the sum of $1,000.

Cf. 1947, No. 16, s. 30 (N.Z.); 1961, No. 26, s. 15

25. Jurisdiction in actions for recovery of freehold land - A Court presided over by a Magistrate shall have jurisdiction to hear and determine any action for the recovery of freehold land, or any interest therein, provided that the capital value of that land or interest, as the case may be, does not exceed $1,000 or the annual rental does not exceed $100.

Cf. 1947, No. 16, s. 31 (N.Z.); 1961, No. 28, s. 16

26. No jurisdiction in relation to customary land - The Court shall not have jurisdiction to hear or determine any action which in any way affects or is in relation to customary land.

As to such actions, see the Alienation of Customary Land Act 1965 and the Samoan Land and Titles Ordinance 1934.
As to customary land, see Part IX of the Constitution and the notes thereto.

27. Jurisdiction to divide chattels - Where any chattels not exceeding $1,000 in value belong to persons in undivided shares, the persons having a half interest or more than a half interest may apply to a Court presided over by a Magistrate for an order for division of the chattels or any of them according to a valuation or otherwise, or for sale of the chattels and division of the proceeds, and that Court shall have jurisdiction to hear and determine the application and to make such order and give such consequential directions as it thinks fit.

Cf. 1947, No. 16, s. 34 (2) (N.Z.)

28. Equity jurisdiction - (1) A Court presided over by a Magistrate shall have jurisdiction to hear and determine any of the following proceedings, that is to say -

(a) Proceedings for enforcing any charge or lien, where the amount owing in respect of the charge or lien does not exceed the sum of $1,000;

(b) Proceedings for the specific performance, or for the rectification, delivery up, or cancellation of any agreement for the sale, purchase or lease of any property, where in the case of a sale or purchase, the purchase money, or, in the case of a lease, the value of the property, does not exceed the sum of $1,000;

(c) Proceedings for the dissolution or winding up of any partnership (whether or not the existence of the partnership is in dispute), where the whole assets of the partnership do not exceed in amount or value the sum of $1,000;

(d) Proceedings for relief against fraud or mistake, where neither the damage sustained nor the estate or fund in respect of which relief is sought exceeds in amount or value the sum of $1,000;

(e) Proceedings for the recovery of any specific or pecuniary legacy or share of residue presently payable not exceeding in value or amount the sum of $1,000.

(2) No proceeding for the dissolution or winding up of a partnership or order thereon shall prevent any creditor from petitioning for an adjudication of bankruptcy against the partnership firm or any member or members thereof.

Cf. 1947, No. 16, s. 34 (N.Z.); 1961, No. 26, s. 17 

As to subs. (1) (b), see s. 26 of this Act.

29. Abandonment of part of claim to give Court jurisdiction - (1) Where a plaintiff has a cause of action for more than $1,000 in respect of which a Court would have had jurisdiction had the amount been not more than $1,000, the plaintiff may abandon the excess and thereupon the Court shall have jurisdiction to hear and determine the action.

(2) Where any action, in which the plaintiff has abandoned part of his claim under this section, is heard in the Court, the plaintiff shall not recover an amount exceeding $1,000 together with costs thereon, and the judgment of the Court in the action shall be in full discharge of all demands in respect of the cause of action, and entry of the judgment shall be made accordingly.

Cf. 1947, No. 16, s. 36 (N.Z.)

30. Extension of jurisdiction by agreement between the parties - If but for the amount or value of the subject-matter claimed or in issue, a Court presided over by a Magistrate would have had jurisdiction under sections 23 to 28 or section 54 of this Act and the parties by memorandum signed by them or by their respective solicitors or agents, agree that a Court presided over by a Magistrate shall have jurisdiction to hear and determine the proceedings, that Court shall, notwithstanding anything in this or any other enactment, have jurisdiction to hear and determine the proceedings.

Cf. 1947, No. 16, s. 37 (N.Z.); 1961, No. 26, s. 18

31. Division of cause of action not allowed - A cause of action may not be divided for the purpose of bringing 2 or more actions or any counterclaim.

Cf. 1947, No. 16, s. 38 (N.Z.)

32. Administration in simple form - During the absence or inability of a Judge of the Supreme Court to act, from any cause whatever, a Magistrate shall have the jurisdiction and powers of a judge of the Supreme Court to grant administration in simple form of the estate of any deceased person leaving estate in Western Samoa.

Cf. 1961, No. 26, s. 19

As to grants of administration, see ss. 5 to 12 of the Administration Act 1975.

Civil Jurisdiction of Fa'amasino Fesoasoani

33. Civil jurisdiction - A Court presided over by a Fa'amasino Fesoasoani shall have civil jurisdiction-

(a) To hear and determine any action founded on contract or in tort where the debt, demand or damage, or the value of the chattels, claimed does not exceed the sum of $40:

(b) To hear and determine any action for the recovery of any penalty, expense, contribution or other like demand which is recoverable by virtue of any enactment for the time being in force in Western Samoa, if:

(i) It is expressly provided by that or any other enactment that the action may be heard and determined by a Magistrate; and

(ii) The amount claimed in the action does not exceed the sum of $40:

Provided that for the purposes of this paragraph (b) the expression "penalty" shall not include a fine to which any person is liable on conviction.

Cf. 1964, No. 17, s. 3

34. Extended jurisdiction - Any Fa'amasino Fesoasoani who has been granted extended jurisdiction in accordance with section 18 of this Act shall, in addition to the jurisdiction hereinbefore conferred, have power-

(a) To deal with matters up to a limit of $200 where by section 33 hereof a limit of $40 is prescribed;

(b) To make orders on judgment summonses in cases where the original judgment was for a sum of $200 or less.

Cf. 1964, No. 17, s. 5

35. Jurisdiction by abandonment of part of claim or by agreement - Where a plaintiff has a cause of action for a sum in respect of which a Fa'amasino Fesoasoani would have had jurisdiction had it been within the limit imposed by section 33 or 34 of this Act, or where, but for the amount or value of the subject-matter claimed or in issue, a Fa'amasino Fesoasoani would have had jurisdiction pursuant to the said sections, the provisions of sections 29, 30 and 31 of this Act shall apply with the necessary modifications.

Criminal and Other Jurisdiction of Magistrate

36. General criminal jurisdiction - A Court presided over by a Magistrate shall have jurisdiction to hear, determine and pronounce sentence in respect of any information relating to any offence which is punishable by a fine, penalty or forfeiture of any amount or by a term of imprisonment or by both, except any offence which is punishable by a term of imprisonment exceeding [5] years, whether or not also punishable by a fine, penalty or forfeiture.

Cf. 1961, No. 26, s. 13 (2)

The figure "5" was substituted for the word "three" by s. 2 of the Magistrates' Courts Amendment Act 1972.

37. Jurisdiction in proceedings under the Customs Act 1977 - Notwithstanding anything to the contrary in the Samoa Customs Order 1939 (N.Z.), a Court presided over by a Magistrate shall have jurisdiction to hear and determine any proceedings commenced under the provisions of the Customs Act 1913 (N.Z.) as applied by that Order:

Provided that the amount claimed or the value of the chattels does not exceed $1,000 and that in any criminal proceedings the maximum penalty does not exceed 3 years' imprisonment.

The Customs Act 1913 (N.Z.) has been repealed and replaced by the Customs Act 1977.

Criminal Jurisdiction of Fa'amasino Fesoasoani

38. Criminal jurisdiction of all Fa'amasino Fesoasoani - Every Fa'amasino Fesoasoani is hereby empowered to exercise the jurisdiction conferred on the Magistrates' Court or any Magistrate thereof in relation to any of the matters set out in section 39 of this Act:

Provided that the jurisdiction conferred by this section shall not extend to authority to impose a fine exceeding $40 or to impose a sentence of imprisonment. in lieu of or in addition to a fine.

Cf. 1964, No. 17, s. 4

39. Matters covered by that criminal jurisdiction - Subject to section 38 of this Act, any Fa'amasino Fesoasoani may hear, determine and impose sentence in respect of any information which charges the accused with - 

(a) Any offence the maximum penalty for which does not exceed one year's imprisonment or a fine of $200 or both;

(b) The crime of theft, provided the value of the property stolen does not exceed the sum of $40.

Cf. 1964, No. 17, s. 4

40. Extended jurisdiction - Any Fa'amasino Fesoasoani who has been granted extended jurisdiction in accordance with section 18 of this Act shall, in addition to the jurisdiction hereinbefore conferred, have power - 

(a) To impose terms of imprisonment not exceeding 6 months on any one charge in addition to or in lieu of any fine, or in default of payment of any fine, where such imprisonment is authorised by the enactment under which the information is laid or the charge is brought;

(b) To impose a fine not exceeding $100.

Cf. 1964, No. 17, s. 5

PART IV

CIVIL PROCEDURE

Parties

41. Trustees, executors, and administrators - Any trustee, executor, or administrator may sue and be sued in the Court in like manner as if he were a party in his own right, without. joining any of the beneficiaries of his trust or estate, and shall be considered as representing such beneficiaries in the action.

Cf. 1947, No. 16, s. 49 (1) (N.Z.)

42. Court may join beneficiaries - The Court may, at any stage of an action in which any trustee, executor or administrator is a party, order any beneficiary appearing to be interested in the action to be made a party to the action, either in addition to or in lieu of the previously existing parties thereto or any of them.

Cf. 1947, No. 16, s. 49 (2) (N.Z.)

43. Infants - (1) An infant may sue in a Magistrate's Court for money which may be due to him for wages or piecework, or for work as a servant, in the same manner as if he were of full age.

(2) An infant of or above the age of 18 years may sue or be sued without a next friend or guardian ad litem upon any cause of action arising out of contract or tort in respect of which he might sue or be sued by a next friend or guardian; and judgment may be given in the action, and such proceedings may be had and taken to enforce the judgment as if the infant were of full age.

(3) Subject to the foregoing provisions of this section, an infant may sue by his next. friend and may defend by his guardian ad litem in accordance with the rules.

Cf. 1947, No. 16, s. 50 (N.Z.); S.R. 1948/197, r. 48 (N.Z.)

44. Mentally defective persons - (1) The expression "mentally defective person" where used in this section and the rules shall have the same meaning as that ascribed to it in the Mental Health Ordinance 1961.

(2) A mentally defective person may sue and defend by the committee or other person authorised to administer his estate under the Mental Health Ordinance 1961.

(3) Any mentally defective person in respect of whom there is no such committee or other person authorised as aforesaid may sue by his next friend and defend by his guardian ad litem.

45. Persons jointly liable - (1) Where a plaintiff has a claim recoverable under this Act against 2 or more persons jointly liable, it shall be sufficient to serve any of those persons with the proceedings, and judgment may be obtained and execution issued against any person so served, notwithstanding that others jointly liable may not have been served or sued or may not be within the jurisdiction of the Court.

(2) Where judgment is obtained against any person as aforesaid and is satisfied either in part or for the whole amount by that person, he shall be entitled to recover in a Magistrate's Court contribution from any other person jointly liable with him.

Cf. 1947, No. 16, s. 51 (N.Z.)

46. Proceedings against absent defendant - The Court shall not determine any civil proceedings against a defendant absent from Western Samoa unless it is satisfied either-

(a) That service has been effected on the defendant in accordance with the rules; or

(b) That the defendant has a duly appointed agent in Western Samoa authorised to sue and be sued on his behalf and service has been effected on the agent in accordance with the rules.

Cf. 1947, No. 16, s. 39 (N.Z.); S.R. 1959/18, r. 27 (N.Z.)

47. Bankruptcy of plaintiff - (1) The bankruptcy of the plaintiff in any action in a Magistrate's Court which the Official Assignee might maintain for the benefit of the creditors shall not cause the action to abate if, within such reasonable time as the Court orders, the Official Assignee elects to continue the action.

(2) The hearing of the action may be adjourned until such an election is made.

(3) Where the Official Assignee does not elect to continue the action within the time limited by the order, the defendant may avail himself of the bankruptcy as a defence to the action.

Cf. 1947, No. 16, s. 52 (N.Z.)

Transfer of Proceedings

48. Transfer to Supreme Court of proceedings within jurisdiction - (1) Where there is commenced in a Magistrate's Court any action in which the amount of the claim or the value of the property or relief claimed or in issue exceeds $400, the defendant in the action may, as of right within such time as may be prescribed or at any time thereafter by leave of the Magistrate, give notice that he objects to the action being tried in the Magistrate's Court, and, where notice is so given, the Magistrate shall order that the action be transferred to the Supreme Court.

(2) Where there is commenced in a Magistrate's Court any action in which the amount of the claim or the value of the property or relief claimed or in issue does not exceed $400, the defendant may, as of right within such time as may be prescribed or at any time thereafter by leave of the Magistrate, give notice that he objects to the action being tried in the Magistrate's Court, and, where notice is so given, the Magistrate may order that the action be transferred to the Supreme Court if, in his opinion, some important question of law or fact is likely to arise.

(3) Any order for the transfer of an action to the Supreme Court made pursuant to subsection (2) of this section may be made subject to such conditions as the Magistrate thinks fit requiring that the defendant give security for the costs of the proceedings in the Supreme Court.

(4) The foregoing provisions of this section shall, with the necessary modifications, apply to a counterclaim as if it were an action and as if the defendant in the counterclaim were the defendant in the action. On the transfer of a claim where there is a counterclaim, or on the transfer of a counterclaim, all proceedings in the action, including both the claim and the counterclaim, shall be transferred.

(5) Notwithstanding the foregoing provisions of this section the Supreme Court or a judge thereof on the application of any party to the proceedings may order the removal into the Supreme Court, by writ of certiorari or otherwise, of any proceedings commenced in a Magistrate's Court, if the Supreme Court or Judge thereof thinks it desirable that the proceedings should be heard and determined in the Supreme Court. Any such removal shall be on such terms as to payment of costs, giving security or otherwise as the Supreme Court or a Judge thereof thinks fit to impose.

Cf. 1947, No. 16, s. 43 (N.Z.)

As to reservation of a question of law for the Supreme Court, see s. 111 of the Criminal Procedure Act 1972.

49. Transfer of proceedings beyond jurisdiction - Where any civil proceedings are commenced in a Magistrate's Court in which the Court has no jurisdiction the Court may, unless it is given jurisdiction by abandonment or agreement under the provisions of section 29, 30 or 35 of this Act, order that the proceedings be transferred to the Supreme Court or to such other Court or such Magistrate as appears to the Magistrate's Court to have jurisdiction:

Provided that where it appears to the Court that the plaintiff or one of the plaintiffs knew or ought to have known that the Court had no jurisdiction in the proceedings, the Court may, if it thinks fit, instead of ordering that the proceedings be transferred as aforesaid, order that they be struck out, and in such event may award costs to the same extent and recoverable in the same manner as if the Court had jurisdiction and the claim had not been established.

Cf. 1947, No. 16, s. 44 (N.Z.)

50. Transfer of proceedings where there is a counterclaim - (1) Where, in any action commenced in a Magistrate's Court, any counterclaim or set-off and counterclaim which involves matter beyond the jurisdiction of a Magistrate's Court has been filed by any defendant, any party to the action may, within such time as may be prescribed by rules of the Supreme Court, apply to the Supreme Court or a Judge thereof for an order that the whole proceedings, or the proceedings on the counterclaim or set-off and counterclaim, be transferred to the Supreme Court.

(2) On any such application the Supreme Court or judge may, as it or he thinks fit, order either-

(a) That the whole proceedings be transferred to the Supreme Court; or

(b) That the whole proceedings be heard and determined in the Magistrate's Court; or

(c) That the proceedings on the counterclaim or set-off and counterclaim be transferred to the Supreme Court and that the proceedings on the plaintiff's claim and the defence thereto other than the set-off (if any) be heard and determined in the Magistrate's Court: 

Provided that, where an order is made under paragraph (c) of this subsection, and judgment on the claim is given for the plaintiff, execution thereon shall, unless the Supreme Court or a Judge thereof at any time otherwise orders, be stayed until the proceedings transferred to the Supreme Court have been determined.

(3) If no application is made under this section within the time prescribed as aforesaid, or if on such an application it is ordered that the whole proceedings be heard and determined in the Magistrate's Court, the Magistrate's Court shall have jurisdiction to hear and determine the whole proceedings, notwithstanding any enactment to the contrary.

(4) Where the Supreme Court makes any order under the provisions of this section, the Registrar of the Supreme Court shall send to the Registrar of the Magistrate's Court a copy of the order so made.

Cf. 1947, No. 16, s. 45 (N.Z.)

51. Transfer of proceedings from Supreme Court by agreement between parties - If, where civil proceedings have been commenced in the Supreme Court, -

(a) An agreement is made under the provisions of section 30 or 35 of this Act that a Magistrate's Court shall have jurisdiction; or

(b) The subject-matter of the proceedings is within the jurisdiction of Magistrates' Courts and the parties agree that they desire the proceedings transferred to a Magistrate's Court, - 

the Supreme Court or a judge thereof shall, on the application of any party to the proceedings, order that the proceedings be transferred to that Magistrate's Court.

Cf. 1947, No. 16, s. 46 (N.Z.)

52. Procedure and effect of transfer of proceedings from Supreme Court to Magistrate's Court - (I) Where any proceedings are ordered to be transferred under the provisions of section 51 of this Act from the Supreme Court to a Magistrate's Court the proper officer of the Supreme Court shall, on the sealing of the order, send to the Registrar of the Magistrate's Court a copy of the order, the statement of claim or a copy thereof, all pleadings, affidavits, and other documents filed in the Supreme Court relating to the proceedings and such other documents (if any) as the Supreme Court or a Judge may direct.

(2) On the documents aforesaid being so sent, the proceedings shall be transferred to the said Magistrate's Court, and, subject to the Magistrates' Courts rules, all further proceedings therein shall be heard as if the proceedings had been originally commenced in that Magistrates' Court, and that Magistrate's Court shall have jurisdiction to deal therewith, notwithstanding any enactment to the contrary:

Provided that the transfer shall not. affect any right of appeal in the Supreme Court or to the Court of Appeal from the order directing the transfer, or the right to enforce in the Supreme Court any judgment signed, or order made, in that Court before the transfer.

Cf. 1947, No. 16, s. 47 (N.Z.)

53. Costs in cases transferred or removed - Where an action, counterclaim or matter is ordered to be transferred or removed-

(a) From the Supreme Court to a Magistrate's Court; or 

(b) From a Magistrate's Court to the Supreme Court; or 

(c) From one Magistrate's Court to another Magistrate's Court -

the costs of the whole proceedings both before and after the transfer shall, subject. to any order made by the Court which ordered the transfer, be in the discretion of the Court to which the proceedings are transferred and that Court shall have power to make orders with respect thereto:

Provided that., as regards so much of the proceedings in any action transferred from the Supreme Court to a Magistrate's Court as shall have taken place in the Supreme Court before the transfer, -

(d) The costs thereof shall be subject to the provisions of the rules of the Supreme Court; and

(e) The powers of a Judge to make an order- allowing costs on the Supreme Court scale shall, subject to any order of the Supreme Court or of the judge by whom the transfer was ordered, be exercisable by the Magistrate.

Cf. 1947, No. 16, s. 48 (N.Z.)

Interpleader
54. Interpleader - Where a person is under a liability for any debt or other cause of action, money, or chattels for or in respect of which he is or expects to be sued by 2 or more persons making adverse claims thereto, he may, if the subject-matter does not exceed in value the sum of $1,000, apply to a Court presided over by a Magistrate in manner prescribed for relief by way of Interpleader in accordance with the rules.

Cf. 1947, No. 16, s. 111 (N.Z.)

Hearing

55. Right of audience - (1) Except as otherwise provided by any other enactment, a party to any civil proceedings may appear and act personally or by [a barrister or solicitor of the Supreme Court of Western Samoa] or by any person entitled by law to practise as a barrister or solicitor in Western Samoa and not otherwise:

Provided that under special circumstances the Court may permit any party to appear by an agent authorised in writing by the party himself, if in Western Samoa, or, if absent therefrom, by any person holding a power of attorney from the party authorising such person to sue and be sued for and in the name of the party; but any agent, unless he is a barrister or solicitor, shall not be entitled to receive any preparation or appearance fee or reward for so appearing or acting.

(2) A corporation may appear by any officer, attorney or agent of the corporation.

Cf. 1947, No. 16, s. 57 (N.Z.); S.R. 1959/18, r. 56 (N.Z.)

In subs. (1) the reference to a barrister or solicitor of the Supreme Court of Western Samoa was substituted for a reference to a barrister or solicitor of the  Supreme Court of New Zealand by s. 51 (2) of the Law Practitioners Act 1976.

56. Equity and good conscience - In any civil proceedings in a Court presided over by a Magistrate, where the amount claimed or the value of the property claimed or in issue does not exceed $100, and in any civil proceedings in a Court presided over by a Fa'amasino Fesoasoani where the amount claimed or the value of the property claimed or in issue does not exceed $40, the Court may receive such evidence as it thinks fit, whether the same be legal evidence or riot, and may give such judgment between the parties as it. finds to stand with equity and good conscience.

Cf. 1947, No. 16, s. 59 (N.Z.); 1921, No. 16, s. 73 (N.Z.)

Witnesses and Evidence

57. Witness entitled to expenses - In any civil proceedings, every witness attending a Court upon a witness summons, and every other person giving evidence in the course of such proceedings, shall when his attendance is no longer required, be entitled as against the party calling him to a sum for his expenses and loss of time according to the prescribed scale:

Provided that the Court may disallow the whole or any part of such sum.

Cf. 1947, No. 16, s. 53 (N.Z.)

58. Penalty for failing to comply with witness summons - (1) Every person summoned in pursuance of the rules as a witness in a Court in any civil proceedings who - 

(a) Refuses or neglects, without sufficient cause, to appear or to produce any document or thing required by the summons to be produced; or

(b) Refuses to be sworn or to give evidence-

commits an offence and is liable to a fine not exceeding $40: 

Provided that any person so summoned who refuses or neglects to appear shall be deemed to have done so with sufficient cause if he establishes to the satisfaction of the Court,-

(a) That there was not paid or tendered to him at the time of the service of the summons or at some other reasonable time before the hearing such sum (if any) in respect of his expenses as may be prescribed; and either

(b) That he was without the means to meet the cost of travel to the hearing; or

(c) That he had reasonable grounds for believing that, if he incurred the said cost, he would not recover it on the day of the hearing from the party summoning him.

(2) Any person present. in Court who is called upon to give evidence but refuses to be sworn or give evidence, whether or not he has been summoned or paid or tendered expenses, commits an offence and is liable to a fine not exceeding $40.

(3) The payment of such fine or the undergoing of a term of imprisonment for non-payment of such fine shall not exempt any person from any action for disobeying a summons or refusing to be sworn or give evidence.

Cf. 1947, No. 16, s. 54 (N.Z.)

59. Persons who may take an affidavit or affirmation - An affidavit or affirmation to be used in a Court may be sworn or made before any Magistrate or Fa'amasino Fesoasoani or before any person authorised under the Oaths, Affidavits and Declarations Act 1963 not being a solicitor engaged in the proceedings:

Provided that the rules may provide for the admission of an affidavit or affirmation sworn or made out of Western Samoa before any person authorised in the rules.

Cf. 1947, No. 16, s. 56 (N.Z.)

60. Evidence of witness out of Court - The Court may, on the application of a party, in any civil proceeding where it appears necessary in the interests of justice, make an order for the taking of the evidence on oath, before any officer of the Court or any other person or persons, and at. any place either in or out of Western Samoa, of any witness, and may order any deposition so taken to be filed in the Court, and may empower any party to the proceeding to give such deposition in evidence therein, on such terms as the Court may direct.

Cf. S.R. 1959/18, r. 44 (N.Z.)

Reference to Arbitrator or Referee

61. Power to refer to arbitration - In any civil proceedings, a Magistrate may, with the consent of the parties thereto, order the proceedings to be referred to arbitration (whether with or without other matters within the jurisdiction of the Court in dispute between the parties) to such person or persons and in such manner and on such terms and subject to such costs as he thinks just and reasonable.

(2) No such reference shall be revocable by any party except with the consent of a Magistrate.

(3) If the award of the arbitrator, arbitrators or their umpire is not given within one month of the date of the order of reference, either party may apply to the Court to revoke the order of reference.

(4) On any such reference, the award of the arbitrator, arbitrators or their umpire shall be entered as the judgment in the proceedings and shall be as binding and effectual to all intents as if given by a Magistrate:

Provided that the Court may, if it thinks fit, on application made at the first sitting of the Court held after the expiration of 10 days after the entry of the award, set aside the award, or may, with the consent of the parties, revoke the reference or order another reference to be made in the manner aforesaid.

(5) Execution of a judgment so entered shall not issue until after such first sitting has been held.

(6) On the hearing of an application to set aside or vary an award and judgment entered thereupon the Court shall take evidence if offered, or may of its own accord call for evidence; and the decision of the Court given after hearing the application shall be entered as a judgment of the Court.

Cf. 1947, No. 16, s. 61( N.Z.)

62. Power to refer to the Registrar or a referee for inquiry - (1) In any civil proceedings, a Magistrate or Fa'amasino Fesoasoani may refer to the Registrar or a referee for inquiry and report -
(a) Any proceedings which require any prolonged examination of documents, land or chattels or any scientific or local investigation which cannot, in the opinion of the Magistrate or Fa'amasino Fesoasoani, conveniently be made before him;

(b) Any proceedings where the question in dispute consists wholly or in part of matters of account;

(c) With the consent of the parties, any other proceedings; 

(d) Any question arising in any proceedings.

(2) Where any proceedings or question are referred as aforesaid a Magistrate or Fa'amasino Fesoasoani may direct how the reference shall be conducted, and may remit any report for further inquiry and report, and on consideration of any report or further report, may give such judgment or make such order in the proceedings as may be just.

Cf. 1947, No. 16, s. 62 (N.Z.)

63. Power to refer mere matter of account to the Registrar for inquiry - A Magistrate or Fa'amasino Fesoasoani may, after deciding or reserving any question of liability, refer to the Registrar, or to the Registrar and an accountant, any mere matter of account which is in dispute between the parties, and after deciding the question of liability, may give judgment on the Registrar's report.

Cf. 1947, No. 16, s. 62 (N.Z.)

Judgments and Orders

64. Finality of judgments and orders - Every judgment and order of a Magistrate's Court shall, except as provided by this or any other Act or by the rules, be final and conclusive between the parties.

Cf. 1947, No. 16, s. 63 (N.Z.)

65. Payment of judgments and orders - (1) Where a judgment is given or an order is made by a Court in civil proceedings under which a sum of money of any amount is payable (whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise) the Court may, as it thinks fit, order the money to be paid either-

(a) In one sum, whether forthwith or within such period as the Court may fix; or

(b) By instalments pursuant to section 11 of the Judgment Summonses Act 1965.

(2) Except where an express order for payment is made under subsection (1) of this section, every judgment or order for the payment of a sum of money shall be deemed to include an order for the payment forthwith of the whole amount payable there-under.

Cf. 1947, No. 16, s. 65 (N.Z.); 1965, No. 8, s. l l

Removal of Judgments

66. Removal of judgment of Magistrate's Court into Supreme Court - (1) Where any final judgment or order for the payment of any sum of money is obtained in any one civil proceeding in a Magistrate's Court, that judgment or order may be removed into the Supreme Court, and for that purpose the Registrar, upon the application of the judgment creditor or of any person on his behalf, shall issue a certificate thereof in the prescribed form. Every such certificate shall bear on the face thereof a statement to the effect that it has been issued for the purpose of this section, and it shall not be available for any other purpose.

(2) No such certificate shall be issued before the expiration of the time allowed for giving notice of appeal or of application for rehearing or before the time at which execution could be issued out of the Magistrate's Court, and if any proceedings for enforcement of the judgment or order have been issued out of that Court no such certificate shall be issued until after the withdrawal or completion of those proceedings.

(3) After the certificate has been filed in the Supreme Court pursuant to subsection (4) of this section, no further proceedings shall be had or taken on the judgment or order in the Magistrate's Court.

(4) The person obtaining the certificate may file the same in the Supreme Court by delivering it for that purpose at the office of the Registrar of the Supreme Court and thereupon, without any previous process, may sign final judgment in the Supreme Court in the prescribed form or to the effect thereof (against which judgment no appeal shall lie) for the sum mentioned in the certificate to be unpaid, together with such fees and costs as may be paid or allowed in connection with such removal and entry of judgment.

(5) Upon such final judgment as aforesaid execution may be forthwith issued, and all other remedies had thereon in the same manner as on any other judgment. of the Supreme Court.

(6) Notwithstanding anything in this section, any certificate or final judgment: signed under the provisions of this section may be set aside or amended by a judge of the Supreme Court upon such terms as to costs or otherwise as he deems just.

Cf. 1947, No. 16, s. 66 (N.Z.)

67. Action in Supreme Court on judgment or order of Magistrate's Court - An action may be brought in the Supreme Court on a judgment or order of a Magistrate's Court, but no costs shall be allowed to the plaintiff in such action unless a Judge of the Supreme Court. certifies that the action was necessary and proper for the enforcement of the judgment of the Magistrate's Court against the person or property of the defendant.

Cf. 1947, No. 16, s. 67 (N.Z.)

68. Removal of judgment or order of Supreme Court into Magistrate's Court - (1) In any action or civil proceedings in the Supreme Court in which execution may be issued upon a judgment, order or decree of the Supreme Court for the payment of a sum of money, a certificate under the seal of the Supreme Court: setting forth the particulars of the judgment, order or decree may be obtained from the Supreme Court and filed in a Magistrate's Court having jurisdiction to the amount of that sum of money and of any interest thereon; and upon the filing of the certificate all proceedings may be taken and enforced in and by that Magistrate's Court for the amount recoverable under the judgment, order or decree, and any fees and costs paid or allowed in connection with the obtaining and filing of the certificate, as fully and effectually as if the judgment, order or decree had been a judgment of the Magistrate's Court signed and entered up at the time of filing the certificate.

(2) After the issue of the certificate no further proceedings shall be had in the Supreme Court upon such judgment, order or decree.

Cf. 1947, No. 16, s. 68 (N.Z.)

69. Removal of judgment from one Magistrate's Court to another - (1) Where any final judgment or order for the payment of any sum of money is obtained in any one civil proceeding in a Magistrate's Court, the judgment or order may be removed into any other Magistrate's Court, and for that purpose the Registrar, upon the application of the judgment creditor or of any person on his behalf, shall issue a certificate thereof in the prescribed form. Every such certificate shall bear on the face thereof a statement that it has been issued for the purpose of this section, and it shall not be available for any other purpose.

(2) No such certificate shall be issued before the expiration of the time allowed for giving notice of appeal or of application for rehearing or before the time at which execution could be issued out. of the Court first aforesaid, and if proceedings for enforcement of the judgment or order have been issued out of that Court no such certificate shall be issued until after the withdrawal or completion of those proceedings.

(3) The person obtaining the certificate may file the same in any other Magistrate's Court by delivering it at the office of the Registrar; and thereupon all proceedings may be taken and enforced in and by that other Magistrate's Court for the amount recoverable under the judgment or order, and any fees and costs paid or payable in connection with the obtaining and filing of the certificate, as fully and effectually as if the judgment or order had been a judgment of that other Magistrate's Court signed and entered 'up at the time of filing the certificate, and no further proceedings shall be had or taken in the Magistrate's Court from which the judgment or order has been removed as aforesaid.

Cf. 1947, No. 16, s. 69 (N.Z.)

Appeals

70. Right to appeal - Any party to any civil proceedings in a Magistrate's Court may appeal as hereinafter provided to the Supreme Court against any non-suit or final determination or direction of the Magistrate's Court -

(a) Without the leave of the Magistrate's Court. where the amount of the claim or the value of the property or relief claimed or in issue exceeds $40 or where the title to any freehold land has come in question; and

(b) With the leave of the Magistrate's Court where the amount of the claim or the value of the property or relief claimed or in issue does not exceed $40:

Provided that the parties did not before the determination or direction agree in writing in manner prescribed that the judgment of the Court should be final and conclusive.

Cf. 1947, No.16, s.71 (N.Z.)

As to appeals, see also Part VII the Criminal Procedure Act 1972.
As to reservation of a question of law forth ( Supreme Court, see s.111 of the Criminal Procedure Act 1972.

71. Notice of appeal - (1) Every appeal to the Supreme Court shall be brought. by notice of motion of appeal lodged with the Registrar of the Supreme Court.

(2) The appellant may by the notice of motion appeal from the whole or any part of the non-suit or final determination or direction. The notice of motion shall state whether the whole or part of the non-suit or final determination or direction is complained of, and in the latter case shall specify which part.

(3) A duplicate of the notice of motion shall be served on all parties directly affected by the appeal either before or immediately after the notice of motion is lodged in the Supreme Court, and it shall not be necessary to serve parties not so affected.

(4) The Supreme Court may direct the notice of motion to be served on all or any parties to the proceedings or upon any person not a party, and may adjourn the hearing of the appeal on such terms as may seem just, and may give such judgment and make such order as might have been given or made if the persons served with the notice of motion had originally been parties.

(5) Any person who is served with a notice of motion less than 14 clear days before the date of the hearing of the appeal may apply for and shall be entitled to an adjournment on that ground.

(6) A duplicate of the notice of motion shall be lodged with the Registrar of the Court appealed from either before or immediately after the notice of motion is lodged in the Supreme Court.

Cf. 1947, No. 16, s. 72 (N.Z.)

72. Time for appeal - security for appeal - (l) No appeal shall be brought after the expiration of 21 days from the day on which the non-suit or final determination or direction was given or made or after the expiration of such further time as may be allowed by the Supreme Court or a judge thereof on application made not later than one month after the expiration of the 21 days.

(2) Except where the appellant is a poor person within the meaning of any Act providing for legal aid, the appellant shall give security to the satisfaction of the Registrar of the Court appealed from to abide the event of the appeal. The security shall be for such amount (not exceeding $50) as may be estimated by that Court or a Magistrate to be the amount of the costs likely to be awarded in respect of the appeal in the event of its being dismissed.

(3) If no such security as is required under subsection (2) of this section is given within 7 days of the service of the notice of motion of appeal, or within such further time as in special cases the Registrar of the Court appealed from may permit, that Registrar shall notify the Registrar of the Supreme Court of the failure, and the notice of motion of appeal shall be deemed to be abandoned.

(4) As soon as security is given as provided in the fore-going provisions of this section, the Registrar of the Court appealed from shall forward to the Registrar of the Supreme Court--

(a) A copy of the pleadings;

(b) A copy, signed by the Magistrate, of the Magistrate's note made pursuant to section 108 of this Act; and

(c) Any affidavits and exhibits in his custody.

Cf. 1947, No. 16, s. 73 (N.Z.)

73. Cross-appeals - (1) It shall not be necessary for a respondent to give notice of motion of cross-appeal, but if a respondent intends upon the hearing of the appeal to contend that the decision of the Court below should be varied, he shall give notice of his intention to any parties who may be affected by such contention.

(2) The omission to give such notice within a reasonable time shall not diminish the powers conferred on the Supreme Court, but may at the discretion of that Court be ground for an adjournment of the appeal or for a special order as to costs.

Cf. 1947, No. 16, s. 74 (N.Z.)

74. Procedure where appeal not prosecuted -(1) If the appellant does not prosecute his appeal with due diligence the respondent may by appropriate proceedings apply to the Supreme Court to dismiss the notice of motion of appeal, and the Supreme Court may dismiss the notice of motion accordingly.

(2) If the appellant does not appear at the time appointed for
hearing his appeal the Supreme Court may dismiss his notice or motion of appeal.

(3) In any case to which this section applies the Supreme Court may order the payment by the appellant to the respondent of such amount for costs as it thinks proper.

Cf. 1947, No. 16, s. 75 (N.Z.)

75. Procedure on hearing of appeal -(1) All appeals shall be by way of rehearing.

(2) Where any question of fact is involved in any appeal the evidence taken in the Magistrate's Court bearing on the question shall, subject to any special order, be brought before the Supreme Court as follows:

(a) As to any evidence given orally, by the production of a copy of the Magistrate's note or such other materials as the Supreme Court may deem expedient;

(b) As to any evidence taken by affidavit and as to any exhibits, by the production of the affidavits and such of the exhibits as may have been forwarded by the Registrar of the Court appealed from and by the production by the parties to the appeal of such exhibits as are in their custody:

Provided that the Supreme Court may in its discretion rehear the whole or any part of the evidence.

(3) The Supreme Court shall have all the powers and duties as to amendment and otherwise of the Magistrate's Court, and shall have full discretionary power to receive further evidence upon questions of fact, either by oral evidence or by affidavit or by evidence taken in accordance with the rules of the Supreme Court.

Cf. 1950, No. 25, s. 2 (1) (N.Z.)

76. Further powers of Supreme Court on hearing of appeal-(1) On the hearing of an appeal the Supreme Court may -

(a) Order a rehearing of the case in the Magistrate's Court upon such terms as it thinks fit; or

(b) Order judgment. to be entered in the Magistrate's Court for either party; or

(c) Make a final or other order on such terms as it thinks proper to ensure the determination on the merits of the real questions in dispute between the parties; and

(d) Make such order as to costs as it thinks proper.

(2) The powers aforesaid may be exercised by the Supreme Court notwithstanding that  the notice of motion of appeal may be that part only of the determination or direction be reversed or 'varied, and such powers may be exercised in favour of all or any of the respondents or parties, although those respondents or f, parties may not have appealed from or complained of the determination or direction.

Cf. 1947, No. 16, s. 77 (N.Z.)

77. Court appealed from to be advised of determination - (1) The Registrar of the Supreme Court shall transmit to the Registrar of the Court from which the appeal was brought a memorandum of the determination of the Supreme Court, and such proceedings shall be had thereon as if the determination had been given by the Magistrate's Court.

(2) The Registrar of the Supreme Court shall also return to the Registrar of the Court from which the appeal was brought all affidavits and exhibits forwarded by that Registrar to the Registrar of the Supreme Court pursuant to section 72 of this Act.

Cf. 1947, No. 16, s. 78 (N.Z.)

78. Stay of proceedings on appeal -Notice of motion of appeal shall not operate as a stay of proceedings under the judgment or order appealed from unless-

(a) A Magistrate so orders; or

(b) The amount of the judgment or order appealed from and its costs is deposited with the Registrar of the Court which gave or made the same to abide the event of the appeal; or

(c) Security is given to the satisfaction of that Registrar for that amount.

Cf. 1947, No. 16, s. 84 (N.Z.)

Rehearing and Power to Set Aside

79. Rehearing-(1) Any party to any civil proceedings in which a Magistrate, Fa'amasino Fesoasoani or Registrar has given judgment or made an order may apply for a rehearing of the proceedings by written notice given by that. party to a Magistrate, Fa'amasino Fesoasoani or Registrar.

(2) The application shall be made not more than 14 days after the judgment or order was given or made unless the person hearing the application is satisfied that. the application could not reasonably be made sooner.

(3) The application shall be served on the opposite party not less than 3 clear days before the day fixed for hearing, and shall state the grounds thereof, which shall, in the case of an application for the rehearing of proceedings before a Magistrate, be verified by affidavit.

(4) The application shall not operate as a stay of proceedings unless the Court so orders.

(5) On receipt of the application, the Registrar shall, unless otherwise ordered, retain any money in Court until the application has been heard.

(6) The rehearing shall take place before a Magistrate who may be the person before whom the proceedings were originally heard:

Provided that, with the consent of the parties affected, the rehearing may take place before a Fa'amasino Fesoasoani or Registrar who maybe the person before whom the proceedings were originally heard.

Cf. S.R. 19481197, r. 230, (N.Z.); S.R. 1959/18, rr. 157-160 (inc.) (N.Z.)

80. Magistrate may set aside proceedings of Fa'amasino Fesoasoani -(1) On the application of a party, or of his own motion, a Magistrate may order any civil proceedings (whether completed or not) before a Fa'amasino Fesoasoani to be set aside, and, unless ordered by the Magistrate to remain valid, every step taken, document filed or direction or determination given in the proceedings save the motion or statement of claim by which the proceedings were initiated, shall thereupon become void.

(2) Such proceedings shall thereupon proceed before a Magistrate as if no steps, except those saved in accordance with subsection (1) of this section, had been taken in the proceedings.

Cf. S.R. 1959118, r. 161 (N.Z.)

81. Magistrate may set aside judgment or order of Registrar - (1) Except where all parties have consented to the judgment or order of a Registrar, any such judgment or order and any execution thereon may on application of a party be set aside by a Magistrate who may give such judgment or make such order in substitution therefore as he thinks fit, or may grant a rehearing.

(2) If all parties affected are present on the day on which the judgment was given or the order made, the application may be made, heard and disposed of on that day, and, in any other case, the application shall be made on 3 days' notice to the other parties affected.

(3) The application shall not operate as a stay of proceedings unless the Court so orders.

Cf. S.R. 1948/197, r. 229 (N.Z.)

Enforcement of Judgments Generally

82. Proceedings for enforcement of judgment - (l) Any y judgment or order of a Court or of a Magistrate or Fa'amasino Fesoasoani for the payment of a sum of money may be enforced in any Court by any one or more o£ the proceedings following, that is to say -

(a) Execution against the goods and chattels of the judgment debtor under a warrant of distress;

(b) Garnishee proceedings for the attachment of money due to the judgment debtor;

(c) Proceedings under the judgment Summonses Act 1965. 

(2) Where by any judgment or order of a Court or of a Magistrate or Fa'amasino Fesoasoani a party is ordered to do or abstain from doing any act, not being the payment of a sum of money recovered in an action by any judgment of the Court and not being an order for the recovery of land or for the delivery of specific chattels, and fails to obey such judgment or order, such judgment or order may be enforced by a warrant of commitment to prison signed by a Magistrate for a term not exceeding 3 months.

(3) A judgment or order for the recovery of land may be enforced under a warrant for the recovery of the land.

(4) A judgment or order for the delivery of specific chattels may be enforced, by order of the Magistrate, either under a warrant for the recovery of the chattels or by a warrant of commitment to prison signed by a Magistrate for a term not exceeding 3 months.

(5) Except by leave of a Magistrate, no proceedings for the enforcement of a judgment or order shall be commenced in any Court until after the expiry of 48 hours from the time of the giving of the judgment or the making of the order:

Provided that if the judgment order is one which may be appealed against without the leave of the Court, a Magistrate or Fa'amasino Fesoasoani may order a stay of any proceedings for the enforcement of the judgment or order until the time allowed for giving notice of motion of appeal has expired.

(6) Two or more proceedings for the enforcement of a judgment or order may be taken concurrently but the judgment creditor shall not be entitled to recover a greater sum than the amount owing under the judgment or order and the costs and fees of any proceedings for enforcement.

(7) If at any time it. appears to the satisfaction of a Magistrate that any person committed to prison pursuant to this section I ought for any reason to be discharged, the Magistrate may order his discharge upon such terms (including liability to rearrest if the terms are not complied with) as the Magistrate thinks fit.

Cf. 1947, No. 16, ss. 79, 98 (N.Z.); Code of Civil Procedure, r. 392 (N.Z.)

In subs. (3), as to customary land, see s. 26 of this Act.

83. Enforcement of judgments more than 6 years old - (1) No proceedings for the enforcement of a judgment or order of the Court more than 6 years old shall be issued unless the Court gives leave or unless some payment has been made by or on behalf of the party liable therefore within the 12 months immediately before the issue of the proceedings for enforcement.

(2) The Court may, if it thinks fit, give such leave on an ex party application.

Cf. 1947, No. 16, s. 80 (N.Z.)

84. Enforcement of order for payment by instalments - (1) Where the Court has made an order for the payment of any sum of money by instalments, proceedings for the enforcement of the order shall not be taken or issued until after default in the payment. of some instalment according to the order.

(2) On any such default; proceedings or successive proceedings may be taken or issued for the whole of the said sum of money and costs then remaining unpaid unless the Court on the application of the party liable otherwise orders.

Cf. 1947, No. 16, s. 81 (N.Z.)

85. Proceedings on cross-judgments - If there are cross-judgments between the parties, proceedings for enforcement may be taken out only by that party who has obtained judgment. for the larger sum, and then only for so much as remains after deducting the smaller sum. Satisfaction for the remainder shall be entered as well as satisfaction on the judgment for the smaller sum, and if both sums are equal satisfaction shall be entered upon both.

Cf. 1947, No. 16, s. 82 (N.Z.)

86. Power to stay proceedings for enforcement - If at any time it appears to the satisfaction of a Magistrate or Fa'amasino Fesoasoani exercising jurisdiction in the Court in which proceedings have been taken or issued for the enforcement of any judgment or order that any party to the proceedings is unable from any cause to pay any sum recoverable against him (whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise) or any instalment thereof, the Magistrate or Fa'amasino Fesoasoani may, in his discretion, vary the judgment or order to provide for payment by instalments pursuant to section 12 of the judgment Summonses Act 1965, or suspend or stay the proceedings for such time and on such terms as he may think fit, and so from time to time until it appears that the cause of inability has ceased.

Cf. 1947, No. 16, ss. 65 (3), 83 (N.L.)

Warrant of Distress

87. Warrant of distress - (1) A warrant of distress shall require the bailiff or constable to whom it is directed to levy or cause to be levied such sum of money as is adjudged or ordered to be paid, or so much thereof as then remains unpaid, and also the costs of the execution, and of previous proceedings (if any) for the enforcement of the judgment or order, by seizure and sale of, -

(a) Any of the goods and chattels of the person liable under the judgment: or order, except personal and family clothing, furniture, and household effects and tools or implements of trade, not exceeding a total of $100 in value; and

(b) Any money, bank notes, bills of exchange, promissory notes, bonds, or other securities for money belonging to that person.

(2) Reference in this and succeeding sections of this Act and in the rules to the bailiff shall, in any case where a warrant of distress is addressed to a constable, include the constable.

Cf. 1947, No. 16, s. 85 (N.Z.); S.R.1959/18, rr. 87,90 (N.Z.)

88. Disposal by bailiff of bills of exchange, etc., seized - The bailiff shall deliver all bills of exchange, promissory notes, bonds, or other securities for money which have been seized or taken to the Registrar, for the benefit of the party upon whose application execution has issued, as security or securities for the amount directed to be levied by the execution, or so much thereof as has not been otherwise levied or raised.

Cf. 1947, No. 16, s. 86 (1) (N.Z.)

89. Recovery of money secured by bills of exchange, etc. - The party upon whose application execution has issued may sue in the name of the person against whom execution has issued, or in the name of any person in whose name the person against whom execution has issued might have sued, for the recovery of the sum or sums secured or made payable by any such bill of exchange, promissory note, bond or other security when the time of payment thereof arrives.

Cf. 1947, No. 16, s. 86 (2) (N.Z.); S.R. 1959118, r. 90 (N.Z.)

90. Penalty for rescue of goods seized - If any person rescues or attempts to rescue any goods seized in execution under a warrant of distress, he shall be guilty of an offence and shall be liable to a fine not exceeding $40, and any bailiff of the Court or constable may take him into custody with or without a warrant, and bring him before the Court.

Cf. 1947, No. 16, s. 87 (N.Z.)

Sale of Goods Seized

As to forfeitures under the Customs Act 1977, see Part X11 of that Act.

91. Period to elapse before sale - No goods seized in execution under a warrant of distress shall be sold for the purpose of satisfying the warrant until the expiration of a period of at least 14 days next following the day on which the goods have been seized unless - 

(a) The goods are of a perishable nature; or

(b) The person whose goods have been seized so requests in writing.

Cf. 1947, No. 16, s. 88 (N.Z.)

92. Sale of goods by public auction unless otherwise ordered - (1) Goods seized in execution under a warrant of distress shall be sold by public auction unless a Court or Registrar otherwise orders.

(2) Any bailiff authorised to execute a warrant of distress may, with the prior written authority of the Registrar, sell by auction the goods and chattels seized thereunder without having taken out an auctioneer's or other business licence, or paid a business licence fee, anything in any other enactment or rule of law to the contrary notwithstanding.

Cf. 1947, No. 16, s. 89 (N.Z.); S.R. 1959/18, r. 90 (N.Z.) 

As to licences for auctioneers, etc., see the Business Licences Ordinance 1960.

93. Protection of bailiff selling goods under execution without notice of claim by third party - (1) Where any goods in the possession of an execution debtor at the time of seizure by a bailiff charged with the enforcement of a warrant of distress issued from a Court. are sold by the bailiff without any claim having been made to them by any person other than the judgment creditor and the judgment debtor -

(a) The purchaser of the goods so sold shall acquire a good title. to those goods; and

(b) No person shall be entitled to recover against the bailiff, or any one lawfully acting under his authority, for any [sale] of the goods, or for paying over the proceeds thereof prior to receipt of a claim to the goods, unless it is proved that the person from whom recovery is ; sought had notice, or might by making reasonable inquiry have ascertained, that the goods were riot the property of the execution debtor.

(2) Nothing in this section shall affect the right of any claimant, who may prove that at the time of sale he had a title to any goods so seized, to any remedy to which he may be entitled against any person other than the bailiff and any one lawfully acting under his authority.

(3) The provisions of this section shall have effect subject to the provisions of sections 80 and 81 of the Bankruptcy Act 1908 (N.Z.) and sections 314 and 315 of the Companies Act 1955 (N.Z.)

Cf. 1947, No. 16, s. 90 (N.Z.)

In subs. (1) (b) the word "sale" has been substituted for the word "scale" pursuant to s. 3 (f) of the Reprint of Statutes Act 1972.
As to the effect. of a writ of execution against goods, see s. 26 of the Sale of Goods Act 1975. 
In subs (3), as to the Acts referred to, see the titles Bankruptcy and Companies.

94. Procedure when goods seized are secured under bill of sale - Where goods have been seized under a warrant of distress, and some third person claims under a bill of sale or otherwise to be entitled to the goods by way of security for a debt, a Magistrate may order a sale of the whole or part of the goods upon such terms as to payment of the whole or part of the secured debt or otherwise as he thinks fit, and may direct the application of the proceeds of the sale in such manner and upon such terms as he deems just.

Cf. 1947, No. 16, s. 91 (N.Z.)

95. Priority of Supreme Court and Magistrate's Court executions - (1) Where a writ or warrant against the goods of a party has issued from the Supreme Court, and a warrant of distress against the goods of the same party has issued under the provisions of this Act, the right to the goods seized shall be determined, as the case may be, by the priority of the time of the delivery of the writ or warrant to the Supreme Court officer to be executed or of the application to the Registrar for the warrant of distress.

(2) The Supreme Court officer on demand shall, by writing signed by him, inform the bailiff to whom the warrant of distress is directed of the precise time of the delivery of the writ or warrant, and the bailiff of the Magistrate's Court to whom the warrant of distress is directed shall on demand show the warrant to the Supreme Court officer; and such writing purporting to be so signed, and any endorsement on the warrant concerning the time of application to the Registrar for the warrant, shall respectively be sufficient justification to any Supreme Court officer or bailiff acting thereon.

Cf. 1947, No. 16, s. 92 (N.Z.)

96. Sale of goods where claim made thereto - (l) Where a claim is made to the bailiff to or in respect of any goods seized in execution under a warrant of distress issued out of a Magistrate's Court by any person other than the judgment creditor and the judgment debtor, the claimant may-

(a) Deposit with the bailiff either-

(i) The amount of the value of the goods claimed; or 

(ii) The sum which the bailiff is allowed to charge as costs for keeping possession of the goods until the decision of a Magistrate can be obtained on the claim; or

(b) Give the bailiff in the prescribed manner security for the value of the goods claimed.

(2) For the purposes of this section, the amount of the value of the goods claimed shall, in case of dispute, be fixed by appraisement in the prescribed manner, and where the amount is deposited as aforesaid it shall be paid by the bailiff into Court to abide the decision of a Magistrate upon the claim.

(3) If the claimant does not exercise any of the options conferred on him by subsection (1) of this section, the bailiff shall sell the goods as if no such claim had been made, and shall pay into Court the proceeds of the sale to abide the decision of the Magistrate.

(4) If the claimant does exercise one of such options, the bailiff shall not sell the goods without the prior written authority of a Magistrate.

Cf. 1947, No. 16, s. 93 (N.Z.)

97. Bailiffs interpleader - (1) If a claim is made to or in respect of any goods or chattels seized in execution under a warrant of distress issued out of a Magistrate's Court, or in respect of the proceeds or value thereof', the bailiff may, before of after the return of the warrant, and whether an action has been commenced against him for such seizure or not, obtain from the Registrar summonses calling before the Court the party at whose instance the process issued and the party making the claim.

(2) Upon the issue of the summonses any action brought in any Magistrate's Court or other Court in respect of the claim or of any damage arising out of the execution of the warrant shall be stayed.

(3) On the hearing of the summonses, the Magistrate shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the bailiff upon any claim to damages arising or capable of arising out of the execution of the warrant by the bailiff, and shall make such order in respect of any such claim and the costs of the proceedings as he thinks fit.

Cf. 1947, No. 16, s. 94 (N.Z.)

Garnishee Proceedings

98. Garnishee proceedings - Any person who has obtained a judgment or order for the payment of money may take proceedings in accordance with the rules to obtain payment to him of the amount of any debt owing or accruing to the judgment debtor from any other person or so much thereof as maybe sufficient to satisfy the judgment or order and the costs of the garnishee proceedings.

Cf. 1947, No. 16, s. 96 (N.Z.); S.R. 1959118, r. 92 (N.Z.)

Recovery of Land

As to customary land, see s. 26 of this Act.1

99. Warrant for recovery of land-(1) A warrant for the recovery of land shall authorise the bailiff or constable to whom it is directed to give possession of the land referred to therein to the person named in the warrant and shall justify him in entering, by force if necessary, upon the land, with such assistants as he deems necessary, and in giving possession accordingly; but no entry tinder any such warrant shall be made except between the hours of 8 o'clock in the morning and 5 o'clock in the afternoon. The person to whom possession is given in accordance with the warrant shall hold the land discharged of the tenancy (if any) and the defendant, and all persons claiming by, through, or under him shall, so long as the judgment or order pursuant to which the warrant was issued remains unreversed, be barred from all relief in equity or otherwise.

(2) For the purpose of executing any warrant to give possession of any premises, it shall not be necessary to remove any goods or chattels from those premises.

Cf. 1947, No. 16, s. 99 (N.Z.); S.R. 1959118, r: 88 (N.Z.)

100. Irregularity in execution of warrant can only be sued for as special damage - (1) Where a person by whom a warrant for the recovery of any land is sued out had, at the time of suing out the same, lawful right to the possession of the land, neither he nor his agent, nor any other person acting on his behalf, shall be deemed to be a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this Act; but the party aggrieved may if he thinks fit bring an action in any Court of competent. jurisdiction and recover for special damage.

(2) If special damage is not proved the defendant in the action for special damage shall be entitled to a verdict; and if' proved, but assessed by the last-mentioned Court at any sum not exceeding 50 sene, the plaintiff shall recover no more costs than damages unless the Court before whom the trial is held certifies that in its opinion full costs ought. to be allowed.

Cf. 1947, No. 16, s. 100 (N.Z.)

101. Person illegally obtaining warrant liable for trespass-(1) If any person by whom a warrant for the recovery of any land is sued out in a Court had not, at the time of suing out the same, lawful right to the possession of the land, the suing out of the warrant shall be deemed a trespass by him against the tenant or occupier of the land, although no entry is made by virtue of the warrant.

(2) Nothing herein contained shall be deemed to protect any person on whose application and to whom any such warrant as aforesaid is granted from any action against him by any such tenant or occupier as aforesaid for or in respect of any entry and taking possession, where that person had not when the warrant was issued lawful right to the possession of the said land; and nothing herein contained shall affect any rights to which any person may be entitled as outgoing tenant by the customs of the country or otherwise.

(3) No action or prosecution shall be brought against any Magistrate who has made any order for the issue of, or any Registrar who has issued, any warrant for the recovery of any land, or against any bailiff or constable who has executed any such warrant as aforesaid for ordering, issuing, or executing the warrant, by reason only that the person on whose application the warrant was issued had not lawful right to the possession of the land.

Cf. 1947, No. 16, s. 101 (N.Z.)

Recovery of Chattels

102. Warrant for recovery of chattels-(1) A warrant for the recovery of chattels may be issued at the request of any person who has obtained a judgment or order for the recovery of specific chattels.

(2) The warrant shall require the bailiff or constable to whom it is directed to demand and seize the specific chattels referred to therein, if they can be found by him, and to deliver them to the person named in the warrant.

Cf. 1947, No. 16, s. 103 (N.Z.); S.R. 1959/18, rr. 88, 89, 91 (N.Z.)

103. Further proceedings if chattels not recovered - If possession of the chattels is not recovered under the warrant referred to in section 102 of this Act, the person entitled to the recovery of the chattels may,-

(a) Apply to a Magistrate for a warrant of commitment, which shall direct the commitment to prison of the judgment debtor for such term as the Magistrate thinks fit not exceeding 3 months; and

(b) Whether or not a warrant of commitment is issued, obtain the issue of a warrant of distress for the value of the chattels, such value to be assessed in such manner as a Magistrate may direct.

Cf. 1947, No. 16, s. 104 (N.Z.)

Absconding Defendant

104. Absconding defendant may be arrested - (1) Where it appears to the satisfaction of a Magistrate by affidavit of the plaintiff or his authorised agent that the plaintiff has a good cause of action against a defendant for a sum within the jurisdiction of a Magistrate's Court for which action has been commenced under this Act but in respect of which final judgment has not been obtained, and that. there is probable cause (the grounds of which shall be stated in the affidavit) for believing that the defendant is about to leave Western Samoa and to evade the payment of the said sum, the Magistrate may issue a warrant of arrest under his hand, returnable immediately:

Provided that if the claim is for a debt or amount long overdue the Magistrate, may, before issuing the warrant, require the person asking for the issue thereof to lodge in the Court any amount not exceeding $40, or to give security therefore to the satisfaction of the Magistrate, to abide the decision of the Court under section 105 of this Act.

(2) A defendant against whom a warrant has issued for any sum may either give to the Registrar security for the payment of the said sum and the costs shown on the warrant or deposit the said sum and the said costs with the officer executing the warrant, or with the Registrar; whereupon the said sum and costs so deposited shall be paid, applied, and disposed of according to the final judgment of the Court.

(3) In default of security being given, or the said sum and costs being deposited with the officer executing the warrant or the Registrar as aforesaid, the Magistrate may order the defendant to be detained in prison, or lock-up, and to be brought from there to a Magistrate's Court at a time to be stated in the order, being not more than 7 clear days from the date of the order, unless he sooner gives the prescribed security or makes the said deposit.

(4) A Magistrate before whom a defendant is brought under the authority of any warrant issued as aforesaid may, with the consent of the defendant, thereupon hear and finally adjudicate upon the claim of the plaintiff, or fix the time for hearing the claim, or may without such consent fix the time mentioned in the summons issued in the action as the time for hearing the claim by the Court.

(5) If after the prescribed security has been given or the said deposit. has been made the defendant leaves Western Samoa without. the leave of the Court, all money so deposited or recovered pursuant to the security given shall become available as the Court directs for the satisfaction of any sum recovered in the action.

(6) In the absence of the Magistrate from the place where the Court is situated at which the application for the warrant was filed, all the powers conferred upon a Magistrate by subsections (1) and (3) of this section may be exercised by a Fa'amasino Fesoasoani or by a Registrar.

Cf. 1947, No. 16, s. 109 (N.Z.); 1908, No. 89, s. 55 (N.Z.); S.R. 1959/18, rr. 117 to 119 (N.Z.)

As to recovery of tax if defendant is absent, see s. 86 of the Income Tax Administration Act 1975.

105. Successful plaintiff entitled to execution, successful defendant entitled to compensation - Where a Magistrate hears and finally adjudicates upon the claim of a plaintiff against a defendant who has been arrested under the power contained in section 104 of this Act the following provisions shall apply:

(a) If judgment is given for the plaintiff, the Magistrate may make an order for the immediate payment of the amount of the judgment, with costs, and execution may at once be issued and such other proceedings may be had thereon as if the judgment were a judgment obtained in the ordinary course of procedure:

(b) If judgment is given for the defendant, the Magistrate may, in his discretion, award to the defendant by way of compensation any sum not exceeding $40, and such award shall be deemed to be a judgment of the Court and execution may issue thereon:

(c) Once judgment is given, the defendant, if in custody, is entitled to be discharged.

Cf. 1947, No. 16, s. 110 (N.Z.)

PART V

GENERAL

Trial

106. Trial by Magistrate or Fa'amasino Fesoasoani - The Magistrate or Fa'amasino Fesoasoani, as the case may be, shall be the sole judge in all proceedings brought in a Court before him and shall determine all questions of fact, as well as of law:

Provided that nothing in this section shall affect the power to make rules authorising the Registrar to exercise jurisdiction and powers conferred on the Court. by this or any other Act.

Cf. 1947, No. 16, s. 58 (N.Z.)

107. Fa'amasino Fesoasoani may sit with Magistrate - Without in any way limiting the effect of section 106 of this Act, a Magistrate may have one or more Fa'amasino Fesoasoani sitting with him in any proceeding for the sole purposes of giving such advice as may be sought by the Magistrate on any matter of, or involving, Samoan custom, or penalty, and in order to obtain such advice the Magistrate may confer with any Fa'amasino Fesoasoani who is sitting with him at any time either in open Court or in private.

108. Magistrate or Fa'amasino Fesoasoani to take notes - (1) At the hearing of any proceedings in a Court from the judgment of which there is a right of appeal without leave, the presiding Magistrate or Fa'amasino Fesoasoani shall, unless the parties have agreed not to appeal, make or cause to be made a note-

(a) Of the facts in evidence; and

(b) Of any question of law or equity raised at the hearing; and 

(c) Of his decision thereon and of his determination of the proceedings.

(2) Where such a note has been taken, the Magistrate or Fa'amasino Fesoasoani (whether notice of appeal has been served or not) shall, on the application of any party to the proceedings, and on payment by that party of such fee as may be prescribed, cause him to be furnished with a copy of the note.

Cf. 1947, No. 16, s. 60 (N.Z.)

Protection of Magistrates and Fa'amasino Fesoasoani

109. No action against Magistrate or Fa'amasino Fesoasoani unless act in excess of or without jurisdiction -(1) No action shall be brought against any Magistrate or Fa'amasino Fesoasoani for any judicial act done by him, unless he has exceeded his jurisdiction or has acted without jurisdiction.

(2) Where a conviction or judgment or order is entered or made by a Magistrate or by a Fa'amasino Fesoasoani and a warrant of distress or of commitment or a warrant for the recovery of a sum to be paid on a conviction is granted thereon bona fide by some other Magistrate or Fa'amasino Fesoasoani, no action shall be brought against the Magistrate or Fa'amasino Fesoasoani who granted the warrant by reason of any defect in the conviction or judgment or order or of any want of jurisdiction in the Magistrate or Fa'amasino Fesoasoani who entered or made it.

Cf. 1957, No. 87, s. 193 (N.Z.); 1947, No. 16, s. 119 (N.Z.)

110. No action against Magistrate or Fa'amasino Fesoasoani to be brought in Magistrate's Court -No action against any Magistrate or Fa'amasino Fesoasoani by any person claiming to have been injured by an act done by the Magistrate or Fa'amasino Fesoasoani in excess of jurisdiction or without jurisdiction shall be brought in a Magistrate's Court.

Cf. 1957, No. 87, s. 194 (N.Z.)

111. Onus of proof - In any action brought against a Magistrate or Fa'amasino Fesoasoani by a person claiming to have been injured by an act done by the Magistrate or Fa'amasino Fesoasoani in excess of jurisdiction or without jurisdiction, the onus of proving the excess or want of jurisdiction shall lie upon the person alleging it.

Cf. 1957, No. 87, s. 195 (N.Z.)

112. Plaintiff may be ordered to give security for costs - (1) In any action brought against a Magistrate or Fa'amasino Fesoasoani by a person claiming to have been injured by an act done by the Magistrate or Fa'amasino Fesoasoani in excess of jurisdiction or without: jurisdiction, the Supreme Court or any Judge of that Court, upon application by the Magistrate or Fa'amasino Fesoasoani at any time before the day fixed for the trial of the action, may, at the discretion of the Court or judge, order the plaintiff to give security for the costs of the action to the satisfaction of the Registrar of the Supreme Court in a sum not exceeding $100.

(2) If security is ordered to be given, the Court or judge may direct that in the meantime all proceedings shall be stayed.

Cf. 1957, No. 87, s. 196 (N.Z.)

113. Indemnity to Magistrate or Fa'amasino Fesoasoani - (1) Any Magistrate or Fa'amasino Fesoasoani against whom a judgment has been entered to pay damages or, costs to any person injured as a result of any act done by the Magistrate or Fa'amasino Fesoasoani in excess of jurisdiction or without jurisdiction shall be indemnified by the State to the full amount of the judgment on production by him of a certificate signed by a Judge of the Supreme Court stating that in his opinion the Magistrate or Fa'amasino Fesoasoani acted in good faith under the belief that he had in fact jurisdiction, and further that in the opinion of the judge in all the circumstances he ought fairly and reasonably to be excused.

(2) Where a claim against a Magistrate or Fa'amasino Fesoasoani is settled by the payment by him of, or an agreement by him to pay, an agreed amount for damages or costs before action is commenced against him or before or during trial of the action, he shall be indemnified by the State to the full amount paid or agreed to be paid by him, on production of a certificate signed by a judge of the Supreme Court stating as aforesaid and also that in the opinion of the judge the amount paid or agreed to be paid was fair and reasonable:

Provided that, if he is not so satisfied, the Judge may issue the certificate in respect of such less sure as in his opinion would have been or would be adequate to settle the plaintiffs claim, and in that. case the Magistrate or Fa'amasino Fesoasoani shall be indemnified by the State to the amount specified in the certificate.

(3) Application for such a certificate may be made by the Magistrate or Fa'amasino Fesoasoani at any time to a Judge in Chambers, and the Judge shall have power to grant the certificate after considering such evidence as may be given before him either orally or in the form of affidavits.

(4) A copy of the application shall be served by the Magistrate or Fa'amasino Fesoasoani on the Attorney-General, who shall be entitled to appear and oppose it.

Cf. 1957, No. 87, s. 197 (N.Z.)

114. Proceedings not to be questioned for want of form - No statement of claim, information, summons, judgment, conviction, sentence, order, bond, warrant or other document, and no process or proceedings in a Court, shall be quashed, set aside or held invalid by any Magistrate's Court or by any other Court by reason only of any defect, irregularity, omission or want of form unless the Court considering the question is satisfied that there has been a miscarriage of justice.

Cf. 1947, No. 16, s. 64 (N.Z.); 1957, No. 87, s. 204 (NX); S.R. 1959/18, r. 167 (N.Z.)

Officers of the Court

115. Penalty for resisting or obstructing officer - If any person wilfully resists or obstructs, or aids, abets, counsels, procures or incites any other person to resist or obstruct, any officer of a Court in serving any process of a Court or in executing any warrant or any judgment. or order of a Court or Magistrate or Fa'amasino Fesoasoani or Registrar or acting otherwise in the execution of his duty, that person shall be guilty of an offence and shall be liable on an order made by a Magistrate or Fa'amasino Fesoasoani in that behalf to a fine not exceeding $40, and any bailiff or constable may take him into custody, with or without warrant, and bring him before a Magistrate or Fa'amasino Fesoasoani:

Provided that nothing in this section shall be deemed to prevent proceedings in respect of that assault being taken against that person under some other enactment instead of under this section.

Cf. 1947, No. 16, s. 18 (N.Z.); 1921, No. 16, ss. 76 (a), 77 (N. Z.)

116. Misconduct of officers - (1) If any officer of a Court is charged-

(a) With extortion or misconduct while acting under colour or pretence of the process of a Court; or

(b) With not duly paying or accounting for any money levied or received by him under the authority of this Act, - 

it shall be lawful for a Magistrate to inquire into the matter in a summary way.

(2) For the purpose of any such enquiry, the Magistrate may summon and enforce the attendance of all necessary parties in like manner as the attendance of witnesses in any action may be enforced.

(3) On the inquiry the Magistrate may make such order as lie thinks just for the repayment of any money extorted or the due payment of any money levied, and for the payment of damages and costs, and also, if he thinks fit, may impose such fine upon the officer, not exceeding $40 for each offence, as appears to him to be adequate.

Cf. 1947, No. 16, s. 19 (N.Z.)

117. Officers of Court not to act as solicitors therein - (1) Except as provided by this Act or the rules or by any other enactment, no officer of a Court shall be directly or indirectly engaged as solicitor or agent for any party in any proceedings in any Court.

(2) Every person who contravenes the provisions of this section shall, for each offence, be liable to a fine not exceeding $20.

Cf. 1947, No. 16, s. 20 (N.Z.)

118. Neglect by bailiffs-(1) Where a bailiff of any Court, or any person acting under his authority, being employed to levy any execution against goods and chattels, loses the opportunity of levying the execution by reason of neglect, connivance or omission, any party aggrieved thereby may complain to the Magistrate of that Court.

(2) On any such complaint the Magistrate, if the neglect, connivance or omission is proved to his satisfaction, shall order the bailiff to pay such damages as it appears that the complainant has sustained by reason thereof, not exceeding in any case the sum for which the execution was issued.

Cf. 1947, No. 16, s. 105 (N.Z.)

119. Irregularity in executing warrants - No officer of a Court in executing any warrant of the Court, and no person at whose instance any such warrant is executed, shall be deemed a trespasser by reason of any irregularity or informality-

(a) In any proceeding on the validity of which the warrant depends; or

(b) In the form of the warrant. or in the mode of executing it; 

but any person aggrieved may bring an action for any special damage sustained by him by reason of the irregularity or informality against the person guilty thereof and in such case the provisions of subsection (2) of section 100 of this Act shall apply.

Cf. 1947, No. 16, ss. 100, 106 (N.Z.)

120. Actions against bailiffs acting under warrants - (1) No action shall be commenced against any bailiff for anything done pursuant to a warrant issued under this Act, unless-

(a) A written demand for inspection of the warrant and for a copy thereof, signed by the person making the demand, is made or left at. the office of the Court by the party intending to bring the action, or his solicitor or agent; and

(b) The bailiff refuses or neglects to comply with the demand within 6 days after it is made.

(2) If any action is commenced against a bailiff in a case where such a demand has been made and not complied with, judgment shall be given for the bailiff if the warrant is produced or proved at the trial, notwithstanding any defect of jurisdiction or other irregularity in the warrant; but the officer who issued the warrant may be joined as a defendant in the action, and if the officer is so joined and judgment is given against him the costs to be recovered by the plaintiff against him shall include such costs as the plaintiff is liable to pay to the bailiff.

Cf. 1947, No. 16, s. 107 (N.Z.)

121. Production of warrant sufficient proof of Court's authority - In any action commenced against a person for anything done in pursuance of this Act, the production of the warrant of the Court shall be deemed sufficient proof of the authority of the Court previous to the issue of the warrant.

Cf. 1947, No. 16, s. 108 (N.Z.)

Contempt of Court

122. Repealed by s. 177 of the Criminal Procedure Act 1972.
As to contempt of Court, see now s. 173 of the Criminal Procedure Act 1972.

PART VI

ADMINISTRATION

Sittings

123. Place of sittings - (1) Regular sittings of the Courts for the dispatch of civil and criminal business may be held in the Courthouse in any place appointed under subsection (1) of section 4 of this Act.

(2) Special or adjourned sittings for the dispatch of any business may be held in any such Courthouse or in any other place wheresoever which the Magistrate deems convenient.

Cf. 1947, No. 16, s. 21 (N.Z.)

124. Times of sittings - (1) Sittings for the dispatch of civil business and sittings for the dispatch of criminal business shall be held on such days and at such times as may be appointed by the Magistrate exercising jurisdiction at the place in which the sittings are held:

Provided that the days appointed for regular sittings shall be subject to the approval of the Minister.

(2) In the absence of the Magistrate for any reason, the Registrar may appoint the days and the times referred to herein.

(3) Nothing in this section shall derogate from the power of any Magistrate or any Fa'amasino Fesoasoani to hold sittings on any day or at any time for the disposal of criminal business.

Cf. 1947, No. 16, s. 22 (N.Z.)

125. Adjourned sittings - (1) A Magistrate or Fa'amasino Fesoasoani may from time to time adjourn the sitting of any Court held by him.

(2) If a sitting of the Court in the exercise of its civil or criminal jurisdiction cannot be held upon a day appointed by reason of the absence of the Magistrate or Fa'amasino Fesoasoani or otherwise, the Registrar, after exercising any powers which he is authorised to exercise by or under this Act or any other enactment or the rules, may adjourn the Court to such day as he thinks convenient.

Cf. 1947, No. 16, s. 23 (N.Z.)

Financial Provisions

126. Payment and recovery of fees in civil proceedings - (1) All fees in any civil proceedings, except such as may be payable in respect. of keeping possession, or for storing, removing, or selling goods seized under a warrant, shall be paid in the first instance by the party on whose behalf any proceedings are taken.

(2) No Magistrate or Fa'amasino Fesoasoani or officer of the Court shall do any act for which a fee is payable unless the fee is first paid; but no such act, if done, shall be invalid by reason only of the non-payment of the fee:

Provided that in any proceedings in which the State or any officer of the State on its behalf is a party, no fee need be prepaid by the State or its officer, but such fee may nevertheless be recoverable from the opposite party with costs, if judgment is given against. that party.

(3) In default of the payment of any fees, payment thereof shall be enforced, by order of the Court, in like manner as payment of any debt adjudged by the Court to be paid.

(4) A table of all fees payable shall be kept in the office of every Court, and shall be made available for inspection by any person on request.

Cf. 1947, No. 16, s. 113 (N.Z.)

127. Fees to be paid to Public Account - All fees payable in respect of civil proceedings in Magistrates' Courts shall be payable in the first instance to the Registrar of the Court where such proceedings are filed or determined, and shall forthwith be paid by the Registrar into the Public Account:

Provided that fees in respect of keeping possession, and of storing, removing, and selling goods seized tinder a warrant shall be paid to the bailiff or person charged with the execution of the warrant, and shall be paid by him to the Registrar for payment by the Registrar to the person entitled thereto.

Cf. 1947, No. 16, s. 115 (N.Z.)

128. Payment and recovery of fees in criminal proceedings - (1) The provisions of subsections (1) and (4) of section 126 of this Act shall apply to fees in criminal proceedings.

(2) No Magistrate or Fa'amasino Fesoasoani or officer of the Court shall do any act for which a fee is payable unless the fee is first paid; but no such act, if clone, shall be invalid by reason only of the non-payment of the fee:

Provided that no fee shall be received or demanded from any constable or from any duly appointed officer of the State or of any local authority or other statutory public body in respect of proceedings instituted by him in the execution of his duty.

(3) In default of the payment of any fees by the person by whom they are payable in the first instance the amount shall be recoverable in the same manner as a fine or as a debt due to the State.

Cf. 1957, No. 87, s. 207 (N.Z.)

129. Money to be payable in first instance to Registrar - (1) All fees, fines, costs, and other money payable in criminal proceedings in Magistrates' Courts shall be payable in the first instance to the Registrar of the Court. where such proceedings are filed or determined.

(2) The sums received by any Registrar under this section shall forthwith be paid by him-

(a) In any case where they are payable to any person in accordance with any enactment or by any order of the Court made pursuant to this Act or to any other enactment, to that person; and

(b) In any other case, into the Public Account.

Cf. 1957, No. 87, s. 208 (N.Z.)

PART VII

MISCELLANEOUS

130. Summonses and other documents to be under seal - (1) All summonses issuing out of a Magistrate's Court, and all such other documents so issuing as may be prescribed, shall be sealed with the seal of the Court.

(2) All such summonses and other documents purporting to be sealed as aforesaid shall, in Western Samoa, be received in evidence without further proof thereof.

Cf. 1947, No. 16, s. 116 (N.Z.)

131. Proof of service of documents - (1) The service of any document may be proved by affidavit made by the person who served the document, showing the fact and the time and mode of service, or by that person on oath at the hearing or, where service is effected by an officer of the Court or a constable, by an endorsement on the copy of the document showing the fact and the time and mode of service. Any such endorsement shall be signed by the person who served the document or, if the service was effected by registered letter, by any officer of the Court who knows of the service.

(2) Every person who wilfully endorses any false statement of the fact, time, or mode of service on a copy of any document commits an offence, and is liable to imprisonment for a term not exceeding 2 years or to a fine not exceeding $400 or to both.

Cf. 1957, No. 87, s. 29 (N.Z.); 1955, No. 13, s. 2 (N.Z.)

132. Language of documents - Where a document is served on any person who is known to the Registrar or person serving the document. to be able to read and understand English, it shall be written in English, but in every other case it shall be written in Samoan or be accompanied by a translation into Samoan.

Cf. 1957, No. 87, s, 30 (N.Z.)

133. Actions on lost instruments - In any action founded on a promissory note, bill of exchange or other negotiable instrument declared on the affidavit of the plaintiff to be lost, if an indemnity is given by the plaintiff to the satisfaction of the Court against the claims of any other person upon the instrument, the Court may give judgment therefore as if the same were produced.

Cf. 1947, No. 16, s. 118 (N.Z.)

134. No privilege to barristers or solicitors - No privilege shall be allowed to any barrister or solicitor to exempt him from the jurisdiction of a Court.

Cf. 1,947, No. 16, s. 120 (N.Z.)

135. Constables to assist Court - (1) All constables shall aid and assist any Court or Magistrate or Fa'amasino Fesoasoani or Registrar in the execution of all and any of the judicial duties imposed upon the Court or Magistrate or Fa'amasino Fesoasoani or Registrar by this or any other Act; and if any constable neglects or refuses so to do he shall be liable, where no other penalty is provided, to a fine not exceeding $10.

(2) It shall be the duty of the keeper of every prison or lock-up on the request of the bailiff or constable to whom a warrant of arrest. or commitment has been issued to hold the prisoner or defendant in the custody of the bailiff or constable until the prisoner or defendant may, by the most convenient means of transport, be conducted to the place of imprisonment or Court named in the warrant, as the case may be.

Cf. 1947, No. 16, s. 121 (N.Z.)

136. Magistrate's Courts Rules - (1) The Head of State may, from time to time, acting on the advice of the Prime Minister, and with the concurrence of the Rules Committee, make, alter or revoke rules regulating the practice and procedure of the Courts and forms of proceedings therein, both under this Act and in relation to the exercise of any jurisdiction conferred on Magistrates' Courts, Magistrates or Fa'amasino Fesoasoani by any other Act:

Provided that no such rule shall be inconsistent with any provision of this or any other Act or any rule for the time being governing the practice and procedure of the Supreme Court or the forms of proceedings therein.

(2) The power of making rules shall extend to all matters of practice or procedure and matters relating to or concerning the effect or operation in law of any practice or procedure in any case within the cognisance of the Courts as to which rules of the Supreme Court may be or might lawfully be made for cases within the cognisance of the Supreme Court.

(3) Without prejudice to the generality of the foregoing 7provisions of this section, the power of making rules shall extend to - 

(a) Prescribing the Court in which proceedings are to be commenced, and the procedure to be adopted where proceedings are commenced in one Court which should, under this or any other Act or the rules, have been commenced in another Court:

(b) Prescribing the circumstances in which any proceeding may be transferred from one Court to another, and the procedure for or consequent on any such transfer:

(c) Prescribing the procedure in Magistrates' Courts consequent on the transfer of any proceedings from the Supreme Court to a Magistrate's Court, or from a Magistrate's Court to the Supreme Court:

(d) Prescribing the procedure in Magistrates' Courts consequent on the removal of a judgment of the Supreme Court into a Magistrate's Court and on the removal of a judgment of a Magistrate's Court into the Supreme Court.

(e) Prescribing the form of the records of the Court and providing for the custody of the said records, and for the receipt of and accounting for all money paid into or out of Court:

(f) Authorising the Registrar to hear and determine any proceedings other than actions, and any actions in which the defendant fails to appear at the hearing or admits the claim:

(g) Prescribing, according to the nature of the proceedings and the amount involved therein, the costs and charges to be paid by one party or the parties in the proceedings to the other party or parties, in addition to the money paid out-of-pocket:

(h) Prescribing the fees to be paid in respect of any proceedings taken or for service of any summons or other process under this Act:

(i) Prescribing fees, travelling allowances and expenses payable to persons giving evidence and to interpreters, referees, and arbitrators in any proceedings under this Act:

(j) Prescribing the forms to be used in respect of any proceedings to which this Act applies:

(k) Prescribing procedure for the taking of evidence of witnesses at a distance or about to leave the country or of witnesses overseas, including provisions for requiring the attendance of witnesses, the answering of questions, and the production of documents:

(l) Providing for any other matters in respect of which rules are contemplated or specially authorised by this Act.

Cf. 1947, No. 16, s. 122 (N.Z.); 1961, No. 26, s. 40

See s. 176 of the Criminal Procedure Act 1972, which provides for Rules of Court in respect of practice, procedure, and forms under that Act.
As to Rules of Court, see s. 40 of the Judicature Ordinance 1960.

137. Regulations - The Head of State may, from time to time, acting on the advice of Cabinet, make, alter, or revoke such regulations as may in his opinion be necessary or expedient for giving full effect to the provisions of this Act and for the due administration thereof.

Cf. 1947, No. 16, s. 123 (N.Z.)

138. Repeals and savings - (1) The enactments mentioned in the First Schedule to this Act are hereby repealed.

(2) All Courts, jurisdictions, officers, appointments, orders, warrants, rules, regulations, seals, forms, books, records, instruments, and generally all acts of authority which originated under any of the said enactments or any enactment thereby repealed, and are subsisting or in force on the coming into operation of this Act, shall ensure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act, and accordingly shall, where necessary, be deemed to have so originated.

(3) All actions, matters and proceedings commenced under any of the said enactments and pending or in progress on the coming into operation of this Act may be continued, completed and enforced under this Act.

Cf. 1947, No. 16, s. 125 (N.Z.)

139. Amendments of enactments - The enactments cited in the first column of the Second Schedule to this Act are hereby amended as shown in the second column of that Schedule.

140. Amendments of regulations - The regulations cited in the first column of the Third Schedule to this Act are hereby amended as shown in the second column of that Schedule.

_____

SCHEDULES 
_____

FIRST SCHEDULE

Section 138 (I)

Part I of the Judicature Ordinance 1961, comprising sections 3 to 20 inclusive. The Fa'amasino Fesoasoani Act 1964.

_____

SECOND SCHEDULE

The amendments specified in this Schedule have been incorporated in the enactments affected, where they appear in this Reprint.

Part of this Schedule was repealed by s. 2 of the Reprint of Statutes (Miscellaneous Provisions) Act 1975.

_____

THIRD SCHEDULE

The amendments specified in this Schedule have been incorporated in the enactments affected, where they appear in this Reprint.

________________

THE MAGISTRATES' COURTS AMENDMENT ACT 1972
1972, No. 6

An Act to amend the Magistrates' Courts Act 1969 by extending the jurisdiction of a Court presided over by a Magistrate 

[17 July 1972

1. Short title - This Act may be cited as the Magistrates' Courts Amendment Act 1972.

2. This section amended s. 36 of the principal Act.

______

THE MAGISTRATES' COURTS AMENDMENT ACT 1976
1976, No. 25

An Act to amend the Magistrates' Courts Act 1969 

[17 December 1976

1. Short title and commencement - (1) This Act may be cited as the Magistrates' Courts Amendment Act 1976, and shall be read together with and be deemed to be part of the Magistrates' Courts Act 1969 (hereinafter referred to as the principal Act).

(2) This Act shall come into force on the 1st day of January 1977.

2. This section inserted subs. (3A) in s. 5 of the principal Act.

3. This subsection substituted new subss. (2) and (3) for subs. (2) of s. 10 of the principal Act.
____________________

The Magistrates' Courts Act 1969 is administered in the Department of Justice.

_________________

REGULATIONS APPLYING TO MAGISTRATES' COURTS

Order Designating Countries from which Appointment of Magistrates should be made 1969 (Gaz. 1969, p. 14)
Magistrates' Courts Rules 1971 (W.S.R. 1971/11)

________________

AN ORDER DESIGNATING COUNTRIES FROM WHICH APPOINT-MENT OF MAGISTRATES SHOULD BE MADE 1969
______

PURSUANT to section 5 of the Magistrates' Courts Act 1969 I, MALIETOA TANUMAFILI II, Head of State, acting on the advice of the Judicial Service Commission, hereby order that the countries named in the Schedule hereto are designated as approved countries from which appointment of Magistrates should be made.

THE SCHEDULE

New Zealand
Commonwealth of Australia
The United Kingdom of Great Britain and Northern Ireland

IN witness whereof I have hereto set my hand this 30th day of May 1969.

MALIFTOA TANUMAFIIA II.,
Head of State.

__________________

THE MAGISTRATES' COURTS RULES 1971

HIS HIGHNESS, MALIETOA TANUMAFILI II, HEAD OF STATE

At. the Government House at Apia this 18th day of May 1971

PURSUANT to the Magistrates' Courts Act 1969, the Head of State, acting on the advice of the Prime Minister, and with the concurrence of the Rules Committee constituted by and under section 40 of the Judicature Ordinance 1961, hereby make the following rules.

_______

ANALYSIS

1. Title	
2. Commencement

PART I

ACTIONS

3. Commencement of actions
4. Classes of action
5. When ordinary action may be brought
6. When default action may be brought
7. Pleadings
8. Further particulars
9. Amendment of Statement of Claim, etc.

PART II

PARTIES

10. Misjoinder
11. Representative proceedings
12. Order joining parties
13. Adding plaintiff
14. Infants, and other persons of unsound mind

PART III

CONFESSION, DEFENCE, AND COUNTERCLAIM

15. Confession, defence, and counterclaim in default action
16. Judgment by default
17. Judgment of confession
18. Payment or confession of part of claim
19. Payment into Court in ordinary action

PART IV

DISCONTINUANCE

20. Discontinuance
21. Discontinuance not to bar subsequent proceedings

PART V

HEARING OF ACTION OR MATTER

22. Where neither party appears
23. Where a plaintiff does not appear
24. Where a defendant does not appear
25. Judgment by Registrar

PART VI

ABSCONDING DEBTORS

26. Arrest of absconding debtors

PART VII

GENERAL PROVISIONS

27. Exercise of powers of Court
28. Powers of the Registrar 
29. Procedure in matters not provided for 
30. Fees
31. Costs
Schedules

RULES

1. Title - These rules may be cited as the Magistrates' Courts Rules 1971.

2. Commencement - These rules shall come into force on the day on which they are made, and shall apply to, -

(a) Any proceedings commenced on or after that day; and

(b) Any steps taken on or after that day in respect of any proceedings commenced before that day.

PART I

ACTIONS

3. Commencement of actions - Every action shall be commenced by filing with a Registrar of the Court a statement of claim intituled "In the Magistrates' Court of Western Samoa", setting forth the names and descriptions of the plaintiff and defendant, the nature of the cause of action, and the relief claimed.

Cf. S.R. 1959/18, r. 9 (N.Z.)

4. Classes of action - An action may be either -

(a) An ordinary action, in which, subject to these rules, the defendant is required to attend to answer the plaintiff's claim; or

(b) A default action, in which, subject to these rules, the plaintiff may have judgment entered at once if the defendant does not pay or dispute the plaintiff's claim or any part thereof or counterclaim within 7 days after the service of the summons on the defendant, inclusive of the day of service.

Cf. S.R. 1948/197, r. 71 (N.Z.); S.R. 1952/242, rr. 9, 10 (N.Z.); S.R. 1959/18, r. 10 (N.Z.)

5. When ordinary action may be brought - An ordinary action may be brought against any person in respect of any cause of action.

Cf. S.R. 1959/18, r. 11 (N.Z.)

6. When default action may be brought - (l) In this rule the term "money-lender" includes every person (whether an individual, a firm, a society or a corporate body) whose business is that of moneylending, or who advertises or announces himself or holds himself out in any way as carrying on that business; but does not include any person bona fide carrying on the business of banking or insurance or any business in the course of which and for the purposes whereof he lends money at a rate of interest (including any payment or deduction by way of premium, fine or forfeiture) not exceeding 10 percent per annum.

(2) A default action may, subject to subclause (3) of this rule, be brought to recover any debt or liquidated demand.

(3) No default action shall be brought - 

(a) Against an infant; or

(b) Against a mentally defective person in respect of whom there is in force an order of medical custody made under the Mental Health Ordinance 1961; or

(c) Against the State of Western Samoa or any person being sued as a representative of that State; or

(d) To recover money lent by a moneylender, or to enforce any agreement made with, or security taken by, a moneylender; or

(e) To recover any money payable under any hire-purchase agreement; or

(f) To recover any interest payable pursuant to any instrument, if the rate of interest payable thereunder exceeds 10 percent per annum.

(4) Where a default action is brought to recover any interest payable pursuant. to any instrument, there shall be included in the statement of claim a statement that the interest claimed is payable pursuant to a specified instrument and that the true rate of interest payable thereunder does not exceed 10 percent per annum; and the statement of claim shall be signed by the plaintiff or his solicitor.

Cf. S.R. 1948/197, r. 73 (N.Z.); S.R. 1952/242, r. 5 (N.Z.); S.R. 1956/81, r. 5 (N.Z.); S.R. 1959/18, r. 12 (N.Z.); 1908, No. 121, s. 2 (N.Z.)

7. Pleadings - (1) No pleadings other than the statement of claim shall be required in any action where the amount involved does not exceed the sum of $100.

(2) Where the amount involved exceeds the sum of $100, the plaintiff may, on filing his statement of claim, apply ex parte for an order directing the defendant to file a defence to the claim within such time as shall be stated in the order. Such an order shall be made by the Registrar as of right without the necessity of reference to a Magistrate of the Court. A sealed copy of the order, together with a sealed copy of the summons and the statement of claim, shall be served on the defendant.

(3) The Court may of its own motion at anytime and in any action require the defendant to file a statement of defence.

Cf. S.R. 1959/18, r. 15 (N.Z.)

8. Further particulars - (1) The Court may require a plaintiff at or before the trial of the action to file a fuller and more explicit statement of his claim, and may stay further proceedings in the action until this has been done.

(2) This rule shall, with the necessary modifications, apply to a statement of defence or a counterclaim as it applies to a statement of claim.

Cf. S.R. 1948/197, r. 83 (N.Z.); S.R. 1959/18, r. 16 (N.Z.)

9. Amendment of statement of claim, etc. - A plaintiff may amend his statement of claim, and a defendant may amend his statement of defence or counterclaim, at any time before or during the trial with leave of the Court on such terms as the Court thinks fit.

Cf. S.R. 1948/197, r. 167 (N.Z.); S.R. 1959/18, r. 17 (N.Z.)

PART II

PARTIES

10. Misjoinder - No action shall be deemed improperly constituted because of the joinder of plaintiffs or defendants or of different causes of action; but the Court may, in any case in which such joinder is considered embarrassing or otherwise inexpedient, order any party or cause of action to be struck out.

Cf. S.R. 1948/197, r. 46 (N.Z.); S.R. 1959/18, r. 30 (N.Z.)

11. Representative proceedings - Where there are numerous persons having the same interest in an action, one or more of them may sue or be sued, or may be authorised by the Court to defend in the action, on behalf of or for the benefit of all persons so interested.

Cf. S.R. 1948/197, r. 47 (N.Z.); S.R. 1959/18, r. 31 (N.Z.)

12. Order joining parties - The Court may at any stage of the proceedings either upon or without the application of either party, and on such terms as appear to the Court to be just, order that the name of any party, whether a plaintiff or a defendant, improperly joined be struck out, and that the name of any person who ought to have been joined, or whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added, whether as plaintiff or defendant.

Cf. S.R. 1948/197, rr. 40, 42 (N.Z.); S.R. 1959/18, r. 32 (N.Z.)

13. Adding plaintiff - No person shall be added as a plaintiff without his own consent.

Cf. S.R. 1959/18, r. 33, (N.Z.)

14. Infants, and persons of unsound mind; - Infants and persons of unsound mind may sue and be sued by a guardian ad litem admitted for that purpose by the Court.

Cf. S.R. 1948/197, rr. 48, 49 (N.Z.); S.R. 1959/18, r. 34 (N.Z.)

PART III

CONFESSION, DEFENCE AND COUNTERCLAIM

15. Confession, defence, and counterclaim in default action - A defendant in a default action who admits his liability for the whole or part of the claim, or who disputes his liability for the whole or part of the claim, or who desires to set up a counterclaim, may, within 7 days after the service of the summons on him, inclusive of the day of service, file in the Court office a confession or notice of intention to defend, or a statement of that counterclaim, as the case may be.
Cf. S.R. 1959/18, r. 49 (N.Z.)

16. Judgment by default - (1) If the defendant in a default action does not within the time fixed by rule 15 of these rules file a counterclaim or a notice of intention to defend, or pay into Court or file a confession for the total amount of the claim and costs, a Magistrate or Fa'amasino Fesoasoani or the Registrar may, at the written request of the plaintiff, enter judgment against the defendant for the amount of the claim, or any part thereof, and costs:

Provided that if, after the said period of 7 days has elapsed and before judgment has been entered, the defendant files in the Court office and serves on the plaintiff a notice of intention to defend, or a counterclaim, or files a confession in the Court office, judgment shall not be entered under this rule, but the procedure prescribed by rule 17 or rule 18 of these rules, whichever is applicable, shall be followed.

(2) Where 12 months have elapsed from the date of service, judgment shall not be entered against the defendant, except with the leave of the Court granted on the ex parte application of the plaintiff.

Cf. S.R. 1959/18, r. 50 (N.Z.)

17. Judgment on confession - Where the defendant in any action (whether an ordinary action or a default action) does not file a counterclaim, but before judgment is entered files a confession to the whole claim, a Magistrate or Fa'amasino Fesoasoani or the Registrar may, at the written request of the plaintiff, enter judgment on confession accordingly.

Cf. S.R. 1959/18, r. 51 (N.Z.)

18. Payment or confession of part of claim - (1) If before judgment is entered the defendant in any action (whether an ordinary action or a default action) pays into Court, or files in the Court office a confession for part of the claim and does not file a notice of intention to defend or a counterclaim, the plaintiff may either -

(a) Have judgment entered for the full amount of the claim or any part thereof under the provisions of rule 16 or rule 17 of these rules; or 

(b) Accept the amount paid into Court in satisfaction of the claim; or

(c) Have the case set down for hearing under the provisions of subclause (2) of this rule.

(2) If, before judgment is entered, the defendant files in the Court Office and serves on the plaintiff notice of intention to defend, or a counterclaim, or if the plaintiff requests that the action be set down for hearing, the Registrar shall fix a day for the hearing of the action and shall give not less than 7 days' notice in writing to the plaintiff and to the defendant and thereafter the action shall be continued in all respects as an ordinary action.

Cf. S.R. 1959/18, r. 52 (N.Z.)

19. Payment into Court in ordinary action - (1) If the claim in any ordinary action is for a sum of money, the defendant may, before trial of the action, pay into Court a sum of money by way of satisfaction, and give notice of the payment to the plaintiff.

(2) Any money paid into Court as aforesaid maybe paid out to the plaintiff or his duly authorised agent, but the receipt thereof shall not affect the right of the plaintiff to proceed with the action for the recovery of any further sum claimed and not so paid into Court.

(3) The fact that money has been so paid into Court shall be taken into consideration in the award of costs as between the plaintiff and defendant.

Cf. S.R. 1959/18, r. 53 (N.Z.)

PART IV

DISCONTINUANCE

20. Discontinuance - (1) The plaintiff may, at any time before trial, discontinue his action, either wholly or as to any cause of action, by filing in the Court a memorandum of discontinuance.

(2) A copy of that memorandum shall be served upon the defendant.

(3) On any such discontinuance the Court may award to the defendant such costs of the action as it thinks fit.

Cf. S.R. 1948/197, r. 182 (N.Z.); S.R. 1959/18, r. 54 (N.Z.)

21. Discontinuance not to bar subsequent proceedings - The discontinuance of an action shall not be a defence to any subsequent action on the cause of action discontinued, provided the costs of the previous action so awarded have been paid.

Cf. S.R. 1948/197, r. 182 (N.Z.); S.R. 1959/18, r. 55 (N.Z.)

PART V

HEARING OF ACTION OR MATTER

22. Where neither party appears - If neither party appears at the hearing of an action or matter, the proceedings may be struck out.

Cf. S.R. 1948/197, r. 200 (N.Z.)

23. Where plaintiff does not appear - (1) If the plaintiff does not appear at the hearing of an action or matter but the defendant does, then -

(a) If the defendant admits the claim the Magistrate or Fa'amasino Fesoasoani may give judgment as if the plaintiff had appeared;

(b) If the defendant does not admit the claim, the proceedings maybe struck out, and in such case the Court may adjudge to the defendant by way of costs such sum as the Court thinks fit.

(2) Where the plaintiff does not appear at the hearing of an action or matter, but the Court has received from him an affidavit which is admissible in evidence by virtue of any Act or rule, the proceedings shall not be struck out but the plaintiff shall be deemed to have appeared at the hearing and to have tendered the evidence in the affidavit.

Cf. S.R. 1948/197, r. 201 (N.Z.)

24. Where defendant does not appear - (I) If the plaintiff appears at the hearing of an action or matter but the defendant does not appear, the Magistrate or Fa'amasino Fesoasoani, upon proof of service and of facts entitling the plaintiff to relief, may give such judgment or make such order as may be just:

Provided that where a claim is for a liquidated demand the Magistrate or Fa'amasino Fesoasoani may give judgment for the plaintiff without requiring him to give any evidence of his claim.

(2) If the defendant, not having delivered a confession, has addressed to the Court any letter admitting the claim, the Magistrate or Fa'amasino Fesoasoani may treat the letter as a consent to judgment, and may enter judgment accordingly.

Cf. S.R. 1948/197, r. 202 (N.Z.)

25. Judgment by Registrar - (1) Where in an action for a liquidated sum of money the defendant does not appear, or where the defendant appears and admits the claim or part thereof, the Registrar shall have power on the application of the plaintiff to enter judgment accordingly.

(2) In any action claiming other relief in addition to the payment of a sum of money, the last preceding subclause of this rule shall not apply unless the claim for other relief is first abandoned.

(3) Where the parties consent to judgment, the Registrar may at any time enter judgment by consent.

Cf. S.R. 1948/197, r. 209 (N.Z.)

PART VI

ABSCONDING DEBTORS

26. Arrest of absconding debtors - (I) Where in any action in the Magistrates' Court for the recovery of any debt, damages, or other sum of money for the sum of $20 or upwards the plaintiff proves to the satisfaction of the Court at any time before final judgment that -

(a) He has a good cause of action against the defendant; and

(b) There is probable cause for believing that the defendant is about to leave Western Samoa and evade payment of such sum; and

(c) The absence of the defendant from Western Samoa will materially prejudice the plaintiff in the prosecution of his action,-

the Court may order the defendant to be arrested and imprisoned for a period not exceeding 3 months unless and until he sooner gives security to the satisfaction of the Court that he will not leave Western Samoa without the prior leave of the Court.

(2) Application for a writ of arrest under this rule shall be supported by affidavit and shall be made to the Magistrate.

(3) The person arresting the defendant pursuant to a writ of arrest under this rule shall at the time of arrest deliver to the defendant a written notice notifying the defendant that upon the deposit by him with the officer executing the writ or with the Registrar of the Court of such sum to be specified in the notice, and being the amount claimed by the plaintiff and costs, that the defendant will be discharged from custody, and the said sum will be paid, applied, and disposed of according to the final judgment of the Court.

Cf. S.R. 1959/18, r. 117 (N.Z.); Code of Civil Procedure, r. 385A (N.Z.)

PART VII

GENERAL PROVISIONS

27. Exercise of powers of Court - Where power to do any act or exercise any jurisdiction or discretion is conferred by the Magistrates' Courts Act 1969 or by any provision in these rules on the Court, then -

(a) If the power is to be exercised at the hearing of any proceedings, it may be exercised by the Magistrate or Fa'amasino Fesoasoani;

(b) If the power is to be exercised at any other stage of the proceedings, it may be exercised by the Magistrate or by a Fa'amasino Fesoasoani or by the Registrar.

Cf. S.R. 1948/197, r. 332 (N.Z.)

28. Powers of the Registrar - (1) Where the Registrar is authorised under any Act or under these rules to hear and determine any proceedings or to exercise any other jurisdiction, he shall, within the limits of that authority and subject to any right of appeal to or review by the Magistrate under the Magistrates' Courts Act 1969 or these rules, have all the powers of the Magistrate, and any order made by the Registrar shall have the same effect, and be enforceable in the same manner, as if it were an order of the Magistrate.

(2) Nothing in this rule shall authorise the Registrar to commit any person to prison or to enforce any order by committal.

(3) Any order made by a Magistrate or by a Fa'amasino Fesoasoani may be signed by the Registrar, in his own name and description, and authenticated with the seal of the Court.

Cf. S.R. 1948/197, r. 333 (N.Z.)

29. Procedure in matters not provided for - If any case arises for which no form of procedure has been provided by the Magistrates' Courts Act 1969, or the Samoa Act 1921 (N.Z.) or these rules, the Court shall dispose of the case as nearly as may be practicable in accordance with the provisions of those Acts or these rules affecting any similar case or in accordance with the provisions of the Magistrates' Courts Rules 1948 (N.Z.) for the time being in force in that country affecting any similar case, and, if there is no such provision, then in such manner as the Court deems best calculated to promote the ends of justice.

Cf. S.R. 1959/18, r. 171 (N.Z.)

The. Parts of the Samoa Act 1921 (N.Z.) dealing with forms of procedure no longer apply to Western Samoa.

30. Fees - Fees under the Magistrates' Courts Act 1969 (hereinafter called "the Act"), whether for civil or criminal proceedings, shall be payable, as provided in Part VI of the Act, according to the scale of fees set out in the First Schedule hereto.

31. Costs - (1) Costs when allowed shall be regulated and paid according to the scale of costs set out in the Second Schedule hereto, but the Court may, in giving a judgment or making any order, fix a sum or sums as the costs of the action or of the application, as the case may be, in full of all costs, notwithstanding that such sum is greater or smaller than the sum set out in the said scale.

(2) In case of there being any doubt as to what costs should be allowed pursuant to the said scale in any particular matter arising in the course of any proceedings the Court, in its discretion, having regard to the said scale, shall fix such sum for costs to be paid by any party as it thinks fit.

Cf. Code of Civil Procedure, r. 568 (N.Z.)

SCHEDULES
______

FIRST SCHEDULE

Rule 30

SCALE OF COURT FEES PAYABLE TO THE REGISTRAR OF A MAGISTRATE'S COURT IN CIVIL AND CRIMINAL PROCEEDINGS

		Amount not
exceeding
$10	Amount not
exceeding
$20	Amount not
exceeding
$40	Amount not
exceeding
$100	Amount not
exceeding
$500	Amount
exceeding
$500	
	$	$	$	$	$	$	$	
1. Filing, in respect of a claim for a sum of money only: 
(a) Statement of Claim; or 
(b) Counterclaim; or
(c) Interpleader summons.		1.50	2.00	3.00	4.00	7.00	8.00	
2. Filing any document mentioned in item 1, where the claim is not for money .............................................	2.50							
3. Filing originating application not specially provided for………………	2.50
							
4. Filing application for charging order including hearing and sealing order……………………………….		1.50	2.00	2.50	3.00	4.00	5.00	
5. Sealing and issue of writ of arrest................................................				2.50	3.00	4.00	5.00	
6. Sealing and issue of writ of sale or order to collect sum of money ..............................................		1.50	2.00	2.50	3.00	4.00	5.00	
7. Filing (on amount owing under judgment): 
(a) Application for warrant of distress; or
(b) Affidavit in support of garnishee summons		1.50	2.00	3.00	3.50	4.00	5.00	
8. Sealing and issue of any warrant or writ not specifically provided for.	2.50							
9. On any application for rehearing any civil action including order, rehearing and judgment; the same fee as paid in respect of the original proceedings								

NOTE - Where a claim for a sum of money is combined with a claim that is not for money, whether in the alternative or not, the fee payable shall be under Item 1 or Item 2, whichever is the higher, or as the case may require, under Item 6 or Item 7, or Item 8, whichever is the highest.

10. Filing application for extraordinary remedy or any other matter not specially provided for, including hearing and sealing order…………………………………………………………...5.00

11. Filing any application for rehearing in criminal proceedings .............................................5.00

12. Filing affidavit in support of any of the applications specially provided for .......................0.50

13. Affixing the seal of the Court to any document other than a Court document ................... 0.50

14. Stating case for Supreme Court (except when 5 stated by the Court on its own motion) .. 4.00

15.	(a) Original copy of any document or notes of evidence per folio of 72 words ........... 0.10

(b) Duplicate copy of any document or notes of evidence per folio of 72 words ......... 0.05

16. Issue of certificate of Judgment or Order............................................................................. 5.00

17. Search of each Court Book or of one or more documents in the same matter .................... 0.50

18. General search in Court Books or documents in 2 or more matters ................................... 1.00

19. For execution of any warrant of distress or order to collect a sum of money .................... 0.50.

20.	(a) For expenses of execution of any writ of sale or any other writ .......... The actual expenses incurred by the bailiff or constable

(b) For storage, cartage, and removal of goods or advertising for goods for sale............................................................................. Actual and reasonable disbursements

(c) For each man left in possession of any premises ................................................. The amount actually paid, but not exceeding $4.00 a day or portion of a day

(d) For drawing inventory ............................................................................................. 2.00

(e) If inventory exceeds 3 folios, for every folio 
after the third ................................................................................................................. 0.20

(f) For drawing or settling any conditions of sale…………………………………… 7.00

(g) For drawing advertisement for sale.......................................................................... 1.50

21. Auctioneer's or Registrar's commission: For every sale by auction under execution or other process against any goods or estate.................................................................................... 5 percent

22. Executing transfer or conveyance ....................................................................................... 5.00

23.	(a) Filing any application for leave to appeal to Supreme Court................................... 4.00

(b) Sealing Order granting leave ................................................................................... 2.00

(c) Filing Order of Supreme Court ................................................................................ 3.00

(d) Filing application for dismissal of appeal for non-prosecution ............................... 2.00

(e) Sealing Order dismissing appeal for non-prosecution ............................................. 3.00

(f) Settling case on appeal ............................................................................................. 5.00

24.	(a) Filing notice of motion for probate or letters of administration pursuant to section 32 of the Magistrates' Courts Act 1969 .............................................................................. 3.00

(b) Sealing such probate or letters of administration - the same fees payable in the Supreme Court

25.	(a) On reference at the request of an elector or voter of a claim or objection under section 23, 26 or 27 of the Electoral Act 1963.......................................................................... 2.00

(b) Filing any application under section 81 of the Electoral Act 1963 ....................... 10.00

26. Appointment for taxation (on each bill of costs), or for examination of witnesses.................................................................................................................................... 2.00

27. Taxation on each bill of costs.............................................................................................. 2.00

28. Attendance before Registrar in inquiry or reference, or examination of witnesses by Registrar under order of Court-

For the first day or part thereof...................................................................................... 5.00

For each subsequent day or part thereof ……………………………………………… 2.50

29. Certificate or report of Registrar.......................................................................................... 5.00

30. Proceedings under the Samoa Maintenance and Affiliation Act 1967............................. No fee

31. Filing information................................................................................................................ 2.00

32. Hearing any information ..................................................................................................... 1.00

33. Conviction or Order when drawn up in proper form .......................................................... 1.00

34.	(a) Issue of every warrant of commitment for default in payment of fine .................... 1.50

(b) Execution of every such warrant ............................................................................. 0.50

35. Recognisance, with or without sureties ............................................................................. 1.00

36. For every enlargement or renewal of a recognisance ....................................................... 1.00

37. Application by a disqualified person for removal of disqualification under the Road Traffic Ordinance, to include all documents filed, hearing, and order (if any) ......................... 5.00

NOTE - The fees, under Items 31 and 32 are not to be taken in proceedings for offences punishable otherwise than by a fine in the first instance. Where an information is laid by a Constable, the fees shall not be pre-paid but the Court upon a conviction may order payment of same by the Defendant in addition to any other penalty. On a private prosecution the Court may order the payment by one party to the other of all fees of Court paid by him.

____________

SECOND SCHEDULE

SCALE OF SOLICITORS COSTS

Rule 31

A. In Actions for a Sum of Money only

	Amount not exceeding $20	Amount not exceeding $40	Amount not exceeding $100	Amount not exceeding $500	Amount exceeding $500	
	$	$	$	$	$	
1. Preparing statement of claim (or counterclaim), in action which can be brought as default action	0.50	1.00	2.00	3.00	4.00	
2. Preparing statement of claim (or counterclaim) in action which cannot be brought as default action...............................................	1.00	2.00	4.00	6.00	8.00	
3. Preparing statement of defence where statement ordered by the Court, or where costs allowed	1.00	2.00	4.00	6.00	8.00	
4. Entering judgment in default action or in ordinary action where no witness is called ..........	0.50	1.00	2.00	3.00	4.00	
5. Appearance in undefended case to obtain judgment where a witness is called ……..	2.00	3.00	4.00	2 ½ percent, with minimum of $4.00 
	
6. Appearance in Court to conduct defended action	4.00	6.00	8.00	5 percent, with minimum of $8.00	
7. Second and each subsequent day of hearing, if
certified for, not exceeding ….........	2.00	4.00	6.00	10.50	15.00	
				Minimum of $2.00; maximum of $10.50 where claim is $500 or less; maximum of 2 ½ percent of amount of claim where claim exceeds $500	
8. Preparing for trial and entering judgment (if entered) in case in which claim or defence is not proceeded with …………….	1.00
2.00	1.00
4.00	2.00
6.00		

B. In Proceedings where there is a Claim other than 
for a Sum of Money

9. Preparing statement of claim (or counterclaim) or originating application... Not exceeding 8.00

10. Preparing statement of defence where statement ordered by the Court, or where costs allowed……………………………………………………………………… Not exceeding 8.00

11. Appearance in an undefended action or an uncontested originating application .......2.00 to 15.00

12. Appearance at the hearing of a defended action or contested originating application….. 2.00 
to 50.00

13. Second and each subsequent day, if certified for. 2.00 to 15.00

C. In all Proceedings

14. Issuing garnishee proceedings ........................ 1.00

15. Appearance to obtain an order on garnishee proceedings, where sub-debtor does not dispute the debt:

Not exceeding $500 ........................................................................................... 1.00

Over $500 ........................................................................................................... 4.00

16. Appearance in any interlocutory proceedings (other than garnishee proceedings), including the taking of evidence, or inquiries before the Registrar: ................................................ 4.00

17. Appearance in new trials and rehearings, two-thirds of the rates in respect of the original proceedings.

18. The foregoing costs are to be calculated on the amount recovered for the plaintiff if he succeeds, and on the amount claimed in the action if the defendant succeeds. Where relief other than a sum of money is claimed, either alone or in addition to a sum of money, the Court on giving judgment shall fix under what head costs shall be allowed. If judgment is entered before trial, without application to the Court, the Registrar shall fix the head.

MALIETOA TANUMAFILI II.
Head of State.

-------------------------------------