District and Intermediate Courts (Civil Jurisdiction) Act

District, Industrial and Intermediate Courts Rules 1992

[P 27/1860 and 70/66 – 31 March 1860] [Section 21N]

1. These rules may be cited as the District, Industrial and Intermediate Courts Rules 1992.

1A.

 These rules shall regulate the practice and proceedings of District Courts in the exercise of their civil jurisdiction and, where appropriate, the practice of Industrial and Intermediate Courts in similar matters.

[R. 1 amended by Act 29 of 1992.]

SITTINGS OF COURT

2. –

3. The Magistrate of every District shall attend and hold the District Court every day except a public holiday. A public notice in writing of the day and hour on which the Court shall be held shall be put up previously in some conspicuous place in the Court House and in the Clerk's office. And where any day or hour so appointed for holding the Court shall be altered, notice of such alteration shall immediately be posted in like manner.

[R. 3 amended by Act 29 of 1992.]

4. A Magistrate may, from time to time, hold additional and adjourned Courts whether in term or vacation, as he may determine, and on such days and hours as may be appointed by public notice in writing posted up in the Court House and in the Clerk's office.

5. On the day before the holding of the District Court the Clerk shall affix a list of all cases set down for hearing in a conspicuous place in the Court House.

DUTIES OF CLERK

6. The office of the Clerk shall be kept open every day from 10 a.m. to 4 p.m., except on Christmas Day, and Sundays, or any other day ap­pointed by the President as a public holiday.

[R. 6 amended by Act 22 of 1968 and Act 48 of 1991.]

7. Where the Clerk is absent from the Court, the Magistrate may order any other Clerk to replace the Clerk, and to do in Court all such matters and things as are required to be done by the Clerk, and an entry of such appointment, and of the cause of such absence (if known) shall be made on the minutes of the Court.

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10. Where money is paid into or deposited in Court, before or after judgment, an ac­knowledgment in writing of such payment or deposit shall be given by the Clerk to the person making such payment or deposit.

11. The money to which suitors are entitled shall be paid out on demand by the Clerk, at any time when the Clerk's office is open, and an acknowledgment in writing of such payment shall be made by the Clerk in a book, called the Suitor's Cash Book, from the person receiving such money, and when at the end of 6 months, a suitor shall not have claimed money deposited by him, or accruing to him, the Clerk shall transmit the sum thus left in his hands to the Accountant-General, with a statement explaining to whom the money is due.

USHER'S DUTIES

12. (1) The usher of every District Court shall attend each sitting of the Court, unless authorised by the Magistrate to absent himself, and attend the office of the Clerk, for the purpose of receiving summonses, or for the performance of other duties, once at least every day.

(2) He shall compare and examine the copy of each summons or order, delivered to him by the Clerk, so as to enable him to prove its correctness.

13. The usher shall keep a book called the Book of Returns in Form 1 set out in the Schedule.

14. (1) The usher shall enter in a book called the Usher's Warrant Book, kept by the usher in Form 2 set out in the Schedule, every warrant which he has been required to execute, and shall state from time to time therein what he shall have done under each warrant, and if the same be not executed within a reasonable period, why it has not been executed.

(2) The book shall be from time to time inspected by the Magistrate; and the usher shall, at all reasonable times, give a suitor every information that he may reasonably require, as to the execution or non-execution of any warrant which has been issued at his instance.

15. (1) Where the usher receives from the Clerk of another district a summons or order to serve in his own district he shall enter such process in his Book of Returns in the same manner as if such process had issued from the Court of which he is the usher.

(2) The usher shall, 4 clear days before the return day of the summons or order, transmit the original thereof back to the Clerk of the home court, with his endorsement, if the summons or order has been served and, where the summons or order has not been served, return the same stating the particulars of non-service.

16. (1) Where a warrant is required to be executed in another district, and when, instead of being executed by the usher of the home district, it is directed for execution to the usher of the other district, such usher shall, after the warrant has been sealed or stamped by the Clerk of the other district of which he is the usher, enter the warrant in his Usher's Warrant Book.

(2) Where the warrant has not been executed within one month from the day of its delivery, the usher of the other district shall, after the termination of such month, make a return to the Clerk of the home district of what he shall have done under such warrant and state why it has not been executed.

(3) The usher shall return such warrant to the home Court at any time, although unexecuted, if he is so directed by the Clerk of the home Court, or give such information as such Clerk may require in the matter of the warrant.

17. Every usher levying or receiving any money by virtue of any process, whether such process have issued from the Court of which he is the usher, or from another Court, shall, within 3 days after the receipt thereof, pay the same into the hands of the Clerk of the Court of which he is the usher; and where such money shall have been recovered in execution of a warrant from another Court, notice thereof shall be given by the usher to the Clerk of such other Court.

PLAINT

18. (1) At the time of the entering of a plaint, the Clerk shall give to the plaintiff, or his attorney or agent, a note signed by him and under the seal of the Court in Form 3 set out in the Schedule.

(2) No money shall be paid out of the Court to the plaintiff, or his attorney or agent, except on production of the note, and where the note has been lost or destroyed, no money shall be paid to any person unless it be proved to the satisfaction of the Clerk that the person applying is the plaintiff, or his agent authorised in that behalf.

19. No judgment creditor shall obtain a summons on an unsatisfied judgment except on prepayment into Court of the prescribed fees for issuing the summons, for entering the order of the Court, for the usher's service of the summons, and for conveying the debtor to prison.

20. In every other case, no proceedings shall take place or process issued by the Clerk, except on prepayment into Court of the prescribed fees for every act or process required of the Clerk.

21. - 26. –

PARTICULARS

27. Where, at the hearing of a case, the defendant desires more information respecting the plaintiff's demand than is to be found in the plaint, or if a plaintiff requires the particulars of a defendant's defence, the Magistrate may, in his discretion, direct the furnishing of particulars in Form 6 set out in the Schedule, within the period which he may determine, and he may adjourn the case to such day as he thinks fit.

SUMMONS TO APPEAR

28. Every summons to appear to a plaint shall be dated on the day on which the plaint was entered, and the date shall be the commencement of the suit.

29. Where by leave of the Magistrate a summons is served on a defendant within less than 48 hours before trial, such leave of the Magistrate shall be mentioned on the face of the summons.

30. Where a summons is issued by leave of the Magistrate, the words "by leave of the Court" shall be written on the face of the summons.

31. Where a summons or order is forwarded for service by the Clerk to the usher of another district, it shall be delivered to such usher not less than 8 days before the return day.

SERVICE OF SUMMONS

32. Where a summons to appear to a plaint is to be served on a defendant in another district, such summons shall be served on such defendant not later than 4 days before the date of trial, except that such period may be shortened by leave of the Magistrate, on strong and reasonable ground shown, and such leave shall be mentioned on the face of the summons.

33. The service of the summons shall be personal, or by delivering the same to any inmate, aged not less than 16 years, of the house in which the defendant dwells, or by delivering the same at the place of business of the defendant, except in the cases hereafter stated.

34. –

35. Where a defendant is employed and dwells in any public hospital, it shall be sufficient service to deliver the summons to the Superintendent of such hospital.

36. Where a defendant is serving in the Police, it shall be sufficient service to deliver the summons to the Superintendent of Police on duty at the Police station of the district in which the defendant dwells, and is on service.

37. Where a defendant is living or serving on board of a ship or vessel, it shall be sufficient service to deliver the summons to the person on board who is, at the time of such service, in charge of such vessel.

38. Where a defendant keeps his house or place of business closed, in order to prevent an usher from serving the summons, it shall be sufficient service to affix such summons on the door of the house or place of business of the defendant.

39. Where the summons is not served personally, and the defendant does not appear on the day of trial, the cause may proceed if the Magistrate is satisfied, on the evidence on oath before him, that the service of the summons has come to the knowledge of the defendant before the return day, but no such evidence shall be necessary in case the service was made under rule 38.

INSPECTION OF DOCUMENTS

40. Where in any action, the plaintiff or the defendant wishes to inspect any document or instrument in which he has an interest, and to the production of which he is entitled for the purposes of the action, and which shall be in the possession, or power, or under the control of the opposite party, such plaintiff or defendant may, 2 clear days before the hearing, give notice, in Form 7 set out in the Schedule, by the usher of the Court to the opposite party that he or his attorney wishes to inspect any such document or instrument, describing the same, at the office of the Clerk of the District Court in which the plaint has been entered.

41. Where a party requires the inspection of a document, and he satisfies the Magistrate that he requires further time for such inspection, it shall be in the discretion of the Magistrate, on an application made to him, ex parte previous to the day of trial or by way of motion at the time of trial, to order that the trial of the case be postponed to another day, subject to the payment of such costs of postponement as the Magistrate thinks fit.

42. The order of postponement, if obtained ex parte, shall be served on the opposite party at the cost of the party applying for the postponement.

43. Where the other party neglects or refuses to allow the plaintiff or defendant, or his attorney, to inspect such document or instrument within 3 days after receiving such notice served on him, or if such other party has been accidentally prevented from allowing such inspection, the Magistrate, may at the hearing, adjourn the case and make such order as to costs as he thinks fit.

WITHDRAWAL BY PLAINTIFF

44. (1) Where the plaintiff does not wish to proceed with the case, he shall give notice thereof to the Clerk, and pay into the hands of the Clerk all the costs to which the defendant is entitled, and which the Clerk shall have duly taxed.

(2) After the receipt of such notice and costs, the Clerk shall forthwith give notice to the defendant, in Form 8 set out in the Schedule, of the withdrawal of the case by the plaintiff, and the defendant shall not be entitled to any other costs than those paid as aforesaid, unless the Magistrate otherwise orders, on the application of the defendant, with regard to the costs and satisfaction due to the defendant.

ADJOURNMENT OF CASE

45. Where by reason of the illness or unavoidable absence of the Magistrate, the Court cannot be held, the Clerk shall call into Court all the parties to the cases fixed for the day, and all witnesses summoned for such day, and, by notice in Form 10 set out in the Schedule, adjourn the Court to such other day as he may determine.

46. Every such adjournment shall be effectual, although the parties and witnesses, or some of them, have not appeared.

47. Where a case is adjourned, no order of adjournment shall be served on any party unless the Magistrate so directs.

AMENDMENT

48. (1) A Magistrate may at any time, amend any defect or error of substance or form in any proceedings in civil matters, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not.

(2) Every such amendment may be made with or without costs, as the Magistrate thinks fit, as well as such amendments as may be necessary for the purpose of determining, in the existing suit, the real question in controversy between the parties.

ABATEMENT

49. (1) The bankruptcy or insolvency of the plaintiff in an action before a District Court shall not cause the action to abate and the Magistrate shall, in such cases, adjourn the hearing of the case to such reasonable time as shall be necessary for the appointment of a trustee, and within which such trustee may obtain the necessary leave to maintain the action.

(2) Where the trustee elects to maintain such action, and has been duly authorised so to do, the Magistrate shall, after security for the costs of such action has been furnished by the trustee, substitute the name of the trustee for the name of the plaintiff in all the proceedings of the said action.

(3) In case the trustee does not elect, or has not been authorised, to continue the action, the defen­dant, after the expiry of the time granted by the Magistrate, may avail himself of the bankruptcy or insolvency as a defence to the action, unless the Magistrate thinks fit to order a further adjournment of the said action.

50. (1) The bankruptcy or insolvency of a defendant in any action in a District Court shall not cause the action to abate.

(2) In such a case the plaintiff shall have a right to relinquish his action by notice to the Clerk of the Court, and he shall not be liable to such bankrupt or insolvent, or to the trustee, for the costs of such action but the relinquishing by the plaintiff of his action shall not affect such action against any other person.

(3) Where a plaintiff, in the case of the bankruptcy or insolvency of a defendant, elects to proceed against him, the Magistrate shall adjourn the hearing of the action or suit to such a reasonable time as shall be necessary for the appointment of a trustee, and within which such trustee may obtain the necessary authorisation to defend the action and may move to appear in lieu of the bankrupt or insolvent.

(4) After the expiry of the time fixed by the Magistrate for hearing the action, the plaintiff shall be entitled to continue the suit, unless the Magistrate thinks proper to grant a further adjournment.

51. (1) Where one of several plaintiffs or defendants dies, or becomes incapable of being a party in a case, before or after judgment, the action or suit shall not abate, and any of the parties interested in such action or suit may, after notice to the representatives of such party, in Form 12 or 13 set out in the Schedule, proceed with the action.

(2) The representatives of such party shall have the same right, after notice to the other parties in the action, in Form 14 or 15 set out in the Schedule.

COSTS

52. All costs and charges incurred in any suit or action before a District Court shall be taxed by the Clerk in pursuance of such order as may have been made by the Magistrate, and according to the scale of costs specified in the Courts Act.

53. The taxation of the Clerk may be reviewed by the Magistrate on the application of one of the parties.

54. The Magistrate shall, in each case, direct what number of witnesses shall be allowed on taxation of costs, and the costs of those witnesses, whether they have been examined or not, may, in the discretion of the Magistrate, be allowed.

55. (1) Where a witness is summoned before a District Court on behalf of one of the parties to the action or suit before the Court, and appears pursuant to such summons, such witness shall be entitled to have his costs and allowances as prescribed, duly taxed by the Clerk, without having to wait for the termination of the said suit or action.

(2) The Magistrate may, after reviewing such taxation, deliver to such witness an order on the party who summoned him, ordering such party forthwith to pay to the witness his costs.

(3) No party shall be entitled to recover from the other party, on taxation of his costs, any costs for a witness, unless he can prove to the satisfaction of the Magistrate that he has duly paid his costs to that witness.

56. Money paid into Court on a judgment shall be appropriated first to pay the costs, which shall have priority over any claim.

57. Costs of any action or proceedings, not otherwise provided for in the District and Intermedi­ate Courts (Civil Jurisdiction) Act shall be paid by, and apportioned between, the parties in such manner as the Magistrate thinks fit.

[R. 57 amended by Act 7 of 1971.]

58. Execution may issue for the recovery of any costs ordered by the Magistrate to be paid in like manner as for any debt adjudged by the said Magistrate other than by imprisonment.

JUDGMENT

59. Every Magistrate shall have power after hearing both parties to alter, vary, or suspend his judgment or order during the sitting of the Court at which such judgment has been given.

60. Where a Magistrate, after giving an order or pronouncing a judgment in Court, sees good reason, during the same sitting of the Court, to alter, vary, or suspend such judgment or order, such last mentioned order or judgment in Form 16 set out in the Schedule shall be served upon any of the interested parties who may have been absent at the time.

60A. Notwithstanding rules 59 and 60, clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Court on motion.

[R. 60A amended by Act 29 of 1992.]

61. A Magistrate may order the specific delivery of a chattel claimed by the plaintiff, with or without damages, and his order shall be drawn up according to Form 21 set out in the Schedule for the purpose of execution.

NEW TRIAL

62. A Magistrate shall have power to grant a new trial of an action in every case where fraud, violence, or error has been committed, or where new evidence can be produced, which was not accessible to the party, or was not within his knowledge at the time of the first trial, whether judgment has been given in the presence or in the absence of the opposite party.

63. The Magistrate shall have power on such conditions as to security for the amount of the judgment or for damages and as to payment of costs as he thinks fit, to grant a new trial in any case where it shall be in his opinion necessary so to do for the ends of justice.

64. The application for the new trial of an action shall be made in the Form 17 set out in the Schedule to the Magistrate in Court or at Chambers, and shal

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