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Consolidated Acts of Samoa 2013 |
SAMOA
Arrangement of Provisions
PART I
PRELIMINARY
PART II
CONSTITUTION
Division 1 – District Courts
Division 2 – District Court Judges and Fa’amasino Fesoasoani
10A.Oath of Office
Division 3 – Registrars
Division 4 – Bailiffs and Others
PART III
JURISDICTION
Division 1 – General
Division 2 – Civil Jurisdiction of Magistrate
Division 3 – Civil Jurisdiction of Fa’amasino Fesoasoani
Division 4 – Criminal and Other Jurisdiction of District Court Judge
Division 5 – Criminal Jurisdiction of
Fa’amasino Fesoasoani
Fa’amasino Fesoasoani
PART IV
CIVIL PROCEDURE
Division 1 – Parties
Division 2 – Transfer of Proceedings
Division 3 – Interpleader
Division 4 – Hearing
Division 5 – Witnesses and Evidence
Division 6 – Reference to Arbitrator or Referee
Division 7 – Judgments and Orders
Division 8 – Removal of Judgments
Division 9 – Appeals
Division 10 – Rehearing and Power to Set Aside
Division 11 – Enforcement of Judgments Generally
Division 12 – Warrant of Distress
Division 13 – Sale of Goods Seized
Division 14 – Garnishee proceedings
Division 15 – Recovery of Land
Division 16 – Recovery of Chattels
Division 17 – Absconding Defendant
PART V
GENERAL
Division 1 – Trial
Division 2 – Protection of District Court Judge and Fa’amasino Fesoasoani
Division 3 – Officers of the Court
Division 4 – Contempt of Court
PART VI
ADMINISTRATION
Division 1 – Sittings
Division 2 – Financial Provisions
PART VII
MISCELLANEOUS
Schedules
1969 No. 2
AN ACT to consolidate, amend and extend the law providing for District Courts and for the exercise of civil and criminal jurisdiction by District Court Judges and Fa’amasino Fesoasoani in District Courts.
[Date of assent: 21 March 1969]
[Commencement date: 1 April 1969]
PART I
PRELIMINARY
1. Short title and commencement – (1) This Act may be cited as the District Courts Act 1969.
(2) This Act or any section thereof shall come into force on 1 April 1969.
2. Interpretation – (1) In this Act, unless the context otherwise 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 a person acting as bailiff under section 14 ;
“constable” includes every corporal and constable of the Police Service;
“Constitution” means the Constitution of the State;
“Court” or “District Court” means a District Court of Samoa constituted under this Act;
“defendant”, in civil proceedings, means a person against whom an action has been commenced or an application for relief has been made and includes a party served with notice of or entitled to attend the proceedings otherwise than as plaintiff; and in any other proceedings, means a person charged with an offence or against whom an application has been made for an order binding him or her 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 Samoa Gazette;
“infant” means a person under the age of 21 years;
“Judge” means a District Court Judge appointed under this Act;
“Judicial Service Commission” means the Judicial Service Commission constituted by Article 72 of the Constitution;
“matter”, in any civil proceedings, means a 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 a Registrar of that Court, or a clerk, bailiff, usher or messenger in the service of that Court;
“party”, in any civil proceedings, includes a 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 a person asking any relief (otherwise than by way of counterclaim as a defendant) against any other person by a form of civil proceedings;
“prescribed” means prescribed by this Act or by the rules 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 District Court Rules made under section 136;
“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 Samoa.
(2) A non-suit, determination, direction, decision, judgment or order is taken 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.
PART II
CONSTITUTION
Division 1 – District Courts
3. Courts constituted – (1) There shall continue to be within Samoa subordinate Courts of record, possessing civil and criminal jurisdiction, henceforth to be
called District Courts of Samoa.
(2) The Head of State, acting on the advice of Cabinet, may at any time by Order subdivide a District Court and create separate District
Courts.
(3) Each Court has a seal, which is kept by the Registrar.
4. Exercise of civil or criminal jurisdiction in Courts appointed – (1) The Minister may appoint places in 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 an appointment made under the provisions of subsection (1).
(3) Despite subsections (1) and (2), a District Court Judge may hold or direct the holding of a particular sitting of a Court at any
place the District Court Judge deems convenient.
Division 2 – District Court Judges and Faamasino Fesoasoani
5. Appointment and qualifications of District Court Judges – (1) For the purposes of this section, the Head of State, acting on the advice of the Judicial Service Commission, may by Order published
in the Gazette and the Savali designate as an approved country any country which, in the opinion of the Commission, has a legal system
similar to that existing in Samoa.
(2) The Head of State, acting on the advice of the Judicial Service Commission, may by warrant published in the Gazette and the Savali
appoint fit and proper persons to be District Court Judges to exercise criminal and civil jurisdiction within Samoa.
(3) A person shall not be appointed a District Court Judge unless he or she has been in practice as a barrister or solicitor in 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) Despite subsection (3), a person may be appointed a District Court Judge if he or she 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 District Court Judge 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.
6. Appointment of Fa’amasino Fesoasoani – The Head of State, acting on the advice of the Judicial Service Commission, may by warrant published in the Gazette and the Savali appoint fit and proper persons to be Fa’amasino Fesoasoani.
7. Salaries and allowances – A District Court Judge and Fa’amasino Fesoasoani (including any appointed temporarily under section 10 ) 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 appropriated by the Legislative Assembly for those purposes.
8. Tenure of office – (1) The Head of State, acting on the advice of the Judicial Service Commission, may by order published in the Gazette and the Savali
remove a District Court Judge or Fa’amasino Fesoasoani for inability or misbehaviour.
(2) A District Court Judge 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 District Court Judge or Fa’amasino Fesoasoani who has reached the age of 62 years.
(3) A person of any age who is not a citizen of Samoa and who is qualified for appointment under the provisions of this Act may be appointed
to hold the office of a District Court Judge for a term of years.
(4) Nothing done by a District Court Judge or a Fa’amasino Fesoasoani in the performance of his or her duties is taken to be invalid
by reason only that he or she has reached the age at which he or she is required by this section to retire or that his or her term
of office has expired.
(5) A District Court Judge or Fa’amasino Fesoasoani may resign his or her office by writing signed by him of her addressed to the
Secretary, which shall take effect:
(a) for a District Court Judge appointed under subsection (3), on the expiration of 3 months from the receipt of the resignation by the Secretary, or as agreed;
(b) in any other case, on the receipt of such resignation by the Secretary, or as agreed.
9. District Court Judges to be Coroners – A District Court Judge is, by virtue of his or her office, taken to have been appointed a Coroner.
10. Acting District Court Judges and Fa’amasino Fesoasoani – (1) The Head of State, acting on the advice of the Judicial Service Commission, may at an time, after the removal, retirement or resignation
or during the illness or absence of an District Court Judge or Fa’amasino Fesoasoani, or for any other temporary purpose, by
warrant published in the Gazette and the Savali appoint a District Court Judge 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 District Court Judge under this section unless:
(a) the person possesses the qualifications specified in section 5(3) for appointment as a District Court Judge under that section; or
(b) the person 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 District Court Judge under this section by reason only of the fact that he or
she has attained the age of 62 years.
10A. Oath of Office – (1) An oath in the form appearing in subsection (3) shall be taken by a District Court Judge and Fa’amasino Fesoasoani, or acting
District Court Judge or Fa’amasino Fesoasoani, as soon as may be after his or her acceptance of office, or as the case may
be after the commencement of this section and no District Court Judge and Fa’amasino Fesoasoani, or acting District Court Judge
or Fa’amasino Fesoasoani, shall enter on his or her office or as the case may be continue in his or her office until he or
she has taken the same.
(2) The oath to be taken under this section shall be administered by a District Court Judge, or if no District Court Judge is available
for that purpose, by a Judge of the Supreme Court.
(3) The oath referred to in subsection (1) shall be in the following form:
“I......... swear by Almighty God that I will well and truly serve the Independent State of Samoa in the office of ........................,
in accordance with the Constitution and the law; and I will do right to all manner of people, without fear or favour, affection or
ill will.”.
Division 3 – Registrars
11. Appointment of Registrar – (1) The Public Service Commission shall appoint a Registrar for each Court.
(2) The Registrar is 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 1 such Court may be the Supreme Court.
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) An 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.
13. Deputy Registrars – (1) The Public Service Commission may appoint 1 or more Deputy Registrars for a District 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 or she were the Registrar , whether those powers, privileges, duties,
provisions or penalties are conferred, imposed or enacted under this Act or any other Act, or otherwise.
Division 4 – Bailiffs and Others
14. Appointment of bailiffs – (1) The Public Service Commission may appoint a chief bailiff and may appoint such other bailiffs for each Court as may be necessary.
(2) A District Court Judge may appoint a constable or other person to act for a particular occasion as bailiff at a Court or place.
(3) Whenever a summons, warrant, or other process issued under the authority of this Act is received by a constable for service or execution,
the constable in the service or execution of the process is, for all the purposes of this Act, taken to be bailiff duly appointed
under the provisions of this section.
15. Powers and duties of bailiffs – A 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 or she is appointed for such time as is required, unless his or her presence is excused by the Court;
(c) serve all summonses and orders and execute all warrants issued out of a Court and coming to his or her hands for the purpose of service or execution;
(d) conform to all rules and regulations affecting the execution of his or her office, and in other respects be subject to the lawful directions of the District Court Judge or Fa’amasino Fesoasoani or Registrar.
16. Court administrative officers – The Public Service Commission shall 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.
PART III
JURISDICTION
Division 1 – General
17. Jurisdiction of District Court – A District Court Judge and a Court presided over by a District Court Judge have the jurisdiction prescribed in this Act.
18. Jurisdiction of Fa’amasino Fesoasoani – A Fa’amasino Fesoasoani and a Court presided over by a Fa’amasino Fesoasoani have the jurisdiction prescribed in this
Act:
PROVIDED THAT the jurisdiction conferred under this section is to be exercised by the Fa’amasino Fesoasoani under such written instructions
as may be given by the Chief Justice through the Registrar of the Supreme Court or as to a point not covered thereby by a District
Court Judge through the Registrar of the District Court:
AND PROVIDED FURTHER THAT the Chief Justice may by certificate, published in the Gazette and in the Savali, confer extended jurisdiction on a Fa’amasino
Fesoasoani.
19. Persons who may exercise jurisdiction of Court – Any jurisdiction and powers conferred on District Courts by this or any other Act may be exercised by a District Court Judge or, to the extent authorised by this or any other Act or by the rules, by any Fa’amasino Fesoasoani or the Registrar or a person authorised to discharge the functions of the Registrar.
20. General ancillary jurisdiction – A District Court, as regards any cause of action within its jurisdiction, shall (subject to the provisions of section 56 ) 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 a 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.
21. Ancillary powers of District Court Judges and Fa’amasino Fesoasoani – A District Court Judge or a Fa’amasino Fesoasoani may, in any proceedings pending within his or her jurisdiction, make any order or exercise any authority or jurisdiction which, if it relates to an action or proceeding pending in the Supreme Court, might be made or exercised by a Judge of the Supreme Court in Chambers.
22. Application of this Act – Where under any other Act, a power, authority or jurisdiction is given to a District Court Judge or Fa’amasino Fesoasoani;
(a) the proceedings shall be heard and determined in a District Court in accordance with this Act and the rules, unless some other procedure is specially provided or required; and
(b) a District Court Judge or Fa’amasino Fesoasoani in the exercise of that power, authority or jurisdiction has all the powers
given under this Act to District Court Judges 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 derogates from or affects
the provisions of any other Act conferring any power, authority or jurisdiction on District Court Judges or Fa’amasino Fesoasoani
or on District Courts.
Division 2 – Civil Jurisdiction of District Court Judge
23. General jurisdiction in actions on contract and tort – A Court presided over by a District Court Judge has 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 $10,000; and
(b) where the debt or demand claimed consists of a balance not exceeding $10,000, 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 or her claim or demand.
24. Money recoverable by statute – A Court presided over by a District Court Judge has jurisdiction to hear and determine any action for the recovery of an penalty, expenses, contribution or other like demand which is recoverable by virtue of any enactment in force, if:
(a) it is not expressly provided by that or any other enactment that the demand is recoverable only in some other Court; and
(b) the amount claimed in the action does not exceed the sum of $10,000.
25. Jurisdiction in actions for recovery of freehold land - A Court presided over by a District Court Judge has 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 $100,000 or the annual rental does not exceed $10,000.
26. No jurisdiction in relation to customary land – The Court does not have jurisdiction to hear or determine any action which in any way affects or is in relation to customary land.
27. Jurisdiction to divide chattels – Where any chattels not exceeding $10,000 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 District Court Judge 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 has jurisdiction to hear and determine the application and to make such order and give such consequential directions as it thinks fit.
28. Equity jurisdiction – (1) A Court presided over by a District Court Judge has 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 $10,000;
(b) proceedings for the specific performance, or for the rectification, delivery up, or cancellation of any agreement for the sale, purchase or lease of a 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 $10,000;
(c) proceedings for the dissolution or winding up of a 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 $10,000;
(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 $10,000;
(e) proceedings for the recovery of a specific or pecuniary legacy or share of residue presently payable not exceeding in value or
amount the sum of $10,000.
(2) No proceeding for the dissolution or winding up of a partnership or order thereon prevents a creditor from petitioning for an adjudication
of bankruptcy against the partnership firm or a member or members thereof.
29. Abandonment of part of claim to give Court jurisdiction – (1) Where a plaintiff has a cause of action for more than $10,000 in respect of which a Court would have had jurisdiction had the amount
been not more than $10,000, the plaintiff may abandon the excess and thereupon the Court has jurisdiction to hear and determine the
action.
(2) Where any action, in which the plaintiff has abandoned part of his or her claim under this section, is heard in the Court, the plaintiff
shall not recover an amount exceeding $10,000 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.
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 District Court Judge would have had jurisdiction under sections 23 to 28 or section 54 and the parties, by memorandum signed by them or by their respective solicitors or agents, agree that a Court presided over by a District Court Judge has jurisdiction to hear and determine the proceedings, that Court shall, despite anything in this or any other enactment, have jurisdiction to hear and determine the proceedings.
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.
32. Administration in simple form – During the absence or inability of a Judge of the Supreme Court to act, from any cause whatever, a District Court Judge has the jurisdiction and powers of a Judge of the Supreme Court to grant administration in simple form of the estate of a deceased person leaving estate in Samoa.
Division 3 – Civil Jurisdiction of Fa’amasino Fesoasoani
33. Civil jurisdiction – A Court presided over by a Fa’amasino Fesoasoani has 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 $1,000;
(b) to hear and determine any action for the recovery of a penalty, expense, contribution or other like demand which is recoverable by virtue of any enactment in force in Samoa, if:
(i) it is expressly provided by that or any other enactment that the action may be heard and determined by a District Court Judge; and
(ii) the amount claimed in the action does not exceed the sum of $1,000:
PROVIDED THAT for the purposes of paragraph (b),“penalty” does not include a fine to which a person is liable on conviction.
34. Extended jurisdiction – A Fa’amasino Fesoasoani who is granted extended jurisdiction in accordance with section 18 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 $2,000 is prescribed;
(b) to make orders on judgment summonses in cases where the original judgment was for a sum of $200 or less.
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, or where, but for the amount or value of the subject-matter claimed or in issue, a Fa’amasino Fesoasoani would have had jurisdiction under those sections, sections 29, 30 and 31 apply with the necessary modifications.
Division 4 – Criminal and Other Jurisdiction of District Court Judge
36. General criminal jurisdiction – A Court presided over by a District Court Judge has 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.
37. Jurisdiction in proceedings under the Customs Act 1977 – A Court presided over by a District Court Judge has jurisdiction to hear and determine any proceedings commenced under the Customs
Act 1977:
PROVIDED THAT the amount claimed or the value of the goods does not exceed $10,000 and that in any criminal proceedings the maximum penalty does
not exceed 3 years imprisonment.
Division 5 – Criminal Jurisdiction of Fa’amasino Fesoasoani
38. Criminal Jurisdiction of all Fa’amasino Fesoasoani – A Fa’amasino Fesoasoani has the power to exercise the jurisdiction conferred on District Court or any District Court
Judge thereof in relation to any of the matters set out in section 39:
PROVIDED THAT the jurisdiction conferred by this section does not extend to authority to impose a fine exceeding 10 penalty units or to impose
a sentence of imprisonment in lieu of or in addition to a fine.
39. Matters covered by that criminal jurisdiction – Subject to section 38, a 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 1 year’s imprisonment or a fine of 10 penalty units or both;
(b) the crime of theft, provided the value of the property stolen does not exceed the sum of $1,000.
40. Extended jurisdiction – A Fa’amasino Fesoasoani who has been granted extended jurisdiction in accordance with section 18 has, in addition to the jurisdiction hereinbefore conferred, the following powers:
(a) to impose terms of imprisonment not exceeding 6 months on any one charge in addition to or in lieu of a 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 10 penalty units.
PART IV
CIVIL PROCEDURE
Division 1 – Parties
41. Trustees, executors and administrators – A trustee, executor or administrator may sue and be sued in the Court in like manner as if he or she were a party in his or her own right, without joining any of the beneficiaries of his or her trust or estate, and shall be considered as representing such beneficiaries in the action.
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 a 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.
43. Infants – (1) An infant may sue in a District Court for money which may be due to him or her for wages or piecework, or for work as a servant,
in the same manner as if he or her 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 or she 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 subsections (1) and (2), an infant may sue by his or her next friend and may defend by his or her guardian ad litem in
accordance with the rules.
44. Mentally defective persons – (1) In this section and the rules, “mentally defective person” has the same meaning 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 or her estate under
the Mental Health Ordinance 1961.
(3) A mentally defective person in respect of whom there is no such committee or other person authorised as aforesaid may sue by his
or her next friend and defend by his or her 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 is sufficient to serve any
of those persons with the proceedings, and judgment may be obtained and execution issued against a person so served, despite 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 a person as aforesaid and is satisfied either in part or for the whole amount by that person,
he or she is entitled to recover in a District Court contribution from any other person jointly liable with him or her.
46. Proceedings against absent defendant – The Court shall not determine any civil proceedings against a defendant absent from 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 Samoa authorised to sue and be sued on his or her behalf and service has been effected on the agent in accordance with the rules.
47. Bankruptcy of plaintiff – (1) The bankruptcy of the plaintiff in any action in a District 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
or herself of the bankruptcy as a defence to the action.
Division 2 – Transfer of Proceedings
48. Transfer to Supreme Court of proceedings within jurisdiction – (1) Where there is commenced in a District Court any action in which the amount of the claim or the value of the property or relief claimed
or in issue exceeds $5,000, 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 District Court Judge, give notice that he or she objects to the action being tried in the District Court, and, where
notice is so given, the District Court Judge shall order that the action be transferred to the Supreme Court.
(2) Where there is commenced in a District 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 $5,000, the defendant may, as of right within such time as may be prescribed or at any time thereafter
by leave of the District Court Judge, give notice that he or she objects to the action being tried in the District Court, and, where
notice is so given, the District Court Judge may order that the action be transferred to the Supreme Court if, in the District Court
Judges 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 under subsection (2) may be made subject to such conditions as
the District Court Judge thinks fit requiring that the defendant give security for the costs of the proceedings in the Supreme Court.
(4) Subsections (1) to (3) applies, with the necessary modifications, 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) Despite subsections (1) to (4), the Supreme Court or a Judge thereof on the application of a party to the proceedings may order the
removal into the Supreme Court, by writ of certiorari or otherwise, of any proceedings commenced in a District 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.
49. Transfer of proceedings beyond jurisdiction – Where any civil proceedings are commenced in a District Court in which the Court has no jurisdiction the Court may, unless it is
given jurisdiction by abandonment or agreement under sections 29, 30 or 35, order that the proceedings be transferred to the Supreme
Court or to such other Court or such District Court Judge as appears to the District 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.
50. Transfer of proceedings where there is a counterclaim – (1) Where, in any action commenced in a District Court, a counterclaim or set-off and counterclaim which involves matter beyond the jurisdiction
of a District Court has been filed by a defendant, a 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 he or she 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 District 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 District Court:
PROVIDED THAT, where an order is made under paragraph (c), 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 District Court, the District Court has jurisdiction to hear and determine
the whole proceedings, despite 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 District Court a copy of the order so made.
51. Transfer of proceedings from Supreme Court to District Court – If, where civil proceedings have been commenced in the Supreme Court:
(a) an agreement is made under section 35 that a District Court has jurisdiction; or
(b) the subject-matter of the proceedings is within the jurisdiction of District Courts, the Supreme Court or a Judge of that Court may, on the application of a party to the proceedings, order that the proceedings be transferred to a District Court.
52. Procedure and effect of transfer of proceedings from Supreme Court to District Court – (1) Where any proceedings are ordered to be transferred under section 51 from the Supreme Court to a District Court the proper officer
of the Supreme Court shall, on the sealing of the order, send to the Registrar of the District 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 District Court, and, subject to the District
Court rules, all further proceedings therein shall be heard as if the proceedings had been originally commenced in that District
Court, and that District Court has jurisdiction to deal therewith, despite any enactment to the contrary:
PROVIDED THAT the transfer does 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.
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 District Court; or
(b) from a District Court to the Supreme Court; or
(c) from one District Court to another District 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 has 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 District Court as shall have taken place
in the Supreme Court before the transfer;
(d) the costs thereof are to 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 are, subject to any order of the Supreme Court or of the Judge by whom the transfer was ordered, exercisable by the District Court Judge.
Division 3 – Interpleader
54. Interpleader – Where a person is under a liability for a debt or other cause of action, money, or chattels for or in respect of which he or she is or expects to be sued by 2 or more persons making adverse claims thereto, he or she may, if the subject-matter does not exceed in value the sum of $10,000, apply to a Court presided over by a District Court Judge in manner prescribed for relief by way of interpleader in accordance with the rules.
Division 4 – 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 Samoa or by a person entitled by law to practice as a barrister or solicitor in Samoa and not
otherwise:
PROVIDED THAT under special circumstances the Court may permit a party to appear by an agent authorised in writing by the party himself or herself,
if in Samoa, or, if absent therefrom, by a 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 or she 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.
56. Equity and good conscience – In any civil proceedings in a Court presided over by a District Court Judge, where the amount claimed or the value of the property claimed or in issue does not exceed $1,000, 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 $1,000, the Court may receive such evidence as it thinks fit, whether the same be legal evidence or not, and may give such judgment between the parties as it finds to stand with equity and good conscience.
Division 5 – 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 or her attendance is no longer required, be entitled as against the party calling him or her
to a sum for his or her expenses and loss of time according to the prescribed scale:
PROVIDED THAT the Court may disallow the whole or any part of such sum.
58. Penalty for failing to comply with witness summons – (1) A person summonsed in pursuance of the rules as a witness in a Court in a civil proceedings who:
(a) refuses or neglects, without sufficient cause, to appear or to produce a 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 10 penalty units:
PROVIDED THAT a person so summonsed who refuses or neglects to appear is deemed to have done so with sufficient cause if he or she establishes
to the satisfaction of the Court:
(a) that there was not paid or tendered to him or her 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 or her expenses as may be prescribed; and either
(b) that the person was without the means to meet the cost of travel to the hearing; or
(c) that the person had reasonable grounds for believing that, if he or she incurred the cost, he or she would not recover it on the
day of the hearing from the party summoning him or her.
(2) A person present in Court who is called upon to give evidence but refuses to be sworn or give evidence, whether or not he or she
has been summoned or paid or tendered expenses, commits an offence and is liable to a fine not exceeding 10 penalty units.
(3) The payment of such fine or the undergoing of a term of imprisonment for non-payment of such fine shall not exempt a person from
any action for disobeying a summons or refusing to be sworn or give evidence.
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 a District Court Judge or Fa’amasino Fesoasoani
or before a 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 Samoa before any person authorised in
the rules.
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 an place either in or out of 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.
Division 6 – Reference to Arbitrator or Referee
61. Power to refer to arbitration – (1) In any civil proceedings, a District Court Judge 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 or she thinks just and reasonable.
(2) No such reference is revocable by a party except with the consent of a District Court Judge.
(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 District Court Judge:
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.
62. Power to refer to the Registrar or a referee for inquiry – (1) In any civil proceedings, a District Court Judge 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 District Court Judge or Fa’amasino Fesoasoani, conveniently be made before him or her;
(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 questions are referred as aforesaid a District Court Judge or Fa’amasino Fesoasoani may direct how
the reference shall be conducted, and may remit a report for further inquiry and report, and on consideration of a report or further
report, may give such judgment or make such order in the proceedings as may be just.
63. Power to refer mere matter of account to the Registrar for inquiry – A District Court Judge or Fa’amasino Fesoasoani may, after deciding or reserving any question of liability, refer to the Registrar, or to the Registrar and an accountant, a 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.
Division 7 – Judgments and Orders
64. Finality of judgments and orders – A judgment or order of a District Court is, except as provided by this or any other Act or by the rules, final and conclusive between the parties.
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 under section 11 of the Judgment Summonses Act 1965.
(2) Except where an express order for payment is made under subsection (1), a judgment or order for the payment of a sum of money is
deemed to include an order for the payment forthwith of the whole amount payable thereunder.
Division 8 – Removal of Judgments
66. Removal of judgment of District 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 District 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 a person on his or her behalf, shall issue a certificate thereof in the prescribed form. The 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) The certificate shall not 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 District 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 under subsection (4), no further proceedings shall be had or taken on the
judgment or order in the District 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) Despite anything in this section, a 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 the Judge deems just.
67. Action in Supreme Court on judgment or order of District Court – An action may be brought in the Supreme Court on a judgment or order of a District 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 District Court against the person or property of the defendant.
68. Removal of judgment or order of Supreme Court into District 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) 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 District Court having jurisdiction to the amount of that sum of money and of any interest thereon; and
(b) upon the filing of the certificate all proceedings may be taken and enforced in and by that District Court for the amount recoverable under the judgment, order or decree; and
(c) 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 District 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.
69. Removal of judgment from one District 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 District Court,
the judgment or order may be removed into any other District Court, and for that purpose the Registrar, upon the application of the
judgment creditor or of any person on his or her behalf, shall issue a certificate thereof in the prescribed form. The 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) The certificate shall not 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 District Court by delivering it at the office of the Registrar;
and thereupon all proceedings may be taken and enforced in and by that other District 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 District Court signed and entered up at the time of
filing the certificate, and no further proceedings shall be had or taken in the District Court from which the judgment or order has
been removed as aforesaid.
Division 9 – Appeals
70. Right to appeal – A party to a civil proceedings in a District Court may appeal as hereinafter provided to the Supreme Court against a non-suit or final determination or direction of the District Court:
(a) without the leave of the District Court where the amount of the claim or the value of the property or relief claimed or in issue exceeds $1,000 or where the title to a freehold land has come in question; and
(b) with the leave of the District Court where the amount of the claim or the value of the property or relief claimed or in issue
does not exceed $1,000:
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.
71. Notice of appeal – (1) An appeal to the Supreme Court is to 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) A 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.
72. Time for appeal – Security for appeal – (1) 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 $200 as may be estimated by that Court or a District Court Judge 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) 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 is taken to be abandoned.
(4) As soon as security is given under subsection (2), 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 District Court Judge, of the District Court Judge’s Note made under section 108; and
(c) any affidavits and exhibits in his or her custody.
73. Cross-appeals – (1) It is not 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, the respondent shall give notice of his or her 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.
74. Procedure where appeal not prosecuted – (1) If the appellant does not prosecute his or her 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 or her appeal the Supreme Court may dismiss the appellants
notice of 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.
75. Procedure on hearing of appeal – (1) All appeals shall be by way of rehearing.
(2) Where a question of fact is involved in any appeal the evidence taken in the District Court bearing on the question shall, subject
to a 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 District Court Judge’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 has all the powers and duties as to amendment and otherwise of the District Court, and has 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.
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 District Court upon such terms as it thinks fit; or
(b) order judgment to be entered in the District 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 under subsection (1) may be exercised by the Supreme Court despite 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 parties may not have appealed from or complained of the determination or direction.
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 District
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 under section 72.
78. Stay of proceedings on appeal – Notice of motion of appeal does not operate as a stay of proceedings under the judgment or order appealed from unless:
(a) a District Court Judge 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.
Division 10 – Rehearing and Power to Set Aside
79. Rehearing – (1) A party to any civil proceedings in which a District Court Judge, 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 District Court Judge, 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 District Court Judge, 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 District Court Judge 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 may
be the person before whom the proceedings were originally heard.
80. District Court Judge may set aside proceedings of Fa’amasino Fesoasoani – (1) On the application of a party, or of his or her own motion, a District Court Judge may order any civil proceedings (whether completed
or not) before a Fa’amasino Fesoasoani to be set aside, and, unless ordered by the District Court Judge 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 District Court Judge as if no steps, except those saved under subsection (1), had
been taken in the proceedings.
81. District Court Judge 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 District Court Judge who may give such judgment or make such order in substitution
therefore as the District Court Judge 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.
Division 11 – Enforcement of Judgments Generally
82. Proceedings for enforcement of judgment – (1) Any judgment or order of a Court or of a District Court Judge or Fa’amasino Fesoasoani for the payment of a sum of money may be enforced in any Court by any one or more of 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 a judgment or order of a Court or of a District Court Judge 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 a 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 District Court Judge 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 District Court Judge, either under a warrant
for the recovery of the chattels or by a warrant of commitment to prison signed by a District Court Judge for a term not exceeding
3 months.
(5) Except by leave of a District Court Judge, no proceedings for the enforcement of a judgment or order shall be commenced in a 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 District Court Judge 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 District Court Judge that any person committed to prison under this section ought
for a reason to be discharged, the District Court Judge may order that person’s discharge upon such terms (including liability
to re-arrest if the terms are not complied with) as the District Court Judge thinks fit.
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 therefor 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 parte application.
84. Enforcement of order for payment by instalments – (1) Where the Court has made an order for the payment of a 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.
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.
86. Power to stay proceedings for enforcement – If at any time it appears to the satisfaction of a District Court Judge 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 a party to the proceedings is unable from any cause to pay any sum recoverable against him or her (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 District Court Judge or Fa’amasino Fesoasoani may, in the District Court Judge’s discretion, vary the judgment or order to provide for payment by instalments under section 12 of the Judgment Summonses Act 1965, or suspend or stay the proceedings for such time and on such terms as the District Court Judge may think fit, and so until it appears that the cause of inability has ceased.
Division 12 – 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 $1,000 in value; and
(b) any money, bank notes, bills of exchange, promissory notes, bonds, or other securities for money belonging to that person.
(2) In this section and in the rules, “bailiff”, in any case where a warrant of distress is addressed to a constable, includes
the constable.
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.
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 a 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.
90. Penalty for rescue of goods seized – If a person rescues or attempts to rescue any goods seized in execution under a warrant of distress, that person commits an offence and is liable to a fine not exceeding 5 penalty units, and a bailiff of the Court or constable may take the person into custody with or without a warrant, and bring the person before the Court.
Division 13 – Sale of Goods Seized
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.
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) A 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, despite any other enactment or rule of law.
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 a 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 is entitled to recover against the bailiff, or any one lawfully acting under his or her authority, for a 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 not the property
of the execution debtor.
(2) Nothing in this section affects the right of any claimant, who may prove that at the time of sale he or she had a title to any goods
so seized, to any remedy to which he or she may be entitled against a person other than the bailiff and any one lawfully acting under
his or her authority.
(3) The provisions of this section have effect subject to sections 80 and 81 of the Bankruptcy Act 1908 (N.Z.) and sections 314 and 315
of the Companies Act 1955 (N.Z.).
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 District Court Judge 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 the District Court Judge thinks fit, and may direct the application of the proceeds of the sale in such manner and upon such terms as the District Courts Judge deems just.
95. Priority of Supreme Court and District 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 or her, 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 District 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 a Supreme Court officer or bailiff acting thereon.
96. Sale of goods where claim made thereto – (1) 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 District Court by a 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 District Court Judge 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 District Court Judge upon the claim.
(3) If the claimant does not exercise any of the options conferred on him or her by subsection (1), 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 District Court
Judge.
(4) If the claimant does exercise one of such options, the bailiff shall not sell the goods without the prior written authority of a
District Court Judge.
97. Bailiff’s 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 District
Court, or in respect of the proceeds or value thereof, the bailiff may, before or after the return of the warrant, and whether an
action has been commenced against him or her 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 District 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 District Court Judge shall adjudicate upon the claim, and shall also adjudicate between the
parties or either of them and the bailiff upon a 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 the Judge thinks fit.
Division 14 – Garnishee Proceedings
98. Garnishee proceedings – A person who has obtained a judgment or order for the payment of money may take proceedings under the rules to obtain payment to him or her of the amount of a debt owing or accruing to the judgment debtor from any other person or so much thereof as may be sufficient to satisfy the judgment or order and the costs of the garnishee proceedings.
Division 15 – Recovery of Land
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 or her in entering, by force if necessary, upon the
land, with such assistants as he or she deems necessary, and in giving possession accordingly; but no entry under 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 or her 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.
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 or she nor his or her agent, nor any other person acting on his or her behalf, is taken 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 or she 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.
101. Person illegally obtaining warrant liable for trespass – (1) If a 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 or her against the tenant or
occupier of the land, although no entry is made by virtue of the warrant.
(2) Nothing herein contained is deemed to protect any person on whose application and to whom any such warrant as aforesaid is granted
from any action against that person 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 a person may be entitled as outgoing tenant by the customs of the country or otherwise.
(3) No action or prosecution shall be brought against a District Court Judge who has made any order for the issue of, or a Registrar who
has issued, any warrant for the recovery of any land, or against a 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.
DIVISION 16 – 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 or her, and to deliver them to the person named in the warrant.
103. Further proceedings if chattels not recovered – If possession of the chattels is not recovered under the warrant referred to in section 102, the person entitled to the recovery of the chattels may:
(a) apply to a District Court Judge for a warrant of commitment, which shall direct the commitment to prison of the judgment debtor for such term as the District Court Judge 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 District Court Judge may direct.
Division 17 – Absconding Defendant
104. Absconding defendant may be arrested – (1) Where it appears to the satisfaction of a District Court Judge by affidavit of the plaintiff or the plaintiff’s authorised
agent that the plaintiff has a good cause of action against a defendant for a sum within the jurisdiction of a District 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 Samoa and to evade
the payment of the said sum, the District Court Judge may issue a warrant of arrest under the District Court Judge’s hand,
returnable immediately:
PROVIDED THAT if the claim is for a debt or amount long overdue the District Court Judge, may, before issuing the warrant, require the person asking
for the issue thereof to lodge in the Court any amount not exceeding $500, or to give security therefor to the satisfaction of the
District Court Judge, to abide the decision of the Court under section 105..
(2) A defendant against whom a warrant has issued for any sum may either give to the Registrar security for the payment of the sum and
the costs shown on the warrant or deposit the sum and the costs with the officer executing the warrant, or with the Registrar; whereupon
the 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 sum and costs being deposited with the officer executing the warrant or the Registrar
as aforesaid, the District Court Judge may order the defendant to be detained in prison, or lock-up, and to be brought from there
to a District Court at a time to be stated in the order, being not more than 7 clear days from the date of the order, unless the
defendant sooner gives the prescribed security or makes the deposit.
(4) A District Court Judge 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 deposit has been made the defendant leaves Samoa without the leave of the
Court, all money so deposited or recovered under 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 District Court Judge from the place where the Court is situated at which the application for the warrant was
filed, all the powers conferred upon a District Court Judge by subsections (1) and (3) may be exercised by a Fa’amasino Fesoasoani
or by a Registrar.
(As to recovery of tax if defendant is absent, see section 86 of the Income Tax Administration Act 1975.)
105. Successful plaintiff entitled to execution, successful defendant entitled to compensation – Where a District Court Judge hears and finally adjudicates upon the claim of a plaintiff against a defendant who has been arrested under the power contained in section 104 the following provisions apply:
(a) if judgment is given for the plaintiff, the District Court Judge 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 District Court Judge may, in the Judges discretion, award to the defendant by way of compensation any sum not exceeding $500, and such award is taken 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.
PART V
GENERAL
Division 1 – Trial
106. Trial by District Court Judge or Fa’amasino Fesoasoani – The District Court Judge or Fa’amasino Fesoasoani, as the case may be, shall be the sole judge in all proceedings brought in
a Court before the Judge and shall determine all questions of fact as well as of law:
PROVIDED THAT nothing in this section affects the power to make rules authorising the Registrar to exercise jurisdiction and powers conferred on
the Court by this or any other Act.
107. Fa’amasino Fesoasoani may sit with the District Court Judge – Without limiting section 106, a District Court Judge may have one or more Fa’amasino Fesoasoani sitting with him or her in a proceeding for the sole purposes of giving such advice as may be sought by the District Court Judge on a matter of, or involving, Samoan custom, or penalty, and in order to obtain such advice the District Court Judge may confer with any Fa’amasino Fesoasoani who is sitting with him or her at any time either in open Court or in private.
108. District Court Judge 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 District Court Judge 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 the District Court Judges decision thereon and of the Judges determination of the proceedings.
(2) Where such a note has been taken, the District Court Judge 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 or her to be furnished with a copy of the note.
Division 2 – Protection of District Court Judge and Fa’amasino Fesoasoani
109. No action against District Court Judge or Fa’amasino Fesoasoani unless act in excess of or without jurisdiction – (1) No action shall be brought against any District Court Judge or Fa’amasino Fesoasoani for any judicial act done by the District
Court Judge or Fa’amasino Fesoasoani, unless he or she has exceeded his or her jurisdiction or has acted without jurisdiction.
(2) Where a conviction or judgment or order is entered or made by a District Court Judge 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 District Court Judge or Fa’amasino Fesoasoani, no action shall be brought against the District Court Judge 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 District Court Judge or Fa’amasino Fesoasoani who entered or made it.
110. No action against District Court Judge or Fa’amasino Fesoasoani to be brought in District Court – No action against a District Court Judge or Fa’amasino Fesoasoani by any person claiming to have been injured by an act done by the District Court Judge or Fa’amasino Fesoasoani in excess of jurisdiction or without jurisdiction shall be brought in a District Court.
111. Onus of proof – In an action brought against a District Court Judge or Fa’amasino Fesoasoani by a person claiming to have been injured by an act done by the District Court 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.
112. Plaintiff may be ordered to give security for costs – (1) In an action brought against a District Court Judge or Fa’amasino Fesoasoani by a person claiming to have been injured by an
act done by the District Court Judge or Fa’amasino Fesoasoani in excess of jurisdiction or without jurisdiction, the Supreme
Court or any Judge of that Court, upon application by the District Court Judge 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 $500.
(2) If security is ordered to be given, the Court or Judge may direct that in the meantime all proceedings shall be stayed.
113. Indemnity to District Court Judge or Fa’amasino Fesoasoani – (1) A District Court Judge 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 District Court Judge 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 or her of a certificate signed
by a Judge of the Supreme Court stating that in the Judge of the Supreme Court’s opinion the District Court Judge or Fa’amasino
Fesoasoani acted in good faith under the belief that the District Court Judge had in fact jurisdiction, and further that in the opinion
of the Judge in all the circumstances the District Court Judge ought fairly and reasonably to be excused.
(2) Where a claim against a District Court Judge or Fa’amasino Fesoasoani is settled by the payment by the District Court Judge
of, or an agreement by the District Court Judge to pay, an agreed amount for damages or costs before action is commenced against
the District Court Judge or before or during trial of the action, the District Court Judge shall be indemnified by the State to the
full amount paid or agreed to be paid by the District Court Judge, 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 the District Court Judge is not so satisfied, the Judge may issue the certificate in respect of such less sum as in the Judges
opinion would have been or would be adequate to settle the plaintiff’s claim, and in that case the District Court Judge 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 District Court Judge or Fa’amasino Fesoasoani at any time to a Judge
in Chambers, and the Judge has the power to grant the certificate after considering such evidence as may be given before the Judge
either orally or in the form of affidavits.
(4) A copy of the application shall be served by the District Court Judge or Fa’amasino Fesoasoani on the Attorney-General, who
is entitled to appear and oppose it.
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 a District 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.
Division 3 – 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 a process of a Court or in executing a warrant or a judgment or order of a Court or District Court
Judge or Fa’amasino Fesoasoani or Registrar or acting otherwise in the execution of his or her duty, that person commits an
offence and is liable on an order made by a District Court Judge or Fa’amasino Fesoasoani in that behalf to a fine not exceeding
5 penalty units, and any bailiff or constable may take him or her into custody, with or without warrant, and bring him or her before
a District Court Judge or Fa’amasino Fesoasoani:
PROVIDED THAT nothing in this section is deemed to prevent proceedings in respect of that assault being taken against that person under some other
enactment instead of under this section.
116. Misconduct of officers – (1) If an 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 or her under the authority of this Act, a District
Court Judge may inquire into the matter in a summary way.
(2) For the purpose of any such enquiry, the District Court Judge 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 District Court Judge may make such order as the District Court Judge 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 the District Court Judge
thinks fit, may impose such fine upon the officer, not exceeding 10 penalty units for each offence, as appears to the District Court
Judge to be adequate.
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) A person who contravenes subsection (1) is liable to a fine not exceeding 10 penalty units.
118. Neglect by bailiffs – (1) Where a bailiff of any Court, or any person acting under his or her 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 District Court Judge of that Court.
(2) On any such complaint the District Court Judge, if the neglect, connivance or omission is proved to the District Court Judges 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.
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, is taken as 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 or her by reason of the irregularity or informality against the person guilty thereof and in such case section 100(2) applies.
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, despite 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 or her the costs to be recovered by the plaintiff against him or her shall include such costs as
the plaintiff is liable to pay to the bailiff.
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 is deemed sufficient proof of the authority of the Court previous to the issue of the warrant.
Division 4 - Contempt of Court
122. Repealed by section 177 of the Criminal Procedure Act 1972.
(As to contempt of Court, see now section 173 of the Criminal Procedure Act 1972.)
PART VI
ADMINISTRATION
Division 2 – 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 a place appointed
under section 4(1).
(2) Special or adjourned sittings for the dispatch of a business may be held in any such Courthouse or in any other place wheresoever
which the District Court Judge deems convenient.
124. Times of sittings – (1) Sittings for the dispatch of civil business and sittings for the dispatch of criminal business is held on such days and at such
times as may be appointed by the District Court Judge exercising jurisdiction at the place in which the sittings are held:
PROVIDED THAT the days appointed for regular sittings are subject to the approval of the Minister.
(2) In the absence of the District Court Judge for a reason, the Registrar may appoint the days and the times referred to herein.
(3) Nothing in this section derogates from the power of a District Court Judge or a Fa’amasino Fesoasoani to hold sittings on any
day or at any time for the disposal of criminal business.
125. Adjourned sittings – (1) A District Court Judge or Fa’amasino Fesoasoani may adjourn the sitting of a Court held by him or her.
(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 District Court Judge or Fa’amasino Fesoasoani or otherwise, the Registrar, after exercising any powers which
the Registrar is authorised to exercise by or under this Act or any other enactment or the rules, may adjourn the Court to such day
as the Registrar thinks convenient.
Division 2 – 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, is paid in the first instance by the party on whose behalf any proceedings are taken.
(2) No District Court Judge 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 a debt adjudged by the Court to be paid.
(4) A table of all fees payable shall be kept in the office of a Court, and shall be made available for inspection by any person on request.
127. Fees to be paid to Public Account – All fees payable in respect of civil proceedings in District 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 under a warrant shall be paid to the bailiff
or person charged with the execution of the warrant, and shall be paid by him or her to the Registrar for payment by the Registrar
to the person entitled thereto.
128. Payment and recovery of fees in criminal proceedings – (1) Subsections 126(1) and (4) apply to fees in criminal proceedings.
(2) No District Court Judge 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 no fee shall be received or demanded from any constable or from a duly appointed officer of the State or of any local authority or
other statutory public body in respect of proceedings instituted by him or her in the execution of his or her duty.
(3) In default of the payment of any fees by the person by whom they are payable in the first instance the amount is recoverable in the
same manner as a fine or as a debt due to the State.
129. Money to be payable in first instance to Registrar - (1) All fees, fines, costs, and other money payable in criminal proceedings in District Courts are 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 or her:
(a) in any case where they are payable to any person in accordance with any enactment or by any order of the Court made under this Act or to any other enactment, to that person; and
(b) in any other case, into the Public Account.
PART VII
MISCELLANEOUS
130. Summonses and other documents to be under seal – (1) All summonses issuing out of a District 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 Samoa, be received in evidence without further
proof thereof.
131. Proof of service of documents – (1) The service of a 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) A person who wilfully endorses a false statement of the fact, time, or mode of service on a copy of any document commits an offence,
and is liable to a fine not exceeding 10 penalty units or to imprisonment for a term not exceeding 2 years, or both.
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 to be accompanied by a translation into Samoan.
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 therefor as if the same were produced.
134. No privilege to barristers or solicitors – No privilege shall be allowed to any barrister or solicitor to exempt him or her from the jurisdiction of a Court.
135. Constables to assist Court – (1) All constables shall aid and assist any Court or District Court Judge or Fa’amasino Fesoasoani or Registrar in the execution
of all and any of the judicial duties imposed upon the Court or District Court Judge or Fa’amasino Fesoasoani or Registrar
by this or any other Act; and if any constable neglects or refuses so to do he or she is liable, where no other penalty is provided,
to a fine not exceeding 5 penalty units.
(2) The keeper of a prison or lock-up on the request of the bailiff or constable to whom a warrant of arrest or commitment has been issued
shall 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.
136. District Court Rules – (1) The Head of State may, 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 District Courts, District Court Judges or Fa’amasino Fesoasoani by any other
Act:
PROVIDED THAT no such rule is inconsistent with any provision of this or any other Act or any rule 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 subsections (1) and (2), the power of making rules extends to the following:
(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 District Courts consequent on the transfer of any proceedings from the Supreme Court to a District Court, or from a District Court to the Supreme Court;
(d) prescribing the procedure in District Courts consequent on the removal of a judgment of the Supreme Court into a District Court and on the removal of a judgment of a District 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.
137. Regulations – The Head of State may, acting on the advice of Cabinet, make, alter, or revoke such regulations as may in the Head of States opinion be necessary or expedient for giving full effect to the provisions of this Act and for the due administration thereof.
138. Repeal and savings – (1) The enactments mentioned in Schedule 1 are 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 enure 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.
139. Amendments of enactments – The enactments cited in the first column of Schedule 2 are amended as shown in the second column of that Schedule.
140. Amendments of regulations – The regulations cited in the first column of Schedule 3 are amended as shown in the second column of that Schedule.
SCHEDULES
SCHEDULE 1
(Section 138 (1))
Part I of the Judicature Ordinance 1961, comprising sections 3 to 20 inclusive.
The Fa’amasino Fesoasoani Act 1964.
SCHEDULE 2
(Section 139_
The amendments specified in this Schedule have been incorporated in the enactments affected.
SCHEDULE 3
(Section 140)
The amendments specified in this Schedule have been incorporated in the enactments affected.
REVISION NOTES 2008 – 2013
This is the official version of this Act as at 31 December 2013.
This Act has been revised by the Legislative Drafting Division in 2008, 2009, 2010, 2011, 2012 and 2013 under the authority of the Attorney General given under the Revision and Publication of Laws Act 2008.
The following general revisions have been made:
(a) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.
(b) Amendments have been made to up-date references to offices, officers and statutes.
(c) Insertion of the commencement date
(d) Other minor editing has been done in accordance with the lawful powers of the Attorney General.
(i) “Every” and “any” changed to “a”
(ii) “shall be” changed to “is” and “shall be deemed” changed to “is taken”
(iii) “shall have” changed to “has”
(iv) “shall be guilty” changed to “commits”
(v) “notwithstanding” changed to “despite”
(vi) “pursuant to” changed to “under”
(vii) “it shall be lawful” changed to “may”
(viii) “it shall be the duty” changed to “shall”
(ix) Numbers in words changed to figures
(x) “hereby” and “from time to time” (or “at any time” or “at all times”) removed
(xi) “under the hand of” changed to “signed by”
There were no amendments made to this Act since the publication of the Consolidated and Revised Statutes of Samoa 2007.
This Act is administered by
the Ministry of Justice and Courts Administration.
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