CHAPTER 18 PRIMARY ' PROCEDURE Acts AN ACT TO REGULATE THE PROCEDURE IN PRIMARY COURTS AND TO MAKE PROVISION Nos. 44 of 1979 FOR CONNECTED MATTERS. [2nd July, 1979.] Short title. 1. This Act may be cited as the Primary 5. Where it is made to appear to the Power of Courts* Procedure Act. Court of Appeal on an application by one of of Appeal to transfer case to the parties or otherwise that any civil action District Court. or proceeding instituted in a PART I may owing to the circumstances or questions GENERAL involved be more appropriately tried before the District Court having local , it The civil and 2. The civil and criminal jurisdiction of criminal juridication Primary Courts shall, subject to the shall be lawful for the Court of Appeal to call of Primary Courts provisions of this and any other written , for and inspect the record or journal of such to be exclusive. be exclusive. action or proceeding and to stay the proceedings in the Primary Court and to Duty of courts 3. Where in any case, whether civil or make order transferring such case to such in cases within criminal instituted before a District Court or District Court for hearing and determination. exclusive a 's Court, it appears to such court Upon such order being communicated to the juridication of at any stage of the proceedings that the case of the Primary Court in whose court Primary is one within the exclusive jurisdiction of a the action or proceeding is pending he shall Courts. Primary Court, the court may stop the stop the further progress of the action or further progress of the case and refer the proceeding and transmit the record of that parties to such Primary Court, and where action or proceeding and all connected papers such case is a civil case, may also make such to the District Court specified in the order. order as to costs as may seem just. Thereupon such District Court shall proceed Right of Court 4. (1) Where a criminal prosecution or to hear, try and determine such action or of Appeal or proceeding for an offence within the exclusive proceeding as if it were an action or Attorney- jurisdiction of a Primary Court is pending in proceeding instituted in that District Court General to such court it shall be lawful, where it is and shall have and be vested with full power direct transfer deemed to be appropriate in the and jurisdiction so to do. of criminal case circumstances, for the Court of Appeal on an 6. Where it is made to appear to any Judge of the to Magistrate's application by any party interested or for the Primary Court- Primary Court Court. Attorney-General, to direct the transfer of to report cue (a) in regard to any prosecution for any more such prosecution or proceeding to a offence pending before it that in the appropriately Magistrate's Court specified in such circumstances of the case the triable direction. elsewhereto offence cannot adequately be Court of (2) Where a direction made under punished by any penalty which the Appeal for subsection (1) is communicated to the Judge Primary Court is authorized by law order. of the Primary Court in whose court such to impose; or case is pending, he shall stop the further (b) in regard to any civil action or progress of the case and transmit the case proceeding pending before it that record and all connected papers to the the action or proceeding may more Magistrate's Court specified in such appropriately be tried before a direction. District Court, (3) The Magistrate's Court referred to in it shall be the duty of the Judge of such subsection (2) shall proceed to hear, try and Primary Court to suspend the further hearing determine such case transferred to it as if it of the prosecution or civil action or were a prosecution or proceeding instituted in proceeding, as the case may be, and to that Magistrate's Court and shall have and report it to the Court of Appeal with a view be vested with full power and jurisdiction so to obtaining an order under section 4 or todo. section 5.

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Where case is 7. (1) Where it appears in the course of (3) Anything in this section shall not be beyond any prosecution, civil action or proceeding construed as derogating from any special jurisdiction before a Primary Court that such powers of punishment that may be given to a duty to refer party to prosecution, action or proceeding is not Primary Court by this or any other law. competent within its jurisdiction, it shall bt the duty of court. such Primary Court to stop the proceedings 9. Notwithstanding anything in this Act, sentence of the Penal Code or any other written law to mprisonment and to refer the party by whom the for term of less the contrary, a Primary Court shall not prosecution, action or proceeding was days. instituted to the competent court. sentence any person to imprisonment, whether in default of payment of a fine or (2) Where a Primary Court stops the not, for a term which is less than seven days. proceedings in any prosecution, civil action or proceeding and refers the party by whom the 10. A Primary Court may, in any Sentences of prosecution, civil action or proceeding was circumstances in which it is empowered by detention in instituted to the competent court under any written or other law to sentence an precincts of subsection (1), that prosecution, civil action offender to imprisonment, whether in default court in lieu of or proceeding shall not operate as a to the of payment of a fine or not, in lieu of imprisonment. institution of a prosecution, civil action or imposing a sentence of imprisonment order proceeding in the competent court in respect that the offender be detained in the precincts of the same offence or matter. of the court until such hour on the day on which the order is made, not being later than PART II 4 p.m. as the court may specify in the order. POWERS OF PUNISHMENT 11. (1) A Primary Court may award Power of Sentences 8. (1) A Primary Court may pass any of such term of imprisonment in default of Primary Court which a the following sentences- payment of a fine as is authorized by law in to sentence to Primary Court imprisonment maypau. (a) imprisonment of either description for case of such default, provided that the term in default of a term not exceeding three months; awarded is not in excess of the court's power payment of fine. (b) fine not exceeding two hundred and under this Act. fifty rupees; (2) The imprisonment awarded under this section may be in addition to a substantive (c) whipping with a light cane if the sentence of imprisonment for the maximum offender is under sixteen years of term awardable by the court under section 8. age; (d) any lawful sentence combining any 12. (1) A Primary Court may, in lieu of Community two of the sentences aforesaid. imposing a sentence of imprisonment on icrvice order. conviction of an accused person or in lieu of (2) In the event of default of payment of imposing a sentence of imprisonment on an any fine imposed on an accused the Judge of accused person in default of payment of a the Primary Court may subject to the fine, enter an order hereinafter referred to as provisions of thu Part- a " community Mmoe order " directing the (a) where the amount of the fine does not accused person to perform stipulated service exceed twenty-five rupees sentence at a named place in a State or the accused to imprisonment of State-sponsored proiect or cbcwhtft. either description for a term not (2) A community service order entered exceeding seven days; under subsection (1) shall be carried out in (b) where the amount of the fine exceeds such manner as the Judge of that court may twenty-five rupees but does not direct. exceed fifty rupees sentence the accused to imprisonment of either (3) The duration of a community service description for a term not exceeding order shall not be more than three months. fourteen days; (c) where the amount of the fine exceeds (4) If the convicted person in respect of fifty rupees sentence the accused to whom a community service order has been imprisonment of either description entered fails to attend at the place named or for a term not exceeding one month. having attended fails to do the stipulated

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service or is irregular in attendance or does (2) For the purpose of appeal aggregate not work to the satisfaction of the person in sentences passed under this section in case of charge or control of the place named or conviction for several offences at one otherwise fails to comply with the order, then shall be deemed to be a single sentence. it shall be lawful for the Primary Court to revoke it and impose such sentence of (3) The provisions of sections 55 and 67 of imprisonment as it thinks fit. the Penal Code shall apply to all offences whatever. (5) Throughout the duration of the community service order, the person in 15. Whenever a Primary Court acquits or Payment of discharges the accused and declares that the costs and charge or control of the place named shall compensation forward, every month to the Primary Court complaint was frivolous and vexatious, it when complaint shall be lawful for such court to order the is frivolous or which entered the order, a report on the vexatious. attendance and work of the convicted person complainant to pay- and stating whether the order is being or has (a) State costs in a sum not exceeding fifty been complied with and such report shall be rupees; and final and conclusive on such questions. (b) compensation in a sum not exceeding Suspended 13. (1) Where a Primary Court imposes fifty rupees to the accused or to sentence of a sentence of imprisonment on an offender it imprisonment. each accused if there are more than may order that the sentence shall not take one accused. effect unless during the period of eighteen months from the date of the order the 16. Whenever any person is convicted of Payment of offender commits another offence punishable any offence or where a Primary Court holds compensation upon with imprisonment. the charge proved but proceeds to deal with conviction. the offender without convicting him, the (2) Where a Primary Court makes an court may order the offender to pay within order under subsection (1) of this section, the such time or in such instalments as the court provisions of the Code of may direct, such sum by way of compensation Act relating to suspended sentences of not exceeding two hundred rupees to any imprisonment other than subsections (1) and person affected by the offence as to the court (2) of section 303 of that Act shall apply, shall seem fit. Any sum awarded under this mutatis mutandis, to that order, and for that section and section 15 shall be recoverable as if purpose the period of eighteen months it were a fine imposed by the court: referred to in subsection (1) of this section shall be deemed to be the tt operational Provided that if the offender is under the period "referred to in those provisions. age of sixteen years, the court may if it thinks fit order the payment under this section to be Sentence in 14. (1) When a person is convicted at made by the parent or guardian of such case of one trial of any two or more distinct offences offender. conviction for several offences the Primary Court may subject to subsection at one trial. (3) sentence him for such offences to the 17. Whenever a Primary Court imposes a Court may fine or passes a sentence of which fine forms a order payment several punishments prescribed therefor of the fine paid which the court is competent to inflict; such part the court may order the whole or any or part of it to punishments when consisting of part of the fine recovered to be paid to the injured party. imprisonment to commence, unless the court person affected by the offence. orders them or any of them to run concurrently, the one after the expiration of 18. Whenever a Primary Court holds Power of court the other in such order as the court may that the charge is proved but is of opinion to permit conditional direct; that having regard to the character, release of antecedents, age, health or mental condition offenders. Provided that the aggregate punishment of the person charged or the extenuating shall not exceed twice the amount of circumstances under which the offence was punishment which such court in the exercise committed, it is inexpedient to inflict any of its ordinary jurisdiction is competent to punishment or any other than a nominal inflict. punishment or that it is expedient to

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discharge the offender conditionally as on being satisfied that the conduct of that hereinafter provided, the court may without person has been such that the recognizance proceeding to conviction- should be discharged, discharge the (a) order such offender to be discharged recognizance. after such admonition as to the court shall seem fit; 21. (1) If the court before which an Provision in offender is bound by his recognizance under case of offender (b) order such offender to pay State costs not exceeding fifty rupees; section 18 to appear for conviction and failing to sentence is satisfied on information that the observe (c) order compensation under section 16 ; offender has failed to observe any of the conditions of (d) discharge the offender conditionally on conditions of his recognizance it may issue a recognizance. his entering into a recognizance summons for the attendance of the offender with or without sureties to be of and his sureties (if any) before it. good behaviour, and to appear for (2) If upon such summons the attendance conviction and sentence when called of the offender and his sureties (if any) on at any time during such period, cannot be procured the court may issue a not exceeding eighteen months, as warrant for such purpose. may be specified in such order ; (3) When the offender appears or is (e) deal with the offender under the brought before the court before which the provisions of the Probation of offender is bound by his recognizance to Offenders Ordinance. appear for conviction and sentence that court on being satisfied after summary inquiry that Conditions of A recognizance under section 18 may recognizance. 19. he has failed to observe any condition of his contain such conditions as the court may, recognizance may forthwith convict and having regard to the particular circumstances sentence him for the original offence; or, if of the case, order to be inserted therein with the case was one in which the court in the respect to all or any of the following first instance might under the Children and matters :- Young Persons Ordinance, have ordered the (a) for prohibiting the offender from offender to be sent to an approved or certified associating with thieves and other school, and the offender is still apparently undesirable persons, or from under the age of sixteen years, make such an frequenting undesirable places; order. (b) as to abstention from intoxicating liquor, where the offence was 22. In lieu of ordering any male person Whipping in drunkenness or an offence under the age of sixteen years to be fined or certain cases. committed under the influence of imprisoned, a Primary Court may order such drink; person to be whipped in accordance with the provisions of the Corporal Punishment (c) generally for securing that the offender Ordinance and section 294 of the Code of should lead an honest and Criminal Procedure Act: industrious life; (d) providing that the offender, with his Provided that a Judge of a Primary Court surety or sureties, if any, shall shall not have power to order more than six appear in chambers before the strokes with a light cane to be inflicted on any Judge of the Primary Court at such such person. intervals as may be specified in the order; 23. (1) Where a person has been Fine may be sentenced to a fine only and to imprisonment paid in (e) directing the payment of compensation in default of payment of the fine a Primary instalments. and State costs as provided in Court may do all or any of the following sections 16 and 18. things :-

Power of court The court before which any person is (a) allow time for the payment of the fine; to vary 20. conditions of bound by his recognizance under this Act to recognizance. appear for conviction and sentence may vary (b) direct payment of the fine to be made the conditions of the recognizance, and may, by instalments;

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(c) direct that the person liable to pay the numbered in the order in which it was fine shall be at liberty to give to the received, and shall form the commencement satisfaction of the court a bond. of the proceedings in respect thereof. with or without a surety or sureties, for the payment of the fine or any 26. (1) Where proceedings have been Issue of instalment thereof. instituted in a Primary Court, the court shall, summons or if an offence is disclosed issue summons on warrant. (2) Where a fine is directed to be paid by the person or persons accused where such instalments and default is made in the person or persons are not already before payment of any one instalment the same court. proceedings may be taken as if default had been made in the payment of all the (2) If the summons cannot be served or instalments then remaining unpaid. the accused person or persons are absconding or likely to abscond, the court may issue a warrant. PART III

OF THE MODE OF INSTITUTION 27. Every Primary Court shall for the Power of court OF CRIMINAL PROSECUTIONS purpose of the exercise of its jurisdiction have to issue process. full power to issue summons, warrants and Mode of 24. Every criminal prosecution or other processes on persons accused before it institution of proceeding for an offence triable by a prosecution. and on witnesses and other persons whose Primary Court shall be instituted in the attendance the court considers necessary and Primary Court within the local limits of to compel the production of documents as whose jurisdiction the offence was nearly as may be in the manner provided for committed: in the Code of Criminal Procedure Act in respect of cases instituted in a Magistrate's Provided that where an offence is Court. committed partly within the local limits of a Primary Court and partly within the local limits of another Primary Court, a criminal 28. (1) When the accused appears, the Procedure when accuscd prosecution or proceeding in respect of that Judge of the Primary Court shall- appears. offence may be instituted in any of such courts. (a) on the basis of the particulars in the complaint frame a charge ; and Institution of 25. (1) A criminal prosecution or proceedings in proceeding may be instituted in a Primary Primary (b) read and explain the charge to him and Courts. Court by presenting or transmitting a written ask him if he has cause to show complaint duly signed to the court by the against it and if he makes an complainant or the complainant may state his unqualified admission of guilt, pass case orally to the Judge of such court who sentence or make other order shall reduce it into writing and obtain the according to law. complainant's signature to it or cause it to be reduced into writing and signed and the (2) If the accused does not make an statement so taken down in writing shall be unqualified admission of guilt or if he refuses the complaint in the case : to plead or if he pleads not guilty, the Judge shall proceed in the manner set out in Provided that where the complainant is a section 31. local authority, the complaint may be signed by the chief officer of such local 29. (1) It shall be lawful for the Withdrawal of authority or by any officer of such local complainant at any time before the is charge. authority duly authorized to appear on behalf given to move to withdraw the complaint and of such local authority. In this proviso " local thereupon the Judge shall allow the motion authority " shall have the same meaning as in and acquit the accused. the . (2) If the complainant is absent without Absence of (2) Every such complaint shall be dated excuse on any day the case is called in open complainant and sealed with the seal of the court and court whether for the hearing or for any other

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purpose the Judge ef the Primary Court may the Attorney-General or a State or acquit the accused unless he thinks proper to any attorney-at-law specially or generally postpone the case for some other day. On authorized by the Attorney-General but in ordering such postponement the Judge may the absence of such representation the public order a sum not exceeding fifty rupees to be officer himself or any other public officer of paid to the accused as costs : the Department interested in the prosecution or with the permission of the court, an Provided however that if the complainant attorney-at-law may conduct the appears in reasonable time and satifies the prosecution : Judge of the Primary Court that his absence was due to sickness, accident or some other Provided further that an officer of any cause over which he had no control, such Municipality, Urban Council, Town Council Judge shall cancel any order made under this or Village Council may appear in person or subsection. by an attorney-at-law to conduct the prosecution in any case in which the (3) The accused may, for reasons to be Municipality, Urban Council, Town Council recorded in writing, be discharged by the or Village Council is interested. Judge at any time before verdict; (1) The trial in a Primary Court Provided, however, that the Judge may in 33. Procedure at shall be held in the manner provided for in trial. his discretion consult the Attorney-General, the Code of Criminal Procedure Act for prior to such discharge. in a Magistrate's Court.

Primary Court 30. The Judge of a Primary Court shall (2) The provisions of sections 279 and 283 to transmit whenever required in writing by the of the Code of Criminal Procedure Act shall proceedings to Attorney- Attorney-General forthwith transmit to the apply to every of a Primary Court General when Attorney-General the proceedings in any and the provisions of sections 289 and 290 of required. criminal case in which a trial has been or is that Act shall apply to every sentence of being held before him : imprisonment passed by a Primary Court. Provided that the Attorney-General shall return the record to the Court not later than 34. (I) At any stage of the trial, the Disposal of one month after it is received by him. Primary Court may make such order as it documents and thinks fit for the disposal of any document or productions. other property produced before it. Procedure at 31. (1) It shall be the duty of the Judge bearing. of the Primary Court to inquire orally into (2) When an order is made under Stay of disposal the charge and, where appropriate by all subsection (1) in a case in which an appeal order pending lawful means to endeavour to bring the lies, such order shall not (except when the parties to an amicable settlement. If the property is livestock or is subject to speedy parties agree to compound such offence or and natural decay) be carried out until the offences the Judge shall notwithstanding period allowed for presenting such appeal has anything to the contrary in any other taw, passed, or when such appeal is presented allow them to do so and make a record of the within such period, until such appeal has been terms on which the case was compounded and disposed of, after the accused has complied with such terms, record the fact and acquit the accused. 35. The Judge of the Primary Court may, inspection of (2) If the parties refuse to compound the if he deems it necessary, at any stage after scene. case, then the Judge shall proceed to try the the appearance of parties, adjourn the case. hearing of the trial until he has had an opportunity of inspecting the scene of the offence or any property in respect of which Legal 32. Every accused person and every representation. complainant shall be entitled to be the offence is alleged to have been represented by an attorney-at-law ; committed. Notice of the time and place of such inspection shall be duly given by the Provided, however, that a public officer Judge to the parties, and such notice shall who has filed a complaint in his official state that the parties are entitled to be capacity shall be entitled to be represented by present at the inspection.

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Absence of 36. In the event of the absence of the 41. The plaintiff may unite in the same What causes of Judge. Judge of a Primary Court without plaint two or more causes of action when they action may be joined. arrangements being made for an acting all arise- Judge, it shall be competent for the Registrar (a) out of the same transaction or of the court to call and postpone to any other transactions connected with the date all such cases, whether instituted under same subject of action ; or this Part or Part IV, as may be fixed before the court for the period during which the (b) against thesame defendant or Judge is absent. defendants. But it must appear on the face of the plaint that all the causes of action so united are PART IV consistent with each other, that they entitle the plaintiff to the same kind of relief, and OF THE MODE OF INSTITUTION OF CIVIL that they affect all the parties. ACTIONS

Institution of 37. Subject to the pecuniary or other 42. Upon such plaint being filed as Summons to action. limitations prescribed by any law, action may aforesaid the Primary Court shall appoint a issue. be instituted in the Primary Court within the day for the appearance of the defendant, and local limits of whose jurisdiction the plantiff shall inform the plaintiff thereof; and shall or defendant or where there are two or more also issue a summons for the appearance of plaintiffs or defendants, any one of them the defendant. resides.

Filing of plaint. 38. An action may be instituted in a PROCEEDINGS ON APPEARANCE Primary Court by presenting or transmitting a written statement in plain or concise 43. (1) At the place and on the day The defendant language duly signed to the court by the specified in the summons the defendant shall to appear and admit or deny plaintiff or the plaintiff may state his case be called upon to admit or deny the plaintiffs the claim. orally to the Judge of such court who shall claim. reduce it into writing and obtain the plaintiffs signature to it or cause it to be (2) If the defendant shall admit the claim, if the reduced into writing and signed and the the Judge of the Primary Court shall enter dependant statement so taken down in writing or the such admission on the record and shall admlts the statement presented or transmitted to the require the defendant to sign the same and claim. court shall be deemed to be the plaint in the enter judgment for the plaintiff: case. Provided that it shall be lawful for a Pleadings. 39. The pleadings in a Primary Court defendant who cannot conveniently attend shall be limited to the following :- the court, to forward his admission to the Registrar of the court signed by himself in (a) the plaint of the plaintiff; the presence and under the attestation of an attorney-at-law known to him and upon the (b) the answer and claim in reconvention (if any) of the defendant; receipt and entry of such admission the Judge shall enter judgment for the plaintiff (c) the plaintiffs reply to the defendant's accordingly. claim in reconvention. (3) If the defendant shall deny the claim. If the But where there is no claim in reconvention the Judge of the Primary Court shall fix the dependant denies there shall be no further pleadings beyond the case to be called for a pre-tnal hearing. the claim. answer. (4) On the day fixed for pre-trial hearing Plaint to be 40. The plaint shall bear the names and the Judge of the Primary Court shall numbered. residences of the parties and the date on wherever appropriate endeavour by every which it is filed and shall be numbered in the lawful means to conciliate the parties and order in which it was filed. settle the dispute. I/ 181 Cap. 18] PRIMARY COURTS' PROCEDURE

Examination of 44. (1) The parties may at this stage of accord with the pleadings and the court may parties. the proceedings be examined orally by the allow an adjournment if necessary to the Judge of the Primary Court with a view to- adverse party in consequence of new (i) ascertaining the points at issue questions being raised in the issues but an between them and of dispensing amendment of pleadings shall not be allowed. with any unnecessary , and 50. (1) The trial shall be held in the Pocedure at (ii) inducing the parties to an amicable manner prescribed in the trial. settlement, removing the cause of Code for trials in regular actions in a disagreement between them and District Court. conciliating them. (2) The provisions of the Civil Procedure (2) If every lawful endeavour to conciliate Code relating to judgments and and the parties had failed the court shall fix a the execution of decrees shall, mutatis date for the defendant to file his answer. The mutandis, apply to judgments and decrees of answer shall be filed, mutatis mutandis, in a Primary Court. the manner set out in section 38.

Where in any proceeding before any Claim in Of the claim in If the defendant pleads a claim in 51. 45. Primary Court any defence or claim in reconvention. rcconvcntion. reconvention with his answer, the plaintiff reconvention of the defendant involves matter shall be called upon to admit or deny the beyond the jurisdiction of the court, such same. If he denies the claim in reconvention, defence or claim in reconvention shall not the plaintiff shall be required .forthwith,or at affect the competence or duty of the court to such further time as the court shall fix, to dispose of the matter in controversy so far as plead thereto, and the provisions of section 38 relates to the demand of the plaintiff and the shall, so far as applicable, mutatis mutandis. defence thereto, but any relief exceeding that apply to the plaintiff's reply to the which the court has jurisdiction to grant shall defendant's claim in reconvention : not be given to the defendant upon any such Of the reply Provided that the plaintiff shall not set out claim in reconvention : thereto. in his reply new matter amounting to a new Provided always that in such case it shall cause of action if he could have pleaded the be lawful for the Court of Appeal or any same in his original plaint. Judge thereof, if it shall be thought fit, on the application of any party to the proceeding, to Fixing the case 46. After the answer is filed, or, if the direct that the action be transferred from the for trial. answer discloses a claim in reconvention, court in which it shall have been instituted to after the plaintiffs reply, if any, thereto is the District Court having jurisdiction over the filed, the Judge of the Primary Court shall whole matter in controversy; and in such case fix the case for trial. the Judge of the Primary Court shall transmit the record to the District Court Immaterial 47. A variance between an allegation in a specified in the order and the proceeding shall variance to be pleading and the proof shall be disregarded as be continued and prosecuted in the District disregarded. immaterial unless such proof discloses a new Court as if it had been originally commenced cause of action, or the court is satisfied that therein. the adverse party has been misled thereby tc his prejudice. 52. (1) The Primary Court shall have Power to jurisdiction to summon and examine all summon witnesses and witnesses touching the causes being tried or Legal 48. Every party to an action or issue warrants. representation. proceeding shall be entitled to legal heard by it and if necessary to issue warrants representation. for the apprehension and production before it of any party or witness and to deal with them according to law. Framing of 49. The court shall at the trial frame the issues. issues on which the right decision of the case And also jurisdiction to order any party or appears to depend after questioning the witness or other person to produce or cause to parties and ascertaining the matters on which be produced any document or thing before it they are at variance- Issues need not strictly provided there is no bar or privilege under

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any other law in force for the time being (5) When an action has been dismissed Plaintiff may under the provisions of subsection (1) or be granted which excuses non-production of such permission to document or thing. subsection (4) and the plaintiff has by institute a fresh affidavit or otherwise with notice to the action. (2) The provisions of the Civil Procedure defendant satisfied the Judge of the Primary Code relating to summons and warrants shall Court that he was prevented from appearing apply as nearly as possible to summons and by accident, misfortune, or other unavoidable warrants issued under subsection (1) of this cause, the Judge may grant to the plaintiff section and section 42. permission to institute a fresh action upon such terms as may be fixed by the court, and OF DEFAULT OF APPEARANCE where permission is so granted the action dismissed under subsection (1) or subsection Proceedings on 53. (1) If upon the day specified in the default of summons for the appearance of the defendant (4) shall not operate as a bar to the appearance of institution of a fresh action. plaintiff. or upon any day fixed for the hearing of the action the plaintiff shall not appear or sufficiently excuse his absence, the plaintiffs (6) An appeal shall not lie against any An appeal from judgment or order entered under this section judgment or action may be dismissed. order by for default of appearance, anything in this default not Provided that if the defendant appears ami or any other law to the contrary available. when called upon under section 43 shall notwithstanding. admit the claim of the plaintiff, the Judge of the Primary Court shall enter judgment for PARTY the plaintiff according to law. APPEALS FROM PRIMARY COURTS TO THE On default of (2) If upon the day specified in the COURT OF APPEAL appearance of summons or upon any day fixed for the defendant. hearing of the action the defendant shall not 54. (1) Subject to subsection (4) every Appeals. appear or sufficiently excuse his absence, appeal from a judgment, conviction, sentence, while the plaintiff appears the Judge of the or final order of a Primary Court shall Primary Court, upon due proof of service of be by petition and presented to the Judge of the summons, notice, or order requiring such the Primary Court, save as otherwise appearance, may enter judgment by default provided in subsection (5), within fourteen against the defendant. days of the date of entering of the judgment, conviction, sentence, decree or final order Judgment by (3) If the defendant shall within a default may be reasonable time, after such judgment, by appealed against. opened up in certain cases. affidavit or otherwise, with notice to the (2) Such petition of appeal shall be in plaintiff satisfy the Judge of the Primary writing and state shortly the grounds of Court that he was prevented from appearing appeal and be signed by the appellant or his in due time by accident, misfortune, or other attorney-at-law. unavoidable cause, or by not having received sufficient information of the proceedings, and (3) Every such petition of appeal shall that he did not absent himself for the purpose bear a stamp to the value of five rupees but of avoiding service of the summons or notice, where the appellant is the Attorney-General and that he has a good and valid defence on such stamp shall not be necessary. the merits of the case, then the Judge may set aside such judgment and any proceedings had (4) An appeal shall not lie from an thereon, and may admit the defendant to acquittal by a Judge of the Primary Court proceed with his defence upon such terms as except at the instance of or with the written the Judge may think fit. sanction of the Attorney-General.

If neither parly (4) If upon the day specified in the (5) Where the Attorney-General prefers appears action summons or if upon any day fixed for the an appeal against any judgment, sentence or to be dismissed. hearing of the action neither party appears final order pronounced by a Primary Court in when the case is called the Judge of the any criminal case or matter or where the Primary Court shall enter judgment appeal is from an acquittal with the sanction dismissing the plaintiffs action, but without of the Attorney-General, the time within costs. which the petition of appeal must be I/ 183 Cap. 18] PRIMARY COURTS' PROCEDURE

preferred shall be twenty-eight days from the 58. Upon appeal the Court of Appeal Power of the date of entering of the judgment, sentence or may- Court of Appeal on appeals. order. (a) in a criminal case - Procedure on 55. (1) The Judge of the Primary Court (i) affirm the judgment, receiving shall certify on the face of the petition of conviction, sentence or final appeal. appeal the date on which it was received, order appealed from and cancel the stamp and with the least possible dismiss the appeal; or delay cause the petition of appeal and the (ii) allow the appeal and set aside record of the case to be forwarded to the the judgment, conviction, Court of Appeal. sentence or final order appealed from and order a (2) If the appellant had been committed to retrial or acquit the prison in pursuance of the judgment, sentence appellant or make such other or final order appealed from, he shall order as may be forthwith on lodging his appeal be released on appropriate; or bail to appear before the Primary Court on any date notified to him and abide the order (iii) vary the judgment, conviction. in appeal. If such appellant fails to furnish sentence or final order the bail ordered he may be remanded to the appealed from or reduce or custody of a Superintendent of Prisons. enhance the sentence or the nature thereof; where the sentence is enhanced, the 56. (1) The Registrar of the Court of Appeal shall on reciept of the record number sentence shall not exceed the and register the appeal and cause sufficient sentence which a Primary copies of the record and petition of appeal to Court could impose ; or be prepared. The appeal shall thereafter be (iv) where the appeal is from an entered on the list of appeals and shall come order of acquittal reverse on for hearing on a day of which at least one such order and direct a new month's notice shall have been given to the trial; appellant and the other parties. (b) in a civil case - (2) The parties to the appeal shall be entitled to a copy of the record and the (i) affirm the judgment, decree or petition of appeal on payment therefor at the order and dismiss the rate of twenty-five cents for every folio of one appeal; or hundred words: (ii) allow the appeal and set aside the judgment, decree or Provided that the Attorney-General shall order; or be issued his copy of the record and petition of appeal free of any charge. (iii) vary the judgment, decree or order; and Hearing of the 57. (1) At the hearing all parties shall be (iv) order costs in an amount which appeal. entitled to appear or be represented by their seems to the court to be respective attorneys-at-law. reasonable.

(2) When the appeal comes on for hearing, 59. (1) On the termination of the Judgment in the appellant if present shall be first heard in hearing of the appeal the Court of Appeal appeal to be support of the appeal and then the given in open shall either at once or on some future day court. respondent, if present, shall be heard against which shall then be appointed for the it. purpose, deliver judgment in open court. (3) If the appellant does not appear to (2) On the day so fixed, if the court is not support his appeal, the Court of Appeal shall prepared to give its judgment, a yet further consider the appeal and may make such order day may be appointed and announced for the thereon as it may deem fit. purpose.

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(3) A Judge may pronounce a judgment 63. In computing the time within which Computation of written and signed by another Judge, but not an appeal shall be preferred under this Part time. pronounced. the day on which the judgment, decree, sentence, conviction, or final order appealed Older of the 60. (1) Whenever a case is decided on against was pronounced or entered shall be Court of appeal the Court of Appeal shall certify its included, but all public holidays shall be Appeal to be certified to order under its seal to the Primary Court and excluded. Primary Court. shall return to such court the record and petition of appeal accompanied by a copy of PART VI the reasons given for the order. STAMPS AND COSTS IN CIVIL ACTIONS (2) The Primary Court to which the order of the Court of Appeal is certified shall 64. All documents filed in a civil action Stamp duty ia thereupon make such orders as are instituted in a Primary Court shall be exempt civil actions. conformable to the order so certified and if from the payment of stamp duty under the [ 2,49 of 1980.] necessary the record shall be amended in Stamp Ordinance: accordance therewith. Provided, however, that in any such action, Abatement of 61. Every appeal in a criminal case shall there shall be affixed to the plaint of the appeals. finally abate on the death of the accused. plaintiff, the answer of the defendant and the plaintiffs reply to the defendant's claim in Court of 62. (1) The Court of Appeal may of its reconvention, as the case may be, a stamp to Appeal may own motion or on application by any call for record the value of one rupee. and make aggrieved party call for and examine the order. record of any case whether already tried or 65. Every Primary Court shall have Costs. pending in a Primary Court for the purpose power upon the determination of a civil of satisfying itself as to the or action to award to a plaintiff or defendant propriety of any sentence or order passed costs in an amount which seems to the court thereon or as to the regularity of the to be reasonable. proceedings of such court. PART VII (2) In any such case, the Court of Appeal may make any of the orders referred to in INQUIRIES INTO DISPUTES AFFECTING section 58. LAND WHERE A BREACH OF THE PEACE IS (3) An order under this section may not be THREATENED OR LIKELY made in a criminal case to the prejudice of the accused unless he has had an opportunity 66. (1) Whenever owing to a dispute Reference of of being heard either personally or by his affecting land a breach of the peace is disputes attorney-at-law. threatened or likely- affecting land. (4) Anything in this section shall not be (a) the officer inquiring into the construed to authorize the Court of Appeal to dispute- convert a finding of acquittal into one of conviction. (i) shall with the least possible (5) Except as hereinbefore provided, a delay file an information party shall not have any right to be heard regarding the dispute in the either personally or by attorney-at-law before Primary Court within whose the Court of Appeal when exercising its jurisdiction the land is powers of revision: situate and require each of the parties to the dispute to Provided that the court may, if it thinks fit, enter into a bond for his when exercising such powers, hear any party appearance before the cither personally or by attorney-at-law. Primary Court on the day (6) The provisions of section 60 shall immediately succeeding the apply in respect of the orders made by the date of filing the information Court of Appeal in the exercise of its powers on which sittings of such of revision. court are held ; or I/ 185 PRIMARY COURTS' PROCEDURE

(ii) shall, if necessary in the Provided that where the information has interests of preserving the been filed by a police officer, the notice peace, arrest the parties to referred to in the preceding provisions of this the dispute and produce subsection shall also require that the person them forthwith before the interested shall, in addition to appearing in Primary Court within whose court, file affidavits setting out his claims and jurisdiction the land is annexing thereto any documents (or certified situate to be dealt with copies thereof) on which he relics. according to law and shall also at the same time file in (5) Where any affidavits and documents that court the information are filed on the date fixed for filing them, the regarding the dispute; or court shall, on application made by the parties filing affidavits, grant such parties (b) any party to such dispute may file an time not exceeding two weeks for filing information by affidavit in such counter-affidavits with documents if any. The Primary Court setting out the facts Judge of the Primary Court shall permit such and the relief sought and specifying parties or their attorney-at-law to peruse the as respondents the names and record in the presence of the Registrar for the addresses of the other parties to the preparation of the counter-affidavits. dispute and then such court shall by its usual process or by registered (6) On the date fixed for filing affidavits post notice the parties named to and documents, where no application has appear in court on the day specified been made for filing counter-affidavits, or on in the notice-such day being not the date fixed for filing counter-affidavits. later than two weeks from the day whether or not such affidavits and documents on which the information was filed. have been filed, the court shall before fixing the case for inquiry make every effort to (2) Where an information is filed in a induce the parties and the persons interested Primary Court under subsection (1), the (if any) to arrive at a settlement of the Primary Court shall have and is hereby dispute and if the parties and persons vested with jurisdiction to inquire into, and interested agree to a settlement the make a determination or order on, in the settlement shall be recorded and signed by manner provided for in this Part, the dispute the parties and persons interested and an regarding which the information is filed. order made in accordance with the terms as settled. (3) On the date on which the parties are produced under subsection (1) or on the date (7) Where the parties and persons fixed for their appearance under that interested (if any) do not arrive at a subsection, the court shall appoint a day settlement, the court shall fix the case for which shall not be later than three weeks inquiry on a date which shall not be later from the date on which the parties were than two weeks from the date on which the produced or the date fixed for their case was called for the filing of affidavits and appearance directing the parties and any documents or counter-affidavits and persons interested to file affidavits setting out documents, as the case may be. their claims and annexing thereto any documents (or certified copies thereof) on (8) (a) Where a party or person which they rely. interested is required to enter an appearance under this Part he may enter such appearance (4) The court shall, not later than one by an attorney-at-law. week of the filing of the information, cause a notice to be affixed in some conspicuous place (b) Where a party fails to appear or on the land or part of the land which is the having appeared fails to file his affidavit and subject-matter of the dispute announcing that also his documents (if any) he shall be a dispute affecting the land has arisen and deemed to be in default and not be entitled to requiring any person interested to appear in participate at the inquiry but the court shall court on the date specified in such notice, consider such material as is before it such date being the day on which the case is respecting the claims of such party in making next being called in court: its determination and order.

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Inquiry to be 67. (1) Every inquiry under this Part direction that any party specified in the order held in shall be held in a summary manner and shall shall be restored to the possession of the land summary manner. be concluded within three months of the or any part thereof specified in such order. commencement of the inquiry. (1) Where the dispute relates to any (2) The Judge of the Primary Court shall 69. Determination right to any land or any part of a land, other and order of deliver his order within one week of the than the right to possession of such land or Judge of the conclusion of the inquiry. Primary Court part thereof, the Judge of the Primary Court when dispute is (3) Pending the conclusion of the inquiry shall determine as to who is entitled to the in regard to any other right it shall be lawful for the Judge of the Primary right which is the subject of the dispute and Court to make an interim order containing make an order under subsection (2). any provision which he is empowered to make (2) An order under this subsection may under this Part at the conclusion of the declare that any person specified therein shall inquiry. be entitled to any such right in or respecting the land or in any part of the land as may be specified in the order until such person is Determination 68. (1) Where the dispute relates to the deprived of such right by virtue of an order or and order of possession of any land or part thereof it shall decree of a competent court, and prohibit all Judge of the Primary Court be the duty of the Judge of the Primary Court disturbance or interference with the exercise when dispute is holding the inquiry to determine as to who of such right by such party other than under in regard to was in possession of the land or the part on the authority of an order or decree as possession. the date of the filing of the-information under aforesaid. section 66 and make order as to who is entitled to possession of such land or part 70. An order made under this Part may Security for thereof. also contain such other directions as the posession or Judge of the Primary Court may think fit exersise of any (2) An order under subsection (1) shall with regard to the furnishing of security for right may be declare any one or more persons therein the exercise of the right of possession of the ordered. specified to be entitled to the possession of land or part of it or for the exercise of any the land or the part in the manner specified in right in such land or with regard to the sale of such order until such person or persons are any crop or produce or the manner of evicted therefrom under an order or decree of exercise of any right in such land or the a competent court, and prohibit all custody or disposal of the proceeds of the disturbance of such possession otherwise sale of any crop or produce. than under the authority of such an order or decree. 71. Where the parties to the dispute do Order where no (3) Where at an inquiry into a dispute not appear before court or having appeared party appears. relating to the right to the possession of any or been produced do not file any affidavits land or any part of a land the Judge of the whether with or without documents annexed Primary Court is satisfied that any person the court shall- who had been in possession of the land or part (a) in a case where the dispute is in regard has been forcibly dispossessed within a to possession make order permitting period of two months immediately before the the party in possession to continue date on which the information was filed in possession, and under section 66, he may make a (b) in a case where the dispute is in regard determination to that effect and make an to any other right, make order order directing that the party dispossessed be permitting the status quo in regard restored to possession and prohibiting all to such right to continue. disturbance of such possession otherwise than under the authority of an order or decree of a 72. A determination and order under this For competent court. determination Part shall be made after examination and of Judge of the (4) An order under subsection (1) may consideration of- Primary Court, material on contain in addition to the declaration and (a) the information filed and the affidavits which he may prohibition referred to in subsection (2), a and documents furnished; act.

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(d) such other evidence on any matter 75. In this Part " dispute affecting land " Meaning of arising on the affidavits or includes any dispute as to the right to the "dispute documents furnished as the court possession of any land or part of a land and affecting land" may permit to be led on that the buildings thereon or the boundaries matter; and thereof or as to the right to cultivate any land (c) such oral or written submission as may or part of a land, or as to the right to the be permitted by the Judge of the crops or produce of any land, or part of a Primary Court in his discretion. land, or as to any right in the nature of a servitude affecting the land and any reference to " land" in this Part includes a reference to any building standing thereon. Penalty for 73. Any person who acts in contravention contravention of or fails to comply with an order made of or failure to under this Part shall be guilty of an offence comply with 76. The Fiscal of the court shall where Fiscal to order. and shall on conviction by a Judge of the necessary execute all orders made under the executive orders Primary Court be liable to imprisonment of provisions of this Part. of court. either description for a term not exceeding six months or to a fine not exceeding one thousand rupees or to both such imprisonment and fine. PART VIII Casus Omissus Order not to 74. (1) An order under this Part shall affect right or not affect or prejudice any right or interest in 78*. If any matter should arise for which Casus interest which no provision is made in this Act, the omissus. maybe any land or part of a land which any person may be able to establish in a civil suit; and it provisions in the Code of Criminal Procedure established in Act governing a like matter where the case or civil suit. shall be the duty of a Judge of a Primary proceeding is a criminal prosecution or Court who commences to hold an inquiry under this Part to explain the effect of these proceeding and the provisions of the Civil Procedure Code governing a like matter sections to the persons concerned in the where the case is a civil action or proceeding dispute. shall with such suitable adaptations as the (2) An appeal shall not lie against any of the case may require be adopted determination or order under this Part. and applied.

* Section 77 omitted.

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