CHAPTER 4:04
SERVICE OF PROCESS AND EXECUTION OF JUDGMENTS

ARRANGEMENT OF SECTIONS

   SECTION

PRELIMINARY

   1.   Short title

   2.   Interpretation

PART I
SERVICE OF SUMMONS IN CIVIL PROCEEDINGS AND PROCEEDINGS CONSEQUENT THEREON

   3.   Service of certain summons and process in Malawi

   4.   Endorsement of summons

   5.   Failure to endorse summons

   6.   Entry of appearance

PART II
SERVICE OF SUMMONS IN CIVIL PROCEEDINGS AND EXECUTION WARRANTS

   7.   Service of summons in criminal proceedings in Malawi

   8.   Execution of warrant of imprisonment for non-payment of fine

PART III
SERVICE OF A SUBPOENA

   9.   Service of a subpoena in Malawi

PART IV
ENFORCEMENT OF A JUDGMENT IN MALAWI

   10.   Interpretation

   11.   Enforcement of a judgment in Malawi

   12.   Costs

   13.   Affidavit of liability to be filed

   14.   Stay of proceedings

   15.   Notification of proceedings upon a certificate

PART V
GENERAL

   16.   Proof of service

   17.   Regulations

4 of 1956 (F)
7 of 1963 (F)
G.N. 114/1964 (N)
263/1969

An Act to provide for the service in Malawi of civil and criminal process of any court of record of Zambia or Southern Rhodesia, the execution in Malawi of civil judgments of any such court, and for matters incidental to the foregoing and connected therewith

[1ST FEBRUARY 1957]

PRELIMINARY

1.   Short title

   This Act may be cited as the Service of Process and Execution of Judgments Act.

2.   Interpretation

   In this Act, unless inconsistent with the context—

   “court” means any court established by or under any law of Malawi, Zambia or Southern Rhodesia which is required by law to keep a record of its proceedings but shall not include a Traditional Court established in Malawi under the Traditional Courts Act, a court established in Zambia under either the Native Courts Ordinance (Chapter 158) or the Barotse Native Courts Ordinance (Cap. 160) or a court established in Southern Rhodesia under the Native Law and Courts Act (Chapter 73);

   “defendant” includes any party against whom relief is sought in a suit or who is required to attend the proceedings in any suit as a party thereto;

   “party” includes the government of Southern Rhodesia, Zambia or Malawi, as the case may be, or any person suing or being sued on behalf thereof;

   “plaintiff” includes any party seeking relief in a suit against any other party;

   “proper officer” means the registrar of a court, or any other similar officer;

   “suit” means any suit or action or other original proceedings in any court between parties commenced by a summons or in any such other manner as may be provided by or under any law in force in Southern Rhodesia, Zambia or Malawi, but does not include any criminal proceedings;

   “summons” means—

   (a)   in relation to a suit any summons, writ of summons, concurrent writ of summons, originating summons or other process by which a suit is commenced or the object of which is to require the appearance in any court of the government of Southern Rhodesia, Zambia or Malawi or of any person against whom relief is sought in a suit, or who is interested in resisting such relief;

   (b)   in relation to any criminal proceedings, a summons or other similar process which directs any person to appear before any court to answer a charge or complaint of having committed an offence.

PART I
SERVICE OF SUMMONS IN CIVIL PROCEEDINGS AND PROCEEDINGS CONSEQUENT THEREON

3.   Service of certain summons and process in Malawi

   Wherever in a suit in a court in Southern Rhodesia or Zambia any summons or other process (other than a subpoena) is required to be served in Malawi, such service may be effected in such manner and by such person as may be prescribed.

4.   Endorsement of summons

   (1) Every summons for service under this Part shall, in addition to any other endorsement or notice required by any law in force in the country in which the summons was issued and the endorsement or annexure required by subsection (2), have—

   (a)   the following endorsement thereon—“This summons (or other process as the case may be) is to be served out of and in Malawi under the Service of Process and Execution of Judgments Act”; and

   (b)   such other endorsement as may be prescribed.

   (2) Every summons for service under this Part shall contain and have endorsed thereon or annexed thereto a short statement of the nature of the claim made or relief sought by the plaintiff in the suit and, if the plaintiff sues in a representative capacity, shall state the capacity in which he sues.

5.   Failure to endorse summons

   If a summons or a copy thereof does not bear all the endorsements or annexures required by or under this Part, it shall be ineffective for service under this Part.

6.   Entry of appearance

   (1) The period fixed by a summons for service under this Part for appearance being entered by the defendant shall, notwithstanding any rules of court governing the time for the entry of appearance, be such period, not being less than twenty-one days, as the proper officer of the court out of which the summons was issued may determine.

   (2) Every appearance entered by or on behalf of a defendant to a summons served upon him under this Part shall, subject to subsection (1), be entered in accordance with the rules of the court out of which the summons was issued and shall, in accordance with such rules, give an address at which all process, proceedings and notices may be served upon or left for him.

   (3) If such address is not given or is fictitious or illusory, the appearance may be set aside as irregular.

PART II
SERVICE OF SUMMONS IN CRIMINAL PROCEEDINGS AND EXECUTION WARRANTS

7.   Service of summons in criminal proceedings in Malawi

   (1) Whenever a summons has been issued in Southern Rhodesia or Zambia directing any person to appear before a court of Southern Rhodesia or Zambia, as the case may be, to answer a charge or complaint of having committed an offence in respect of which such court has jurisdiction, the summons may be served on that person in Malawi in such manner and by such person, as may be prescribed.

   (2) Every summons for service under this Part shall, in addition to any other endorsement required by any law in force in the country in which the summons was issued, have—

   (a)   the following endorsement thereon—“This summons (or other process, as the case may be) is to be served out of and in Malawi under the Service of Process and Execution of Judgments Act”; and

   (b)   such other endorsement as may be prescribed.

   (3) If a summons or copy thereof does not bear all the endorsements required by or under this Part, it shall be ineffective for service under this Part.

   (4) If there is produced to a magistrate a warrant for the apprehension of the person upon whom a summons was so served in respect of the failure of such person to appear at the time and place mentioned in the summons and the magistrate is satisfied that such summons was duly served within a sufficient time before the day appointed for the hearing and that such warrant was issued by the court from which the summons was issued, he shall endorse the warrant in the manner prescribed and thereafter it may be executed within Malawi and shall be sufficient authority for any person charged with the execution of warrants in Malawi to apprehend the person against whom the warrant was issued and bring him before a magistrate having jurisdiction in the area in which the person was apprehended.

   (5) Such magistrate may—

   (a)   order the person to be sent to the country in which the warrant was issued and, for that purpose, direct that he be detained in a prison for a period not exceeding ten days pending his delivery into the custody of any person to whom the warrant was originally directed; or

   (b)   admit the person to bail on such recognizance as he thinks fit on condition that such person appears at an appointed time and place in the country in which the warrant was issued.

   (6) Whenever any person has been admitted to bail in accordance with subsection (5) (b), and the court admitting the person to bail is satisfied that the person has failed to comply with the conditions of the recognizance on which he was admitted to bail, the court may declare the recognizance to be forfeited and the payment of any sum due by any person under the recognizance may be enforced in the same manner as a fine imposed by that court.

   (7) Any sum recovered by virtue of subsection (6) shall be transmitted to the proper officer of the court out of which the warrant was issued.

8.   Execution of warrant of imprisonment for non-payment of fine

   Whenever a court in Southern Rhodesia or Zambia issues a warrant for the imprisonment of a convicted person who has failed to pay a fine imposed by that court, the warrant may, if it is endorsed in the manner prescribed, be executed in Malawi and shall be sufficient authority for—

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