Ado Solomons Corporation Ltd v Lagwaeano Sawmilling and Logging Company Ltd [2001] SBHC 130; HC-CC 103 of 2000 (31 July 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 103 OF 2001

ADO SOLOMONS CORPORATION

-V-

LAGWAEANO SAWMILLING & LOGGING COMPANY LIMITED AND OTHERS

AND

IN THE MATTER OF AN INTERPLEADER SUMMONS

BETWEEN:

MATHIAS KUTAI
APPLICANT

-V-

A & H LAWYERS (A FIRM) AND A & A LEGAL SERVICES

HIGH COURT OF SOLOMON ISLANDS
(PALMER, J)

HEARING: 30TH JULY 2001
RULING: 31ST JULY 2001

A & H Lawyers for the Plaintiff and in person
A & A Legal Services for the 1st - 3rd Defendants and in person
Sol-Law for the 4th Defendant
Crystal Lawyers for the Applicant

Palmer J.: This is an application by Mathias Kutai (“the Applicant”) by way of an interpleader summons seeking such interpleader relief as the Court thinks fit on the basis of the affidavit of Mathias Kutai filed 2nd July 2001. Mr Sullivan has raised a preliminary issue as to whether this process is proper in the circumstances or not. I adjourned and said would consider that submission.

Relief by way of interpleader is provided for in Order 59 Rule 1(a) of the High Court (Civil Procedure) Rules, 1964 (“the Rules”):

“1. Relief by way of interpleader may be granted -

(a) Where the person seeking relief (in this order called the applicant) is under liability for any debt, money, goods, or chattels, for or in respect of which he is, or expects to be, sued by two or more parties (in this order called the claimants) making adverse claims thereto.”

Osborn’s Concise Law Dictionary sixth edition, explains it as:

“When a person is in possession of property in which he claims no interest but to which two or more other persons lay claim, and he, not knowing to whom he may safely give it up, is sued or expects to be sued by one or both, he can compel them to interplead; i.e. to take proceedings between themselves to determine who is entitled to it.”

Also in Black’s Law Dictionary sixth edition it is defined as:

“An equitable proceeding to determine the rights of rival claimants to property held by a third person having no interest therein. . . . When two or more persons claim the same thing (or fund) of a third, and he, laying no claim to it himself, is ignorant which of them has a right to it, and fears he may be prejudiced by their proceeding against him to recover it, he may join such claimants as defendants and require them to interplead their claims so that he may not be exposed to double or multiple liability.”

A number of important matters should be noted about the process of an interpleader summons. First it usually arises where there are two or more persons claiming an interest over the money or property, which is in the possession of the Applicant. Sometimes it arises where the Applicant owes a debt to the rival claimants and does not know to whom he should deliver the money. An interpleader summons would sort out such matters. Secondly, the Applicant does not have an interest in the thing or fund that is the subject of the interpleader action.

Does the action of the Applicant by way of interpleader summons fulfil those basic requirements? In my respectful view that question must be answered in the negative. The Applicant is not disinterested in the claim that is the subject of his interpleader summons. The converse is true. At paragraphs 4 - 5 of the affidavit of Mathias Kutai he states basically what his tribes claim is. That they are the owners of 2,269 cubic metres of log felled from Loforae customary land and that in a shipment of 1,800 m3 of log on 9th March 2001, his tribe claims ownership of 1,597 m3 of those logs. At paragraphs 14 and 15 of same affidavit of Mathias Kutai, he claims the sum of $70,826.95 ought to be paid to him in respect of those 1,597 m3 of logs. The proper course of action to take however is not by interpleader but to be joined as a defendant. In the alternative, the Applicant should institute a separate action against the Plaintiff and the other Defendants for his tribe’s claims. It appears the parties to this case also dispute the proceeds that the Applicant claims. I do note, it may be, that the parties to this case do not dispute the money that the Applicant claims. If so, then a consent order could be made, if not, the proper courses of action to take is as stated above, not by interpleader relief. There is nothing that the Applicant has to interplead here. The application is misconceived and must be dismissed with costs; that is, the Applicant must be responsible for all the costs of the parties in this application.

THE COURT.