- April 7, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The applicant, the deputy-sheriff for Walvis Bay, in consequence of a warrant of attachment, seized certain property to satisfy the judgment in favour of the first claimant. The second claimant was served with an interpleader notice and advised to signify an intention to oppose the proceedings and if so, to file her particulars of claim. The second claimant failed to do so.
The first claimant, in response to the interpleader notice, filed his particulars of claim, dated 21 February 2023. The second claimant did not, however, file her particulars of claim as required by the interpleader notice, which she undoubtedly received.
In the instant matter, it was clear that the second claimant was served with the interpleader notice, together with the affidavit required, personally on 18 January 2023 at House No. 12 Martin Crescent Street, Kuisebmond, Walvis Bay. The return of service showed that the nature and exigencies of the process served were explained to the second claimant.
It is a matter of record that the interpleader notice, called upon the second claimant, within 5 days, to indicate notice to pursue the claim and to, within 14 days after delivery of the interpleader notice, to deliver the particulars of her claim. The notice stated the following:
‘FURTHER TAKE NOTICE THAT, if a claimant fails to deliver particulars of his/her/its claim within the time stated above or fails to appear in support of his/her/its claim, the Court may make an order declaring him/her/it and all persons claiming under him/her/it barred as against the applicant from making any claim on the subject matter of the dispute.’
Per MASUKU J:
‘[11] In terms of rule 113(9), the failure to file the particulars of claim, or having filed the said particulars of claim but failing to appear in court on the date designated for the hearing, has the ominous consequence of entitling the court to be at large, to making an order declaring that person or persons claiming under him or her, barred as against the applicant, from laying any claim to the disputed property.
[12] In the instant case, although the second claimant attended court, her attendance was not meaningful in view of the fact that the second claimant did not file her particulars of claim. As such, the court is entitled, by virtue of that fact alone, to declare her and all persons claiming the property under her, barred from contesting the property in question against the first claimant in these proceedings.
The court held that:
a) That where an interpleader notice has been issued, the claimants should file their particulars of claim to be considered by the court. Failure to do so results in the party so failing, being barred from contesting the property in dispute.
b) In the instant case, the second claimant, although aware of the interpleader proceedings, did not file her particulars of claim in line with rule 113(8) and as such, she was barred from contesting the property in dispute.
c) In any event, the second claimant had improperly filed documents that did not support her claim of ownership of the contested property.
As a result, the second claimant was barred against the applicant, by virtue of rule 113(9), from laying a claim in respect of the subject matter in question in this matter. The second claimant was ordered to pay expenses incurred by the applicant, if any, and the costs of the first claimant.