Third party procedure in Tanzania.

THIRD PARTY PROCEDURE – Order I Rule 14 CPC

A procedure under which a party who is not an original party to the proceedings is brought to the suit and thereby made a party to the suit. The third party is neither a plaintiff nor a defendant.

It is a procedure which enables the court to make orders in favour of the defendant against the third party when the defendant is found liable to the plaintiff.

In effect it is a procedure which enables the court to entertain two suits simultaneously thereby saving time and reduce costs of litigation. 

This procedure is available to the defendant only.

The relevant provisions for Third party Procedure are Paras (a), (b) and (c) of rule 15 of Order I of the CPC.

In the Case of Bhamji Laxman limited V. National Sisal Authority & the NBC. High Court Civil Case No.60 of 1993 (DSM).

Mwaikasu J., stated in the said case that:

“At this juncture let it be pointed out that a Third Party Notice is for all practical purposes, a form of a claim by the defendant instituted against the third party, for the relief’s sought. As the defendant’s claim against the third party hinger on the nature of the claim of the plaintiff against the defendant, it is for a fair and just adjudication of the dispute imperative that the third party should be supplied with sufficient facts as to make him know adequately the nature of the claim as to be in a position to prepare a proper and adequate defence. The need for such sufficient facts to enable the third party identify the nature of the claim comes to the fore when one reads Rule 17 of Order 1 of the CPC."

Conditions For Third Party Proceedings

The applicant must establish that he is entitled to contribution or indemnity.

Refer: Parry V. Carson “In order to bring himself within the ambit of Order 1 Rule 14 the applicant must show upon the face of the pleadings and upon his supporting affidavit that he would be entitled to indemnity from the third party in respect of the amount which the plaintiff claims from him in the event of that claim be successful.”

Refer also: WALUSIMBI V. A.G (U) [1959] EA 223

RMINGHAM & DISTRICT LAND CO. V. LONDON NORTH            WESTERN RAILWAY CO. (1887) 34 Ch. D.261

WYNE V. TEMPEST [1897] 1Ch.110 at 113 per Chitty, J;

“A right to indemnity may arise under express or implied contract or by reason of an obligation from the relation of the parties, such an obligation arises in equity from the relation of the parties when two trustees are liable for a breach of trust and one has applied the trust fund to his own use; in that case the trustee who has so dis-applied the fund is liable to indemnify his co-trustee; so where a man has requested another to hold as a trustee for him shares upon which there is liability for calls or the like the trustee is entitled to an indemnity not merely out of the trust property but by the cestui que trust  i.e. the beneficiary.” 

Note: - The right to indemnity is a contractual right while the right to contribution is an equitable right.

- Joint tortfeasor has a duty to contribution against his co-tortfeasor.

LIMIT OF THIRD PARTY PROCEDURE

Edward Kirondoke Kaggwa V. Castapereira [1963] EA 213

“Third Party Procedure is limited to claims to contribution or indemnity only and it cannot be extended to a right for damages.”

Refer – Insurance Claims.

Overseas Touring Road Services V. Africa Produce Agency [1962] EA        190, 191.

HOW TO INSTITUTE THIRD PARTY PROCEEDINGS

Order I Rule 14(2) CPC

The defendant desiring to issue a third party notice must file an application to Court for leave to issue the third party notice. The application has to be made ex parte supported by an affidavit. The affidavit will disclose the grounds upon which the application is made. It must disclose a cause of action.

- Once there has been service to the Third Party , he becomes a party to the proceedings

- The Third Party is liable when the defendant is liable when the defendant is liable to plaintiff.

- The Third Party can not challenge the plaintiff’s case but he may defend himself against the defendant. i.e. pointing out that the defendant is not entitled to any contribution or indemnity.