Discussion on third party procedure as per Civil Procedure Code. By Johnson Yesaya. LL.B

 PRELIMINARY

The Civil Procedure Code  is just like a Bible or Quran to any civil lawyer as it provides all basic procedures to be followed when one is handling civil litigations or proceedings. Third party notice and procedure are provided under order I rule 14-23 of the Civil Procedure Code . Third party notice is a legal document which is necessary to be filed before court for the purpose of joining a third party who is not an original party in a suit . In any suit, where defendant claims against any person who is not a party to the suit, any contribution or indemnity; or any relief or remedy relating to or connected with the subject matter of the suit and substantially the same as a relief or remedy claimed by the plaintiff, the defendant may apply to the court for leave to present to the court a third party notice. Third party notice cannot be filed until application to file third party notice is granted by the court.

Third party notice is an important procedure which enable court to make writs in favor of a defendant against another party not party to a suit when the defendant is found liable to the plaintiff. The procedure is useful as it prevents multiplication of actions and it saves time of the court and expenses connected to suits. Two claims may be joined together in one suit through third party procedure without wasting time to file separate suits. The third party procedure has a lot of conditions to be followed when one is seeking to join a third party, legal communication between an original defendant and a third party to be joined must be put in a way that a third party will easily understand the case and likewise defend himself properly.

 In the case of Bhamji Laxman limited V. National Sisal Authority & the NBC. High Court Civil Case , 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

It is the defendant who initiates third party procedure and not plaintiff. In the case of Veronica Daniel Mbogi v. Yasin Mvumo & Bumaco Insurance Co.Ltd , Veronica who was administratrix of the Estate of the late Juma Mahinya Mjelele filed a suit at Kinondoni District Court against a driver involved in an accident and vehicle insurer mentioned above, the suit was dismissed on the ground that the 2nd defendant had no cause of action. On appeal, Ebrahim., J stated that, as per order I rule 14(1), it is clearly visible that, only a defendant can initiate third party procedure but the law, Order 1 Rule 6 and 7 of CPC allows the Plaintiff to join parties jointly and severally and where in doubt as from whom he is entitled to obtain redress, she may join two or more defendants.

Ebrahim, J., states that, “It is not disputed that at the time of accident the 2nd respondent was insurer of the vehicle No. T478 DDL Toyota Coaster Bus. The said vehicle was involved in the accident while being driven by the 1st defendant. Therefore plainly, the 2nd defendant is a necessary party to this suit. The 2nd defendant may either join the 1st defendant in defending the suit or defend her position and liability in the case”.

So, only defendant (s) are allowed to initiate third party procedure by virtue of order I rule 14(1), but plaintiff (s) may join third parties by virtue of order 1 rule 6 and 7 of CPC when there is a confusion as from whom he is entitled to obtain redress.

The defendant who wants to join a third party must prove that he is entitled to contribution or indemnity . A defendant must show that he has a right to receive contribution or indemnity from a third party in respect of amount of money which a plaintiff claims from him in case the plaintiff’s suit succeed. A right to indemnity from a third party may be based on express or implied contractual basis, nature of obligations between defendant and a third party etc.

Example- A driver who is required to pay compensation for causing death or personal injury due to careless driving may apply before the court to join insurance company as a third party to pay all damages and all expenses concerning accident as there is contractual relationship between insurance company and the transportation company involved in accident.

In the case of Mrs Huba Hashim Kasim v. Tondo Express Ltd, Benson Lwendo & Niko Insurance Tanzania Ltd , The Plaintiff, Mrs Huba, the administratrix of the estate of the late Hashim Kassim Nkya instituted a claim against the 1st and 2nd defendants jointly and severally for payment of Tshs. 500,000,000/- with interest being damages for loss of life, loss of income, burial expenses, family support and general damages. As per Plaintiff’s plaint, the late Hashim Kassim Nkya died on 23rd March 2009 as a passenger following an accident occasioned by the 2nd defendant while driving a motor vehicle Yu Tong bus with owned and operated by the 1st Defendant at Mufindi along Iringa - Mbeya High way. She averred further that as a result of the said accident, the late Hashim Kassim Nkya died from circulatory failure and hemorrhagic shock caused directly by the grievous wounds inflicted on his body.

In the cause of proceedings, the 1st defendant joined the third party through third party notice filed on claiming for indemnification. The plaintiff successful compensated 100M Tsh as general damages out of 500M Tsh she claimed.

The person to be joined is indeed not party to the suit. There must be original parties in a suit so as to join a third party, a party who is among original parties of a suit cannot be joined as third party. A third party comes after original parties being in proceedings of their suit and a defendant seeks relief or contribution from a third party.

The claim by the defendant must be related to any relief or remedy connected with the subject matter of the suit and substantially the same as a relief or remedy claimed by the plaintiff . A third party can only be joined if the claims by defendant are actually connected to a matter before court and not irrelevant issues to the case. There must be either contractual relationship or obligations between defendant and a third party connected to a defendant's suit for a third party to be joined i.e vehicle insurance companies have contractual obligations with their clients to cover cost, loss, and compensation arising from personal injury or death caused by road accidents. In this circumstances, a defendant in traffic cases who is always either a driver or vehicle owner may joined insurance company as a third party who has contractual duty to do over accidents.

INSTITUTION OF THIRD PARTY PROCEEDINGS

Before filing third party notice, the defendant who desire to do so must file an application to court seeking leave to issue the third party notice. The application is ex parte unless directed otherwise by the court, the application must be by way of chamber summons supported by an affidavit as provided under order 1 rule 14(2) of the CPC. The affidavit will disclose the grounds upon which the application is made, it must disclose a cause of action, the nature of the claim made by the plaintiff in the suit,  the stage which proceedings in the suit have reached, the nature of the claim made by the applicant against the third party and its relation to the plaintiff's claim against the applicant; and the name and address of the third party.

Upon an application made under above provision, and when the court is satisfied that the defendant's claim against the third party is in scope of the law and it is reasonable and proper to grant leave to the defendant to present a third party notice, the court shall, upon such terms and conditions as it may think just, make an order granting the defendant leave to present a third party notice. As per order 1 rule 15, every third party notice must state the nature of the plaintiff's case against the defendant, the nature of the defendant's claim against the third party, the reliefs claimed by the defendant against the third party, the period within which the third party may present his defense; and the consequences of the failure by the third party to present his defense within such a period.

The court of law will cause a third party notice to be served to a third party through court service under the rules of service of summons. A copy of third party notice must be served to other parties in the suit as stipulated under rule 16 of order 1. A third party become party to the suit after service of the Third Party Notice.

DEFENCE BY THIRD PARTIES

A third party is entitled rights to defend himself from liability of the case which he/she is joined as a third party. As per Order 1 rule 17 of CPC , within 21 days after service of third party notice, the third party who desire to dispute the plaintiff's claim in the suit against the defendant presenting the third party notice or his own liability to the defendant, may present to the court a written statement of his defence. 

After presentation of written statement of defence, the court may, basing on the application of the defendant presenting the third party notice or on the application of the third party or, where the third party has disputed the plaintiff's claim against the defendant, on the application of the plaintiff, or on its own motion, arrange a date for the directions giving and may on such date, if court think’s proper to set questions to third party to determine the relationship between suit and a third party, it may do so. Through court services, the notice of the date of giving directions must be served on the defendant presenting the third party notice and on the third party and on other parties to the suit as the court may direct, in accordance with the rules relating to service of summons.

JUDGMENT AGAINST THIRD PARTY IN DEFAULT

Default by third party in presenting written statement of defence within allowed time, or by presenting statement of defence within allowed time but fails to appear at a date of giving directions; if a defendant presenting a third party notice suffers judgment by default, that defendant after satisfaction of the judgment, or with leave of the court before satisfaction of the judgment, apply ex parte judgment to be entered against third party in respect of contribution or indemnity stated in the notice;

If the defendant presenting the third party notice suffers judgment after trial against him, the court of law may at or after trial, enter judgment against a third party in default. When the judgment by consent is entered against the defendant in favor of plaintiff, the court may, on application of the defendant and on ex parte proof by him of his claim against the third party, enter such judgment in favour of the defendant against the third party as the nature of the suit may require. Default judgment against third party are provided under Order 1 rule 19 of Civil Procedure Code. The court of law may set aside or vary the judgment entered against third party at any time as the court think fits.

CONCLUSION

Third party notice can only be initiated by the defendant who seek contribution or indemnity from a third party who is not original party to a suit, a plaintiff is not entitled any right to cause to be joined a third party by virtue of order 1 rule 14 but a plaintiff has a room to join any other person as a defendant by virtue of order 1 rule 6 and 7 as stated by Ebrahim J in Veronica Daniel Mbogi v. Yasin Mvumo & Bumaco Insurance Co.Ltd .

A third party served with third party notice by a defendant in any proceedings has the same right to serve any other person, a third party notice and it will have the same effect as the one which is normally served by a defendant. Likewise, in any suit where a defendant claims against another defendant in the same suit, any contribution or indemnity, any relief or remedy, such defendant may present a third party notice against the co-defendant in the same manner and subject to the same conditions as if the co-defendant were a third party. This is provided under order 1 rule 22 and 23 of Civil Procedure Code.

In third party proceedings, court may make orders to cost as it may think fit, orders to cost is  discretional matter of the court, the court of law issues order for costs against parties depending on events, any party may be ordered to pay cost of the suit.

REFERENCE

BOOKS

D.F. Mulla, Code of Civil Procedure 1908: in 2 volumes.

Rao and Chitaley Code of Civil Procedure: in 3 volumes

STATUTES

The Civil Procedure Code [CAP. 33 R.E. 2019]

The Law of Limitation Act [CAP. 89 R.E. 2019]

CASE LAWS

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

Veronica Daniel Mbogi v. Yasin Mvumo & Bumaco Insurance Co.Ltd, H.C, Civil Appeal no 209 of 2019

Huba Hashim Kasim v. Tondo Express Ltd, Benson Lwendo & Niko Insurance Tanzania Ltd, Civ. No 5 of 2010.

OTHER

Yesaya, J., “third party notice in Tanzania”, available at <https://www.tanzanianweb.co.tz/2020/12/third-party-procedure-in-tanzania.html?m=1> ( accessed November 18, 2021).