Third-party procedure is a procedure in which the defendant moves the court with an application to join a third-party person as a co-defendant who is not a party to the main case. The conditions set out under Order 1 Rule 14(1) of the Civil Procedure Code are that the Defendant has to have a claim against the said person, and the claim has to be any contribution or indemnity, or any relief or remedy relating to or in connection with the subject matter of the suit and substantially the same as the relief claimed by the Plaintiff.

A. Purpose of Third-Party Procedure:

The main purpose of the third-party procedure is to prevent multiple litigations. With third-party procedure involvement in the proceeding, the court can consolidate related matters into a single proceeding, hence promoting judicial efficiency and consistency. In the case of Vietel Tanzania Public Limited Company Vs. Ivanna Felix Teri1, the Court observed that the purpose of the third-party procedure is to avoid multiplicity of suits in courts, and the procedure is limited to a claim of indemnity, contribution, or any related relief to the subject claim by the plaintiff against the defendant.

In Hasnain M. Murji Versus Abdulrahim A. Salum T/A Abdurahim Enterprises, 2 the Court, quoted to Mulla, Code of Civil Procedure, 3 on the policy behind third party procedure:

"The policy behind this rule is that the defendant who has got a claim against a third party need not be driven to a fresh suit against the third party to put the indemnity in his favor into operation or to establish his entitlement to contribution from the third party. The claim and rights interest of the defendant and the third party have to be decided in the third-party proceedings."

B. Procedure to be followed:

i. Filing an Application for Leave to present a Third-Party Notice

An Application for Leave to present a third-party notice is to be made under Order 1 Rule 14(1). For ease of reference, we will reproduce the contents of the said Order below: -

"Where in any suit a defendant claims against any person, not a party to the suit (a) any contribution or indemnity; or

(b) 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."

The application to seek leave to present a third-party notice must be made ex-parte and supported with an affidavit which must contain the following information: -

  • 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".4

The High Court of Tanzania in Mandani v. Suchale5 while analyzing the importance of ensuring that Affidavits filed contain the facts as required by the Law had this to say,

"Unless this is done, this court will not be in a position to state whether the respondent should be joined in as a third party or not. The affidavit should have disclosed sufficient facts to show that the joining of the respondent would not be premature if allowed. In the absence of these facts, this application cannot be granted"

Upon the Court being satisfied that the Applicants' claim against the third party is in respect of a matter referred to in Order 1 Rule 14 (a) or (b) and that having regard to the circumstances of the case it is reasonable and proper to grant leave to the defendant to present third party notice the Court will then proceed to make an order granting the Defendant Leave to present a third-party notice upon such terms and conditions as it sees fit.6

The High Court of Tanzania (Commercial Division), Nangela, J7, while determining whether an application for leave to present a third-party notice had merit, had this to say,

"In my view, what this Court is required to do is to look at whether the Applicant meets the requirements of the Law. Order 1 rule 14 of the Civil Procedure Code, Cap33 RE 2019 is the relevant provision which sets out the principles on which the third-party procedure operates."

He further proceeds to refer to "Metropoletan Tanzania insurance Co. Ltd vs. Frank Hamad Pilla[8] and states;

"As it was referred in the Metropoletan Tanzania Insurance Case (supra) at Page 16, the third-party procedure is based on the principle of contribution and or indemnity upon the Defendant being found liable to the Plaintiff. The third party is not to be treated as a party to the suit or supposed to be a defendant in the suit, instead, he or she stands to be essentially a third party and a non-party to the suit."

This means that once the Court is satisfied that the conditions under Order ne rule 14, 15 and 15 are satisfied, the Court would proceed to allow the Defendant to present a third-party notice to the third party.

ii. Presenting a third-party notice to the party from whom the Defendant claims

Once the Court grants an Application for Leave to present a Third-party Notice, the person who made the Application must ensure that the said Notice satisfies conditions of Order 1 Rule 15 of the Civil Procedure Code Cap.33 RE 2019, specifically, the same must state: -

  • The Nature of the Plaintiff's Case against the Defendant
  • The nature of the defendants' claims against the third party
  • The reliefs claimed by the defendant against the third party
  • The period within which the third party may present his defence and the consequences of the failure by the third party to present his defense within such period

According to provisions of Order 1 Rule 16, the Court is to cause to be served a copy of the third -party notice presented to it upon the third party in accordance with the rules relating to service of summons.

Under Rule 16(2) of Order 1, a copy of the said notice is to be served upon each of the other parties to the suit in accordance with provisions of Rule 2 of Order VI of the Civil Procedure Code, as if such notice were a pleading other than a Plaint.

iii. Third Party to File Written Statement of Defence

Upon being served with the third party notice, the third party is required to, if they wish to dispute the plaintiff's claim in the suit against the defendant presenting the third party notice or his own liability to the defendant, within twenty-one days of the service of the third party notice upon him or such longer period as the court may have directed or as the court may, on the application of the third party, direct, present to the court a written statement of his defence.9

iv. Consequences of third party failing to present a written statement of Defence

The Civil Procedure Code provides for consequences where a third-party notice has been presented but the third party fails to file a written statement of defence within the prescribed period or fails to appear in court on the date scheduled for Hearing10

The Law envisages various scenarios and proceeds to provide the consequences for each one. For-instance,

  • Where a Defendant who presents a third-party notice has a Judgment in default against them,

In such circumstances, the Code allows him, after satisfaction of the said judgment in default, or before satisfaction (subject to obtaining leave of the Court); apply ex-parte for judgment against the third party. Upon such application, on ex-parte proof by the defendant of his claim against the third party, enter such judgment against the third party as the nature of the suit may require; Other scenarios include:

  • Where defendant presenting third party notice suffers judgment after conclusion of trial against him

When the above scenario occurs, the court may at or after the trial of the suit enter such judgment for the defendant against the third party as the nature of the suit and the claim made in the third-party notice may require: The Code however requires leave to be obtained from court before execution of a decree obtained under this provision.

  • Where judgment by consent is entered against the defendant in favour of the 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: Again, execution of a judgment against a third party obtained under this provision is subject to leave of the Court.

  • What happens after a third party presents a written statement of Defence

Where a third party has presented a written statement of defence the court shall, upon the application of the defendant presenting the third party notice or on the application of the third party himself fix a date for the giving of directions and may on such date, if satisfied that there is a proper question to be tried as to the liability of the third party in respect of the claim made against him by the defendant, order the question of such liability to be tried in such manner, at or after the trial of the suit, as the court may direct.

In the event that the third party disputes the Plaintiff's claim, the Court will, if satisfied as to the existence of proper questions to be tried as to the third party's liability, proceed to order the manner in which such questions may be tried.

It is noteworthy that, in the event that the Court is not satisfied as to existence of questions or triable issues with regards to the third party's liability, the court is allowed to pass such decree or make such order as the nature of the case may require.

The Court of Appeal of Tanzania, had an opportunity to hear an Appeal touching on the propriety of the proceedings of the High Court that involved third party procedure.11 The court observed and held,

"In the present appeal, the 1st third party filed her written statement of defense and disputed the defendant's claim but the trial court did not fix a date for giving directions. Besides, judgment was entered in favour of the respondent who was the plaintiff but there was no any finding made over the liability of the third parties. There was no decree passed or any other order made as to the liability of the third parties. Failure to do so contravened Order 1 rule 18 of the CPC. Given the pointed-out anomalies, it is without doubt that the third-party procedure was not complied with thus vitiated the whole trial court Proceedings."

According to provisions of the Civil Procedure Code, it is mandatory for courts to ensure that the question of liability of third parties is addressed, and proper orders are made in accordance with provisions of Order 1 Rule 18 and 19 in order to avoid getting decisions overturned once the Matter reaches the Appeal stage.

C. Other important rules to consider in third party procedure

  • Application of The Law of Limitation Act Cap. 89 RE 2019

The Civil Procedure Code provides 12that as far as provisions of the code related to third-party procedure, the provisions of the Law of Limitation Act shall apply as though;

  • the third-party notice was a summons to defend
  • the defendant presenting the notice were a plaintiff and the third party were a defendant;
  • the date fixed for the giving of directions were a date fixed for the hearing of a suit; and
  • judgment entered against the third party in accordance with the provisions of rule 19 were an ex-parte judgment entered against a defendant in a suit

This in simpler language means that for purposes of limitation, a third party will be treated as a Defendant, and the same rules, with regards to limitation of time under Cap. 89 shall apply.

  • A third party served with a third-party notice may also present a third-party notice.

Under Order 1 Rule 24, a third party who claims from a party not a party to the suit can cause for a third party notice to be presented to the party in question. The same rules (Order 1 Rule 14 to 19) that apply to a defendant seeking to present a third-party notice to a third party would apply.

  • A defendant can present a third-party notice upon another defendant in the same suit

Where in any suit a defendant claims against another defendant in the same suit (hereinafter referred to as "the co-defendant") - (a) any contribution or indemnity; (b) any relief or remedy relating to or connected with any subject matter of the suit and substantially the same as a relief or remedy claimed by the plaintiff against the defendant, such defendant may present a third party notice against the codefendant in the same manner and subject to the same conditions as if the co-defendant were a third party and the same procedure shall be adopted for the determination of the claims made against the co-defendant as if the co-defendant were a third party

The High Court of Tanzania (Commercial Division), Magoiga, J13; in an application filed by one of the Defendants in a suit for leave to present a third-party notice to another Defendant in the same suit, observed as follows:

An application for third party procedure is not new in our jurisdiction but when it comes to a co-defendant applying for leave to file a third-party notice against a fellow defendant, it is not that much used in our courts.

Our parliament when enacting the provisions of Rule 23 had in mind in its wisdom that, there are situations where co-defendant may have a claim against another co-defendant in the same suit and may seek for contribution or indemnity of any relief or claim against such defendant.

Therefore, reading between the lines of Rule 23 and my interpretation and understanding of the above rule two factors have to be considered, that the party making an application for leave must aim at asking for, namely:

  1. claim for contribution or indemnity;
  2. Any claim of any relief or remedy relating to or connected with any subject matter of the suit and substantially the same as relief or remedy claimed by the plaintiff against the defendant.

In our instant case, the facts as stated in the affidavit shows that, what the applicants want is to be remedied or rather indemnified on the payment of the money claimed by the plaintiff against the defendants in case adjudged by this court in favour of the plaintiff.

The Court proceeded to allow the Application and issued directives and Orders as to how the said Co -defendant was to be presented with the third-party notice as well as when the written statement of defence should be filed.

Conclusion

The incorporation of these procedures is intended to guarantee fairness, transparency, and effectiveness in civil litigation. It is crucial for parties engaged in civil cases to be cognizant of these provisions and their consequences when initiating or responding to legal proceedings.

Footnotes

1. Misc. Civil Application No.30 Of 2019 (Hc) Moshi (Unreported)

2. Civil Appeal No. 6 of 2012 (Unreported),

3. Vol. II, 15th Ed., Page 130

4. Order 1 rule 14(2) a,b,c,d of the Civil Procedure Code Cap 33 RE 2019

5. 1971] HCD. 10.

6. Order 1 Rule 14 Civil Procedure Code – Cap 33 RE 2019

7. Advent construction Ltd v. Tansino Quaries Ltd and XinSin Qiu alias Radha Qiu, Misc. Commercial Application No. 2 of 2021

8. Civil Appeal No. 191 of 2018 CAT at Dodoma

9. Order 1 Rule 17 Civil Procedure code – Cap 33 RE 2019

10. Order 1 Rule 19 a,b,c,d of the Civil Procedure code (supra)

11. January Nshimba Versus Registered Trustees of daughters Of Mary Immaculata and Collaborators, Civil Appeal No. 127of 2018 at Page 16

12. Order 1 Rule 21

13. Houses and Homes Limited and Four Others v. Jitesh Jayantilal Ladwa; Misc. Commercial Application No. 19 of 2021 (Arising from Commercial Case no. 120 of 2020); Page 5 and 6

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.