Third-party procedure notes in Tanzania

These are easy-to-understand and comprehensive notes about third-party procedures in Tanzania.

In these notes you will learn everything you need to know about a third-party procedure in Tanzania including;

  • Conditions for Joining a Third Party to the Suit
  • Procedure for Joining a Third Party Into the Suit
  • sample of third-party notice
  • etc.

Let’s get started

What is a third-party procedure?

Third-party procedure refers to the procedure that allows a defendant in a lawsuit to bring another person, called the “third party,” into the case if a defendant believes that person shares responsibility for the claims against them or if they need to address related issues within the same legal proceedings.

Here’s how it works:

  1. You’re the defendant, meaning you’re the person being sued or accused in the case.
  2. Now, let’s say you believe that someone else who isn’t part of the case should also be responsible or should help you deal with the situation. That other person is called the “third party.”
  3. You can use the third-party procedure to officially bring that other person into the case. This means they’ll be facing the accusations or claims alongside you.
  4. You can do this if you have a valid legal reason to involve them, like if you believe they also have some responsibility for what’s going on.

So, in simple terms, the third-party procedure lets you bring someone new into a legal case if you think they should also be involved based on your legal claim against them.

For example;

Let’s say you own a construction company, and you’ve been sued by a client who claims that the building you constructed for them has defects and needs expensive repairs. You, as the defendant, believe that the architect who designed the building made errors in the plans, which led to the defects.

In this situation:

  1. You’re the defendant because you’re being sued by the client.
  2. The architect, who isn’t part of the original lawsuit, is the third party.
  3. You can use the third-party procedure to bring the architect into the case.
  4. Your legally recognized claim is that the architect’s errors in the design contributed to the building’s defects, so they should also be responsible for the situation.

By using the third-party procedure, you can ask the court to include the architect in the lawsuit.

Or a driver can join the insurance company as a party to the personal injury(accident) suit.

NB: The third party is not supposed to be treated as a defendant.

In the case of Metropolitan Tanzania Insurance Co. Ltd vs Frank Hamadi Pilla (Civil Appeal 191 of 2018) [2019] 1 T.L.R. 493 [CA] the court stated that

The third party procedure is based on the principle of contribution and/or indemnity upon the defendant being found liable to the plaintif…..the third party is not supposed to be treated as a defendant in the suit, but essentially as a third party and noparty to the suit

The law governing third-party procedure in Tanzania

The law that governs the third-party procedure in Tanzania is the Civil Procedure Code [CAP 33 R: E 2019] under Order I rules 14-23.

Purpose of third-party procedure

The purpose of the third-party procedure is to promote efficiency and fairness in the legal process by allowing all relevant parties to be involved in resolving a dispute in a single proceeding.

See also  Summary procedure notes in Tanzania (+pdf)

Here are some key reasons behind the third-party procedure:

  1. Efficiency: By bringing all relevant parties into the same legal proceeding, the court can address all related claims and issues at once, avoiding the need for separate lawsuits and potentially conflicting judgments.
  2. Complete Resolution: Including third parties ensures that all potentially liable parties are present in the case, allowing for a comprehensive resolution of the dispute. This helps prevent future disputes or additional legal actions related to the same issue.
  3. Judicial Economy: It saves time and resources for both the parties involved and the court system by dealing with all related matters in a single proceeding rather than multiple separate ones.
  4. Fairness: It promotes fairness by allowing defendants to assert claims against third parties who they believe may be responsible for some or all of the plaintiff’s allegations. This ensures that all relevant perspectives and arguments are considered in the resolution of the dispute.

The main purpose for this procedure is, as envisaged by the Court of Appeal for East Africa in SANGO BAY ESTATES LTD AND 7 OTHERS v. DRESDNER BANK AKTIENGESELLSCHAFT AND ANOTHER, CAEA CIVIL APPEAL NO; 50 OF 1970 is to prevent a multiplicity of actions.

Further in the case of JANUARY NSHIMBA Vs THE REGISTERED TRUSTEES OF DAUGHTERS OF MARY IMMACULATA AND COLLABORATORS CIVIL APPEAL NO. 127 OF 2018, CAT, DSM the court stated that;

It should be kept in mind that the essence of the third-party procedure is to determine a dispute over any contribution or indemnification of the defendant by the third party sought to be impleaded or over any relief or remedy relating to the subject of the suit and substantially the same as a relief or remedy claimed by the plaintiff.

Moreover, in the Court of Appeal decision in the case of Hasnain M. Murji vs Abdulrahim A. Salum t/a Abdulrahim Enterprises (Civil Appeal 6 of 2012) [2012] TZCA 13 (29 June 2012) Court adopted the quotation from the learned author,
Mulla, Code of Civil Procedure, Vol. II, 15th Ed., Page 1303 concerning a policy behind the third-party procedure that: –

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 favour into operation or to establish his entitlement to contribution from the third party. The claim and rights interse o f the defendant and the third party have to be decided in the third-party proceedings.

Conditions for Joining a Third Party to the Suit

According to Order 1 Rule 14 (1)(a) and (b) of Cap. 33, a defendant in a suit shall not exercise the option to join any person as a third party into the suit unless the following facts exist cumulatively.

  1. the person to be joined is indeed not a party to the suit.
  2. The defendant must have a claim against the third party for either contribution or indemnity. This means they believe the third party shares responsibility for the situation or should provide compensation for any damages incurred.
  3. The defendant’s claim against the third party must be related to or connected with the subject matter of the lawsuit. Additionally, it should be substantially similar to a relief or remedy sought by the plaintiff in the lawsuit.

If both of these conditions are met, the defendant can apply to the court for leave to formally bring the third party into the case by presenting a third-party notice.

In the case of JANUARY NSHIMBA Vs THE REGISTERED TRUSTEES OF DAUGHTERS OF MARY IMMACULATA AND COLLABORATORS CIVIL APPEAL NO. 127 OF 2018, CAT, DSM court stated that;

….a defendant who intends to present a third-party notice has to make an application and he must satisfy the trial court that he has a prima facie case and that there is a bona fide claim of indemnification or contribution against the third party or a 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

Procedures for Joining a Third Party Into the Suit

The following are the procedures for joining a third party into a suit;

  1. Defendant to seek leave
  2. Court to determine the defendant’s application to join the third party
  3. Defendant to serve the third party notice
  4. Third-part to file a defense
  5. Court to determine the case
See also  Types of jurisdiction in Tanzania notes (guide & law applicable)

Leave to file a third-party notice

Before successfully adding a third party to the lawsuit, the defendant must first seek leave from the court to submit a third-party notice.

The application for a leave is done through a chamber summons supported by an affidavit. The enabling provision includes Order I Rule 14 (a) (b) (c) (d) and Section 95 of the Civil Procedure Code [CAP 33 R: E 2019].

If it is in the High Court Comercial Division, you can include Rule 2(2) of the High Court (Comercial Division) Procedure Rules as well.

This application is always made ex-parte unlss court direct otherwise.(see Order 1 rule 14 (2))

Purpose of presenting an application supported by an affidavit

In the case of JANUARY NSHIMBA Vs THE REGISTERED TRUSTEES OF DAUGHTERS OF MARY IMMACULATA AND COLLABORATORS CIVIL APPEAL NO. 127 OF 2018, CAT, DSM court stated that;

It should be noted that, the main purpose of presenting an application supported by an affidavit, is to enable the trial court to ascertain as to whether the third parties could be held liable for any contribution or
indemnity or any relief or remedy relating to the subject matter of the suit,
if the defendant is found liable against the plaintiff’s
suit

Contents of affidavit

According to Order 1 rule 14 (2) of Cap. 33 An affidavit supporting the application for leave to present a third-party notice must state

  1. the nature of the claim made by the plaintiff in the suit;
  2. the stage at which proceedings in the suit have reached;
  3. 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
  4. the name and address of the third party.

in the case of Mandani v. Suchale [1971] HCD. 10. El – Kindy Ag. J. reiterated the need for the defendant to disclose sufficient facts in the affidavit to prove that it is necessary to join a third party when he said:

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.

Court to determine the application

Once the application to seek leave is duly filed, the court will hear and make a decision accordingly.

In determining the application, the court may;

  • Grant the application and order the defendant to present the third-party notice
  • Dismiss the application and proceed with the main suit.

Despite the usual contents of a normal court order, an order granting leave to present a third party notice shall contain directions as to the period within which such notice may be presented and other matters as the court may think just [Order 14 rule (4) of Cap. 33].

The rationale of this rule is that there must be a specific period for the defendant to file the notice so as to avoid unnecessary delays in the final determination of the suit. The court is also empowered under the rule to make other directives for the sake of doing justice to the parties.

See also  Grounds for extension of time in Tanzania (case laws)

Contents of the third-party notice (Order 1 rule 15 of Cap. 33)

Every third-party notice shall state

(a) the nature of the plaintiff’s case against the defendant;
(b) the nature of the defendant’s claim against the third party;
(c) the reliefs claimed by the defendant against the third party;
(d) the period within which the third party may present his defence; and the consequences of the failure by the third party to present his defence within such a period.

See: Sample of third-party notice

Defendant to serve the third party notice

Once the court grants the application, the defendant must present the third-party notice and must serve all the parties to the suit including the third party.

The normal procedure of service of summons applies to the service of third-party notice. (Order 1 rule 16 read together with Order V rule 2 of Cap. 33)

Third-Party to file a defense

Upon receipt of the notice, the third party may exercise any of two options if he objects to the claim; he may directly file a defense disputing the plaintiff’s claim or he may file a defense against the defendant’s claim (who presented the notice).

He must exercise either of the two options within 21 days from the service of the notice or within the period that the court will provide (Order 1 Rule 17 of Cap. 33)

A third party may present a third-party notice

A third party served with a third-party notice shall have the same right to present a third-party notice against some other party not a party to the suit as if he were a defendant in that suit.(Order 1 Rule 20 of Cap. 33)

Court to determine the case

After the service of the third-party notice to the third party and after the third party has filed a defense, the law requires the trial court to make directions as to how it will determine the liability of the third party in respect of the claim made against him by the defendant. (Order I rule 18 of Cap. 33)

Judgment against the third party in default

Once the third party fails to file the defense within the required time or file the defense but makes a default in appearing on the date fixed for the giving of directions, he will be bound by the decision of the court against him. (Order I rule 19 of Cap. 33)

Co-defendant as a third party

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. -( (Order I rule 23 of Cap. 33)

In simple terms, a third-party procedure allows a defendant to make his co-defendant a third party.

For example, if A sues B and C. B is a First Defendant and C is the Second Defendant, collectively referred to as co-defendants.

Through a third-party procedure, it is possible for B to make C a third party.

Conclusion

My aim here was to share with you everything you nned to know about the third-party procedure in Tanzania.

I hope you have found these notes useful.

In case you have any questions, feel free to leave a reply right now-!

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