Third Party Proceedings: Introduction
In every civil action, there is a plaintiff and there is a Defendant. The Plaintiff is the one who instituted the action while the Defendant is the one sued.
There could be many plaintiffs in a suit and there could be many Defendants in a suit as well.
However, in a civil suit, circumstances may warrant a Defendant to sue another person in an already pending suit where he is the Defendant. The Defendant becomes a plaintiff to someone else who he wishes the court to join in the suit.
It is not only the Defendant in a suit that can join a third party in a suit. The plaintiff can also join a third party as a Defendant to a counter claim. This is how third party proceeding works and detailed fact about this proceeding are discussed below.
What is third Party Proceedings?
It is an action in an already pending action, commenced by the Defendant (or by a claimant who is a Defendant to a counter claim) wherein a third party notice is issued and served on the third party, together with a copy of the originating processses, to appear in court and defend the suit at the instance of the party serving it
In this procedure, a defendant in a suit claims to be entitled to relief or indemnity from a third party or that such third party may bear eventual liability and so he applies for a joinder of such third party to enable him prosecute another action between himself and the third party in the same action between himself and the plaintiff. See Bank of Ireland v. Union Bank OF Nigeria Ltd (1998) 7 SCNJ 385.
Third party proceeding is a special type of proceedings. It favours a defendant only or a plaintiff who has become a defendant by counterclaim.
The essence of this is that the Defendant believes that the outcome of the judgement should affect him and the third party he wishes to join.
The court in the case of P.P & P (Nig) Ltd v Olaghere( 2019) 2 NWLR PT.1657. P.549 on third party proceedings held:
“It is an independent of the main action in which they are instituted. The service of a third party notice does not make the third party a Defendant in the main action,.The third party is liable to the Defendant and not to the Plaintiff. That is, he is a Defendant of the Defendant”.
The summary of this proceedings is that the Defendant is answerable to the suit of the plaintiff while the third party is answerable to the claims of the Defendant. Hence even where the main suit has been determined, the third party proceedings can continue. See Total Nigeria Plc v Delmar pet.co Ltd.(2003) 7 NWLR(PT.819) 314. See P.P & P (Nig) Ltd v Olaghere( 2019) 2 NWLR PT.1657. P.549
Circumstances that may warrant third Party Proceedings
1. Where the Defendant claims the involvement, contribution of a third party to the cause of action or indemnity from the third party. Example.In accident cases where the Defendant brings the insurance company as third party.
2. Where the Defendant is entitled to same reliefs claim by the plaintiff.
3. Where from the nature of the reliefs sought by the Plaintiff, the relief sought by the Defendant is connected to the same original subject matter.
Forinstance, where Mr Mike entered into agreement to sell a land to Mr. Mathew Who entered into agreement to also sell Same to Mr. Mathias. If the contract with Mr. Mike and Mathew breaks down, and Mr.Mathew couldn’t sell to Mr. Mathias, if Mr Mathias should sue Mr. Mathew, Mr Mathew may join Mr Mike as a third Party.
Another perfect example of third party proceeding, is applying to join insurance company to pay indemnity or bear eventual liability.
4. If the issue is such that it can best be resolve among the parties, third party Proceedings may be most considered.
5. if a third party will bear liability wholely or partly, the party who will bear the liability partly or who would have bore the liability, can join the third party.
The Aim of Third Party Proceedings.
- To the Defendant: The sole aim of third party proceedings is to minimize liability that may arise from the suit.
- Generally, another aim or reason for third party proceedings is to prevent Multiplicity of action, that may have arisen from the same cause of action.
Parties in a Third Party Proceedings.
In a third party proceedings, there are three parties:
a. The plaintiff who instituted the action
b. The Defendant who was sued.
c. A third party joined by the Defendant.
Procedure for Third Party Proceedings
Commencement: The Proceedings bis commenced by way of Motion Exparte supported by affidavit and written address.
Order 13 Rule 19(1) of Lagos State High Court Rule, provides that
“where it appears to a judge that any person not a party in the proceedings may bear eventual liability either in whole or in part, the judge may upon an application ex parte allow that person to be joined as a third party by any of the defendants”
The application shall state the grounds for the applicant’s belief that such third party may bear eventual liability.
In Lagos, there is only one procedure for applying for leave to issue, file and serve a third party notice and this is by Motion ex parte, supported by affidavit and written address.
In Abuja, once the defendant claims that he is entitled to any of the above from any person who is not already a party to the action, the court may grant him leave to issue, file and serve a third party notice on such person
The procedure for applying for leave to issue file and serve third party notice is provided by Order 10 r 18(2) Abuja. There are two procedures in Abuja, and they are:By Motion Ex parte supported by affidavit and written address; or by Summons: a court’s direction at the hearing of a summons for issue to a plaintiff.See Order 10 r 18(2) Abuja.
By Order 10 r 19(1) Abuja, the third party notice shall be as in forms 23 or 24 of the appendix, with necessary variations and the third party notice shall be sealed.
Service of third party notice
By Order 10 r 19(2) Abuja and Order 13 r 19(2) Lagos, the Third Party Notice, together with all other existing processes filed in the action (including the writ or originating summons and pleadings filed) shall be served on the third party within the time prescribed for the delivery of defence.
Effect of the Service of the third party notice
Service of the third party notice makes the third party to become a party to the action with the same rights in respect of his defence as if he had been sued in the ordinary way y the defendant. See Order 10 r 20 Abuja.
Time for entering of appearance by third party
By Order 10 r 21(1) Abuja and Order 13 r 20 Lagos, the third party may enter appearance with eight (8) days or within at least thirty (30) days if he is outside jurisdiction or within such other time as the court may direct.
Note that if he fails to appear within prescribed time, he can bring application for extension of time to enter appearance. See Order 44 r 4 Lagos and Order 10 r 21(2) Abuja.
Effect of failure to Appear or file Defence.
By Order 10 r 22 Abuja and Order 13 r 21 Lagos, both provide that where the third party has been served with the third party notice and he does not enter an appearance or file pleadings as required, he shall be deemed to have admitted the claims on the Third Party Notice and shall be bound by all the decisions in the proceedings, whether by consent or otherwise.
Is Third Party Proceedings the Same as Joinder of parties?
Joinder of parties is different from third party proceedings. In joinder of parties, the reason for the party to be joined may not be due to liability. The person to be joined may just be a necessary party to the suit. But in third party proceedings, the Defendant must have firm belief that the third party will share in eventual liability.
Again, application for joinder is by way of motion on notice but application for third party notice is made exparte under the High Court Rules of Lagos State and Abuja. In other words, before a party can be joined in a suit, the adverse party must be put on notice, to enable him knew why the party should be joined in the suit.
Before a third party will be joined in third party Proceedings, leave of court must be sought and obtained but Joinder of parties, does not require leave of court. All it requires is for the party seeking to join another person to establish that the party he want to join is a necessary party to the suit.
In third party proceedings, only the Defendant or Plaintiff to a counter claim can commence the Proceeding. In other words, where there is no counter claim, the plaintiff cannot bring application for third party proceedings. But either the plaintiff or Defendant can apply to join a party to a suit. The court can suo moto order a necessary party to be joined in a suit.