The principles of joinder of parties and Third-party procedure

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Qn:   Asha was seriously injured when traveling as a front passenger in car driven by Juma, which was involved in a head-on collision with a car driven by Adam.  Asha contemplates filing a suit for damages.  Both vehicles were insured by National Insurance corporation Ltd.  In his reply to the demand note Juma denies liability and blames Adam.  In his defence Adam denies liability alleging his vehicle skidded on a wet road and further alleges Asha was contributorily negligent in not wearing a seat belt.  Asha has already lost earning of Tshs. 50,000 a month over last month and is unlikely to return to work for at least 8 months.  She has used up all her savings and is rapidly sinking into debt.

Advise Asha on, whom to sue and the principles that will be applied.

1.0     INTRODUCTION

The general rule is that no person is compelled to join as plaintiffs or defendants with others in one suit.  However, the law makes provisions for those who want to sue jointly to do so because we are operating an adversarial system, which system presupposes an individualistic approach to complaint; in other words, under adversarial system the parties to proceedings are masters of the procedure.

Joinder of parties has one intention, that of avoiding a multiplicity of suits; and it is in the interest of the public that litigation should come to a speedy end.  Whether one is going to need the same evidence if several suits were brought, it is in this case advisable to join the parties.  Also to minimize the costs of proceedings or litigation as well as saving time of the courts are reasons behind joinder of parties.

The court has the duty to control the action; it may order a splitting up of the parties when it is of the opinion that the causes of action would not be conveniently tried together, for example the plaintiff would be embarrassed when the suits are going to be tried jointly.  Order 1 rule 2[i] gives the court such a power, that is, “court may put plaintiff to an election or order the splitting of the suit.  Putting the plaintiff to an election means the plaintiff is made to chose who should remain in the suit or who should go.  This is absolute discretion by the court but to be exercised judiciously, only after the court is satisfied that the joinder of the suit would delay the proceedings or that the plaintiff is going to be embarrassed.

2.          Main body

The question in hand involves who are parties to a suit; the principles of joinder of parties and Third-party procedure.  To attempt the question the following issues will assist to set the scope of the answer:

          (i)     Whether Juma and Adam can be parties to a suit to be filed by Asha

(ii)      Whether Juma and Adam can be jointly sued in a single suit

iii)    Whether the National Insurance Corporation, the insurer of the two motor vehicles can be brought into the same suit.

2.1     Parties to a suit 

For any civil litigation to exist there should be opposing parties, and there has to be a dispute, that is, subject matter in dispute.  There has to be also a cause of action and a claim for relief.

Where there are opposing parties, the one in whom the cause of action rests is called the ‘plaintiff’, and the one who against him/her the relief is sought or claimed is termed as the ‘defendant’.  Out of these two categories there are two types of parties in any civil litigation, namely ‘necessary parties’ and ‘proper parties’.

A necessary party to civil proceedings is that party in whose absence no effective order can be give.  He is a person, if plaintiff ; and if defendant, he is a party against who a relief is sought.  To establish whether a party is a necessary party the important question is whether the court may issue effective order in his absence or not.  This is because the purpose of civil litigation is to issue an effective order; to avoid a possibility of issuing an empty decree.  There is a formulation of the categorization found in Saha: “The Code of Civil Procedure” 1908 p. 263 that:

          “A necessary party is one without whom no order can be made

          Effectively and the proper party is one in whose absence an effective

          Order can be made but whose presence is necessary for a complete

          And final decision on the question involved in the proceedings.

          Against a necessary party there must be a right to some relief in respect

          Of the matters involved in the proceeding in question, it must not be

          Possible to pass an effective decree in the absence of such party.  The test

          For determining effectiveness of a decree is whether a decree can be

          Executed without the presence of the party in question as regards the

          Property sought to be decreed in favour of the plaintiff.”

Without dwelling much on the parties, in a summary, it can be said that, two principles can be stated in respect of the concept of parties to suit, that is to say:  All necessary and proper parties have to be before the court so as to facilitate the effectual  determination of the matter in dispute – meaning joinder of parties.  Furthermore, to avoid a multiplicity of suits all disputes or questions arising between such parties should, as far as possible, be determined in one action – joinder of causes.

The above principles being applied in the question in hand, and on determing the first issue, it can be said that, Juma and Adam, in their reply to Asha’s demand note disputed Asha’s claims, hence they are the opposing parties.   Asha on one side, that is, a plaintiff, and Juma and Adam on the other side, that is, defendants.  Between these parties there is a dispute, that is, liability to Asha’s injuries caused by the motor vehicle accident involving the two motor vehicles, one driven by Juma and the other driven by Adam.  There is a cause of action and Asha can claim damages for the injuries she sustained and compensation for loss of income.

In view of the above, it is my considered view that Juma and Adam are the proper parties (defendants) to be sued by Asha as they are persons whose presence is necessary for a complete and final decision on the question involved in the claims.  Asha is a necessary party on the side of plaintiff for she is the one in who the cause of action rests.  It is not mentioned in the given  material facts whether Juma and Adam  are also the owners of the motor vehicles.  Had it been that they are mere drivers, and that there are different people claimed to be owners of the motor vehicles or employers of the two, the following advice could have been added, that is, those owners should also be made parties, that is, they are the necessary parties to the suit because in their absence no effective order can be given.  Otherwise, if Juma and Adam are both drivers and owners of their vehicles, then each of them will be both proper and necessary party because an effective judgment can be obtained against each of them and presence of each is necessary for a complete and final decision on the question involved in the proceedings.  The first issue is therefore answered in the affirmative.

2.2        Joinder of Defendants   

As said above, a person may sue on his own behalf, but subject to certain conditions, several persons may sue jointly.  Similarly, a person may be sued alone, but again subject to certain conditions, several persons may be sued jointly in a single suit.  I will now proceed to examine the circumstances in which there can be proper joinder of defendants,

All persons may be joined as defendants against who, a right to relief, in respect of or arising out of, the same act or transaction or series of acts or transactions, is alleged to exist, whether jointly, severally or in the alternative; where if separate suits were brought against such persons, any common question of law or fact would arise.[ii]  It is not necessary for the joinder of defendants that every defendant should be interested as to all the reliefs claimed in a suit against him, or as to every cause of action included in any proceeding against him.[iii]  In other words, it is immaterial that the causes of action against the defendants are different.  A plaintiff is entitled under this rule to join several defendants in respect of several and distinct causes of action.  Where the court is of the opinion that the joinder would embarrass a defendant or put him to unnecessary expense, it will order separate trials

As a general rule, then, where claims against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to make it desirable that the whole of the matter be disposed of at the same time, a court will allow the joinder of the defendants subject to its discretion as to how the action should be tried.[iv]  It was held in an English case of Payne  v.  British Time Recorder[v]in which Scrutton, L.J., stated, at page 393:

          …Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance inproportion to the rest of the action to render it desirable that the whole of the

          matters should be disposed of at the same time, the court will allow the joinder

          of plaintiffs or defendants subject to its discretion as to how the action should

          be tried.

The second issue is whether Juma and Adam could be jointly sued in single suit.   As stated above, a plaintiff is not compelled to sue any defendant.  It is the plaintiff who chooses who to sue.  However, the law allows him/her to join defendants under circumstances as given under Order 1 rule3.[vi]    Defendants may be joined if the right of relief against them arises out of the same act or transaction, or a series of acts or transactions.  If separate suits were brought against defendants common question of facts or law may arise, that is, whether you are going to need the same evidence against all the defendants.

2.2.1   Interpretation of ‘common question of law’

The position of Order l rule 3 (supra) is construed liberally.  It implies that the question of law is common but the liability of defendant may be separate or general.  In the case of Harwood v. Statesman Publishing Coy Ltd,[vii] the judge stated:

            “You must look at the language of the rules and construe them

             liberally and where there are common question of law or fact

involved in different causes of action, you should include all

parties in one action subject to the discretion of the court if such

inclusion is embarrassing, to strike out one or more of the parties.

It is impossible to lay down any rule as to how the discretion of the

court ought to be exercised.  Broadly speaking where claims by or

against different parties involve common questions of law or fact

bearing sufficient importance in proportion to the rest of the

action to render it desirable that the whole of the matters should be

disposed of at the same time, the court will allow the joinder of

plaintiff or defendants subject to the courts discretion as to how

the action should be tried.”

How to give a liberal construction of rule, the above case gives a clue, that is, common questions of fact or law to bear the same evidence.  But the court has the final say to order joinder or strike out.

The case of Abdullah Mohamed v. The official Receiver[viii] adopts Horwood’s position in theoretical basis.  On practical basis consideration should be the case of Stroud v. Lawson[ix], in which conditions were given on joinder of parties, in other words, these have to be satisfied: 

(i)      There must be joint interest in the relief (for plaintiffs) or against the reliefs (the defendants; and 

(ii)    To avoid a misjoinder of parties there should be same defendants in respect of joinder of plaintiffs and same plaintiffs in respect of defendants. 

Chitty, J. stated the principle as follows:

“It is necessary that both these conditions should be fulfilled, that

Is to say, the right to relief alleged to exist in each plaintiff should

be in respect of or arise out of the same transaction and also there

should be common question of law or fact in order that the case

will be within the rule.”

The case was dealing with joinder of plaintiffs but can be disposed to the joinder of defendants too.  It should be noted that the two conditions must exist jointly, that is, they are complementary not exclusive.  (Both of them must be there, neither can stand alone).  You look at nature of the cause of action or basis for the cause action, which vests in every one of them separately.  Then look whether you are going to need the same evidence.

In the case at hand, the basis of cause of action which vests in Juma and Adam is that both being drivers of two different motor vehicles were involved in a head-on collision which resulted to seriously injuring Asha; the injuries which caused Asha to suffer loss of earnings and further unlikely to return to work for at least 8 months.  This is a cause of action which vests in each one of them separately.  There is a common question of fact, the liability of the drivers involved in the head-on collision of the motor vehicles.  Basing on the facts of the case given, it is my considered view that there is a joint interest against the relief  (the defendants, that is Juma and Adam)  The two of them separately denied liability of causing injuries to Asha, hence, under Order 1 rule 3 they can jointly be sued. 

In the case of Peter & Co. Ltd.  v. Mangalji & Others[x] the  court was interpreting Order 1 rule 3 (supra) in pari material with Order 1 rule 5 of Uganda Civil Procedure law.  Sherridan, J. pointed out points to be satisfied before joinder of defendants as follows: 

(i)     The right to relief in respect of or arising out of the same act or transaction or a series of acts or transactions must be alleged to exist whether jointly or severally, and  

(ii)         The suit must be one where if separate suits were brought against such persons any common question of law or fact will arise.


It is my view that Asha’s right to relief is in respect of or arising out of the same act, that is, causing injuries and damages through careless driving by the two drivers, which resulted to head on collision.  The suit is one where if separate suits are filed against each of them common fact and law will arise, that is, who is liable.

There is another position which also may allow Asha to sue the two jointly even if she is not sure of who is her correct defendant.  This is found under Order 1 rule 7.[xi]  According to this provision of law she may join all people she may think are liable to her and leave it to court to decide who to sue.  This has an advantage that the people who will appear before the court they would show why they should not be joined, hence Asha would not fail to realize his relief.  However there is a disadvantage in respect of expenses; the one who will be struck out will make her suffer costs payable to him.  Also the impression that she will show to court may create a feeling to the court that she is not master of her own law. 

In the result therefore, the second issue is also answered in the affirmative.

2.3       Third Party Procedure

In this paragraph, I will endeavour to discuss though in brief the principles of third party procedure so as to determine the third issue as to whether the National Insurance Corporation, the insurer of the two motor vehicles can be brought into the same suit.

Third Party Procedure  is available to the defendants only and it has to fall within the four corners of Order 1 rule 14.[xii]  The party brought in by defendant is not an ordinary party to the suit and the plaintiff has no quarrel with him; not original party.  It is a procedure which facilitate the conduct of two suits simultaneously (at the same time), that is to say, original suit brought by plaintiff and the second suit brought by defendant against third party.  It was based on Equity but the Judicature of 1881 made the Common Law also to apply it.  Its rationale are as follows, that is to say, third party is based on the political position that, as far as possible all matters relating to the subject matter of the suit should be determined in one suit.  It is also based on public policy that as far as possible multiplicity should be avoided.  By enacting third party procedure into civil procedure facilitate the bringing of a third party who is not sued by plaintiff.  Third party procedure therefore, has the effect of saving the time of court and time of parties by allowing the claim of defendant to be entertained simultaneously.  All the facts surrounding the case are put into court at the same time.  There will be no possibility of conflicting decision.

The above rationale of the third-party procedure is stipulated in the case of Standard Securities Ltd.  v.  Hubbard & Another Tele Insurance Ltd Third Party.[xiii]  Penny Cuick, J. in this case stated the objects of third-party procedure that:

          “The objects of the rule are to prevent multiplicity of actions, to enable the court

           to settle disputes between all parties to them in one action and to prevent the

same question from being tried twice with possibly different results.”

Let us take one example.  A sues B for damages to his house resulting from a motor accident between two vehicles driven by B and C.  In such a case, B may apply for a third-party notice against D, his insurance company, because B’s claim against D is connected with the subject matter of the suit between B and A and relates substantially to the relief claimed by A from B.

In order that a third party may lawfully be joined in a suit the subject matter between the third party and the defendant must be the same as the subject matter between the plaintiff and the defendant and the original cause of action must be the same.  This was so held in the case of Yafesi Walusimbi  v.  A-G.[xiv]  This case was elaborated in the case of Edward Kironde Kagura v.  Casta Pereira,[xv] also the case of Overseas Touring (Road Services) Ltd.  v.  Arica Produce Agency.[xvi]  According to the two cases, third party procedure is limited to claims for contribution or indemnity only.  In the case of Kironde (supra) the right to indemnity arises mainly out of a contract but it is not confined to contracts.  That is a general situation.  But in East Africa there has been some modification.  The courts have accepted the position that a joint tort feasor proceedings can be introduced in cases of right to indemnity or contribution.  This is by virtue of the case of Champion Motor Spares Ltd v.  Barclays Bank D.C.O and Another.[xvii]

In England we obtained a summary on the above situation in Birmingham & District Land Co.  v.  London and North Western Rly Co.[xviii]  This case was interpreting the provision of Order l6 rule 48 of the Supreme Court Practice which is similar to our Order 1 rule 14 (supra).  According to  that case, “in order to bring a case within Order 16 rule 48 (equivalent to Order 1 rule 14 (supra)) it is not enough that if the plaintiff succeeds the defendant will have a claim against the third party but defendant must have against the third party a direct right of indemnity as such which right must generally if not always arise from a contract express or implied.”

In the case of Parry v. Carson[xix] we can find a general rule that, so that a third-party action can be competent the defendant must show that in case he is found liable to the plaintiff then he has a right to recover against a third party.  He shows that in his affidavit and in his pleadings.  Such a possibility exists only when the subject matter is the same, that is, it is possible when there is a direct connection.  In this case the judge said,

          “In order to bring himself within the ambit of Order 1 rule 14 the

          applicant must show upon the face of his 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 being successful.”

This conclude the discussion on point of law concerning third party.  In practice an application to file a Third Party Notice is made ex parte, that is, in the absence of the plaintiff and it must be supported by an affidavit.  Order 1 rule 14 (2) (supra) does not indicate the method of application; hence, we fall back to Order XL111 rule 2 (supra), that the application is by way of a Chamber Summons supported by affidavit.

In the above circumstances and basing on the principles of law therein, I advise the would-be defendants, that is, Juma and Adam, that upon being sued by Asha and after filing their defence, they should also file an application by way of Chamber Summons under Order 1 rule 14 (2) (supra) and any other enabling law, for leave to produce a third-party notice.  Such an application must be supported by an affidavit which should state, inter alia, the nature of plaintiff’s case, stage to which the proceedings have reached, nature of defendants’ claim against the third party.  It should also state the relationship between the defendants and the third party- all those in terms of Order 1 rule 14 (supra).  This procedure under Order 1 rule 14 (supra) is intended to save time of the court and to minimize costs.  In the final result then the third issue will therefore, have been answered in the affirmative.

3. Conclusion

In the above discussion it was attempted to show the basis of an advice to Asha on whom to sue and the principles that will apply.  From the discussion therefore, Asha is advised to sue Juma and Adam for damages and loss of earnings caused by injuries she sustained from the accident caused by the two.  The advice has been extended to the proposed two defendants that, because the two vehicles were insured by the National Insurance Corporation Ltd., they should seek to bring into the suit a third party on grounds of indemnity from the third party in the event the defendants are held liable.

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