Commissioner for Transport v Boero aand Co. (E.A.) Ltd (Civil Suit No. 1509 of 1953) [1954] EACA 9 (1 January 1954)

### ORIGINAL CIVIL

#### Before CRAM, Ag. J.

## THE COMMISSIONER FOR TRANSPORT, Appellant

ν.

# F. BOERO & CO. (E. A.) LTD., Respondent

#### Civil Suit No. 1509 of 1953

Civil Procedure and Practice-Order I, rule 18, Summons for Third Party directions-Application by defendant to join third party as co-defendant-Whether competent—Effect of section $1(2)$ —Civil Procedure Ordinance— Whether recourse may be had to Order XVI A Rules of the Supreme Court, England.

The defendant obtained leave from the Court to issue a third-party notice in terms of Order I, rule 14. The third party entered appearance. The defendant then applied by summons in chambers under the provisions of Order I, rule 18, for directions and also prayed that the third party be joined as a co-defendant in the suit. The plaintiff objected to the joinder.

Held (20-1-54).-(1) Order I, rule 18 provides procedure for the trial of a question, as between the third party and a defendant of the liability of the third party to make contribution or indemnity to the defendant and does not enable a defendant to apply for the third party to be joined as a co-defendant in the suit.

(2) Third party procedure laid down by Order I, rules 14 to 18 is to be followed in accordance with section 1 (2) Civil Procedure Ordinance and recourse cannot be had to the wider provisions of Order XVI A of the Rules of the Supreme Court, England.

Cases referred to: Coles v. Civil Service Supply Assoc., 28 Ch. D. 529; Eden v. Weardale, 34 Ch. D. 223.

Hooton, Assistant Legal Secretary, for appellant.

Mrs. Kean for respondent.

RULING.—This is a summons for third party directions issued in terms of Order I, rule 18, the third party having entered appearance following upon a notice under rule 14. The summons prays that the third party be joined as codefendant and that the question of liability of the third party to indemnify the defendant be tried at the trial. The plaintiff and the defendant were both represented; but there was no appearance for the third party, who, unless making special application, is under no need to attend. It seems that the third party attempted to communicate with the Court through the Registrar, but I am not prepared to countenance letters to affect any issue. The plaintiff stated that it entertained no objection to the application except to the third party being joined as a co-defendant. In so doing I consider it had right. Reference was made to the Annual Practice under Order XVI A but, as I have frequently had reason to point out, this Order has been substantially amended by the Judicature Act, 1925, and no such modernization has taken effect in our Order I. In consequence, it is essential to construe Order I as it stands by reason of section $1(2)$ of the Civil Procedure Ordinance without possibly misleading deviations occasioned by a reliance upon English procedure. Rule 14 refers specifically to and seems to limit the procedure to claims to contribution or indemnity and this too is the

whole tenor of rules 15, 16, 17 and 18. Rule 18 quite plainly confines the procedure to "the liability of the third party to make the contribution or indemnity claimed" and to "order the question of such liability, as between the third party and the defendant ... to be tried in such manner, at or after the trial of the suit...." There is not a word enabling the defendant to apply to have a third party made a co-defendant. Rule 15 permits the third party, if desiring to dispute the plaintiff's claim, to enter an appearance and in England in such an instance, provided the third party showed a prima facie case for a defence against the plaintiff's claim, then and then only and on an application by the third party, would the Court have a discretion to make the third party a defendant or a co-defendant. (See Coles v. Civil Service Supply Association, 26 Ch. D. 529). Should the plaintiff wish to join a third party it may apply to do so as codefendant under the earlier rules of our Order I. So far, the third party in this suit has not evinced any desire to oppose the claim of the plaintiff so that an order such as was made in Eden v. Weardale, 34 Ch. D. 223, is inappropriate, even if it is accepted that such an order can be made under our Civil Procedure law, a point which I am not called upon to decide.

Reverting to Order I, rule 18. I am satisfied that there is prima facie a proper question to be tried as to the liability of the third party to make the indemnity claimed. In view of the fact that a telegram is alleged between the plaintiff and the third party, which is not denied, I consider it proper to order that the question of indemnity be tried at the trial. I trust I have made it plain, for reasons given, that I have selected one of the *alternative* methods provided by rule 18 and ordered that the question of liability be tried at the trial and not after such trial.

ORDER.-It is ordered that the defendant deliver a statement of his claim to the said third party within seven days from this date by registered post, who shall plead thereto within 21 days hereof. And that the said third party be at liberty to appear at the trial of this suit and take such part as the Judge shall direct and be bound by the result of the trial. And that the question of liability of the said third party to indemnify the defendant be tried at the trial of this suit. The costs of this application are reserved for decision at the trial.