Legal Nuggets (Series 99): ISSUE -The Effect of Third Party Proceedings.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI'


(1988) LPELR-3384(SC)

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THIRD PARTY PROCEEDINGS: The effect of third party proceeding


"3rd party proceedings have a life of their own, quite independent of the main action, so that even where the main action has been settled 3rd party proceeding already begun can still proceed.

      See on this Supreme Court Practice 1976, paragraph 16/1/1, at the 3rd paragraph at page 225. See also: Scott v West Yorkshire Road Car Company Limited (1971) 3 All E.R. 534, C.A. In that case, Denning, M.R., with whom Salmon and Megaw L.JJ. concurred said at p.537: ''It was said that in consequence of the settlement, the original action is dead, and being dead, there is nothing on which the third party proceedings can bite.

        I cannot agree with this contention. It is answered by reference to S.39(1 )(b) and (2) of the Supreme Court of Judicature (Consolidation) Act 1925 and R.S.C. Order 16, r. 4(3)(b). As I read these provisions, once the action itself is settled, the third party proceedings can proceed in just the self same way as if they had been started by a separate action.'' Order 13 rule 22 of the High Court of Lagos State (Civil Procedure) Rules 1972, is, in substance, the same with the English rules as at 1929.

    Conversely, 3rd party proceedings may be dismissed for want of prosecution even though the main action is still proceeding. See Slade & Kempton (Jewelry) Ltd. v Kayman Ltd. (1969) 3 All E.R. 786. The true effect of the service of a 3rd party notice is not that the 3rd party becomes a Defendant in the main action but it makes the 3rd party a Defendant vis-a-vis the party serving him. See Okafor v African Continental Bank Ltd. and Widi (1975) 5 S.C. 89 at p.100; Eden v Weardale Co. (1887) 35 Ch.D.287.

       As it is so, once the 3rd party notice has been duly commenced, the fact that the main claim has been settled will not terminate the 3rd party notice."PER NNAEMEKA-AGU, J.S.C.(Pp.15-16, paras.B-C)

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