MACHUNDA LEAVE FOR THIRD PARTY NOTICE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SHINYANGA

AT SHINYANGA MISC. CIVIL APPLICATION REF. NO. 202407301000019443

MACHUNDA AUCTIONEERS AND GENERAL SUPPLY CO. LTD ………….………………..…. APPLICANT

VERSUS DR. LUIS B. SHIJA ……………………………………..… RESPONDENT AND KELLU KAMO LUCAS ………..……………. INTENDED THIRD PARTY

RULING 18th & 25th October, 2024. S.M. KULITA, J. This is an application for leave to file a third-party notice to the proceedings of Civil Case No. 16661 of 2024 (REF. NO. 202407121000016661) preferred against the applicant herein. It has been filed by the Applicant by way of chamber summons, in terms of the provisions of Order I, Rule 14(1)(a)(b)(c)(d) of the Civil Procedure Code [Cap. 33 RE 2019]. It is supported by an affidavit sworn by Eliackim 1 Nzumbe Machunda, Managing Director of the Applicant, on the 1st day of October, 2024. In a nut shell, as it can be gathered from the applicant’s affidavit, the respondent herein has instituted the said Civil Case No. 16661 of 2024 (REF. NO. 202407121000016661) against him. In it, the respondent claims for restraint to evict him from a house located on Plots No. 247 and 249 Block “Q” Nyasubi street, Isaka Road in Kahama Municipality, compensation amounting Tshs. 150,000,000/= and costs of the case. In his affidavit, the applicant shows that, these claims have been initiated to him after he had served the respondent with a 14 days’ notice to vacate from the said premises. To him, the act of serving the respondent with the said notice was done following instructions that he was given by Mr. Kellu Kamo Lucas, the intended third party, who introduced himself to her as the owner of the said premises. In conclusion, the applicant shows

that, she seeks for leave to apply for a third-party notice, so that Mr. Kellu Kamo Lucas, can be heard on his status as to the ownership of the said premises, his instructions to the applicant to evict the respondent and compensation in case the applicant fails in the civil case that has been instituted by the respondent against her. 2 On 18th October, 2024 the application for leave came for ex-parte hearing. On that date, Mr. Eliackim Nzumbe Machunda, Principal Officer, appeared for the applicant. In support of this application Mr. Machunda firstly prayed for his affidavit in support of the application to be adopted and form part of his submissions. In addition to what has been stated in the affidavit, Mr. Machunda stated that, it is Mr. Kellu Kamo Lucas who instructed him to conduct execution on the disputed premises for the reason that he is the owner of the said premises and that the respondent is a tenant who defaults in rent payments. To verify his assertion Mr. Machunda, annexed an agreement dated 29th June, 2026, entered between him and Mr. Kellu Kamo Lucas to that effect. In order to prove that the applicant is empowered to conduct executions, Mr. Machunda stated that, the applicant is duly registered as auctioneer with certificate No. 0000003390. On it, he annexed the list of Registered Auctioneers as at 2nd October, 2024 which comprises the Applicant’s name as

well. He concluded his submission by praying for the application to be granted. 3 It is worth to note at this very beginning of the determination that, this application has been heard ex-parte following requirements of Order 1, Rule 14(2) of the Civil Procedure Code which states; “An application under sub-rule (1) shall, unless the court otherwise directs, be made ex parte and be supported by an affidavit……………..” However, leave to present a third-party notice, is only be granted if and only if, the applicant satisfies the court that, there is a contribution of that third party in the claims introduced against him/her by another person (plaintiff). Therefore, an application for leave to present a third- party notice seeks to indemnify the Applicant in case that other person (plaintiff) wins his case. Rule 14(1) provides; “Where in any suit a defendant claims against any person not a party to the suit (hereinafter referred to as "the third party")- (a) any contribution or indemnity; or (b) any 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, the defendant may apply to the court for leave to present to the court a third-party notice” 4 From the excerpt shown above, in connection with Mr. Eliackim Machunda’s submissions that, the applicant is a duly registered auctioneer company,

and that she was with a duly contract with the intended third party (Kellu Kamo Lucas) to execute eviction against the respondent from the disputed premises, then, so long as the respondent has instituted a suit against the applicant due to the disturbances that he has got from the execution conducted by applicant, if at all, the applicant did not send himself to initiate such execution against the respondent. I thus find it that, the applicant has managed to satisfy the requirements of the law made under the cited Order 1, Rule 14 of the Civil Procedure Code quoted above. For that matter, this application is hereby granted. Consequently, it is hereby ordered that the applicant should file the third party notice against Mr. Kellu Kamo Lucas within seven days from today as per Order 1, Rule 14(4) of the Civil Procedure Code. No order as to costs. S.M. Kulita

JUDGE 25/10/2024 5 DATED at SHINYANGA this 25th day of October, 2024. S.M. Kulita

JUDGE 25/10/2024 6