J. E. OKOJI (PLAINTIFF/APPLICANT)

                                                     v.

             (1) FLORENCE ONYIBE, AN INFANT, AND

        (2) S.C. ONYIBE (DEFENDANTS/RESPONDENTS)

               (1962) N.N.L.R. 12 (1961) All N.L.R. 574

Division: High Court, North

Date of Judgment: 21st August, 1961

Case Number: No. JD/57/1961

Before: Smith, S.P. J.

Application on Notice by plaintiff for appointment of Guardian ad litem.

The plaintiff brought a civil action against the defendants. Florence Onyibe, the first defendant, was an infant. She was served with the writ of summons and she purported to appear by Counsel, although no steps had been taken by her solicitor to have a Guardian ad litem appointed. She was not in default. The plaintiff then brought this application to the court for an order appointing a guardian ad litem for the infant defendant for the purposes of the action. He purported to bring the application under Order VI, rule 1 of the Supreme Court (Civil Procedure) Rules. Notice of Motion was served on both defendants. Counsel for the infant defendant appeared and contested the plaintiff's application.

HELD:

(1)     The infant defendant should have appeared by a guardian ad litem. The procedure for such appearance is that set out in Order 16, rule 19 of the English Rules.

(2)     The plaintiff's right to move the court for an Order appointing a guardian ad litem for an infant defendant, under the Supreme Court (Civil Procedure) Rules, Order VI, rule 1, does not arise until the infant defendant is in default: Therefore, this application was premature

No Order. Action adjourned to enable infant defendant to comply with Order 16, rule 19.

Orders and rules referred to:-

Supreme Court (Civil Procedure) Rules, Order VI, rule 1.

Rules of the Supreme Court of Judicature (England), Order 16, rule 19.

APPLICATION ON NOTICE by plaintiff for appointment of guardian ad litem.

Grant for the Plaintiff/Applicant.

Ezekwe for the infant Defendant/Respondent.

Smith, S.P.J:-In this motion on notice to each defendant, the plaintiff prays for an order appointing Amelia Sam Onyibe as guardian ad litem of the first defendant, Florence Onyibe.

The plaintiff is suing both Florence Onyibe and S.C. Onyibe, the second defendant, for damages for breach of promise of marriage. It appears from the Affidavits of the plaintiff dated 11th July, 1961, and the Affidavit of the second defendant dated 8th July, 1961, that Florence Onyibe is an infant: she was born on 16th December, 1945.

The writ of summons has been served on the first defendant who has purported to appear by Counsel although her learned Counsel has not taken any steps to nominate a person to be her guardian ad litem by whom she may defend the suit.

Order VI, rule i of our Civil Procedure Rules provides that the court may on the application of the plaintiff or of its own motion, by order, appoint a guardian ad litem:-

Where on default made by a defendant in answering or otherwise defending the suit, after service of the writ, it appears to the court that he is an infant.."

It is to be observed that the power given to the court, either on the application of the plaintiff or of its own motion, does not arise until the infant defendant has defaulted. The reason for this is to give the infant defendant the opportunity to appear by a guardian ad litem to answer the suit. Our Rules do not lay down how that should be done. We therefore have to resort, by virtue of section 35 of our High Court Law, 1955, to the practice and procedure of the High Court of Justice in England.

The English rule which is applicable is Order 16, rule 19, which reads:-

19.     Every infant served with a petition or notice of motion, or summons in a matter, shall appear on the hearing thereof by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardian shall be necessary, but the solicitor by whom he appears shall previously make and file an Affidavit as in the last Rule mentioned.

Thus if an infant defendant is going to defend a suit, he or she must appear by a guardian ad litem. The practice is for the solicitor of the infant defendant to make an Affidavit in which he names the person to be guardian ad litem; deposes to the fitness of the person to act as guardian; and to the fact that the guardian has no interest adverse to that of the infant. The Affidavit need only go to information and belief as to the fitness of the person to be guardian but it must be positive that the guardian has no interest adverse to the infant: see Form No. 8 Appendix A, Part II in the Annual Practice, 1961, at 2229. The prior consent in writing of the person to be guardian is required; and the Affidavit should be filed together with the written consent of the guardian prior to the hearing of any proceedings in the suit.