CHEZ MARIE LOU RESTAURANT v. EMMANUEL BOSSMAN and ANOTHERS

ACQUAYE, JA:-

The plaintiff/appellant issued a writ of summons accompanied by a statement of claim against the first two defendants claiming an order for recovery of possession of House No. F 871 Oxford Street, Osu, Accra, damages for trespass and perpetual injunction.

The plaintiff/appellant averred that she took a lease of the said house for 10 years in 1977 and subsequently extended the lease for five years and continued to be tenant in possession.

In their defence the defendants instance of Guaranty Trust Bank who leased the house from the true and legal owner and his trustees.

The plaintiff/appellant then applied and G. T. Bank was joined to the suit as a third defendant.

In her statement of defence the third defendant stated that she took a lease of the house from its owner Padriag Orji Edward Mard, a minor who acted by his next friends and trustees Randi Safi and Mirwen Safi and that the true owner had a land certificate No. GA 21127.

Subsequently Randi Safi and Mirwen Safi also applied for leave to defend the action on behalf of the minor and were joined as 4th and 5th defendants after which they filed their statements of defence.

The plaintiff/appellant then filed a reply to the 4th and 5th defendant's statements of defence and proceeded to file summons for directions.

After the processes above recounted the plaintiff/appellant filed a motion on notice seeking an order to strike out the defence of the 4th and 5th defendants.

Counsel for the plaintiff/appellant argued that under Order 5 rule 2(2) of C.I. 47 "Except where a friend or guardian ad litem has been appointed by the court, the name of a person shall not be used, and a person shall not be entitled to act in any cause or matter as next friend or guardian of a person with disability unless the lawyer of the person with disability has filed in the registry

(a) a written consent of the person proposing to be next friend or guardian ad litem to act in that capacity and

(b) a certificate made by the lawyer for the person with disability certifying that the lawyer knows or believes the person to whom the certificate relates is a person with disability and that the person named in the certificate as next friend or guardian is a proper person to act as such and has no interest in the cause or matter adverse to that of the person with disability". Counsel submitted that on this basis the 4th and 5th defendants have not been properly appointed as next friends by the infant, and that being