DEBORA BOAFO v. COMFORT ODURO & ANOR

Irene Charity Larbi (Mrs) J.A

(1) This is an appeal from the High Court, Sekondi dated 27th May, 2014.

(2) This is a running down case with the victim being a seven (7) year’s old child at the time of the incident and still a person with disability within the meaning of the provision under Order 5 Rule 1(1) of the High Court Civil Procedure Rules, 2004 (C.I.47) at the time this action was initiated.

(3) Per Order 5 Rule 2(2) of C.I.47, a guardian ad litem must be appointed and certified to act on behalf of the victim under the age of eighteen (18) years for purposes of judicial proceedings.

It Is Provided Under Order 5 as follows:-

Rule 1(1):

“For the purposes of judicial proceedings under these Rules a person with disability means a person under the age of Eighteen (18) years or a person who is certified by a medical officer to be incapable of managing and administering his or her property and affairs by reason of mental disorder or infirmity of mind;

Rule 1(3):

“Subject to these Rules, anything which in the ordinary conduct of any proceedings is required or authorized by these Rules to be done by a party to the proceedings shall, if the party is a person with disability, be done by his or her next friend or guardian ad litem”.

Rule 2(2):

“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 ad litem 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 ad litem is a proper person to act as such and has no interest in the case or matter adverse to that of the person with disability”.

Before commencing this action, there was a failure on the part of the Plaintiff/Appellant to file the Consent of Next Friend and the lawyer’s Certificate as required under Order 5 Rule 2(2). However, the Plaintiff/Appellant subsequently filed the above documents before the trial.

(4) On 17th May 2012, counsel for the Defendants raised the issue of having been served with the pre-requisite processes e