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February 22, 1983
HIGH COURT
GHANA
CORAM
JUDGMENT OF OSEI-HWERE J.
By two separate actions the next friend herein, first in his capacity as principal tenant and subsequently in his capacity as caretaker to Kingsley Anyimadu Acheampong, sued the defendants to set aside the sale of the house which is the subject-matter of this action. Both suits were dismissed on the ground that he had no locus standi. He has come back to court in his changed capacity as the plaintiff's next friend and he has pleaded the unsoundness of the plaintiff's mind as his authority to act.
The defendants invite the court by this motion to dismiss the action on the principal ground that the plaintiff, Norris Kingsley Hansen Addy, is not fit and qualified to act as next friend in the event of [p.1092] Acheampong suffering from mental disability or infirmity. The defendants have disclosed in their affidavit a catalogue of certain acts of the next friend which they hold as adverse to the interest of Acheampong to disqualify him from so acting. They also complain that it was after the next friend had commenced the action that he filed his statement authorising his solicitors to commence and prosecute this action against the defendants. It was argued on behalf of the defendants that failure to sign and file the written authority to the solicitor before the issue of the writ makes the whole action incompetent.
Order 16, r. 19 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), which is the bedrock upon which the defendants have staked their objection to the next friend's right to sue because he had not signed the written authority to his solicitor, and he had not filed same before he used his name to sue as such, no longer forms part of our rules. Even if it did apply, the defendants would not have been permitted to complain, since under Order 70, r. 2 they had taken a fresh step in the action by filing their defence and had subsequently agreed to the summons for directions: see Quaiko v. Mobil Oil (Ghana) Ltd. [1977] 1 G.L.R. 461.
In so far as commencing an action by a person under disability is concerned, what is required under our new Order 15, r. 12 (1) and (4) contained in the High Court (Civil Procedure) (Amendment) (No.2) Rules, 1977 (LI 1129), is that he must sue by his next friend who must act by a lawyer. If a person under disability, accordingly, sues by his next friend, it is not competent for a defendant so sued to plead that the plaintiff is not in fact suffering from mental disorder. The first ground
AI Generated Summary
This High Court judgment by Osei-Hwere J addresses a procedural challenge in litigation concerning a house previously sold by the defendants. After two earlier suits by Norris Kingsley Hansen Addy (as caretaker and principal tenant) were dismissed for lack of locus standi, Addy returned as next friend of Kingsley Anyimadu Acheampong, alleged to be of unsound mind, to contest the sale. The defendants moved to dismiss, arguing Addys unfitness, adverse interests, and lack of timely written authority to his solicitor. The court held that Order 16, r. 19 of the 1954 Rules no longer applied and that, having taken fresh steps under Order 70, r. 2, the defendants could not rely on that objection. Under Order 15, r. 12 (1) and (4), persons under disability must sue by a next friend acting by a lawyer, and defendants cannot deny the disability. Nevertheless, the court found Addy a mere volunteer with adverse interests and inadequate family authorization, and struck out the action, awarding a2600 costs.