This is a suit for a declaration that the plaintiff, an infant, whose father is dead is the owner of a house at Teianshi in Labadi. In the statement of claim it is pleaded inter alia that the infant plaintiff "brings this action by his mother and next friend who was the wife of the deceased." In their statement of defence the defendants pleaded, inter alia, "that no written authority was filed at the registry before the name of the next friend was used in the action and that the action is not properly before the court." On 21 March 1977, the solicitor for the plaintiff took out summons for directions asking for directions that the case proceed to trial on the issues as to the ownership of the house. The summons came before me on 30 March 1977 but counsel for the defendants did not file any additional issues, he rather raised a preliminary objection to the propriety of the summons for directions being taken. He submitted, no doubt in the light of his pleadings, that the case was not properly before this court.
The basis of his submission is that the plaintiff has not complied with the provisions of Order 16, r. 19 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). The rule reads:
"Before the name of any person shall be used in any action as next friend of any infant . . . such person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed in the Registry of the Court in which the cause or matter is proceeding."
In this case a search made by the solicitor for the defendants disclosed that no written authority of the alleged next friend had been filed in this case before the name of the next friend was used, and the question that this poses is, what is the consequence of this failure?
It seems to me that to understand the consequence it is necessary to appraise the status and powers of a next friend in proceedings commenced [p.164] by infant plaintiffs. As Lord Esher M. R. said in Rhodes v. Swithenbank (1889) 22 Q.B.D. 577 at p. 578. C.A. the next friend "undoubtedly has the conduct of the action in his hands." The nature of this was indicated by Bowen L.J. in the same case at p. 579 when he pointed out that the next friend of an infant plaintiff is "the officer of the Court to take all measures for the benefit of the infant in the litigation in which he appears as next friend." Rhodes v. Swithenbank decided that if the next friend does anything in the proceeding apart from just merely conducting it,
