FIRST GHANA BUILDING SOCIETY vs. ADDY [1983]DLHC2128

Date	1983-02-22
Suit No.
Citation No.	[1983]DLHC2128

OSEI-HWERE J.

K. W. MENSAH FOR THE DEFENDANTS-APPLICANTS.

WILLIE AMARFIO FOR THE PLAINTIFF-RESPONDENTS

[1983]DLHC2128
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													<main id="main" class="content" style="min-height: 60rem" >FIRST GHANA BUILDING SOCIETY <o:p></o:p>vs. <o:p></o:p>ADDY <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1982-83] GLR 1089<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
22 FEBRUARY
1983<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

K. W. MENSAH FOR THE DEFENDANTS-APPLICANTS. <o:p></o:p>

WILLIE AMARFIO FOR THE PLAINTIFF-RESPONDENTS<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 stated in the defendants’ motion for dismissal is, therefore,
no good ground. The defendants are, however, entitled to challenge the
authority of the next friend to sue by applying to the court in a summary way
for the dismissal of the action, as in cases in which the authority of the
plaintiff’s solicitor to bring the action is challenged: see Richmond v. Branson
&amp; Son [1914] 1 Ch. 968.<o:p></o:p><o:p>&nbsp;</o:p>The only
outstanding issue to determine is whether the respondent is a fit person to act
as a next friend. A person within the jurisdiction not being under a personal
incapacity to sue, and not being an accounting party, and not having an
interest adverse to the person under disability, and not connected with the
defendants may be a next friend: see Lewis v. Nobbs [1878] 8 Ch.D. 591. The
court actually expects a next friend to be a substantial person; and, as in the
case of a guardian ad litem, it is desirable that he should be a relation,
connected to or friend of the family and not a mere volunteer: see Nalder v.
Hawkins (1833) 2 My. &amp; K. 243 and Foster v. Cautley (1853) 10 Hare App. 24.
It seems quite patent from the conduct of the next friend that the two futile
law suits he unleashed, as a caretaker and also as a principal tenant, were
meant to protect his own interest, i.e. his continued stay in the house. As he
had brought the defendants to court on two previous occasions and he had
failed, it would, in my view, be quite vexatious to allow him to espouse,
without some express permission from an authoritative source, somebody’s cause
as his own in the guise of a next friend.<o:p></o:p><o:p>&nbsp;</o:p><</main>