OKOJI v FLORENCE ONYIBE (INFANT) and Another (No. JD/57/1961 ) [1961] NGHC 17 (21 August 1961)

**J.** **E.** **OKOJI** **(PLAINTIFF/APPLICANT)** **_v._** **(1)** **FLORENCE** **ONYIBE,** **AN** **INFANT,** **AND** **(2)** **S****.C****.** **ON****Y****IB****E** **(DE****F****END****A****NTS****/****RES****P****OND****E****NTS****)** **(1****9****62****)** **N.****N****.L.****R****.** **1****2** **(1961)** **All** **N.L.R.** **574** **Div****i****si****o****n:** High Court, North **D****at****e** **o****f** **Judgment:** 21st August, 1961 **C****as****e** **Num****b****er:** No. JD/57/1961 **Before:** Smith, S.P. J. Application on Notice by plaintiff for appointment of Guardian ad _litem._ The plaintiff brought a civil action against the defendants. Florence Onyibe, the first defendant, was an infant. She was served with the writ of summons and she purported to appear by Counsel, although no steps had been taken by her solicitor to have a Guardian _ad_ _litem_ appointed. She was not in default. The plaintiff then brought this application to the court for an order appointing a guardian _ad_ _litem_ for the infant defendant for the purposes of the action. He purported to bring the application under Order VI, rule 1 of the Supreme Court (Civil Procedure) Rules. Notice of Motion was served on both defendants. Counsel for the infant defendant appeared and contested the plaintiff's application. **_HELD_**** _:_** (1) The infant defendant should have appeared by a guardian _ad_ _litem_ _._ The procedure for such appearance is that set out in Order 16, rule 19 of the English Rules. (2) The plaintiff's right to move the court for an Order appointing a guardian _ad_ _litem_ for an infant defendant, under the _Supreme_ _Court_ _(Civil_ _Procedure)_ _Rules,_ _Order_ _VI,_ _rule_ _1,_ does not arise until the infant defendant is in default: Therefore, this application was premature _N_ _o_ _O_ _r_ _de_ _r_ _._ _A_ _c_ _tio_ _n_ _ad_ _j_ _ou_ _r_ _ne_ _d_ _t_ _o_ _e_ _n_ _ab_ _l_ _e_ _in_ _f_ _an_ _t_ _de_ _f_ _en_ _d_ _an_ _t_ _t_ _o_ _c_ _o_ _mp_ _l_ _y_ _wi_ _t_ _h_ _O_ _r_ _de_ _r_ _16_ _,_ _r_ _ul_ _e_ _1_ _9_. _O_ _r_ _d_ _er_ _s_ _a_ _n_ _d_ _r_ _u_ _l_ _e_ _s_ _re_ _f_ _er_ _r_ _e_ _d_ _t_ _o_ _:__-_ _S_ _uprem_ _e_ _Cour_ _t_ _(Civi_ _l_ _P_ _r_ _ocedure_ _)_ _Rule_ _s_ _,_ _Orde_ _r_ _VI_ _,_ _rul_ _e_ _1_ _._ _Rule_ _s_ _o_ _f_ _th_ _e_ _S_ _uprem_ _e_ _C_ _o_ _ur_ _t_ _o_ _f_ _Jud_ _i_ _catur_ _e_ _(__Englan_ _d_ _)__,_ _Orde_ _r_ _1_ _6_ _,_ _rul_ _e_ _19_ _._ APPLICATION ON NOTICE by plaintiff for appointment of guardian _ad_ _l_ _item_. _Grant_ for the Plaintiff/Applicant. _Ezekwe_ for the infant Defendant/Respondent. Smith, S.P.J:-In this motion on notice to each defendant, the plaintiff prays for an order appointing Amelia Sam Onyibe as guardian _ad_ _litem_ of the first defendant, Florence Onyibe. The plaintiff is suing both Florence Onyibe and S.C. Onyibe, the second defendant, for damages for breach of promise of marriage. It appears from the Affidavits of the plaintiff dated 11th July, 1961, and the Affidavit of the second defendant dated 8th July, 1961, that Florence Onyibe is an infant: she was born on 16th December, 1945. The writ of summons has been served on the first defendant who has purported to appear by Counsel although her learned Counsel has not taken any steps to nominate a person to be her guardian _ad_ _litem_ by whom she may defend the suit. Order VI, rule i of our Civil Procedure Rules provides that the court may on the application of the plaintiff or of its own motion, by order, appoint a guardian _ad_ _litem:-_ Where on default made by a defendant in answering or otherwise defending the suit, after service of the writ, it appears to the court that he is an infant.." It is to be observed that the power given to the court, either on the application of the plaintiff or of its own motion, does not arise until the infant defendant has defaulted. The reason for this is to give the infant defendant the opportunity to appear by a guardian _ad_ _litem_ to answer the suit. Our Rules do not lay down how that should be done. We therefore have to resort, by virtue of section 35 of our _High_ _Court_ _Law_ , 1955, to the practice and procedure of the High Court of Justice in England. The English rule which is applicable is Order 16, rule 19, which reads:- 19\. Every infant served with a petition or notice of motion, or summons in a matter, shall appear on the hearing thereof by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardian shall be necessary, but the solicitor by whom he appears shall previously make and file an Affidavit as in the last Rule mentioned. Thus if an infant defendant is going to defend a suit, he or she must appear by a guardian _ad_ _litem_. The practice is for the solicitor of the infant defendant to make an Affidavit in which he names the person to be guardian _ad_ _litem_ ; deposes to the fitness of the person to act as guardian; and to the fact that the guardian has no interest adverse to that of the infant. The Affidavit need only go to information and belief as to the fitness of the person to be guardian but it must be positive that the guardian has no interest adverse to the infant: see Form No. 8 Appendix A, Part II in the Annual Practice, 1961, at 2229. The prior consent in writing of the person to be guardian is required; and the Affidavit should be filed together with the written consent of the guardian prior to the hearing of any proceedings in the suit. From what learned Counsel for the first defendant has said in the proceedings to date it appears that the first defendant wishes to defend this suit. I am therefore going to leave the plaintiff's motion paper on the file and adjourn this suit to give learned Cou _nse_ l for the first defendant the opportunity to put matters in order by complying with Order 16, rule 16. _N_ _o_ _orde_ _r_ _o_ _n_ _a_ _pplica_ _t_ _ion_ _:_ _Su_ _i_ _t_ _a_ _djour_ _n_ _ed_ _._