(COURT OF APPEAL)*

ASI-IA MOHAMED ALI AND OTHERS V. HASSAN MAHMOUD

AC-RE V-561-1964

 Principles

·  Civil Procedure—Minors-—Guardian ad Iitem—Civil Justice Ordinance, ss. 114 and 115 (1)—When there is common interest of minors and adults in the suit, failure to appoint guardian ad litem does not render the suit null and void

If minors sue with other adults, when there is a common interest in the suit, failure to appoint guardian ad litem to represent the minors under Civil Justice Ordinance, ss. 114 and 115 (1), does not render the proceedings of the suit null and void, because the result of the suit will affect the common interest of both the minors and the adults.

Judgment

Advocates:           Mohamed Ahmed Orabi . . . . . . . . . . . . for applicant

Salah Mustafa . . . . . . . . . . . . . . . . . . . . .. for respondent

Osman El Tayeb J. May 4, 1967: —Plaintiff by his petition dated January is, 1960, instituted a civil suit praying for an order of specific performance of an agreement of assignment of half plot No. 55 Block 5 El Goz, Khartoum, against the heirs of the deceased leaseholder.

The said heirs and defendants are the widow and seven children, of whom two are adults and five are minors. The Sharia Court by Illam of Heirship dated October 17, 1959, appointed this widow as guardian for the minors. The suit proceeded in court on the issues of the agreement and evidence was heard on both sides until judgment was pronounced on the merits on November 25, 1963, in favour of plaintiff.

By petition filed on February 1, 1964, advocate Orabi applied for revision of the above decree on grounds to be submitted later. The grounds that he submitted on March i8, 1964, were that the learned District Judge Was wrong in that he did not direct his attention to the fact that some of the defendants were minors and that he did not appoint a guardian ad litem to represent them in accordance with Civil Justice Ordinance, ss. 114 and 115 (1). He concludes that they were unable to properly conduct their defence, and prays for setting aside the judgment and sending back the case for retrial.

The learned Province Judge dismissed the application summarily on two grounds: (a) that the minors have a guardian appointed by the Sharia Court, who represented them, and further all the defendants were represented by an advocate throughout the proceedings, and (b) the application was out of time.

The present application is made by the guardian herself on the same grounds adding that they were not informed of the date of the pronouncement of the judgment. On the last point, the record shows that the judgment was written on September 26, 1963, and that it was announced to advocate Salah Mustafa, defendants’ advocate on November 25, 1963, when he appeared inquiring. And on this same date the decree was signed and sent to the Register of Lands.

The sections referred to clearly show that the court has to appoint a guardian ad litem to represent a minor, it is a duty that has to be discharged by the court, whether a guardian of the property of the minor has been appointed by a competent court or not. But in the case where there is a guardian so appointed, the court shall appoint that same guardian to be guardian ad litem, unless it for sufficient reason otherwise directs.

There was no mention during the hearing of the case of the appoint me of a guardian ad litem. The issue is that whether in the circum stances of this case, that there was a guardian of property appointed by a competent court, and that the case was conducted by an advocate on behalf of all defendants including the minors who have the same interest in the result of the case. Should there be formal appointment of a guardian ad litem? The second issue is whether it would affect the validity of the proceedings and the judgment, has the first issue been answered in the affirmative?

It can be said to be the law that where a minor is sued alone or in his own single interest, and he is not represented in the proceedings by a guardian ad litem, any decree that is passed against him in such pro ceedings should be declared a nullity and unenforceable. Hence comes the duty of the court to appoint a guardian ad litem for a defendant minor for the main purpose of safeguarding the interests of the minor.

It was held by this court in Abdel Rahim Au El Hag v. El Fadil Mohamed Ahmed, AC-REV-306-1963, (1963) S.L.J.R. 88, that a guardian appointed by the Sharia Court does not automatically become the representative of a minor in litigation, and that failure to appoint a guardian ‘ ad litem renders the whole proceedings null and void. It was the case of a minor whose mother was appointed by the Sharia Court a guardian of property, and who was alone the registered leaseholder of a house, and the mother in his name as plaintiff instituted a suit for recovery of possession of that house. The court proceeded without formally appointing that mother as a guardian for the suit. The Court of Appeal quashed the proceedings and sent back the case for retrial after duly appointing a guardian ad litem. It can be distinguished from the present case by the fact that the minor there was suing alone in his own single interest and the result of the proceedings in the lowers courts and in this court affect his own single interest. But in the present case the minors are not alone; they are members of a family, eight in all, five minors and three adults, and they all have common interest in undivided shares in the house in dispute. It is clear that the result of the litigation affects the common interest including that of the adults. Is there any justice in that those defendants who are of full capacity and who have been defending the case fairly well, should, on failure of their case, be given advantage by declaring the proceedings null and void on a procedural mistake? I do not think that there is justice in that. Pursuant to its inhere powers to do everything necessary for the ends of justice and to prevent abuse of process, this court has to interpret the relevant provisions of the Civil Justice Ordinance liberally, and in accordance with the principles of justice underlying them.

The principle underlying those provisions is the protection and safeguarding of the interest of the minor in the litigation by being represented by a proper person, whose duty, it is to show reasonable diligence in defending the case of the minor. When that was satisfactorily done, without formally appointing a guardian ad litem, I think such absence of formal appointment should be considered as a mere irregularity in procedure, which should not be fatal to the result of the case. In these circumstances, the formal appointment is an irregularity which by itself does not vitiate the proceedings and the decree passed in them, having in mind that nothing has been brought forward indicating that the minors have been prejudiced in any way.

For these reasons I would dismiss this revision.

Babiker Awadalla C.J. May 4, 1967 concur.