Principles

·  Civil Procedure—Guardian ad litem should be appointed to represent a minor—Failure to appoint guardian ad litem renders proceedings null and void

In litigation instituted by a minor, a guardian ad litem should be appointed to represent him. Failure to appoint a guardian ad litem renders the whole proceedings null and void. Where the Sharia Courts have appointed a guardian of a minor, this guardian cannot automatically represent him in litigation before the civil courts, but has to be formally appointed as guardian ad litem, unless the civil courts direct otherwise, under Civil Justice Ordinance, s. 115. Even where the minor has attained his majority he cannot sue in his own name without obtaining a declaration to that effect from the Sharia Court.

Judgment

    Babiker Awadalla J. March 2, 1964: —House No. 36, Block 4 M, Khartoum North Deims, is recorded in the lists of the Khartoum North municipality as leased by the Government to a certain El Fadil Mohamed Ahmed for a term of one year. El Fadil is a minor and his lawful guardian is his mother El Rawda Abdel Rahim, having been appointed to such guardianship by Kadi Khartoum Nor vide, Ilam No. 24/50. The said house was let out by the guardian in 1954 to a certain Abdel Rahim Ali El Hag at a monthly rent of £S.4.

On August 7, 1962, El Rawda instituted CS-789-1962 against. Abdel Rahim Ali El Hag claiming recovery of possession of the said house on the ground that her son and ward El Fadil needed it for his own occupation. A few days later, precisely on August 18, 1962, Abdel Rahim Ali Hag instituted CS-793-1962 against El Rawda contending that she was committing a trespass on the house in question and refused to quit and accordingly claiming her forcible expulsion.

   Before CS-789-1962 was heard, advocate Hamid Elias, on behalf of Rawda, claimed that the two suits be amalgamated and Abde! Rahim Ali El Hag’s claim in the second case to be heard as a defence in the first case Advocate Badran on behalf of Abdel Rahim objected to application on the ground that the second case was really instituted by the minor who has nothing to do with the act of trespass committed by the mother. The learned District Judge accepted advocate Badran’s argument and ordered that the title of the first case be changed by inserting the name of El Fadil in place of that of his mother. Hearing in the two cases therefore proceeded separately and on December 3, 1962, judgment was given in favour of El Fadil and against Abdel Rahim Ali El Hag ordering the latter to vacate the house on the ground that El Fadil needed it for his own occupation. Abdel Rahim applied for revision to the honourable judge of the High Court who confirmed the decree of the learned District Judge. It is against that decision that this application is now being made.

   Judgment in CS-793-1962 was given on December 5, 1963 (i.e., one year after the date of the decree in the first case and three months after the present application for revision), in favour of Abdel Rahim Ali El Hag ordering El Rawda to quit the house in question. It transpired in the hearing of the suit last referred to that El Rawda entered the house on June 20, 1962, on the assumption that she was going to stay for a few days, and she admits this, but it seems she had later changed her mind and thought she could stay in the house irrespective of whether the tenant wanted her to stay or not. No application for revision of that decree was made to the honourable judge of the High Court and this judgment cannot of course affect the decree in question, but I am only mentioning it here so as to make a proper understanding of the relationship of the parties and the records of the cases much easier. As regards the present application, I am of opinion that it should be allowed. I think that the learned District Judge was wrong in accepting a case by a minor without appointing a guardian ad litem to represent him. It is true that El Rawda is the guardian of respondent appointed in 1950 by the Sharia Court, but that (ice not mean she can automatically represent him in litigation before he civil courts, because she has to be formally appointed unless the court, for sufficient reason, otherwise directs: cf. Civil Justice Ordinance, s. 115

   Failure to appoint a guardian ad litem renders the whole proceedings nail

and void and this court had constantly quashed proceedings on that ground. It may be that El Fadil has now attained his maturity, nonetheless he cannot be allowed to sue in his own name without obtaining from Sharia Court a declaration to that effect.

   For the above reason, I think that this application should be allowed and case returned for a rehearing after duly appointing a guardian ad litem for El Fadil if he be still a minor, or after his obtaining a declaration from the Sharia Court if he has attained majority and wants to sue in his own name.

   M. A. Abu Rannat C.J. March 2, 1964 : —I concur.