By Bamidele Kolawole
The capacity to sue or be sued resides with what the law refers to as juristic person. A person has the capacity to sue or be sued if he or she is a juristic person either as a natural person or as artificial person.
A minor is one that has not attained the age of 18 years. Simply put, a minor is one who is below the age of 18. However, a minor in the eyes of the law does not have the capacity to institute an action in the court to seek redress.
A minor under the law is considered to be disabled legally. But, the law has created an avenue for a minor whereof he or she can approach the court to ventilate his or her grievances.
The minor through his parents or guardian can sue to seek redress. This position of law is embedded in the various rules of courts in Nigeria.
By virtue of section 46 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), any person whose right is, has been or is likely to be breached, can approach the court to seek redress. This provision does not specifically exclude a minor from suing in his personal capacity.
The word “any person” as used in the constitution includes the minor and therefore, he or she should be capable of suing in court to right the wrongs that may be done to him or her.
One can safely conclude that a minor can sue in court to seek redress provided he or she is suing through his or her legal representative or guardian.
It is a matter of getting justice irrespective of age and therefore, age should not be a barrier against coming to the court to seek redress.
Right of Action can arise whenever good “Cause of Action” occurs. However the capacity to institute a legal action in a Court of Law with the Jurisdiction is a major issue for consideration, so that such action will not be labeled “incompetent”, and for such technical reason based on the Statue, be thrown out of Court, even though such suit disclose a good Cause of Action. It is trite and settled Principle of Law, that neither can a Minor or a Lunatic sue nor be sued in legal action.
But then, what happens when there’s need to Protect the Rights under the Law, of a Minor or a Lunatic? The Law has provided for means by which this could be done when the need arise.
A Minor can sue through a relation known in Law as “GUARDIAN”, while Lunatic can sue through his or her “Association in Lunacy”, so must either of these two category of Persons Defend action in Court.
Summarily, the answer to this Poser is a Yes, but be mindful that, the Nomenclature of the parties must be clearly written to show that Minor “A” is suing through the GUARDIAN “B” whose nature of relationship with the Minor is clearly define in the opening paragraphs of the Statement of Claim or and Statement of Defense as the case may be.
The response to the question regarding whether the relation of a minor can institute an action in court on behalf of such minor is in the AFFIRMATIVE.
However, before delving into the discuss, it is imperative to define a “minor”.
A minor is defined according to the Oxford Advanced Learner’s Dictionary International Student’s Edition at Page 942 as “(law) a person who is under the age at which you legally become an adult and are responsible for your actions.”
Similarly, the Black’s Law Dictionary 9th Edition at Page 1086 defines a minor as “A person who has not reached full legal age; a child or juvenile. “
By implication, a minor is a “child” (that is, a person under the age of 14 according to Section 2(1) of the Children and Young Persons Act, 1943) or a “juvenile” (a person who has attained the age of fourteen and is under the age of Seventeen years, still according to the same Children and Young Persons Act, 1943 lacks the legal capacity to sue or be sued in an action.
Such persons are regarded as “Persons Under Legal Disability” under the law. In such situation, such persons can either sue by his guardian or next friend depending on the jurisdiction wherein the cause of action could be said to have arisen.
For instance, In the South, particularly, in the west, Order 7 Rules 9 and 10 of the Ondo State High Court (Civil Procedure) Rules, 2019, permits a guardian to sue on behalf of a minor or defend such suit on behalf of a minor.
For avoidance of doubt, Order 7 Rule 9 of the Ondo State High Court Civil Procedure) Rules, 2019 provides: “Persons under legal disability may sue by their guardians or defend by guardians appointed for that purpose “
However, the Rules spells out the condition for instituting an action on behalf of such minor which involves the signing and filing of a written authority at the Registry of the court.
In this regard, Rule 10 of the same Order 7 of the Ondo State High Court (Civil Procedure) Rules, 2019 provides: “Where any person’s name is to be used in any action as guardian of a person under legal disability or other party or as relation, a written authority for that purpose signed by that person shall be filed in the registry”.
The above provision was also replicated in Order 13 Rule 10 and 11 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 as well as Order 15 Rules 9 and 10 of the High Court of Lagos State (Civil Procedure) Rules, 2019.
It is trite law that anybody of full legal capacity so appointed can sue as a next friend of an infant and can as well defend an action on his behalf as his guardian ad litem.
The Court of Appeal in the case of MAJOMI & ORS v. MAJOMI, JNR & ORS (2007) LPELR-3854(CA) on the position of the law on the capacity of an infant to sue and be sued held thus:
“The provision of Order 14 Rule 8 of the High Court of Lagos (Civil Procedure) Rules 1994 (being the applicable rule of Court at the material time) is apt and clear on the status of infants in litigation. It provides: – “Infants may sue as plaintiffs by their next friend and may defend by their guardians appointed for that purpose.”
The 3rd plaintiff/respondent is admittedly an infant and therefore non sui juris. He, therefore, has to sue only by a next friend. In this case the 3rd plaintiff sued by himself and subsequently brought a motion to replace his name with that of Ms E. A. Farah as his next friend, which is the subject of this appeal.
There is no doubt that the validity of that motion defends on the competence of the main suit. In Akinola Aguda’s book 2nd edition titled “Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria”, the learned author states: – “An infant who wants to sue at all must do so by his next friend.
But no one can sue as a next friend of a child who had not come into existence at the time the action was commenced: Udeaka Ito v. Udegbe Oji and others (1968)8 ENLR 125.
Similar to the case of the infant, a person of a weak or unsound mind cannot commence or continue proceedings except by his next friend or committee in lunacy if one has been appointed. In both cases, if the action has been commenced by the plaintiff himself, the proper procedure is for the defendant to apply to the Court to stay the proceedings until the next friend or committee has been added: Re Townshend (1908)1 Ch. 201; Re Hunt (1906)2 Ch. 295. It will be improper for the plaintiff himself to make an application to the Court for the appointment of a next friend, or other gnardian ad litem.
The Court should not dismiss the suit merely because of a failure to commence it by the next friend, although it may set aside the writ if there is no next friend willing, or the committee is not willing or able to carry on the proceedings on behalf of the plaintiff: Roland Savage v. John Buxtoff Diodorus Johnson (1926) 7 NLR 53. The legal practitioner who has commenced the proceedings in which the writ has thus been set aside may be liable to pay the costs of the proceedings: Geilinger v. Gibbs (1897) 1 Ch. 479; Fernee v. Gorlitz (1915) I Ch. 177. An application by the next friend or committee to be added to the suit should in ordinary circumstances be granted, after which the suit should proceed normally.”
Thus, although an infant may only sue by his next friend, where as in this case he brings the action in his own name, the suit is not ipso facto incompetent.
Ideally the 3rd plaintiff should have instituted the suit by her next friend but his failure to do so does not affect the competence of the suit.
A next friend may be appointed for the infant plaintiff even after instituting the action, but proceedings must be stayed until next friends are appointed for the incapacitated plaintiffs.
A person to be appointed next friend must give a written consent to that effect but need not be related to the plaintiff.
The argument of the learned senior counsel to appellants as to evidence of motherhood in respect of Ms Farah, therefore, is irrelevant and is accordingly discountenanced.
It is preferable that the next friend is related to the infant plaintiff but there is nothing in law restricting next friend to relations of the infant only. It is, however, obvious that the next friend must be an adult with full legal capacity.
As T. Akinola Aguda in his book (supra) further stated at page 123 Paragraph 12.101:- “A person of full legal capacity and within jurisdiction of the Court can be appointed next friend, or guardian ad litem, be he a man or a woman married or unmarried.
If a person outside jurisdiction is appointed, he may be required to produce security for costs. If a woman, however, she must be described either as spinster, married, divorced, or widow as the case may be.
In all cases the next friend or guardian ad litem must not possess an interest adverse to that of the infant or person of weak or unsound mind, or should he be a nominee of, or in any way connected with the opposing party: Lewis v. Nobbs (1878) 8 Ch.D. 591; Hopkinson v. Roe (1830) 9 LJ. Ch. 7.
It is desirable that the appointee should be a relation of the person in respect of whom the guardian ad litem is to be appointed, preferably his father (Woolf v. Pemberton (1877) 6 Ch.D. 19) or his mother, but he may be any other relation or friend, though not a mere volunteer.
See Nalder v. Hawkins (1833) 2 M. & K. 243; 39 ER 937. In any case he or she must be a person of some substance.” Per HUSSEIN MUKHTAR, JCA (Pp 47 – 51 Paras F – F)
The answer to this question is in the affirmative. The capacity to sue or be sued resides with what the law refers to as juristic person. A person has the capacity to sue or be sued if he or she is a juristic person either as a natural person or as artificial person.
A natural person is a person just like you and me with all the attributes of Homo Sapiens while artificial persons are body corporates or Bodies covered with the garb of juristic person. An underaged person is referred to in law as a minor. As a human being, the law accords a minor rights which any adult could enjoy.
Nevertheless, minors, because of their age and for the purpose of protecting them are precluded from engaging in some legal transactions or endeavours. This legal position is not absolute as there are some exceptions to it.
For example, a minor does not possess the legal capacity to hold title to land in whatever form. But a minor can hold title to land through a proxy such as Trustees, Next Friend and/or *Guardian ad litem until he or she attains the age of majority where he or she can lawfully holds title to land.
Now coming to whether a minor can sue or be sued; though a minor or an underaged person as you put it has no legal capacity to sue or be sued, he or she can still access justice by suing or being sued through his or her next friend, guardian ad litem or any other person appointed by operation of law. In other words, a minor for example can sue through his or her adult father, mother, brother, sister or Guardian ad litem.
In the case of NPF & ORS v. OMOTOSHO & ORS (2018) LPELR-45778(CA), the Court of Appeal while citing the Federal High Court (Civil Procedure) Rules, 2009 held that: “The law seems settled beyond peradventure that only juristic persons in whom rights and obligations can be vested are capable of being proper parties to law suits before Courts of law.
It is hornbook law that a Court cannot engage in adjudication when the proper parties are not before it. There must be proper parties either as plaintiff or defendant before any Court can exercise its jurisdiction.
Proper parties is therefore an issue of jurisdiction…Order 9 Rules 10 and 11 of the Federal High Court (Civil Procedure) Rules, 2009 provide as follows: ’10. Persons under legal disability may sue by their guardians or defend by guardians appointed for that purpose.
“As already stated the 2nd-4th Respondents are minors who are under a legal disability and cannot maintain an action _eo nomine_ but can only sue through their next friend or guardian ad litem.”
In conclusion, an underaged or minor, though under legal disability, can sue or be sued through his or her next friend, guardian and litem or any other person authorized by law.
Before an action can be said to be competent, parties must be legal persons i.e. either natural persons or an artificially created legal person e.g. a limited liability company.
If the legal capacity of a plaintiff/claimant or a defendant is raised, the onus lies on the person claiming that he has capacity to prove his competence to conduct the action.
If a party is proved not to be competent to sue or defend the action, he may be struck out of the suit.
If the incompetent party is the plaintiff/claimant, the action itself may be struck out. This is reflected in the case of Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant Ltd. (1961) 1 All NLR 366. Thus, by virtue of the law, the general presumption is that no action can be maintained against a minor except in the case of necessities.
However, in the event of a minor bringing an action to court, he must do that through his next friend or his guardian ad litem. This person, being someone having full capacity to sue in law is not a party to the action.
He is just acting as a guardian and litem to the minor and this can be his father, mother or anyone, but a proper relationship must be established before the court for the person to possess the proper requisite to maintain such action.
The Child Rights Act does not explicitly mention the term “next friend” principle. However, the concept of a next friend or representative acting on behalf of a minor is generally recognized in legal contexts.
In the context of child rights and legal representation for minors, the act might implicitly allow for a next friend to bring an action on behalf of a minor.
This could be inferred from provisions related to legal representation and protection of the child’s rights.
Section 27 of the Child Rights Act addresses issues related to abduction, removal, and transfer from lawful custody.
The appointment of a next friend for a minor is a legal means to ensure the child’s rights, especially in situations where the child cannot independently represent themselves.
The rule allowing a next friend to sue on behalf of a minor is recognized in legal contexts, emphasizing the need for representation when the minor lacks a guardian or similar representative.
While the term “next friend” may not be explicitly stated, the legal framework implies the provision for representation on behalf of minors in the Child Rights Act.