Capacity to Commence a Civil Action

Introduction:

In this note, we will discuss the general rule on the capacity to commence and carry on civil proceedings and the limitation of that capacity with respect to persons with disability and body corporates.

General Rule on Capacity to Commence and Carry on Civil Proceeding:

In Order 4 Rule 1(1) of C.I. 47, it is provided that “subject to these Rules, any person may begin and carry on proceedings in person or by a lawyer.” Under the Interpretation Act, 1960, “person” is defined to include both natural and artificial persons.

The effect of the rule in Order 4 Rule 1(1) is that:

1. Any person may fill out Form 1, present it to the registrar for filing together with a statement of claim, and represent himself in court.
2. Any person may cause his lawyer to fill out Form 1 with his (any person) details, present it to the registrar for filing, and carry out the proceedings on his behalf.

In the case of Alhassan Musah Timbers Ltd v. Franko Timbers Ltd [2019] DLHC6875 , the Court, in explaining Order 4 rule 1(1), said:

My understanding of Order 4 rule 1(1) is that any person who intends to institute and carry on an action in court can do so in his own name or by a lawyer. Thus, the person can issue the writ personally or the same can be issued by a lawyer on his behalf.

Limitation of the Capacity to Commence and Carry on Civil Proceedings:

The conferment of capacity on any person to begin and carry on civil proceedings was made subject to the rules in C.I. 47.

In Order 4 (1)(2) and (3) of C.I. 47, there is a limitation placed on the capacity of a disabled person and a body corporate. For the avoidance of doubt, these classes of persons still have the capacity to commence a civil action; the limitation only relates to whether or not they may do so in person or through a lawyer.

1. Limitation on Body Corporates:

In Order 4 rule 1(2) of C.I. 47, it is provided that:

A body corporate shall not begin or carry on proceedings except by a lawyer, unless permitted to do so by an express provision of any enactment.

Thus, generally, a body corporate can still commence and carry on proceedings, but only if they do so through a lawyer. In light of this, a director of a company, despite being recognised as its agent, cannot commence and carry on proceedings on behalf of the company if he is not a lawyer. If he is, he will be commencing the proceeding not in his capacity as a director but in his capacity as a lawyer for the company. Summarily, this rule allows companies to litigate, but proceeds that such litigating must be done by a lawyer.

2. Limitation on a Natural Person with Disability:

A. Meaning of Disability:

In Order 5 Rule 1(1), a person with a disability is defined as:

A person under the age of eighteen years or a person who is certified by a medical officer to be incapable of managing and administering his or her property and affairs by reason of mental disorder or infirmity of mind.

Thus, the following are persons with disability:

1. A person under the age of eighteen years.
2. A person certified by a medical officer to be:

1. Incapable of managing and administering his or her property owing to a mental disorder or infirmity of the mind.
2. Incapable of managing his affairs owing to a mental disorder or infirmity of the mind.

B. Limitation: A Disabled Person can only Commence and Carry on Proceedings through a Guardian ad litem or Next Friend, Who Must Act through a Lawyer:

In Order 5 Rule 1(3) of C.I. 47, it is provided that:

Subject to these Rules, anything which in the ordinary conduct of any proceedings is required or authorised by these Rules to be done by a party to the proceedings shall, if the party is a person with disability, be done by his or her next friend or guardian ad litem.

It will be remembered that in Order 4 Rule 1(1), all persons, whether disabled or not, are authorised to commence and carry on proceedings. The effect of the provision in Order 5 (supra) is that a disabled person, a party to the proceeding, can only commence and carry on a civil proceeding by his next friend or guardian ad litem.

In Order 4 Rule 1(3), however, it is provided that “A next friend or guardian ad litem of a person with disability shall act by a lawyer.” The effect of the above provisions can be summarised as follows:

1. Any person can commence and carry out civil proceedings on his own or through a lawyer, per Order 4 rule 1(1). This is an authorisation under the rules.
2. However, the authorisation to commence and carry on civil proceedings can only be done by a guardian ad litem or next friend for persons with disability, per Order 5 Rule 1(3) (supra).
3. The next friend cannot commence and carry out civil proceedings on his own, but must only do so through a lawyer, per Order 4 Rule 1(3) .

Conclusion:

In this note, it was discussed that all persons can commence and carry on civil proceedings in person or by a lawyer, subject to the rules in C.I. 47. It was mentioned that while natural persons of sound mind and above eighteen years can commence an action in person or through a law, a body corporate and a disabled person cannot. A body corporate, like a company, must always commence and carry on proceedings through a lawyer. A disabled person, defined as a person below 18 years or one who is incapable of managing his affairs and property and has been medically certified to be so incapable as a result of a mental disorder, was said to only be capable of acting through a guardian ad litem or next friend, who can only commence a civil action by a lawyer.