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Naidu v Prasad [2002] FJHC 223; HBC0024d.2000b (27 August 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0024 OF 2000

Between:

RAJENDRA NAIDU
s/o Sanmogam Naidu
Plaintiff

and

SASHI ROSHNI PRASAD
d/o Shiu Prasad

RAMESH PRASAD
s/o Ram Kissun

LABASA TOWN COUNCIL
Defendants

Mr. V. Maharaj for the Plaintiff
Mr. H. Robinson for the Applicant

DECISION

By motion dated 21 March 2002 the applicant Sashi Shanti Mani, who is the wife of the plaintiff made an application to Court for an order that the Applicant be appointed as the guardian ad litem of Rajendra Naidu f/n Sanmogam Naidu (the plaintiff in this action). The application is supported by an affidavit sworn by her together with a Supplementary Affidavit.

The plaintiff has filed affidavits in Reply to applicant=s affidavits. There were further affidavits filed by the applicant to which the plaintiff replied.

It is unnecessary for me to go into the facts as they are all contained in the various affidavits filed, suffice it to say that the applicant is saying that her husband has since the accident been unable to manage his own affairs and has no control over his actions and it is necessary that she be appointed his guardian ad litem.

Through one of her Supplementary Affidavits the applicant has annexed a Medical Report dated 2 September 1999 on the plaintiff=s condition which states as follows:

One year nine months after the accident, this man=s behaviour is abnormal, still complains of headache and impaired vision, weakness of legs with extensor plantar reflex on the left side. He has become diabetic now.

He will not be able to do any job due to the above problems i.e. his incapacity is 100%.

In his replies through affidavits the plaintiff, apart from numerous complaints against the applicant about her ill-treatment of him after the accident, has produced to Court a Medical Report dated 21 June 2002 from the Medical Superintendent and Consultant Psychiatrist of St. Giles Hospital which concludes by stating that:

AIn my opinion Rajendra is capable of looking after his affairs in his present state of mental health@.

Determination of the issue

The applicant makes this application under Or.80 r.3(4) of the High Court Rules 1988 which provides:

Where, after any proceedings have been begun, a party to the proceedings becomes a patient, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem, as the case may be, of that party.

It is clear that the applicant regards the plaintiff as a person under >disability= and in this regard Or.80 r.2 of the Rules is pertinent. The said Rule 2 provides:

2. - (1) A person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem

The term Aperson under disability@ has been defined in Or.80 r.1 as >a person who is an infant or a patient=.

The said Order 80 r.3(4) under which the application is made, the plaintiff is not a >patient= and hence the application cannot be made for the applicant to be appointed a guardian ad litem of the plaintiff.

Furthermore, although the applicant has produced a Medical Report of 1999 (referred to hereabove), the most recent Medical Report from the Superintendent of St. Giles Hospital states, inter alia, in no uncertain terms that:

the plaintiff is Acapable of looking after his affairs in his present state of mental health@.

The doctor has further stated as follows in his Report on his condition:

He has not worked since the accident and was idle at home. According to him he was not treated well by his wife after he ceased to receive money from his employers. So he came to Nadawa, from Labasa, to live with his father.

The father said that although he had not been to school he has been able to look after himself, do menial work and is able to do things like going to shop to do shopping. His sleep and appetite is reported to be good.

On his mental state examination he was well attired and well behaved. He gave relevant answers but he has dysarthria (which is difficulty in articulation). He did not have any hallucinations or delusions. His emotional responses are a bit constricted. He was correctly oriented to day, place and person. He scored between 20-25 on mini mental state examination which amounts to mild to moderate cognitive impairment.

I have considered the written submissions from counsel to determine the issue before me. Upon reading the various affidavits filed herein, and upon particularly considering the Medical Reports on the plaintiff I can come to no other conclusion but that the plaintiff is capable of looking after his affairs in the present state of his health and therefore, as far as this case is concerned, I see no impediment in his continuing with the action with him as the plaintiff without the need to appoint a guardian ad litem. The wrangling that is going on between the husband and wife is none of the Court=s concern in this action and therefore there is no need to say anything on that aspect.

For these reasons, the application fails and is dismissed. However, should it happens in future that the plaintiff is unable to handle his affairs or his mental condition is adversely affected an appropriate application can always be made.

In view of this decision the plaintiff should now proceed with the action with due diligence and have the action set down for trial without further delay.

D. Pathik
Judge

At Labasa
27 August 2002