Edwards v Boyce

• Jurisdiction: Barbados
• Judge: Husbands, J.,Worrell, J.
• Judgment Date: 05 September 1986
• Court: Divisional Court (Barbados)
• Docket Number: No. 40 of 1985
• Date: 05 September 1986

High Court. (Divisional Court)

Husbands, J., Worrell, J.

No. 40 of 1985

Edwards

and

Boyce

Mr. F.G. Smith, Q.C., of Messrs. Smith & Smith for the appellant.

No appearance for the respondent.

Practice and procedure - Judgment — Minor — Magistrate's Court (Civil Procedure) Rules, 1958, Order 7, rule 8, sub-rules 1 and 3 — Whether judgment given against minor for malicious damage was contrary to the above legislation — Whether a finding in the positive would affect the judgment given against the other defendants — Court held that Order 7 provides that for judgment to be given against a minor a guardian ad litem must be appointed for the minor — If no such appointment was made, it would affect the enforceability of the judgment against the minor — Finding that lack of appointment would not affect the other defendants jointly and severally.

JUDGMENT OF THE COURT:

1 The plaintiff filed suit in the Magistrate's Court for District “A” against the four defendants Marion Edwards, Carl Edwards, Richard Edwards and Antionette Edwards, claiming that they had wrongfully damaged 70 panes of glass in the windows of her chattel house and thereby caused her loss damage and inconvenience.

2 The matter was heard by a learned magistrate for the District who having heard the evidence gave judgment for the plaintiff against all the defendants in the sum of $533.43 and $250 costs.

3 Each of the defendants has appealed and has filed similar grounds of appeal on their notices, that is to say:–

1

That there is no evidence to support the decision. 2. The decision is erroneous in point of law. 3. That some other specific error not hereinbefore mentioned and substantially affecting the merits of the case has been committed in the course of the proceedings in the case.”

4 On these grounds, Mr. F.G. Smith, Q.C., of counsel argues that the magistrate's judgment order is invalid for several reasons.

5 First of all counsel argues that whereas paragraph 2 of the statement of claim states — “The 4th defendant is a minor and defends by her Guardian ad Litem”, no evidence was given that a guardian had been pointed and yet judgment had been given against the 4th defendant. Counsel cites the provisions of Order 7 rule 8 of the Magistrate's Courts ( Civil Procedure) Rules, 1958 especially sub rules 1 and 3 which provide as follows:–

• “8. (1) A minor may sue as plaintiff by his next friend and may in like manner defend by a guardian appointed by the court for the purpose.

• (2)…..

• (3) On application made and on affidavit in the Form in the Appendix (accompanied by a written consent of the proposed guardian to act as such) the court may appoint a guardian to a defendant who is a minor or person of unsound mind:

Provided that in default of such application the court of its own motion may appoint any person who is willing to act as guardian or, if there be no such person, the court may appoint the clerk.”

6 Counsel argues that in the absence of evidence that a guardian has been appointed the judgment order made against a minor Defendant...