Victor Murray Coutts Trotter, C.J.
1. In this case two questions have been referred to us by the Divisional Bench; the first is, 'whether, where a person has been appointed guardian ad litem for a minor but his consent to such appointment has not been obtained, the decree is a nullity, or whether it is merely voidable on good ground being shown therefor'? The second question is, 'whether the consent of a guardian to his appointment as such must be express or may be implied'
2. In the view we take of this matter, the answer we propose to the second question must end in a reference back to the Divisional Bench which may render the first of these questions purely academic and one which need not arise for the determination of the suit. The words of the statute are contained in Order XXXII, Rule 4, Clause (3): 'No person shall without his consent be appointed guardian for the suit', and we are asked to say whether that consent can be implied or whether it must be express. There are cases that have been cited to us in which the learned Judges speak of express consent, but I do not think that before this reference arose, the learned Judges who used the language which has been cited were really deliberately applying their minds to the question as to whether consent must under the statute be express. The statute does not contain the word 'express', and I fail to see how Courts have a right to put into the statute a word which is not there. Consent is a question of fact. A person may have consented and there may be no direct evidence of it. The evidence may be inferential, indirect and circumstantial and, as my brother Wallace put it, it is purely a question of evidence. We are unaware of any rule of evidence which says that this simple question of fact--aye or nay, did this person consent to act--is to be decided by any different laws of evidence from those which guide Courts, in arriving at the determination of all questions of fact. Is the evidence before the Court sufficient to enable it to say with confidence, 'we hold here on the evidence that there was consent by this man that he would act as guardian?' We therefore think that the case must go back with the expression of our opinion that the answer to the second question referred to us is that the consent need not be express. It is quite true that the two learned Judges who formed the Divisional Bench gave an indication of what their finding would be on the question of fact; but as they both approached it under the shadow of this supposed rule of law, it seems to us that it is better that they should reconsider the question under our direction and come to an express finding on the question as to whether there was a consent to be inferred from the evidence available to them or not. That is a matter for them and not for us.
3. I agree.
4. I agree and have nothing to add.