The Commissioner Of Lands V. Winifred Arah (1954)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Crown Lands Ordinance (Cap. 45), section 17—Action forforfeiture of tease— Notice.
Appeals in Civil Cases—Pointfirstraised on appeal going to existence ofaction.

Facts

So far as relevant, the above section 17 provides that “if there shall be any breach of the lessee’s covenants . . . the Commissioner of Lands may serve a notice upon the lessee . . . and at any time after one month . . . commence an action, etc.”

The defendant failed to comply with a covenant of his lease and was given a notice which was signed by the Local Authority. The Magistrate declared the lease forfeited; the Supreme Court reversed him; in the Court of Appeal the defendant (now respondent) raised, for the first time, the point that the notice on which the action was based had not been signed by the Commissioner of Lands as required by the section; to which Crown counsel objected that the point should have been pleaded and could not be raised so late.

Held

The notice required by the section not having been given, the action did not lie when instituted; and the point could be taken for the first time on appeal as it went to the existence of the action.

Plaintiff non-suited.