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April 4, 1939
WEST AFRICAN COURT OF APPEAL
GHANA
CORAM
The following joint judgment was delivered :-
WEBB, c.J., SIERRA LEONE, BUTLER LLOYD, AG. c.J., NIGERIA AND STROTHER-STEWART, J.
In the Court below this case was fought entirely on the issue whether the plaintiff's son had authority to execute a lease by Deed either under the Power of Attorney or by having been held out as his father's agent. Clearly the Power of Attorney did not authorise him to execute leases by Deed and equally clearly a power to execute a deed cannot arise by mere holding out.
But in this Court the point has been taken that the lease granted by Dan Cole to the defendant for a term of less than three years could be validly made by a writing not under seal. And this is clearly so. Equally clearly the evidence that the plaintiff had for years held out Dan Cole as his agent and the manager of his property in Accra was overwhelming: the plaintiff himself said so and the learned Chief Justice finds, at page 47 of the record, that the plaintiff expected him to let the properties whenever opportunity occurred.
We are of opinion that the lease was valid. Even if we are wrong in this, the defendant having been allowed to enter and having paid all the rent due up to the date of the writ, held as a yearly tenant-see Kugbe v. Union Trading Co. Divisional Court, 1926-29 at page 205-and so could not be ejected without notice to quit.
For these reasons we are of opinion that the decision of the Court below must be reversed and the action dismissed. As the defendant has succeeded on a point that he did not take in the Court below we make no order as to costs. The cross-appeal is dismissed with costs assessed at £5 5s.
AI Generated Summary
Chief Justice Webb of Sierra Leone, Acting Chief Justice Butler Lloyd of Nigeria, and Justice Strother‑Stewart delivered a joint appellate judgment reversing the lower court. The dispute concerned a lease granted by Dan Cole, long held out by the plaintiff as his agent and manager of property in Accra, to the defendant. While the court below focused on whether the plaintiff’s son had authority to execute a lease by deed under a power of attorney or by ostensible authority, the appellate court accepted a new point: a lease for less than three years can be validly made by writing not under seal. Finding the evidence of agency overwhelming, the court held the lease valid. Alternatively, it ruled that the defendant, having entered and paid rent, was at least a yearly tenant and could not be ejected without notice to quit. The judgment reversed and dismissed the action, denied costs because the decisive point was first taken on appeal, and dismissed the cross‑appeal with modest costs.