Blackall, P. This appeal in my pinion is not properly before the Court. It is an appeal from a Divisional Court on appeal from a decision of a Magistrate in a civil case in which the Divisional Court affirmed the Magistrate's decision. In these circumstances an appeal lies to this Court only by special leave of the Divisional Court which in the present case was not applied for or obtained. The appellant merely filed a notice of motion for leave to appeal ex-parte as though the appeal was as of right, and the learned Judge granted it as though it were a matter of course which, seeing that he had dismissed the action without calling upon the respondent, is a little surprising.
The provisions of section 4 (1) of Cap. 5 are intended as a safeguard against frivolous appeals and should not be treated as a dead letter. Moreover, applications for special leave to appeal are required by rule 11 (4) of the West African Court of Appeal Rules, now Rule 13 (1) of the West African Court of Appeal Rules, 1950, to be made upon notice.
The appeal should, in my opinion, be struck out.
Smith, Ag. C.J. I agree and have nothing to add. Lewey, J.A. I concur.
Appeal struck out.