KARAM v. ASCHKAR

JUDGMENT OF CRABBE J.S.C.

This is an appeal against the decision of Adumua-Bossman J. (as he then was) given on the 24th May, 1961, when he decided that the plaintiff had succeeded in proving against the defendant acts which constituted a breach of his convenant for quiet enjoyment, and [p.141] accordingly awarded damages in favour of the plaintiff in terms as follows1:

"He is entitled to recover for the loss of his right of occupation from month to month until determination or eviction by order of this court. This, I assess at £180.

As regards the sum of 100 guineas paid to resist the action for recovery of possession, I allow 60 guineas as amply reasonable for such a case in the District Magistrate's court. That brings up the amount awarded for special damages to £G243. There is lastly the claim for general damages, including loss of business, supported by the plaintiff's profit and loss account sheets for the years 1957-58, 1958-59 and 1959-60, exhibits Hl, H2 and H3. I allow £G1,000 for general damages, making a total of £Gl,243 damages. I also award costs of 120 guineas, inclusive of counsel’s fee”.

The defendant did not however appear to prosecute his appeal and it was therefore dismissed. The question of costs was deferred until the delivery of judgment in the cross-appeal by the plaintiff. For the plaintiff a notice was filed under rule 16 of the Supreme Court Rules, 1962,2 in which it was contended that the judgment of the trial court should be varied as follows: “That the general damages of £G1,243 awarded by the learned trial judge be varied to £G7,000.”

The grounds on which the plaintiff relied were:

"(1) The learned judge erred in law in holding that ‘It is clear therefore that surrender can be followed by proper or regular steps to determine, and that therefore the defendant in this instant case was capable of enforcing his right of forfeiture…’

(2) There is no evidence to support the view of the learned trial judge that the defendant took steps to determine the subsidiary assignment.

(3) The assessment of general damages by the learned trial judge was erroneous and inequitable having regard to the evidence given by the plaintiff in support thereof.”

The facts of this case are as follows: By an indenture of lease dated the 7th May, 1949, made between the defendant as lessor of the one part and one James Oppong of Accra as lessee on the other part one large store situate at the junction of Boundary Road and Derby Avenue, Accra, and