KARAM vs. ASCHKAR [1961]DLHC5402

Date	1961-05-24
Suit No.
Citation No.	[1961]DLHC5402

ADUMUA-BOSSMAN J.

BANNERMAN FOR THE PLAINTIFF.

I. AMOO-LAMPTEY FOR THE DEFENDANT.

[1961]DLHC5402
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													<main id="main" class="content" style="min-height: 60rem" >KARAM <o:p></o:p>vs. <o:p></o:p>ASCHKAR<o:p></o:p>&nbsp;[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

BANNERMAN
FOR THE PLAINTIFF.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

<a name="_gjdgxs"></a>ADUMUA-BOSSMAN, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
ADUMUA-BOSSMAN,<o:p></o:p>By his writ of summons the plaintiff claims £G11,105 damages, as
per particulars set out in his writ, against the defendant for the latter’s
alleged breach of the covenant for quiet enjoyment contained in 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 of the other part. By the said
lease one large store situate at the junction of Boundary Road and Derby
Avenue, Accra, and numbered D.988/3, was demised by the defendant as lessor to
the said James Oppong as lessee for the term of twelve years certain starting
as from the 1st November, 1949, at the yearly rental of £G250 payable by equal
quarterly instalments in advance of £G1,00 per quarter, commencing from the 1st
November, 1949.<o:p></o:p><o:p>&nbsp;</o:p>The statement of claim filed in support of the writ sets out and
explains in paragraphs 1,2, and 3 thereof how the plaintiff comes to claim the
benefit of a covenant contained in an instrument to which, on the face of it,
he was not a party, as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) By an Indenture of Assignment made the 28th day of December,
1951, the said James Oppong assigned his entire interest in the said premises
unto one Osei Kojo of Accra for the remainder of the term created by the
original Lease dated 7th May 1949, i.e. for 10 years certain commencing from
1st November, 1951. (2) By an Indenture of Assignment made the 27th day of May,
1952, the said Osei Kojo assigned his entire interest in the said premises unto
one Amin Homaidan of Accra for the remainder of the term created by the
Indenture of Assignment dated 28th December, 1951. (3) By an Indenture of
Assignment dated 30th October, 1952, the said Amin Homaidan assigned his entire
interest in the said premises unto the plaintiff for the residue of the term of
10 years created by the Indenture of Assignment dated 27th May, 1952. (See
paragraph 1 of Statement of Claim). The defendant thereby covenanted with the
said James Oppong the original lessee, that the lessee his executors
administrators and assigns performing and observing the covenants therein
contained in the original Lease by him and them to be performed and observed,
should peaceably and quietly hold use and occupy the said premises for the said
term without any lawful denial, let, hindrance, molestation from or by the
Lessor or any person or persons rightfully claiming through him (see paragraph
2 of Statement of Claim). The plaintiff enjoys the benefits of the above
(mentioned) covenant as an assignee under the original lease and has been
carrying on business as a general merchant on the premises the subject-matter
of the original Lease. (See paragraph 3 of Statement of Claim)”.<o:p></o:p><o:p>&nbsp;</o:p>The material documents or instruments pleaded as above have been
produced and are before the court, the original lease dated the 7th may, 1949,
from the defendant’s custody and admitted as exhibit 2. The other three
instruments, however, have come from the plaintiff’s custody, and they have
been admitted, the indenture of assignment dated the 28th December, 1951, as
exhibit C, the indenture of assignment dated the 27th May, 1952 as exhibit B,
and the indenture of assignment dated the 30th October 1957, as exhibit A. With
regard to these documents produced from the plaintiff’s custody, it shoud be
pointed out that they do not relate to the whole store comprised in and forming
the subject-matter of the original lease, exhibit 2, but only to a partitioned
or severed portion thereof forming a smaller store carved out of the larger
store, and it is this smaller store which the original lessee James Oppong
purported to transfer by the instrument exhibit C to Osei Kojo. It seems to be
further necessary to point out that although that instrument exhibit C
purported, and was expressly declared to be an under-lease, nevertheless as the
effect of it was to transfer the whole of the residue of the period or term of
twelve years under the original lease, namely a period or term of ten years
remaining outstanding as from the 1st November, 1951, the document therefore
undoubtedly constituted a legal assignment of that smaller store carved out of
the larger store.<o:p></o:p><o:p>&nbsp;</o:p>