By Safi Jimba
General Principle of Liability (XII)
The general damages awarded remain to be considered. The plaintiff’s claim was for damages for the wrongful destruction of his property and the wrongful determination of the tenancy, and contains no reference to the trespass to land. In one passage of his judgment Duffus J. says, ‘this is both a trespass and a breach of the covenant for quiet enjoyment’, and he regarded the sub-lease as having been determined…
I do not consider that the tenancy was determined, and the question is whether the general damages included an element of compensation for the tortuous entry on the land, in which case, since no argument has been addressed to us to show that the plaintiff could not recover on this score, the award must stand. On the whole I am of the opinion that they will. In another passage Duffus J. found that the defendant ‘committed a trespass and illegally demolished the plaintiff’s building therefore distinguishing between the two, and although on a strict view of the claim and pleadings it might be said that the tortuous entry on the land was not the trespass complained of this is not a point for an appeal court to take of its own motion…”
Abbott F. J. and Hubbard Ag. F. J. concurred.
Appeal of defendant allowed in part cross-appeal of plaintiff dismissed
To be continued