John v Att.-Gen, 1950-56 ALR S.L. 211

JOHN v. ATT.-GEN .• 1950-56 ALR S.L. 211 s.c. boats. I assess the damage as £50 for the first boat and £35 for the second boat, a total of £85, taking into account the wear and tear. As regards arrears I am not satisfied the defendants are liable for any. I will therefore award no amount for arrears of rent and loss of rent. There will be damages of £85 and costs. 5 Judgment for the plaintiff. JOHN and ANOTHER v. ATTORNEY-GENERAL 10 SuPREME CouRT (Luke, Ag.J.): March 24th, 1952 (Civil Case No. 369/51) [I] Land Use Planning-compulsory acquisition-compensation-dis- 15 puted assessments-factors to be considered by court in ascertaining quantum: While the general rule is that compensation for compulsorily acquired land is based on the market value of the land in its actual condition at the date of expropriation if sold by a willing seller, the court, in ascertaining that value, must consider every element of value which the land possesses, including the owner's actual use of 20 it and all its potentialities but excluding any advantage due to the carrying-out of the scheme for which it was compulsorily acquired, and may have regard to any loss of business and goodwill by the owner; in other words the owner receives what the land is worth to him, not the purchaser, in money terms so that his property is not diminished in amount but only changed in form (page 214, line 25 24-page 216, line 22).

[2] Land Use Planning-compulsory acquisition-compensation-test of value-hypothetical sale: See [1] above.

[3] Statutes-interpretation-retrospective legislation-retrospective operation clearly intended or necessarily and distinctly implied must be 30 given effect-statutes affecting vested rights or legality of past transactions or contracts especially restricted: No statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the statute or arises by necessary and distinct implication, and this is especially so where the statute concerned would prejudicially affect vested rights or the legality of 35 past transactions or impair contracts (page 217, lines 29-36). [ 4] Statutes-interpretation-statutes affecting existing rights-no retro spective effect unless clearly intended or necessarily and distinctly implied: See [3] above.

[5] Statutes-operation-retrospective effect-none unless clearly intended or necessarily and distinctly implied-statutes affecting vested rights

or legality of past transactions or contracts especially restricted: See [3] above. The applicants applied by motion for the court to determine what compensation was appropriate for property compulsorily acquired. The owner of the property in question rejected an offer of compensation for its compulsory acquisition. On his death the applicants, who were granted probate of his will, claimed compensa tion not only for loss of the land itself but also for syenite, economic trees and cassava plants on it. The Supreme Court was asked to decide what compensation was appropriate in the circumstances of the case, and in doing so it considered the principles upon which compensation was to be assessed. Cases referred to:

(1) Cedars Rapids Mfg. & Power Go. v. Lacoste, [1914] A.C. 569; [1914-15] All E.R. Rep. 571, dictum of Lord Dunedin applied.

(2) Fraser v. Fraserville City, [1917] A.C. 187; (1917), 116 L.T. 873, dicta of Lord Buckmaster applied.

(3) Inland Rev. Commrs. v. Glasgow & S.W. Ry. Go. (1887), 12 App. Cas. 315; 57 L.T. 570, dicta of Lord Halsbury, L.C. applied.

(4) In re Lucas and Chesterfield Gas & Water Bd., [1909] 1 K.B. 16; [1908-10] All E.R. Rep. 251, dicta of Fletcher Moulton, L.J. applied

(5) In re Public Lands Ordinance, 1924, West Mrican Court of Appeal, March 1945, unreported, dictum of Graham Paul, C.J. applied. Zizer for the applicants; M.C. Marke, Crown Counsel, for the respondent. 30 LUKE, Ag.J.: This is an application by motion for the determination by the court of the value of land acquired by the Colonial Government through its competent officer, the Director of Surveys and Lands, under the Public Lands Ordinance (cap. 193) and the compensation 35 to be paid to the claimants thereof. The land which belonged to the late Reverend Ademu John was acquired on January 15th, 1946 as shown in Exhibit L. Up to the time of the death of Reverend John no compensation was paid because the offered price of £308. lls. 6d., made up of 23·59 acres 40 of land claimed and subject to satisfactory title being produced, was not accepted. Exhibit C reads :

JOHN v. ATT .• GEN., 1950·56 ALR S.L. 211 s.c. £. s. d. First zone (5 acres) at £30 per acre 150 0 0 Second zone (18·59 acres) at £5 per acre 92 18 6 [sic] Trees as per field book list 65 13 0 £308. lis. 6d. [sic] Reverend John died on August 21st, 1947, and probate of his will was granted to two of the executors therein named, the present claimants, on October 31st, 1947. The claimants, not having accepted the compensation offered,

have made a counter-proposal claiming the sum of £36,986. 14s. 8d. 15 as stated in a letter written by their solicitor dated August 16th, 1950 as follows : £. s. d. 23·59 acres @ Id. per sq. ft. 4,281 11 8 Quarry of syenite 32,400 0 0 Economic trees 280 3 0 5 acres cassava crop 25 0 0 £36,986. 14s. 8d. The questions therefore to be determined by the court are: (i) Whether the claimants have proved their title to the land. (ii) The quantity of land acquired. (iii) The value of the land.

(iv) Whether the claimants are entitled to be compensated for 30 syenite as a separate item. (v) Whether the claimants are entitled to be compensated for five acres of cassava plants. (vi) The value of the economic trees which were on the land at the date of the acquisition. 35 Evidence was given that the testator acquired land some time in 1921, and that for over 12 years next prior to the acquisition he worked the land in various ways. This has not been disputed. There is a dispute as to the acreage of land acquired. The claimants alleged that the land which was acquired was 23·59 acres 40 as deposed by Sawyer, the surveyor who went to survey the land,

T1IE AFRICAN LAW REPORTS and by the Director of Surveys and Lands in nearly all subsequent correspondence. At the trial Mr. Stevenson, in plotting the land acquired on a plan, raised for the first time the point that the land claimed is two acres less than what the claimants' title deeds show. 5 A report, required by s.l7(f) of the Public Lands Ordinance to be written by the Director and put in evidence, showed the acreage as being 23·59 acres. The preponderance of evidence on this matter which came from the office of the Director established that the land acquired was 23·59 acres. 10 Having found as a fact that the land acquired was 23·59 acres, I now turn to the third question, the value of the land. The Director offered the sum of £242. 18s. 6d., whereas the claimants have submitted a claim at ld. per sq. ft. (totalling £4,281. lis. 8d.) and also a claim for a quarry of syenite amounting to £32,400. 15 The difference between the two amounts is so great as to leave the impression that either the Director is trying to pull a quick one over the claimants or the claimants are talking of something they know nothing about. Such being the case, it therefore becomes absolutely necessary to go very carefully into the principles which 20 have been established in ascertaining and fixing the claims for properties acquired compulsorily as required by the Public Lands Ordinance. Cripps on Compensation, 8th ed., at 172-173 (1938), states: "When land is taken by a Government department or a local or 25 public authority, the compensation is based on the amount the land might be expected to realize if sold in the open market by a willing seller." 6 Halsbury's Laws of England, lst ed., at 36, para. 36, also states: 30 "In ascertaining the value of the land, all the actual use of it by the person who holds it and all its potentialities must be considered. In ascertaining the value to the owner in respect of its use by him, loss of business and of goodwill, in so far as they enhance that value to him, may be regarded." 35 In this light it may be necessary to consider a few decisions on this question of compensation on compulsory purchase. In the case of Inland Rev. Commrs. v. Glasgow & S.W. Ry. Co. (3), Lord Halsbury, L.C. stated (12 App. Cas. at 321; 57 L.T. at 571): "My Lords, of course the word 'value' is itself a relative term, 40 and in ascertaining what is the value of the land it is extremely common, indeed it is inevitable, to go into a great number of

JOHN v. ATT.-GEN., 1950-56 ALR S.L. 211 s.c. circumstances by which that which is proper compensation to be paid for the transfer of one man's property to another is to be ascertained. A whole nomenclature has been invented by gentlemen who devote themselves to the consideration of such questions, and sometimes I cannot help thinking that the 5 language which they have employed, so familiar and common in respect of such subjects, is treated as though it were the language of the legislature itself. We, however, must be guided by what the language of the legislature is. Now the language of the legislature is this-that what the jury have 10 to ascertain is the value of the land. In treating of that value, the value under the circumstances to the person who is compelled to sell (because the Statute compels him to do so) may be naturally and properly and justly taken into account . . . . [B]ut in strictness the thing which is to be ascertained is the 15 price to be paid for the land-that land with all the potentialities of it, with all the actual use of it by the person who holds it, is to be considered by those who have to assess the compensation." Fletcher Moulton, L.J., in In re Luoas and Chesterfield Gas & Water Bd. (4), stated ([1909] 1 K.B. at 29-30; [1908-10] All E.R. 20 Rep. at 255) : ''The principles upon which compensation is assessed when land is taken under compulsory powers are well settled. The owner receives for the lands he gives up their equivalent, i.e., that which they were worth to him in money. His property is 25 therefore not diminished in amount, but to that extent it is compulsorily changed in form. But the equivalent is estimated on the value to him, and not on the value to the purchaser, and hence it has from the first been recognised as an absolute rule that this value is to be estimated as it stood before the grant 30 of the compulsory powers. The owner is only to receive com pensation based upon the market value of his lands as they stood before the scheme was authorised by which they are put to public uses. Subject to that he is entitled to be- paid the full price for his lands, and any and every element of value 35 which they possess must be taken into consideration in so far as they increase the value to him." In Cedars Rapids Mfg. & Power Co. v. Lacoste (1), Lord Dunedin stated ([1914] A.C. at 576; [1914-15] All E.R. Rep at

"(1.) The value to be paid for is the value to the owner as it

existed at the date of the taking, not the value to the taker. (2). The value to the owner consists in all advantages which the land possesses, present or future, but it is the present value alone of such advantages that falls to be determined." 5 In Fraser v. Fraserville City (2), Lord Buckmaster stated ([1917] A.C. at 194; 116 L.T. at 260-261): «The principles which regulate the fixing of compensation of lands compulsorily acquired have been the subject of many deci sions, and among the most recent are those of 'In re Lucas and 10 Chesterfield Gas and Water Board, Cedars Rapids Manufacturing ·& Power Go. v. Lacoste, and Sidney v. North Eastern Railway Go.' The ... substance of [these cases] is this: that the value to be ascertained is the value to the seller of the property in its actual condition at the time of expropriation with all its 15 existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired .... Their Lordships desire to add that it is plain, from the language of the statute making the award of arbitrators final 20 and without appeal, that, apart from evidence establishing that the arbitrators had exceeded their jurisdiction, their award could not be disputed." The claimants' case is that the land is worth the amount they have asked for, because it has syenite stones which had been worked 25 and sold by the testator, and that the respondent has passed it on to the contractors building the deep water quay who have been carrying out in a modern manner what the testator did. They have also claimed over and above the value of land a rather large and, to say the least, fantastic sum for the syenite. This item comes under the 30 fourth question which I shall deal with in the latter part of my