clr/1983/1983_1_431.pdf

(1983)\aluations were based on the direct comparison method. concluded that theie were several serious drawbacks in the \aluations made by both valuers which made it impossible foi it to accept entirely the valuation or evidence οϊ either valuer. and proceeded to make its own adjustments and estimates upon 5 a consideration of the evidence taken as a whole. The trial Court, also, concluded that there was no evidence to justify ihe abo\e assumption of the valuer of the acquiring authority about the impossibility of development of the properties in question and that these matters were beyond the field of expert 10 knowledge of this valuer and their existence and truth had to be established by pioper expert or othei evidence. Held,that the assessment of the value of the subject properties by the trial Court and for the detailed reasons given in its elaborate judgment, was neither arbitrary nor unreasonable, nor there has been any misdirection as to the legal principles applicable to the assessment of compensation payable in the circumstances; that the trial Court, having listened to the divergent views of the two valuers who were called to give expert evidence, could in the circumstances proceed with their own assessment of the compensation payable to the owners under the Compulsory Acquisition of Property Law, by taking the evidence before them as a whole, as they in fact did, (see Alt and Another v. Vassiliko Cement Works Ltd. <I971) I C L R 146). 20 Held, further, that the finding of the trial Court that the acquired lands had a "hope" value was correct in law and reasonable in the circumstances because of the absence of any expert evidence on ihe archaelogical potentialities of these lands. Appeal dismissed. Cases referred to Lordos and Others v. Government of Cyprus (Case Stated 128) unreported. Muhael ν The Improvement Bourdof D/tah

(1969)3 C.L.R. 112; Mott and Another ν Ihe Republic

(1968)I C.L.R. 102; Ah and Another r Vassdiko Cement C.L.R 146 at p. 155; 432 Works Ltd.

(1971)I 35 30 I C.L.R. Attorney-General \. Charalamhuus andOthers DJ. Demades d Sons Ltd. w The Republic

(1977)1C.L.R IS9. Commissioiwr of Liniassol v. Kirzt. 24 C.L.R. 197 at p. 204 5 10 Appeal. Appeal b> the acquiring authority against the judgment of the District Court of Liniassol (Boyadjis. P.D.C. and Anastassiou, S.D.J.) dated the 29th January, 1982, (Ref. Nos. 5/75. 16/77 and 2/78) whereby the compesation for claimants' pro­ perties which have been compulsorily acquired was assessed at £32.538.-. CL HadjiPetrou. for the appellant. B. Vassiliades. for respondents-claimants 1. 2 and 4 A. Papadopoulos, for respondent-claimant 3. A. Loizou J. gave the following judgment of the Court. This is an appeal from the judgment of a Full Court sitting in 15 Liniassol (I. Boyadjis, P.D.C. and A. Anastassiou. S.D.J.) given in three consolidated reference which were referred to the Court under section 9 of the Complulsory Acquisition of Pro­ perty Law 1962 (Law No. 15 of 1962) for the assessment of the compensation payable to the claimants - respondents in tin·» 20 appeal - in respect of their respective properties, which have been compulsorily acquired by the Republic of Cyprus pursuant to an order of acquisition under Notification 808. dated October 16, 1976, published in Supplement No. 3 in the official Gazette No. 1305 of the 8th October. 1976. 25 30 35 The subject properties are the following: (

1. i)Plot No. 123/1/1 of Sheet/Plan No. 54/46 ύί Ayios Tychonas village, a field of an extent of two donumS. two evleks and 1,500 square feet, covered by Registra­ tion No. 8536 in the name of the deceased Michael Theophanous, late of Ayios Tychonas. claimant. through the administrators of his estate, in Reference No. 5/78. (
2. ii)Plot No. 121 of Sheet/Plan No. 54/46 of A>ios Tycho­ nas village, a field of an extent of six donums and me evlek,covered by Registration No.9097 in the name of the claimant in Reference No. 16/77 one half undivided 433 A. Loizou J. Attorney-General v. CharalambiHii and Others (1!>83) share, and in the name of the claimant in Reference No. 2/78 for the other half undivided share therein. They are both situated on the main Limassol - Nicosia road close to the sea. Plot 121,however, has only a small frontage on this road along its'south-east corner, the rest of its frontage 5 being on the abandoned old Nicosia - Limassol road, which is in fact a cul-de-sac. due to the destruction of a small bridge which existed over a rill. Plot 123/1/1 and part of plct 121 have a panoramic view over the sea being located higher than the street level. The shape of this plot is regular and, as found by 10 the trial Court, it offers itself for belter and mere profitable use than that of plot 121. It is an undisputed fact that both properties lie within an area containing properties that have been declared ancient monuments under s.6 of the Antiquities Law, and they form part of 15 the ancient city of Amathus and are in consequence subject to ihe limitations laid down in s.8 of the said Law (Cap. 31). In fact, the two acquired properties have been specified in the Second Schedule thereof long before the establishment of the Republic, but other ancient monuments like plots 180/1 and 20 174/1/4 were added thereto in 1966. In the middle of this area there are two rills which are shown en the map produced at the trial as exhibit 1 withreddotted lines,marked with capital letters (A) and (B) .respectively. The acquired properties and also plots 162/1 and 162/2, 25 referred to in evidence as Claimants' Comparable No. 4, as well as plots 171/1 and 171/2, referred to in evidence as Claimants' Comparable No. 1, are all located in the area enclosed by these rills, whereas plots 180/1 and 174/1/4, referred to in evidence as Claimants' Comparable No.3, are situated to the east 30 and outside the area bounded by the rills. On this aspect of the case the trial Court had this to say: "It isthe allegation of theAcquiring Authority that there is a great difference between ancient monuments situated within the area between the two rills, on the one hand, and 35 those situated outside the area, on the other hand. This difference which affects the prospects of development for building purposes of the ancient monuments of the aforesaid two categories, a most relevant matter to be had in 434 1 C.L.H. 5 10 15 20 25 30 53 40 Attorney-General v. Charalamlwus and Others A. I.oi/ou.1 mind in a&^sing their respective market value, underlies the philosophy and the very approach of the valuation of the acquired properties by the valuer for the Acquiring Authority who, inter alia, exluded from consideration the claimants' Comparable No. 3, an ancient monument in the vicinity, on the ground that it is situated to the east of the area bounded by the two rills. In his written valuation report filed in Court and adopted on oath in the witness box. referring to the ancient monuments within the area between the two rills, the valuer for the Acquiring Authority says this: 'Paragraph (
3. b)(//'). By virtue of Article 23(
4. i)of the Constitution the rights of the Republic to antiquities,!» reserved. Any development for building purposes is impossible without destruction of the antiquities for which the Director of the Department of Antiquities is certain of their existence. (iii) By virtue of s.8(
5. i)of the Antiquities Law, Cap. 31, the Director of the Department of Antiquities objects to the issueof a permit for any development of the properly under valuation'. It follows that the valuer for the Acquiring Authority based his valuation on the assumption that the Director of Antiquities is convinced that there are things of great archaeological value in or under the acquired properties as well as the properties in the area bounded by the two rills; that any use of these properties for building purposes shall inevitably result in the destruction of these archaeological treasures; and that he objects to the granting of a permit for any kind of development of the acquired properties. These matters are, no doubt, beyond the field of expert knowledge of this valuer, and their existence and truth should be established by. proper expert or other evidence in Court, before any opinion as to the value of the land by a land valuer, based on the existence of such factors, may bevalidly made and accepted. During the hearingofanumber of otherreferences regarding acquisition of Qther ancient monuments in the area, tried before thisCourt, wheremost of the witnesses and advocates appearing were the same with those in the present case, the 435 A. I.oizou J.. Attorney-General *. Charalambous and Others

(1983)existence of such matters was positively established by evidence from expert archaeologists, but the present cases must be decided exclusively on the evidence adduced in their own trial". The trial Court then after referring to what was said in the 5 case of Georghhs Lordos and Others r. Government of Cyprus (Case Stated No. 128, unreported), and in the case of Aphroditi Michael v. The improvement Board of Dha/i

(1969)3 C.L.R., 112. said: "With the above in mind we do not find any evidence on 10 record to justify the assumption that the Director of Antiquities could lawfully refuse absolutely any kind of development of any of the acquiring properties. Certain answers or admissions made in cross-examination by the expert for the claimants, upon which, we understand, the 15 Acquiring Authority is relying in this respect, cannot afford, in the circumstances, adequate factual substratum for such an inference. On the evidence before us as a whole, we are satisfied that the acquired properties were agricultural lands but they also possessed a hope value 20 regarding other more profitale use and development including building in the future, provided adequate supply of water could be secured. Such additional hope value should be measured and appreciated, however, in the light of the fact that the limitations under section 8

(1)of 25 Cap. 31 were always there, and that the owners of the acquired plot No. 121 applied once in 1972 for a permit to build a hotel which was turned down on several reasons including the lack of proper supply of water." The trial Court had before it two valuers and their respective 30 reports. Both employed the direct comparable method of valuation which has been considerd in a number of authorities as one of the safest methods and as possessing advantages provided of course certain factors exist, such as the availability of sales of other properties which are comparable or capable 35 of comparison with the acquired property being similar as regards their size potentialities, neighbourhood and all other characteristics which indeed in minds of informed prospective purchasers affect their market value. Also their 436 I C.1..R. .5 Attornc>-Gcneral\. Charalambous and Others A. l.uizmi.' sale must have taken place under similar conditions so that any element of speculation is either reduced or eliminated and the truth is arrived at as a result of the advantages of the direct comparable method of valuation (s?e Moti and Another v. The Republic, 1961 I C.L.R. 102). The trial Court then dealt at some length with the evidence and the reports of the two valuers and with the characteristics of the comparable sales and came to the following conclusion: 10 15 20 25 30 35 *'We have already refened to several serious drawbacks in the valuations made in the present case by both valuers. This makes it impossible for us to accept entirely the valuation or evidence of either valuer. It is, therefore. pertinent, in performing our task to assess compensation for each claimant, which would be equal to the loss which he has suffered as a result of the acquisition, to make our own adjustments and estimates upon a consideration. of the evidence before us taken as a whole. We are entitled to do so on the authority of Rashid Ait andAnother v. Vassitiko Cement Works Ltd.

(1971)1 C.L.R-, 146. We are minded in the context that equivalence of the compensation ίο the loss suffered is the basis of statutory compensation as provided for in section 10 of the Compulsory Acquisition of Property Law, 1962, a> it has been interpreted and applied in a number of authorities having regard to the provisions in Article 23.4(c) of our Constitution. See, for instance, D- J. Detnade> & Sons Ltd. v. The Republic of Cyprus

(1977)1 C.L.R., 189, and Moti case (supra). It is our task to dermine the value of die acquired properties as a question of fact which in ihe present, case can. we think, be best formulated thus: on i4th May, 1976. what price would a willing purchaset offer, and a a willing seller accept, or the properties taken, having regard to their intrinsic characteristics which include the fact that they are ancient monuments. On the basis of all the above, we,propose now to compare each acquired pibt with each compaiabie and make those -adjustments which we think necessary and fair in the ci­ rcumstances. 437 Λ. Loi7uu J . Attornej-General ι . Charalambous and Others

(1983)A. Contparabies I and \A vlz-a-vizPlot 121 Sale price per donum as at 1.1.1968 Plus 10% (ten per cent), being the net result of all plus and minus regarding location and shape £1.900 £ 190 5 TOTAL £2,090 Plus 9% (nine per cent) increase annually for seven years 1,323 Total per donum value on 14.5.1976 as adjusted £3,413 10 B. Comparable 3 viz-a-vizPlot 121 Sale price per donum as at 31.12.1970 £3,100 Advantage of Plot 121 regarding location is set off against advantage of Comparable 3 regarding shape and whole interest. 15 Plus 9% (nine per cent) annual increase for four years £1,116 Total per donum value on 14.5.1976 as adjusted £4,216 C. Comparable 4 viz-a-vizPlot 121 20 Sale price per donum as at 24.8.73 Plus 15% (fifteen per cent) for better location and shape TOTAL Plus 9% (nine per cent) annual increase for about one year and a half Total per donum value on 14.5.1976 as adjusted 438 £2,200 £ 330 £2,530 25 £ 340 £2,870 1 C.L.R. Attorney-General \. Charalambous and Others A. Loizou J. We shall now go through the same process regarding Plot 123/1/1. A. Compatibles 1 and \A viz-a-viz Plot 123/1/1 Sale price per donum as at 1.1.1968 5 10 £1.900 Plus 10% (ten per cent) for being a sale of 1/4 share,and another 20%(twentry per cent) for the better shape and location of Plot 123/1/1, i.e. 30% (thirty per cent) in all i 570 TOTAL £2.470 Plus 9% (nine per cent) annual increase foi' seven years £1.556 Total per donum value on 14.5.1976 as adjusted £4.026 B. Comparable 3 viz-a-viz Plot 123/1/1 15 Sale price per donum as at 31.12.1970 Plus 15% (fifteen per cent) for better location of Plot 123/1/1 TOTAL "20 25 30 £3.100 £ 465 £3.565 Plus 9% (nine per cent) annual increase for four years £1,285 Total per donum valueon 14.5.1976as adjusted £4.84S C. Comparable 4 viz-a-viz Plot 123/1/1 Sale price per donum as at 24.8.1973 Plus 10% (ten per cent) for being a sale of 1/2 share and 25% (twenty-five per cent) . for the better shape and location of Plot 123/1/1, i.e. 35% (thirty-five per cent) in all .TOTAL Plus 9% (nine per cent) annual increase for about one and a half year ^ Total per donum value on 14.5.1976 as adjusted 439 £2.200 £ 770 £2.990 £ 408 £3,398 Λ. ' "'.ιαυ J. Attorney-General*. Charalambousand Others

(1983)The above calculations lead us to three figures, each corresponding to the per donum market value of each οΐ the three comparable properties as at the date of the publication of the relevant noticeof acquisition, as adjusted after comparison with the acquired Plpt

1. Ihe average of the other three 5 fipurcs produced from a comparison and adjustment of the s;ime comparable properties with the other aquired plot, i.e. Plot 123/1/1, we ifrrive the figure of £4,
2. In view of the above, we assess the per donum value of Plot 121 at £3.500 and that of Plot 123/1/1 at £4,
3. 10 This is the nearest tu the truth thai we can reach on the Evidence before us as a whole. Taking further into consi­ deration the extent of each acquired plot we find the market value of each acquired property as follows: Plot 121: £21,875.- Plot 123/1/1: £10,663.- 15 Regarding Plot 121 the amount of £21,875.-represents ihe aggregate of-the interest of each of ihe twojoint owners, valued separately, i.e. on the basis that each owner owns only one half share therein. It follows that the 20 value cf each half undivided share therein is assessed at £10,937.500 mils. The above amounts, though smaller than the ones claimed by the claimants, are very substantially larger than those offered by the Acquiring Authority. Taking 25 this into consideration and the delay which has occurred for which the claimants are not to blame, we think that the claimants are entitled to additional compensation . in the nature of interest on the above amounts at the rate of 7% (seven per cent)per annum from 8.10.1976when the 30 acquisition was sanctioned and until today. Such additional compensation is, in the circumstances of this case, payable to the claimants under paragraph

(1)of section 10 of the Law so that the compensation may become just and adequate having regard totheirloss. We have inthis respect 35 followed and applied Jacobs v. U.S.A.,

(1933)290 U.S., 13, Moti case (supra), Rashid case (supra), and particularly, The Republic of Cyprus v. Christakis A. Sarvit/es & Others',

(1975)I C.L.R.,

1. 440 ί C.L.R. Attorney-General v. Cliaralamhous and Others Λ. l.oizmi .!. The Claimants are also entitled to their cost" . 5 10 At this stage it may be mentioned that although appeals were filed on behalf of theclaimants against the aforesaid assessmentS'they have been withdrawn and dismissed accordingly with no order as to costs. We have, therefere, to deal only with this appeal and the grounds upon which it has been argued are the following:" 1 . The decision of the trial Court in assessing the value of Plots Nos. 121 and 123/1/1 of Sheet/Plan No. 54/4i> of Ayios Tychonas village at £21,875.- and £10,663.respeotively is arbitrary and unreasonable.
2. The trjal Court misdirected itself as to the legal princilc* applicable respecting the 'assessment of compensation payable. 15
3. The trial Court wrongly applied the law respecting the assessment of conpensation payable. 20
4. The finding of the Court that the acquired lands possessed a hope value regarding other more profitable use and development including building in thefuture is unfounded and not based on the evidence. 25
5. The trial Court was wrong in holding that there ought to be an enhanced value to the acquired lands by an increase of 9% on the value of the comparables as it bases this finding on the value of properties of different potential and character to the acquired properties.
6. The trial Court was wrong in finding that the acquired lands due to their lacation had an enhanced value over the comparables.
7. The trial Court was wrong in holding that comparables 1and 4 do not have an enhanced value on account of the fact that part of them is by or next to the sea.
8. The trial Court was wrong in considering comparable No. 3 as a comparable viewing the different potential and character of the said property. 30 35
9. The trial'Court was wrong in finding that Plot 123/1/1 had a greater value than Plot 121." 441 A. Loizou J. Attorney-GeneraI v. Charalambous and Others

(1983)Thefirst three grounds are obviously of a general nature and are elaborated in effect by the remaining six. We have paid due regard to the arguments advanced on behalf of the appellants' counsel and to the answers given, thereto on behalf of counsel for the respondents and we have come 5 to the conclusion that this appeal cannot succeed. The assessment of the value of the subject properties by the trial Court, and for the detailed reasons given in its elaborate judgment, was neither arbitrary nor unreasonable, nor in our view there has been any misdirection as to the legal principles applicale 10 to theassessment ofcompensation payable inthecircumstances. The trial Court, having listened to thedivergent viewsof the two valuers who were called to give expert evidence, could in the circumstances proceed with their own assessment of the compensation payable to the owners under the Compulsory 15 Acquisition of Property Law, by taking, as held in the Rashid AHandAnotherv. Vassiliko CementWorksLtd., (supra), at p. 155, the evidence before them as a whole, as they in fact did. Needless to say that on such matters this Court does not have the advantage of hearing the evidence of the two valuers from 20 the witness-box as the trial Court did. With regard to the complaint that the trial Court was wrong in finding that the acquired lands possessed a hope value, the answer istobefound in the trial Court's ownreasonfor coming to this conclusion, that it was because of the absence of any 25 expert evidence on the archaeological potentialities to these lands that it soconcluded unlike other similar cases wheresuch expert evidence was called by the acquiring authority. In our view this was correct in law and reasonable in the circumstances. Though no separate amount is given for it, 30 yet, if a comparison is made between the valuations of the experts of the two sides and the adjustments made to these values on other grounds, one can see that this "hope value" wasnotabigone,andinnowayitcanbeconsideredasthatthat would have been given had the lands in question been found to 35 be free from any restriction development. Indeed only the value ofa "hope"in the sensethat that word naturally indicates _, was accordingly given and there was also positive evidence before the trial Court justifying such a conclusion. Further442 1 C.L.R. Attorney-General v. Charalambous and Others A. Loizou J. • more this "hope value" was subject to further limitations such as the securing of adequate supply of water and also the limitation under section 8

(1)of Cap. 31 and that the owners of the acquired plot No. 121 applied once in 1972 for a permit to 5 built a hotel which was turned down for several reasons, including the lack of proper supply of water. 10 15 20 25 With regard to the complaint that it was wrong for the trial Court to hold that there ought to be an enhanced value to the acquired lands by an increase of 9% on the value of the comparables, same has to be viewed in the light of the conclusions drawn on the evidence regarding the comparables and the correctness in treating them as such a conclusion, which we have already found reasonable and in accordance with the Law in respect of which we pronounced that we could not on appeal interfere. That being so, the assessments that the trial Court found that it ought to have made in alhninating differences and reducing disadvantages or adding normal annual increases in values, was only a natural consequence, and as said in the case of the Commissioner of Limassol v. Marika Kirzi, 24 C.L.R. 197 at p. 204, it is not within the province of this Court to question the amounts of the discount made by the Tribunal (trial Court) under various subjects when supported by evidence, unless it is so low as to amount to not making any allowance under the particular subject at all, and as said therein at p. 204 of the report the same applies to rates and percentages employed in deductions and adjustments for bringing up the comparisons on the same level. We do not intend to go into detail with regard to grounds 6, 7, 8 and 9 as the trial Court in itsjudgment has dealt admir30 ably with the matter in a separate chapter under the heading "The Comparables" where it deals with every aspect of the matter, the divergent views of the two valuers and as emanating from their respective reports and explained on oath in evidence before them. We would have been unnecessarily making this 35 judgment more lengthy if we were to reproduce here verbatim what the trial Court said on this matter. Suffice it to say that ' having heard the arguments advanced against the findings of fact made by the trial Court and the conclusions drawn thereon we have not been persuaded that this Court, on appeal, could 40 interfere with them. 443 Λ. Loizou J. Attorney-General v. Charalambous and Others

(1983)The trial Court saw no sufficient reason to justify the ex­ clusion of Comparable 3 by the expert of the Acquiring Autho­ rity on the ground that the limitations imposed on ancient monuments in the area within the two rills are more honerous or strict than those imposed on ancient monuments which, like 5 Comparable 3, are situated outside the area. Furthermore regarding this comparable, which was included in the Second Schedule to the Law in 1966 no explanation has been given regarding the price it fetched in the open market on the 31st December 1970, a price indicative of the fact that its purchaser 10 offered to the seller such one that in his opinion the property was worth it in view of its characteristics and its potentialities restricted by the limitations of its having been declared an an­ cient monument, no matter whether that was done in 1966 or in

1. On the question of Comparables I and 4, the Court rejected the opinion of the expert of the Acquiring Authority that they possess any advantage increasing their market value to any extent whatsoever over the acquired properties on account of their extending to the south of the main road and offering 20 themselves as a private access to the sea by the occupants of two other plots which lie to the north of the road and form the basic parts of these two Comparables respectively. We need not say any more on this point. Finally the question of the increase in value of properties the 25 area where the acquired properties lie from 1966 when the earliest Comparable sales occurred, i.e. Comparable 1, until 1976 when the relevant Noticeof Acquisition was published was also examined by the Court. The Acquiring Authority's expert said that he did not know whether any such increase occurred 30 between the years 1967 to 1973 when Comparable 4 was sold. In contradistinction to this claim of the expert of the Acquiring Authority there had been produced a study on behalf of the expert of the claimants giving an annual increase ranging from 9% to 111%. On the evidence before them the trial Court 35 found that from 1967 to 1974 the average annual increase of the properties in the area was in the region of about 9% per annum. There was no increase, however, from the time of the invasion until at least the end of 1975, but there was a further smail increase during the first months of
2. 40 444 15 1 C.L.R. Altorney-Generul \. Charalnrnbous and Others A. Loizou J. All these conclusions are duly born out from the evidence adduced and we see no reason to disturb them. In conclusion, we would like to observe that the trial Court obviously exercising its discretion under rule 19 of the Compensation Assessment Tribunal Rules, 1956, still in force by virtue of the provision of section 20of Law 15of 1962and which rule provides that the Court may, if it thinks'fit, direct that any sum awarded by it shall carry interest from the date of the award at the rate of 4% per annum, made no order as to interest urge that speedy payment be made to the claimants so that they will not suffer undue toss through any delay. For all the above reasons this appeal is dismissed with costs. Cross appeals as already said dismissed with no order as to costs. Appeal dismissed with costs. 445