clr/1988/1988_1_589.pdf

(1988)assessed the betterment to the south part of appellants' remaining property at 3 5 % of the compensation agreed by the parties as regards theacquired partandtheinjunous affection tothe north part of the remaining property Inthe course of this appeal, there were raised two issues,ιe 5 (

1. a)Any bettermenttothesouth partwas due totheconstructionof the road which had been completed pnor tothe,acquisition, and (
2. b)The trial Court erroneously accepted the evidence of the said valuer Held,dismissing the appeal 10

(1)Such road could notbe considered as a public road but it was the product of trespass on appellants' property and thus an illegal road which, had there not followed a proper acquisition order, it could have been destroyed by the owners of the properties and m any event could not have given a nght of access to the appellants 15 through theadjoining properties As such itwould notbe considered inlaw as having added abettermenttotheremainderof theproperty

(2)There is no reason to interfere with the findings as to the credibility of the expert evidence 20 Appeal dismissedwithcosts Appeal. Appeal by claimants against the judgment of the Distnct Court of Famagusta {Papadopoulos, Ρ D C and Ehades, DJ ) dated the 21st Apnl, 1986 (Ref No 4/83) whereby the compensation payable for immovable property belonging to applicants and compulsonly acquired was assessed at £21,527 less 3 5 % betterment of the remaining part of claimants' property 25 Υ Kalh (Miss) for A Poetis, for the appellants. G Erotocntou (Mrs), Senior Counsel of the Republic, for the respondent Cur adv vult A LOIZOU P· The judgment of the Court will be delivered by Mr Justice S a w i d e s SAWIDES J This is an appeal against the judgment of the Full Court of Lamaca whereby in Ref 4/83 the compensation payable 3 5 for immovable property belonging to the appellants and 590 ^ 1 C.L.R. Soterlou v. Republic SawidesJ . compulsorily acquired by therespondentwas assessedat £21,527 less 3 5 % betterment of the remaining part of appellants' property. Appellants are the co-owners in equal shares of a plot of land 5 No. 20/5/2 of Sheet/Plan 42/20 E.I. at Ayia Napa village of an extent of five donums, three evleks and 2,300 square feet. On 22nd June, 1979, a notice of acquisition was published in the official Gazetteof the Republic underNot.658 inSupplementNo. Ill, of part of appellants' aforesaid property as indicated on the 10 Lands Office plans, for the construction of a.public road from Xylophagou to Ayia Napa. As a. result of such notice the Government entered upon the property of the appellants and started constructing the part, of the road passing through appellants' property. After the construction of the road was 15 completed it was found out that there was a mistake in that the area, partof appellants' property, used for theconstruction of the road was not the one described in the notice of acquisition. As a result by order published on 8th October, 1982 in the official Gazette under Notification 1051 theprevious noticeof acquisition 20 was revoked. A new notice of acquisition was published under Notification 1046 in Supplement No.Ill of the official Gazette of . the 8th October 1982 in respect of the part of the property over which the road was constructed. Also an order of requisition of such property was made and published inthesame Gazetteunder 25 Notification 1063. An order of acquisition of thesaid property was madeand published inSupplement No.3 of theofficial Gazetteof the 23rd September, 1983, underNotification 1082. As a result of the acquisition order and the construction of the road appellants' property was divided intothreeparts;thepartcovered by the road 30 of an extent of two donums, a part to the north of an extent of 1 •evlekand900 square feet, of atriangular shape, andapartof three donums and 2700 square feet, tothe south. Appellants filed an application to the Court for the assessment of the compensation payable for the acquisition of part of their 35 property and later filed a valuation of their expert according to which the value of the part acquired is assessed at £19,277 (at £8,000 per donum)plus injurious affection tothepart northof the road amounting to £2,250 (90% of its value) plus 20% injurious affection to the remainder to the south of the road amounting to 40 £5,100 thusgivingthe amountof compensation payable as being £26,627. 591 ι S a w i d e · J. Soteriou v. Republic

(1988)According to the valuation of the expert of the respondent the value of the part acquired is given as £15,663 (at £6,500 per donum) plus injurious affection to the part north of the road at £1,422 (70% of itsvalue) plusbetterment totheremainder in the south ofthe road at£8,287 (40%ofitsvalue)leavingabalance of 5 the round figure of £8,800 as the amount of compensation payable. In the course of the hearing itwas agreed by both experts that the reasonableamountofcompensation payableinrespectofthe value of the part acquired aswell as the injurious affection to the 10 part north of the road should be assessed at £21,527 (at £8,000 per donum) and the only issue on which there was disagreement was any betterment to the remainder of the property, the part south of the road. In the opinion of appellants' valuer there was no betterment to such remainder whereas respondents' valuer 15 insisted on a betterment atthe range of35%. The trial Court, having heard the evidence of both valuers, accepted that of respondent's valuerand assessed theamountof compensation payable at £21,527 less betterment due to the construction of the road of 35% to the remainder (the part south 20 of the road). Counsel forappellantsraisedanumberofgroundsofappeal on the findings of the trialCourtastotheexistence ofany betterment and itsextent. His main argument was that the road had already been constucted in 1979byvirtueoftheacquisitionin1979which 25 was subsequently revoked in 1982. Therefore, assuming that therewasanybettermentsuchbettermentwasnottheresultofthe acquisition as no new situation arose in 1982bringin9 a>.">utany bettermenttothepropertyasitstoodatthetimeoftheacquisition. He further contended thatinanyeventinthelightoftheevidence 30 before the Courtthere wasno betterment tothe extentof 35% or at all. As to the first contention of counsel for appellants that the betterment, ifany,had alreadyaccrued asa resultofthe existence of the road which had been constructed by virtue of a previous 35 acquisition, we find ourselves unable to agree with him. The previous acquisition as it appears from the relevant publications was for another part of appellants property and also of all other properties over which the road was to be constructed, a mistake {whichwhendetected necessitated the revocationoftheprevious 40 592 ,1 C.L.R. Soteriouv. Republic Sawides J. 1 acquisition and the making of a new acquisition in respect of the correct position of the road. Therefore, such road without the acquisition order published on 23rd September, 1983 which sanctionedthenoticepublished on8thOctober, 1982, couldnotbe 5 considered as a public road but itwas the product of trespass on appellants' property and all other properties mentioned in the revocation orderandthusanillegalroadwhich,hadtherebeen no proper acquisition order, it could have been destroyed by the owners of the properties and inany event could nothave given a 10 right of access tothe appellants through the adjoining properties. As such it would not be considered in law as having added a betterment tothe remainder of the property. We come next to consider the contention of counsel for appellants that the percentage of betterment found by the trial 15 Courtwas wrong. The trial Court in assessing the expert evidence before it accepted the evidence of Mr. HadjiYiakoumis, respondent' s expert, inpreference tothatof theexpert witness of theappellants. After analyzing such evidence the courtconcluded as follows: 20 25 «Έχω πεισθεί ττέρα από κάθε λογική αμφιβολία πως η μαρτυρία τ ο υ κ. Χ" Γιακουμή βασίζεται πάνω σε γεγονότα επιστημονικά αποδεκτά και οι προσαρμογές τ ο υ έγιναν με μια προσπάθεια να είναι όσο τ ο δυνατό πιο δίκαιος χωρίς υπερβολή καιχωρίς καμμιά διάθεση να αδικήσει οποιοδήποτε. Δέχομαι τ η μαρτυρία ως προς την υπεραξία εξ ολοκλήρου σαν μια θετική, επιστημονική, λογική και δίκαιηεκτίμηση.» and in English: 30 35 «Ihave been convinced beyond any reasonable doubtthat the evidence of Mr. HjiYiakoumis is based on facts scientifically acceptable and his re-adjustments were madein an effort to be as fair as possible without exaggeration and without anyintentiontocause injustice toanyone.Iaccept his evidence as to the betterment, in its totality, as a positive, scientific, reasonable andjust valuation.» We had the opportunity of examining the valuation of both experts andtheirevidence before thetrialCourtinsupportof their respective valuations as itappearsintherecordandhave paid due attention to the arguments advanced by learned counsel for the 593 Sawides J. Soteriouv.Republic

(1988)appellants. On the material before us we have reached the conclusion that the findings of the trial Court are reasonable and based on the proper assessment of the evidence before it. Therefore, we find no reason todisturbsuch findings. In the result the appeal failsand ishereby dismissed with costs in favour of the respondent. 5 Appeal dismissed withcosts. 594