Court allows direct comparison method for compensation but requires zone adjustments and prices at notice date.

[*217] 1984 Nov 19

(ARTEMIDES, AG.P.D.C.)

IN THE DISTRICT COURT OF LIMASSOL

Despina Lazarou and Others,

Claimants,

v.

The Republic of Cyprus,

Acquiring Authority.

(Reference No. 3/83).

Compulsory Acquisition - Compensation for - The direct comparison method - The factors that are required to exist in order to make possible employment of the method - The proximity of the sale of a comparable to the relevant date is a vital factor - Though sales which have been made either before or after the relevant date may be used, this can only be done, if there are no other comparable sales in proximity to the relevant date - Comparables situated within building zone B3 (Building Allowance 0.20:1) whereas subject property situated within building zone Z (building allowance 0.10:1) - Whether such comparable can be relied upon - Question answered in the affirmative, provided the other characteristics of the comparables and those of the subject-property “bear comparison - In such a case an adjustment should be made because of the different zone.

Compulsory Acquisition - Compensation for – Injurious affection - It should be assessed on the basis of prices ruling at the date of the notice to treat, and not on the basis of prices ruling at the date of the hearing – The Compulsory Acquisition of Property (Amendment) Law 25/83, adds nothing to the state of the law as it was in this respect, but simply make matters more than explicit.

Compulsory Acquisition - Evidence - Experts - The duty of an expert is to help the Court to arrive at a correct finding, i.e. at the fair and proper compensation to [*218] be paid to the claimants - Court not bound to accept the opinion of either expert.

N. Zomenis, for the Claimants.

G1. HjiPetrou, Legal Asst. for the Attorney-General of the Republic for the Acquiring Authority.

JUDGMENT

The following judgment was delivered by:-

ARTEMIDES, -Ag .P.D.C. :- We all now enjoy the great convenience of the new Nicosia-Limassol highway. The road however had to be constructed over privately owned land which has consequently been compulsorily acquired pursuant to the provisions of the relevant law (Law: 15/62). The land of the four claimants has been subject of such acquisition, the notice of which was published on 24.3.77. The order sanctioning the acquisition was published on 3.3.78. There was no agreement between the acquiring authority and the claimants as to the compensation payable and the issue is the subject of this reference.

Description of the land:-

The part of the land acquired is of an extent of 5 donums 2 evleks from a total of 1 2 donums 2 evleks. The registration of the land bears No.8278, plot 226, sheet/plan; I34/45, and is situated at Ayios Tychonas village. The shape of the property is shown in the relevant plans filed in Court by the valuer of the acquiring authority Mr. Martides and that of the claimants, Mr. Pantelides. [*219] The plan of Mr. Pantelides is exhibit 2 and in view of the fact that it is on a bigger scale the land, which is coloured green on it, is shown more explicitly. As it can be easily seen the shape of the land is quite irregular (with a centre and three throngs extending from it). The part acquired is its centre. The road, that has already been constructed, has cut through the land in such a way that the three throngs are now completely separated from each other. The property had a frontage along its western side with the main road of Ayios Tychonas leading to the seashore main road of Limassol-Nicosia. It lies within the boundaries of Amathus Improvement Board. Both experts agree that the subject property has development potentialities.

The Evidence.

The two experts have employed the same method i. e. the direct comparison, in order to arrive at their conclusions regarding the value of the land as the date of the notice of acquisition, which pursuant to the provisions of s.10(a) of the law is the relevant date.

The direct comparison method has been repeatedly stated by our Supreme Court to be the best one in that it leads to the safest results, see: Attorney-General of the Republic v. Despina Michael Charalambous and Others (1983) 1 C.L.R. 431 and the very recent case of The Republic v. Ioannis Christophides and Others (l984) 1 C.L.R. 305.

The employment of this method requires the existence of certain factors. Those are enumerated, not of course exhaustively, in the case of The Attorney-General v. Charalambous [*220] and Others, cited above, at page 436.

“The trial Court had before it two valuers and their respective reports. Both employed the direct comparable method of valuation which has been considered 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 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 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 (see Moti and Another v. The Republic (1968) 1 C.L.R. 102)”.

The valuation report of Mr. Pantelides is exhibit 1 and that of Mr. Martides exhibit 4. Mr. Pantelides compares the subject property.with nine comparabies contained in a list marked appendix 1 attached to his report and the plan, exh. 2. No.- 29 in the list has. been abandoned.by him,saying that this piece is not comparable and was merely included it in the list to show the tendency of prices. These comparables are shown in exhibit 2 delineated with blue pencil [*221] and numbered in accordance to the list appendix 1.

Mr. Martides employed four comparables but he has also abandoned during his testimony comparable No.3 in his report. The comparables used by Mr. Martides are also coloured blue on the map produced by him and bear the same number given to the pieces in his report.

A remark that I can forthwith make is that it is indeed peculiar to notice that each expert does not employ even one comparable used by the other. This fact, including some other of their conclusions, that will have to be considered and commented upon in due course, show the great difference in the value of land arrived at by each expert. Mr. Martides puts the value of the land at the relevant date at £3,000, per donum, whilst Mr. Pantelides at £7,800.

I agree with the comment made by Mr. HadjiPetrou, appearing for the Attorney-General of the Republic, when he said that the duty of experts is to help the Court arrive at a correct finding i.e. at the fair and proper compensation to be paid to the claimants. Such variance in the opinion of the experts show how very difficult the task of the Court is made and at the same time the wisdom of the decision of our Supreme Court to the effect that the trial Court is not bound to accept the opinion of either expert but arrive at its. own decision as to what is the proper compensation. See Ali and Another v. Vassilico Cement Works Ltd (1971)

1 C.L.R, 146. By saying this I do not mean that the experts cannot truly and honestly disagree but in the present case, in my judgment, Mr. Pantelides has done this [*222] in an apparent endeavour to inflate the compensation to he paid to the claimants. I therefore proceed to discuss and commend upon the comparables used by either side in order to arrive at my own conclusions.

One of the main factors which will characterize a sale as comparable to the subject property, is that the sale of the comparable must have taken place in the open market at a date proximal to the relevant one, in our case 24/3/77. The closest sale to that date of the comparables used by Mr. Pantelides is that of the land marked 18B on his plan i.e. plot 250-4/1/2 which was sold on 18.3.78 at £5,900 per donum. The next nearest sale is that of No.22, plot 200/I/I, sold on

29.12.78 at £5,032 per donum.

No.24, plot 299/3, was sold on

14.5.79 at £6,531 per donum. No. 28, plot 224, on 3.6.80 at £7,000 per donum. No.32, plot 415, on 4.8.81 at £13,333 per donum. No. 37, plot 312, on 16.11.81 at £10,286 per donum.

It can easily be observed, from this list that the closest sale to the relevant date is over a year later on, whilst the other sales range from about two to four and a half years later. The comparables on the other hand used by Mr. Martides were sold very near the relevant date, that is plot 167 on 10.5.77 at £4,000 per donum. plot 109 on

5.11.77 at £3,478 per donum and plots 172/3, 172/1/2, 172/2/1 and 172/5 on 19.2.77 at £1 ,600 per donum.

Mr. Pantelides insisted in his cross examination that sales which take place earlier on or later than the relevant date may be employed to provided that the necessary [*223] adjustments are made to bring the value of the comparables to the relevant date. He in fact alleged that this is a matter of arithmetical calculation.

I do agree that sales which have been made either before or after the relevant date may he made use of. This, however, can only be done in case there are no other comparable sales in proximity to the relevant date. If there are such sales, which of course in all other respects can be considered as comparables, then these should form the basis of the valuation. I disagree with Mr. Pantelides that it only entails a matter of arithmetical calculation to make the adjustments in sales effected away in time from the relevant date. The proximity of the sale of a comparable to the relevant date is a vital factor. If the sales are not near the relevant date it means that several other considerations and factors may have intervened in the market and thus the valuation based on such adjustments will become unsafe and theoretical.

In order to show the wrong course followed by Mr. Pantelides I need only refer to the percentage proportion of the adjustments made by him in order to bring the prices of the date of sale of the comparables to the relevant date. Comparable 18B had to be lowered by 35%,

22 by 52%, 24 by 65%, 28 by 95%,

32 by 130% and 37 by 140%

From the comparables of Mr. Pantelides, however, No. 22 though sold on 29.12.78, in view of the fact that all its other physical characteristics bear comparison with the subject property, must in my judgment be considered as comparable. This much has been agreed to by Mr. Martides in cross-examination. [*224]

I have stated above the percentage with which all comparables used by Mr. Pantelides would have to be lowered in order to adjust the price to the relevant date. If we take all the above prices of the comparables into consideration then the average sale price would be £4,217 per donum at the relevant date. The pertinent question that should inevitably follow would be how Mr. Pantelides arrived at the value of £7,900 for the subject property. Well, he is supposed to do this by comparing the other characteristics of the comparables with the subject property and finds that the subject property is far better than all the comparables to the following percentages. The subject property is better than comparable 18B by 145%, to 22 by 100%, to 24 by 80%, to 28 by 40%, to 32 by 80% and to 37 by 65%. Now how is it possible that the comparables employed by Mr. Pantelides could in law be considered as comparables if their characteristics compared so poorly with the subject property to the extent of the percentages which I have recited above? Mr. Pantelides has done this, as I have already said, in an apparent endeavour to inflate the compensation to be paid to the claimants. I shall not refer extensively to the evidence of Mr. Pantelides on this point in his attempt to substantiate that the subject property was a much better land than the comparables used by him. I shall only give one or two examples. He says that he adds to the subject property 40% over comparable 18B because the comparable is an enclaved property. He further adds 75% to the

value of the subject property because it is better located than 18B. He also adds 50% to the subject property because 18B

is of a bad shape. He [*225] makes an allowance of 20% in favour of the comparable for its better view to the sea and he therefore concludes that the value of the subject property is by 145% higher than that of the comparable. He follows the same procedure with almost the same percentages in regard to all the other comparables.

I reject with no hesitation whatsoever the conclusions reached by Mr. Pantelides which are utterly unfounded and not supported by any data He arrived to his findings arbitrarily for the reason I have already stated earlier on. Mr. Pantelides has not based himself on any sales to show that view to the sea, location of the plot, shape or any other qualities, for which he has made the allowances referred to earlier on, has taken place and thus the open market proves him right.

The valuation report of the acquiring authority’s expert Mr. Martides as well as his evidence in Court is more correct and credible. He has proceeded to make his valuation and give his evidence as a good and able valuer whose only aim was to arrive at correct conclusions in order to help the Court to adjudge to the claimants just and fair compensation. The comparables he employed to arrive at his findings are less in number than those of Mr. Pantelides but bear the characteristics of true comparables and their sales took place on a date very near the relevant one, that is 10.5.77, 5.11.77 and

19.2.77. The location of the comparables is very near to the subject property and have the same physical values and qualities as land with development potential. They are within the area of building zone B3.with a building allowance of [*226] 0.20:1 whilst the subject property lies within building zone Z with an allowance of 0.10:1.

It is common ground between the two valuers, and understandable even to the layman, that land in zone B3 is more attractive in the market and thus fetches a higher price, because the building allowance is much higher than that in zone Z and therefore its development more profitable.

Although Mr. Pantelides has agreed with this fact, he could not say even roughly how much higher a percentage in price a piece of land in zone B3 would fetch than one in zone Z, if of course all the other characteristics were similar. I concede that a special inquiry would have to be carried out if a valuer was to arrive at such a conclusion, but one could say broadly what this percentage would be. Mr. Martides has put it to around 30% justifying this on his general knowledge of the market in the area. Mr. Zomenis in cross examining Mr. Martides has put it to him that this percentage is only 3-4% This suggestion is to my mind untenable, even more so if one bears in mind the higher percentage Mr. Pantelides has placed on the subject property in comparison to his comparables for location, view to the sea, shape of land etc. There is no doubt whatsoever that the more favourable the building zone in which a piece of land lies the higher the price it would fetch. This is my judgment is a weighty factor and in the present case surely not of the little in favour of the subject property. [*227]

Mr. Zomehis in his endeavour to attack the comparables of Mr. Martides said that since those comparables are within zone B3 they cannot be relied to because, the subject property is in zone Z. That to my mind is absurd. If the other characteristics of the comparables and the subject property bear comparison, then of course an adjustment can be made because of the zone. In the present case as I have said earlier on, no proper inquiry has been made but it is admitted, and it is only reasonable to assume, that land within zone B3 fetches a better price than one in zone Z. After all it should be remembered that Mr. Pantelides has put the value of the subject property at £7,800 per donum i.e., nearly double the price of all the comparables used by Mr. Martides and which are within zone B3.

Having considered the evidence as a whole very carefully I think that the best comparables are those relied on by Mr. Martides and in particular comparable I in his report (plot 167). Comparable 2, (plot 109) and comparable No. 22 used by Mr. Pantelides (plot 200/I/I/I), which, quite fairly, Mr. Martides agreed that bears comparison although slightly better than the subject property, can also be relied upon. On this last plot, now owned by advocate Vyron Vassiliades of Limassol, a house has

been erected. with regard to comparable 2 I have in mind the. case of Moti and Another v. The Republic (1968) 1 C.L.R. 102 where

the Supreme Court observed that sales of undivided shares in land cannot be relied upon as comparables. In that case the 1/4th share was sold on 5.11.77. In view, however, of the fact that this [*228] sale is within the market bracket’s of the sale price of comparable I of Mr. Martides and 22 of Mr. Pantelides, it proves the general tendency of the market in the area at the material time.

Comparable I was sold on 10.5.77 at £4,000 per donum, comparable 2 on 5.11.77 at £3,478 per donum and comparable 22 of Mr. Pantelides on 29.12.78 at £4,032 per donum. If the price of this last comparable is brought to the relevant date by the necessary adjustments we will have the figure of £3,300. I consider comparable I, (plot 167), better than the subject property because it is of a good square shape and lies within zone B3 whilst the subject property is of an irregular shape and in zone Z. This applies equally to comparable 2 and the lower price paid for it shows that a buyer of an undivided share makes an allowance of about 10% On this Mr. Pantelides and Mr. Martides are in agreement. I reject comparable 4 of Mr. Martides in view of the fact that its low price is outside the tendency of the market as shown in the comparable sales I have just referred to. In fact this was a sale by a contract made on 19.2.77 whilst the property was transferred in the name of the purchaser in 1978 and we do not know the terms of payment provided to in the contract. I consider comparable 22 of Mr. Pantelides, i.e. Mr. Vassiliades’ property, as bearing rather similar qualities to the subject property. Both pieces have an extensive frontage on the main Limassol-Ayios Tychonas road but the shape of comparable 22 is better than that of the subject property which, [*229] I repeat, is irregular, as one can easily see from the maps. Comparable

22 is of smaller size and thus attractive to more pockets. Mr. Martides said that this property is slightly better than the subject property and I think he is right although he has not formulated his answer in terms of figures. Taking into consideration the prices fetched by the above comparables; I think that the value of the subject land at the material date, that is 24. 3.77, was £3,200 per donum.

Injurious affection - Betterment.

As it has already been stated and also depicted in the plans put in as exhibits, the highway, the construction of which necessitated the acquisition, has severed the subject property into three separated parts. Mr. Pantelides has marked these three parts with letters P and H, the two pieces to the south. of the road and with K the piece to the south. They are now respectively plots 226/1, 226/2, 226/3.

Mr. Martides in his valuation report states that plots 226/2. and 226/3 have suffered injurious affection because of the construction of the road by 25% whilst 226/1 enjoyed the betterment of 10%. Mr. Pantelides on the other hand is of the opinion that the three remainders have suffered injurious affection to the following extent: Plots 226/2 and 226/3 by 75% whilst 226/1 by 50%. This claim .is based of course on paras “f” and “g” of section 10 01 the. law (Law 15/62).

On the application of both sides I. visited the subject property in the presence of course of counsel, the [*230] valuers and the claimants and saw at the spot its physical qualities, the highway and the surrounding area, as well as the comparables. The highway is completed and we therefore had the opportunity to see the property as same has been left after its severance into three separate pieces.

A general observation that can he made is that certainly the highway will have a great effect on the profitable development of properties in Limassol, in view of the fact that travelling to the town has been made more easy and enjoyable. Of course each case will have to be examined on its own merits, plot 226/1, “P” on Mr. Pantelides’ plan, still enjoys the frontage on the Limassol-Ayios Tychonas road, which was enjoyed by the property as a whole before the construction of the road. An important factor is that this road is now directly connected with the highway at level crossroads. The protective strips therefore on either side of the road do not affect this portion of the land. The direct connection with the highway means quite a lot for that piece but less for 226/2 and 226/3 (H and K on Mr. Pantelides’ map).

Before the construction of the highway if one wished to travel from the subject property to Limassol he had to go from the Ayios Tychonas road to the main road along Limassol beach. This could take, according to the evidence of Mr. Martides, at least 45 minutes whilst now through the highway one can travel from the subject property to Limassol in just 10 minutes. [*231]

It is a fact that the road has been constructed on a higher level than the level of plot 226/1 also this plot as well as the rest of the property has suffered because of its severance into three pieces. But the advantage I have described earlier on, offsets comfortably any injurious affection it has suffered because of the construction of the highway. I therefore find that neither betterment nor injurious affection exists for the portion of the remaining property.

It is not disputed, and in fact it is a provision in the relevant notice of acquisition, that on either side of the road there will be sterilised zones or protective strips. This means that properties on either side of the road will have no direct access to the highway. The only possible access would be through the side roads leading, to the highway. Along the highway a fence has been constructed so that access to or from the road is made physically impossible. Properties which have no other access to the highway through secondary roads or right of way become in fact enclaved properties and no building permit can be issued for their development unless such an access is gained through legal means. There is no dispute, and Mr. Martides agrees, that plots 226/2 and 226/3 have become in this respect enclaved. This of course does not mean that they have become useless property to their owners. Their development, however, has become more difficult because the owners will have to secure access to those properties by invoking the provisions of the Immovable Property Law. Before the acquisition the whole property had a long frontage to the main Limassol-Ayios Tychonas road. There is no doubt therefore that this factor works [*232] to the detriment of these two portions of property that remain to the owners. On the other hand if this difficulty is overcome then this land would also enjoy the advantages I have enumerated earlier on from the highway leading in no time to Limassol town and thus rendering it more attractive to a purchaser. The sales of properties with no access effected after the relevant dote, prove that there is demand for such land. The comparables of Mr. Pantelides numbered 18B, 28, 34, 29 and 34A in his map (exh. 2), are relevant. Taking all the above into consideration I think that plots 226/2 and 226/3 have suffered an injurious affection by 30% in their value. By reference to what date is injurious affection to be calculated.

Mr. Zomenis in his statement of claim and in his final address invited the Court to decide that the injurious affection must be calculated on the basis of prices ruling at the time of the

hearing. Mr. Zomenis relied to support his submission on the case of Demades & Sons Ltd. v. The Republic (1977) 1 C.L.R. 189

He also referred me to a District Court case, i.e. that of Melani Antoni v. The Republic (1975) 5 J. S.C. 711. Mr. Hadjipetrou submitted that this is not the law and cited section 10(a) of the law which provides that the compensation payable for land compulsorily acquired is assessed at the price this property would fetch if it were sold voluntarily in the open market at the time of the notice of acquisition. He also referred to my judgment in reference 34/75 in which I have debated the same problem at some length. I can do no better than simply attach to this judgment the relevant part of my decision in the above [*233] reference. Shortly, I am of the view that the Supreme Court has not laid down the principle of law Mr. Zomenis relies on. The Demades case does not decide that injurious affection is to be assessed on the basis of prices ruling at the date of hearing. In my judgment compensation for the acquisition of land cannot he assessed on one date that is on the date of notice of acquisition as provided for by the law but compenation for injurious affection and betterment, which is nothing else than compensation for the loss sustained by the claimants, on another date. Such a proposition would lead to absurd results as I indicate with an example in the attached decision. This may also be shown in the present case. Mr. Pantelides assesses the compensation, in exhibit 1, payable to the owners for the land acquired at £42,900 whilst the compensation for injurious affection to the remaining parts to £121,875. He finds that the price per donum of the land at the relevant date is £7,800. The whole property is of an extent of 12 donums 2 evleks. If the Republic had acquired the whole property, the compensation payable to the claimants would have been £97,500, whilst Mr. Pantelides finds that the compensation payable to the claimants for the injurious affection only is £121,875.

On 27.5.83 Law 25/83 was enacted, amending Law 15/62. Section 10 has been amended to the effect that it is now provided that compensation is assessed on existing factors ruling at the date of notice of acquisition. (See s.6(c) of the amending law). This law of course, having been published on 27.5.83, does not apply in the present case. In any event my view is that this amendment adds [*234] nothing to the state of the law as it was. It simply makes matters more than explicit. Probably this has been done because there was a difference in judicial opinion expressed in judgments of the District Courts.

Result:-

In the result the compensation payable to the claimants is as follows:-

Land acquired 5-2-0 X £3,200 = £17,600

30% injurious affection to the remaining parts 226/2 and 226/3 of 4-3-0 donums = 4,560 total £22,160

An order is therefore made that the property subject matter of the acquisition to vest in the name of the Republic upon the payment to the claimants, in proportion to the share of each one on it of the total sum of £22,160 with 7% interest thereon as from 24.3.77 to 26.5.83 and thereafter at 9% to payment.

Regarding the remuneration of the claimants’ valuer Mr. pantelides, to which they are entitled since they are costs incidental to the proceedings of acquisition, I feel hound to repeat what I said in another judgment i.e. 8/81 delivered on 29.5.84 where again Mr. Pantelides was the valuer. The duty of the expert is to make a proper valuation and help the Court arrive at the just and fair compensation to be paid to the claimants. His duty is not to [*235] inflate the claim to please his clients who in the end may feel disappointed. The Court has always a discretion in the matter of costs and if it was not for a reference case I would he inclined not to award any fees to Mr. pantelides. The claimants, however, were entitled to appoint an expert and proceed in Court with their claim. I feel, therefore, duty bound to award to their valuer a sum for his work done. In future however, this course may not be followed. Taking the above into consideration, I award to Mr. pantelides £200 fees. The claimants are also entitled to their advocates costs which will be assessed by the Registrar and appoved by the Court.

Judgment and order as above.

EXTRACT FROM JUDGMENT IN REF. No. 3U/75

THE MISTAKE IN LAW:-

“The question posed for consideration can be formulated as follows: Is the appreciation or depreciation in value of the remaining property of the claimant held with that acquired to be assessed on the basis of prices ruling at the time of .assessment i.e. 1982? As I have already said the experts have proceeded to make their valuation relying on those premises since their respective counsel have always been with the opinion that this is the law. I think that counsel have altogether misinterpreted the ratio decidendi in the Demades case (supra). That case was an appeal [*236] from the judgment of Pikis Ag.P.D.C., as he then was, where he had to deal with a similar matter as in the present case. He said the following in his judgment (the extract taken from p.

205 of the Supreme Court report):-

‘In fact, both under the provisions of Cap.226 (section 10(a)-) and under the provisions of Law 15/62 (section 10(d)-), the Court is required to take into account, inter alia, in computing the compensation payable, any enhancement brought about to adjacent property of the owner, on account of the acquisition. Section 10(d), Law 15/62, speaks of improvement in the value of land on account of the acquisition and it would, I believe, be impermissible to construe this provision of the Law as restricting a betterment levy to enhancements in the value of land brought about solely by the execution of acquisition works. I use the term betterment levy’, not in its accepted connotation, but as referring to the resulting increase of the remaining land because of the acquisition. If this was intended by the legislator it would not be difficult to say so and specify that the benefits must result from the execution of acquisition works and not from the acquisition. Reading section 10(f) in the light of the words used, the context in which it appears in the light of framework of the scheme of compensation

envisaged by section 10 - Law 15/62, I find that it [*237] encompasses all gains resulting to the owner because of the enhancement of his remaining lands on account of the acquis.ition crystallising by the date compensation has to be assessed. Compensation in the

context of section ‘10(f) is a composite notion encompassing both the benefits or injury brought about by the publication of notice to acquire, order for acquisition and the implementation of the order’.

The Supreme Court endorsed what the learned President said and upheld the decision. I have underlined the above because I think that these are the

words that have led counsel to the misunderstanding of the law: Crystallising by the date compensation has to be assessed’ does not mean that the prices ruling on 15 the

day of the assessment shall form the basis for assessing the compensation but that all the material, including the prices as same crystallise on the day of assessment, shall be taken into account in assessing the compensation payable at the relevant date, that 20 is the date of notice to treat. That this is so, it is apparent from the very same judgment of the learned President, as he then was, and which was upheld by the Supreme Court.

Although the judgment of a District Court is not binding on me, yet and in order to make the point clear, I shall refer to another case of a Full Court delivered again by pikis Ag. P.D.C., as he then was, where he had

to deal again with the issue of injurious [*238] affection. This is the case of Melani Antoni v. The Republic of Cyprus (.1975) 5 J.S.C.

711. In that case the Court said the following:-

‘there is nothing in the provisions of section 10 of Law 15/62, compelling the Court to make such valuation on the basis of the ruling prices at the date notice to acquire is published. In fact it would be an anomaly if compensation was assessed that way considering that the object of the exercise is to ensure equivalence between loss and compensation. The Court must assess the claimant’s loss it has crystallised by the date of hearing. In the case of Birmingham Corporation abovecited, it is explained that both betterment and injurious affection have always been assessed on the basis of actual gains or losses as they have crystallised by the time of hearing’.

In that case the property acquired by the Acquiring Authority left the claimant with a piece of land which was rendered useless to the owner after the acquisition. In assessing compensation the Court took into account the circumstances that had been crystallised by the date of hearing in regard to this piece of land and arrived at the conclusion that the claimant could not make any use of it and therefore he should be compensated for this. The valuation, however made for this useless piece of [*239] land was not carried out by taking into account the prices ruling at the date of assessment hut those found by the Court as ruling at the date notification of the acquisition was published. The Court had this to say at p.732:-

‘We have already decided that the plot coloured orange was rendered useless to the owner after acquisition, and he should be compensated for the value of the entire land which loss crystallised at the time notification to acquisition was published and already provision has been made for its value’.

It should always be remembered that the cardinal rule which permeates the principles of compensation is the need to ensure equivalence between the loss suffered by the claimant and the compensation to be awarded to him. This principle has been followed by our Supreme Court and can be found recorded in the case of Osman Misirlizade v. Municipality of Nicosia (1976) 1 C.L.R. 413. It has also been aptly formulated in the case of Demades (supra), where it was said that there is one aim only behind it which is that at the root of statutory compensation lies the need to make a just equation of loss and compensation.

I shall give an example to show how the misinterpretation of the law has led both valuers to absurd results arid certainly well away from the letter and [*240] spirit of the law of compensation, as embodied in the Compulsory Acquisition Law of 1962: In the present case the value of the donums of land was agreed at £710. - at the date of notification. This amount was not arrived at for purposes of convenience but the experts have agreed that that was the actual price of the land acquired at the time. The value of one donum was therefore £473.-. The field comprises 14 donums and therefore its value at the relevant date was £6,622.-. If the Republic had, therefore, acquired the whole field the compensation payable to the claimant would have been £6,622.-. The compensation to which the claimant is now entitled according to his expert, is £13,520. - for the one and a half donums of land acquired and the injurious affection to the remaining land. That is indeed absurd, and as I have already said, the experts are wrong because they

have proceeded on a misinterpretation of the Law and the reasoning in the Demades case (supra). To illustrate the matter further I

shall give another example of general application.

Suppose that by a notice of acquisition in 1970, followed by an order, four donums out of five of a field of a claimant have been acquired. The case is referred to the Court for the assessment of compensation in 1975 according to valuations of the same year the market price for the land acquired [*421] at the date of the notice, i.e. 1970 was £1,000. - per donum. The compensation payable will therefore be £4,000.-. The claimant contends that his regaining land that is the one donum has been injuriously affected as a result of the acquisition and the Court determines that this is so. In fact the remaining land has become useless to the claimant. Since 1970, however prices in the area for various reasons have gone extremely high and one donum of land fetches in 1.975, the date of assessment, £10,000.-. Is the claimant to be compensated for the injurious affection of this one donum of land - at the prices ruling on the day of the assessment, i.e. 1975, which

will be £10,000.-? In my judgment certainly not. This is not what the Demades case or any English authority say. What the Court

said in that case is that the various factors and circumstances which have been crystallised at the date of assessment may be taken into account in assisting the Court to decide on the issue of injurious affection or betterment, so that the just compensation payable be determined, but at the relevant date i.e. the date of notice to treat. In the example given since the land was found to be of no use to the claimant in 1975 to the owner would be compensated for the whole of his field i.e. the five donums at the price of £1 ,000.- per donum which was the assessed value of the land at the date of the notice to treat it as the law provides (section [*242] 10(a)-). The same principle applies in assessing the compensation payable for land acquired. That is prices of comparable sales before and after the notice to treat may be used in order to determine the value of the land acquired at the material date. (See, Demades case (supra) and Melwood Units pty v. Commercial of Main Roads

(1979) 1 All E.R.161). Useful reference may also be made to the case of Jelson Ltd. v. Blady District Council (1973) 1 All 3.R. 584,

where alternative valuations were made in order, however, to determine the value of the land on the relevant date, i.e. the resumption date”.