It should be apparent by now that the inalienable, fundamental rights set out in the Constitution are, given the right circumstances, alienable where there are higher considerations such as national security, public health, the Government’s right to tax revenue and the like.
Section 16 of the Constitution while providing that “No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired” also goes on to provide exceptions to this rule, namely “the authority of a written law” which makes provision for compensation and the right of appeal.
The mechanics of compulsory acquisition by the Crown and the attendant quantification of compensation are set out in the Land Acquisition Act, Cap. 228.
By virtue of section 3 of the act, the land which is to be acquired should be required for public purposes or for purposes for which the Crown is authorised by statute to acquire land.
Notification of the Crown’s intention must be published in the Official Gazette and a daily newspaper on three occasions after which the Chief Surveyor may enter on the property to survey the land and generally to do anything necessary to determine whether the land is suitable for its destined purpose.
Where such property forms part of a dwelling, then permission from the occupier of the property must be obtained, or a minimum of 24 hours’ notice must be given where such permission has not been forthcoming.
Further notification pursuant to section 5 is required when acquisition has taken place but the Governor General may authorise the Chief Surveyor to commence work on the property even before it has been formally vested in the Crown by way of a conveyance (deed).
In order to facilitate the proper transfer to the Crown the Chief Surveyor may require any person with an interest in the property to deliver to him a statement under section 8 of all other persons possessing any other interest in the land such as a mortgagee or tenant and the nature of that person’s interest.
The Crown has been allotted a period of three months from the date of notification in the Gazette in which to complete the acquisition, failing which the person interested in the land may serve a notice requiring the acquisition to be completed. In the event that one month elapses without completion then the Crown is considered to have abandoned the claim within the terms of section 7 of the act.
The statutory right to compensation has been necessarily detailed so as to avoid the spawning of litigation by complying with the requirement of section 16 of the Constitution that the law should prescribe “the principles on which and the manner in which compensation … is to be determined and given”. Where the owners of the property and the Crown cannot agree on the amount of the compensation, then the matter is determined under section 14 of the act by a judge of the High Court on application by the Chief Surveyor or the aggrieved owner/occupier of the property.
The open market value of the property at the time that the acquisition is first advertised is the starting point for the quantum of compensation to be paid. Factors which may serve to increase the quantum include:
(1) Any income derived from the property such as ren;
(2) Any special suitability of the land for any purpose unless this is limited to the “pursuance of statutory powers” or where there is no demand other tan the requirements of the government.
Compensation is not limited to the sale/purchase aspect of the transaction nor is it limited to the land which is being acquired. Where there is damage resulting from the activities of the Chief Surveyor under section 3 then compensation over and above the market value of the land shall likewise be assessed and paid.
In addition, any person who possesses an interest in neighbouring land may also claim compensation under section 13 for damage or injury caused by any works carried out on the acquired land, however, a change in value due to a change of use of the land (eg. from residential to agricultural) cannot ground an action for such compensation.
Interest on any sum of compensation may be awarded by the court and all costs associated with the acquisition are to be paid by the Crown save and except where the interested person has failed to make a claim in writing to the Chief Surveyor within the two year limitation period stipulated by section 21 of the act.