Government and Your Land - 2 | You and the Law

By Dr. William Para Riviere

April 25, 2014

Where no abandonment takes place and the land is acquired, what is the process by which "adequate" compensation is paid to the owner or occupier "within a reasonable time"? The first step towards this is negotiation between the Authorized Officer and the owner or occupier. The Authorized Officer is "any person who may from time to time be appointed as such by the Minister" for purposes of the Act. The negotiation process is to begin as soon as the declaration has been published in the Gazette. The Authorized Officer is expected to offer "reasonable terms and conditions" and to seek "voluntary" agreement with the other party. In fact, even before the publication of the declaration, he may ascertain from the owner or occupier the terms and conditions on which he or she is willing to sell. But nothing decided between the parties at this point is binding. That is to say, whatever was agreed to, may be changed. As Section 6(2) puts it: "no negotiations or agreement shall be deemed to be concluded unless and until the conditions of sale and acquisition have been approved in writing by the Minister."

Where such preliminary negotiations between the parties fail, the terms and conditions of compensation are to be looked into by a Board of Assessment. The Minister has a duty to cause this Board to be set up "as soon as it becomes necessary." The Board is chaired by "the Resident Judge", or a person nominated by him or her from a standing panel of not less than three persons "qualified to perform the functions of Chairman of the Board." The Board is to comprise two other persons: one, a person, other than a public officer, appointed by the Minister; the other, a person nominated by the owner or occupier of the land acquired.

Where, however, the owner or occupier is deemed by the Minister to have refused to nominate a person, or has "unreasonably" delayed the nomination or, in the case of joint ownership or occupancy, where the owners or occupiers have failed to agree as to who is to represent their interest on the Board, the Minister may "by order in writing" direct the Board to proceed without such a representative. In that eventuality, the owner(s) or occupier(s) are bound by the decision of the Board.

Further, where the Chairman and the other member differ as to the quantum of compensation to be awarded, the Chairman's opinion shall be held to be the decision of the Board. But, even where the Board is fully manned, the Chairman's opinion as to the quantum of compensation carries greater weight than that of fellow-members. The decision of the Board is subject to appeal. Here, the decision is accorded the status of a final judgment or decision of a Judge of the High Court.

The Act at Section 19 underlines factors to be taken into account when assessing the quantum of compensation. The major such factor is that the value of the land should be set at the value which it commanded on the open market "at a date twelve months prior to the date of the second publication of the declaration of acquisition in the Gazette. There are a limited number of listed exceptions to this rule.

The Section also stipulates situations which should not be considered when agreeing on the level of compensation. These include (a) the fact that the acquisition is compulsory, or the extent to which it was urgent or necessary; (b) the unwillingness of the owner or occupier to part with the land acquired; (c) any damage suffered by the party for which, if caused by a private person, the party would not succeed in an action; (d) an increase in the value of the land acquired which is likely to arise from the use to be made of the land; (e) any improvement of the land made or begun within twelve months before the declaration was published, so as to increase the compensation that might be awarded in the event the land were acquired for public purposes.

Notably, provision is made for the owner or occupier of acquired land to be awarded interest at a rate of 6 per cent per annum. Such interest is to be calculated "from the date upon which the authorized officer entered into possession of the land acquired until the date of payment of the compensation awarded by the Board." Provision is also made for "reasonable costs" not exceeding five hundred dollars, including for conveyancing or transferring "any lands purchased or acquired." And, where damage was done to their properties, compensation may be paid to persons interested in land adjacent to the lands acquired.

Of course, any owner or occupier of acquired land is entitled to proceed against Government for not complying with the provisions of the Act. Where the amount of compensation claimed by the owner or occupier is two thousand dollars ($2,000.00) or less, the matter may be taken before a Magistrate. And where the claim is for more than two thousand dollars ($2,000.00), the aggrieved party has the right to go before the High Court for redress. Section 6 (2) of our Constitution provides four heads of relief which the High Court may consider. They are, namely, (a) to determine the nature and extent of the owner's or occupier's right to "adequate" compensation "within a reasonable time;" (b) to determine whether or not the acquisition was duly carried out in accordance with a law authorizing the taking of possession or acquisition; (c) to decide on what compensation the owner or occupier is entitled to under the law applicable to that taking of possession or acquisition; and (d) to obtain that compensation.

As a general rule you must commence the action, that is to say, Government must be taken to Court, (a) "within twelve months" after the date on which either the "authorized officer" made entry on your land to investigate whether or not it is suitable for use for a public purpose; or (b) within a similar period after the second publication of the declaration of acquisition in the Gazette. But, if you do not take Government to Court within that time limit, this may not be fatal to your case. That is so because the Minister has power to extend that limitation period "if he considers that injustice may otherwise be done."

(Dr. William Para Riviere is an Attorney-at-Law)