Coussey, J.A. These are cross-appeals against a decision of the Land Court, Sekondi, determining the compensation payable in respect of approximately .five acres of land at Sekondi-Takoradi which have been acquired by Government under the provisions of the Public Lands Ordinance now (Cap. 113), now Cap. 134.
So far as concerns this appeal, there were two claimants to the compensation, namely, the Effia Stool as to approximately seventeen acres, and the claimant- appellant Dorothy Vardon as to twenty-eight acres.
The Court awarded the Effia Stool £444 and the claimant-appellant £636 “ as the just and equitable compensation they are entitled to receive for the f their respective rights” .
From this award both the Government and the claimant-appellant have appealed. The Government contends that the award is too high, on any view of latter, owing to an error in calculation and, also, to a failure by the Court , to consider the relevant evidence of value. The claimant-appellant maintains that compensation at the rate of £300 per acre should be awarded to her. The Stool of Effia has not appealed but it is bound by the issue in this matter identified itself in the Court below with the claimant-appellant on this question.
Publication in the Gazette of notice of acquisition was made on the 19th December, 1947. Under section 9 of the Ordinance that is the material date for mining compensation.
On 5th November,1947, the Effia Stool conveyed to the claimant-appellant by fifty-nine acres of land at a total purchase price of £675. Twenty-eight of this land are within the area of the acquisition.
On the 28th January, 1948, the claimant-appellant submitted to the Commissioner of Lands a claim for compensation on the basis of £50 per acre. It is not disputed that, of the forty-five acres of land, twenty acres are swamp land, six of which fall within the Stool’s claim and fourteen within that of the ant-appellant.
At the inquiry the case of the Government was that at the time of acquisition the total market value of the land was £720. This gave the Stool £296 and the ant-appellant £424 if the final Government valuation were accepted. This valuation is partly based upon the written report of Mr. Stewart, a Government or, which takes into account maximum permitted profitable development the estimated cost to produce such development. It does not allow any compensation for the twenty acres of swamp land and, therefore, at £700 it is £20 below the final estimate of the Government as evidenced by Mr. Wood which allow £1 per acre for the twenty acres of land liable to flood.
Although Mr. Wood stressed that the rate of compensation awarded by the court in an acquisition of the year 1936 was not the basis for the Government's assessment in the present matter, the learned Judge thought it was, and he assumed that the Government's assessment of £720 was based upon a valuation at £10 per acre as it had been in the 1936 acquisition. In fact this was not the case, but the learned Judge then added fifty per cent to £720 to allow for increase in land values in the district since 1936, and as stated already awarded the Stool £444 and the claimant-appellant £636.
In my opinion this was clearly not the proper method to determine the amount of compensation and the award must therefore be set aside.
Turning now to the appeal of the claimant-appellant Mr. Blay has argued that her land is, potentially, as valuable as adjoining land which in 1947 was leased by Government to the timber works of F. Hill and Sons at a rental of £30 per acre.
He submits that although the land acquired may have been zoned provisionally by the urban authority as in a residential area, its value is as high and it is as adaptable to industrial purposes as the land of the firm, and that the claimant- appellant is therefore entitled to £300 per acre, being ten years' capitalization the annual rental per acre. But the learned trail Judge rejected this contention and, after careful consideration, I find no reason to differ from him. In arriving at the market value of the land in issue it would be unsafe to consider the rental value of neighbouring land with road and rail facilities, which the land acquired does not enjoy, and which appears to be suitably placed for the particular industry carried on there. Many factors not in evidence may have influenced the parties in arriving at the terms of the lease referred to.
Section 9(1) of the Ordinance provides that the market value for compensation shall be taken to be what the land might realise if sold in the open market by a willing seller at the date of the notice of acquisition.
In view of some suggestions that were made in the course of argument as to the use to which the land acquired may be put, I quote, respectfully, from the judgment of Fletcher Moulton, L.J., in In re Lucas and the Chesterfield Gas and Water Board (1909),1 K.B.D.16, at p. 29:-
“The principles upon which compensation is assessed when land is taken under compulsory powers are well settled. The owner receives for the lands he gives up their equivalent, i.e. that which they are worth to him in money. His property is therefore not diminished to him in amount, but to that extent it is compulsorily changed in form. But the equivalent is estimated on the value to him, and not on the value to the purchaser, and hence it has from the first been recognised as an absolute rule that this value is to be estimated as it stood before the grant of the compulsory powers. The owner is only to receive compensation based upon the market value of his lands as they stood before the scheme was authorised by which they are put to public uses. Subject to that he is entitled to be paid the full price for his lands, and any and every element of value which they possess must be taken into consideration in so far as they increase the value to him”.
In my opinion the best evidence of market value in this, instance is afforded by the transactions of the claimants themselves.
Six weeks before the acquisition the land itself had been purchased by the claimant-appellant from the Stool of Effia at approximately £11 per acre. The land immediately to the north of the acquisition had also been sold by the same Stool to a Mr. Baidoo Ansah at approximately £15 per acre. There is no evidence that either of these purchasers was favoured as being a-member of the Effia Stool and it is improbable that the Stool parted with its land at an undervalue. I would disregard the fact that part of the area acquired is swamp land and award compensation on the higher basis of these two transactions, namely at £15 J per' acre for all the lands acquired. This, in my opinion, is a more satisfactory guide than the acceptance of a hypothetical figure to which is added a percentage not based on evidence.