Amortiguación 37

The value of compensation nay be determined by a nuirber of

factors. Such factors may range from the law applicable in a

particular country, which may have been enacted to conform with the

economic realities of the society in question, to the nature and

location of the land to be acquired. The urgency with which the

acquiring authority requires the land may sometimes determine their

willingness to offer generous compensation, as may the bargaining

power of the particular land owner. All these are factors which

determine what amount is payable at what time and in which society.

However, there may be some instances when the compensation paid tends

to be be lew reasonable standard. This is when the term 'adequate

compensation' may be applicable.

The Indian Land Acquisition Act earlier cited refers to the term

"the market value of the land". Whether a landowner is compensated

on the basis of 'the market value of the land' or 'adequately' what

is required, in our view, is that he (the land owner) receives for

the property so acquired, its equivalent in money, so that the

property is not diminished in amount.

In a Nigerian Case, Esi V Warri Divisional Town Planning

Authority.127 the term 'full market value' became the subject of

protracted legal debate. In that case it was contended that adequate

compensation means "full market value or the price payable by a

willing buyer to a willing seller", and that a fair market value is

less than the full market value and therefore cannot amount to

adequate conpensation. The trial judge whilst conceding that a full

uarket value may be more than a fair market value drew attention to

willing seller in the market indeed in private may not and does not

usually get the full market value; if he does get a fair market value

he is quite contended and happy" he went on to state "it is clear

that adquate compensation means not only a full market value but also

"the price paid by a willing buyer to a willing seller" which in the

context of that definition must be lower than a full market value. I

have no difficulty in equating 'the price paid by a willing buyer to

a willing seller with a fair market value.'128

The Judge went on to say "compensation means the equivalent in

value of the property taken but not necessarily in money... the

amount of compensation must be a just equivalent and the principles

and manner of determining compensation must be such as to ensure that

it is just and reasonable... And a law that provides for a fair

market value as a basis for determining compensation is clearly in my

view just and reasonable"129

The implication of the above judgement is that the acquiring

authorities need not always pay 'full market value of the land as

compensation, and that a fair market value will be sufficient as

compensation. This raises the two fundamental issues surrounding the

whole idea of compensation. There is first of all the aspiration of

the landowner who will naturally want to obtain the greatest value

possible for his land. Secondly, there is the desire on the part of

the acquiring authority to beat down the amount of compensation

payable since the payment of higher compensation will necessarily

upset the capital amount budgeted for the implementation of the

development scheme which is to be carried out on the acquired land.

These two conflicting interests may explain why negotiations between

in some cases end in litigation. This clearly demonstrates the need

for evolving a workable and acceptable formula which will ensure that

the interest of each party is protected.

This issue is much more pronounced in the developing countries

where the land owners are mostly ignorant and poor and as such may be

e a s i l y lured into a c c e p t i n g p a l t r y o f f e r s from the a c q u i r i n g

authorities. When compared with their counterparts in the more

advanced countries, land owners in the developing countries are less

educated and have very little or no socio-political and economic

influence to put them in a better bargaining position with the

acquiring authorities. Also land owners in the more advanced nations

have access to professional advice from expert valuers and, when

necessary, legal representation. All these facilities are in short

supply in the Third World countries.130 Thus, apart from accepting

and practising the general principle that compensations need not be

equivalent of full market value and that a fair market value is just

and reasonable, there is the need to evolve as new legal framework

which will ensure that ignorance of the land owners in the Third

World and their poor bargaining powers are not exploited by the

acquiring authorities.

Another important point worth mentioning is the need on the part

of the appropriate authorities to ensure that due considerations are

given to the peculiar nature of most indigenous systems of land

tenure when framing conpensation formulae. This is because measures

which are necessarily interventionist, such as those of compulsory

acquisition, if drafted with insufficient understanding of indigenous

law, may generate many problems. A classic example of this is

in Nigeria. The 1903 compulsory acquisition legislation in Nigeria,

for instance, p r o v i d e d that no compensation would be paid for

unoccupied lands, which were defined as follows:

Lands shall be deemed to be unoccupied where it is not proved that beneficial use thereof for cultivation, or inhabitation, or for collecting or storing water or for any industrial purpose has been had for a continuous period of at least six months during the period of ten years immediately preceding the publication of the notice stating that such lands are required for public purposes^l

When examined critically, it can be seen that the definition

above d o e s not suit N i geria or indeed any traditional A f r i c a n

conmunity. In most African societies land not under cultivation would

nonetheless be regularly used for many purposes, chief among them the

grazing of animals and the collection of uncultivated produce. It was

the existence of such customary land use in Nigeria that led to a

judicial review of Section 14 of the 1903 Public Lands Ordinance and

the interpretation of the phrase "beneficial use... for any industrial

purpose" in the celebrated case of Amodu Tijani V Secretary. Southern

Provincesl32 facts of the case are summarised below.

The Government proposed under S.4 of the Public lands Ordinance

of 1903 to acquire lands belonging to the community represented by

their chief. It became obvious that the claimant was entitled to

compensation on behalf of the conmunity. Part of the land to be

acquired consisted of palm swamp, mangrove swamp and grass swamp. Now

the Divisional Court was faced with the problem of interpreting