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Colonial Cases

Secretary of State v. Charlesworth, 1901

[compulsory purchase of land - eminent domain]

Secretary of State for Foreign Affairs v. Charlesworth

Judicial Committee of the Privy Council
14 June 1899
Source: The Times, 15 June 1899

 

LAW REPORT, June 14.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

THE SECRETARY OF STATE FOR FOREIGN AFFAIRS v. CHARLESWORTH, PILLING, AND CO.

This was a petition by the Secretary of State for Foreign Affairs for special leave to appeal to her Majesty in Council from a judgment of her Majesty's Court for the district including Mombasa, in the East Africa Protectorate, in two suits brought respectively by Messrs. Charlesworth, Pilling, and Co. and Messrs. Thomas D. Charlesworth and Co. against the Secretary of State for Foreign Affairs and others for compensation for land belonging to them in the island of Mombasa which had been compulsorily acquired by her Majesty's Government for the construction of the railway from Mombasa to Uganda.

The Solicitor-General and Mr. Henry Sutton appeared for the Secretary of State for Foreign Affairs in support of the petition; Mr. J. H. A. Branson for the respondents.

The question raised by the petition was whether an appeal  from her Majesty's Court for Zanzibar lay to the High Court of Judicature at Bombay, or to her Majesty in Council.  The Secretary of State for Foreign Affairs filed a petition in both suits under the Indian Civil Procedure Code for a certificate for an appeal to her Majesty in Council, but the Court for Zanzibar dismissed both appeals on the ground that an appeal lay from that Court to the High Court of Judicature at Bombay.  The question depended on the construction to be placed on the East Africa Order in Council of 1897 and the Zanzibar Order in Council of 1897.  Article 30 of the East Africa Order in Council is to the following effect:-

Subject to the other provisions of this Order, the Code of Civil Procedure, the Bombay Civil Courts Act, 1869,  . . . . and the other enactments relating to the administration of civil justice for the time being applicable to the protectorate, shall have effect as if the protectorate were a district in the Presidency of Bombay; the Judicial Officer shall be deemed to the the District Judge of the district, and the Protectorate Court the District Court or Principal Civil Court of Original Jurisdiction in the district; the Court for Zanzibar shall be deemed to be the highest Civil Court of Appeal for the district, and the Court authorized  to hear appeals from an d to revise the decisions of the District Court.

Article 20 of the Zanzibar Order in Council provides that,

Subject to the other provisions of this Order, the Code of civil Procedure, the Bombay Civil Courts Act, 1869, . . . .  shall have effect as if Zanzibar were a district in the Presidency of Bombay; the Judge shall be deemed to be the District Judge and the Assistant Judge the Joint District Judge of the district; and the Court of Zanzibar the District Court or Principal Civil Court of original Jurisdiction  in  the district; the High Court of Bombay shall be deemed to be the highest Civil Court of Appeal for the district, and the Court authorized  to hear appeals from and to revise the decisions of the District Court.

It was contended by the petitioner that Article 29 of the Zanzibar Order in Council did not apply to the Court of Zanzibar when exercising its appellate jurisdiction under the East Africa Order in Council, and that in the latter capacity it constituted the Court of final appellate jurisdiction for the protectorate from which an appeal lay to her Majesty in Council under section 595 of the Civil Procedure Code.

The SOLICITOR-GENERAL, in arguing in support of the petition, said that the Court for Zanzibar was equally divided in opinion on the subject, one of its members being of opinion that an appeal lay to the High Court at Bombay, and the other that it lay to her Majesty in Council.  The question in the suits was as to what compensation should be paid for land taken for the purposes of the railway from Mombasa to Uganda.  The question whether an appeal from the Court for Zanzibar lay to the High Court at Bombay or to her majesty in Council depended upon the East Africa Order in Council of 1897 and the Zanzibar Order in Council of 1897.  He referred to the provisions of these Orders in Council, and con tended that the appeal did not lie to the High Court at Bombay.  It was expressly stated in the East Africa Order in Council that the Court for Zanzibar should be deemed to be the highest Civil Court of Appeal for the district.  He submitted that the appeal lay to her Majesty in Council.

Mr. BRANSON said that if their Lordships granted the petitioner special leave he should ask that the respondents should have leave to enter a cross-appeal.

Their LORDSHIPS said that, it being stated that the Court for Zanzibar was the highest Civil Court of Appeal for the district, they would recommend her Majesty to grant special leave to appeal.  They would also recommend that the respondents should have leave to enter a cross-appeal.

Source: The Times, 9 November 1900

 

THE SECRETARY OF STATE FOR FOREIGN AFFAIRS v. MESSRS. CHARLESWORTH, PILLING, AND CO. - AND MESSRS. THOMAS D. CHARLESWORTH AND CO. - (APPEAL AND CROSS-APPEAL CONSOLIDATED).

These were an appeal and cross appeal, consolidated by Order in Council, from a judgment of her Britannic Majesty's Court for Zanzibar of November 28, 1898, varying decrees of the Consular Court for Mombasa in the East African Protectorate.

The Attorney-General, the Solicitor-General, Mr. J. D. Mayne, and Mr. Sutton appeared for the appellant; Mr. Haldane, Q.C., and Mr. J. H. A. Branson for the respondents.

The decrees of the Court below purported to assess the compensation payable by the Foreign Office to the respondents for certain lands belonging to them in the island of Mombasa, compulsorily acquired by the Secretary of State on behalf of her Majesty's Government for the construction of a State railway from Mombasa to Uganda.  The lands acquired from the respondents consisted of four properties, or "shambas," named after their previous native owners.  Three of these belonged to Messrs. Charlesworth, Pilling, and Co., who carry on business at Zanzibar with a branch at Mombasa, and the fourth to Messrs. T. D. Charlesworth and Co., of London.  Upon the largest shamba part of the general offices and other railway buildings had been erected and completed by the Government engineers before they had authority to enter on any of the respondents' lands.  The Court at Zanzibar varied the decrees of the Consular Court in two respects - (a) by holding that the respondents - Messrs. Charlesworth, Pilling, and Co. - were in law entitled (in addition to the value of their land taken) to the value of the railway buildings - 60, 140 rupees; and (b) by awarding in each case an increased sum for the lands. 

The Secretary of State now appealed on the ground that the respondents were not entitled to be paid for the railway buildings, and that the compensation originally assessed was ample.  The respondents disputed the decree of the Zanzibar Court as to the value of the land and buildings and also claimed the statutory 15 per cent.  for compulsory acquisition under the Indian Land Acquisition Act, 1894, in addition to the amount awarded.

The island of Mombasa forms part of the mainland dominions of the Sultan of Zanzibar and was leased by him to her Majesty with full sovereign power to administer on his behalf.  The Queen has also extra-territorial jurisdiction there under treaty with the Sultan which, at the time of these proceedings, was regulated by the Zanzibar Order in Council, 1884, section 8 of which enabled the Crown to declare that future enactments of the Indian Government should come into operation at Zanzibar.  In May, 1896, the Indian Land Acquisition Act, 1894, came into operation in Zanzibar and enabled the Crown for the first time to acquire land compulsorily from British subjects.  Proceedings to obtain compensation for their properties taken for the railway were instituted by the respondents before the Collector, who made an award which the respondents declined to accept, and in respect of which they appealed to the British Consular Court.  These proceedings were the subject matter of the present appeal.

The case began yesterday, and to-day the arguments of counsel were proceeding when their Lordships rose.

 

Source: The Times, 10 November, 1900


LAW REPORT, NOV. 9.
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
{Present. - The Lord Chancellor, Lord Hobhouse, Lord Macnaghten, Lord Shand, Lord Davey, Lord Robertson, and Lord Lindsey.}
THE SECRETARY OF STATE FOR FOREIGN AFFAIRS
v.
MESSRS. CHARLESWORTH, PILLING, AND CO.
And
MESSRS. THOMAS D. CHARLESWORTH AND CO. -
(APPEAL AND CROSS-APPEAL CONSOLIDATED.

Their Lordships resumed the hearing of the appeals from a judgment of her Britannic Majesty's Court for Zanzibar of November 28, 1898, varying two decrees of the Consular Court for the Mombasa district of the East Africa Protectorate.
  The Attorney-General, the Solicitor-General, Mr. J. D. Mayne, and Mr. Sutton, were counsel for the appellant; Mr. Haldane, Q.C., and Mr. J. H. A. Branson for the respondents.
  The suit in which the present respondents were the plaintiffs were brought against the Secretary of State for Foreign Affairs in connection with the compulsory acquirement of certain lands belonging to them in the island of Mombasa and required by the Government for the purpose of the Uganda State Railway. The island forms part of the mainland dominions of the Sultan of Zanzibar which some years ago was leased with all sovereign powers, but subject to the treaty engagements of the Sultan, to the Imperial British East Africa Company. In 1895 the administration of the country was transferred from the Company to her Majesty's Government, and shortly afterwards it was decided that a State railway should be constructed from Mombasa to Uganda. The Government engineers proceeded to mark out and take possession of such land as they required, and a proclamation enabling them to acquire land from natives for railway purposes was issued by the Sultan, but, owing to the treaty rights with Great Britain, that did not entitle them to take any land belonging to British subjects. About the same time the respondents bought from the Arab owners four estates on or near which they anticipated that the railway terminus would be built. So much of the land as was actually needed for the railway was made use of at once by the engineers without the respondents' consent, and later on a Commission was appointed to ascertain the value of the land required for the railway. The Commission reported in May, 1896, and two days afterwards the Indian Land Acquisition Ac, 1894, providing for the compulsory acquisition of land belonging to British subjects, was put into force in Mombasa.  The present litigation had reference to the amount of compensation payable by the Government to the respondents for the lands so compulsorily acquired.  The Zanzibar Court varied the decrees of the Consular Court in ways materially favourable to the respondents, and from that decision both parties now appealed.
  At the close of the arguments on both sides,
  The LORD CHANCELLOR intimated that their Lordships would not require the learned counsel for the appellants to reply, but would deliver formal judgment on a future occasion.

16 February 1901
Source: The Times, 18 February 1901

 

LAW REPORT, Feb. 16.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

(Present - LORD HOBHOUSE, LORD DAVEY, LORD LINDLEY, SIR RICHARD COUCH, and SIR FORD NORTH.

THE SECRETARY OF STATE FOR FOREIGN AFFAIRS v. MESSRS. CHARLESWORTH, PILLING, AND CO. AND MESSRS. THOMAS D. CHARLESWORTH AND CO. (AND CROSS APPEAL). 

These were cross appeals, consolidated by Order in Council, from a judgment of Her Majesty's Court for Zanzibar of November 28, 1898.

The Attorney-General, the Solicitor-General, Mr. Mayne, and Mr. Henry Sutton appeared for the Crown; Mr. Haldane, K.C., and Mr. J. H. A. Branson for the respondents.

The arguments were heard in the December sittings before a Board composed of the Lord Chancellor, Lord Hobhouse, Lord Macnaghten, Lord Shand, Lord Davey, Lord Robertson, and Lord Lindley, when judgment was reserved.

LORD HOBHOUSE, in now delivering their Lordships' judgment, said the appeals related to the amount of compensation to be paid for land in the island of Mombasa taken by the government under statutory powers.  The suits were commenced by two claims lodged with the collector by Messrs. Charlesworth, Pilling, and Co., and Messrs. T. D. Charlesworth and Co., who were respectively owners of different plots of land so taken.  The collector, Mr. Crauford, who was also acting on behalf of the Government, made awards which the plaintiffs did not accept, and which, therefore, were referred to the Consular Court of Mombasa.  The Vice-Consul (Mr. Cator) awarded larger sums, which the defendant had not disputed.  But the plaintiffs were still dissatisfied, and they appealed to the Court for Zanzibar. The Court again enhanced the amount of compensation, with the effect that both parties were dissatisfied, and both appealed from the decree.  There were, therefore, four appeals, two original, and two cross appeals in the two suits. They had all been consolidated, and had been argued as one case falling under the same considerations, with the exception that one important item of claim was peculiar to one plot belonging to Charlesworth, Pilling, and Co.

Mombasa is a small island adjacent the the coast of continental Africa, and it forms part of the mainland dominions of the Sultan of Zanzibar.  The authorities who had dealt with the case were established and regulated by her Majesty's Order in Council passed in 1884, and founded on a previous treaty, and by a subsequent treaty with the Sultan of Zanzibar in 1886.  There had been later transactions between the Sultan and an English company and the Queen, which were referred to in the judgment of the Vice-Consul and in the case lodged by the defendant, the Secretary of State.  They conferred on the Queen's Government extensive powers of administration during the continuance of existing agreements.  But they were expressed not to affect the sultan's sovereignty, and for the purpose of deciding questions of an international character in these suits they had not been discussed in the Courts below, and need not now be discussed.

The Order in Council, dated October 17, 1881, wass founded on the usual terms of recital, that by treaty, grant, usage, and sufferance, and other lawful means her Majesty the Queen had power and jurisdiction in relation to her Majesty's subjects and others within the dominions of hjis Highness the Sultan of Zanzibar.  Section 6 showed that the Order applied to British subjects in Zanzibar, to British ships in Zanzibar waters, to Zanzibar subjects and foreigners in specified cases, and to British protected persons in so far as by treaty or the other means mentioned her Majesty had jurisdiction in relation to them. 

By section 7 "all her Majesty's jurisdiction exercisable in Zanzibar under the Foreign Jurisdiction Acts for the hearing and determination of criminal and civil matters.  .  .  shall be exercised under the provisions of this Order so far as this Order extends and applies.

By section 8 (a) . . . . Subject to the other provisions of this Order and to any treaties for the time being in force relating to Zanzibar her majesty's criminal and civil jurisdiction in Zanzibar shall, so far as circumstances admit, be exercised on the principles of, and in conformity with, the enactments for the time being applicable, as hereafter mentioned, of the Governor-General of India in Council and of the Government of Bombay in Council.  .  .  and so far as such enactments.  .  .  are inapplicable shall, so far as circumstances admit, be exercised under, and in accordance with, the common and statute law of England in force at the commencement of this Order.

Section 8 (c) declares:- Any other existing or future enactments of the Governor-General of India in Council or of the Governor of Bombay in Council shall also be applicable to Zanzibar, but shall not come into operation until such times as may in the case of such enactments respectively be fixed by the Secretary of State.

The subsequent treaty concluded in 1886 has the following provisions:-

Article V. - Subjects of her Britannic Majesty shall be permitted throughout the dominions of his Highness the Sultan to acquire by gift, purchase, intestate succession, or under will, or in any other legal manner, land, houses, and property of every description, whether movable or immovable, to possess the same and freely dispose thereof by sale, barter, or donation, will, or otherwise.

Article XVI. - Subjects of her Britannic Majesty shall, as regards their person and property, enjoy within the dominions of his Highness the Sultan of Zanzibar the rights of exterritorialy.  The authorities of his Highness the Sultan shall have no right to interfere between subjects of her Britannic Majesty amongst themselves or between them and members of other Christian nations.  Such questions, whether of as civil or criminal nature, shall be decided by the competent Consular authorities. The trial and also the punishment of all offences and crimes of which British subjects may be accused within the dominions of his Highness the Sultan, also the hearing and settlement of all civil questions, claims, or disputes in which they are the defendants is expressly reserved to the British Consular Authorities and Courts, and removed from the jurisdiction of his Highness the Sultan.  Should disputes arise between a subject of his Highness the Sultan or other non-Christian power not represented by Consuls at Zanzibar, and a subject of her Britannic Majesty, in which the British subject is the plaintiff or the complainant, the matter shall be brought before and decided by the highest authority of the Sultan, or some person specially delegated by him for this purpose.  The proceedings and final decision in such a case shall not however be considered legal unless notice has been given, and an opportunity for the British Consul or his substitute to attend at the hearing and final decision.

Article XX. - Should a British subject die within the dominions of his Highness the Sultan of Zanzibar, or dying elsewhere leave property therein movable or immovable, the British Consul shall be authorized to collect, realize, and take possession of the estate of the deceased to be disposed of according to law.

Article XXI. - The houses, dwellings, warehouses, and other premises of british subjects, or of persons actually in their regular service shall not be entered or searched under any pretext by the officials of his Highness without the consent of the occupier, unless with the cognizance and assistance of the British Consul or his substitute.

Article XXIII. - provides for the free exercise of religious worship.

In 1895 the government were planning railway communication from some point in Mombasa into the African mainland.  In December, 1895, the plaintiffs entered into agreements by which they acquired title to three of the pieces of land in question.  The fourth plot was purchased in April, 1896.  At the close of 1895 the engineers of the Government entered on the land and began to erect railway offices on one of the plots known as Said-bin-Rashid.  That was done without any lawful authority; and it had given rise to questions of some subtlety on which the Consular Court and the Zanzibar Court had differed in opinion.  It was not until May 27, 1896, that the Indian Land Acquisition Act of 1894 was brought into force in Zanzibar, and not till November 2, 1896, that Mr. Crauford, the Consul-General, issued a notice under section 6 of that Act declaring that the land would be required for the railway, and inviting claims for compensation.  The d ay of that declaration was the day on which the property was to be valued for the purposes of compensation.

The plaintiffs contended that on that day the buildings erected by the Government were theirs, and they claimed before the collector to be paid for them.  They did not in the first instance claim any specific sum for the buildings apart from the land, but in the course of the hearing before the Vice-Consul they put the value at 168,000 rupees.  They contended that the rights of the parties were governed by English law, according to which the buildings would become attached to the land.  The defendant contended that the case was governed by Mahomedan law and that the landowner was not entitled to the buildings.  The Vice-Consul decided that Mahomedan law applied and compelled him to disallow the plaintiffs' claim entirely.  The Zanzibar Court decided that English law applied and they awarded to the plaintiffs 60,140 rupees, which was the cost of the buildings to erect.  The plaintiffs insisted on the larger sum claimed by them, as being the actual value on November 2, 1896.

The first question was whether the dispute was to be governed by the English or the Mahomedan rules applicable to unauthorized buildings on land.  The Indian enactments, which the Order in Council made applicable as far as the circumstances admitted, either directly or by order of the Secretary of State, did not fit the case, and, therefore, her Majesty's jurisdiction was to be exercised under and in accordance with the law of England.  But the law of England recognized the principle that the incidents of land were governed by the law of its site.  Therefore, by the terms of the Order, if they looked no further, her majesty would exercise her Zanzibar jurisdiction on the principle that Zanzibar law, which was Mahomedan law, applied to the case.

And so far there was no difference of opinion in the Courts below.  But then the Order was made subject to treaties for the time being in force, and Article XVI of the Treaty of 1886 conferred on British subjects the rights of ex-territoriality as regarded their persons and their property.  The whole controversy turned on the meaning of that one word "ex-territoriality."  The learned counsel who argued the case could not find any decision on the construction of the term in a treaty.  Nor did the text-books tell them much more than that the word denoted a fiction by which the house and land occupied by a foreign sovereign of his ambassador was treated in law as a part of his dominions; and that it was a convenient word to  denote any group of privileges belonging to that class.  Their Lordships referred to "Hall's International Law," page 163; "Westlake's Private International Law," 3rd edition, p. 236.   The same writers warned them that fictions and metaphors must not be pushed too far.  The Court for Zanzibar appeared to have pushed the metaphor very far, holding that the term worked a complete separation of the British subject and his property from the country in which they were.  It seems to have adopted the principle contended for in the Consular Court and negatived by the Vice-Consul - viz., that where there was a question relating to land between two British subjects, the land must be looked upon as actually a piece of British land for the purpose of applying the law.

Looking at the latter part of Section XVI and the succeeding sections of the treaty which had been quoted, it actually specified all the usual benefits accorded by Mahomedan powers to a British subject.  If he is accused of crime or is defendant in a civil suit, his case is decided by his own nation's Consul.  If he is complainant the Consul may intervene to protect his interests. (Article XVI.) His servants receive similar protection. (Article XVII.) in case of bankruptcy his property is dealt with according to British law. (Article XVIII.) On his death his property is to devolve according to British law and to be administered by the Consul. (Article XX.) His house is not to be entered by the Zanzibar authorities against his consent unless the Consul authorizes it. (Article XXI.) he is to enjoy the free and public exercise of his own form of religion. (Article XXIII.)

Their Lordships did not say that the list of specific instances, though very full, was exhaustive of the general term.  Other cases of the same kind would doubtless be included if such there were.  But it was reasonable to conclude that the things specified showed the nature of the immunities desired by and accorded to the British subject - complete personal protection, assurance of satisfactory judicial tribunals, and such enjoyment of his property for himself and for those who claimed under him as British law would afford him for British property.  It was going a long way beyond that and beyond the reason for those immunities to say that the moment a plot of land was purchased by an Englishman it was stamped with the same character and was attended by the same incidents that would belong to it if it were actually transferred to England and surrounded by other English land, and to say that his neighbours, who may or may not be british subjects, must have their rights and liabilities governed by its fictitious and not by its actual situation.  Their lordships said that the grant of ex-territoriality did not involve and such conclusion, and that the Vice-Consul was right in holding that in this case the local law applied.

The next question was how the local law was to be ascertained.  Was it matter of evidence, or should the Consular Court take judicial notice of it?  The Vice-Consul held that he was an English Judge, that it was to him foreign law and must be proved by evidence; though he said it was an extreme instance of that principle, e specially as he was also one of the Sultan's Judges administering Mahomedan law.  That circumstance, however, should make no difference in the principle, though it enabled the Vice-Consul personally to appreciate the evidence which he took.  The Zanzibar Court was not called upon to express any opinion on that point, because it held that the English law applied.  The situation was one of some complexity.

The root of the jurisdiction was the treaty grant or other matter by which the Queen had power and jurisdiction in Zanzibar.  She thereby became an authority in the foreign territory of Zanzibar, though exercising her powers quite independently of the will of the Sultan.  On that state of things the Foreign Jurisdiction Acts supervened for the purpose of binding all the subjects of the Queen; and they enabled her to order in what way her authority in Zanzibar should be exercised.  She ordered that it would be exercised in accordance partly with certain Anglo-Indian laws and partly with English law.  The English law again for certain purposes, of which the present purpose was one, incorporated the local law of Zanzibar.  But throughout the matter Zanzibar remained foreign territory, and the Queen and her officers were acting as Zanzibar authorities by virtue of the power which she had acquired, and which, was within its limits, a sovereign power.  It resulted that a Judge acting within those limits was a Zanzibar Judge and was bound to take judicial notice of Zanzibar law, whatever it might be, applicable to the case before him. The Vice-Consul, acting on his view, took evidence on the Mahomedan law, which he found to be in favour of the defendant's contention. He also stated that such was his own opinion, which his experience as a Mahomedan Judge qualified him to form.

Their Lordships were now called upon to pronounce for themselves and to apply the Mahomedan law, which the plaintiff's counsel had argued to be in their favour.  On that pint they did not feel any difficulty.  They followed the law laid down in the Hedaya as translated by Hamilton (Book 37, page 539):-

If a person usurp and plant trees in it, or erect a building upon it, he must in that case be directed to remove the trees and clear the land and restore it to the proprietor.  If removal   .  .  be injurious to the land the proprietor of the land has the option of paying to the proprietor of the trees or the building a compensation equal to their value and thus possessing himself of them, because in this case there is an advantage to both and the injury is obviated.

The passage then went on to show that the compensation was the value which the trees or houses bore upon the proprietor being directed to remove them, because their owner was not at liberty to have them on the ground.  That was conclusive against the plaintiff's contention that the buildings had become their property on November 2, 1896.  The plaintiff's counsel then argued that, at all events, they had on that day a right to call on the defendant to remove the buildings, and that they were entitled to be paid of their land with all rights attaching to it.  It was not easy to see what such a right would be worth to them; but it was sufficient to say that no such claim had been made. Their Lordships must hold that the vice-Consul was right in wholly disallowing the claim of the defendants in respect of buildings, and that the defendant's appeals on that point must prevail.

There had been great difficulty in ascertaining the value of the land taken.  By the Land Acquisition Act the Court was directed to take into consideration the market value of the land at the date of the publication of the declaration (Section XXIII.) and by Section XXIV, it was forbidden to take into consideration:

Fifthly, any increase in the value of the land acquired likely to accrue from the use to which it will be put when acquired.  Sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put.

The plaintiffs claimed to be paid for the whole area as for building ground at two rupees per square yard = 11,132 rupees per acre, yielding a total of (in round numbers) 700,000 rupees.  The collector took the average of a number of purchases effected by private contracts between himself and various owners.  That amounted to 431 rupees per acre, yielding a total of about 32,000 rupees. The Vice-Consul rejected both these principles.  The claims of the plaintiffs he treated as utterly extravagant.  There was land available and in demand for building in and adjoining to the town of Mombasa, and again adjoining to the harbour of Kilindini; and sea frontage was valuable.  The plaintiff's land was at considerable distance from both those places, and it had no sea-frontage.  There was no reason to suppose that it had any present value for habitations. The most part of it was jungle, though here and there were some patches of cultivation.  Both Courts were agreed that, independently of the railway, its value was very small.  The rather crude principle adopted by the collector had this defect, that it did not distinguish between the various plots of land sold to him, which varied largely in price from 750 rupees an acre and more down to 64 rupees.  Moreover, several of the contracts were made with Arabs, and the Vice-Consul thought them of little value as evidence of price, because he did not find that the Arabs had taken in the idea that the value of their land, which they could actually obtain by bargaining, had been enhanced by the railway scheme; so that the price given to them would unduly lower the average.  As for Indians, he thought that they were fully alive to the advantage they had got and were quite capable of insisting upon it.    

On that part of the case a most unfortunate element had been imparted into the controversy.  The Charlesworths had accused the collector of using coercion and deceit to get contracts showing a low average price, and the Vice-Consul complained that, being called upon to pronounce on the validity of the award and on the value of the lands, he had been put to try the motives and character of the highly-placed official who valued them in the first instance.  He considered that the collector gave great provocation to the Charlesworths by his faults of temper and by his high-handed dealing with the land before he had acquired any rights over it, but he entirely acquitted him of any dishonesty.  Their Lordships regretted that the Court for Zanzibar should have thought it necessary to try that personal altercation all over again.  In the outset of their judgment they said that there were two principal questions - first, the conduct of Mr. Crauford, and, secondly, the amount of compensation.  Now it might be that Mr. Crauford's conduct was directly relevant to the question whether or not his award was valid.  Ts only relevance to the question of compensation was this - that it might have been found that the average prices on which he relied was brought about by his own use of improper means.  But his award had been adjudged to be invalid.  His principle of valuation had been rejected, and his purchases from Arabs, all the cheaper purchases, had been thrown out of consideration by the Vice-Consul.  Those decisions were not disputed by the defendant.  How after that his conduct could have any material effect on the question of compensation it was difficult to understand.

As, however, the judgment of the Zanzibar Court had been read and commented on, though not by the counsel for the plaintiffs, their Lordships thought it right to say that nothing had come under their notice which justified the severity of the Zanzibar Court towards Mr. Crauford, or which led them to think that the Vice-Consul's opinion of him was too favourable.  In coming to that conclusion their Lordships had not omitted to consider the evidence relating to Mr. Crauford's purchase from Dewji Jamal, and to the non-production of papers in the arbitration, on which the Zanzibar Court had laid so much stress.  Mr. Crauford's proceedings were highly unbusinesslike and were even calculated to raise suspicion.  But their Lordships could not discover anything approaching fraud in them.  And it was clear that, as regards the Vice-Consul, he was well aware that Dewji received valuable consideration for his land over and above his purchase-money. The amount of consideration was the only point on which that purchase had any reference to the Vice-Consul's valuation. Their Lordships could not help thinking that the Zanzibar Court attached far too much importance to the personal recriminations between Mr. Crauford and the Charleswortths, and thereby they in great measure lost sight of the real question which they had to decide.

Having rejected the collector's method, the Vice-Consul had to consider how he should arrive at the value.  He could not follow the prices obtained by previous sale of parts of the same estate, because there were none such during the critical period.  He had only the prices given by the plaintiffs themselves in December, 1895.  He would not follow the course of capitalizing rental because it was unjust to the plaintiffs, rentals for such lands being little more than nominal.  So he set himself to inquire at what prices neighbouring properties of similar character had changed hands since the promulgation of the railway scheme, paying careful attention to the nature of the properties sold.  The plaintiffs gave evidence of several sales of small building plots in or close to the town of Mombasa at Rs. 1.8.0 or even as high as Rs. 1.15 the square yard.  But in that locality there was demand for such building plots, and therefore prices ruled high.  In the case of one witness, Adamji, whom the vice-Consul described as the principal witness for plaintiffs and recommended as thoroughly trustworthy, the Vice-Consul had made some arithmetical mistake, the only one traceable to him.  He said that Adamji's prices worked out at less than half a rupee per square yard, they did work out at more than Rs. 1 ½. 

But it remained true that of the small plots, 13 or so in number, which Adamji mentioned as having been sold by him within a short time of giving his evidence in May, 1897, every one was near to the town of Mombasa and had a frontage on the main land caravan route to Makupa.  The same witness said that there was no demand for the shambas (the plots) behind.  Sales of that kind were clearly of little use for ascertaining the value of the plaintiffs' land, the situation of which resembled rather that of the shambas behind than the plots which Adamji sold.  The Vice-Consul paid close attention to sales of land resembling that of the plaintiffs.  One Indian vendor (Peerbhoy) took 500 rupees per acre for land adjoining one of the plaintiffs' plots and of the same character.  Another Indian (Lakas Kanjo) sold land with a valuable sea frontage for 750 rupees per acre.  He had bargained with the plaintiffs to sell it to them at prices beginning about one-third of a rupee per square yard and coming down to one-fifth.  The latter price would be about 920 rupees per acre.  The plaintiffs wither would not or could not buy at that price.  Laka Kanji deposed that he was prepared to take less, and he did take less, and expressed himself to be well satisfied with his bargain.

The upshot of the Vice-Consul's investigation was that he awarded sums which, when the statutory 15 per cent. was added, amounted - for thee largest plot of the plaintiffs, Charlesworth, Pilling, and co,., to 750 rupees per acre; for their second plot 550 rupees, for their thitrd plot 300 rupees; for the plot of the plaintiffs, T. D. Charlesworth and Co., 550 rupees.  The awards amount in the aggregate to 43,627 rupees.  The Court for Zanzibar awarded sums which, again adding the statutory 15 per cent., amount to 2,420 rupees per acre throughout, and to an aggregate of 1,76, 997 rupees.  That was in addition to the 60,140 rupees awarded for the buildings on the Said-bin-Rashin plot.

Their Lordships would not express in detail the minor points on which the Zanzibar Court had differed from the Vice-Consul.  It must be remembered that the Vice-Consul had, for such an inquiry, more than the usual advantages of a Court of First Instance, for besides examining the witnesses he knew the locality and visited the spots in dispute.  Moreover, their Lordships found that the Vice-Consul explained much more fully than did the Zanzibar Court the mode in which he deduced his values from the evidence, and the values he brought out were not at nearly so great a distance from those which he examined.  It was quote true that in all valuations, judicial or other, there must be room for inferences and inclinations of opinion, which, being mire or less conjectural, were difficult to reduce to exact reasoning or to explain to othetrs.  Every one who had gone through the process was aware of that lack of demonstrative proof in his own mind, and knew that every expert witness called before him had his own set of conjectures, or more or less weight according to his experience and personal sagacity.  In such an inquiry as the present, relating to subjects abounding with uncertainties and on which there was little experience, there was more than ordinary room for guesswork, and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at.

Nevertheless between the bulk of the evidence referred to by the Zanzibar Court and their valuation at 2,420 rupees per acre there was a very wide gap, and how was it to be bridged over?  The Vice-Consul was quite right in rejecting the sales of town building plots at Charlesworth, Pilling and Co. for 120,450 rupees (L. 7,000), paid for by credit notes of T. D. Charlesworth and Co,., and as to L. 6,000 applied to the discharge of a debt by the former firm to the latter.  The Vice-Consul said that was a mere fanciful value invented by the plaintiffs themselves, being either some family arrangement or effected for the purpose of creating a standard of value.  He refused to look at it.  The Zanzibar Court said that though the price appeared to be excessive it was not to be entirely disregarded, and that it afforded some help in the task of fixing the proper price.  To what extent they relied on it they did not say.  Their Lordships agreed with the Vice-Consul, and thought that to the extent to which the Zanzibar Court had relied on that transaction there had been error in the process.  These were the only specific pieces of evidence which tended to bridge over the gap between the prices on which the Vice-Consul relied and the price of 2,420 rupees per acre.  If that price was to be justified it must be on some more general considerations.

Their Lordships had already, out of justice to Mr. Crauford, made some remarks on the disproportionate amount of consideration which the Zanzibar Court bestowed on his conduct.  It was difficult to discover that his conduct was relevant at all to the question of compensation as it stood upon appeal, except possibly with regard to the single sale to de Silva, whether it ought to have been taken with the many others with which the Vice-Consul classed it as a fair test of value.  The bearing of that was remote, indirect, and on so very small a portion of the case that whichever way it was decided it could not much influence the result.

There was another general consideration of great importance.  The sections of the Land Acquisition Act had been stated, which provided that land was to be taken at its market value on a given day, and that the Court was not, on the one hand, to give more, because the object for which it was taken was likely to increase its value, nor, on the other hand, to give less, because the same object was likely to increase its value of the owner's remaining land.  That appeared to their Lordships to exclude for both parties speculations on the effects which the railway might produce on prices except to the extent which it was shown that such speculations had actually entered into the market price of that sort of land by November 2, 1896.  The Vice-Consul pointed out that a year earlier the value would have been much less, that thee Government had been badly served, and there had been such delay in introducing the land Acquisition Act and in making the declaration under it that before November 2, 1896, the Government itself had created special values.  The Zanzibar Court treated the matter very differently.  After disposing of Mr. Crauford's purchases and expressing agreement with the learned Judge below that if the Government had come promptly into the field they would have had to pay very little, they continued as  follows:-

The purchases made by Mr. Crauford, which have been dealt with already, not constituting in our opinion such sales as to give us a fair and proper rate, we must rely on other facts and the evidence produced at the trial in the Court below.  When we consider the potential or prospective value of the land taken, whether what was or is now mere agricultural land will probably in a few years' time become more valuable, we must bear in mind the fact that all this land is in close proximity and contiguous with the terminus of a railway running many hundreds of miles into the heart of the African continent, for the construction of which L. 3,000,000 has been voted by the Imperial Government.  Although the plaintiffs' view of value in the future may be somewhat sanguine, yet we think the learned Judge was also somewhat pessimistic; a railway must increase trade and traffic, and the value of building sites near its most important station, which is Mombasa.

In the result their Lordships concluded that the valuation of the Vice-Consul was more consonant to the evidence and was based on sounder principles than that of the Zanzibar Court.  The plaintiffs had profited largely by advances in the prosperity of the Protectorate which had been caused by the advent of the British Government and by the action it had taken.  If the officials had acted promptly the plaintiffs would have got little if anything more than their purchase money plus the statutory 15 per cent.  As it was they had, by the Vice-Consul's valuation, got within 12 months for one plot twice what they paid for it, for another half as much again, for a third 15 times as much, and for the fourth six times as much.  The very large increase on those prices which the Zanzibar Court had awarded was due either to attending to evidence not properly applicable to the case, or to general considerations which ought not to have been allowed to enter the mind at all. As regards evidence they had given mis-leading importance to sales of small building plots within or close to Mombasa; and they had treated the transfer from one set of plaintiffs to the bother as if it had some relation to market values.  As regards general considerations, possibly that of the behaviour of the collector and certainly the large importance attached to "potential values" had been sources of error.  The Zanzibar Court made one decree on both appeals of the plaintiffs.  It should have dismissed both with costs.

Their Lordships would humbly advise his Majesty the King to make an order to that effect on the defendant's appeals, and to dismiss the plaintiffs' appeals.  The plaintiffs must pay to the defendant the costs of the consolidated appeals.

 

 

Published by Centre for Comparative Law, History and Governance at Macquarie Law School