[2010] UKPC
10
Privy Council Appeal No 0062 of 2009
JUDGMENT
N. Parsooramen & Co Ltd
V
Mrs Fatma Bibi Mahmood
Nahaboo
Shereen Bibi Mia Ayoob
Sorefan
Ameenah Bibi Mia Ayoob
Sorefan
Oomar Mia Ayoob Sorefan
Mohammad Yusuf Mia Ayoob
Sorefan
From the
Supreme Court of Mauritius
before
Lord Phillips
Lord Rodger
Lord Walker
Lord Brown
Lord Clarke
JUDGMENT
DELIVERED BY
Lord Walker
ON
29 June 2010
Heard
on 25 April 2010
Appellant
Maxime Sauzier
Danielle Lagesse
(Instructed by Blake Lapthorn)
Respondent
Not represented
LORD WALKER :
1.
This
appeal is concerned with rights in or over a piece of tarmacadamed roadway,
about 35m long and about 8m wide, in the Impasse Pot de Terre, Curepipe. The Court of Appeal referred to the land as
“the space” in order to avoid any element of pre-judgment in the expressions
“road” or “roadway”, and this judgment generally follows the same course. The central issue in the appeal is the status
of all or part of the space as a public road as defined in the Roads Act 1966
(Act 29/66 – “the Act”).
2.
By
section 2 of the Act “road” means “any highway, and any other road to which the
public has access and any public place to which vehicles have access and
includes any bridge, ford, culvert or other work in the line of such road” and
“public road” means any road of a class described in section 3. Section 3(1) divides roads into four
classes: (a) motorways (b) main roads
(c) urban roads and (d) rural roads. Section
3(3) provides:
“Notwithstanding
any other enactment, urban roads shall be all roads within the boundaries of a
proclaimed town which are not motorways or main roads and have either been
dedicated to public use or have been accepted as a regular maintenance
responsibility of a local authority other than a district council.”
It will be
necessary to come back to this definition.
3.
At
trial Matadeen J held that the whole of the space had become a public road, and
dismissed the claim of the plaintiff, Dr Mia Ayoob Sorefan to limit the extent
of the public road to a strip 10 ft (that is, about 3m) wide. Dr Sorefan died before judgment, but his
estate pursued an appeal. The Court of
Appeal held that the whole of the space was in the ownership of Dr Sorefan’s
estate, but that a strip on its south side, 18 ft (that is, about 5.5m) wide
had become a public road. The present
owner of the land on the south of the space, N Parsooramen & Co Ltd
(“Parsooramen”) appeals to the Board. The Municipality of Curepipe, originally
the second defendant, and the Commissioner of Police, originally the third
defendant, are co-respondents to the appeal but have not appeared.
4.
The
Court of Appeal gave a helpful summary of the relevant geography. The following account is based on the Court
of Appeal’s summary, but is expanded to explain the most important changes in
the physical features of the area that have occurred during the past
half-century, so far as relevant to the issues to be decided.
5.
“Impasse”
is a synonym for “cul de sac” (what the English traffic authorities would
designate as “no through road”) and that is what the Impasse was in 1958 when
Dr Sorefan first acquired (under community of property with his wife) about 60
perches of undeveloped land in the area.
At that time the Impasse was a short and narrow piece of roadway off the
Royal Road, Curepipe. It went down the
side of what is now the Monoprix supermarket but did not then provide a path
for vehicular traffic, as it now does, to Queen Elizabeth II Avenue. Instead it ended with the undeveloped land
purchased by Dr Sorefan in 1958. In the
1970s Dr Sorefan became interested in developing part of the land by the
erection of shops and flats. He seems to
have had extensive discussions with the planning authorities during 1974 and
1975.
6.
Ultimately
by a letter dated 19 December 1975 the Municipality’s Administrative Commission
approved plans submitted by Dr Sorefan on behalf of Nafyros Ltd (a family
company of his which was to be the head tenant of the proposed building)
“on
the condition that the road running in front of the aforesaid construction be
built at the promoters’ own expenses and in conformity with the terms contained
in the annexed schedule with the exclusion of clause no. 6 and to the
satisfaction of this Municipality.”
The annexed schedule was a standard-form typed document headed
“Specifications et Conditions Generales pour la construction des chemins et des
drains aux nouveaux morcellements.” It set out detailed specifications
for the construction of roadways and (in para 6, which was omitted)
drains. Paragraph 1. (Largeur)
provided
“Le chemin à être créé aura une largeur totale de dix pieds (10) pieds d’un parement à
l’autre”.
The
italicised words and figure were completed in ink.
7.
Dr
Sorefan’s case attached a good deal of weight to a document (exhibit “P7”)
which was a ground floor plan on a scale of 1:96 prepared by ZAC Associates
(Architects). There are however some
difficulties about this plan. It was
dated 14 December 1974, and there is some evidence (in particular the minutes
of a meeting of the Administrative Commission on 22 July 1974) to indicate that
the proposals changed from time to time.
Moreover the plan cannot be related to any feature which then existed on
the ground, and it showed the space as having a width of 35 ½ ft (over 10m)
between the face of the proposed building and the southern edge of the proposed
road (which is shown as 19 ½ ft wide, including a narrow footway).
8.
There
is some documentary evidence that the discussions about the development which
took place in 1974 and 1975 involved the owners of the supermarket, who were
interested in obtaining vehicular access to Queen Elizabeth II Avenue. The Municipality also had a proprietary
interest, since it owned land between Dr Sorefan’s land and the Avenue. The
fact that the Impasse is no longer a cul de sac but a busy one-way street (with
traffic travelling from the Royal Road towards the Avenue) has no doubt had
much to do with the tensions which led to these proceedings.
9.
Dr
Sorefan’s proposed development was carried out to the north of the disputed
space. The building (referred to at
trial as the Nafyros Building) has a ground-floor arcade which acts as a
covered pavement for pedestrians. Dr
Sorefan’s case at trial was that he paid for the construction of a roadway
covering the whole width of the disputed space and that it remained his
property, but that (as he conceded) the southern strip of the space (10 ft, or
just over 3m wide) was intended to be dedicated, and has been dedicated, as a
public road. As the Court of Appeal
commented, it was not until Dr Sorefan’s reply to the Municipality’s defence
that his case became clear.
10.
At
some stage another building with a similar ground-floor arcade was erected on
the south side of the disputed space, opposite the Nafyros Building. There was no documentary or oral evidence as
to the date of its construction but the land to the south had certainly been
developed by 1987, when it was sold, with a building erected on it, to
Parsooramen for 2.5 million rupees. On the
occasion of this sale the land was subject to a report (not a full survey) by a
Mr Chamroo. In his report dated 9 June
1987, in the course of describing the boundaries, the surveyor referred to the
disputed space as
“Un chemin de huit mètres (8.00m) de large
entretenu [maintained] par la Municipalité de Curepipe”.
This
description was repeated in the deed of sale dated 15 July 1987 from Dr Sorefan
to Parsooramen.
11.
When
cross-examined about this by Mr Domaingue on behalf of Parsooramen, Dr Sorefan
insisted that only a strip 10ft wide had been dedicated as a public road; the
rest, he said, was private land available as a parking place to those whom he
allowed to park. He said that the
surveyor had made a mistake. Further
cross-examined by Mr Bhuckory on behalf of the Municipality, he said that the
mistake was made because there was then (that is, in 1987) no marking on the
road. He accepted that after about 1980
(when the original surfacing first began to need attention) the Municipality
might have patched his parking area, as well as the strip he regarded as having
been dedicated, where patching was needed.
12.
The
judge, who saw and heard the witness, made this finding:
“Be that as it may, the plaintiff had finally to concede that the
8-metre wide road had indeed been accepted as a regular maintenance
responsibility of the second defendant and
this, ever since its creation.”
The Court
of Appeal did not accept this:
“The
Judge went wrong when she concluded that Dr Sorefan had conceded that the road
was a maintenance responsibility of the Municipal Council. She may have been swayed by the answer to the
very last question put to Dr Sorefan in cross-examination –
Q.
I also put it to you that you have, therefore, no interest in the matter and
that anything concerning the public road is a matter for the local authority,
that is, for the Municipality of Curepipe.
Any action concerning that road can only be taken by the Municipal
Council. Do you agree?
A.
Yes.
There
were three questions in one and it would not be in order to infer that Dr
Sorefan, after having consistently maintained his property rights on the space,
except for the road, to have accepted that he had no interest in the matter and
that the Municipal Council had taken over maintenance responsibility [for] the
whole space with his consent.”
13.
On
this point, as on several other points, Dr Sorefan’s oral evidence was far from
satisfactory. Almost the whole of his evidence in chief (apart from the
production of documents which were made exhibits) consisted of short answers to
leading questions put to him by his counsel.
It may be that the witness’s age and state of health led the judge to be
so indulgent towards leading questions (as already mentioned, Dr Sorefan died
before judgment had been given) but the result has been that his own account of
the relevant events is exceedingly sparse.
In particular, there is no evidence as to what road markings (if any) were
put in place when the roadway was first constructed and metalled by Dr
Sorefan’s contractor in 1977 (the contract with the contractor was made in June
1977). His own counsel, Mr Montochio QC,
observed at one point,
“Nobody
wants to take the responsibility of the markings which had been done, neither
the Police nor the Municipality nor the parties.”
(The
transcript says “parkings” but “markings” must have been intended).
14.
The
only evidence about road markings relates to much more recent years. There is documentary evidence in the form of
photographs taken in 1995 from an upper floor of the Nafyros Building showing
chevron-pattern lines painted on each side of the one-way street, which runs
along the centre (the parking spaces being in front of both the Nafyros
Building and the opposite hotel building).
On one photograph (exhibit “P19”) the markings in front of the hotel
have been partially obliterated, apparently with black paint. Dr Sorefan mentioned this in producing the
exhibit, but did not say whose hand held the paintbrush. Other documentary evidence (in the form of an
official log of road repairs) indicated that the Impasse was to be resurfaced
in March or April 1995. It may be that
the photographs were taken soon after the resurfacing and the painting of new
road markings had taken place.
15.
There
is also documentary evidence that on 28 November 1995 the Municipality’s Town
Surveyor’s Department served notice on Nafyros Ltd stating that it had
“unlawfully placed road markings on Impasse Pot de Terre,” and requiring their
removal. The company promptly sent (as a
“mise en demeure”) a counter-notice of objection containing the following
paragraphs:
“3.
The said markings are in fact found on a portion of land belonging to the
lessor of Nafyros Ltd.
4.
The
lessor of the said property did submit in or about the year 1977 to the
Municipality of Curepipe site plans indicating car parking facilities to be
found on the land belonging to the lessor of the abovenamed party.
5.
The
Municipality of Curepipe did request the lessor of the abovenamed party to
provide parking facilities on his land and made it one of the conditions for
the granting of a building permit.
6.
The
building permit was issued only when the owner agreed to provide parking
facilities and indicated same on the plans submitted to the Municipality in or
about the year 1977.
7.
The
said markings were found on private land and were not placed by Nafyros Ltd.”
If the year
1977 is correct, it suggests that the plans cannot have been or included
exhibit ‘P7’.
16.
There
is also documentary evidence that on 3 June 1998 Dr Sorefan’s attorney served a
second mise en demeure on Parsooramen, the Municipality and the Commissioner of
Police. That was the precursor to
these proceedings.
17.
That
concludes the summary of events down to the issue of proceedings on 4 August
1998. The Court of Appeal’s reference to
Dr Sorefan “having consistently maintained his property rights on the space,
except for the road” seems to be based primarily on the events of 1995 and 1998
mentioned in the three previous paragraphs.
Against that, he had in 1987 executed a deed of sale referring to a road
8m wide maintained by the Municipality.
18.
The
trial took place on 24 May 2005, with final submissions on 2 June 2005. Matadeen J gave judgment on 6 July 2007. She attached weight to the reference in the
1987 survey and deed of sale to the 8m road being maintained by the
Municipality; to what she took to be Dr Soferan’s own concession of the point;
and to the whole of the disputed space having been accepted as a regular
maintenance responsibility of the Municipality since its construction. She concluded that the plaintiff had failed
to prove his case and she dismissed the whole claim with costs.
19.
Dr
Sorefan’s heirs appealed to the Court of Appeal, on the grounds that the judge
had erred both in her findings of fact and in law (disregarding the principle
of res inter alios acta and
misapplying the Act). The Court of
Appeal (Yeung Sik Yuen CJ and Bhaukaurally J) sought to resolve the “factual
imbroglio” by going back to 1974. It
noted that the relevance of exhibit ‘P7’ had not been seriously contested
(whereas before the Board the appellant’s counsel drew attention to the
difficulties already noted). The Court
referred to the incidents in 1995 and 1998 as evidence “that every time his
private property rights fell to be threatened, Dr Sorefan would protest and
take appropriate action.”
20.
The
Court of Appeal agreed with some of the judge’s conclusions but held that her
judgment was nevertheless flawed. The
Court made four main points:
(1)
Dr
Sorefan was not claiming an exclusive right over the whole 8m width, as the
judge had supposed (perhaps from reading the statement of claim alone without
reference to the reply).
(2)
The
Court considered that the evidence fell short of establishing that the space
had been accepted as a regular maintenance responsibility of the Municipality
for the purposes of section 3(3) of the Act.
(3)
The
Municipality had not followed the statutory procedure for turning a private
road into a public road under section 60 of the Act.
(4)
The
incorrect description in the deed of sale of the 8m roadway as maintained by
the Municipality could not confer rights on Parsooramen, still less on the
Municipality.
The first
of these points is clearly correct, but is not determinative. The last point is also correct so far as it
goes, but the statement about the maintenance of the roadway is evidence, and
in the Board’s view important evidence, of Dr Sorefan’s state of mind and
intentions when he executed the deed of sale (an important document to which he
must be supposed to have paid close attention).
20.
The
other points relate to the Act. Since
the respondents did not appear, the Board did not have the benefit of full
argument on the Act, and they feel some reluctance at deciding points of
construction on the Act that may be of some general importance in
Mauritius. They think it better to go no
further than is necessary in order to dispose of this appeal.
21.
It
is appropriate to repeat section 3(3) of the Act:
“Notwithstanding
any other enactment, urban roads shall be all roads within the boundaries of a
proclaimed town which are not motorways or main roads and have either been
dedicated to public use or have been accepted as a regular maintenance
responsibility of a local authority other than a district council.”
The word
“or” suggests that there are two processes by which a roadway can become a
public road of the urban class: dedication or acceptance as a regular
maintenance responsibility of the highway authority.
22.
In
construing section 3(3) and other relevant provisions of the Act the Board
approaches the statute on the basis that although parts of it are framed with
regard to conditions and needs that are particular to Mauritius, others are
clearly based on English statutes going back to the Highway Act 1835 and the
Private Street Works
Act 1892. The former Act gave
statutory force to the English common law doctrine that a public highway was
created by dedication by the owner and acceptance of the dedication by the
local inhabitants at large (later represented by the appropriate highway
authority). Dedication was occasionally
effected by an express declaration but was much more often inferred from long,
continuous and uninterrupted use by the public: see Folkestone Corporation v Brockman [1914] AC 338; also Hale v Norfolk
County Council [2001] Ch 717, para 18, where Chadwick LJ said,
“It
is trite law that a public right of way over land may arise either at common
law, under the doctrine of dedication and acceptance, or by reason of some
statutory provision….”
23.
It
was not suggested that dedication of a highway was historically part of the law
of Mauritius, but the language of sections 3 and 5 of the Act indicates that
the doctrine of dedication of highways has, by statute, become part of the law
of Mauritius, as it has in other territories outside England: see Permanent Trustee Company of New South Wales
Ltd v Campbelltown Municipal Council (1960) 105 CLR 401, 420. In order to be complete, dedication requires
acceptance by the highway authority (Director
of Public Prosecutions v Jones (Margaret) [1999] 2 AC 240, 256). Otherwise a highway authority could be
saddled with heavy liabilities as a result of dedication of a road in a very
bad state of repair.
24.
The
Private Street Works Act 1892 (now embodied, in England, in Part XI of the
Highways Act 1980) deals with the circumstances in which a highway authority
may require a street to be made up at the expense of the residents and then
adopted as a public highway (so that future
maintenance will fall on public funds).
This may happen against the wishes of one or more individual frontagers
so long as the majority of the frontagers are in favour. Part III of the Act
(sections 49 to 61) contains a similar code covering these matters. They reflect democracy in action as between
the frontagers living on a private road (typically in a new urban development),
and a balance between the future advantage of the road being adopted (so that
there is no further private expense) against the immediate detriment (the
initial cost of bringing the road up to the requisite standard being shared
between the frontagers). It would be a
mistake to consider section 60 of the Act in isolation, as may have occurred in
the courts below. The provisions in Part
III of the Act explain the wording “Subject to this Act” at the beginning of
section 5(3) (public money not to be spent on private roads).
25.
This
background helps to explain the word “or” in section 3(3). The maintenance of all public roads is among
the responsibilities of the various highway authorities (under section 4 of the
Act) and so the use of the word “or” is in a sense redundant. There is an overlap between the two limbs of
section 3(3). But the most likely
explanation is that the first limb of section 3(3) is directed mainly to roads
of some antiquity (whose dedication may have been inferred from long-continued
public use) and the second limb is directed mainly at the special provisions in
Part III of the Act.
26.
The
Board is in full agreement with the Court of Appeal that the procedures in Part
III of the Act, if invoked, must be followed strictly, since they may involve
compulsory acquisition from some (but not a majority) of unwilling frontagers: Chadee v Beeharry [2004] SCJ 126. But the Court of Appeal seems, with respect,
to have been too ready to dismiss the possibility that Dr Sorefan had, by
acquiescence between 1977 and 1995, raised an inference of an intention to
dedicate the whole of the disputed space as a public highway.
27.
As
already noted, the whole of the disputed space was made up, apparently as a
roadway, in 1977. The whole of it was
repaired by the Municipality from 1980 (when repairs were first needed), at
first by regular patching and then (in 1995) by a complete resurfacing. There was no clear evidence at trial of any
marking out of parking spaces until the photographs taken in 1995, and it seems
likely that Dr Sorefan was not troubled about the matter until 1987, when he
sold the southern part of the property and the hotel on Parsooramen’s land
began to attract more parked cars. It is
not as if Dr Sorefan was an absentee landlord: his family company was head
tenant of the Nafyros Building, and he himself seems to have had consulting
rooms there. He must have been aware of
what was going on, and he spoke with feeling, in his evidence, about the taxi marrons which were high-jacking
what he regarded as his parking space.
28.
Some
of these points may be regarded as no more than inferences from the scanty
evidence put before the judge at trial.
But as she said, it was for Dr Sorefan to prove his case on the balance
of probabilities. Section 5(5) of
the Act (dealing with burden of proof)
seems hardly in point as it is dealing with the case where a private party is
seeking to throw the burden of maintenance onto a reluctant highway authority,
which is the opposite of the case here.
Even if section 5(5) were in point, the unequivocal statements in the
1987 survey and the deed of sale (a formal document executed by Dr Sorefan) and
the other circumstances mentioned above would discharge that burden.
29.
For
these reasons the Board allow the appeal and restore the order of Matadeen
J. The estate of Dr Sorefan must pay the
respondents’ costs in the Court of Appeal and the appellants’ costs before the
Board.
