N. Parsooramen & Co Ltd v Nahaboo & Ors, Court of Appeal - Privy Council, June 29, 2010,  UKPC 10
|Resolution Date:||June 29, 2010|
|Issuing Organization:||Privy Council|
|Actores:||N. Parsooramen & Co Ltd v Nahaboo & Ors|
 UKPC 10
Privy Council Appeal No 0062 of 2009
N. Parsooramen & Co Ltd
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
Lord Phillips Lord Rodger Lord Walker Lord Brown Lord Clarke
JUDGMENT DELIVERED BY
29 June 2010
Heard on 25 April 2010
LORD WALKER :
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").
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.
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.
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.
"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.
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 tre cr aura une largeur totale de dix pieds (10) pieds d'un parement l'autre".
The italicised words and figure were completed in ink.
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...
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