George Nobel Stewart v The Lusaka Management Board (Civil Appeal Cause 4 of 1938) [1938] ZMHCNR 13 (31 December 1938)

[Vol. II 141 G EO RG E NOBEL STEW ART v. THE LUSAKA M ANAGEM EN T BOARD. Civ il Appeal Cause No. 4 of 1938. Kaffir path— Townships Ordinance Cap. 120—street—highway—grand pit —legal duty o f owner towards licensee—obligation to fence. The facts and the law are fully set out in the judgment hereunder. R obin son , J .: In this appeal the facts can be set out very shortly and I quote from the judgment o f the learned Resident Magistrate: “ The plaintiff (present respondent) is a mill superintendent employed by Mr. Du Buisson at the Lime Works at a salary o f £7 per month. On 6th June last year, a Sunday, the plaintiff was engaged in repairing a pipe at the lime works and he had two native boys assisting him. At about 6 p.m., when the repairs were finished, the plaintiff sent the two boys home and told the watch boy, who had then come on duty, that he was going for a walk until his supper was ready. According to the plaintiff’s evidence he intended, at that time, to walk along the wagon road leading from the lime works to Lusaka for some distance, then to turn north along that road to the lime works where he lived. However, after the plaintiff had left the lime works, he decided to walk as far as the post office in Lusaka to ascertain i f there were any letters and then return to the mill. In order to do this the plaintiff branched off from the wagon road on to a kaffir path, apparently thinking this way was shorter than continuing along the wagon road. At some spot which is not clearly defined the kaffir path seems to have forked, one fork continuing forward and the other fork leading to a pit. Unfortunately the plaintiff proceeded along the road leading to the pit and when he reached the pit he fell in and sustained a broken leg. It was dark and he had no lamp. At this stage I propose to say a few words about this pit. It is admitted by the defendants that the pit is in the township area. The pit is one which was originally used to get gravel for road-making purposes but apparently none has been taken from that particular pit since April, 1933, and since that time the pit, which is about five feet deep and covers an area o f about 200 by 100 feet, has been partly used as a dump for rubbish and partly as a latrine. There is no doubt, however, that the defendants were well aware o f its existence because Mr. Young visited it on an average o f once a week for many years, but did not regularly visit the part into which the plaintiff fell. The bottom o f the pit is littered with many large stones and boulders and the supposition is that the plaintiff fell on to one o f these and so broke his leg.” Vol. II] In those circum stances the respondent claimed damages from the appellants and he was awarded £200 on the grounds that this path was a highw ay and. the defendants were under a Common Law liability to fence. From th a t decision this appeal is now brought. The first ground o f appeal is that this native path was not a highway or a street or in any legal sense a footw ay or other means o f public passage, I t appears that there have been regulations for the Management of Lusaka Township since 1913 but I think there is no doubt that the present management board is a creature o f the Township Ordinance, Cap. 26, V ol. I, Laws o f Northern Rhodesia.1 In section 2 “ Street ” is defined as including any bridge, street, road, avenue, lane, sanitary lane, footway, causeway and pavement. The learned Resident Magistrate found, on the argument that this path was a footw ay, that it necessarily followed that this path was a street. I t does not necessarily I do n ot agree with him . follow that even if it was a street that it is a public thoroughfare. Under this definition, a sanitary lane is a street and y e t it is definitely laid down by rule 86 o f section 27 o f the regulation m ade under Cap. 262 that sanitary lanes are not public thoroughfares. Lusaka was declared a township in 1933 and an area o f 3,000 acres approxim ately was handed over to the management board. B y Governm ent N otice N o. 106 o f 1936 the area was increased to over 8,000 acres. A ll that land is not yet developed and in the meantime the undeveloped portions must I think be considered unalienated Crown land under the management o f the board. I do not think it can be seriously argued that persons walking across these waste spaces and form ing well-defined tracks can be said to be making streets. Some lim it must be pu t upon it and in m y opinion the proper lim it is to be found in the definition o f “ Street ” in Cap. 27,8 the Town Planning Ordinance: which cam e into force a week after Cap. 261 and both before the gazetting o f the present Lusaka township. In that Ordinance (Cap. 27)3 street is defined as including any street, road, avenue, lane, sanitary lane or thoroughfare shown on the general plan. I do n ot think it unfair to restrict the definition in Cap. 26.1 The Township Ordinance is m erely giving the G overnor in Council authority to declare townships— Part V o f Cap. 261 deals w ith streets and it says that the Governor in Council m ay vest in any local authority the control o f streets. W hen this Ordinance was first brought into force, after " streets ” the words were added “ W hich have been constructed b y the Govern­ ment ” , These words were deleted by Ordinance N o. 13 o f 1931 pre­ sumably so that the discretion vested in the Governm ent should not be restricted only to streets constructed by them selves. I think there can be no doubt that the intention o f the section is to refer to streets and public ways constructed according to som e general lay-out o f the town. Any streets made after the handing over m ust necessarily appear on a plan. I would like to m ake it clear that I am n ot laying down that in no circumstances cou ld there riot be “ a street ” unless it was shown in the 1 Now Cap. 120.:—Editor. 2 Regulation 86 of the Townships Regulations, Cap. 120.—Editor. 3 Now Cap. 123.—Editor. [Vol. II general plan but I think a presumption is set up against it and it would require strict proof o f dedication or intention and user to rebut it. I have come to the conclusion that this native path is not covered by the definition o f street in Cap. 26. The next point is as to whether it is a highway. In my opinion the answer is in the negative. The nature o f this area o f land must not be lost sight of. It is unalienated Crown land under the management o f the board. A t present the area is undeveloped but it is possible for it all to be built over. In that event proper roads and streets would be made but I cannot conceive that it would lie in the mouth o f anybody to say “ You cannot build there because o f this native path. It is a public way.” The position in m y opinion is that this is an area awaiting develop­ ment. Until such time as the land is wanted for the purpose for which it was intended in the township area, the public are permitted to walk across it how they will. They are not invited to do so but are tacitly permitted to do so. Now a highway I agree is in English Law the largest expression to designate a public way and is a way open to all the King's subjects, but it has special characteristics. Once it is there, it is there for all time. There must be dedication of. it or if dedication cannot be shown then long years o f user go a considerable way to show dedication in the past, but not all the way, as witness the case o f Robinson v . Cowpen Local Board (1893), 63 L. J. Q. B. 235, the headnote o f which reads: “ The mere fact that the public have for more than thirty years used an open space in a town, surrounded on all sides by highways, by passing over it in all directions, is not conclusive evidence o f an intention on the part o f the owner o f the soil to dedicate such space as a highway.” The only person who can dedicate is the owner o f the fee simple, in- this case the Crown. The management board are in the nature o f tenants. They can permit the public to walk across the land but they cannot dedicate it to bind the freehold. There is no suggestion that when Government handed over this area o f land to the board they did so with the intention that it should always remain an open space dedicated to the public. Another method o f dedication is by Statute and there is no Ordinance in point here. User, in the circumstances o f this case, does not arise. Africa is large and natives from time immemorial have walked hither and thither across it. When a house is built they walk round it and in m y opinion it. is not reasonable, nor should the Courts support the view, that because there is a native path the origin o f which goes far hack into the past, they should have a legal right always to walk upon it in that particular place for all tim e in the future. It is not in accordance with conditions in this country. It cannot be held against the Crown that this area was handed over to the management o f the board subject to the rights o f natives and others always to have a legal right to walk about on it at will for the future. The only other way to regard this area is that the whole space might be a highway, as in the Robinson case cited supra. It would in no event be possible I think to regard each o f the many native tracks, criss-crossing over the area, to be each a highway but, for the reasons above given, I hold that neither the area nor the trade in question is a highway. The Vol. II] learned R esident M agistrate felt he was bound to find that this track was a highw ay on the authority o f Rex v. Severn and W ye Railway Co. (1832), 2 B . and A ld 648, but there the facts wore very different. I am not disputing the settled law that a footw ay can be a public highway but I say that a public highway can only be established by statute or dedication or possibly prescription and that none o f these elements are present here. T he position therefore is that the respondent was walking on this land w ith the tacit permission o f the appellants and he fell into a hole w hich the appellants knew about. The fa ct that there were paths there does not, in m y opinion, affect the m atter one w ay or the other. The hole was not near a highway. In m y opinion the legal position is that the respondent when he walked on the land was a bare licensee. A person w ho goes upon land by the owner’s permission “ m ust take the permission w ith its concom itant conditions and it m ay be perils ” . Those words were spoken by W il l ia m s , J . in Hounsell v. Smyth (1860), 7 C. B. (N. S.) 743. The facts were similar to this case. There was some waste land upon which was a quarry. The waste land was unenclosed and open to the public and persons were wont to walk across it with the license and permission o f the owners. The quarry was situate near to and between two public highways. The defendants knew about the quarry and left it unfenced. The plaintiff having occasion to pass along one o f the highways, accidentally took the wrong road ow ing to the darkness o f the night so he started to cross the waste in order to get on to the other road. He did not know o f the existence or locality o f the quarry and owing to the darkness he could not see it. H e fell in and was injured. The Court held he could not recover. That case was follow ed by the Court in Brinks v. S. Yorkshire Railway Co. (1862) 3 B . and S. 244 where Hardcastle v. S. Yorkshire Railway Co. (1859) 4 H . and N . 67 was also discussed. The legal duty, at com m on law, towards a licensee is confined to a warning of any concealed source o f danger. B y a concealed source o f danger is meant one which is not apparent to a person who keeps his eyes open and In this case, the hole is there for everybody to see uses ordinary care. I come to the by day, and ordinary care would require a lam p by night. conclusion therefore that at Common Law the appellants were under no obligation to the respondent to prevent him falling into this hole and they were not negligent. That finding does not conclude the appeal because it is said that if the appellants are not liable under the Common Law even then they have a statutory liability. A ll questions o f law, so long as the point was taken in the Court below, are open to the Appellate Court and therefore I must consider each. They are threefold: (1) L iability under the Quarry (Fencing) A ct (1887) Cap. 19, 50 and 51 Vict .; (2) L iability under the Mining Proclam ation, 1912,1 and (3) L iability under the Townships Regu­ (1) Section 3 o f the Quarry (Fencing) A ct is as follow s: lations. “ Where any quarry dangerous to the public is in open or unenclosed land, within fifty yards o f a highway or place o f public resort dedicated to the public . . . it shall be kept reasonably fenced for the prevention o f accidents, etc.” 1 Repealed by the Mining Ordinance (Cap. 91 ).- Editor. [Vol. II As that is the wording I do not need to examine whether or not the statute applies to this colony. F r om the plan put in (Ex. E) it is clear that this hole is not within fifty yards of a highway and I have held that (2) I this land is not a place o f public resort dedicated to the public. agree with the learned Resident Magistrate that the Mining Proclamation o f 1912 cannot cover this gravel pit. No prospecting licence or mining rights have ever been acquired by the management board, nor would they ever have been granted for land within the township, see section (3) It is argued that the Townships Regulations impose a 8 (2) (d). liability in that rule 4 (39) states that no person shall dig any excava­ tion . . . without permission . . . or having such permission leave it not properly fenced. I agree with the Resident Magistrate that the rule does not apply in that the Regulations were not published until November, 1933, and are not made retrospective and there was no digging after April, 1933. It need not be examined further. The other point taken was that rule 72, which empowers the local authority to serve notices for the fencing o f excavations, creates a liability. The rule is permissive only and the local authority is itself the occupier. No definite obligation is created. It follows that the appeal must be allowed with costs here and in the Court below. The damages awarded by the learned Resident Magistrate now lodged in Court must be returned to the appellants. It is an interesting case and I thank counsel on both sides for their arguments. Now that the non-liability o f the appellants has been estab­ lished I venture to hope that their treatment o f this unfortunate respon­ dent will not be ungenerous, at least in the matter o f costs.