[1951] EACA 36

# COURT OF APPEAL FOR EASTERN AFRICA

#### 'Before Sir Barclay Nihill, President, Sir Newnham Worley, Vice-President, and LOCKHART-SMITH, J. of A.

### ABBAS BROTHERS, Appellants (Original Plaintiffs)

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### FAZAL MOHAMED CHAMPSI, Respondent (Original Defendant)

# Civil Appeal No. 19 of 1951

(Appeal from decision of H. B. M. High Court of Zanzibar—Gray, C. J.)

Right of way—Burden of proof—Whether public or private.

The plaintiffs claimed in H. B. M. High Court of Zanzibar an injuction to restrain the respondent from entering their *shamba* and using a track or private road running across it. The defendant admitted user but alleged the track was a common or public way.

At the trial the Judge held the plaintiff's having pleaded that the road was a private one, the onus lay on them to prove it.

Held $(1-6-51)$ .—(1) It was incumbent upon the defendant to prove he had a right to use the plaintiff's land and if he could not do so he was nothing better than a trespasser.

(2) The creation of a number of private rights by prescription under section 26<br>Limitation Decree did not turn this private road or track into a public way over which the public in general were entitled to pass.

'Re-trial ordered, Sir Newnham Worley, V. P., dissenting.

O'Brien Kelly for appellants.

Bryson for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL, P.).—This is an appeal from a judgment given in His Britannic Majesty's High Court for Zanzibar.

The appellants, who were plaintiffs in the suit, prayed for an injunction to restrain the respondent, his servants and agents from entering their shamba and using a track or private road which ran across it from south to north. In his defence the respondent admitted user but pleaded that he was entitled to use the said track or road on the ground that it was a common or public way which had been used by the public without interruption for over 20 years. He did not deny that the road lay across the appellant's land.

At the hearing of the suit the learned trial Judge first heard arguments as to which side should begin. The plaintiff's advocate submitted that the onus lay on the defendant, but the latter's advocate submitted with success that since the plaintiffs had pleaded that the road was a private road the onus lay on them to prove it. With the greatest respect to the learned Judge this is where the first mistake in this case occurred, and much has flowed from it. He held that in view of the provisions of section 102 of the Evidence Decree that the burden of proof rested on the plaintiffs since if no evidence was called the defendant would be at liberty to continue to use the road without objection. He appears to have overlooked the fact that the defendant having admitted user and not having joined issue with the plaintiffs in their assertion of fact that the road lay across their land, it was incumbent on the defendant to prove that he had a right to this use of the plaintiff's land, and that if he could not do so he was nothing better than a trespasser. That this was a misdirection on the part of the trial Judge has

been conceded by the respondent's counsel at the hearing of this appeal. I have no doubt at all that this misdirection caused embarrassment to the appellants who were called upon to prove a negative and that it was also responsible for the fact that the trial then proceeded on a wrong issue, namely, whether the respondent or the owner of land adjoining the appellants' land to the north had acquired a right of way as an easement within the meaning of section 26 of the. Zanzibar Limitation Decree. It seems to have been overlooked by everyone at the trial that this was not the respondent's contention and that the real issue on the pleadings should have been whether there was evidence either express or by implication to establish dedication to the public by the owners of the land overwhich the track ran. This also has been conceded by the appellants' counsel who has nevertheless submitted that there was enough evidence of general user to warrant the learned Judge in finding dedication although in fact he did not do so. I am unable to agree with this submission. That a presumption of dedication may arise from evidence of long and uninterrupted user is indeed settled law, but it is not a presumption of law which unless rebutted must prevail (see Folkestone Corporation v. Brockman (1914) A. C. 338). In this case the House of Lords clearly laid down that proof of long continuous and uninterrupted user of a way by the public, though it is evidence from which dedication may be inferred, does not create a presumptio juris. Lord Kinnear at page 352 expressed the matter thus: -

"The nature of user, and consequently the weight to be given to it, varies indefinitely in different cases, and whether it will import a presumption of grant or dedication must depend upon the circumstances of the particular case."

In the case now before us the learned trial Judge did find on the evidence before him that the owners of land lying in the north of the appellants' property had for upwards of twenty years been accustomed to pass and repass along the track which took them from their land to the main road which runs from Zanzibar to Mwera. I do not question the validity of this finding but it establishes nothing more than that a series of private rights of way may have accrued by prescription to certain adjoining owners from one of which the respondent may or may not have acquired an easement as a successor in title. On this aspect of the matter there is absolutely no evidence. If I may say so with respect, the error into which the learned Judge fell, an error which I have already indicated flowed from his misdirection as to where the burden of proof lay, was in supposing that the creation of a number of private rights by prescription under section 26 of the Limitation Decree, turned his private road or track into a public way over which the public in general were entitled to pass. The distinction between a private prescriptive way and a public way is put well in Peacock's Law relating to Easements in British India (3rd Edition, page 29) where the learned author cites a passage from Rangeley v. The Midland Railway Co., 1868 L. R. 3 Ch. at page $311:$ —

"In truth, a public road or highway is not an easement, it is a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing .... It is quite clear that it is a very different thing from an ordinary easement, where the occupation remains in the owner of the servient tenement subject to the easement."

Again at page 611 the learned author notes: $-$

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"A public way and a private prescriptive way cannot be claimed or pleaded together as the two are inconsistent."

It is therefore in my view impossible for this Court to come to a finding of fact on the issue of dedication from the evidence which the learned Judge

accepted as to individual user. The only question that remains and which has given me any difficulty is whether the appellants are now entitled to the injunction prayed or whether this Court should direct a new trial. After consideration' I have come to the conclusion that the latter course is the proper one for this Court to adopt. It is true that the respondent pleaded a public right of way and failed to establish it, but at the same time it must be remembered that the true issue which emerged from the pleadings was never before the learned Judge and has never in fact been tried. I consider therefore that we should put the parties back into the position which they would have been had the learned Judge accepted the submission of the plaintiffs' counsel, as he should have done, that the onus lay on the defendant and that therefore it was for the defence to begin.

Mr. Bryson has submitted that in such event the right order would be that each party should bear the costs of this appeal, but I do not agree. It was the respondent's counsel at the trial that resisted the submission that he should begin and who invited the learned Judge to make the order that he did. The order that I propose therefore is that this appeal be allowed with costs and that the case be remitted to His Britannic Majesty's High Court in Zanzibar with the direction that the suit do now proceed to trial on the issue as to whether the suit road has or has not been dedicated to the public by the owners of the land over which it runs. If the answer be in the negative then the appellants should be granted an injunction and the issue of damages must be inquired into. I would also grant the appellants costs of all proceedings in the court below from and including the dates of the Judge's order of 24th October, 1950, to final judgment on 13th November, 1950.

SIR NEWNHAM WORLEY, V. P.-I have had the advantage of reading the judgment of the learned President and entirely agree that the learned trial Judge misdirected himself both as to where the onus of proof lay and as to the evidence necessary to establish the existence of a public right of way. I am, however, unable to agree with the order proposed.

The respondent's counsel was primarily responsible for misleading the trial Judge on both the issues referred to above. As I read the record the trial did proceed upon the issue of the existence or non-existence of a public right of way although both counsel engaged and the Judge were all mistaken in ignoring the necessity of proving dedication. It must, however, be presumed that the respondent called all the evidence available to him to show user and, since that evidence does not and could not on any reasonable appreciation, support an inference of dedication I see no good reason for affording the respondent the opportunity of à re-trial.

I would allow the appeal with costs, and grant the appellants the injunction asked for and their costs of the trial. As no evidence was led by the appellants on the question of damages, none can be awarded.

LOCKHART-SMITH, J. of A.—I concur with the judgment of the learned President which has been read by the learned Vice-President and with the order the President proposes.

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