(CRIMINAL REVISION)

SUDAN GOVERNMENT v. MOHAMED ABDEL MAGID

AC-CR-REV-232-1967

Principles

Reception—Interpretations of English courts—Application of by Sudanese courts in cases of same nature Road Traffic—” Road”—” Access.” meaning of—Road Traffic Act 1962, ss. 3, 4, 58

A certain company entered into an agreement with the Sudan Government for building a Dam in Roseires. Under the terms of the agreement the company was to take temporary possession of a certain bridge together with part of the road from Roseires to Damazin to use for its own traffic. The company did not (contrary to the Road Traffic Act 1962, s. 53) insure, and did not (contrary to the Road Traffic Act 1962, s. 4 (1)) obtain the necessary licences for its motor vehicles; depending on the understanding that it was enjoying the usage of a private place one part of which falls within the meaning of ‘road’ as defined in the Road Traffic Act 1962, S. 3. At the same time the public continued using the bridge and the road without any physical obstruction from the company, and no prohibition of any kind whether express or implied was manifested in any manner. An information was lodged against the company for the contravention of the aforementioned sections when on a certain day one of its cranes was driven by one of its employees across the bridge and along part of the road leading from Roseires to Damazin.
Upholding a conviction in respect of both the Road Traffic Act 1962, SS. 4 (1) and 53 the courtو
Held: the word “road” means any road whether private or otherwise to which the general public has access.
“Access” means enjoyment of usage without any physical obstruction or prohibition express or implied. Hence, the bridge and that part of the road leading from Roseires to Damazin are roads within the meaning in the Road Traffic Act, 1962, S. 3.
Obiter dictum: When a Sudanese statute is similar to English law, there is no objection—in the absence of Sudanese precedents—why the Sudanese courts should not apply the interpretations of the English courts to cases of the same nature arising in this country.

Advocate: Ishag Shaddad for………..Ahmed Nutwali El Atabani

& Mohamed Yousif Mohamed……………… for accused

Judgment

Galal Ali Lutfi 1. September 9, 1968 :—The facts of this case are very simple and they are as follows:

The Sudan Government entered into an agreement with a company known as Impregilo for the building of Roseires Dam. For the purpose of carrying out the work the agreement provided, inter alia, that:

(a) “The Contractor will be required to take temporary possession of the bridge(Roseires Bridge) under the terms of clause 128 and will have the use of it for his own traffic during the period of the contract” (Clause 170 Vol. l0B).

 (b) “‘Site’ means the lands and other places on under in or through which the works are to be carried out and any other land or places provided by the Employer for the purpose of the contract together with such other places as he specifically designated pursuant to the contract as forming part of the Site.” (Para. K (1) of the agreement.)

The company did not insure (contrary to Road Traffic Act, s. 53) and did not obtain the necessary licences (contrary to Road Traffic Act, s. 4 (1)) for its motor vehicles and cranes including the one which is the subject matter of this case depending on the understanding that the bridge along which such vehicles and cranes were being driven is a private road and does not fall within the definition of “road” as defined by the Road Traffic Act 1962, S. 3.

On or about November 23, 1966, one of the company’s cranes was driven by one of its employees across the bridge and along part of the road leading from Roseires to Damazin. The said crane was not licensed under Road Traffic Act, s. 4 (1), and was not insured according to the Road Traffic Act, S. 53. An information was lodged against the company for the contravention of the aforesaid two sections.

The company did not deny the facts alleged by the prosecution but in defence it pleaded what it had understood from the terms of the agreement, i.e., it is enjoying the usage of a private place which it considers as part of the “site.” On the other hand the prosecution contended that as long as the public had access to the bridge and to that part of the road leading from Roseires to Damazin they are in law considered as public highways within the definition of “road” as defined by the Road Traffic Act, s. 3. Accordingly they insisted that the Road Traffic Act, ss. 4 (1) and must be complied with.

After hearing the evidence and submissions by both the Attorney- General’s representative and the advocate for the defence, the trial court entered a conviction in respect of both sections and a fine was imposed.

On application to the Province Judge, Blue Nile, he confirmed the finding under both sections and reduced the fine passed under section 4 (1) to £S.5.000m/ms The company made an application to this court praying for an order of cancellation of both finding and sentence.

The crucial question in issue is this:

Taking into consideration the terms of the agreement made between the Sudan Government and the company, can we consider Roseires Bridge and that part of Damazin road as private roads to which the Road Traffic Act 1962, does not apply?

The answer to this question is found in the answer to the further question:

What is a road?

The Road Traffic Act 1962, S. 3 defines the word “road” as follows:

Means any road to which the general public has access and includes bridges over which a road passes and docks, railway yards, forecourts, parking places and enclosures to which vehicles of the general public have access.”

This definition as it stands needs further interpretation and clarification. The Sudanese precedents in this respect offer no great help and so we have to consult the English law. The English Road Traffic Act 1930, s. 121, defines the word “road” as follows.

“Any highway and other road to which the public has access, including bridges over which a road passes.”

Though this definition is not identical with the Sudanese one, yet it is similar to it. There is no difference in the fundamental parts.

The leading case in this matter which gives a clear guidance as to the meaning of “road,” “public” and “access” is the case of Harrison V.Hill (1932) S.C.(J.) 13

The facts of this case are as follows:

“A road was part of a farm and led only to the farmhouse, where it terminated. It had no other houses on it, and it was not maintained by any public authority but by the farm tenant in terms of his lease. There was no gate at the entrance to it and no intimation that it was not open to the public, and except at times in summer, when the farmer placed a pole across it to prevent the straying of cattle, there was no obstacle to prevent the public having access to it. The road was used by the public as an access to the farm and members of the public not having business there also frequently walked on it. They had on several occasions been turned off by the farmer when there were crops growing in the adjoining fields.

Held: The road was a road to which the public had access within the Road Traffic Act 1930, s. 121 (1)."

See Bingham, Motor Claims Cases ( ed. 1960) p. 181.

The following two passages from the judgment in the above case are of great help for the purpose of explaining certain points raised in the case before us.

Lord Clyde in his speech has clearly explained the meaning of the important words in the statute and left no room for any doubt as to what the legislature has intended. He said:

It is plain from the terms of the definition, that the class of road intended is wider than the class of public roads

public has access in virtue of a positive right belonging to the public and flowing either from statute or fromto which the prescriptive user. A road may therefore, be within the definition (1) although it belongs to the class of private roads, and (2) although all that can be said with regard to its availability to the public is that the public has access to it. I think that, when the statute speaks of’ the public’ in this connection, what is meant is the public generally and not the special class of the members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise the definition might just as well have included all private roads as well as public highways. I think also that, when the statute speaks of the public having ‘access’ to the road, what is meant is neither (at one extreme) that the public has a positive right of its own to access, nor (at the other extreme) that there exists no physical access by the public; but the public actually and legally enjoys access to it. It is, I think a certain state of use, or possession that it pointed to. There must be, as a matter of fact walking or driving by the public on the road, and such walking or driving must be lawfully performed—that is to say must be permitted or allowed either expressly or implicitly by the person or persons to whom the road belongs. I include in permission or allowance the state of matters know1l as the tolerance of a proprietor.”

Lord Sands succinctly elucidated the meaning of the word “access.” He said:

“In my view any road may be regarded as a road to which the public have access either by overcoming a physical obstruction or in defiance of prohibition express or implied.”

See Bingham, Motor Claims Cases (4th ed. 1960) p. 182.

As I see it, the main points which are settled by this case are the following:

First: The word “road” means any road whether private or otherwise to which the general public has access.

Secondly: The word “public” means the general public and not a special class. The definition of the word “ road” in the Sudan Road Traffic Act has done away with this ambiguity by inserting the word “general” before the word “public” and so we are in no difficulty in this connection.

Thirdly: The word “access” means enjoyment of usage without any physical obstruction or prohibition whether express or implied.

Our law in this respect being similar to the English law, I see no objection why we should not apply the interpretations of the English court to cases of the same nature arising in this country. In the present

case it is admitted that the company—according to the agreement with the Sudan Government—can have temporary possession of Roseires Bridge for the purpose of carrying out the work. But it is also admitted that the general public—and not only the company’s employees—had access to the said bridge and they used to walk and motor along it while the company was actually using it. The members of the public found no physical obstruction from the company and no prohibition of any kind whether express or implied and manifested in any manner. There were no notice boards or other indication to the public to convey to them that they are not allowed to use it as of right.

Having known what a “road” means, and having settled the facts in the case before us, I think that the bridge and that part of the road leading from Roseires to Damazin are roads within the definition in the Road Traffic Act, s. 3. What I understood from the company’s defence is that it is of opinion that what the Government designated as a private place and part of the “site” cannot be considered as a “road” within the definition. But this plea cannot be accepted as a good defence because the following question poses itself and the answer to it is not in favour of the company’s argument.

If the Sudan Government has agreed with another person or persons to have temporary possession of a public road for purposes of building operations, does this deprive any person not being the employee of that other of the right to claim damages in case of any accident, if the general public has access to such a road without any hindrance or prohibition whether express or implied?

In my opinion the Sudan Government cannot contract out the legally acquired rights of the members of the public if all factors establishing such rights are still there. In this case though the Sudan Government has agreed with the said company to enable it to have temporary possession of the bridge, yet as long as the general public has access to it they will not be deprived of their rights and they will consider it as if they are using a road within the meaning of the Road Traffic Act, S. 3.

In the circumstances therefore, there is nothing to justify the omission by the company to comply with the Road Traffic Act, ss. 4 and 53, and I see no reason to intervene with both finding and sentence as reduced by the Province Judge, Blue Nile.

Abdel Magid Imam J. September 12, 1968:—I agree.

Hashim Mohamed Abul Gasim J. September 12, 1968 :—I agree.

ORDER: Galal Ali Lutfi J. September 13, 1968 :—We see no reason to intervene.