N. Parsooramen & Co Ltd v Mrs Fatma Bibi Mahmood Nahaboo and others (Mauritius)

Under the Roads Act 1966, an urban road may become public either by dedication to public use or by acceptance as a regular maintenance responsibility of the relevant local authority. The two routes overlap, and statutory adoption does not exclude dedication by conduct. Dedication requires acceptance by the highway authority. An intention to dedicate may be inferred where an owner constructs a roadway and knowingly permits municipal repair and resurfacing over many years, particularly when formal documents describe it as a municipally maintained road. Statutory procedures for adopting private streets must be followed strictly when invoked, but they are not the only means by which a road may become public.

The dispute concerned an approximately 35-metre roadway in Impasse Pot de Terre, Curepipe. The estate of Dr Mia Ayoob Sorefan claimed that it owned the space, apart from a narrow strip dedicated as a public road. N. Parsooramen & Co Ltd, the owner of adjoining land, disputed that position.

At trial, Matadeen J held that the whole space had become a public road and dismissed the claim. The Court of Appeal held that the estate owned the space but that an 18-foot strip on its southern side was public. N. Parsooramen & Co Ltd appealed on the status of the space under the Roads Act 1966, including dedication and municipal maintenance.

1. Appeal allowed. The Board restored the order of Matadeen J. The estate of Dr Sorefan was ordered to pay the respondents’ costs in the Court of Appeal and the appellants’ costs before the Board.
2. Section 3(3) of the Roads Act 1966 provides two routes by which a roadway within a proclaimed town may be an urban public road: dedication to public use or acceptance as a regular maintenance responsibility of a local authority. The statutory adoption provisions in Part III do not displace the doctrine of dedication.
3. Dedication is incomplete without acceptance by the highway authority. This prevents the authority from being saddled with liabilities arising from dedication of a road in poor repair.
4. The procedures in Part III, including section 60, must be followed strictly if invoked because they can involve compulsory acquisition from unwilling frontagers. They are not, however, the exclusive route to public-road status.
5. The whole roadway was constructed in 1977 and repaired by the Municipality from about 1980, culminating in complete resurfacing in 1995. The owner was closely connected with the adjoining development and knew how the space was used. The 1987 survey and deed of sale described an eight-metre road maintained by the Municipality. Together, those matters supported an inference that the whole space had been dedicated and accepted as a public road.
6. The burden remained on Dr Sorefan’s estate to prove its case on the balance of probabilities. Section 5(5) was directed to a private party seeking to impose maintenance on a reluctant authority and was not directly applicable. Even if it applied, the evidence discharged the burden.

• Privy Council: The Board allowed the appeal, restored the order of Matadeen J, and made costs orders.
• Supreme Court of Mauritius, Court of Appeal: The Court held that Dr Sorefan’s estate owned the space, but that an 18-foot strip had become a public road.
• Supreme Court of Mauritius, trial court: Matadeen J held that the whole space had become a public road and dismissed the claim.