STATE v. YANKEY [1966] GLR 208

Division: HIGH COURT, CAPE COAST

Date: 25 FEBRUARY 1966

Before: ARCHER J.

CASES REFERRED TO

(1) Harrison v. Hill 1932 S.C. (J.) 13.

(2) Buchanan v. Motor Insurers’ Bureau [1955] 1 W.L.R. 488; [1955] 1 All E.R. 607.

NATURE OF PROCEEDINGS APPEAL against acquittal and discharge of the respondent by the District Court, Cape Coast, on a charge of careless driving. The facts are fully set out in the judgment.

COUNSEL

P. V. A. Adjetey, State Attorney, for the appellant..

I. G. Carson for the respondent

[p.209] of [1966] GLR 208

JUDGMENT OF ARCHER J.

The respondent was charged with careless driving under section 18 (1) of the Road Traffic Ordinance, 1952.1 The particulars of the charge or offence were that on 1 July 1965 at University Road, Cape Coast, in the Cape Coast magisterial district, he did drive a certain motor vehicle No. GE 6449 on the road without due care and attention.

At the trial the respondent pleaded not guilty and his counsel raised the point which according to the record of proceedings reads:

“Counsel raises the point that the ‘University Road’ is not a public road and cites Buchanan v. Motor Insurers’ Bureau [1955] 1 All E.R. 607. This court could not agree less than what McNair J. has said in that case. This court is bound to follow.”

In the circumstances the accused was acquitted and discharged. The State has appealed against the acquittal of the respondent on the ground that the learned magistrate erred in holding that the University College of Cape Coast roads are not roads for the purposes of the Road Traffic Ordinance. The learned state attorney submitted that the roads at the University College at Cape Coast come within the definition of road in the Road Traffic Ordinance, and that the learned district magistrate was not bound by the decision in the English case of Buchanan v. Motor Insurers’ Bureau.2 Moreover the facts in that case are distinguishable from the facts in the present appeal and the learned magistrate misapplied the decision. The accident happened after a dance at the University College to which the public had been invited. For the respondent, his learned counsel argued that unauthorised persons are not allowed at the University College and that the people who attended the dance were there at the express invitation of the university, and the public as such have no access to these roads except by permission.

Before I deal with these arguments, I wish to remark that in the particulars of offence, the road is described as “University Road” as if there is such a road. The learned trial magistrate appears also to have in mind the “University Road” in his ruling. I have been in this town only a few months and I have not yet come across any road known as the University Road. Nevertheless the ground of appeal seems to throw some light on the matter and I therefore take it for granted that the road in question is one of the many roads in the area occupied by the University College. The word “road” is defined in our Road Traffic Ordinance. [His lordship here read the definition of [p.210] of [1966] GLR 208

“road” in section 2 (1) of the Road Traffic ordinance as set out in the headnote and continued:] It is patent that the definition is very wide but I think the ultimate criterion in determining whether or not a place is road within the definition of the Ordinance, is the access to the place by the public. I shall therefore concentrate on the words “to which the public have access.” Section 121 (1) of the English Road Traffic Act, 1930,3 defines road as follows: “Road means any highway and any other road to which the public have access and includes bridges over which a road passes.” It is obvious from these words that the definition of road in the English Road Traffic Act is too narrow but there appears also the words “to which the public have access.”

The Ghana Ordinance is modelled on the English Act and I think it is quite innocuous to refer to English decided cases to find out how certain expressions have been interpreted and construed in England but it does not follow that the Ghana courts are bound by any English decision referred to. The Ghana Constitution, 1960, then in force, did not encourage such compulsory judicial patronisation of foreign decisions. Nevertheless I think it was lapsus linguae on the part of the learned magistrate when he said he was bound by the decision in Buchanan v. Motor Insurers’ Bureau (supra).

In that English case McNair J. (as he then was) held that a road within the premises of the Port of London Authority was not a “road” within the meaning of section 121 (1) of the Road Traffic Act, 1930, because it was not a road to which the general public had access as a matter of legal right or by tolerance of the Port of London Authority. The judgment turned on the fact that passes were required by persons entering the dock area, and the Port of London Authority police had instructions to refuse permission to enter the area to any unauthorised person.

McNair J. relied on the judgment of Lord Justice-General, Lord Clyde in the Scottish case of Harrison v. Hill4 part of which I quote:

“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 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 all 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

[p.211] of [1966] GLR 208 extreme) that the public has a positive right of its own to access, nor (at the other extreme) that there exists no physical obstruction, of greater or less impenetrability, against physical access by the public; but that the public actually and legally enjoys access to it. It is, I think, a certain state of use or possession that is 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 known in right of way cases as the tolerance of a proprietor.”

In the same Scottish case, Lord Sands defined road in the following words5:

“In my view, any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied.”

After considering these judicial pronouncements McNair J. held that the place where the accident happened was not a road to which the general public have access either as a matter of legal right or by tolerance of the Port of London Authority. I have read this judgment very carefully and I am of the opinion that the facts in that case were peculiar, because passes were required to enter the London docks and the authority’s police have a right to eject unauthorised persons, and there was also special legislation relating to offences committable in the Port of London. McNair J. took the extra task of ventilating what offences could be committed on the dock premises, and set out the Port of London (Consolidation) Act, 1920,6 section 457 (1) which reads7:

“ ‘The quays wharfs docks and other premises of the Port Authority . . . shall be deemed to be public places within the meaning of [s. 54 of the Metropolitan Police Act, 1839] passed . . . for the purposes of making liable to the penalty imposed by [that] section every person committing within the same premises any of the following offences but no further or other wise . . .’”

[p.212] of [1966] GLR 208

It is therefore obvious that the Port of London (Consolidation) Act, 1920, had expressly provided for offences which could be committed in the dock area and offences under the Road Traffic Act were not included in the offences. Subsequently the Port of London Act, 1950,8 expressly provided that the Road Traffic Act shall have effect as if, in the provisions thereof mentioned in the 1950 Act, the expression “road” included a dock road. McNair J. therefore in concluding his judgment said: “if this accident had happened, not in December, 1949, but after the commencement of the Act of 1950, namely, after July 12, 1950, the defendants would have been liable on their promise. Apparently it is thought right on behalf of the defendants to take this point, and all I can say is that, in law it is a good point.” Buchanan v. Motor Insurers’ Bureau (supra) is therefore distinguishable not only on the facts but also on the special legislation which related to offences that could be committed in the London docks before the Port of London Act, 1950. In any case if an accident happened today in the London docks, the decision in Buchanan v. Motor Insurers’ Bureau would not be considered and followed by an English court. I shall now attempt to consider whether any of the roads in the area occupied by the University College is a road to which the public have access. The word “public” is not defined in the Road Traffic Ordinance and I must therefore consider realities and facts. Do the public generally have access to the University College road? I think so. The general public do not have to obtain passes to visit the university and walk on its roads. It has been argued on behalf of the respondent that there are gates to the main roads leading to the University College and these gates are manned by security officers. I think these security officers are posted at these gates not to prevent the public from going to the university compound but to keep an eye on suspects. It is known that the college premises are used by the students, the teaching staff and other maintenance staff who reside there. There may be restrictions on a member of the general public wishing to visit a student at odd and inconvenient hours. But is there any restriction on any member of the general public who wishes to visit a lecturer or an employee who resides there? I cannot think of any such restriction and I have not been informed of any. Then what about the students, lecturers and others who reside on the college premises and use these roads? Who are they and what are they? They are also members of the general public and use these roads.

[p.213] of [1966] GLR 208

If the roads at the University College were not roads within the definition laid down in the Road Traffic Ordinance, then it would mean that no driver of any vehicle who knocks down a student on one of the University roads could be prosecuted either for dangerous driving or careless driving. One cannot have a more serious absurdity. The Road Traffic Ordinance was passed to protect the public generally wherever they may be found and that is why the definition of road is so wide.

In my view road includes highway, street, lane pavement, footway or other place whether a thoroughfare or not to which the public have access either by written permission or by tolerance of the owner. The words “other place” in the definition is also so wide that it could include restricted areas like harbours, police and army barracks and I do not see why the definition of road should not embrace college compounds where students who are also members of the general public can be found. To hold otherwise would mean that a driver who drives carelessly and mounts a pavement abutting a road in town without causing harm to other users of the road could be punished but the driver who drives dangerously on a road in a college compound and maims a student cannot be prosecuted under the Road Traffic Ordinance. I do not think that was the intention of the legislature. The only statutory definition of “the public” can be found in section 1 of the Criminal Code, 1960,9 which reads,

“expressions referring to ‘the public’ refer not only to the citizens of the Republic as a whole but also to the persons inhabiting or using any particular place or any number of such persons, and also to such indeterminate persons as may happen to be affected by the conduct with reference to which the expressions are used.”

As this definition is confined to and relates to specific offences under the Criminal Code, I have not found it safe to apply the definition. I think the intention of the legislature when enacting the Road Traffic Ordinance must be paramount. The Ordinance was intended to protect the public generally wherever they have access and may be found.

For the above reasons the appeal is allowed and the learned magistrate’s order acquitting and discharging the respondent is hereby set aside.

DECISION

Appeal allowed.

S. K. T.