060-NLR-NLR-V-06-ELSTONE-v.-MARTELIS-APPU.pdf
1003.May 18.-
( 256 )
ELSTONE v. MABTELIS APPU.
M.G., Colombo, 28.
Unlawful gaming;—Ordinance No. 17 of 1889, e. 4—Playing in any place towhich the public have access whether of right or not—Private land.
An open cocoannt plantation crossed by several paths which did notappear to lead from one honse to another in it, nor from the adjoiningroads to any of the houses in the plantation, and in which a game for astake was carried on by divers persons, is a place to which the publichave access whether of right or not.
The fact that such plantation is private land does not exclude it fromthe purview of section 4 of the Ordinance No. 17 of 1889.
Perera v. Perera (2 C. L. R. 8) overruled.
T
HIS case of unlawful gaming, in which the Magistrate of theMunicipal Court of Colombo (Mr. E. Ondatje) acquitted the
accused, was heard in appeal by Mr. Justice Middleton on 7th May,1903, when His Lordship, being doubtful of the soundness ofthe decision of Burnside, C.J., in Perera v. Perera {2 G. L. R. 6), onwhich the Magistrate had based his judgment of acquittal, directedthe case to be listed before the Collective Court.
On the 18th May the case was argued before Layard, C.J.,Middleton, J., and Grenier, A.J.
The place where the unlawful gaming was alleged to haveoccurred was proved to be an open plantation of cocoanutpalms with several paths running across it. The grounds were notenclosed, but was bordered by four lanes or. roads. There wereabout six houses in the plantation. The majority of the playerswere seated in circles,and spectators were standing round them.
RdmanAthan, S.-G., appeared for the Attorney-General, appellantH. J. C. Pereira and F. Saram, for the accused, respondents. .
18th May, 1903. Layard, C.J.—
This is a charge under section 4 of Ordinance No. 17 of 1889. TheMagistrate has amongst other things decided that, as the place inwhich the unlawful gaming is alleged to have taken place was aprivate land, the accused ought to be acquitted.
Now, the provisions of section 3 (2a) of that Ordinance providethat unlawful gaming includes the act of betting and playing agame for a stake when practised in any place to which the publichave access whether of right or not. Those words certainly donot exclude a place which is private property merely because it isprivate property. It includes a place which is private propertywhere the public have generally access, though not of right.
The Magistrate supports his decision by reference to the judg-ment of Burnside, C.J., in Perera v. Perera reported in 2 C. L. B. 6.
Burnside, C.J., there held that the word “access*’ must bepresumed to mean “ legal access, '* and the word “ place ’’ must beconstrued to mean either public place (to which of course thepublic have access as of right) or a private place to which theymay have legal access, whether as of right or by the tacit consentor express license of the owner.
It appears to me that in so limiting the provisions of sub-section2 (a) of section 3, Burnside, C.J., has altogether omitted puttingany interpretation on “a place to which the public have accessnot of right,’.’ because where a person has access by tacit consentor express license of the owner he has access as of right. Icannot see my way to leave out altogether in interpreting sub-section 2 (a) of section 3 the reference the Legislature has madeto a place to which the public may have access not of right.That appears to me to particularly refer to a place which may beprivate property, but to which the public have generally a right ofaccess.
The evidence of the complainant discloses that the place wherethe unlawful gaming took place was an open plantation, with afew scattered palms, two or three rubbish heaps, and several pathsacross it. It is further in evidence that this unenclosed gardenwas surrounded by four roads, and that there were some houses onit. It is suggested by respondent’s counsel that the paths whichthe Assistant Superintendent speaks of were merely used by theinhabitants of the houses. There is nothing, however, to supportthe suggestion or to show that the paths across ran merely fromhouse to house or from any particular road to any particular house.When a person speaks of paths across a land, the ordinary meaningwould be that the paths went right across the land quiteindependent of the houses on the land, and if we find on a landpaths running across it without any gates or obstructions, thepresumption is that those paths are open to any one to walk acrossthe land.
I think, therefore, that with respect to this particular land theevidence shows that the public have generally access to it, thoughthere is nothing to show whether they have such access of rightor not.
In my opinion the Police Magistrate was wrong, and I wouldnow leave my brother Middleton to decide as to whether thePolice Magistrate was right or wrong on the merits.
Middleton, J., and Grenier, A.J., concurred.
1903
May
Layabd