Privy Council holds that Crown land in St Helena can be acquired by prescription

17/09/26

The Judicial Committee of the Privy Council has held that Crown land in St Helena can be acquired by prescription. The decision settles a question never previously argued on the island and explains how Crown rights fit within a Torrens-style land register.

Mr Francis applied to rectify the St Helena Land Register on the ground that he had acquired land registered as Crown land by 15 years’ peaceable, open and uninterrupted possession under s 135 of the Registered Land Ordinance 1980. The land in question was once home to New Longwood House, which had been constructed between 1818 and 1821 as a residence for Napoleon, who was in exile on St Helena.

The Crown objected that Crown land could not be acquired by prescription, and the Registrar stated a case.

The Chief Justice decided that Crown land could be acquir

ed by prescription; the Court of Appeal decided that it could not. The Court of Appeal held that section 159 of the Ordinance—which provides that nothing in the Ordinance affects the “interests, rights, powers and privileges conferred on the Crown … by any other written law”—protected land vested in the Crown by section 112 of the Saint Helena Act 1833.

Lord Reed, giving the judgment of the Board, allowed Mr Francis’s appeal. The Board accepted that a literal reading of section 159 supported the Crown but held that a purposive construction must be preferred. Section 159 must be read as impliedly excluding interests of the Crown that fall within the registration provisions of the Ordinance. It protects, primarily at least, non-registrable rights conferred on the Crown by legislation over land held by third parties. The Crown’s ownership of land, however acquired, is registrable and falls outside section 159.

The St Helena Ordinance follows the Kenyan registered land model adopted across former British colonies and Overseas Territories. The reasoning of the Board is therefore likely to be applicable in many such jurisdictions.

The judgment can be read here.