St Helena Court of Appeal Judgments

In the St Helena Court of Appeal

 

Attorney General of St Helena

for and on behalf of the Crown

Appellant

-v-

 

Larry Francis

Respondent

 

JUDGMENT

 

1.    This is an appeal by leave of the Supreme Court against the opinion of the Chief Justice on a case stated under S. 146 of the Registered Land Ordinance 1980 dated 16 July 2024. We have decided this case mainly on written submissions. We did invite some further oral submissions which were made by video link on 20^th December 2024. This is the judgment of the court.

 

2.    The question raised on the case stated was: ‘Can Crown land be acquired by prescription?’. The answer given by the Chief Justice in a comprehensive judgment was ‘yes’.

 

3.    The case stated arises from the Appellant raising the issue with the Registrar following an application by the Respondent for prescription of property owned by the Crown.

4.    In so far as the facts are material they are set out in the judgment of the Chief Justice and we gratefully adopt them in this judgment.

 

5.    The Chief Justice said: ‘The prescription proceedings concern a number of commercial units all registered as Crown land. The land is divided into 4 units.  The ground floor is units 240, 241 and 242. Unit 241 is between units 240 and 242.  The first floor is unit 249 and has the same floor space as units 240, 241 and 242 combined and sits directly above the ground floor units.

 

6.    The Applicant, Mr Francis, has made a prescription claim relating to units 241 and 249.  He claims at least 15 years uninterrupted and exclusive possession of the two units (‘the land’).

 

7.    Mr Francis has or had a lease or a licence from the Crown in relation to units 240 and 242. He claims his possession of units 240 and 242 commenced by lease dated 25^th March 1995. When he took over these properties, he states that he very soon moved into unit 241 which was empty and is sandwiched between 240 and 242. He asserts that there was no agreement with the Crown to do this and that he has acquired ownership by peaceable, open and uninterrupted possession of the land since 1995 without permission of the Crown.

 

8.    In 2006 he says he took possession of the upstairs unit 249 which was empty. Again, he asserts that he has acquired ownership of that unit by peaceable, open and uninterrupted possession of the land since 2006 without permission of the Crown.

 

9.    As the Chief Justice correctly says, whether or not the Respondent can successfully establish those facts, is irrelevant to the application before him and this appeal.

 

10.  It was not for the Chief Justice or for us to decide whether the land subject to the prescription claim was Crown land. The question is asked on the basis that it is Crown land.

 

11.  The legislative framework set out in detail in the Chief Justice’s judgment is not in dispute and we will set out the relevant parts.

 

12.  S. 112 of the St Helena Act 1833 provides:

 

112 Saint Helena vested in the crown

The island of St Helena, and all forts, factories, public edifices, and

hereditaments whatsoever in the said island, and all stores and property thereon fit or used for the service of the government thereof, shall be vested in his Majesty, and the said island shall be governed by such orders as his Majesty in council shall from time to time issue in that behalf.

The meaning and effect of that section we will address later in this judgment.

 

13.  Local laws are made by the Legislative Council of St Helena but have to conform to the Constitution, the latest version of which is contained in the Schedule to a 2009 UK Order in Council. S 5(1)  of that Schedule provides that any local laws shall ‘be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution.’

 

14.  S. 31 of the 2009 Constitution provides :

 

Powers to dispose of land

31.Subject to this Constitution and any other law the Governor or any person duly authorised by him or her in writing under his or her hand may, in Her Majesty’s name and on Her Majesty’s behalf, make and execute grants and other dispositions of any land or other immovable property in St Helena that is vested in Her Majesty in right of the Government of St Helena.I

15. It follows from what we have already set out that any local law dealing with the disposition of land would need to conform to S. 31 of the Constitution.   

16.  It was agreed at the hearing before the Chief Justice that United Kingdom legislation and Orders in Council which includes the Constitution take precedence over locally made laws.

17. The relevant local law relating to the right to acquire land by prescription is found in the Registered Land Ordinance 1980 (the Ordinance).

18. S. 135 of the Ordinance reads as follows:

Acquisition of land by prescription.

(1) The ownership of land may be acquired by peaceable, open and uninterrupted possession for a period of 15 years without the permission of any person lawfully entitled to such possession.

(2) Any person who claims to have acquired the ownership of land by virtue of subsection (1) may apply to the Registrar for registration as proprietor of the land.

19. Relevant to the interpretation of S.135 of the Ordinance are the following sections of that Ordinance:

159. Nothing in this Ordinance affects any of the interests, rights, powers and privileges conferred on the Crown or the Government by any other written law.

160. Subject to section 159, this Ordinance binds the Crown and the Government.

20. The hearing before the Chief Justice focussed on these provisions and their inter-relationship as has this appeal.

21. Before the Chief Justice, the Appellant argued that S. 135 of the Ordinance does not apply to Crown lands for a number of reasons:

(i) it would be inconsistent with the Constitution to apply it to Crown land and the Constitution takes precedence.

(ii) it would be inconsistent with the express terms of S. 31 of the Constitution.

(iii) if not inconsistent with the express terms of S. 31 it is inconsistent with the purposive interpretation of S. 31 which should be used by the Court.

(iv) Crown lands are excluded from being acquired by prescription by the terms of S. 159 of the Ordinance.

22. The Chief Justice found against the Appellant on all four grounds.

23. There are two grounds of appeal namely:

1). That section 31 of the Constitution requires to be purposively construed and, so construed, does not permit acquisition of Crown Land by prescription pursuant to section 135 of the Registered Land Ordinance.

2). The saving provision at section 159 of the Registered Land Ordinance precludes application of acquisition by prescription at section 135 to Crown Land.

24. Arguments (i) and (iii) before the Chief Justice are merged into the first ground of appeal but argument (ii) before the Chief Justice that the acquisition of Crown land by prescription is contrary to the express terms of S. 31 of the Constitution is no longer pursued.

25. We will deal with the arguments sequentially.

26. First, we will consider Argument (i) before the Chief Justice which is now incorporated into Ground 1 of the Appeal.

27. Is there an inconsistency between S. 135 of the Ordinance and S. 31 of the Constitution?

28. Section 31 provides a power for the Governor to:

 “make and execute grants and other dispositions of land” in her Majesty’s name and on her behalf”.

It is a power given to the Governor to grant ownership of land to others. It says nothing about whether there are other means by which someone might acquire Crown land (eg possession and operation of law). These means of acquiring ownership are distinct: an express grant by the owner or by peaceable possession and prescription.

29.The Ordinance supports such a distinction. It defines in S. 2:

“disposition” as “any act inter vivos by a proprietor whereby his rights in or over his land, lease or charge are affected, but does not include an agreement to transfer, lease or charge;”; and  “transmission” as meaning the passing of land, a lease or a charge from one person to another by operation of law on death or insolvency or otherwise howsoever, and includes the compulsory acquisition of land under any written law;”

30. It follows that the  Ordinance makes a distinction between an act granting rights in land and land being acquired by operation of law. The Constitution does not include any such definitions, but S.31 by referring to “making and executing grants and other dispositions” envisages a grant by the owner rather than rights being passed by operation of law such as prescription. There is no inconsistency between S. 31 and S. 135 since the two provisions address different matters: the right of the Governor to grant land and the rights of a person to acquire land by possession and operation of law.

31. We therefore agree with the Chief Justice as to his findings on the first issue that he had to consider.

32. We also reject the Appellant’s argument on the first ground of appeal that S. 31 of the Constitution should be purposively constructed so as to prevent the acquisition of Crown land by prescription. It is common ground now that S. 31 does not expressly address the right to acquire land by prescription. Even assuming a broad and purposive view of S.31 as a constitutional provision is warranted (Minister of Home Affairs and Anr v Fisher [1979] 3 All ER (PC) 21), it is not clear what the justification is for reading in such a prohibition. What words are said to create an ambiguity which requires such a prohibition to be included? To include an implied prohibition on other persons acquiring ownership of Crown land through possession, into S. 31, would be to legislate without any proper justification.

33.We turn to the second ground of appeal.

34. The Appellant argues that the right to acquire land by prescription under s. 135 of the Ordinance does not apply to land owned by the Crown, by virtue of S. 159 of the Ordinance which provides “Nothing in this Ordinance affects any of the interests, rights, powers and privileges conferred on the Crown or the Government by any other written law.”

35. We accept, in agreement with the Chief Justice, that there is nothing in S. 31 of the Constitution which would lead to the application of S. 159. However, whether or not S.112 of the Saint Helena Act 1833 has that effect requires detailed consideration.

36. The Chief Justice dealt with this argument in paragraphs 165 to 168 of his judgment which read as follows:

 

165. This ground of challenge is like the first ground - not necessary for me to determine in light of my rulings on the second and third grounds.  Even if section 159 of the Ordinance provides for a saving provision in respect of ‘interests, rights, powers and privileges conferred on the Crown or the Government by any other written law’ this does not undermine, restrict or prohibit the application of section 135 of the Ordinance to Crown land.

 

166.  The written law relied upon by the Respondent for the purposes of section 159 of the Ordinance a. The vesting of St Helena in the Crown by virtue of section 112 of Saint Helena Act 1833; and b. Powers to dispose of Crown land in section 31 of the Constitution) do not give the Crown a right to prohibit, prevent or restrict acquisition by prescription of its land.   This is for the reasons I have given at length in respect of the second and third grounds.  In the course of those reasons, I also touched on the effect of sections 159 and 160 of the Ordinance.  There was no pre-existing right or interest of the Crown (under the 1966 Constitution or 1833 Act) prior to the coming into force of the 1980 Ordinance that Crown land could not be acquired by prescription.  There was nothing that section 159 of the Ordinance could ‘save’.

167. The interrelationship between the saving provision section 159 of the Ordinance and a) the proviso in section 31 of the Constitution (‘subject to’); b) section 160 of the Ordinance; or c) Article 5 of the 2009 Order, are all interesting questions but entirely academic in light of my rulings.  If the savings provision in section 159 does not bite to assist the Crown then section 160 applies section 135 to Crown land.

 

168.I also agree with Mr Scott that had the savings provisions of section 159 of Ordinance intended to exclude Crown land from prescription then those who drafted the Ordinance and the local St Helena legislature that passed it would have ensured that such an important detail was not wrapped up in an obscure and unclear saving provision. Again, express words would have been contained.  As I also touched on above, the Governor should not have assented to that legislation if he understood sections 135, 159 and 160 to be inconsistent or contradictory to section 31 of the Constitution.

 

37. While we understand that as a result of his previous rulings, it was inevitable that the Chief Justice would conclude that S. 31 of the Constitution did not come within the ambit of S. 159 of the Ordinance (with which we agree), we are less clear of his reasoning in relation to S. 112 of the Saint Helena Act 1833.

38. The issue which the Court has to decide is whether applying S.135 to Crown land, providing for Crown land to be acquired by prescription, would affect any of the interests, rights, powers and privileges conferred on the Crown or the Government by S.112.

39. What S.112 did was to vest in the Crown the island of St Helena, and all forts, factories, public edifices, and hereditaments whatsoever in the said island, and all stores and property thereon fit or used for the service of the government.

40. The Respondent to this appeal argues in response to a request for further submissions that no interest in land which could be affected by S. 135 of the Ordinance was granted by S. 112. We will consider this argument later but it  would appear to be contrary to the way the hearing was conducted in front of the Chief Justice. At paragraph 10 of his judgment the Chief Justice says ‘Section 112 of the Saint Helena Act 1833 (‘the 1833 Act’) provides the lawful basis on which St Helena (including its land and some properties) originally became vested in the Crown of the United Kingdom.’

 At paragraph 14, the Chief Justice says ‘Land and properties having been vested in the Crown by virtue of section 112 of the 1833 Act, section 31 of the St Helena Constitution provides for how land and immovable property may be dealt with if vested in the Crown.’

41. The Chief Justice when making his ruling on issue (iv), relies on what he said in relation to issues (ii) and (iii) earlier in his judgment. Presumably when he said this he was referring at least in part to what he said at paragraph 35:

“Despite the valiant efforts of the Respondent, I am satisfied that neither section 112 of the 1833 Act, which vests land in the Crown nor section 31 of the Constitution which reserves the making and executions of grant and other dispositions of Crown land to the Governor, prohibits the acquisition of Crown land by prescription under section 135 of the Ordinance.”

 

42. While we agree with the Chief Justice’s conclusion in relation to S. 31, this  does not in our view address the main issue in relation to S. 112 which is whether S. 112 grants interests in land to the Crown which would be affected if Crown land could be acquired by prescription.

 

43. At paragraph 126, the Chief Justice says: I have already decided that neither section 112 of the 1833 Act nor section 31 of the Constitution expressly prohibits acquisition by prescription of Crown land.  I must now decide if they impliedly do so or if they do so on a purposive reading.

 

44. The Chief Justice goes on to rule at paragraph 134 that ‘section 31 should not be read purposively or impliedly to give the Governor the unfettered right to control or deal with Crown land and prohibit its acquisition by prescription.’

45. Again, that is a conclusion with which we respectfully agree. At paragraph 135 the Chief Justice goes on to say:

“Section 31 applies to land vested in the Crown.  The land was originally vested in Crown under section 112 of the St Helena Act 1833 but by virtue of section 135 of the 1980 Ordinance - acquisition by prescription expressly permits the removal of the land from being vested in the Crown.  Again, the 1833 Act and the 2009 constitution only address how land becomes vested in the Crown and is then granted or disposed of.  I cannot reasonably divine a wider purpose in the sections that imply that Crown land can only ever be vested in the Crown under the direction of or consent of the Governor. “

46. We agree with that conclusion, but it does not answer what, if any, is the effect of S. 159 of the Ordinance.

47. The Respondent argues that the effect of S. 112 today is not to grant any interest in land but is only the legal basis for sovereignty of the land. The Respondent points out that at the time the 1833 Act was passed there was already private ownership of land which was not affected by the Act.

48. While accepting that the point relating to private ownership may be correct it does not follow in our view that S. 112 did not grant an interest in land to the Crown. That it does so is indicated by the way it specifies individual properties that vest in the Crown.

49. In reaching his decision, the Chief Justice relied on a number of factors which were in his view persuasive of the decision he made. They were that the Governor had not challenged S. 135 of the Ordinance to indicate that it did not apply to Crown land; that if it did not apply to Crown land the provision excluding Crown land would be more prominent than it is in S. 159 and that the Crown had never previously challenged a claim to prescription against Crown land.

50. While we accept that these factors exist, we do not think that they can affect what we regard as the clear language of s. 159.

51. At the oral hearing on 20^th December 2024 the Appellant disclosed that in searching the archives for other relevant material, the record of the proceedings of the Legislative Council of St. Helena for 12^th June 1980 had been located. That is the date on which the Registered Land Bill, later to become the Registered Land Ordinance 1980, was considered in committee.

52. The Government Secretary in moving that the bill be read for the first time said:

“Sir, when I introduced the Land Adjudication Bill to the last session of this Honourable House, I pointed out to Members that the next step after successful defining of boundaries is to provide for the proper registration of title so that each parcel of land identifiable with all interests such as rights of way, mortgages and easements recorded. I now move to this second stage by the presentation of this Bill entitled the Registered Land Ordinance.

The Bill comprises twelve parts, some of which are subdivided into Divisions each dealing with a particular issue relating to the setting up of the land Registry, the appointment and powers of the Registrar of Lands and the obligations of Proprietors of land. The Bill further goes on to set down in print - to codify - the land law as it relates to St. Helena. This covers disposition of land, leases and charges upon land, easements, restrictive agreements and profits and licences. Each is clearly defined so that, in future, there can be no doubt as to the rights and obligations of any person dealing with land either as a proprietor, testator, a lessee or lessor.

An interesting feature is the right of prescription which entitles a person to absolute ownership of land, probably belonging to someone else or the Crown, after that person has squatted in peaceable, open and uninterrupted possession for a period of 15 years.”

53. The Respondent invites us to take that into account when deciding ground 2 of the appeal what was said by the Government Secretary.

54. We are prepared to accept for the purposes of this argument that we should treat proceedings in the Legislative Council as equivalent to proceedings in Parliament in the United Kingdom as reported in Hansard.

55. The leading authority as to what use can be made of statements in Parliament is Pepper (Inspector of Taxes)v  Hart 1993 AC 593. Lord Browne-Wilkinson who gave the leading judgment on this aspect of the case said at p. 634D:

 ‘In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.’

56. Applying that guidance to this case we do not consider that we can take into account the words of the Government Secretary for two reasons: first we do not consider that the words of s. 159 are ambiguous or obscure or the literal meaning would lead to an absurdity. and second we do not consider the words of the Government Secretary clearly disclose the legislative intention or mischief, because of the use of the word ‘probably’.

57. For all those reasons we do not consider that the interest in Crown land acquired by the operation of S. 112 can be affected by the operation of S. 135 of the Ordinance. We have phrased our answer in that way to allow for the concession made by the Appellant (see paragraph 90 of the Chief Justice’s judgment) that S. 159  may not apply to land acquired by the Crown by purchase as it was not conferred on the Crown by any other written law.

58. It follows that in our view accepting the proposition that the Crown did acquire an interest in land by virtue of the 1833 Act, which was how the matter was argued in front of the Chief Justice, the answer to the posed question is ‘no’. Allowing land vested in the Crown under S. 112, to be acquired by prescription under S. 135, would affect the interests conferred on the Crown by other written law, and is prohibited under S.159. To that extent the appeal is allowed.

 

Justice Saunders

Justice Drummond

Justice Mayo