Baldwin King and Hariette Richardson v Gershon Robertson

Adverse possession between beneficiaries of the same trust was possible under the legislation in force before the Limitation Act 1988. A beneficiary who possessed land adversely for the statutory period could acquire a possessory title, and that title could be transferred to a purchaser. The later statutory exception preventing time from running between beneficiaries did not govern the relevant period. Once the limitation period expired, the claimant’s right and title to recover the land were extinguished under the earlier legislation. An appellate court may permit reliance on the correct legislation on a second appeal where the issue is one of pure law and the opposing party’s case was not prejudiced.

Gershon Robertson claimed land in St Vincent and the Grenadines under the will of William Robertson, asserting that the will created an entail benefiting William’s descendants. Baldwin King had bought the land in 1996 from the executors of Edward Albert Robertson, whose estate had controlled the land for many years. Hariette Richardson was a sub-purchaser from Mr King.

The trial judge dismissed the claim, finding that Edward’s estate had acquired a possessory title through adverse possession. The Eastern Caribbean Court of Appeal reversed that decision, holding that the Limitation Act 1988 prevented adverse possession between beneficiaries of the same trust. The Privy Council considered whether the earlier legislation, the Real Property Limitation Act 1851, also referred to as the 1926 Ordinance, governed the relevant period.

The appeal was allowed. The Board advised that the appellants’ title was good, subject to written submissions on the form of order and consequential matters, including costs.

1. Correct limitation legislation. The Limitation Act 1988 was not in force during the material period. The applicable legislation was the Real Property Limitation Act 1851, incorporated into later revised editions of the statute book and referred to in one edition as the 1926 Ordinance.
2. Adverse possession between beneficiaries. Unlike the 1988 Act, the 1851 Act contained no exception preventing one beneficiary from acquiring title by adverse possession against another. Its sections 4, 12 and 31 mirrored the English legislation that had reversed the earlier common-law position. Section 21 further provided that adverse possession against a tenant for life under an entail was effective against subsequent interests which that tenant for life could have barred.
3. Effect of the statutory period. The primary factual findings established possession adverse to any legitimate claim through William’s will for considerably more than 12 years before 1988. Under section 31 of the 1851 Act, expiry of the limitation period extinguished the competing right and title to recover the land. Edward’s estate therefore acquired a possessory title before 1988 and validly passed it to Mr King in 1996. Any claim through William’s will was extinguished.
4. Change of legal basis on appeal. It was just to permit the appellants to rely on the 1851 Act because the point was one of pure law, and the evidence relevant to adverse possession had been fully developed on both sides. The earlier misapprehension had not adversely affected the respondent’s conduct of the case.
5. Unresolved title issues. The Board observed, without deciding, that the will might not have created a valid entail and that the rule against perpetuities might have prevented any title deriving from it. Those matters were not investigated on a second appeal because they had not been raised and would have required further evidence.

• Trial judge: Gershon Robertson’s claim was dismissed. The judge found that Edward’s estate had acquired a good possessory title through adverse possession.
• Eastern Caribbean Court of Appeal: The decision was reversed. The Court held that the Limitation Act 1988 prevented adverse possession between beneficiaries of the same trust.
• Privy Council: Appeal allowed. The Board held that the earlier Real Property Limitation Act 1851 governed and that the possessory title had been validly acquired and transferred.