Francis v Attorney General of St Helena for and on behalf of the Crown (St Helena)

Under a Torrens-model land registration regime, a general savings provision protecting Crown interests conferred by other legislation must be read consistently with the registration scheme. It does not shield registrable Crown ownership from statutory prescription merely because title was originally vested by statute. Rather, it primarily preserves non-registrable statutory interests, rights, powers and privileges over land held by others.

A constitutional power authorising the Governor to make grants and other dispositions regulates the means of disposing of Crown property. It does not fix the extent of Crown ownership and is not prejudiced when title changes by operation of prescription. In the absence of express exclusion, Crown land remains subject to the prescription provisions of the Registered Land Ordinance 1980.

Mr Francis applied to the Registrar of Lands under section 139 of the Registered Land Ordinance 1980 to rectify the Land Register. He claimed that 15 years of qualifying possession under section 135 had given him ownership of land registered as Crown land. The Registrar stated a preliminary question for the Supreme Court: can Crown land be acquired by prescription?

The Supreme Court answered yes in Francis v Attorney General of St Helena [2024] SHSC 6. The Court of Appeal allowed the Attorney General's appeal in Attorney General of St Helena v Francis [2024] SHCA 5. It assumed that section 112 of the Saint Helena Act 1833 had conferred an interest in the land on the Crown and held that section 159 of the Ordinance protected that interest from prescription.

The central issue before the Board was whether section 159 prevented Crown land acquired by statute from being acquired by prescription. The Board did not need to decide whether section 112 had vested title to this particular land or whether the legislative history was admissible.

1. Disposition. The appeal was allowed. The question whether Crown land can be acquired by prescription was answered affirmatively. The matter was remitted to the Registrar of Lands for determination in accordance with the Board's judgment.

2. The constitutional power of disposition. Section 31 of the Constitution regulates the means by which the Governor or an authorised person may execute grants and other dispositions of Crown property. It does not determine the extent of the property vested in the Crown. A change in ownership through prescription therefore does not prejudice or alter the statutory power of disposition.

3. Purposive construction. Assuming that section 112 of the Saint Helena Act 1833 vested ownership in the Crown, that ownership fell within the literal language of section 159 of the Registered Land Ordinance 1980. Nevertheless, a literal construction was inconsistent with the Ordinance's purpose and statutory architecture. The substituted word affects carried the same meaning as the original expression shall prejudice.

   Seven considerations supported a purposive construction:

   • The Torrens system permits dealings in reliance upon the Register and supersedes historical title records.
   • The Crown's construction would require investigation into how each parcel of Crown land had originally been acquired.
   • There was no rational basis for distinguishing land vested by statute from Crown land acquired by other means.
   • Historical investigation would create acute practical difficulties where records were scarce.
   • Excluding statutory Crown land would undermine the social and economic purposes of prescription. Those purposes were recognised in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, p 349, and R (Best) v Chief Land Registrar [2015] EWCA Civ 17; [2016] QB 23, para 107.
   • An exclusion of this importance would be expected to appear expressly within the prescription provisions.
   • The Crown's construction would deprive section 160 of much of its effect and was inconsistent with section 159's position as a residual savings provision.

4. Scope of the savings provision. Section 159 is impliedly limited so that it does not encompass Crown interests and rights falling within the Ordinance's registration provisions. It primarily protects non-registrable statutory interests, rights, powers and privileges concerning land held by third parties. Registrable Crown ownership, whether derived from legislation or otherwise, falls within section 9 and remains governed by the Ordinance.

5. Prescription of Crown land. Section 159 therefore creates no obstacle to prescription against Crown land under Part IX. The Board left open the meaning and scope of section 112 of the 1833 Act and whether the disputed land had vested in the Crown under that provision.

• Privy Council: In Francis v Attorney General of St Helena for and on behalf of the Crown (St Helena) [2026] UKPC 32 , the Board allowed the appeal, held that Crown land could be acquired by prescription and remitted the application to the Registrar of Lands.
• Court of Appeal of St Helena: In Attorney General of St Helena v Francis [2024] SHCA 5, the court allowed the Attorney General's appeal. It rejected the argument based on section 31 of the Constitution, but held on an assumed basis that section 159 of the Registered Land Ordinance 1980 protected an interest conferred by section 112 of the Saint Helena Act 1833.
• Supreme Court of St Helena: In Francis v Attorney General of St Helena [2024] SHSC 6, the Chief Justice held that neither section 31 of the Constitution nor section 159 prevented Crown land from being acquired by prescription.