Curious case of Ndeeba church

St Peter led a colourful and illustrious career as one of the first disciples of Jesus Christ. Rising from a common fisherman, who owned the boat on which Jesus is said to have performed his fishing miracle, to being anointed the rock on which the Church is built, to being the keeper of the keys to the pearly gates.
Add a liberal sprinkling of tales of the infamous three-time denial of Jesus, the chopping off of the ear of a servant of a high priest in defence of Jesus and crown it all with the reported self-chosen inverted headfirst crucifixion in Rome, finding himself unworthy of dying the same crucifixion as his Lord.
And so it was with a 45-year-old church in the suburbs of Kampala named after St Peter. Unable to explain its presence on disputed land, the church found itself on the losing end of a court decision. As Jesus suffered the lashes of a whip, the church suffered the poundings of demolition hammers. When the hammers fell silent and the dust had settled, all that was left was the church tower, a pile of rubble, distraught Christians wringing their hands, and a troubled nation.
How could this happen in a country, whose national motto is ‘For God and my Country’? How could this happen in the land of the African martyrs, those gallant page boys who, just more than a century ago, chose to suffer a gruesome fiery death than renounce their newfound faith?
The ensuing massive public outcry rung with condemnation of all, the plaintiffs, the courts, the police and even the church establishment. The fallout saw the arrest of all the police officers who attended the reported night-time demolition. President Museveni has since promised that the Church will retain the land at all costs and an even more magnificent church will be rebuilt at the site.
Questions have been asked on the implications of all this on the rule of law in Uganda. The role of the dramatis personae and societal defenders such as the Uganda Law Society has also come into sharp focus.
This article examines the case and seeks to demonstrate that there was abundant and settled legal principle that could have saved the day.

Background
In 2008, a suit was filed (Dan Ssemwanga and others –v- Lucy Nsubuga and others), in which the plaintiffs contended that the first three defendants were fraudulently registered as proprietors of the suit land.
These defendants included the administrators of the estates, respectively of a venerated bishop, and a reverend of the Church of Uganda. The other defendants were the commissioner of Land Registration, who never showed up in court and the Church of Uganda which 45 years prior, had established St Peter’s Church on the suit land. The Church of Uganda was only added as a defendant on the order of the court.
Although its presence on the land was mightily apparent, it was not originally sued.
The plaintiffs led experts and police evidence to show that all the signatures relating to the transfer of the suit land to the first three defendants were forged and also to prove a number of other apparently inexplicable issues with the defendants’ apparent proprietorship.
None of the three defendants had the certificate of title and none could explain how they came to be on the title deed. The judgment states that the defendants conceded that their title deed be cancelled.
The Church of Uganda argued that the said defendants were on the title as trustees of the church and that the plaintiffs did not file their case within the period permitted by law.

The judgment
The court found that the registration of the defendants on the title was fraudulent. Fraud is such a grotesque monster that the courts should hound it wherever it rears its head and wherever it seeks to take cover behind any legislation. Fraud unravels everything and vitiates all transactions, ruled the court citing a precedent.
The court cancelled the proprietorship of the defendants and declared the plaintiffs the rightful proprietors of the suit land. The judgment was rendered almost one year ago to the date of the demolition. No appeal was filed against the decision.
The ignored defence of limitation
The court did not rule on the Church of Uganda’s defence that the plaintiffs’ suit was too late and filed outside the period permitted by law. The judgment does not show any consideration of this pertinent issue at all. The court appeared overly impressed by the unrebutted evidence of fraud and determined to hound the grotesque monster as precedent directed.
The plea of limitation of actions is not defeated by the existence of fraud. The running of time is only postponed until the discovery of the cause of action by a plaintiff. Under our Limitation Act, a party deprived of land is allowed all of 12 years to file suit for recovery of land, after which such person’s title is deemed extinguished. The registered owner ceases to hold the title to the land in his own right but in trust for the adverse possessor.
So when did the plaintiffs discover the claimed fraud? Was it not material that the church had stood tall and very tall at that on the suit land, in undisturbed possession for all of 45 years?
In Rwaguma –v- Mukasa, the High Court solidly upheld the doctrine of adverse possession. The plaintiff having been in possession of the suit land for more than 12 years, without the owner’s consent, was deemed entitled to it and the defendant’s title to the land extinguished. It was beautifully stated that the law regards the owner of land to be under a duty to protect their land and is not expected to just look on when their rights are either infringed or threatened by third parties such as squatters and trespassers.
The doctrine of adverse possession therefore assumes that the owner has abandoned the land to the adverse possessor.
Further, the Limitation Act again sets a similar 12-year limit to any actions in respect of a claim to the personal estate of a deceased person. These statutory provisions are not mentioned at all in the judgment.
It could also have been argued that the church was a bona fide occupant entitled to security of occupancy on the land. Under the Land Act, a bona fide occupant means a person who before the coming into force of the Constitution (in 1995), had occupied and utilised or developed any land unchallenged by the registered owner for 12 years or more. Such a person is entitled to remain on the land even against the will of the registered owner. The Church of Uganda took possession of the land in 1981 and had established thereon not only a church but also several houses for the clergy, a washing bay and motor vehicle garages.

Rebuilding the church, nation
I see a perplexed and animated discussion in the heavenly realms. St Peter is in the chair, the keys to the pearly gates dangling from his sash. In attendance, a bishop, a reverend and perhaps a well-meaning parishioner who may have donated some land for a godly purpose. But this is only in my mind’s eye and back to earthly matters we must fall.
We take comfort from the assurances of the Fountain of Honour, President Museveni that the church will be rebuilt. May we make this a national effort and all join hands in it. May we use this opportunity to rebuild too the values of our nation Uganda.

The writer is an advocate of the High Court