This website uses cookies to ensure you get the best experience. If you continue to use this site without changing your cookie settings we assume you consent to the use of cookies on this site.

find an article

real estate / property | 15 Sep 2020
BY Phillip Karugaba
ENSight

real estate / property


Could the defence of limitation have saved St Peter’s Church from demolition?

In the evening of Sunday, 16 August 2020, St Peter’s Church in Kampala was demolished, the result of a previous land conflict. Following massive public outcry, President Museveni has promised that the church will retain the land and will be rebuilt.

It appears that there are certain legal principles that the court could have considered to save the church altogether.

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 of a venerated Bishop and a Reverend of the Church of Uganda, respectively. The other defendants were the Commissioner of Land Registration 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 following the order of the court. Though its presence on the land was apparent, it was not originally sued.

The plaintiffs led expert 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 there were 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’ claim was barred by limitation.

The ruling

The court found that the registration of the defendants on the title was fraudulent and cancelled the proprietorship of the defendants and ordered the plaintiffs as proprietors of the suit land. The judgment was almost one year ago to the date of the demolition. Despite the lapse of time, no appeal was filed.

The ignored defence of limitation

The court, however, did not rule on the Church of Uganda’s defence of limitation (that is, that the plaintiffs did not make a claim to court within the stipulated time limitation), and the judgment does not show any consideration of this issue at all. An important question is when did the plaintiffs discover the fraud? The church has been on the suit land, in undisturbed possession, for all of 45 years.

The plea of limitation of actions is not simply erased by the existence of fraud. The running of time is only postponed until the discovery of the cause of action by the plaintiffs. Under Uganda’s Limitation Act, a party disposed of land is allowed 12 years to file suit for recovery of the land, after which such person’s title is deemed extinguished. The Limitation Act further provides that after the 12-year period, the registered owner ceases to hold the title to the land in their own right but in trust for the adverse possessor. 

In the Rwaguma v Mukasa case, the High Court solidly upheld the doctrine of adverse possession. The plaintiff, having been in possession of the suit land for over 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 his or her land and is not expected to just look on when his or rights are either infringed or threatened by third parties such as squatters and trespassers occupying his or her land. 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 raised at all in the judgment.

It could also be argued that the church could be seen as a tenant by occupancy, entitled to security of tenure on the land. Was the church not a bona fide occupant of land under the Land Act, having been in occupation, utilised and developed the land unchallenged by the registered owner for 12 years or more? Evidence was led that the Church of Uganda took possession in 1981 and had established not only a church but also several houses for the clergy, a washing bay and motor vehicle garages.

The Supreme Court arrived at such a conclusion in the case of Kampala District Land Board –v- National Housing and Construction Corporation (Civil Appeal No. 2 of 2004). In that case, the respondent had utilised a parcel of land, without title for 30 years. The land had been fenced off by the respondent who developed thereon a latrine for its workers who had built its flats on the adjoining property known as Bugoloobi flats. An attempt by Kampala District Land Board to allocate a parcel of land to a third party was solidly rebuffed by the Supreme Court on the grounds that the respondent was under the Constitution a bona fide occupant entitled to security of tenure.

Conclusion

This decision was clearly per incuriam, made in ignorance of the law. Apparently an appeal has now been filed and we can only await the outcome.

We take comfort from the assurances of the Fountain of Honour, His Excellency the President 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.

Phillip Karugaba

Head of ENSafrica Advocates | Uganda

pkarugaba@ENSafrica.com

+256 772 785 332