Church obtained land fraudulently, must give it back, with damages, court finds

14 September 2023 · Carmel Rickard

A high-profile Ugandan church and one of its senior pastors have been found to have obtained land by fraud. The high court in Kampala, which made that finding, has ordered that the church must quit the land that was fraudulently obtained, while the plots must be returned and the official title and registration deeds changed to reflect that order. In addition, the church and the pastor must pay a damages bill of UGX50m plus interest and legal costs.

Read judgment

In a brief TikTok video clip you can see senior pastor Gerald Mwebe of the Streams of Life church, at work. He is preaching on the theme ‘All have sinned’. We have all sinned, he declares. ‘We’ve fallen short of the glory of God. Amen! O yes! Hallelujah!’

He goes on: someone might came and say they were a member of the royal family. ‘Sinner!’ he responds. They will say they have a PhD. ‘Sinner!’. They understand chemistry. ‘Sinner!’

Mwebe is named as the second defendant in a recent case heard by the high court of Uganda’s land division, along with the Streams of Life Church Ltd and the commissioner of land registration.

Unravel

The case was brought to court by Robinah Nakawombe and Jane Nakityo who said Mwebe and the church were in possession of several plots of land as the registered owners, but that in fact the land didn’t belong to them. They had obtained it ‘through fraudulent misrepresentation and deceit’, and the certificates of title ought to be cancelled.

Not so, said Mwebe and the church.

What would high court judge, Bernard Namanya, have to say about this dispute?

He had no doubt about the ramifications of the case: adequate evidence of fraud could ‘unravel the entire transaction’ of the land sale.

Caveat

At the heart of the dispute were three plots of land, plot 34 and 35, dealt with as one issue, and plot 3, handled separately. The judge visited the land in June, along with the legal representatives of the disputing parties, the plaintiffs, some of their witnesses, and Mwebe.

Back in court, Namanya reiterated that, since this was a fraud case, the plaintiffs had the burden of proof and that the standard of proof was heavier than in many other matters, being beyond ‘a mere balance of probabilities’.

On the question of plots 34 and 35, the plaintiffs claimed that the church and Mwebe forged their signatures on the transfer form. Further, the caveat, put in place as a safety net to ensure there was no fraudulent transfer of the land, was ‘illegally removed’ and exactly one minute later, the land was transferred to the church.

Verified

Both sides said their respective handwriting experts would put the matter to rest. Mwebe’s would show that there was no forgery, while the plaintiffs said their expert would show that there was.

In the end though, when the matter was heard in court, Mwebe didn’t produce his expert. The plaintiffs did: a police superintendent and head of the ‘department of questioned documents’ at police headquarters.

He gave detailed evidence explaining his findings and concluded that it was ‘most likely’ that the signatures being disputed on the transfer forms were not signed by the plaintiffs, from whom he had obtained verified sample signatures.

Title

Evidence from handwriting experts had been accepted by the Ugandan courts before in matters of allegedly forged transfer deeds, said the judge. In those matters, the outcome was again considered by the court of appeal and then by the supreme court which upheld the decision, along with its inevitable consequences: ‘Once fraud has been proved …. no transaction can pass title to anyone under such circumstances.’

Fraud having been established in these cases, the court ordered cancellation of the certificate of title along with the registration as the lawful owner.

Grave implications

In this new case, the judge said that, based on the evidence of the handwriting expert, it was the court’s decision that the transfer form was forged, with ‘grave implications’ for the sale of the land.

The plaintiffs also claimed that the caveats in place against the plots were unlawfully removed. This is a system in terms of which an owner would be notified immediately if someone attempted to register land in another name. Tipped off, the owner could then ask for a court order delaying any dealing in the land, if the owner hadn’t in fact authorised the sale.

In the past, the courts had on several occasions held that illegally removing a caveat amounted to fraudulent conduct.

One minute

Here, in this case, the court also had to conclude that the ‘illegal removal’ of the caveat lodged by the plaintiffs, was further evidence of ‘fraud’ to enable registration of the land into the name of the church. It’s worth repeating, added the judge, that the church was registered as the owner of the land one minute after the caveat was removed.

A forged transfer deed was ‘a nullity’, said Namanya. It has ‘no legal effect’.

‘The moment that … fraud is proved, it unravels everything including contracts and judgments.'

The plaintiffs had proved to his satisfaction, two elements of fraud against the church and Mwebe: forgery of the transfer form and illegal removal of a caveat. ‘No court of law in this land shall allow a fraudster to profit from the fruits of his or her fraud. This is in furtherance of the rule of law, honesty within society and the just adjudication of disputes.

Rescinded

He therefore ordered that the sale agreement for plots 34 and 35 be rescinded on grounds of fraud. ‘The entire transaction for sale of land from start to finish is unravelled by the fraud. … The law dictates that such a transaction cannot be upheld by a court of law; it must be rescinded. Everything is unravelled!’

There was, however, no clear evidence about the remaining plot. The handwriting expert’s views specifically related to plots 34 and 35, and couldn’t be used to support claims of forgery in relation to plot 3.

The sale agreements for plot 3, produced by Mwebe, with the signatures of the two plaintiffs, had to be accepted as valid. The plaintiffs had claimed they were illiterate and didn’t understand English nor the implications of the documents they signed in relation to this plot. But a witness of the defendants, a lawyer who had previously provided legal services to the church and Mwebe, testified that he’d had dealings with the plaintiffs and they’d signed documents in English without the need for translation.

And while the plaintiffs claimed the defendants illegally removed a caveat on plot 3, they produced no evidence to prove this allegation. On the contrary, the defendants showed that one of the plantiffs had written a notice withdrawing the caveat on plot 3. Thus, said the judge, his decision was that the plaintiffs had failed to prove that the caveat on plot 3 was illegally removed.

Outcome

What should be the outcome? The judge declared that the defendants had wrongfully deprived the plaintiffs of plots 34 and 35, using a forged transfer form, and the church was fraudulently registered as the owner of the land.

He ordered the commissioner for land registration to cancel the certificate of title in the name of the Streams of Life church in relation to plots 34 and 35, and to reinstate the plaintiffs as the registered owners.

The church and Mwebe were ordered to vacate the land and remove ‘any illegal buildings’ within three months or be evicted. The two defendants, along with anyone they instructed, were restrained from trespassing on the two plots. The defendants must also pay general damages of UGX 25m to the plaintiffs and a further UGX 25m in mesne profits to the plaintiff, both with interest of 15 % plus legal costs.

Carmel Rickard

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