Etyangat v Soroti Municipal Council (Civil Suit 7 of 2019) [2024] UGHC 796 (28 August 2024)

The Republic of Uganda

In the High Court of Uganda at Soroti

Civil Suit No. 0007 of 2019

Etyangat Leonard ::::::::::::::::::::::::::::::::::::

$:$ Versus

Soroti Municipal Council ::::::::::::::::::::::::::::::::::::

# Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

### Judgment

#### 1. Introduction. 15

$5$

Etyangat Leonard, the plaintiff herein brought this suit against the Soroti Municipal Council for compensation, special damages, general damages, interest at court rate of 20% per annum from the date of the cause of action till payment in full, a declaration that the defendant's action is illegal and costs of the suit.

#### a) The plaintiff's case. 20

The facts constituting the plaintiff's claim are that in 1999 he applied to National Forestry Authority (NFA) then called Forest Department Authority for a license to plant trees in Soroti central forest reserve, which permission was granted pending issuance of a license. The plaintiff planted trees on 5 Hectares in Solot Block, Soroti central forest reserve in 1999 and has been paying ground rent to NFA for the said 5 ha.

On the 6<sup>th</sup> to 13<sup>th</sup> day of January 2018, the defendant through her engineers $5$ illegally opened a road from Moruapesur to Opiyai B without any compensation to the plaintiff. The plaintiff being a duly authorised forest farmer for the NFA to was greatly affected by the exercise which cleared over 300 trees without any compensation, each tree valued at Ugx. 80,000/= (Eighty thousand Uganda Shillings) pole size as per the forestry principles. 10

By a letter dated 29<sup>th</sup> January 2018, the plaintiff wrote to the defendant bringing to her attention the damage caused to him and demanding compensation for the same but all in vain.

b) The defendant's case.

- The defendant denied the plaintiff's claim and in general reply contended that 15 from when the Municipal was still a town council, the land was earmarked for construction of a road and the same appears in the municipal plans and it is the plaintiff who encroached on the land. - 2. <u>Representation</u>. - 20 The plaintiff was represented by M/s Erabu & Co. Advocates while the defendant was represented by the Attorney General's chambers Soroti. - 3. Issues for determination. - a) Whether the plaintiff has a cause of action against the defendant. - b) Whether the defendant's actions were lawful. - c) What remedies are available to the parties?

In civil cases the burden lies on the party who alleges to prove his or her case on the balance of probabilities. Additionally, whoever desires Court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist.


## 4. Submissions.

Counsel for the plaintiff submitted that it is not disputed that central forest reserve is the property of NFA with the mandate to handle and allocate to any interested forest farmer. It is also not disputed that the plaintiff was granted a license by NFA and paid ground rent and as such was lawfully occupying the forest

10 reserve.

$5$

Counsel further submitted that the defendants do not dispute damaging trees but insist that their action were within the law. That there is no evidence that the road was passing through the forest reserve, the map tendered in curt although bearing most of the approved roads did not indicate Erongu road and the defendants therefore acted unlawfully. Counsel additionally submitted that the trees that were damaged were mature trees and even if the road was within the forest reserve, the defendants ought to have given notice prior to the commencement of works as the defendant's admitted that the trees were planted by the NFA.

- Counsel submitted that no forest officer was involved during the opening of the 20 road nor was the NFA notified before the road was opened. That the defendant does not challenge the agreement between the plaintiff and NFA and their act of entering and damaging trees in an area not within their mandate without notice was unlawful. - Counsel prayed for compensation of 50,400,000= (Fifty million four hundred 25 thousand Uganda shillings) for the trees damaged. He also prayed for general damages of UGX 20,000,000(Twenty Million Uganda Shillings) and costs of the suit to be provided by this court.

- Counsel for the defendant in reply submitted that the defendant adduced $\mathsf{S}$ evidence to the effect that Erongu road which was opened existed on the approved map (DEX1). Counsel also referred to DEX2 tendered in court by DW2 which shows the status of the road before the commencement of work. He also relied on DEX 3 & 4 to show the grading and clearing of the road. - Counsel submitted that the plaintiff had not only planted trees within the 10 parameters of the road, but also planted trees in the forest reserve contrary to provisions of law.

Counsel submitted that the law in force in 1999 when the plaintiff alleges to have obtained permission required him to obtain a license approved by the minister

for him to be able to plant trees in forest reserve. That the plaintiff did not adduce 15 any license issued to him 1999 with approval of the minister in accordance with the law and as such the plaintiff was not a licensed forest framer in 1999.

Counsel further submitted that the license tendered as PEX1 was issued in 2008 and that the law under section 42 of the National Forest and Tree Planting Act,

2003 requires responsible body through fair, open, competitive process in 20 accordance with procedure prescribed by regulation to invite application for license under the Act.

He further submitted that section 43 prohibits any person to grow, cut, take, work or remove any forest produce from the forest reserve or community without a license.

Counsel submitted that the plaintiff has not adduced evidence that the responsible body invited for application for grant of license under the Act. That PEX1 tendered in court is not a license as it was not issued by responsible body but was a letter written by an officer of NFA who is not mandated under the law


$\mathsf{S}$ to issue licenses. Regarding PEX2 counsel submitted that the license cannot act retrospectively, that the law requires a person to have a license before planting trees in a forest reserve.

Counsel relied on Makula International Ltd Vs His Eminence Cardinal Nsubuga & Another (1982) HCB 11 for the submission that an illegality once brought to the

attention of court cannot be allowed to stand. He submitted that the plaintiff was 10 granted a license in 2019, the permission obtained in 2008 by virtue of PEX1 was illegal as it was issued by an unauthorized person; that the plaintiff illegally planted trees in the forest reserve which is contrary to the law.

Regarding remedies counsel submitted that it is trite that a party is entitled to payments of the sum of money that the party claims after proof or establishment 15 of the said claims. That the plaintiff's claims for special damages has not been proved, the claim that 300 trees were cut down was not proved in evidence and as such he is not entitled to special damages.

The defendant prayed that this suit be dismissed with costs to the defendant.

- 5. Evidence on record. 20 - a) The plaintiff's evidence.

The plaintiff presented two witnesses to support his case PW1 Etyangat Leonard, the plaintiff and PW2 Omuge Constant an Assistant Forest Supervisor working with NFA Teso sector in charge of forest protection and patrols.

25 PW1 Etyangat Leonard stated that around 1999 he applied to the NFA by then called Forest Department under the ministry of Agriculture, Animal Industry and Fisheries for a licence to plant trees on Soroti Central Forest Reserve. That by a letter dated 22<sup>nd</sup> July 2008, the NFA gave him permission to plant trees on 5 hectares of land located at Solot Block, Soroti Central Forest Reserve pending the


issuance of a licence. He then planted eucalyptus trees on two hectares of the $5$ land pending the eviction of encroachers on the 3 hectares of land and on the 11<sup>th</sup> day of October 2019, he formalized the relationship with a contract between him and NFA.

That on the same date he was issued with Tree farming licence to establish and 10 develop commercial forest plantation on an area of 5.0 hectares in Soroti Central Forest Reserve valid for a period of 25 years from 20<sup>th</sup> April 2008 to 19<sup>th</sup> April 2033.

He further stated that he made payments to NFA for ground rent for the years 2007 to 2019.

That on 6<sup>th</sup> to 13<sup>th</sup> of January 2018, Soroti Municipal Council through her 15 engineers illegally opened a road from Moruapesur to opival B damaging over 300 trees of his without his consent and without any compensation to him.

That by letter dated 29<sup>th</sup> January 2018; he complained to the defendant and demanded for compensation to no avail. That he prays for compensation of UGX

$50,400,000/$ = for the damage caused, general damages, interest at court rate of 20 20% per annum from the date of filing the suit till payment in full, a declaration that the defendant's action is illegal, costs of the suit. He stated that each tree is $80,000=$ .

During cross examination he stated that, the process he followed was expressing

interest to plant trees to NFA Soroti office and that he was given permission. That 25 he was taken and shown 5 hectares to plant the trees.

That the official who wrote for him the letter was Mr. Kusuro, he went around the land with him together the LC1 Chairman and others and he was using some machine. That he planted the trees and paid ground rent.

That he paid ground rent on different dates in 2018. That he did not pay any $\mathsf{S}$ money before planting trees in 2008 and when he planted he only did so two hectares because the other 3 had encroachers. That Mr Kusuro Michael took him around and told him to plant on 2 hectares which were free.

He further stated that his relationship with NFA between 2008 and 2018 was that he pays ground rent to NFA and he plants trees and NFA never complained about 10 his planting the trees.

He further said that the agreement was signed in 2019. He admitted that for 10 years the agreement was not signed. He stated that the licence was issued on the 15<sup>th</sup> November 2019 but that 31/12/2019 was the date when the licence was sealed. He said that the licence was for 25 years starting from April 2008. He stated that he did not pay NFA because he was sick and that he told the forest officer that he would pay and manage.

That he filed the suit in October 2018 when he had not signed an agreement with NFA. During re-examination he stated that that the first evaluation was done in

either 2013 or 2014, That the 2<sup>nd</sup> valuation was on a date in 2018, that before he 20 paid any ground rent to NFA, it never evaluated any activity on the suit land.

That he did not receive any notice from the planning authorities or the defendants and they never halted his activities on the land.

PW2 Omuge Constant an Assistant Forest Supervisor working with NFA Teso sector in charge of forest protection and patrols in his witness statement, stated 25 that he got to know Etyangat Leonard in 2010 when he joined NFA during his orientation and in office as a forest farmer.

He stated that the plaintiff planted over 3000 eucalyptus trees in an area of two hectares in Solot Block Soroti Central Reserve within Soroti.

That on the 7<sup>th</sup>/02/2018 the plaintiff called office informing them of the graders $\mathsf{S}$ clearing down his trees and the sector manager Mr. Agaba Milton directed him to get on the ground to ascertain what was taking place.

He accordingly went to the forest where he met the plaintiff, and saw a team of people from Soroti Municipal Council who were carrying out an activity of opening the road with two graders and casual man power through the plaintiff forest farm.

Upon inquiry they were advised to go Soroti Municipal Council and they continued felling trees.

That he came back with the plaintiff and gave a report to his sector manager

Agaba Milton who advised that they should go back and ascertain the level of 15 damage/destruction so that the matter can be handled with the Soroti Municipal Council (now Soroti City Council).

He stated that he went back and counted the number of trees which were over 300 mature eucalyptus trees.

He stated that he went back together with the plaintiff to meet the manager who 20 advised him to meet with the Authorities of Soroti Municipal Council with the photos of the destruction including the graders and the team on the ground.

That he assessed the number of the trees and he found them to be in the category of class six that costs 80,000/= each at farm price as per the National

Forestry Authority price list 2018. 25

That if the trees were processed, each tree would cost UGX 280,000/= (Two Hundred and eighty thousand Uganda shillings only) each.

He stated that at later date, Mr Etyangat came and told him them that the Municipal Council Authorities refused/ignored to honor his letter. That his manager advised their farmer to go to court since the conduct of Soroti Municipal 5 Council in clearing forest farmers had become rampant.

During cross examination he stated that his role is to give technical advice to the tree farmers within Teso sector; he also carries out forest monitoring and patrols management in the forests.

- That he has worked for 12 years, having joined in 2010. That when one wants to 10 plant trees, one consults their office, whether they have land and if so they take one to the land available and if the size suits one's interests then they explain to the person the taxes one has to pay, their role as a tree farmer and the role of NFA. - He stated that if the land is five hectares and below, a go-ahead is given locally to 15 plant trees by the sector manager or a delegate and this is in the NFA guidelines. That once authorised the boundaries of the land are cleared and measured, thereafter tree planting assessment is done within a month or three years depending on activity of the tree farmer. - That after assessment a report is given to inspection sector manager and the $20$ farmer is made to pay ground rent.

That the prohibited activities in forest reserve are; crop cultivation, settlement, cattle grazing, opening roads, sand quarry etc. and only tree planting is allowed with permission. That a forest farmer is the one who plants trees in a forest

reserve with authority of NFA. 25

> That a forest farmer has to get a licence within 1 year of planting trees. That he has read the Act and there is no way around the Act. That he has seen the plan of the defendant and he knows Erongu road as part of the city plan, that in the plan it was not there before, he only saw a lagoon.


In re-examination he stated that in his routine work he visited this very forest $\mathsf{S}$ reserve and there was no road.

That the agreement can be signed between NFA and the forest farmer within 10 years. That by the time the matter was brought to court the agreement had not been signed.

10 On examination by court, he stated that Environment impact assessment is not carried out for 5 hectares. That the office carries out general satisfaction. He said he cannot quote any law that provides for an environmental impact assessment.

b) The defendant's evidence.

The defendant presented two witnesses whose witness statements are on record. 15

DW1 Otati Samuel a physical planner at Soroti City Council, DW2 Oranit Samuel the assistant engineering officer of Soroti City Council.

DW1 Otati Samuel in his witness statement stated that in March, 2018, he participated in an exercise of preparation to carry out maintenance works on Erongu Road by the then Soroti Municipal Council.

He stated that developments in Soroti City Council are conducted in accordance with an approved layout plan for the City and before the exercise, he established that Erongu Road is among the gazetted roads in the layout plan of Soroti City Council which was approved by National Country Planning Board. He further stated that Erongu Road has been in existence and in use by the community for over 20 years.

That before commencement of maintenance works, the city council surveyor together with him he directed the team to peg the demarcations of Erongu Road and its reserve to enable the engineering team to clear the road and the reserve,

that according to the approved plan the road is 20 meters wide and this is what $5$ guided the pegging exercise.

That during pegging he observed that some trees had been planted within the road reserve that the city council intended to clear during the maintenance works.

That the actions of the council during pegging and subsequent maintenance of 10 Erongu road and its reserves were legal and guided by the specifications in the approved layout plan of Soroti city Council, which plan was attached as DEX1.

During cross examination he confirmed that there is a forest reserve where Erongu road, in fact the road is in the middle of the forest reserve and the said forest reserve is gazetted.

That the forest reserve size is not within his knowledge, he knows the boundary of the forest reserve and it has a boundary map and it is within the approved council maps. That the map was approved on 24/06/2008, he showed court the forest reserve on the map stating that Erongu road passes through the forest reserve but that it (Erongu Road) is not written on the map.

He stated that he did not go to the ground before the works started, he only went after and cannot confirm that NFA was notified before the opening of the road. That his office did not receive any authorization or notice by NFA.

That he did not find out from NFA about the trees that he had noticed had been planted in the road reserve but confirmed that he saw trees there though did not 25 confirm the number. He stated that the road is 20 meters wide but that it was not 20 meters that were opened.

He said that Erongu road has one curve which starts from the edge of the forest across, that the plots stop before the curve.

During reexamination he said that there are many roads whose names are not $\mathsf{S}$ included in the map and it is not his duty to issue notices.

DW2 Oranit Samuel the Senior Assistant Engineering Officer of Soroti City Council in his witness statement on record stated that he led a team from the then Soroti municipal council to carry out maintenance works on Erongu road which had

become impassable. 10

That the road had been in existence as a sole local distributor road linking the communities of Opiyai A Acetgwen and Moruapesur for over 20 years. That the said maintenance works involved grading, opening up water channels and clearing the road reserve along Erongu road.

That before commencing the maintenance works, the departments of survey and 15 physical planning jointly pegged the demarcation of Erongu Road which according to the approved plan is 30 meters wide.

That this was done in accordance with the specifications in the approved layout plan of Soroti City Council that were indicated during pegging. That during pegging it was established that some trees had been illegally planted in the road reserve along Erongu road and in order to efficiently shape the carriage way, these trees were clear felled.

That during the said exercise they did not at any time fell trees outside the boundaries of the Erongu Road or its Road Reserve. Through this witness DEX2,

DEX 3 DEX 4 and DEX 5 were tendered in court, which I will refer to later in this 25 judgment.

During cross examination he stated that a forest reserve managed by NFA existed before commencement of works but he did not know its size and there were


trees but not mature about 2 or 2 ½ years old though he has never been a tree $\mathsf{S}$ farmer before

That he was not aware that the plaintiff was licensed to manage that forest and to his knowledge NFA has planted the trees. That he does not have any evidence that NFA was notified of the opening of the road. During reexamination he stated that 2 and $2\frac{1}{2}$ years old trees is in his estimation.

He stated that the road was planned and within the city there is a physical layout including roads such as Erongu road. He stated that priorities are identified by the division and it went through relevant committees of the city council and when approved then a surveyor and physical planner go on the ground and peg the road. Thereafter they open the road.

That Erongu road was on plan and it was 20 meters wide. That it is not within his mandate as an engineer to notify NFA.

6. Decision:

I have considered all the above evidence and submission of counsel for both parties; I shall address the issues as framed by the parties and agreed at 20 scheduling.

a. Whether the plaintiff has a cause of action and defendant's actions were lawful.

I will combine the resolution of issues 1 and 2 together.

Wikipedia-The Free Online Encyclopaedia $\overline{ }$ According the 25 to https://en.wikipedia.org/wiki/Cause of action) a cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The

term also refers to the legal theory upon which a plaintiff brings suit (such as $\mathsf{S}$ breach of contract, battery, or false imprisonment).

Ssemakula v SSerunjogi (Civil Suit No. 187 of 2012) [2013] UGHCLD 46 (27 May 2013), Murangira, J held that a cause of action is disclosed when it is shown that the plaintiff had right, and that right was violated, resulting into damages and the defendant is liable.

he decision in *Tororo Cement Co. Ltd vs Frokina International Ltd; Civil Appeal No.* **21 of 2001** laid down the three essential elements to support of a cause of action:

- The plaintiff enjoyed a right. - The right has been violated. - The defendant is liable. 15

The actions complained of by the plaintiff against the defendant are cutting trees that were planted by the plaintiff on a forest reserve. The defendants from the evidence above do not dispute having cut down the trees but only aver that they had the right to do so since the trees were on a planned road, Erongu road. The

defendants also dispute the authority the plaintiff had to plant trees since he had 20 no licence at the time of planting the trees.

The plaintiff states that the person with authority over the road reserve was National Forestry Authority (NFA) and not the defendant and as such the lack of notification to NFA the licensor nor to the plaintiff by the defendant before proceeding to cut down the trees as unlawful.

First thing to determine is the right that the plaintiff had on the land:

It was the plaintiff's submission that he obtained a licence from NFA, PW2 testified that the plaintiff was given permission in 2008 by letter dated 22<sup>nd</sup> July wherein he was permitted to start planting pending the processing if a licence.

$\overline{5}$ The defendant submitted that the law requires permission in form of licence issued by the Authority and not by letter as was purportedly given.

The National Forest and Tree Planting Act, 2003 has various provisions touching on this matter which I hereunder reproduce:

Section 13 provides for management of forest reserves thus;

(1) A forest reserve shall be managed in a manner consistent with the purpose for which it is declared.

(2) For the avoidance of doubt, a forest reserve shall not be put under any use other than in accordance with the management plan.

(3) A responsible body shall manage, maintain and control the forest reserve in accordance with generally accepted principles of forest management as may be prescribed in guidelines issued by the Minister, including but not limited to the following—

(a) natural forests shall not be destroyed, damaged or disturbed except in the course of carrying out activities for the sustainable management of the forest reserve:

(b)forests shall be developed and managed so as to—

(i) conserve biological diversity, ecosystems and habitats;

(ii) sustain the potential yield of their economic, social, health and environmental benefits:

(iii) promote the fair distribution of their economic, social, health and environmental benefits:

(iv) promote their health and vitality;

(v) conserve natural resources, especially soil, air and water quality; and(vi)conserve natural heritage and promote aesthetic, cultural and spiritual values.

Section 14 provides for prohibited activities in forest reserves thus;

(1) No person shall, in a forest reserve, cut, disturb, damage, burn or destroy any forest produce, or remove or receive any forest produce except—

(a) in accordance with regulations or guidelines made for the proper management of the forest reserve;

(b) in the course of the management of the forest reserve by the responsible body;

(c) in terms of the exercise of a right or interest in the forest reserve; or

(d) in accordance with a licence issued under this Act.

(2) A person who contravenes this section commits an offence and is liable. on conviction, to a fine not exceeding fifty currency points or to imprisonment for a term not exceeding five years, or both.

Section 32 provides for prohibited activities thus:

15 (1) No person shall, except, for forestry purposes and in accordance with a management plan, or in accordance with a licence granted under this Act, in a forest reserve or community forest—

(a) cut, take, work or remove forest produce;

(b) clear, use or occupy any land for— $\frac{1}{2}$

(i) grazing;

(ii) camping;

(iii) livestock farming;

(iv) planting or cultivation of crops;

(v) erecting of a building or enclosure; or

(vi) recreational, commercial, residential, industrial or hunting purposes;

(c) collect biotic and abiotic specimens; or

(d) construct or re-open a road, track, bridge, airstrip, or landing site.

(2) A person who contravenes this section commits an offence and is liable, on conviction, to a fine not exceeding thirty currency points or to imprisonment for a term not exceeding three years, or both. (Emphasis is mine)

Section 41 provides for licenses thus;

(1) A responsible body may, subject to the management plan, grant a licence to an interested person for—


$\mathsf{S}$

(a) the cutting, taking, working or removing of forest produce from a forest reserve or community forest; or

(b) the sustainable utilisation and management of the forest reserve or community forest.

(2) A responsible body shall in accordance with regulations, prescribe the terms, conditions, rights and fees for a licence granted under this section.

(3) Nothing in this section shall be deemed to transfer to or vest in the person granted a licence, any privilege, right, title, interest or easement over the forest reserve or community forest, other than that stated in the terms of the licence.

Section 42 provides for application for licence thus; 15

A responsible body shall, through a fair, open and competitive process in accordance with procedures prescribed by regulations, invite applications for a licence under this Act.

Section 43 of the Act provides for unlicensed activities thus;

(1) No person shall, except in accordance with section 33 or where he or she has been granted a licence for the purpose, grow, cut, take, work or remove any forest produce from a forest reserve or community forest.

(2) A person who contravenes this section commits an offence and is liable, on conviction, to a fine not exceeding thirty currency points or to imprisonment for a term not exceeding three years, or both.

The import of the above provisions of the law is that no person shall do anything

on a forest reserve without authorization in form of a licence.

Section 32 (1) (d) prohibits construction of roads on a reserve without a licence. It states thus;

No person shall, except, for forestry purposes and in accordance with a 30 management plan, or in accordance with a licence granted under this Act, in a forest reserve or community forest—

$(a)$ ....................................


$10$

$\overline{5}$

$5$ $(b)$ ....................................

(c) $\ldots$

(d) construct or re-open a road, track, bridge, airstrip, or landing site. [Emphasis Mine]

It goes without saying that the defendant does not contest the fact that the land in question is a forest reserve falling under Solot Block, Soroti Central Forest $10$ Reserve.

From the provisions of the law cited above it is clear that any work carried on the land needed the authorisation of NFA through a licence.

The defendant does not claim the land belongs to it but it concedes that it carried out road works construction within the protected area.

That being the case then I would find that the defendant's actions were illegal for lack of authorization to construct the said Erongu road.

Of note and from the testimony of the defendant's witnesses DW1 and DW2, it is the evidence of the defendant that Erongu Road is among the gazzetted roads

in the layout plan of Soroti City Council which was approved by National Country 20 Planning Board.

I have had the occasion to look at DEX1, which is dated 24.06.2008, however, I find that the allegation that Erongu road has been in existence for over 20 years is not supported by the plan itself. This plan does not indicate the existence of

Erongu road, which fact was admitted by the defendant's witness. 25

Further, DEX2 that before the construction of the said road there were some settlements at its far north end corner, however, looking at DEX 3 and DEX4 which show the after construction act, there are no settlements seen at the far north,

which leaves one wondering if these photographic exhibits were taken from the $\mathsf{S}$ same area and road. I am thus unable rely on the said photographs as proof that the road existed prior to the felling of the trees.

I note that the defendant throughout cross-examination of the plaintiff and his witnesses and even in their submissions focused on the legality of the plaintiff's occupation of the suit land.

The evidence on record clearly shows that the plaintiff began planting trees in the central forestry reserve in 1999 after having sought permission from the NFA, then the forestry department and thereafter he planted his trees with the knowledge of NFA which was proved by the testimony of PW2 the assistant forest

supervisor NFA in Teso. The NFA later formalized this agreement and gave the 15 plaintiff a license in 2019.

In my opinion given that the activity of the plaintiff was well within the knowledge of the NFA and they never once stopped him, I would find that they had no issue with his occupation of the central forest reserve as well as the tree planting.

PEX1 which is a letter from the NFA indicated that the plaintiff had been 20 permitted to plant trees in the forest reserve pending a licence. The fact that he paid ground rent to the NFA as exhibited by PEX4 and later entered an agreement (PEX2) and got a licence (PEX3) from NFA indicates that the NFA was aware of his use of the reserve and ratified his previous and future use of the central forest 25

reserve for tree planting.

From the evidence on record, it is clear that the plaintiff had authority to use the forest reserve as per the licence granted to him, which was for planting trees unlike the defendants, who whilst knowing that the road they were creating was

in forest reserve, proceeded to grade the same without permission from the NFA $\mathsf{S}$ or any of its officials.

The actions of the defendant in clearing the trees in the forest reserve to create a road without authorization from NFA contravened the provisions of the National Forestry Act Section 32 (1) (d) which prohibits the construction or reopening a road, track, bridge, airstrip, or landing site in a forest reserve without a licence and thus was unlawful.

Accordingly, since the plaintiff was lawfully on the protected land pursuant to a licence issued to him in 2019 by the National Forestry Authority under the National Forestry Act, which act was ratified the plaintiff's stay on the land from

- April 20<sup>th</sup> 2008 to 19<sup>th</sup> April 2033, I would find that the actions of the defendant 15 in grading the protected forestry reserve without the authority and or licence from the National Forestry Authority, contravened and violated the right enjoyed by the plaintiff and as such the defendant would be liable as its action was unlawful. - It is immaterial that the said road fell within the defendant's planned area and 20 was by National Country Planning Board. The defendant had the duty to further ensure that all legal other authorisations such as that from the National Forestry Authority, which is the controlling authority of the area within which Erongu Road fell was obtained before purporting to open the road as that road fell within a protected area. 25

b. Remedies.

In tort where a wrong has been committed, there is always a remedy for such wrong as a remedy is a relief available to the person against whom any wrong has been committed. The offending party gives such relief.

The plaintiff prayed for compensation of $50,400,000/$ = for the damage caused. $\mathsf{S}$ He claimed that 300 trees which were cut were each valued at Ugx. $80,000/$ = per the forestry principles. The defendant contended that the plaintiff has failed to prove that 300 trees were destroyed.

The evidence presented by the plaintiff does not prove that 300 trees were cut down, save for the witness statements there is no report written by NFA or any 10 one in that regard that the number of trees cut down were 300. The plaintiff in the least should have presented photos that would indicate the magnitude of the loss. This also was lacking since the photographs presented were faint, barely clear and indicate a few trees sparsely populated.

I could not on the evidence presented find that 300 trees were cut. I therefore 15 find that the plaintiff has failed to prove his claim for compensation.

Regarding general damages, these are damages which the law implies and presumes to have accrued from the wrong complained of or as the immediate, direct and proximate result, or the necessary result of the wrong complained of.

The defendant herein does not deny that it cut down trees in the forest reserve, 20 it further does not deny that the trees belonged to the plaintiff. I find that from the wrongful act of the defendant cutting down trees belonging to the plaintiff without any right, the plaintiff is entitled to general damages and which from the circumstances of this case, I would assess and award UGX 10,000,000/= (Ten million Uganda shillings only as general damages to be paid at a rate of 18% per 25 annum from the date of this judgment until payment in full.

Regarding costs, it is trite law that costs follow the event, I hereby award the plaintiff costs of this suit.


## 7. Conclusion.

In the final result, the plaintiff having proved that the defendant's acts were unlawful, I would find this suit in the favour of the plaintiff and make declarations and orders as below.

8. Declarations and orders;

$5$

a) The plaintiff lawfully by a Licence from the national Forestry Authority occupied by planting trees the gazetted forest area of Solot Block, Soroti Central Forest Reserve within Soroti Municipality in which the defendant illegally opened a road running from Moruapesur to Opiyai B known as Erongu Road.

- b) The actions of the defendants in felling the plaintiff's trees in the protected forest reserve under National Forestry Authority (NFA) without first obtaining a licence from the said NFA was unlawful. - c) The plaintiff has not proved special damages as to the number of the tress fell and as such no award of special damages for the alleged felled 300 trees is awarded. - d) The plaintiff is awarded general damages of UGX 10,000,000/= (Ten Million Uganda Shillings Only) at an interest of 18% per annum from the date of this judgment until payment in full. - e) The plaintiff being the successful party here is awarded the costs of this suit.

I so order.

Hon. Justice Dr Henry Peter Adonyo

28<sup>th</sup> August 2024

15