Katusiime v Buliisa Sub County and 3 Others (Civil Appeal 24 of 2022) [2024] UGHC 442 (15 March 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT HOIMA

### Civil Appeal No. 024 of 2022

(Formerly MSD-CA-059 of 2021)

**KATUSIIME CHARLES ::: :::: APPELLANT**

#### **VERSUS**

1. BULIISA SUB COUNTY 2. BALEMESA ROGERS 3. ELIABU KAKURU

4. KIIZA BONIFANCE

**RESPONDENTS**

(Appeal from the Judgment and Orders of H/W Komakech Kenneth, Magistrate Grade 1 Buliisa at Buliisa, in C. S. No. 15 of 2017 dated 24th November, 2021)

Before: Hon. Justice Byaruhanga Jesse Rugyema:

### Judgment

# **Background:**

- $[1]$ The Appellant/Plaintiff sued the Respondent/Defendants for compensation for loss of business worth Ugx. 1,472,000=, general damages, interest and costs of the suit arising from the impounding and sale of his charcoal by the Respondents. - In their joint defence, the 1<sup>st</sup> Respondent (a Sub county), $[2]$ $2<sup>nd</sup>$ Respondent (a Sub county Chief of Buliisa Sub county), $3<sup>rd</sup>$ Respondent (a Parish Chief of Kigoya Parish, Buliisa Sub county) and the 4<sup>th</sup> Respondent denied the Appellant's claims and averred as follows:

- $(a)$ Bulisa Sub county Council prohibited the cutting down of trees and burning charcoal with the main aim of protecting and conserving the environment. - That during an operation by the $2^{nd}$ & $3^{rd}$ Respondents $(b)$ together with Police from Buliisa Central Police, came across Tipper Lorry transporting charcoal from Bugana to $\overline{a}$ Walukuba Centre. They impounded the vehicle and later, sold and or auctioned the charcoal to the 4<sup>th</sup> Respondent. - The Respondents contended that the Appellant had no license to $[3]$ trade in charcoal and intimated to raise a preliminary point of law that the Plaint was incurably defective as it did not disclose a cause of action and that the Appellant had no locus to institute the suit. - The trial Magistrate found that the Appellant had no license to cut, $[4]$ take, work or remove forest produce from a forest reserve or community forest and or deal in forest produce and therefore, that his actions were illegal. Thus he held that there were no cause of action disclosed against the Respondents. The Plaint was accordingly struck out and the suit dismissed with costs to the Respondents. - The Appellant was dissatisfied with the decision and orders of the $[5]$ trial Magistrate and lodged the present appeal on the following grounds: - That the learned trial Magistrate erred in law and fact, $(a)$ when he failed to properly evaluate the evidence on record

- thereby arriving at a wrong conclusion and occasioning the Appellant to suffer injustice. - $(b)$ The learned trial Magistrate erred in law and fact when he concluded that the Appellant violated National Forestry Laws thereby arriving at a wrong conclusion and occasioning the Appellant to suffer injustice. - The learned trial Magistrate erred in law and fact when he $(c)$ failed to entertain the evidence of the Appellant and instead relied on the evidence of the Defendant thereby arriving at a wrong conclusion. - The above grounds of appeal appear to revolve around how the $[6]$ trial Magistrate evaluated the evidence before him to arrive at the conclusion that the Appellant had no license to deal in forest produce. As a result, I accordingly resolve them together. - $[7]$ While relying on Section 13, 32(1) & (2) of the National Forestry and Tree Planting Act of 2003 and Section 13(11) of the Forest **act Cap. 146** the trial Magistrate held at p.2 of the Judgment thus:

"In essence trade in forest products including charcoal without a license is prohibited under S.13(11) of the Forest Act Cap. 146 ..... The $1^{st}$ Defendant being a Sub county chief, in my view acted lawfully and within the scope of his authorities (sic) and within the boundaries of the law to stop the Plaintiff from engaging in illegal dealing in charcoal which contravenes the law since at no point did he demonstrate to Court that

he had authorities to do so by way of holding a license".

- Counsel for the appellant Mr. Akampurira Jude submitted that $[8]$ the Respondents did not adduce any evidence that shows that the charcoal in question was acquired from any Community Forest or Forest reserve yet under S.42 of the National Forestry and Tree Planting Act, a license is granted to persons that intend to cut trees from a forest reserve or community forest. - $[9]$ Counsel for the Respondent Mr. Kasangaki Simon on the other hand submitted that the Appellant had no license to either trade or deal in forest produce including charcoal as by law established and therefore he had no locus to institute the suit against the Respondents. - As a starting point, the prohibition to trade and deal in forest $[10]$ produce which include charcoal is contained in **Ss. 3** and **32(1)** of the National Forest and Tree Planting Act. S.32 (1) thereof provides thus:

"No person shall, except, for forestry purposes and in accordance with a management plan or in accordance with a license granted under this Act, in a Forest Reserve or *community forest:*

- Cut, take, work or remove forest produce $(a)$ - $(b)$ Clear, use or occupy any land ......" - A "Forest Reserve" means an area declared to be a central or local $[11]$ forest reserve under this Act; while a community forest means an area declared to be a community forest under Section 17"

**S.17** thereof provides thus:

# "17. Declaration of Community Forest

- $(1)$ *The Minister may -* - $(a)$ after consultation with the District Land Board and the local community; and - $(b)$ upon approval by regulation of the District Council, by Statutory Order, declare an area within its jurisdiction to be community forest. - $(2)$ .<br>. . . . . . . . - An order made under subsection (1) shall be $(3)$ published by posting outside the office or other meeting place of the local government, a notice specifying the situation, duly surveyed extent and limits of the *community forest".*

S.6 of the Act provides for a similar declaration as regards a Forest Reserve.

- In the instant case, there is no evidence that was adduced by the $[12]$ parties as regards whether the required license in question was for a "Forest Reserve" or a "Community Forest" in Buliisa and whether either of these existed in Buliisa District. - [13] Balemesa Rogers (Dw1) who spearheaded the operation to curb charcoal dealers and had the Appellant's vehicle carrying charcoal impounded testified that on the night of 10<sup>th</sup> March, 2017, at around 11.00 p.m, they impounded a motor vehicle carrying 32 **bags** of charcoal. The local authorities carried out the operation jointly with Police but no reasons were given in evidence as to

why the charcoal was impounded save for merely stating that the law permitted movement of charcoal only from 7.00 a.m. to 7.00 Mutyaga Eriabu (Dw2) who also participated in the p.m. operation in his capacity as a Parish Chief, in his testimony, also gave no reason as to why the Appellant's charcoal was impounded. According to him, the charcoal was later sold out because it was unclaimed. That was the same position as per the evidence of both Dw3 and Dw4.

[14] The issue alluding to a license only came up during the cross examination of the Appellant when he stated:

> "I don't have any certificate of clearance to burn and deal in charcoal"

As per S.32(1) of the National Forestry and Tree Planting Act, $[15]$ the requirement of a license to deal in forests produce must be in regard to a "forest reserve" and a "community forest". As already observed, no evidence was adduced by the parties as regards the existence of any of the above classified forests. There is no Statutory order issued by the Minister under Ss.9 (1)(2) and $S.17(1)(2)$ of the Act that was adduced in evidence to prove the existence of either a "forest reserve" or "community forest" in Buliisa for which the Appellant is to be held for the violation of the laws of the forestry. Besides, even the alleged sub county Council minutes relied on by the Respondents from which they claim to had derived the authority to impound the Appellant's charcoal were neither exhibited nor adduced in evidence in Court. The mere attachment of their photocopies to the WSD fell short of their proof and admission.

- [16] Since a license is granted to persons that intend to trade or deal in forest produce from a forest reserve or community forest which the Respondents did not prove, I find that the trial Magistrate misapplied S.32 of the National Forestry and Tree Planting Act and as a result, arrived at a wrong conclusion that the Plaintiff was engaging in the illegal dealing in charcoal in contravention of the law. In the premises that this was the sole basis of finding that the Appellant had had no cause of action and locus to institute the suit, this appeal accordingly succeeds. - Relying on the authority of Auto Garage Vs. Motokov [1971] EA $[17]$ 514 and Kapeka Coffee Works Ltd Vs. NPART C. A. C. A No. 3 of 2000, it is the law that Court only looks at a party's pleadings to determine whether a cause of action is disclosed. In this case, I find that the amended Plaint disclosed a cause of action for the Appellant had a right or interest in the impounded charcoal in question, the impounding of the charcoal without his consent amounted to wrongful deprivation of his property thus violation of his right and held the Respondents liable. - $[18]$ In this case, the Respondents did not deny the illegal and or wrongful impounding of the Appellants motor vehicle that was carrying bags of charcoal. The Appellant adduced evidence that the Respondents impounded 321/2 bags of charcoal worth $1,472,000=$ . The Respondents as per Dw1 only admitted 32 bags and as per Dw3 they sold all 30 bags on auction at 25,000= per bag as per Dw3. I am inclined to believe the Appellant's evidence that a bag of charcoal at open market would fetch at around $45,000$ = since his evidence as regards the number of bags of the

charcoal impounded and the price were not challenged during cross examination; see Sawo-Abiri & Anor Vs. Uganda S. C. C Crim. Appeal No. 5 of 1990 where it was held that:

"An omission or neglect to challenge the evidence in chief on a material or essential point by cross examination would lead to an inference that the evidence is accepted, subject to its being availed as inherently incredible or palpably untrue".

See also Habre International Co. Ltd Vs. Ebrahim Kassam S. C. C. A. No. 4 of 1999.

In view of the above position of the law, I find the evidence of the $[19]$ Appellant to had been unassailable. As a result of the totality of the above, I allow the appeal and set aside the orders of the lower Court. The Appellant is awarded compensation for his loss of business Ugx. 1,472,000=, general damages of Ugx. 800,000= to indemnify the Appellant the inconvenience, mental torture and the stress he suffered as a result of the Respondents' actions, since as per his evidence, the proceeds of the charcoal were for school fees of his children. The Appellant is also awarded costs of the suit both in the lower Court and the High Court.

Dated at Hoima this 15<sup>th</sup> day of March, 2024.

Byaruhanga Jesse Rugyema

Judge