Mugerwa v National Forestry Authority (Civil Suit 5 of 2008) [2014] UGHC 106 (28 November 2014)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA CIVIL SUIT NO. 005 OF 2008

## MUGERWA EVARISTO KAFEERO $==$ = PLAINTIFF

#### **VERSUS**

## NATIONAL FORESTRY AUTHORITY $==$ DEFENDANT

# BEFORE: THE HON. JUSTICE V. F. MUSOKE -KIBUUKA

#### **JUDGMENT**

The Plaintiff instituted this suit against the defendant seeking the following reliefs:-1レ

- a) a declaration that the piece of land comprising in LRV 1370 Folio 19, Buddu, Block 783, Plot 11 measuring 98.71 hectares at Byante, Kitunga, Kyanamukaaka, Masaka District was not a gazetted forest reserve at the time it was leased to the Plaintiff; - b) a permanent injunction restraining the defendant from evicting the Plaintiff from the suit land.

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Certified True

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c) general damages for trespass; and HIGH COURT d) costs of the suit.

(e) alternatively, an order requiring Uganda Land Commission to soften an alternative piece of land to the defendant in lieu of the suit property.

### PLEADINGS AND FACTS.

The Plaintiff on the 22<sup>nd</sup> February, 1985, upon application for a $\mathsf{S}$ lease was registered as a registered proprietor of Plot 11 Buddu Block 783 land at Byante, Kitunga, Kyanamukaaka, Masaka District. IT measures approximately 98.71 hectares. Ever since he has been the registered proprietor until the defendant started challenging his title. $ID$

In its written statement of defence, the defendant admits the fact that the Plaintiff is the registered proprietor of the suit land. It however, claims that at the time he obtained title on the disputed land, it was a forest reserve gazetted way back in 1932, vide Legal notice no. 87 of 1932. It was regazetted in 1948 and in 15 vide Legal Notice no.41 of 1948, and in 1965. It was also subsequently regazetrted in vide Legal Notice no. 186 of 1965, 1968 and 1998 by way of statutory Instruments.

At the scheduling conferences the following issues were agreed OF UG Certified True Copy $2D$ HIGH COU upon:-

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Masaka

- 1. Whether the piece of land comprising LRV 1370 Folio 19 Buddu Block 785 Plot 11 measuring 98.71 hectares at Byante, Kitunga, Kyanamukaaka, Masaka District was part of Mujuzi Central Forest Reserve at the time the plantiff $\mathsf{S}$ acquired the title in the suit property; - 2. Whether the lease over the suit land is legal and was legally obtained; and - 3. Remedies to the parties.

### Whethe Buddu Block 785 Plot 11, measuring 98.71 Hectares at Byante, Kitunga, Kyanamukaaka, Masaka District is part of Mujuzi Central Forest Reserve.

It is not in dispute that the Plaintiff holds a certificate of title to the suit land, what is in dispute is whether at the time Uganda Land Commission granted him the lease, the suit land formed part of Mujuzi Central Forest Reserve. $15$

PW1 the plaintiff examination in chief, stated that he was the registered proprietor of the suit land. He applied from the District Land Committee where he got the information that land was available for leasing and he filled the forms and sent them to the District Land Committee which later sent them to the Uganda Land Commission which issued him with a lease of The land

$10$

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was surveyed in 1984 and the certificate of title was issued to him. He started utilizing the land until the officers from the defendant restrained him in 2007.

cross-examination, the Plaintiff stated that he was a retired In surveyor and his last station was Masaka, where he was working $\mathsf{S}$ Senior Staff Surveyor and it was then, when a one as Rutabakigwe who was also a surveyor working under him informed him about availability of the suit property as the free land. He did not know that it was part of the forest reserve.

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PW2 Mr. Ssembajjwe Henry, the Senior District Staff Surveyor $10$ Masaka District stated that on the orders of this court, he led a team of surveyors who opened the boundaries and his report which was exhibited as Exhibit P.2, shows that the suit land forms part of Mujuzi Central Forest Reserve.

In his written submission, Learned Counsel for the Plaintiff, Mr. $15$ John Matovu, stated that at the time the Plaintiff obtained a lease on the suit land, it was not a forest reserve and all that is based on the survey allegedly conducted by a surveyor in the names of Kigongo Sadig and also that the map provided by DW2 did not $2D$ clearly show the boundaries of Mujuzi Central Eorest Reserve and Certified True Copy

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he submitted that the Plaintiff's land was within Mujuzi Central Forest Reserve.

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Learned counsel for the defendant submitted that according to DW1 Mujuzi Central Forest Reserve was first surveyed in September 1914. That evidence was corroborated by DW2 Mr. Lutaaya john Vianney, who produced the cartridge maps showing boundaries of Mujuzi Central Forest Reserve. There is no evidence showing any changes from that position, Exhibit $P2$ . also clearly shows that Buddu Block 783, Plot 11, is entirely within Muyinzi Central Forest Reserve. It was located in that reserve at the time of it's creation.

The last declaration of Mujuzi Central Forest Reserve, was in 1998, under the then law enforce (The Forest Act Cap. 146) (now repealed). S. I. 63 of 1998 or S. I. 146-1. The Forests (Forest Reserve (Declaration) Order was saved by section 95 (2) of the National Forestry And Tree Planting Act, 2003, The Forests (Forest Reserving Declaration order, in its first schedule shows that Mujuzi Forest has maintained the same original area of 6,079 hectares as was in 1914. This means that no part of the Forest Reserve had ever been degazetted. The area pf 98.71 hectares at Byante, Kitunga, which the plaintiff registered under his names

Certified True Copy $\mathcal{L}_{\mathcal{L}}$ J MMR 2015 DEPUT Masaka

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$\mathbf{L}$ $\mathbf{1}$ on 22.02.1985, was part of Mujuzi Central Forest Reserve. It had not been degaratted.

Secondly there is nothing on the record to show that prior to the offer of the suit property to the plaintiff for leasing, an exclusion order of the piece of 98.71 hectares was made by the Chief Conservator of Forests.

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Accordingly, issue number one must be and is answered in the Buddu Block 785, Plot 11, located in and is an affirmative. integral part of Mujuzi Cental Forest Reserve. That was, apparently, the position during the year 1984, when the plaintiff 10 registered the suit property under his persona; names.

## Whether The Lease Over The Suit Property Is Legal And Was Legally Obtained.

The plaintiff, in his pleadings and in his evidence in court contended that the lease over the suit property was legal and it $15$ was legally obtained. The reason he relied upon was that at the time he obtained the lease in 1984, the forest reserve had not been surveyed. $\overline{HIGH}$ certified in 1984. been surveyed.

The defendant on the other hand produced uncontroverted $2D$ evidence from both DW1 and DW2, showing that Mujuzi Central Forest Reserve was first surveyed in 1914. The same evidence showed that the surveyed area has since then been a forest reserve.

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Secondary, the Plaintiff stated that he did not know that the land had been gazetted as a forest reserve. The defendant's evidence from PW1 and PW2, controverts that closing as well. It shows that the plaintiff was the Senior Staff surveyors for Masaka District from 1981 to 1985. Masaka was the last station before his retirement. He was, therefore, an experienced public officers and quite knowledgeable in his area of work. In court's view, he stood in a very good position and ought to have known the forest reserves developed in the district of his work as a surveyor.

Thirdly, the defendants evidence shows that the plaintiff issued the instructions to survey, No. U0903, in 1984. He carried out the survey. The deed plans were made in Masaka and not in $15$ Entebbe and the plaintiff signed them himself. Because those deed, upon being sent to Entebbe, were rejected and sent back to Masaka an attempt was made in 2012 to falsely new instructions to survey the suit property which had been earlier registered in 1984. Fresh instructions to survey were issued by $2D$ DW2, as senior staff surveyor for Masaka District. Those

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instructions U/1/0422, were disguised to relate to a sub-division of plot no. 7 in a block in Mawogola. But the same co-ordinates as those of the land in Buddu Block 783, plot 11 were used.

A survey, according to PW2 was carried out and plotted in 5 discovered and the disquise was the Later Entebbe. Commissioner for Survey and Mapping withdrew the deed plans arising out of the disguised survey under instruction U/1/0422. Thus to date the plaintiff's certificate of title stands with no deed plans to support it.

$10$ In spite of all the above evidence, the defendant never filed any counter-claim to enable it plead fraud, particularize it and strictly prove it. That would have enabled the ordinary law relating to the impeachment of a certificate of title registered under the 230, to be effective. Registration of Titles Act, Cap. See Kampala Bottlers Ltd vs. Damanico (U) Ltd, SCCA No. 22 of 1992 「工 and Ssejjaka Nalima vs. Rebecca Musoke, CA No. 12 of *1985.* <sup>1</sup>

Instead, the defendant appears to have sought to have the plaintiff's title impeached under the doctrine of public trust. The defendants contention being that the suit property is part of Mujuzi Central Forest Reserve which was first surveyed during the

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year 1914 and was first gazetted vide legal Notice no, 87 of 1932. The defendant contends that the suit property being a forest reserve, no person has any right to lawfully obtain or hold a valid title over it, Any title issued on a gazetted forest reserve would be unlawful and void because it would be contravening the Forest Act, Cap. 246 (which was the law applicable then) or the Notional Forestry And Tree Planting Act, 6 of 2003 which is the law in force today.

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Public trusts are constituted to benefit the public at large or some considerable portion of the public enswering a particular description. Article 237 (2) (b) of the Constitution appears to be the basis of the public trust in the case of the forest reverse in Uganda. It providing:-

> $(b)$ the Government or a local government as determined by Parliament by law, shall hold in $15$ trust for the people and protect, natural lakes, rivers wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and tourist purposes, for the common good of all citizens." 20

The above constitutional provision is more or less re-echoed by section 4 (1) of the National Forestry and Three Planting Act.<br> $\overline{HH^{GH}}$ certified Act. **The**

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decrine of public trust appears to have been so endowed to Parliament that the legislative permitted, under section 4 (2) of the National Forestry and the Planting Act, any individual or body of persons to bring an action before court against any person whose actions or omissions have had or are likely to have a significant impact on a forest or for the protection of a forest. This suit could have been brought not necessarily by the National Forestry Authority but by any person or body of persons under the authority under that provision of the law.

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Even before the Constitution and the National Forestry And Tree $\overline{1}$ Planting Act were put in place, in 1995 and 2003, respectively, the Forests Act, in section 13, reflected the public trust doctrine with regard to forest reserves in the country. In 1984, when the plaintiff purports to have leased part of Mujuzi Central Forest Reserve, such an act was prohibited by law and was quite illegal. His registration as proprietor of any part of the reserved forest was null and void.

The plaintiff contended that if court found that his certificate of title covered part of the forest reserve, then he would be unwillingly ready to accept compensation or an alternative piece of land affected to him in lieu of the one now registered under his Certified True Copy HIGH COU $\mathcal{L}$ name. $10$

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Not much needs to be said about that submission in light of the facts and circumstances of this case as borne out by the evidence on record. In a nutshell, the plaintiff deserves no sympathy. He willingly and cunningly entered into his own trap. It would not be proper or fair either to compensate him with public funds or to offer to him any alternative public land for him to lease in lieu of the suit property.

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## RESULT.

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In the result, court dismisses the plaintiffs suit with costs to the defendant. It makes the following declarations and orders:- $\overline{011}$

- a) a declaration that the suit property is part of the Mujuzi Central Forest Reserve, which was first surveyed in 1914 and first gazetted by legal Notice No. 38 of 1938. - : b) a declaration that Mujuzi Central Forest Reserve having been first gazetted in 1938, no person could in 1984 obtain $15$ and hold a title over a part of it. Accordingly, the title obtained by the plaintiff on the block 783, plot 11, was obtained illegally and the certificate of title issued to the plaintiff is null and void; - $2D$ c) a declaration that the registration of the plaintiff as proprietor of Buddu Block 783, plot 11, was effected in error as the land was not available for leasing, HIGH COURT BING

d) an order evicting the plaintiff from the Mujuzi Central Forest Reserve within 14 days from the date of this judgment;

- e) an order requiring the plaintiff to hand over the owner's copy of the certificate of title held by him to the $\mathcal{S}$ Commissioner for Land Registration for cancellation; - f) an injunction restraining the plaintiff, his agents employees or successors, from treating any part of Mujuzi Central Forest Reserve as belonging to him and from carrying out thereon any activity prohibited by law; and - g) an order requiring the plaintiff to pay the defendant's costs in respect of this suit.

(JUDGE) 28.11.2014

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