Nankuluzze & 2 Others v National Forestry Authority (Miscellaneous Application 1918 of 2024) [2025] UGHCLD 10 (16 January 2025)

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

# **(LAND DIVISION)**

## **MISCELLANEOUS APPLICATION NO .1918 OF 2024**

# **ARISING FROM CIVIL SUIT NO.2917 of 2016**

# **(FORMERLY CIVIL SUIT NO.771 OF 2015 of NAKAWA HIGH COURT)**

# **1. NANKULUZZE HAMIMA ALI**

## **2. KAKAWENZI TEOPISTA**

**3. BUKENYA TOM ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

## **VERSUS**

## **NATIONAL FORESTRY AUTHORITY ===== RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

# 1. **NANKULUZZE HAMIMA ALI, KAKAWENZI TEOPISTA &**

**BUKENYA TOM** (hereinafter referred to as the Applicants) brought the present application against **National Forestry Authority** (hereinafter referred to as the Respondent) by way of Notice of

motion under Sections 82 and 98 of the Civil Procedure Act cap.282 & Order 46 rule 1 Order 52 rule 2 of the Civil Procedure Rules S. I.71-1 for orders that;

- **i)** An Order for Review and setting aside of the Judgement in Civil Suit No.2917 of 2016. - **ii)** Declaration that the Suit-Land is not part of Kajjansi Forest reserve. - **iii)** Costs of this Application be provided for

# *Applicants evidence;*

- 2. The Application is supported by an affidavit deponed by Nankuluzze Hamima Ali the 1stApplicant which briefly state as follows; - i) That the Applicants are interested parties in the matter whose right to fair hearing was never exercised. - ii) That their interests directly arise from the suit-land in Busiro Block 405-406, 1689, 3119, 1050, 1070, 1333, 1339, 1340, 1342, 1346, 1521, 1351, 1352 and Busiro Block G537 Plots 287, 290, 296, 317, 319, 502 and 503.

- iii) That the Applicants' Certificates of Title are due for cancellation as Court in HCCS No. 2917 of 2016 ruled that the suit-land forms part of the Kajjansi Forest reserve. - iv) That the Applicants contend that the respondent in HCSS 885 of 2017 admitted that the suit land does not form part of Kajjansi forest reserve except Busiro Block Plots 18,19,31,78 and 79

# *Respondent's evidence;*

3. The Respondent filed an Affidavit in reply in which they opposed this Application which briefly states as follows;

- i) That the Suit-Land forms part of the Kajjansi forest reserve. - ii) That the stated averments are true and correct to the best of their knowledge.

# *Representation;*

4. The applicants were represented by Counsel Sempebwa Musa and Counsel Efumbi Musa of M/S Sempebwa Musa & Co. Advocates whereas the respondent was represented by Counsel Ndagijje Judith from the Office of the respondent. Parties filed their

respective affidavits and only the applicants filed written submissions.

# *Issues for determination;*

i) Whether the instant application raises grounds for review of Civil Suit No.2917 of 2016?

# *Resolution and determination of the issue;*

- 5. *Section 82 of the Civil Procedure Act* permits any person aggrieved by a decree or order of a court to apply for a review of the Judgment to the Court that passed the Judgment, and that Court may make such orders as it deems fit. This right is further saved under *O.46 rule 1 of the Civil Procedure Rules SI 71- 1,* which allows an aggrieved person, who, on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, to apply for a review of the Judgment to the Court which passed the decree or made the order. - 4 6. According to the case of *Edison Kanyabwera Vs Pastori Tumwebaze SCCA No.6 of 2004*, a *"mistake or error*

*apparent on the face of the record"* must be an evident error which does not require any extraneous matter to show its incorrectness. Further, it must be an error so manifestly clear that no court would permit such an error to remain on the record. The error contemplated under the rule must be such that is apparent on the face of the record and not an error which has to be searched. The error should not require any long-drawn process of reasoning on points where there may conceivably be two options.

- 7. According to the authority of *F. X Mubuuke Vs. Uganda Electricity Board HCMA No.98 of 2005* review refers to the reconsideration of the subject of the suit by the same Court under specific conditions set by the law; - i) That there is a mistake or manifest mistake or error apparent on the face of the record. - ii) That there is discovery of new and important evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made.

iii) That any other sufficient reason exists.

# *Discovery of new evidence;*

- 8. In the instant application, the Applicants submitted that there is Discovery of evidence and further submitted that the Respondent is bound by an admission which is the Report of Commissioner for surveys and mappings. In the Affidavit in support to the Application under Paragraph 6, its deponed that there is a new and important matter of evidence which is the report of Commissioner Surveys and mappings which averment the Respondent never objected to in the Affidavit in Reply. - 9. This Honorable Court notes that the Report of Commissioner for Surveys and Mappings is relevant in this matter since the Report of Commissioner for Surveys and mappings had resolved this impasse between the parties and it's a new and important matter of evidence that warrants a review of Civil Suit No.2917 of 2016. - 10. Further, the Applicants submitted that the Respondent made an admission that they were bound by the Report of Commissioner

for surveys and mappings and prayed for a judgment on admission in another suit vide HCSS 885 of 2017 that was also in respect of Kajjansi Forest reserve.

- 11. It's a cardinal principle that when a Party admits to a fact, he or she is bound by it. In HCSS 885 of 2017, this Honorable Court was guided by an expert opinion of Mr. Vianey Lutaya a principal surveyor with the Ministry of lands acting for the commissioner surveys and Mapping as custodian of all survey records in Uganda on the boundaries and extent of Kajjansi Forest reserve. - 12. In the same suit HCSS 885 of 2017, the respondent unequivocally through its surveyor Mr. Opal Bernard Zakary and the Forest Range manager Mr. Leo Twinomuhangi admitted that the guidance of the commissioner surveys and Mapping is binding on them. - 13. According to *Order 13 rule 6 of the CPR*, it provides that *"where an admission of facts has been made, either on the pleadings or otherwise, a party to such a suit may apply to the court for judgment or order as he/she may be entitled to upon that admission, without waiting for the determination*

# *of any other question between the parties; and the court may grant such judgment or order, as it may think just".*

- 14. It's trite law that the court may rely on documents accompanying pleadings to infer an admission by the opposite party provided the alleged admission satisfies the tenets of a proper admission. - 15. It is a well settled principle that a judgment on admission is not a matter of right but rather one of discretion of the court. - 16. **In HCSS 135 of 2005 Edward Acero Goil and another vs National Forestry Authority & 2 others,** Justice Byaruhanga Jesse Rugyema at page 12 stated that**,"** *if any dispute should arise as to whether or not any area is included in a forest reserve or village forest, the decision of the commissioner surveys and mapping shall be final and a certificate under his or her recording the evidence shall be admissible in evidence in any court of law"* - 17. For an admission to be admitted by Court, a Party must demonstrate that the admission is unambiguous, clear, unequivocal and positive. Where an alleged admission is not clear and specific, it may not be appropriate to take recourse under the

legal provision as this was stated by Justice Tuhaise in the Court of Appeal case of **Nevia Company Ltd v Biersdorf AG CACA No.355 of 2019.**

- 18. Accordingly, the Judge's discretion to grant judgment on admission of facts under the law is to be exercised only in plain cases where the admissions of fact are so clear and unequivocal that they amount to an admission of liability entitling the plaintiff to judgment as this was the position in the case of *Cassam v Sachania [1982] KLR* - 19. **In Supreme Court Civil Appeal No.17 of 2010 National forestry Authority vs Kiwanuka Sam at page 72-73 court** observed the conduct of the executive director seeking for the cadastral records of Kyewaga forest reserve from the commissioner surveys and mapping which confirms that the respondent NFA was bound to the guidance of the commissioner surveys and mapping. - 20. According to the evidence on record, the Report of Commissioner Surveys and Mapping in HCCS 885 of 2017 and HCCS 2917 of 2016 herein referred to as the main suit indicated that Kajjansi Forest reserve is comprised of Busiro Block 537 Plots

18,19,31 ,78 and 79 and the same Report reflected that the Kajjansi Forest reserve has no land on Busiro Block 405-406.

- 21. In submissions for the Applicant, Counsel submitted that in HCSS 885 of 2017 Court declared that Busiro Block 405-406 Plot 1344 that was declared not to be part of Kajjansi Forest Reserve arises from the same Plot 1093 and the suit land Plots 3119,1050,1521,1070,1333,1339,1340,1342,1346,1351 and 1352. - 22. This Honorable Court had an opportunity of looking at the Area Land Schedule and the Copy of the Judgement in HCSS No.855 of 2017 at Pages 10 and exhibited copy of the Kalamazo of Busiro Block G537,( primary survey record ) from the office of surveys and Mapping ,surveys started in 1950s under the colonial government and Plots 1-17 are in the names of private individuals, the forest reserve was plotted as Plot 18 and called the 'forest department" and Court is in agreement with the commissioner surveys and mapping that the entire Block G537 is not a forest reserve but rather portions of it and that is Plots 18,19,31 ,78 and 79.

- 23. The Applicants have Certificates of Titles which have not been challenged to have been fraudulently procured, I find it that they possess valid Certificates of Titles. - 24. *In Supreme Court Civil Appeal No.005 of 2003, Attorney General vs Henely property developers ltd* Supreme court emphasized section 50 of the RTA which states that *"no certificate of title issued upon application under this Act shall be impeached or defeasible by reason or on account of any informality ……'* - 25. This Honorable Court therefore finds this ground of Discovery of new Evidence in the affirmative and further finds that the Respondent made an admission on the expert opinion of the Commissioner for Surveys and mappings to which they are bound.

## *Mistake or manifest mistake or error apparent on the face of the record.*

26. The Applicants in their Affidavit in Support deponed under Paragraph 14 that there is an error apparent on the record. The Respondent objected to this in their Affidavit in reply.

- 27. Counsel for the Applicants submitted that the contradicting decisions in HCCS No.885 of 2017 and HCCS No.2917 of 2016 is mistake that warrants Review of HCCS No.2917 of 2016. - 28. This Honorable Court notes that HCCS No.885 of 2017 was decided earlier before HCCS No.2917 of 2016. Further this Court noted that HCCS No.885 of 2017 dealt with the suit subject matter and determined that the suit-land did not constitute Kajjansi Forest Reserve. - 29. However, Court through HCCS No.2917 of 2016 later resolved that the Suit-Land formed part of the Kajjansi Forest Reserve yet the same had already been dealt with in HCCS No.885 of 2016. - 30. This Court finds that upon the High Court in HCCS No.885 of 2017 deciding that the Suit-Land didn't form part of the Kajjansi Forest reserve, it was barred from further interfering with the subject matter that it had already dealt with per Section 7 of the Civil Procedure Act which states that *"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same*

# *title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court"*

- 31. The right procedure that NFA would have adopted would have been to appeal against the decision in HCCS No.885 of 2017 which actually was never done. - 32. This Honorable Court notes that HCCS No. 2917 of 2016 dealing with the subject matter that had already been dealt with in HCCS No.885 of 2017 is a mistake that warrants review of Civil Suit 2917 of 2016. - 33. This honorable court therefore finds this ground of review in the affirmative.

#### *The ground of a sufficient cause;*

34. The Applicants deponed that they were never heard in Civil Suit No.2917 of 2017 yet the same affected their rights regarding their Land. The Respondent objected in the Affidavit in reply averring that the Applicants were not in any way denied a right to a fair hearing.

- 35. Learned Counsel for the Applicants relied on Article 21 of the Constitution of Uganda and submitted that all people are equal before the Law. - 36. This Honorable Court notes that the right to a fair hearing is one of the fundamental rights of people as this is well enshrined in Article 28 of the Constitution of Uganda. - 37. This Honorable Court has noted that HCCS No.2917 dealt with the Suit-Land and declared it to form part of Kajjansi Forest reserve. In the same suit, the Applicants were not party and it has appeared to me that their rights were also affected in the same suit yet they weren't heard. - 38. It is on that basis therefore that this Honorable Court finds that the Applicants not being privy to HCCS No.2917 of 2016 in which their rights in the suit land were affected was unfair as they were not heard yet they had an interest in the Land. - 39. In the premises, it is my finding that the instant application succeeds with the following orders; - i) Judgment in HCSS 2917 of 2016 is hereby set aside and reviewed.

- ii) On a Declaration on whether the Suit-Land Busiro Block 405-406 1689, 3119, 1050, 1070, 1333, 1339, 1340, 1342, 1346, 1521, 1351, 1352 and Busiro Block G537 Plots 287, 290, 296, 317, 319, 502 and 503 form part of Kajjansi Forest Reserve which was an issue in Civil Suit No.2917 of 2016, this Court finds that it would be an abuse of Court process for this Court to order that this issue be tried denovo or afresh yet the Respondent admitted to be bound by the Report of the Commissioner for surveys and mappings which report resolved that the Suit-Land doesn't form part of Kajjansi forest reserve and therefore this Honorable court finds that the suit-Land doesn't form part of the Kajjansi Forest Reserve. - iii) A permanent injunction against the respondent from trespassing, evicting and interfering with the quiet enjoyment and possession of the suit property by the Applicants. - iv) Each party to bear its own costs.

#### **I SO ORDER**


### **NALUZZE AISHA BATALA**

$$

### $16^{\rm th} \ / 01/2025$

Delivered Electronically via ECCMIS on 16<sup>th</sup>-day of

January 2025.