Ochieng and 3 Others v Attorney General and Another (Civil Suit 934 of 2004) [2021] UGHCLD 483 (13 December 2021)

## 5 **THE REPUBLIC OF UGANDA**

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

### **LAND DIVISION**

### **CIVIL SUIT NO. 934 OF 2004**

- **1. LUCY OCHIENG** - 10 **2. GRACE OCHIENG :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS** - **3. FRED OCHIENG** - **4. OJORE TOM OCHIENG (Administrator of the Estate of the Late Lorda Ochieng)**

#### **VERSUS**

### **1. ATTORNEY GENERAL**

15 **2. NATIONAL FORESTRY AUTHORITY :::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

### **BEFORE: JUSTICE IMMACULATE BUSINGYE**

#### **JUDGMENT**

The plaintiffs instituted this suit against the defendants seeking the following orders;

- a. General and special damages for trespass, conversion and malicious damage to - 20 property. - b. Vacant possession of the suit land or in the alternative compensation for deprivation of land. - c. Mesne profits - d. A permanent injunction against the defendants.

#### 25 **Background**

According to the amended plaint filed on the 26th day of May 2015, the plaintiffs claim that they are the registered proprietors of the suit land comprised in Leasehold Register Volume 1093 Folio 24 situate at Budomero, Bulange, Busiki, Iganga District. The plaintiffs acquired the lease on the 1/7/1980 from the Uganda Land Commission vide a Lease

30 agreement under reference No. 51365.

That an inspection on the suit land was conducted consisting of Mr. J. D. Muhimba (the Chairman and the then Provincial Commissioner for Forestry, Busoga Province) and the suit land was approved for grazing (Exhibit PE2). The plaintiffs further averred that they operate a ranching scheme under the name of Kabro Ranching scheme.

- The plaintiffs further pleaded that on the 7th 35 day of January 2004, the Acting Commissioner for Forestry Mr. J. Amwine wrote to the Resident District Commissioner misrepresenting that the suit land is a forest reserve and the 2nd defendant in conjunction with the 1st defendant's agents sent an eviction notice to the Manager of Kabro Ranching Scheme. That the District Forest Officer in company of policemen and other officers of - the 1st 40 defendant with a group of the locals of the area and commanded by the area Member of Parliament illegally harvested the plaintiff's maize grown on 400 acres.

The 1st defendant denied all the allegation and further averred that if the plaintiff was allocated the land, the whole transaction was by mutual mistake and thus an illegality. The 2nd defendant averred that the plaintiff's pleadings didn't disclose a cause of action.

Furthermore, the 2nd 45 defendant also averred that they do not grant authority to enter or carry out any activities in the Central Forest Reserves.

Court directed the parties to file a joint scheduling memorandum, and the following issues were agreed upon for trial: -

- a. *Whether the plaintiffs acquired the certificate of title lawfully.* - 50 *b. Whether the defendants trespassed on the suit land.* - *c. Whether the suit land at Budomero, Bulange, Busiki is part of Budunda and Bugaali Central Forest Reserves.* - *d. Whether there was malicious damage and conversion of the plaintiffs' property by the defendants.* - 55 *e. Whether the plaintiffs were deprived of the suit land by the defendants, and if so whether lawfully.* - *f. Whether the parties are entitled to any remedies.*

The plaintiff adduced evidence from two witnesses David Ochieng (PW1) and Okecho Livingstone (PW2) while the defendant adduced evidence from two witnesses i.e Dassan

60 Kiwula (DW1) and Ariho Julius (Dw2).

At trial, the plaintiffs were represented by **M/S Nangwala, Rezida & Co. Advocates** while the 1st and 2nd defendants were represented by the **Attorney General's Chambers** and the **Legal Department of the 2nd respondent** respectively. Counsel filed written submissions in respect of this case, which I have taken into consideration.

## 65 **Burden and standard of proof in Civil Cases.**

In civil cases, the burden of proof lies on the plaintiffs and the standard of proof is on a balance of probabilities.

# According to **Section 101(1) (2) of the Evidence Act Cap.6 Laws of Uganda**,

"*Whoever desires any court to give judgment as to any legal right or liability dependent*

70 *on the existence of facts, which he or she asserts must prove that those facts exist.*

*When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.*

**Section 102 of the Evidence Act** goes on to provide that *"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either*

75 *side and Section 103 provides that "the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that proof of that fact shall lie on any particular person"*

## **Resolution of issues**

## **Issue 1 and 3**:

80 *Whether the plaintiffs acquired the certificate of title lawfully & Whether the suit land at Budomero, Bugaali and Busiki is part of the Budunda and Bugaali Central Forest Reserve.*

Counsel for the plaintiffs submitted that due process was followed in the application for the certificate of title. Counsel further argued that PW1 (David Ochieng) husband of the

- 1 st and 2nd plaintiffs and father of the 3rd and 4th 85 plaintiffs) testified that the suit land used to be forest land but the Government decided to allocate it to people. PW1 further testified that he joined the Provincial Commissioner of Forests, the Acting Gombolola Chief (subcounty chief), Mr. John Ngobi and the Land Committee in the Inspection of the suit land. Counsel further submitted that PW1 testified that he was given a leasehold offer which - 90 he paid for and the leasehold agreement was signed between Uganda Land Commission and the registered proprietors of the suit land being the plaintiffs.

In addition, Counsel for the plaintiffs submitted that **Section 176 of the Registration of Titles Act (RTA)** provides that no action of ejection or recovery of land shall lie or be sustained against the person registered as a proprietor unless the exceptions under 95 section 176 of the RTA have been proved.

In conclusion, it was Counsel for the plaintiff's submission that the issue of lawful acquisition should not be raised except if the defendants' allegations fall under the exceptions in Section 176 of the RTA.

In reply, counsel for the 1st defendant submitted that if the plaintiffs were allocated the 100 suit land, the whole transaction was a mutual mistake and as such an illegality which is of no legal effect because the suit land has never been de-gazetted to allow any appropriation.

In further reply, counsel for the 2nd plaintiff submitted that the suit land comprised in LRV 1093 Folio 24 at Budomero, Bulange Busiki, Iganga District measuring approximately 205

105 Hectares forms part of Budunda and Bugaali Central Forest Reserve which were gazetted in 1965 as Local Forest Reserves under Statutory Instrument No. 186 of 1965 and regazetted as Central Forest Reserves in 1968 under Statutory Instrument No. 176 of 1968 and maintained as Central Forest Reserves by the Forest Reserves (Declaration) Order Statutory Instrument No. 63 of 1998. Counsel for the 2nd defendant further submitted that

the above was proved by the report dated 10 110 th December 2007 which was marked D3. Counsel for the 2nd defendant further submitted that according to Section 44 (4) of the Land Act as amended, the Government is not supposed to lease out or otherwise alienate any natural resources referred to in this section.

On the issue of the legality of the certificate of title, counsel for the 2nd defendant submitted

115 that the process of acquiring the certificate of title of the suit land was tainted with fraud since PW1 used a proxy called Moses Okware to sign for him during the application process and yet he told court that he was present during the entire application process. Secondly, counsel submitted that the land approved for the lease was 400 acres which is about 161.878 hectares and yet the certificate of title contains 205 Hectares among 120 others. Counsel prayed that in the spirit of Section 64 of the Registration of Titles Act,

since this transaction was tainted with fraud and the plaintiffs' title is defeasible.

#### *Decision*

Both Counsel submitted on issues 1 and 3 concurrently because they are related and I shall resolve the same in a similar manner. I read and considered the submissions of both 125 counsel and the authorities they relied on.

According to the record of proceedings and the pleadings on file, on 30th September 1977 KABRO Ranching scheme applied for a lease in respect of land situate at Budunda, Budomero and Bugaali Village Busiki Iganga District (Exh. P1) measuring approximately 1,500 acres for the purpose of ranching. Earlier on, that is 29th November 1976, an 130 inspection was conducted in respect of the suit land on the request of Kabro Ranching scheme (Exh. P2). The said inspection was conducted by the members of the Land Committee ( J. D Muhimba, Mukabire Kalande, D Kifama and A Mujinya) in the presence of John Ngobi ( Ag. Gombolola Chief), A Mukooli (Mutongole) Hajji Amis Kunya ( Mutaka) and Patrick Balaba (Resettlement Officer). On 27th August 1980, a lease agreement was 135 entered into between Uganda Land Commission (Lessor) and Luch Ochieng, Grace Ochieng, Fred Ochieng and Lorda Ochieng (Lessees) in respect of land at Budomero Bulange Busiki South Busoga Iganda Distict for 205 hectares (Exh. P4) for a term of five years from 1st July 1980. A certificate of title of tile in respect of Land comprised in Leasehold Register Volume (LRV) 1093 Folio 24 situated at Budomero, Bulange, Busiki 140 ,Iganga District was issued to Lucy Ochieng, Grace Ochieng, Fred Ochieng and Lorda Ochieng on 8th September 1980 for 205.0 hectares for a term of 49 years effective 1 st July 1980 ( Exh. P5). On 11th February 2004 an eviction notice ( Exh. P6) was issued by the Iganga District Forestry Officer (Kugonza James) to Mr. Ochieng David (PW1).

It is not in dispute that the plaintiffs hold a certificate of title to the suit land, what is in 145 dispute is whether the plaintiffs acquired the certificate of title lawfully? The plaintiffs and their evidence in court contended that the lease over the suit land was legal and it was legally obtained from Uganda Land Commission effective 1st July 1980.

As rightly put by Counsel for the plaintiff, according to **Section 59 of the Registration of Titles Act,** a certificate of title is conclusive evidence of ownership. However, the issue 150 at hand is whether the plaintiffs got the Leasehold interest on the suit land lawfully.

During cross examination, PW1 testified that at the time of purchase of the suit land, the land was a forest containing Mivule trees and other tree spices. PW1 also stated that before he obtained the lease, the suit land was inspected by the Provincial Commissioner of Forestry, Busoga Region. This essentially means that PW1 was aware that the suit

- land was forest prior to the acquisition of the lease by his wives (1st and 2nd 155 plaintiffs) and children (3rd and 4th plaintiffs). Since the plaintiffs acquired their certificate of title in 1980, the law applicable then was the Forests Act Cap.146 (**repealed**). According to **Section 3 of the Forests Act, Cap 146 (repealed),** *the Minister may by Statutory Order, declare any area to be a Central Reserve.* In respect of the above provision, according to the **first** - 160 **schedule of The Forest (Forest Reserves) (Declaration) Order SI No. 176 of 1968**, **Budunda** and **Bugaali** under Busoga District measuring approximately 0.41 square miles and 0.45 square miles respectively were gazetted as Central Forest Reserves and the said forest reserves were in Busiki County. The same Central Forest Reserves were regazetted by The Forest Reserves (Declaration) Order, SI No. 63 of 1998 which was saved - 165 by section **96 (2**) of the **National Forestry and Tree Planting Act, 2003.**

Section 13 of the Forests Act Cap 146, provided as follows: -

*"Except as may be permitted by rules made under this Act, no person shall (a) clear, use or occupy any land in a forest reserve for (i) grazing; (ii) camping; (iii) fish farming; (iv) the planting and cultivation of crops; (v) the erection of buildings* 170 *or enclosures; or (vii) recreational, commercial, residential or industrial purposes; or (b) construct or reopen any road, track or bridge in a forest reserve."*

PW1, testified that they were using the suit land for grazing cattle and growing maize. He also testified that they had constructed two permanent houses on the suit land. He did not adduce any evidence indicating that rules had be made authorizing the plaintiffs to

- 175 graze and cultivate on the suit land. The plaintiffs have not produced any evidence that Budunda and Bugaali were de-gazetted as a Central Forest Reserves. This implies that the plaintiffs acquired the certificate of title in an illegal manner. In addition, it is Kabro Ranching scheme which applied for the lease which was later on issued to the plaintiffs. The application for the lease and the lease offer are not in tandem. Since it has proved - 180 that the plaintiffs acquired a certificate of title in respect of land gazetted as Central Forest Reserves without exceptions under the then applicable law (The Forests Act Cap 146), their certificate of title was acquired unlawfully. I am alive to the provisions of section 176 of the RTA as cited by Counsel for the plaintiffs however, those provisions apply to certificates of title which have been lawfully obtained. - 185 Regarding whether the suit land at Budomero, Bulange, Busiki is part of Budunda and Bugaaali Central Forest Reserves, it should be noted that during cross examination by Counsel for the 2nd defendant, PW1 testified that he only found out that the suit land was a central forest reserve in 2009. However, as noted above Budunda and Bugaali were gazetted as Central Forest Reserves in 1968 by Statutory Instrument Number 176. PW1 190 further testified that when he went to inspect the suit land he noticed that it was a forest but didn't know that it was a Central Forest Reserve. Counsel for the plaintiffs in his submissions submitted that it is not in contention that the suit land is part of Budunda and Bugaali Central Forest Reserves (page 5 paragraph 4 of the plaintiffs submissions). - 195 Furthermore, PW1 first testified in examination in Chief that he saw a communication from Government inviting people to apply for land in different places in Iganga District including the suit land however, later on during cross examination by Counsel for the 1st defendant, he stated that he never saw any communication from Government calling for people to apply for leases on the suit land. - 200 According to the witness statement of Ariho Julius (DW2), paragraph 9, DW2 testified that the National Forestry Authority contacted UGASURV who surveyed and opened the boundaries of Bugaali and Budunda Central Forest Reserve and it was discovered that the suit land formed part of Bugaali and Budunda Central Forest Reserves. I have studied

the UGASURV report attached to the Joint Defendants' trial bundle and marked D3 where 205 in the conclusion, it was stated that "*Leasehold Register Volume 1093 folio 24 at Budomero, Bulange, Busiki, Iganga measuring approximately 205.0 hectares encroaches on Bugaali and Budunda Central Forest Reserves in such a way that the leasehold and the forest reserves occupy the same area."*

Whereas the plaintiffs are holders of a leasehold certificate of title for the suit land, it is 210 clear that this lease was issued to them in error since the suit land forms part of Bugaali and Budunda Central Forest Reserves and the same have never been de-gazetted to allow individuals to own the suit land.

Therefore, I find that the plaintiffs obtained the certificate of title for the suit land in error and unlawfully. Secondly, I find that the suit land forms part of Bugaali and Budunda

215 Central Forest Reserve.

**Issue No 2 and 5:** *Whether the defendants trespassed on the suit land and Whether the plaintiffs were deprived of the suit land by the defendants and if so whether lawfully.*

Counsel for the plaintiff submitted that in accordance with the testimony of PW1 and PW2, the agents of the 2nd defendant carried away loads of trees in cars from the plaintiffs' suit 220 land for one month following the eviction.

Counsel for the plaintiff further submitted that the defendants without the plaintiffs' consent and without due regard to legal processes of compulsory acquisition of land by Government, took over the suit land which amounts to trespass.

In reply, counsel for the 1st defendant submitted that there is no evidence that the 2nd defendant's agents trespassed on the suit land since the 2nd 225 defendant is mandated to preserve and protect forest reserves. On the other hand, Counsel for the 2nd defendant argued that the 2nd defendant's defense against the action of trespass is that the 2nd defendant had the right of possession of the land at the time of the alleged trespass since under **Section 54 (1) (a) of the National Forestry and Tree Planting Act,** the 2nd 230 defendant is mandated to develop and manage all central forest reserves in Uganda. Counsel further stated that the eviction notice issued by the 2nd defendant was part of management of the said forest reserves. Counsel for the 2nd defendant also submitted that according to the evidence of DW2 (Ariho Julius), and his letter to the plaintiffs dated 18/8/2005, there was no evidence of 235 forceful eviction from the suit land. Furthermore, Counsel submitted that PW1 told court that he did not witness any destruction crops and animals but rather, he was told and as such the plaintiffs have failed to prove their allegations of forceful eviction from the suit land which forms part of a Central Forest Reserve.

### *Decision*

240 **Section 52 (1) of the National Forestry and Tree Planting Act** *establishes the National Forestry Authority* and according to **Section 54(1) (a)** one of the Authority's responsibilities is to develop and manage all central forest reserves.

Furthermore, according to **Section 32 (1) of the National Forestry and Tree Planting Act;** provides that:-

245 **"**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;*

*(a)Cut, take, work or remove forest produce*

*(b)Clear, use or occupy any land for-*

250 *(i) Grazing*

*(ii) Camping*

- *(iii) Livestock farming* - *(iv) Planting or cultivation of crops* - *(v) Erecting of a building or enclosure; or* - 255 *(vi) recreational, commercial residential, industrial or hunting purposes…"*

Section **32 (1) of the National Forestry and Tree Planting Act, 2003** is equivalent to Section 13 of the **Forests Act Cap 146 (repealed),** which equally prohibited the clearing, use or occupation of any land in a forest reserve for purposes of grazing, camping, fish farming, planting and cultivation of crops, the erection of buildings among others unless

260 permitted by the rules. Since the plaintiffs acquired the leasehold title in 1980, the law applicable to them is the Forests Act Cap 146.

**9 |** P a g e

According to **Exhibit P6, Kugonza James (the District Forest Officer)** issued an eviction notice to PW1 for illegally cultivating and grazing animals on the suit land which forms part of the suit land. PW1 testified that he acquired the suit land for his two wives

- (1st and 2nd plaintiffs) and children (3rd and 4th 265 plaintiffs) such that they could operate a ranching scheme called Kabro Ranching scheme. PW1 further testified that he was growing maize on about 400 acres and grazing cattle on the suit land. According to section 13 of the Forests Act, Cap 146 (repealed) the plaintiffs carried out prohibited activities in central forest reserves. - 270 It has already been proved that the suit land forms part and parcel of Bugaali and Budunda Central Forest Reserves and as such the activities of Kabro Ranching Scheme which was operated by the plaintiffs were illegal. Therefore, in accordance with **Section 54 (1) (a) of the National Forestry and Tree Planting Act;** the 2nd defendants' agents were authorized to enter the suit land because they are mandated by law to manage all 275 central forest reserves which include the suit land.

According to the authority of *Justine E. M. N. Lutaaya vs Starling Civil Engineering Co. SCCA No.11 of 2002***,** trespass to land is premised upon interference with the possession of land. I must mention that one's physical presence on the land or use or de facto control of it does not amount to possession sufficient to bring an action of trespass as one is 280 required to have had an interest in the subject land.

In the instant case, as earlier mentioned, the Government of Uganda holds forest reserves among other natural resources in trust for its' citizens through National Forestry Authority (2nd Defendant). This is premised on the provisions of Article 273 (2) (b) of the Constitution which provides that "*the Government or a local government as*

- 285 *determined by Parliament by law, shall hold in trust for the people and protect, natural lakes, river, wetlands, forests reserves, game reserves, national parks and any land to be reserved for ecological and tourist purposes, for the common good of all citizens***"** This provision is re-echoed in section 4 (a) and (b) of the National Forestry and Tree Planting Act No.8 of 2003**.** The plaintiffs though registered proprietors, they 290 acquired their title in error and as such do not hold a legal interest in the suit land, therefore the 2 nd defendant who is the manager of all central forest reserves under section - **10 |** P a g e

54 (1) (a) of the National Forestry and Tree Planting Act of 2003, cannot be held to be a trespasser on land which is held under public trust.

Therefore, the 2nd defendants rightly and lawfully evicted the plaintiffs from the suit land 295 because the suit land forms part of Bugaali and Budunda Central Forest Reserves. Secondly, I find that the agents of the 2nd defendant did not trespass on the suit land because they are mandated by law to manage forest reserves and furthermore, the plaintiffs do not have a legal interest in the suit land.

**Issue 4:** *Whether there was malicious damage and conversion of the plaintiffs'* 300 *property by the defendants.*

Counsel for the plaintiff submitted that it was PW2's testimony who told court that it is the agents of the 2nd defendant who knew whereabouts of the plaintiffs' property which included 2 three roomed permanent houses, maize planted on about 400 acres, 28 cows each valued at Ugx 300,000, 20 Mivule trees each costed at UGX 200,000 at the time, 305 20 rolls of barbed wire and 100 bags of maize which were all allegedly destroyed by the 2 nd defendant's agents.

In reply, counsel for the 1st respondent submitted that according to the letter of PW1 (David Ochieng) dated 24th November 2003 which was marked as exhibit D.1 in the joint defendants' trial bundle indicates that PW1 was appealing to the Resident District 310 Commissioner **(RDC**) of Iganga to prevail upon a one Musa Kalange and the area Member of Parliament (MP) Hon. Mpongo Asupasa who had chased away PW1's workers and appointed settlers to the suit land. Counsel stated that it is clear that Musa Kalange and the area MP are not agents of the 1st defendant. Furthermore, Counsel submitted that during cross examination, it was PW1's testimony that, it was the police,

315 Local Council 5 (LC5) and Local Council 1 (LC1) chairpersons who vandalized his far, however, during further cross examination PW1 told court that police was present at the farm supporting the LC1 when they were destroying his farm but when examined by court, PW1 testified that he did not know who took his cows and bags of maize but his people who were there told him that it was the LC1 chairman. It was counsel for the 1st 320 defendant's submission that according to the evidence on record, PW1 was not at the farm and such he could not have seen the police supporting the LC1 Chairman who was destroying his property.

In addition, counsel for the 1st defendant prayed that PW2's testimony be disregarded because he testified that he did not know or see what had happed to the cows or the 100 325 bags of maize in the store. Furthermore, counsel also submitted that PW2's testimony of seeing the police ferry trees from the suit land should be disregarded because it was not corroborated. Counsel for the 1st defendant invited court to consider DW1's (Ariho Julius) testimony who testified that he was deployed in Jinja Bunya Sector AS a Forest Supervisor in 2004 and his role was to oversee conservation of the forest reserves under the management of the 2nd 330 defendant. Counsel further submitted that during cross examination, PW1 reiterated that he found natural trees in the reserve some of which

- were Mivule trees and other spices of the trees which means that the trees which were sold by PW1 did not belong to him as alleged. Counsel therefore, submitted that the allegations against the 1st defendant's servants are misplaced and unfounded. Counsel for the 2nd defendant agreed and reiterated the submissions of counsel for the 1st 335 - defendant and stated that the plaintiffs have failed to prove the claims of malicious damage against the 2nd defendant's agents.

#### *Decision*

In the case of **Oketha Dafala Valente versus Attorney General HCCS No. 69 of 2004,**

340 **Justice Stephen Mubiru stated that, "**to constitute conversion there must be a positive wrongful act of dealing with the goods in a manner inconsistent with the owner's rights, and an intention in so doing to deny the owner's rights, or to assert a right inconsistent with them."

In the instant case, Okecho Livingstone (PW2) testified that the workers on the ranch 345 were chased away by the National Forestry Authority (NFA) officers. He further testified that he did not know what was stolen from the store and what had happened on the farm. Later one, he stated that he used to see cars ferrying trees from the Ranch but he did not know who was driving them or whom the owners of the cars were. PW2 later testified that the LC1 and LC3 officials were the ones cutting the trees. PW1 testified that it was the

350 area MP and the Police who cut down his trees and maize plantation. PW1 later testified

that he was not living on the farm and was merely told about these occurancies by PW2 and his people who were staying at the farm.

While referring to *East African Cases on the Law of Tort* by E. Veitch (1972 Edition) at page 78, in the case of **Oketha Dafala Valente versus Attorney General** (supra), 355 Justice Mubiru stated that, *an employer is in general liable for the acts of his employees or agents while in the course of the employers' business or within the scope of employment. This liability arises whether the acts are for the benefit of the employer or for the benefit of the agent. In deciding whether the employer is vicariously liable or not,*

*the questions to be determined are: 1. whether or not the employee or agent was* 360 *acting within the scope of his employment; 2. whether or not the employee or agent was going about the business of his employer at the time the damage was done to the plaintiff. When the employee or agent goes out to perform his or her purely private business, the employer will not be liable for any tort committed while the agent or employee was a frolic of his or her own.*

365 In the instant case the plaintiffs failed to prove that Musa Kalange and the area MP Hon. Mpongo Asupasa were employees of the 1st or 2nd defendant. Furthermore, the evidence of the plaintiffs' witnesses contains inconsistencies in the sense that both witnesses testified that they were not at the farm on the day the maize, trees and cows were stolen and it is not clear as to was ferrying goods from the suit land. It would be unjust to find

that police who are servants of the 1st 370 defendant are guilty of cutting down the trees on the suit land and yet the plaintiff witnesses did not witness this action. It also unclear as to took away the rolls of barbed wire and other items.

I therefore find that the plaintiffs have failed to prove on a balance of probabilities that the defendants maliciously caused damage to the plaintiffs' property.

### 375 **Issue 6:** *Whether the parties are entitled to any remedies*

Having found above that the suit land forms part of Bugaali and Budunda Central Forest Reserves and that the plaintiffs acquired their leasehold interest in the suit land illegally, the court dismisses the plaintiffs suit with costs to the defendants and the following declarations and orders are hereby made: -

- 380 1. A declaration that the suit land comprised in Leasehold Register Volume 1093 Folio 24 situate at Budomero, Bulange, Busiki, Iganga District forms part of Budunda and Bugaali Central Forest Reserves which were gazetted in 1968 under Statutory Instrument Number 176; - 2. A declaration that Budunda and Bugaali Central Forest Reserves having been 385 gazetted 1n 1968, no person could in 1980 obtain and hold a title in respect of the said Central Forest Reserves. Accordingly, the title obtained by the plaintiffs in respect of Leasehold Register Volume (LRV)1093, Folio 24, at Budomero, Bulange, Busiki, Iganga Disrict was obtained illegally and the certificate of title is null and void; - 390 3. A declaration that the registration of the plaintiffs as registered proprietors of LRV 1093, Folio 24 at Budomero, Bulange, Busiki, Iganga District, was effected in error as the land was not available for leasing;

4. An order directing the plaintiffs to hand over the owner's copy of the certificate of title in respect of LRV 1093, Folio 24 at Budomero, Bulange, Busiki, Iganga District,

395 to the Commissioner Land Registration for cancellation within 14 (fourteen) days from the date of this judgment.

> 5. An injunction retraining the plaintiffs and their agents, employees or successors from treating ay part of Budunda and Bugaaali Central Forest Reserves as belonging to them and from carrying out there on any activity prohibited by law;

- 400 6. The plaintiffs and their ranching scheme under the names of Kabro Ranching Scheme should vacate the suit land; - 7. The plaintiffs should remove from the suit land any livestock, buildings or enclosures which may have been erected and any crops which may have been planted on the suit land within one month from the date of this judgment; and - 405 8. The plaintiffs shall pay the defendants costs in respect of this suit.

## **I SO ORDER;**

**Judgment delivered at High Court, Land Division this 13th Day of December 2021.**

during ye $\overline{a}$

# IMMACULATE BUSINGYE

**JUDGE**

410