Sempebwa Nsubuga v National Forest Authority (Civil Suit No. 2917 of 2016) [2021] UGHCLD 179 (10 November 2021)

# **THE REPUBLIC OF UGANDA**

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

**[LAND DIVISION]**

**CIVIL SUIT NO.2917 OF 2016**

**(ARISING FROM CIVIL SUIT NO.771 OF 2015]**

**SEMPEBWA NSUBUGA MOSES::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF**

## **VERSUS**

**NATIONAL FOREST AUTHORITY::::::::::::::::::::::::::::::::::DEFENDANT**

# **BEFORE: HON. MR. JUSTICE HENRY I KAWESA**

## **JUDGMENT**

The Plaintiff brought this suit against the Defendant seeking *inter-alia* for;

- a) Declaration that the Defendant's agents trespassed on his land, - b) Permanent injunction, restraining the Defendant from further trespass, - c) Punitive and aggravated damage.

According to the plaint, the suitland is on **Block 333 Plot 882 at Entebbe; Block 405-406 Plot 1352 at Katale, Block 405-406 Plot 1441, 1442 at Katale and Block 405-406 plot 1333 at Katale.**

The brief facts of the case are that the suit land is situate on Kibuga Block Grant 537, Kajjansi. This land was last declared as Kajjansi Central Forest Reserve by the Forest Reserve (Declaration) Order of 1998.

However, at the time of this deceleration, the said Block Grant had been surveyed between 1954 and 1963 by the previous government and plots, 1-20 created therefrom. According to the cadastral records, only plot 19 of this land was made in favour of the Defendant and registered under the name of Uganda Land Commission and the rest of the plots were given to private individuals.

It is the Plaintiff's allegation that sometime in 2015, the Defendant, through its agents, unlawfully entered on the suit land and threatened to disposes him. That the Defendant's conduct has been continuous henceforth disrupting his activities.

In reply, the Defendant denied unlawful entry onto any of the Plaintiff's land. It is its claim that what the Plaintiff claims to be his land, forms part of Kajjansi Central Forest Reserve which is under its mandate by virtue of the **National Forest and Tree Planting Act, 2003, the Forests Ordinance, 1932; Legal Notice No.87 of 1932; and the Forest Reserves (Declaration) Order, 1998**.

Further, it set up a counterclaim against the Plaintiff, Wakiso District Local Government, Wakiso District Land Board, and the Commissioner Land Registration alleging fraudulent acquisition of the suit land, and it sought an order cancelling the certificates of title of the suit land, among other relief.

Only the Plaintiff filed a reply to the counterclaim, and he denied all the Defendant's allegations stated in the counter claim.

At the hearing, the Defendant did not turn up and the suit proceeded *ex-parte* against it under O.9 r17 of the Civil Procedure Rules SI 71-1. In proof of his case, the Plaintiff called three witnesses, that is; himself (PW1), Venansio Ojera, a Cartographer of Wakiso District; PW2 and Joseph K. Batume; the Staff Surveyor of Wakiso District; PW3.

After the trial, the Court conducted a *locus in quo* which was attended to by, among others, the Defendant's agent (*Omwacha Peter Egesa and Ecalu Lambert),* the acting Principal Staff Surveyor for the Commissioner Surveys and Mappings (Lutaaya J. Vianney) and the area residents with plots on **Block Grant 537.**

Given how technical the matter is and the fact that the Defendant did not enter appearance, Court at *locus* appointed Mr. Lutaaya J. Vianney as its expert witness and ordered him to compile and file a report about Block Grant 537 to assist it in making its decision on the matter. The expert complied and filed his report.

I must point out that the practice of appointing expert witnesses by Court is not established practice in our jurisdiction. However, in doing so, I was guided by Section 98 of the Civil Procedure Act Cap 71, which enables this Court *'to make such orders as may be necessary for the ends of justice…'.* I also found the practice of other Courts in other jurisdiction on the matter persuasive. For instance, in *State versus Home 171 N. C. 787, 88 S. E. 433 (1916),* Court held that;

*"it has been the immemorial custom for the trial judge to examine witnesses who are tendered by either side, whenever he sees fit to do so, and the calling of a witness on his own motion differs from this practice in degree and not in kind."*

## In *Jessner versus State 202 Wis. 184, 231 N. W. 634 (1930)*, it was held that;

*"the function of these experts is to aid in the administration of justice, by furnishing reliable and unprejudiced opinions upon a technical subject."*

The whole purpose of their creation and appointment is to promote the accomplishment of the very purpose for which Courts are established. As such, I shall consider the expert report of Mr. Lutaaya J. Vianney in administering the justice of the matter; but this shall be accorded a weight equal to that of any other expert witnesses is to furnish the judge with the necessary technical criteria for testing the accuracy of their conclusions so as to enable the judge to form their own independent judgment by the application of the criteria to the facts proved in evidence **(***Davie versus Edinburg Magistrates (1953) SC 34 at 40, Shosho versus Wainala & 3 Ors; HCT-04-CV-CA-2014/224)***.**

Counsel for the Plaintiff filed written submissions wherein he raised the following issues for consideration:

#### **Issue No. 1**

Whether the suit land is part of the Kajjansi Central Forest Reserve**.**

**Issue No. 2** Whether the Defendant trespassed on the Plaintiff's land **Issue No. 3** If so, Whether the Plaintiff suffered any damages **Issue No. 4**

Whether the Plaintiff is entitled to the remedies sought.

I shall adopt the above issue, but merge issue 3 and 4, given their interrelation. The issues now read as follows:

## 1. **Whether the suit land is part and parcel of the Kajjansi Central Forest Reserve.**

## 2. **Whether the Defendant trespassed on the Plaintiff's land**

## 3. **Whether the Plaintiff is entitled to the remedies sought.**

The Defendant, having showed up at *locus*, the Court permitted it to file written submissions, despite not having participated in the trial. In its submissions, the Defendant raised two issues, which are similar to **issue No. 1 and 3 above**.

As such, this Court consider them concurrently with the above stated issue.

In his written statement, PW1 testified that at the beginning of 2014, he purchased land from Nabbanja Victo, Annet Babirye and Mudde Ibrahim at different prices. These, he mentioned in particular as Block 405-406 Plot 287, 350-364 and 502; Block 405-406 Plot 1332-1353; Block 405-406 plot 1342. It is his evidence that the sale agreement was executed between himself and Sserunjogi Semakula Mark as the vendor who delivered to him the certificates of title and transfer forms which he had obtained from Nabbanja Victo, Annet Babirye and Mudde Ibrahim. *A copy of the sale agreement was attached to his witness statement as 'A'.*

It is his evidence also that prior to purchasing the aforementioned pieces of land, he made all the necessary due diligences which confirmed that the suit land belonged to the said properties. Only a copy of search statement in respect of Block 405-406 plot 1342 at Katale was adduced and was tendered as PID1.

Further that the became registered on the certificates of title for this land on the 24th day of January 2014. *A copy of the certificate of title of Block 405-406 Plot 1353* was adduced and admitted as PEXH3 in proof of this. There is a copy of a certificate of title *attached to his witness statement as 'C4' in respect of land in Block 405-406 Plot 1441 and 1442,* but was never admitted as evidence.

The Plaintiff also testified also that he occupied the suit land after the transfer and demarcated and subdivided it into several plots, which he sold to different persons including Lubega Farouq and Lumu Moses. *Only a copy of a certificate of title of land comprised in Block 405 Plot 1686 at Katale in the name of Kitooke Tonny was admitted as PEXH6.*

He stated further that sometime in 2015, the Defendant's representatives illegally entered onto his land threatening to disposes him and the transferees thereof, yet the Defendant only lawfully occupies Block 537 Plot 19 on the whole Block Grant which is registered in the name of Uganda Land Commission. *A copy of a search letter in proof thereof was attached as 'C'.* I also note that *copies of the titles of land allegedly sold to the aforementioned were only attached to his witness statement as annexture 'D1' and 'D2' respectively*.

PW2 testified that as the District Cartographer, he is the custodian of the Survey Register and responsible for the issuance of the Deed Plans, issuing of plot numbers and construction of the standard sheet that comprises of the coordinates, angles and plot numbers derived

#### **CS NO.2917-16-SEMPEBWA NSUBUGA MOSES VS NFA (JUDGMENT)**

from the information provided by the survey report. That these clearly help in locating the land and that he knows that a 'Grant' means that land was issued by the Governor by or on behalf of the Government of Uganda or controlling authority under the Public Land Act.

That Block Grant 537 is former public land, currently under the management of Wakiso District Land Board. That according to the records, plots 1-20 were surveyed off grant 537 between 18th August 1954 and 2nd July 1963. Further, that on the 16th of June, 1962, Plot 19 on Block Grant 537 was registered in the name of Uganda Land Commission and a certificate of title was issued.

Additionally, that this land is referred to as CL.467 and measures 20.03 hectares. It was also the testimony that the rest of the plots were issued in favour of the private individuals. *A copy of the cadastral print was admitted as PEXH8 in proof of this.* Further that that the Defendant does not own any other land except Grant 537 Plot 19 since there was no residue on the whole Grant. That the suit land titles were issued after the necessary due diligence and in line law.

PW3 entirely supported PW2's testimony. He testified that on the 12th day of July 2012 that Nabanja Victo, Annet Babirye and Mudde Bashir successfully applied for the conversion of customary interest into freehold. *Copies of this application were adduced, but only admitted as PEID2.*

That he knows that a Minister has powers to declare a particular piece of land; *a forest reserve, but only after he or she has made inquiries with the Local Authorities, the Area Land Committee, the District Land Board,* among others.

In addition to that, that whatever a dispute arises whether any area is a forest reserve, the decision of the Commissioner of Lands and Surveys is final. That he knows that on the 13th day of July 2012, Mr. Jacob Okech Latuke; the then District Staff Surveyor; Mpigi, issued a communique to Mr. Opal, the then Surveyor of the Defendant wherein he indicated that the Defendant only owns plot 19 on Grant 537. *A copy of the said letter was admitted as PEXH9.* Further that he knows that on the 2nd day of March 2015, the Executive Director of the Defendant wrote to the Commissioner of Surveys and Mappings, seeking for clarification on the status of Block Grant 537 and that on the 18th day of March 2015, a reply was made to the effect that Block Grant 537 is former public land on which the Defendant only has 20.03 hectares comprised in plot 19. *Copies of the respective letters were admitted as PID4, and PEXH9 and 10.*

Mr. Lutaaya J. Vianney's report is consistent with the testimony of PW2 and PW3. This shows that Kajjansi Central Forest reserve does not cover the whole Block Grant 537. That the said Block Grant 537 was surveyed in the 1950's and plots 2,4,16,17,21,30 and 35 among others. That Kajjansi Forest was chartered as plots 18 and 19, plot 31 was allocated to the Forest Department and plot 79 was charted for the Forest Camp in 1967 and further that Kajjansi Central Forest reserve has no land on Block 405 to 406.

Having laid down the above evidence, I shall address the issues at hand:-

#### **Issue No. 1**

Whether the suit land is part of the Kajjansi Central Forest Reserve**.**

#### **Plaintiff's submission**

Counsel for the Plaintiff defined a Forest Reserve, as per *Section 3 of the National Forest and Tree Planting Act, 2003 as;*

*"An area declared to be a central or local forest reserve".*

He further defined a Central Forest Reserve as per the Act,

as *"an area declared to be a Central Forest Reserve under Section 6 of the Act".*

This provides for the procedure before declaring a particular land a forest reserve; thus:

*Declaration of central reserve*

- *(1) The Minister may, on the advice of the Board-* - *(a) After consultation wit the local council and the local community in whose area the proposed forest reserve is to be located; and* - *(b) With the approval of Parliament signified by its resolution, by statutory order, declare an area to be a central forest reserve.*

Counsel further cited **Section 3 of the repealed Forest Act wherefrom the Forest Reserves (Declaration) Order, 1988**, was made. This has similar provisions as quoted above, to the effect that;

*The Minister may, by statutory order, declare any area-*

- *(a) To be a Central Forest Reserve; or* - *(b) To be a Local Forest Reserve; or* - *(c) To have an adequate forest estate, after instituting such inquiries, as he or she shall deem necessary.*

In view of the above, Counsel submitted that the Minister only has powers to declare a particular piece of land; a Forest Reserve after making such inquiries with the local area Land Committee, The District Land Boards, the Commissioner for Lands and Survey among others. That the rationale for making such inquiries is to know the different interests that exist within a particular area for Government compensation, if any.

He bolstered his view with the case of *National Forestry Authority versus Sam Kiwanuka SCCA No.17 of 2010*, wherein the *Supreme Court* made similar observations. Counsel then submitted that the Minister erred while declaring the whole Block Grant 537 as a Forest Reserve without making inquiries as per the above laws.

It was his argument that; had the Minister made inquiries, he would have discovered different results as indicated in the communication to the Commissioner for Lands and Surveys. He further cited the case of *Kasule versus The Attorney General (1971) EA 423***,** wherein it was held that; '*a statutory order made outside the powers of the parent Act is ultravice, to submit that the Forest Reserves (Declaration) Order, 1988 was made ultra vires the parent Act and thus void*.

Counsel for the Plaintiff also submitted that the Minister ought to have considered the communication of the Commissioner for Surveys and Mappings who communicated through Mr. Batume Joseph, the District Staff Surveyor that the Forest Department only owns plot 19 on Grant 537. In support of this, again he relied on National Forestry Authority versus Sam Kiwanuka (supra) to quote thus;

*"The Minister would have considered Section 11 of the Forests Act about boundaries of forests and the finality of the decision of the Commissioner of Lands where there is a dispute as to whether any area is included in a forest reserve."*

He further submitted that the Colonial and Successive Governments by whom the Defendant claims the entire Block Grant 537 would not have given out land to private persons after declaring the whole Block a forest reserve. He thus argued that the Plaintiff's titles are indefeasible in the absence of any proof of fraud by the Defendant.

In so doing, he relied on **Section 59 of the Registration of Titles Act Cap 230, and** *Adrabo Stanley versus Madira Jimmy HCCS No.24 of 2013***.** Also relying on the preceding case, Counsel for the Plaintiff submitted that the Registration of Titles Act creates a legal cadaster, which can be used to define property rights and their extent, support land transfer, provide evidence of ownership, and provide a basis of land administration and management. That by using a cadastre, one may trace the history of a particular piece of land. He thus submitted that the cadastre, admitted as evidence, clearly shows that the Defendant is one of the many owners on Grant 537, and thus it cannot claim the entire Grant. He thus urged me to find this issue in the affirmative.

#### **Defendant's submissions**

I response, the Defendant's Counsel submitted that the suit land falls inside Kajjansi Central Forest Reserve, which was gazzetted by **Legal Notice No.87 of 1932** and regazetted by **Statutory Instrument No.63 of 1998** with a total area of 297 hectares. That the suit land was vested in the Government historically under the administration of the Uganda Land Commission as public land and currently managed by the Defendant as a forest reserve.

# He cited the case of *Kampala District Land Board & Others versus Venansio Babweyaka & Others SCCA No.2 of 2007*, where Court held that;

"*A person cannot acquire customary ownership on public land vested in the Uganda Land Commission without applying to and being approved by prescribed authorities*".

Further, Counsel cited the **Public Lands Act of 1962**, to define Public Land as land vested in the Uganda Land Commission. It was his submission that the Plaintiff does not fall in any of the categories prescribed by the Public Lands Act, and consequently the **Land Act, Cap 227**, and the amendments thereunder.

Counsel for the Defendant also disputed that the Plaintiff's claim that their grant was issued by Mpigi District Land Board. He cited **Section 59(1)(a) of the Land Act**, which provides that District Land Boards shall hold and allocated land in the district which is not owned by any person or authority, and **Section 49(a) of the Land Act**, which is to the effect that the Uganda Land Commission shall hold and manage land in Uganda which is vested in the Government in accordance with the Constitution.

It was his submission that the suit land, as showed by the Plaintiff's evidence, was vested in the Uganda Land Commission and was surveyed and mapped as a forest reserve, and that the Government and the Defendant have been in possession thereof from time immemorial, which indicates that the same is not under the jurisdiction of Mpigi District Land Board.

Further, that the Plaintiff presented no proof that he acquired authorization reaffirming his claim in the suit land. It was therefore his submission that the Plaintiff could not be in lawful occupation of the suit land, which was public land in 1970 when the Public Lands Act was in force until 1998 when it was repealed by **Section 99 of the Land Act, Cap 227.** Further, that the Plaintiff had no valid claim in the suit land, and that the grant and approvals by Mpigi District Land Board was baseless and erroneous.

Additionally, Counsel for the Defendant also cited the legal framework of natural resources in Uganda, which mandates that such be held in trust for the people of Uganda by the Central or Local Government, to wit; **Article 237 of the Constitution of the Republic of Uganda, 1995, Section 44(4) of the Land Act, Section 8(1),(2)(a),(3),(5), and 29(1) of the National Forestry and Tree Planting Act, 20**03.

Premised on the said framework, Counsel submitted that the Plaintiff's certificates of title to the suit land were issued fraudulently illegally, and that they should not be left to stand as they offend the law. His submission of the legality of the certificates of title was bolstered with the proposition that an illegality, once brought to the attention of Court, cannot be allowed to stand, which was made in *Makula International vs Cardinal Nsubuga Wamala (1982) HCB 12***.**

## **Resolution** #### **CS NO.2917-16-SEMPEBWA NSUBUGA MOSES VS NFA (JUDGMENT)**

First, I note that the evidence of the Plaintiff as regards the actual land in dispute is conflicting. Whereas he pleaded in his plaint that the disputed land is comprised in Block 333 plot 882 at Entebbe; Block 405 – 406 plot 1352 at Katale, Block 405 -406 plot 1441, 1442 at Katale, and Block 405 -406 plot 1333 at Katale. Most copies of the exhibited certificates of title have land of different descriptions. This is also true in respect of his testimony as he stated that the disputed land among others, includes Block 405 -406 plot 1332 – 1353 at Katale and Block 537 plots 287, 350 -364 and 502. This is supported by a copy of a sale agreement he attached to his witness statement as "A". It is clear that, save for land in Block 405-406 plot 1353 (PEXH3), No certificates of title were exhibited for other descriptions of land he pleaded in the plaint. The copies of the certificates of title that were exhibited, but different from the land pleaded in the plaint, are the land comprised in Katale Block 405 plot 1683 (PEXH4), Block 405 plot 1685 (PEXH5), Block 405 plot 1686 (PEXH6), and Block 502 plot 502 (PEXH7).

Accordingly, to O.6 r7 of the Civil Procedure Rules, a party is not allowed to depart from his or her pleadings. As rightly suggested by Court in *James Kahigirizi versus Sezi Busasi (1982) HCB 148*, a departure may result from instances where the evidence given in different from pleadings. In view of the foregoing, I find that the Plaintiff departed from his pleadings. The case of *Lukyamuzi vs House and Tenant Agencies Ltd (1983) HCB 74*, is known for the proposition that when there is a departure, the possible remedy is to apply to have the offending part of the pleading struck out either before or at that hearing. However, that said, the Court in the same case also added that the position is different where the inconsistency is revealed in the course of the trial. Where this is the case, Court observed that it is proper to deal with such an irregularity while dealing with one of the issues framed. See also recently the case of *Ajok Agnes versus Centenary Rural Development Bank Ltd HCCS No. 722 of 2014***.**

It is evident that much of the Plaintiff's evidence constituted a departure from his pleadings. That said, no application was made by the Defendant to strike out the offending parts of the plaint, probably because the hearing proceeded *ex parte*. As such, I am constrained to deal with the irregularity while resolving this issue. Accordingly, I shall consider all the land in the exhibited certificates of title and the one pleaded in the plaint land to exhaust the issue between the parties, since it is not disputed that all this land forms part of Kajjansi Central Forest Reserve. In doing so, I have considered two things. First is PW1's testimony that PEXH1, PEXH2, PEXH4, PEXH5, and PEXH6 were created out of the land he pleaded in the plaint. In addition to this is the Defendant's admission under Paragraph 5 of its counterclaim that the land pleaded in the plaint is part of the alleged forest reserve. This admission thus renders the admission of PEXH1, PEXH2, PEXH4, PEXH5, and PEXH6 necessary. The land in Block 405 -406 plot 1332 -1353, is also included to this list, given that it has similar descriptions as of PEXH1, PEXH2, PEXH4, PEXH5, and PEXH6, and probably falls on Block 537 plots 287, 350 – 364 and 537. Second is that the land in Block 537 plot 287, 350 – 364 and 502, also falls on Block Grant 537, which is contested by the Defendant to wholly be a central forest reserve. A consideration of this land is, therefore, necessary for practical purposes if the dispute between the parties is to be exhausted. In summation therefore, the finding on this issue shall be based on whether the land in Block 333 plot 882 at Entebbe; and Block 405 – 406 plot 1352, Block 405 – 406 plot 1441, 1442, and Block 405 -406 plot 1332 -1353, Block 537 plots 287, 350 -364 and 502, are part of Kajjansi Central Forest Reserve.

It was disputed that the whole Block Grant 537 was allocated to the Forest Department under Legal Notice No. 87 of 1932 as Kajjansi Central Forest Reserve. According to PEXH10 and the expert's report, Block Grant 537 was surveyed and plots 1 -20 were parceled off from it between 18th of August 1954 and 2nd of July 1963, in favour of private individuals. It is thus a fact that the process of creating titles on Block Grant 537 commenced in 1954, way before the Public Lands Act of 1962, which the Defendant's Counsel premised his arguments, came into force. This was the time the colonial Government, by which Kajjansi Central Forest Reserve was created. The question, therefore is, **was the whole Block Grant 537 still Kajjansi Central Forest Reserve when certificates of title were created in four private individuals starting 1954?**

There seems to be no suggestion that legal notice No. 87 of 1932 was repealed prior the survey of Block Grant 537. The Section 4(1) of the Uganda (Independence) Order in Council of 1962 and Section 1(1) of the Uganda Act of 1964 appears to have spared the legal force of the said legal notice since they suggest that any laws which were in force by independence would continue to have force until a contrary law was made by mandated authority. Therefore, the force of the Legal Notice No. 87 of the 1932 continued throughout the 1950's when Block Grant 537 was surveyed.

At this point of resolving the question posed above, I am impressed to juxtapose Legal Notice No. 87 of 1932 with the Forests Reserves (Declaration) Order, 1998, which appears to have replaced it, by regazetting the whole Block Grant 537 as a central Forest Reserve. It suffices to state that when the said order came into force, there was already private persons with certificates of title on the question posed? I find the observations of the Supreme Court in **National Forestry Authority vs Sam Kiwanuka SCCA No. 5 of 2009,** instructive before stating it.

In that case, Court had to consider the validity of a certificate of title on part of Kyewanya Forest Reserve in view of the Forests Reserves (Declaration) Order, 1998. The title was for a portion of land the said order had degazzeted from the said forest reserve, having reduced it from 222.6 hectares to 209 hectares. In finding that the suit land was not part of the said forest reserve for which the Defendant was entitled to protect, having been degazzeted by the said order. Noteworthy is that the Court recognized two processes as regard forest land. The process of gazettement, and degazettement.

As regards the process of gazettement, Court first cited the provisions of Section4 of the Forest Act, under which the said order was made, to the effect that the "*Minister may, by statutory order, declare any area to be a central forest reserve…. After instituting such inquiries as he shall deem necessary*." To this, Court also added Section 7 of the same act and observe that:

*It is important to note that Section 7 requires that the Minister, before declaring an area a forest reserve, or amending the same, must notify the general public both in gazette and print media so that all interested persons have a chance to air their views. The local communities must be involved. This in my view has amplified on Section 4 of the Forests Act where the Minister was required to carry out inquiries.*

Having noted as such, it went further to emphasize the notion of the Minister making inquiries under the a fore stated Sections by stating that;

*Obviously, the Minister (Governor) in 1932 or 1984 while applying similar provisions must have instituted those inquiries and decided to keep the forest reserve at 222.6 hectares. Similarly, the Minister must have made inquiries in 1968 and found no reason to reduce the area of the forest reserve.*

As regards the process of degazettement, Court recognized that the Minister also has power to degazettement of a forest is completed by the Minister making an order after he/she has made the necessary inquiries. On the matter of making inquiries before degazetting part of the subject forest, it observed that:

*But inquiries by the Minister in 1998 would have revealed that in 1981, the Chief Forest Officer had advised the Commissioner for lands to excise that part of the forest reserve* *that did not have adequate forest cover, had poor soils, and was, marshy so that it could be available for other activities in the national interest.*

*The Minister would have been made aware of the process that had been commenced in 1981 resulting in the issuance of a certificate of Title, and certainly would have seen the advice of the Chief Forest Officer and the decision of the Commissioner of lands. The Minister would have considered Section 11 of the Forests Act about boundaries of forests and the finality of the decision of the Commissioner of Lands where there is a dispute as to whether any area included in a forest reserve.*

Section 11 states as follows:-

*11(1) "In any notices, rules or orders made under this Act, forest reserves and village forests and their boundaries shall be described in such manner as the person issuing such notices or making such rules or orders shall deem fit and expedite".*

*2. "If any dispute shall arise as to whether or not any area included in a forest reserve or village forest the decision of the Commissioner of Lands and Surveys shall be final, and a certificate under his hand recording such decision shall be admissible in evidence in any Court of law".* (Emphasis added).

Although there may not have been a formal dispute, and this provision can only be applied by way of analogy, the fact that a title had been issued based on a survey by the Commissioner of Lands and Surveys must have been taken into account by the Minister.

On the matter of Forests Reserve (Declaration) Order, 1998, which had degazzeted part of the subject forest, on the assumption that the Minister had followed all the due process, Court noted that:

*Once Statutory instrument No. 63 of 1998 was gazette, it became part of the law of Uganda… The High Court and Court of Appeal had to judicially notice the Statutory Instrument and it remained valid law until challenged successfully in Court. As pointed out above the suit land was not a forest reserve once it was left out by the statutory instrument. It is true, that before it was degazzeted in 1998, the suit land was technically, part of the Kyewaga Forest Reserve. But clearly the process had been put in motion by the Forestry Department, the Commissioner for Lands and surveys, and* *the Uganda Land Commission to excise it from the Kyewaga Forest Reserve by issuing a certificate of title. The process could only be completed by the Minister who was empowered to issue the necessary order after he had made necessary inquiries. Until the Minister did so, the land had to remain a forest reserve, even though it had a certificate of Title. The process which had commenced for it's degazzetlement may be considered a pending matter in terms of Article 280 of the Constitution.*

From the above observations, the first particular proposition which I can draw can be narrowly stated. The existing law in 1932, under which legal Notice No. 87 of 1932 was made, and Forest Act of 1947 Cap. 146, and under which the Forests reserves (Declaration) Order, 1998 was made, envisaged that the process of gazetting land as a forest reserve is commenced by the Governor/Minister making the necessary inquiries, then notifying the general public both in the gazette and print media so that all interested persons have a chance to air their views, and completed by Minister issuing a Statutory Order. In making the necessary inquiries, opinion of the Commissioner of Lands and Surveys of the necessary inquiries, opinion of the Commissioner of Lands and surveys of the fact that a titles have been issued must be taken into account as final.

Obviously, Governor in 1932 must have instituted inquiries and decided to gazette the whole Block Grant 537. That said, there is no indication that the Minister instituted any such inquiries in 1998 or took into account the opinion of the Commissioner of Lands and surveys of the fact that titles had been issued by private individuals in the 1950's on the same before declaring the whole Block Grant 537 as Kajjansi Central Forest Reserve. Nevertheless, the said Block had already been gazette as a forest reserve by Legal Notice No. 87 of 1932. It was therefore, not necessary for the Minister to make inquiries for the regazzement. The only inquiries necessary would have been for degazetting, which takes me to the second proposition.

From the observations of the Supreme Court, the second particular proposition which I can draw and adequate for disposing of this issue can be narrowly stated also. The Forest of 1947 Cap. 146, under which the Forest Reserves (Declaration) Order, 1998 was made, envisaged that the process of degazetting a forest reserve would commence by Forest Department, the Commissioner for Lands and Surveys and the Uganda Land Commission issuing of a certificate (s) of title, and be completed by the Minister issuing a Statutory Order after he or she has made the necessary inquiries, and taking account of the finality of the opinion of the Commissioner of Lands and surveyors of the fact that a title or titles had been issued.

In this case, it is apparent that the process of degazetting part of Block Grant 537 commenced when the said Block was surveyed by the Commissioner of Lands and Surveys between 1954 and 1963 and the titles created and issued to private individuals. The term apparent is used because there is no indication that other entities say the Forest Department and the Uganda Land Commission, participated in the said process. To this is added the fact that the said process has never been completed by the Minister issuing a Statutory Order degazetting part of the said Block. Since no statutory Order has ever been issued for such purpose, I find the submission of Counsel for the Plaintiff that the Minister need to make inquiries and take account of the opinion of the of the Commissioner of Lands and Surveys of the fact that titles had been issued glossly awkward.

To this end, I find also that *"until the Minister did so, the land* (whole of Block Grant 537) *had to remain a Forest Reserve, even though it had a certificate of title* (or certificates of title)*. The process which had commenced for its degazettement (apparently) may be considered a pending matter in terms of Article 280 of the Constitution."* (*Supreme Court in National Forestry Authority versus Sam Kiwanuka S. C. C. A No.5 of 2009***).**

Before concluding on the issue, suffice to take note of the legal status of the **Forests Reserves (Declaration) Order, 1998.** It should be noted that this was made under the **Forests Act Cap. 246, Laws of Uganda, 1964**. This Act was revised in 2000 to become the **Forests Act Cap.146**, Laws of Uganda 2000. However this revision did not mean a repeal of the said Act and Order. As such, the said **Order** remained valid notwithstanding the revision of the parent Act in 2000. However, it should be notedthat the parent Act was repealed by **Section 96(1)(a) of the National Forestry and Tree Planting Act, 20**03. That said, the force of the **Forests Reserves (Declaration) Order, 1998,** was saved by **Section 96(2)** of the same Act until it may be revoked by a subsequent statutory instrument. It means, therefore, that the **Forests Reserves (Declaration) Order,** 1998, still applies as regards the position of the whole Block Grant 537. This Court therefore is enjoined to give effect to this order, rather than to disregard the same since it is part of the laws of Uganda. The proper course to take is to take judicial notice of it because it is still *"valid law until challenged successfully in Court."* (*Supreme Court* in *National Forestry Authority versus Sam Kiwanuka S. C. C. A No.5 of 2009***).**

In view of the above observations, I find that the suit land forms part of Kajjansi Central Forest Reserve inspite of the existence of the exhibited certificate of title.

This issue is thus found in the affirmative.

### **Issue No.2:**

# Whether the Defendant trespassed on the Plaintiff's land

According to *Justine Lutaaya versus Stirling Civil Eng. Ltd SCCA No.11 of 2002* (*cited by Counsel for the Plaintiff*), *trespass to land is committed when one makes an unauthorized entry upon another's land and thereby interferes with his or her lawful possession*.

One's entry is unauthorised if it is made without permission of the Plaintiff or law/that the Defendant has no interest in the suit land. **(***Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd CACA No. 4 of 1987***).**

Further, since trespass to land is a possessory action, the Plaintiff must also prove interest in the land (*Adrabo Stanley versus Madira Jimmy supra***).**

The entrance onto the suit land was not denied by the Defendant in his written statement of defence, but it contended under paragraph 6(a) and (b) of its written statement of defence that the suit land is a Forest Reserve in which it has interest to protect by virtue of **the National Forestry and Tree Planting Act, 20**03.

In view of the finding on issue one above, I find that the Defendant's entrance thereon was permitted under the law **(See Section 5(1) of the National Forestry and Tree Planting Act, 20**03).

The Plaintiff's claim of trespass to the suit land against the Defendant appears strong by virtue of his possession of certificates of title. The claim is bolstered by **Section 59 of the Registration of Titles Act cap 230,** which provides that a certificate of title is conclusive evidence of ownership (interest) of the land prescribed thereunder.

However, I have found that the suit land forms part of Kajjansi Forest Reserve much as the Plaintiff has Certificates of Title on it. It is therefore my considered opinion that the proposition based on Section 59 of the Registration of Titles Act; that certificate of title is conclusive proof of ownership in land is true, only in the absence of contrary factors subordinating it to other

### **CS NO.2917-16-SEMPEBWA NSUBUGA MOSES VS NFA (JUDGMENT)**

interests. In other words, since the suit land is forest land, a property of the people of Uganda held in trust by the Government or a Local Government for their common good **(See Section 5(1) of the National Forestry and Tree Planting Act, 20**03), public interest supersedes the Plaintiff's interest; and this can only be displaced only after the prescribed procedures of the law, as set out above, have been duly followed.

In the circumstances therefore, I find that the Plaintiff's interest in the suit land, by virtue of certificates of title is insubordinate to the Defendant's interest. In the result, I find that the Defendant did not trespassed on the suit land. This issue is thus found in the negative.

### **Issue No.3:**

Whether the Plaintiff is entitled to the remedies sought.

The finding on issue one and two automatically disposes of this issue in the negative. In conclusion, of the matter therefore, the suit is dismissed for the reasons expressed above. Each party shall bear its own costs.

I so order.

………………………………. Henry I. Kawesa **JUDGE** 10/11/21 10/11/2021: Nagemusi for the Plaintiffs Plaintiff not in Court. Defendants are absent.

Court Matter is for Judgment. Judgment delivered to parties as above. Right of appeal explained.

……………………………….

Henry I. Kawesa

# **JUDGE**

10/11/21