Wakilii

National Forestry Authority v Omuhereza Basaliza & 39 Ors (Civil Appeal No. 45 of 2009)

Court of Appeal · [2020] UGCA 85 · 2020 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court decision in a representative civil suit concerning customary land ownership and eviction from a forest reserve
Decision
Appeal allowed; High Court judgment set aside and the respondents' suit effectively dismissed; sums paid under garnishee proceedings ordered refunded

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Holding

The Court of Appeal allowed the appeal, holding that the respondents failed to prove on a balance of probabilities that they were customary owners of the disputed land, having adduced no evidence of any recognised custom or written permission required under the Land Reform Decree 1975. The Court found that the entire area, comprising 1,447.86 hectares per Boundary Plan BP1315 of 1950, was part of Buhungiro Central Forest Reserve and that the gazetted figure of 1,020 hectares was a mere approximation; there was therefore no 'excess land'. The claim was characterised as a fraudulent land-grabbing scheme. The damages awards were unproven and set aside, and sums already paid were ordered refunded.

Facts

The respondents, suing in a representative capacity, claimed to be customary owners of land at Katikara, Kyakabamba village, Migongwe parish, Kyegegwa District, asserting their grandparents had occupied it from the 1940s. They alleged the National Forestry Authority, with police, unlawfully evicted them in August 2013, destroying crops, homes and property, and prayed for damages. The Authority contended the land fell within Buhungiro Central Forest Reserve, gazetted from 1932 onwards. Expert surveyors found a disparity between the gazetted approximate area of 1,020 hectares and the physical forest cover of 1,447.86 hectares per the 1950 Boundary Plan BP1315, the difference being treated as 'excess land' allegedly occupied by the respondents. Evidence showed four persons had earlier jointly applied for a freehold title over 400 acres of the same land in 2009 before the representative suit. The High Court found for the respondents and awarded damages, against which the Authority appealed.

Issues

  1. Whether the respondents were rightful, lawful and/or customary owners of the disputed land.
  2. Whether the suit land was part of Buhungiro Central Forest Reserve.
  3. Whether there was any 'excess land' outside the gazetted forest reserve.
  4. Whether the respondents were unlawfully evicted from the suit land.
  5. Whether the special, general and exemplary damages awarded by the trial court were properly proved and justified.

Orders

  • Appeal allowed and the judgment and decree of the High Court set aside and substituted.
  • Freehold offer issued to the 1st respondent and three others by Kyenjojo District Land Board cancelled.
  • Declared that Buhungiro Central Forest Reserve covers 1,447.86 hectares per Boundary Plan Map Number 1345, not approximately 1,020 hectares as in Statutory Instrument No. 63 of 1998.
  • Schedule to SI 63 of 1998 to be amended by deleting 1,020 hectares and substituting 1,447.86 hectares.
  • Copy of the judgment to be availed to the Attorney General and the Minister responsible for forests.
  • Respondents' advocates ordered to file accountability of UGX 1,571,250,000 received through garnishee proceedings within 14 days, the money to be refunded by each recipient.
  • The five appellants named in the plaint to pay costs in this Court and the court below.

Key headnotes

Customary Tenure — Proof of Customary Ownership — Requirement to Establish Recognised Custom
A claimant asserting customary ownership of land must prove the customary law or practice under which the land is held, including that the custom is recognised and regulated by a particular group or class of persons in the area; mere assertion of long occupation is insufficient.
Customary Tenure — Land Reform Decree 1975 — Written Permission Requirement
Between 1975 and 1998, the Land Reform Decree required customary occupants of public land to obtain written permission from the prescribed authority; in the absence of such permission, customary tenure acquired in that period cannot be established.
Burden of Proof — Civil Suits — Plaintiff Must Prove Title on Balance of Probabilities
In civil proceedings the burden of proof lies on the plaintiff to establish his claim on a balance of probabilities, and a party asserting the affirmative of a fact in issue bears the burden of proving it under sections 101 to 106 of the Evidence Act.
First Appeal — Duty of Appellate Court to Re-evaluate Evidence
A first appellate court is under a legal obligation to re-appraise the whole of the evidence and draw its own inferences and conclusions on issues of both fact and law, making due allowance for not having seen or heard the witnesses.
Forest Reserves — Gazetted Approximate Acreage versus Surveyed Boundary Plan
Where a gazette notice states only an approximate acreage of a forest reserve, the actual extent of the reserve is determined by the surveyed boundary plan; a disparity between the approximate figure and the surveyed area does not create 'excess land' outside the reserve.
Special Damages — Requirement of Strict Proof — Award Cannot Abide Subsequent Valuation
Special damages must be specifically pleaded and strictly proved at trial; a court errs in awarding special damages on the basis that the amount will abide a later valuation report not produced and tested in evidence.
Illegality and Fraud — Court Will Not Lend Assistance
Courts of law cannot be used as instruments of fraud and corruption and will not lend assistance to an illegality; once an illegality is brought to the court's attention it overrides all questions of pleading.

Legislation cited (13)

  • Land Act s.1(1)
  • Land Act s.3
  • Evidence Act s.101
  • Evidence Act s.102
  • Evidence Act s.103
  • Evidence Act s.106
  • Land Reform Decree 1975 s.3
  • Land Reform Decree 1975 s.4
  • Land Reform Decree 1975 s.5
  • National Forestry and Tree Planting Act 2003 s.52
  • Forest Ordinance (Cap 71, Revised Laws 1923)
  • Constitution of Uganda 1995
  • Rules of the Court of Appeal r.30(1)

Cases cited (10)

  • Fr. Narcensio Begumisa and Others v Eric Tibebaaga (Civil Appeal No. 17 of 2002)
  • Coghlan v Cumberland (1898) 1 Ch 704
  • Pandya v R (1957) EA 336
  • Ruwala v R (1957) EA 570
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Lugazi Progressive School & Another versus Serunjogi & Others [2001-2005] 2 HCB 12
  • Kampala District Land Board and George Mutale v Venansio Babweyaka and Others (Civil Appeal No. 2 of 2007)
  • Makula International Ltd v Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.