Wakilii

National Forestry Authority v Kiwanuka [2012] UGSC 13

Supreme Court · 2012 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal and cross-appeal from a Court of Appeal decision affirming liability for unlawful eviction but reducing damages
Decision
Both appeal and cross-appeal dismissed; Court of Appeal decision affirming the respondent's title and damages award upheld

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed the appeal and cross-appeal. The suit land had been validly excised and degazetted from Kyewaga Central Forest Reserve by SI 63 of 1998, so it was no longer a forest reserve when the respondent acquired registered title in 2005. The Minister had power under the Forests Act, read with the Interpretation Act, to amend a forest-reserve declaration provided statutory procedures were followed; this did not offend the public trust doctrine in Article 237, which is not self-executing. A statutory instrument remains valid law until set aside, and the NFA could not refuse to obey it on its own view of unconstitutionality. The respondent's title was unimpeachable absent fraud, and the Court of Appeal's damages award required no interference.

Facts

The suit land at Kyewaga, Entebbe, was originally part of the Kyewaga Central Forest Reserve (222.6 hectares), last declared in 1968. In 1981 the Chief Forest Officer advised that 13.6 hectares of poor, swampy soil be excised and released to the Uganda Land Commission for other economic uses; a certificate of title issued and the land was leased in 1983 to Sunshine Beach Properties Ltd for 49 years. By SI 63 of 1998 the reserve was reduced to 209 hectares, excising the 13.6 hectares. After several transfers, the respondent bought the land in 2005 for Shs 500,000,000, took registered title, and subdivided it into 76 plots for sale. In December 2005 the National Forestry Authority served an eviction notice alleging encroachment on the forest reserve and in January 2006 forcefully evicted him. The respondent sued for unlawful eviction and trespass and for a declaration that the land was not a forest reserve. The High Court and Court of Appeal found in his favour, the Court of Appeal reducing the damages.

Issues

  1. Whether the suit land remained part of the Kyewaga Central Forest Reserve or had been validly degazetted by Statutory Instrument No. 63 of 1998.
  2. Whether the Minister had power under the Forests Act to reduce or degazette an area already declared a forest reserve.
  3. Whether degazettement of part of a forest reserve was inconsistent with the public trust doctrine in Article 237(2)(b) of the Constitution.
  4. Whether the respondent's certificate of title to the suit land was impeachable.
  5. Whether the respondent was entitled, on cross-appeal, to a higher award of general damages for loss of profit and to exemplary or aggravated damages.

Orders

  • The appeal is dismissed.
  • The cross-appeal is dismissed.
  • The general damages and interest awarded by the Court of Appeal are upheld.
  • Costs awarded to the respondent/cross-appellant in this Court and in the courts below.

Key headnotes

Forest Reserves — Degazettement — Power of Minister to Reduce a Declared Reserve
The power conferred on the Minister by the Forests Act to declare a forest reserve carries, by virtue of the Interpretation Act, a corresponding power to amend, reduce or degazette such a reserve, provided the statutory inquiries and procedures are followed; nothing in the Act or the National Forestry and Tree Planting Act 2003 makes a declared forest reserve immutable.
Public Trust Doctrine — Article 237(2)(b) — Whether Self-Executing
The public trust doctrine in Article 237(2)(b) of the Constitution is not self-executing; it requires Parliament to enact operationalising law setting the criteria for protected areas, and it does not bar Government, acting under such law and in pursuit of sustainable development, from degazetting part of a forest reserve where the prescribed procedures are observed.
Statutory Instruments — Validity — Duty to Obey Until Set Aside
A duly gazetted statutory instrument becomes part of the law of Uganda and must be judicially noticed and obeyed until successfully challenged in court; a public authority cannot, on its own opinion that the instrument is unconstitutional, refuse to enforce it but must seek a declaration from the Constitutional Court under Article 137(3).
Registration of Titles — Indefeasibility — Bona Fide Purchaser for Value Without Notice
Under section 59 of the Registration of Titles Act the certificate of title of a bona fide purchaser for value without notice of fraud is indefeasible and cannot be impeached except on proof of fraud in which the registered proprietor participated.
General Damages — Loss of Profit — Land as an Appreciating Asset
Where a claimant retains ownership of land that is an appreciating asset, loss of projected profit on its sale is not a vital factor in assessing general damages; the proper measure is the inconvenience and anguish suffered, and an appellate court will not interfere with a trial court's exercise of discretion correctly applying these principles.
Exemplary and Aggravated Damages — Threshold of Oppressive or Malicious Conduct
Exemplary damages are penal and to be awarded sparingly, only for oppressive, arbitrary or unconstitutional conduct or a calculated pursuit of profit; aggravated damages require conduct of the defendant aggravating the claimant's injury, and neither is warranted where the defendant acted under a genuine, if mistaken, belief that it was performing its public duty.

Legislation cited (22)

  • Constitution of Uganda Article 237(2)(b)
  • Constitution of Uganda Article 137(3)
  • Constitution of Uganda Article 274
  • Constitution of Uganda Article 242
  • Constitution of Uganda Article 280
  • Constitution of Uganda Article 135(1)
  • Constitution of Uganda National Objectives and Directive Principles XIII
  • Constitution of Uganda National Objectives and Directive Principles XXVII
  • Forests Act (Cap 146) s.4
  • Forests Act (Cap 146) s.11
  • Land Act s.44(2)
  • Land Act s.44
  • National Forestry and Tree Planting Act 2003 s.7
  • National Forestry and Tree Planting Act 2003 s.8
  • Public Lands Act s.48
  • Public Lands Act s.26
  • Registration of Titles Act s.59
  • Interpretation Act (Cap 3)
  • Judicature Act s.41
  • Forest Reserves (Declaration) Order 1998 (SI 63 of 1998)
  • Rules of the Court of Appeal r.33(5)
  • Rules of the Court of Appeal r.33(3)

Cases cited (20)

  • Advocates Coalition for Development v Attorney General (Miscellaneous Cause No. 1 of 2004)
  • Waweru v Republic (2006) 2 EA 349
  • Makula International v His Eminence Cardinal Emmanuel Nsubuga (1981) HCB 11
  • UGANDA -VS- WANGUBO and 19 OTHERS (1977) HCN 220
  • Kasule v Attorney General (1971) EA 423
  • Aggrey Bwire v Attorney General and Judicial Service Commission (Civil Appeal No. 8 of 2010)
  • Commissioner for Customs & Excise v Cure and Deley Ltd (1962) 1 QB
  • Amooti Godfrey Nyakaana v NEMA & Others (Constitutional Petition No. 3 of 2005)
  • Musoke v Departed Asians Property Custodian Board & Another (1990-1994) 1 EA 419
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Waimiha Saw Milling Co Ltd v Waione Timber Co Ltd (1926) AC
  • David Sejjaaka Nalima v Rebecca Musoke (Civil Appeal No. 12 of 1985)
  • Strom v Hutchinson (1905) AC 515
  • Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180
  • Yoka Rubber Industries Ltd v Diamond Trust Properties Ltd (HCCS No. 367 of 2001)
  • Justin Alexander Watts v Bell & Scott WS Solicitors [2007] CSOH 108
  • JFK Zaabwe v Orient Bank Ltd & Others (Civil Appeal No. 4 of 2006)
  • Rookes v Barnard (1964) AC 1129
  • Esso Standard (U) Ltd v Semu Amanu Opio (Civil Appeal No. 3 of 1993)
  • Obongo v Kisumu Municipal Council (1971) EA 91
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