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Mugerwa v National Forestry Authority (Civil Appeal 8 of 2020)

Supreme Court · [2023] UGSC 56 · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal judgment affirming a High Court decision
Decision
Appeal dismissed; trial court's decisions and orders, including cancellation of title and eviction, upheld

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Holding

The Supreme Court dismissed a second appeal challenging concurrent findings that the appellant's leased land formed part of Mujuzi Central Forest Reserve. It held the Court of Appeal had properly re-evaluated the evidence, and that the lease granted by the Uganda Land Commission over forest reserve land for farming was illegal under the Forest Act Cap 146 and the Public Land Act 1969, which remained operative under Article 274 of the Constitution. Ground one was struck out for offending rule 82(1) of the Supreme Court Rules, and ground three was deemed abandoned because counsel argued a new ground without leave contrary to rule 98(a). The appeal was dismissed with costs.

Facts

In 1985 the appellant, on application to the Uganda Land Commission, was registered as proprietor of approximately 98.71 hectares at Byante, Kitunga, Kyanamukaaka, Masaka District, under a lease. He enjoyed quiet possession until 2006, when National Forestry Authority officials claimed the land formed part of Mujuzi Central Forest Reserve, gazetted from 1914 and last declared in 1998. The appellant sued for a declaration that the land was not a gazetted forest reserve at the time of leasing and for a permanent injunction restraining eviction. The respondent's defence asserted the land was within the gazetted reserve and that the certificate of title had been issued in error and was null and void, seeking an eviction order and cancellation. The trial court found the land was part of the reserve, the title acquired illegally and void, and ordered the appellant's eviction and surrender of the title for cancellation. The Court of Appeal upheld those findings.

Issues

  1. Whether the Court of Appeal, as first appellate court, failed to adequately re-evaluate the evidence and thereby occasioned a miscarriage of justice.
  2. Whether the suit land formed part of Mujuzi Central Forest Reserve and whether the grant of a lease over it to the appellant was illegal.
  3. Whether the Court of Appeal erred in condemning the appellant to costs after he had lawfully obtained a certificate of title from the Uganda Land Commission.

Orders

  • Appeal dismissed with costs of this Court and the Courts below.
  • The lower trial court's decisions and orders are upheld.

Key headnotes

Land & Property — Forest Reserves — Validity of a lease granted over gazetted forest reserve land
A lease granted by the Uganda Land Commission over land forming part of a gazetted central forest reserve, for farming purposes, is illegal because section 23 of the Public Land Act 1969 made the Commission's power to grant leases subject to the Forest Act, and section 13 of the Forest Act Cap 146 prohibited the grant of such land in a forest reserve.
Statutory Interpretation — Existing Law — Continued operation of pre-1995 legislation under Article 274
Pre-1995 legislation such as the Public Land Act 1969 and the Forest Act Cap 146 remains in operation after the coming into force of the 1995 Constitution by virtue of Article 274, construed with such modifications and qualifications as are necessary to bring it into conformity with the Constitution.
Civil Procedure — Memorandum of Appeal — Defective ground of appeal under rule 82(1)
A ground of appeal that merely alleges failure to evaluate evidence without setting forth concisely the points alleged to have been wrongly decided and the nature of the order sought offends rule 82(1) of the Supreme Court Rules and is liable to be struck out; the want-of-form saving in Order 6 rule 17 of the Civil Procedure Rules does not cure a ground that is fatally defective in substance.
Civil Procedure — Appeals — Arguing a ground not in the memorandum of appeal under rule 98(a)
A party may not, without leave of court, argue that the decision appealed against should be reversed on a ground not specified in the memorandum of appeal; where counsel substitutes an entirely new ground in submissions, the original ground is deemed abandoned and the substituted ground is incompetent.
Civil Procedure — Illegality — Illegality overrides all once brought to the court's attention
Where the underlying transaction is illegal, a court will not grant consequential relief such as compensation or alternative land, as to do so would amount to condoning an illegality.
Civil Procedure — Second appeal — Duty of a second appellate court regarding concurrent findings of fact
A second appellate court will not re-evaluate the evidence or question concurrent findings of fact by the High Court and Court of Appeal unless it is shown that those courts failed to evaluate or re-evaluate the evidence, or are proved to be manifestly wrong on findings of fact.

Legislation cited (14)

  • Forest Act Cap 146 s.13
  • Forest Act Cap 146 s.18
  • Public Land Act 1969 s.11(1)
  • Public Land Act 1969 s.23(1)
  • National Forest and Tree Planting Act 2003 s.95(2)
  • Constitution of Uganda 1967 art.108(3)
  • Constitution of Uganda 1995 art.274
  • Constitution of Uganda 1995 art.26
  • Constitution of Uganda 1995 art.28
  • Judicature (Court of Appeal) Rules and Directions r.30
  • Judicature (Court of Appeal) Rules and Directions r.33
  • Civil Procedure Rules O.6 r.17
  • Judicature (Supreme Court) Rules r.82(1)
  • Judicature (Supreme Court) Rules r.98(a)

Cases cited (12)

  • Santosh Hazati Vs Prushottam APpeal Case t{o.117 of 2OO1
  • Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
  • M/s United Engineers & Contractors Vs Secretary to Government A. P AIR 2013 SC 229
  • B Vs Nagesh & anor Vs Screenivasa Murthy (2O1Ol ArR 2O1O SCW 6184
  • Madina Begam Vs Shiv AIR 2016 SC 3554
  • Lutaya v Attorney General (Supreme Court Civil Appeal No. 10 of 2002)
  • Amooti Godfrey Nyakana v National Environmental Management Authority & Others (Supreme Court Civil Appeal No. 5 of 2011)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Makula International Ltd v Cardinal Nsubuga & Another (Court of Appeal Civil Appeal No. 4 of 1981)
  • Sinba (K) Ltd & Others v Uganda Broadcasting Corporation (Supreme Court Civil Appeal No. 3 of 2014)
  • Duncan Turyatunga & Others v Attorney General (Supreme Court Civil Appeal No. 5 of 2017)
  • Tito Buhingiro v Uganda (Supreme Court Criminal Appeal No. 1 of 2014)
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.