Wakilii

National Forestry Authority v Omuhereza Basaliza and 4 Others (Civil Appeal 15 of 2019)

Court of Appeal · [2020] UGCA 2154 · 2020 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First civil appeal from a High Court decision in a representative land suit
Decision
Appeal allowed; High Court judgment and decree set aside and the suit dismissed; forest reserve declared to cover 1,447.86 hectares with no excess land; freehold offer cancelled; sums paid to respondents through garnishee to be refunded

Observed later treatment

No later-treatment classification is recorded for this judgment.

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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, as no evidence of custom, occupancy history, or lawful/bonafide occupancy under the Land Reform Decree was adduced. The Court found that the trial judge wrongly decided the case on the appellant's failure to prove the forest reserve boundary rather than first resolving the respondents' locus standi. On the evidence, the surveyed Buhungiro Central Forest Reserve covers 1,447.86 hectares (per Boundary Plan BP1315 of 1950), the 1,020 hectares in the gazette being only an approximation, so there was no 'excess land'. The damages awards were unproved and fraudulent. The suit was dismissed.

Outcome

Appeal allowed; High Court judgment and decree set aside and the suit dismissed; forest reserve declared to cover 1,447.86 hectares with no excess land; freehold offer cancelled; sums paid to respondents through garnishee to be refunded

Facts

The respondents brought a representative suit claiming to be lawful customary owners of land at Katikara, Kyakabamba, Migongwe Parish, Kakabara Sub-county, Kyegegwa District, inherited from their grandparents from the 1940s. They alleged the National Forestry Authority, with police, unlawfully evicted them in August 2013, destroying property and crops. The appellant contended the land was part of the gazetted Buhungiro Central Forest Reserve. The parties agreed the reserve should be determined by the 1950 gazetting map/Boundary Plan BP1315. A surveyor's report indicated the physical forest cover was 1,447.86 hectares while the gazette stated approximately 1,020 hectares, generating a claimed 'excess' of about 427.86 hectares. The respondents adduced no evidence of custom, no graduated tax tickets, no records of births, deaths or long occupation. Four respondents had earlier, in 2008/2009, jointly applied for a single freehold title over 400 acres. Valuation reports assessed losses at over UGX 1.8 billion for 40 claimants. The High Court found for the respondents and awarded damages; the appellant appealed.

Issues

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

Orders

  • This appeal is allowed and the Judgment and decree of the High Court is hereby set aside and substituted with this Judgment.
  • The freehold offer issued to the 1st respondent and three others by Kyenjonjo District Land Board is hereby cancelled.
  • It is declared and held that Buhungiro Central Forest Reserve covers an area of 1,447.86 hectares as reflected on Boundary Plan Map Number 1345, and not approximately 1,020 hectares as indicated on the schedule to Statutory Instrument No. 63 of 1998.
  • The schedule in respect of KA/1, Buhungiro, Kabarole Series Sheet and 732 D.O.S Map Sheet Reference 67/2 BP 1345 be amended by deleting 1,020 hectares and substituting 1,447.86 hectares.
  • A copy of this Judgment be availed to the Attorney General and to the Minister responsible for forests.
  • The five appellants named in the plaint shall pay the costs at this Court and the Court below.
  • The respondents' advocates are ordered to file accountability of UGX 1,571,250,000 received through garnishee proceedings with the Registrar within 14 days; the money must be refunded by each person who received it.

Rules and key headnotes

Customary Tenure — Proof of Customary Ownership — Burden and Nature of Evidence Required
A party claiming customary ownership of land must prove the customary law of the relevant people or class of persons under which they occupy the land, including the custom or practice recognised and regulated by that group; mere assertion of long occupancy without evidence of custom does not establish customary tenure.
Burden of Proof — Civil Cases — Balance of Probabilities
In civil cases the burden of proof lies on the party who asserts the affirmative of the issue in dispute, and the plaintiff must prove their case on a balance of probabilities before the defendant is called to rebut it.
First Appeal — Duty of First Appellate Court to Re-evaluate Evidence
On a first appeal, the appellate court is under a legal obligation to re-appraise all the evidence adduced before the trial court and to draw its own inferences and conclusions on all issues of both fact and law, making due allowance for not having seen the witnesses.
Customary Occupancy — Land Reform Decree 1975 — Requirement of Written Permission
The Land Reform Decree 1975 abolished fresh customary ownership; between 1975 and 1998 a person could only occupy public land by customary tenure with written permission of the prescribed authority, and occupancy is only granted legal cover under the Land Act 1998 where the occupant was in continuous occupation for 12 years prior to the 1995 Constitution.
Central Forest Reserves — Boundaries — Effect of Approximate Gazette Acreage
Where a gazette notice describes a forest reserve's area as approximate, the physical boundaries defined by the survey and boundary plan prevail; a subsequent discovery that the physical forest cover exceeds the approximate gazetted acreage does not create 'excess land' outside the reserve.
Special Damages — Requirement of Strict Proof at Trial
Special damages must be specifically pleaded and strictly proved at trial by evidence that the loss was incurred and was the direct result of the defendant's conduct; a court cannot defer such proof to a post-judgment valuation report not produced in evidence and tested by cross-examination.
Illegality and Fraud — Court Will Not Sanction an Illegality Once Brought to Its Attention
Courts of law cannot allow themselves to be used as instruments of fraud and corruption; once an illegality or fraudulent claim is brought to the attention of the court it overrides all questions of pleading and cannot be allowed to stand.

Legislation cited (14)

Cases cited (9)

  • Begumisa v Tibebaga (Civil Appeal No. 17 of 2002)
  • Coghlan v Cumberland (1898) 1 Ch 704
  • Pandya v R (1957) EA 336
  • Ruwala v R (1957) EA 520
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Lugazi Progressive School & Another versus Serunjogi & Others [2001-2005] 2 HCB 121
  • Kampala District Land Board v Babweyako (Civil Appeal No. 2 of 2007)
  • Makula International Ltd v Cardinal Nsubuga (Civil Appeal No. 4 of 1981)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

National Forestry Authority v Omuhereza Basaliza and 4 Others (Civil Appeal 15 of 2019) [2020] UGCA 2154 (21 July 2020)
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.