[2017] UGCA 144

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 0046 OF 2014

#### **BETWEEN**

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

#### **AND**

1. DUNCAN TURYATUNGA RUJOJO 2. AHIMBISIBWE FRED BAZIMBWA 3. BATAKA JOVIA (Suing on behalf of themselves and on behalf of 50 other WOOD FARMERS IN NAMANVE **CENTRAL FOREST RESERVE**

**EXAMPLE 20 EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE:**

(Appeal from the decision of the High Court of Uganda at Nakawa before Hon. Elizabeth Nahamya J, dated 2^nd December 2013, in Civil Suit No. 164 of $2011$ .)

CORAM: HON. MR. JUSTICE S. B. K KAVUMA, DCJ HON. LADY. JUSTICE ELIZABETH MUSOKE, JA HON. MR. JUSTICE PAUL K. MUGAMBA, JA

### **JUDGMENT**

This appeal arises from the Judgment and orders of the High (Elizabeth Nahamya J) dated 2^nd December 2013. The learned that the plaintiffs were licensees on the suit land and that Namarive Forest Reserve where the Plaintiffs were growing trees as licensees could not be degazetted without the plaintiffs being compensated. She ordered Government to avail to the plaintiffs 620 hectares of land in another reserve >

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within six mclnths and assist them to establish thcir plantations in a pro rata manner. She awarded the plaintiffs Compensation amounting to Shs. 40,176,000,0001- (forty billion, one hundrcd and scventy six million shillings) for the 620 hectares, General Damagcs of Shs.300,000,000/= (thrcc hundred million shillings), Exemplary Damages of Shs.150,000,000/= (one hundred and fifty million shillings), Interest on claims 4 and 5 at the rate of 25 % from the date of filing the suit until payment in full, as well as Costs of the suit.

The background to the suit was that in 7932 thc Govcrnmcnt gazcttccl lanc{ in Namanve as a forest reserve. This became known as Namanve Central Forest Reserve. The purpose was to boost private tree farming and forcst conscrvation. Consequerrtly, in 199'l privatc ttec farmers including thc respondents were licensed by the Government througrh the National Forestry Authority (NFA) to plant and manage private tree plantatiorrs in Namanve Central Forest Reserve. The respondents as liccncecs paid the required fees to the Authority and went ahead and plantcd trees. Somctimc in 2010 many of the trees were cut down and destroyed. 'l'he respondents alleged that part of the Namanve Forest Reserve was later on clegazetted and was proposed to bc' set aside for construct'ion of low-cost housi occupation by the occupants of Kiscnyi slums, Naguru an a Estates. They based this allegation on communications Minister for Water and Environment and the Minister for Development. The respondents further claimed that M/s Wem<l Consultant Planners and Surveyors Ltd were subsequently instructed to I \

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demarcate and survey the roads network in the Namanve Central Forest Reserve and that the said surveyors cut and destroyed the respondents' eucalyptus trees.

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'l.he respondents sued the Attorney General in Civil Suit No. 1,64 of 2011, at the High Court sitting at Nakawa and obtained Judgment in thcir favour with the orders related to earlier.

ln this court, the appellant was represented by Ms. Maureen ljang, State Attorney and the respondents by Mr. Kiiza Businge Fred.

Issues for determination were formulated from the grounds of Appeal and are as follows:

- Whether the learned trial Judge erred when she made a finding that the respondents are and/ or were licensees on the suit land. 1 - 2. Whcthcr or not the Lcarncd Trial Judge crred in law and fact in ordering the Government to avail the respond another Reserve within (6) months and furthc.r rata manner to re-establish their plantations. ents in lnap ro - \ 3. Whether or not the learned trial Juclge erred in ma ng, rrlard of Shs. 40,176,000,000f = (forty billion, one hundred and seventy six million shillings) as adequate compensation to the respondents for their destroyed trees covering 620 hectares.

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4 Whether or not the learned trial Judge erred in making an award of general damages to the responclents amounting to Shs.300,000,000/= ('l'hrcc hundred million shillings).

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- ⁵ Whether or not the learned trial Judge errcd in making an award of exemplary damages to the respondents amounting to Shs. L50,000,000/ - (One hundred and fifty million shillings) for the oppressivc ancl rrcgligcrrt acts of thc Agcncics of thc Govcrnmcnt. - Whether or not the Learned Trial Judge erred in awarding interest to the respondents on the compensation and general damages at the ratc of 25% p.a 6

## Issue L: Whether the learned trial ]udge erred when she made ^a finding that the respondents are and/or were licensees on the suit land.

plaintiffs had for various reasons ceased to be liccnsees on reserve and were therefore on the land illegally. She testimonies of thc witnesscs who allcprrcd to be ^I produced valid licences at the time the case was included; Ms. Maurecn ljang, for thc appellant, with rcgard to issuc I argucd that thc t t to thc CVCT \f I

Patricia Ruhangira Mpairwe, PW2, who produced an annual land license for one year from Dccember 2006 to Novcmber 2007, which had expired.

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- Grace E1isa Sentongo, PW3, appeared as a representative of the Church of Uganda but failed to present evidence in that regard. The licence he produced was for thc pcriocl betwecn August 1991 and August 1996. On its expiry they had applied for renewal. I'he appellant argued that as such the Church of Uganda had no licence at the time the suit was filed and heard. - Dr David Hafashimana, PW , rather than prescnt a licence made reference to a receipt of payment for outstanding ground rent in February 2013 - (exhibitPl-12a). He had no valid licence. - Ambrose Kyaroki, PWs, made reference to a document of payment for ground rent for 5 acrcs of land in Namanve Central Forest Reserve for 5 years in 2003. This was not a licence ancl if it existed it would have expired by the time of the suit. Also relied on was ^a document showing payment of licence fees for private tree farmers dated the 31't of January 2011. There was an application for renc,wal but no proof as to whether that licence was renewed. - Duncan Turyatunga, PW7, produced a permit un hhc claimed. It was in the name of his sister. He cla of attorney had been given to him. Turyatunga p to 2013, a document showing his land license fees of 22"d July 2008 to 2L't of July 2009. So at the time of the suit he was not in possession of a valid licence. There was no proof that the application for renewal of licence was accepted by NIrA. t t

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It was counsel's submission that the trial Judge erred when she held that the plaintiffs were licensees on the Central Forest Rcscrvc whcrcas not, and asked court to find that they were not licensees.

Mr. Kiiza, counsel for the respondents, in response to issuc 1, submitted that the plaintiffs are licensees in Namanve Forest Rescrvc. Hc rcferred cclurt to the record of proceedingrs, pointing out copies of licc.nces helcl by the plaintiffs as shown inP1,-74a andP1.-74b which wc're for 25 years.

The trial ]udge in her ]udgment dealt with the issue of whether the plaintiffs were liccncces. Shc dcfined a licencc to bc'a pcrsonal privilcgc or an authority to do a particular act or series of acts which would amount to a trespass without permission'. see Black's Law Dictionary, Fourth Edition, page 1.068. She also defined a licensee to be'a person who is given permission to enter land for some specified purpose(s) that would otherwise amount to trespass'. See Radaic v Smith (L959) 101 CLR 209 at p,222. She went on to recall that the 8 witnesses narrated to court how they came to be on the suit land. Court noted that it was the N orestry Authority that gave them the licencesf permits to they used to make payments for given periods of ti payments upon expiry of those periods. rn t a

There is clear evidence of the payments on record. Upon considerat'ion of the evidence on record, we observe that these persons were indced given permission by National Forestry Authority to enter onto the Namanvc Forest Reserve for a specific purpose which was to plant and grow trees. To

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say otherwise would mean they were trespassers which would fly in the face clf availablc eviclcncc.

Counsel for the appellant indeed singled out particular records of payments of some witnesses to disprove the legality of thcir licenccs. Wc note that she had presented this same argumcnt at trial which thc trial Judge rejected and held that; "I do not agree with the defetxce courxsel's argutnent that PWl, PW4, PWS and other plaintiffs were not licencees merely because they presented only receipts of payrnent. The plaintiff witnesses stated clearly in court that they tried their best to follow with National Forestry Authority in order to get their licences but this was ht utin".

We uphold the Judge's finding. There was no eviclence forthcoming from National Forestry Authority denouncing these respondcnts as bcing incleer{ trespassers. To the contrary all we observc is support/ [" National Forestry Authority as licensors and as such from l'or on the part of the trial Judge when she held that i werc Iicencec.s. We uphold her decision on that aspect. er \ onde

tt Issue 3: Whether or not the Learned Trial ]udge aking an award of Shs. 40,176,000,000/= (forty billion, one hundred and seventy six million shillings) as adequate compensation to the respondents for their destroyed trees covering 620 hectares.

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Regarding this issue counsel for the appellant argued that for the Attorney General to be held liable to compensate the plaintiffs it would have had to be proved that it was vicariously liable for the actions of the individuals who perpetrated the action of destroying the private tree plantations of the respondents.

In their testimonies the plaintiffs endeavored at all times to lay blame for the destruction of the entire 620 hectares of forest at the feet of the Government through the actions of surveyors sent by thc Uganda Land Commission. However, according to the defcndant, such claim was ^a blatant exaggeration on the part of the plaintiffs.

Counsel for the appellant referred to the evidence of witnesses like Jovia Bataka, Grace Elisa Ssentongo, Ambrosc Kyaroki and other plaintiffs wh<> statcd in thcir cvidencc that thc trccs wcrc dcst'roycd by unknclwn pcoplc on behalf of those who had certificates of title. They never saw thc, people who destroyed their trees and could not therefore identify the She also referred to the evidence of PW2 Patricia Ruhangi stified that she too never saw thc pcople who damaged hcr shc could say was that she received a report that destroyed the property. Dr. Hafishimana, PW4, destructicln of the tree plantations stated that his trees were destroycd by a group of landless peoplc. I the

It was submitted on behalf of the appellant that nonc of the exhibits that were tendered by thc. defendant, from DL to 23, was helpful in identifying,

thc pcrpctrators of thc cncroachmcnt ancl allcl;ed clestruction as scrvants of the appellant. It'was arguccl that there was a failurc not only to idcntify them but also to link them with the appellant.

ln that regard, it was submittcd on behalf of the appcllant that thc trial Juclge erred when she ordered Governmcnt to make a paymcnt of ovcr forty billion shillings or at all for the destruction that was carried out by people who wcre nevcr asccrtained as employccs of the appellant. l'he appellant also took issue with the awarcl of ovcr forty billion shillings because no evidcnce was led bcforc the trial court to prove that this was thc sum that was actually lost by the rcspondents. 'l'he plaintiffs failed to lcad any evidence before the trial court to prove and show that thcy hacl actually suffered the loss that was evcntually ordcrcd by thc court for thc defendant to atone for.

Counsel for the respondents in response submittcd that thc trial Juclgc correctly found that the Government'should cornpensate the tree farmers t<l the tune of over forty billion shillings for the trccs covcring 6 tarcs He referred court to the evidcnce of Bukenya Mohammcd hcs a financial evaluation report of the trees which were d CASC Counsel argued that the witness was able to ^s that cucalyptus trecs after harvcst will coppice 4 timcs view that the award given to75 tree farmcrs owning620 hcctarcs by thcn is on the lower side. He implored court to relate this case to that of AKI'M Lutaaya vs. Attorney General, Supreme Court Civil Application No. 1 of 8r tnu


2007 where one individual with 300acres was awarded special damag,es of around Shs. 700,000,000/= and general damages of Shs. 100,000,0001-.

In resolving issue No. 3, we will consider two sub issues as bc'low:

# (i) l4Ihether the appellant is vicariously liable for the respondents's claim.

The position of the law is that where a servant acting in the orclinary course of his or her employment does or omits to dcl an act which lcads to clamage or loss on part of another the employer or master is liablc. Sec Christopher Sebuliba a. Attorney General, S. C. C. A No.64 of 1992, Nyombi Clementia a. East African Railways [797a] HCB 35; Mugenzi a. Attonrcy General [19841 HCB 64.

The respondents alleged that M/s Wcmo Consultant Planners ancl Surveyors Ltd on being instructed to demarcate and survey the roads network in the Namanve Forest Reserve by the Uganda Land Commission cut and destroyed the respondcnts' eucalyptus trccs. It was argued that as a result the appcllant is Iiable for thc rcspondents' claim

All the plaintiff witnesses who gave evidence in rcspcct tting of their trees never witnessed the actual cutting. The from different sources about what transpired and wh<r by. t They refer to the perpetrators as either 'unknown s' or 'landless people'. Other witnesses mention they heard ^s persons like Twaha or Bukenya werc part of the people that cut their trees. '['hese

-+ persons were however never linked to the Government as agents or servants nor can it be said that the 'unknown persons' or 'veterans' or 'landless people' were servants or agents of thc appcllant. The evidcncc cln record does not support the respondents' claim that servants or agents of Government cut or destroyed the t.rees in issue. In that regard the appellant cannot be held vicariously liable for the actions of unknown pcoplc.

Similarly, the fact that the surveyors from M/s Wemo Consultant Plarrners and Surveyors Ltd went to the forcst rescrve to dcmarcatc and survcy thc roads network does not make them automatically liable for the allegred destruction. No one saw the surveyors cut the trees, nor was there cogcnt evidence placing them as the actual pcrpetrators. Howcvcr, there is evidence that these perpetrators were in hundreds of numbers (scc eviclence of DW1). There was c'vidence somewhere affiliated to privatc' consultants like Mr. Sebulime Ronnie of Ronnie Consult (see Exh. D14). Such evidence in no way indicates that the appellant was liablc.

(ii) Whether or not the Learned Trial |udge erred in making an award of Shs. 40,176,000,000/=(forty billion, one hundred and seventy six million shillings) as adequate compensation to the respondents for their destroyed trees covering

Having found as we have in (i) above that the a be held vicariously liable for the respondents' loss, it t rd <lf Shs. 40,176,000,000 as compensation payablc ot bc supported. nn

This award should be directed against the appropriate pcrpetrators, not the appellant in the circumstances.

## lssue 4: Whether or not the Learned Trial |udge erred in making an award of general damages to the respondents amounting to Shs. 300,000,000/- (Three hundred million shillings).

Counsel for the appellant submitted that at trial none of the plaintiffs attached any documentary proof as to how much money was being carned from the tree planting vocation and that they did not suggest how much money they were obtaining from the harvcsts. Counscl addcd that no eviclcncc was lcd to prove the income that was bcing earned by thc plaintiffs which should have bcen the basis for thc trial Judge to dctc'rminc the amount of damages to awarcl. It was hcr submissicln that as such, thc trial Judge lacked premise upon which court could have based an awarcl for general the damages of Shs. 300,000,0001-. She praycd court to find that thc' trial Judge misdirected herself with regarcl to the cvidencc and consequently prayecl that the order be overturned.

Counsc,l for the respondents in response invitecl court to considcr thcr autl-rorities of Hall Brothers Steamship Company Ltd vs. KB 748 CA, and Lutaaya vs. Attorney General, which bcing that court shoulcl rrot be pcrsuaclccl to trial Judge as to the arnourrt of damages mcrcly that if they had trieci the case in the first instance, esel 1, gist of a n tion \ ve given a ou

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lesser sum. It was submitted in that respect that in order to justify reversing the trial Judge on thc amount of the clamages, it would generally be necessary that this court should first bc convinccd that thc Judgc acted upon wrong principles of law. Counsel added that the amount awardcd by the High Court was neither too high nor too small in order, in the judgment of this court, to be an entirely erroneous estimate of damagcs to which thc plaintiffs arc cntitlccl. I-lc urgcd court to takc intcl accclunt thc fact that the eucalyptus trees involved wcre mature and covered 620 hectares of land. It was his submission that the Shs. 300,000,000/: awardcd was on the lower side.

As we have earlier found, the appellant was not proved responsible for thc destruction allegedly caused and therefore the appellant could not be liablc for the claims sought by the respondents.

This claim likewise fails.

Issue 5: Whether or not the Learned Trial ]udge erred in making an award of exemplary damages to the respondents amounting to Shs. 150,000,000/- (Ushs. One hundred and fifty million shillings) for the oppressive and negligent acts of the Agencies of the Government.

With respect to this issue counsel for the appellan Esso Standard (U) Ltd vs. Semu Amanu Opio, Appeal No. 3 of 1993 which relates to the rationale Needless to say it is to inflict deterrent and punitive t case of \ in its S

wake. Counsel clisagreed with the basis of that awarci by the trial Juclge on the ground that evidence shows that thc pcrpetrators of thc allcgcd trespass and destruction of the trces werc not agcnts of thc appcllant. Counsel submitted that the evidence presented through exhibits D1-D23 clearly shows that at all times the enforcement agencies being the regular police and the environmental police did cvcrything that could bc donc to protect the private developments including the privatc plantations of thc respondent. Counsel faulted the trial Judge for finding that the appellant should pay exemplary damages to the respondents for the oppressive and negligent acts of the agencies. Counsel argucd that this was a misdircction given the evidence on record. She urged court to so finc{.

Counsel for the respondent submittcd that an award of cxcmplary damages of Shs. 150,000,0001: only is on the low side given that the responcients lost their life savings.

The trial Judge when dealing with the exemplary damages consiclered thc rationale for awarding the said damages. ln her judgment she o

in the case of tort, the damages should be fixed so far as money can do so, to compensate the ai which has been suffered. This compensatiorr to coaer the loss suffered as well as the inju ury ced s t feelings and reputation. On the other hand, there is osl to the plaintiff, and on the other, there is the conduct of the defettdant. The latter may haae acted in a high handed, insulting, maliciorts or

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oppressive manner. But then as tort is a wrong done to the plaintiff, how would the court prevent a wrong done repeatedly in disregard of the plaintiff's rights? The notion arose that a further sum in damages could be meted out in form of punishment, or by making an example of the defendant's conduct. Hence this extra sum may be called punitive or exemplary damages" see Esso *Civil* Standard (U) Ltd v Semu Amanu Opio (Supreme Court *Appeal No. 3 of 1993).*

In principle we agree with the enunciation of the trial court regarding award of exemplary damages. Such an award is made when the defendant is responsible or answerable to some level as a master of the perpetrators who acted in a high handed, insulting, malicious or oppressive manner causing injury to the plaintiff. That additional sum in damages is therefore meted out in form of punishment, or making an example of consequences of the defendant's conduct.

Analyzing the rationale of awarding these damages, we find that the appellant does not fall in that category. As we pronounced ourselves earlier on, the perpetrators that destroyed the respondents' property were never shown to be agents/servants of the appellant award was therefore made in error.

Counsel for the respondents relied on the cases of $\mathbf{Mawonge}$ $\mathbf{y}$ $\mathbf{Mownge}$ AHER 367. General [1967] EA 17 and Rookes vs. Bernard 1964 Respectfully, this case is distinguishable from the two cases. In the cited

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cas(.s the perpet'rators were agents ancl/or scrvants of thc Government for which the Attorney General was vicariously liable. Thc cascs sought to bc relied upon don't apply to this case.

Thc order for excmplary damages is accordingly ovcrturnccl

Issue 2. Whether or not the Learned Trial |udge erred in law and fact in ordering the Government to avail the respondents 620 Hectares in another Reserve within (6) Months and further assist them in a pro rata manner to re-establish their plantations.

Counsel for the appellant argued that whereas the trial Juctge at pages 974- 976 vol.3 found that the Government can legally degazette forest land, thc judgc crred when shc procecded to make a determination that Government should, within 6 months, provide land in another rcscrve. Counscl argucd that government was under no such obligation whatsocvcr. Shc praycd that this court finds that the trial Judge misdirected herself with regard tcr thc cviclcncc olr recorcl ancl praycd further that the court answers this issue in the affirmative.

Counscl for the respondents in responsc argucd that Ccntral Forest Reserve was degazetted and the rcsponden 620 hectares destroyed by persons working for the Gov nts or agents. Counsel referred to the communications for Water and Environment and the Minister for an Urban Development. lt was his submission that the two Ministers later caused thc

Uganda Land Commission to instruct surveyors to go and initiate access roads. He said the exercise culminated in cutting the respondcnts' trees. He addeci that the Forest rcscrvc has never been degazzetted. [-[e was emphatic, the trial ]udge was right to order the Government to avail the respondents 620 hectares in another Reserve within (6) months and to assist them in a pro rata manner to re-establish their plantations.

The process of degazetting the Namanve Forest Reserve was never completed as the issue appears to be still pending before Parliament indccd our attention was drawn to an article in one daily, The New Vision, sf ))t|' April 2016 where at page 3 Namanve Central Forest Reserve features among several other Forest Reserves proposed to be degazettecl. Respectfully that is still tentative. [t is however not in disputc' that communication in respect to degazetting thc' forest reserve between the Ministers did exist. We observe that these communications were part of the degazetting process/plans which apparently are all pending actualization by Parliament. ln the circumstances we find it absurc{ that part of the reserve has since been converted into a residential area and is alreacly occupied apparently by legal owners, with certificates of title. This is, no doubt, an illegality and a breach of procedure.

However, the subject matter arose from the'de wrong was the genesis for the suit and this question that begs address is: who were the plantations? As earlier observcd, there is no which maln tree tt pte who destroyed the tree plantations in issue were connected with the Government. Had the link becn established the appellant would bc liablc.

The trial Judge in her Judgment stated thc prayers from the rcspondents hcrcin as:

- a) A declaration issue that Namanve Central Forest Reserve wherc, the plaintiffs' were growing trees as licencees, could not bc parcellecl ancl/or given out to third parties beforc degazcttement and/or their compensation. - b) A declaration that the plaintiffs be paid adequate compensation amounting to forty billion, one hundred and scventy six million shillings only (UGX 40,176,000,000/=) for the 620 hectares. - c) General damages for breach of the licence agrcemcrnt bc awardcd for thc Ioss of the remaining period since the licences were to run up to the year 2025. - d) Exemplary damages issue for the oppressive and negligent acts of the Agencies of the government as against the plaintiffs'. - e) lnterest at the rate of 25 % from the date of filling paymcnt in full - 0 Costs of thc'suit.

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rt for the Govcrnmcnt to avail thc plaintiffs 620 hcctarcs in anothcr Rcscrvc within six months and further assist them in a pro rata manncr to rc-cstablish thcir plantations. The award, subscqucntly made, had no basis. In our view thc Significantly the above prayers, did not include ^a

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second prayer by the respondents was sufficient request for compcnsation. 'I'his was addressed by court. ln its effort, court ncedlcssly madc ^a superfluous unsolicited award. With respect we fincl that thc t'rial court maclc thc awtrrc{ irr error. lt cannot bc sustainecl. It is thcrcfore ovcrturnccl.

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## Issue 6: Whether the learned trial ]udge erred in law and fact when she awarded interest at the rate of 25o/o on the compensation and exemplary damages.

Counsel for thc. appellant submitted that although the award of intcrcst is discrctionary this cliscret'ion must be exercisccl judiciously. Thc irrtc,resl. of 25o/o on compensation for destroyed properties and trecs is cxcessive, shc statcc-|. Shc. aclded that the ratc of 25% is applicd on mat'tcrs of commcrcial loss which loss, she submitted, was not occasionecl by the Govcrnmcut in this regard. Counsel went on to argue that failure by the plaintiffs to provL' the actual amount <lf pecuniary loss suffcred or if thcy wcre carnirrg arry income from the said forest at all clearly shows that a pcrcc l-l or an interest percentage of 25% on a matter that they couldn' cxtcnt of, let alone that there was commercial loss, was ^a of the trial Jutlge. on the part

I-lavir-rg ftlund as wc have abovc, discussitln of Suffice it to say that it too was an order made in error rejected. iS moot. t is therefclrc R

We conclude with the recapitulation of our findings. On issue onc of thc appeal we have made a finding in agrecment with thc trial court that thc

respondents were licencees. Consequently that ground of appeal fails. Nevertheless for the reasons given in the course of this judgment, we would not find the other findings and orders of the trial court tenable.

In the main, this appeal succeeds but because it does so partially, parties are to meet their respective costs in this court and at the court below.

Dated at Kampala this .................................... HON. JUSTICE S. B/K KAVUMA HON. JUSTICE ELIZABETH MUSOKE, JA

HON. JUSTICE PAUL K. MUGAMBA, JA

$12/117$ During read in open<br>court. IND AIR. $20$