[2023] UGCommC 209

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA [COMMERCIAL DIVISION]

**CIVIL SUIT NO. 300 OF 2013**

1. HAJJI SIRAJI KAMULEGEYA

2. BUGEMA YOUTH ASSOCIATION

3. BULOHA ASSOCIATION

4. TUMUSIIME HOSEA

5. NATSAMI NICHOLAS

6. SHEIK ADAM ALI

7. MAGODE IKUYA

8. UGANDA WOMEN TREE PLANTING MOVEMENT

**:::::PLAINTIFFS**

9. MUDESI M

**10. MUKHANGA JOHN**

**11. MUSAPITI WILLIAM**

**12. NAFUNA JULIANA**

**13. WALUCHERA ABDUL**

**14. NAMALWA PHOEBE**

**15. WAKIRO LAWRENCE**

**16. WANYAMA JANE**

**VERSUS**

NATIONAL FORESTRY AUTHORITY ::::::::::::::::::::: DEFENDANT

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# BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI JUDGMENT

The Plaintiffs jointly and severally filed this suit against the Defendant by way of ordinary plaint for breach of contract, loss of future eamings and damages claiming for payment of UGX 11,320,342,000/, interest, general damages, exemplary damages and costs of the suit.

The brieffacts constituting the Plaintiff s case are that they were granted licences by the Defendant to plant trees for commercial purposes on its land situate in Mbale for a period of 25 years at an agreed annual fee of UGX 22,300/ per hectare. That thereafter, the Plaintiffs took possession ofthe land between 1995 and 2007, planted eucalyptus trees, tended and maintained them for harvesting and sale. That the Defendant unilaterally reached an agreement to pass the land to third parties without the knowledge ofthe Plaintiffs, with a misrepresentation that it owned the Plaintiffs' trees and that they would harvest them by 29h March2012.

That when the Plaintiffs leamt of it, they wrote to the Defendant demanding explanations but they received no reply. That on the 30h day of March 2012, strangers who had derived title from the Defendant entered upon the land and took over the Plaintiffs' trees. Thereafter, that the Defendant met with the Plaintiffs offering to give them altemative land but no agreement was reached. That the Plaintiffs lost trees, money being the market value of the trees, and damages hence this suit.

The Defendant in their Written Statement of Defence denied the allegations and averred that the Plaintiffs were allocated another piece of land equivalent to the one they earlier occupied; to which they agreed and took. That the Defendant is offering support by supplying them with free seedlings and that no loss was occasioned. They

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added that the Plaintiffs breached the license conditions by planting crops in the forest reserve against the law. They further deny unlawfully revoking the licenses and aver that they remained valid and operational to the new compartments. They prayed that the matter be dismissed with costs.

In reply to the written statement ofdefence, the Plaintiffs averred that the only reason why the Defendant offered to them the equivalent pieces of land elsewhere was after realising the loss they had occasioned. That when the Plaintiffs attempted to enter the land, the third pafties uprooted the boundary marks planted by the Defendant claiming they had requested the President to allocate to them the same land, and that they were awaiting for his response. In addition, Mbale Municipal Council has indicated that it is going to acquire the said land for extending the city, therefore, the altemative land has a lot of uncertainty. That there was no offer of free seedlings specific to the Plaintiffs but rather remains of a govemment programme for all Ugandans and that people without licenses also benefitted therefore that it had nothing to do with the loss occasioned to them.

#### REPRESENTATION

During hearing, the Plaintiffs were represented by IWs Gyabi & Company Advocates, whereas the Defendant was represented by IWs Nambale, Nerima & Company Advocates.

#### JUDGMENT

I have carefully read the pleadings and listened to the testimonies of the witresses in this matter as well as considered the submissions of counsel herein. The following issues were agreed upon in the Joint Scheduling Memorandum for determination by the Court:

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- l) Whether or not there were licensing agreements existing between the Defendant and all the Plaintiffs - 2) Whether any licensing agreements were void - 3) What is the number and value of trees tost by each Ptaintifl? - 4) What remedies are available to the parties?

### Issue I

## and all the Plaintiffs whether or not there were licensing agreements existing between the Defendant

counsel for the Plaintiffs argued the first two issues jointly. on whether the parties had existing licensing agreements, he submitted that the Defendant admitted to the existence of the Plaintiff s licenses for tree planting in paragraph 6 of their written Statement of Defence and that DE I also shows that 22 tree farmers were allocated land in the disputed area. He added that when asked by Court, DW2 said the Plaintiffs' complaint was about their trees that were harvested. He further submitted that DW4 and DW5 admitted that the Plaintiffs had licenses and the authorisation to plant trees on approximately 50 hectares of Mbale Forest Reserve land. counsel then invited Court to find that there is no evidence ofany ofthe licenses being void.

In reply, Counsel for the Defendant submitted that the burden of proving that they had licenses was on the Plaintiffs because not every tree planter has a licence. He added that only 7 Plaintiffs out ofthe l6 had testified, and that they did not tender in any licenses, and none produced when asked in cross examination. That plaintiffs No. 5,6,7,10,12,13,14,15 and l6 did not testiff. That only Plaintiff No. 12 who did not even testiff had licences admitted as PE l, 2 and3,, and Plaintiff 13 whose payment advice was admitted are the only two who had evidence to prove existence

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of licenses. Therefore, counsel prayed that court finds that the rest of the ¹⁴ Plaintiffs do not have licensing agreements.

In rejoinder, counsel submitted that the Plaintiffs did not have the licence agreements because there was a presidential directive not to issue them in forest reserves. He added that PE 7 is a collection of general receipts of ground rent. He reiterated that there were various contracts between the Plaintiffs and the Defendant, and that failure to produce licenses does not mean that they are not there. Counsel also added that the Defendant had allowed the Plaintiffs to plant eucalyptus trees in the forest reserve, short of that they should have evicted them or reported them at police. He then cited case law to the effect that a contract need not to be in writing to be binding; and also added that licencing fees is one of the ways to prove the existence of a licence, and that since their agreements with the Defendant date back before 2003, they could not have been issued with licences under the National Forestry and Tree Planting Act2003.

About the Plaintiffs who did not testifu in Court, Counsel submitted that it was upon his application that they did not give evidence because the evidence was the same as that of the rest. He also referred to the Evidence Act to submit that no particular number of witnesses is require to prove any fact.

Having carefully looked at the evidence on record and the submissions by both Counsel, I make the following findings.

Whereas it is true that not all the Plaintiffs personally gave evidence in Court concerning their case, it is also true that no particular number of witnesses is required to prove a case (See Section 133 of lhe Evidence Act Cap 6). I am aware tlat the Plaintiffs are not just witnesses but parties in the suit, therefore in response of the Defendant's contention that not all the Plaintiffs gave their evidence in Court, upon

perusal of the record of proceedings specifically on page 123, it is clear that the Plaintiffs' counsel was willing to lead more witnesses but upon guidance of court, and that it was agreed that a few Plaintiffs would be 'sampled' as their evidence was the same, therefore, the Plaintiffs' case was closed on that ground. It would be unfair and of great prejudice to such Plaintiffs if their case were to be dismissed on that ground. Since it is the same court handling the issue, coming up with a contrary view would be unlawful and cause an injustice to the plaintiffs at this point.

Now, with regard to the Issue at hand, licenses for sustainable management and utilisation of forest reserves are issued under Section 41 of the National Forestry and rree Planting Act 2003. However, prior to 2003, licenses were issued under Section 1 I of the Forests Act (Cap 146) for the cutting, taking, working or removal of forest produce from central forest reseryes, local forest reseryes, village forests and open land; and they were issued upon the payment ofthe prescribed licence fees.

A licence is defined as'...a mere permission which makes it lawful for the licensee to do what would otherwise be a trespass'(See Sweel and Maxwell, ,The Law of Reol Properly' Vh Edilion para 34-001 ot page 1390). Therefore, the purpose ofa licence is to give persons who are not legal owners of land the right to lawfully use the land, although it does not give the licensee the right to exclusive possession of the land (See Justice Mubiru's decision in Okot Patrick V Abodo Mary Civil Appeal No.046 of20I8).

In this instant case, it is the Plaintiffs' case that they were issued with licenses to plant trees in a Forest Reserve but that the same was later given to a third party and they were given altemative land. The Defendant now disputes having issued them with licenses, hence the need to determine whether or not the licenses exist.

v \.s PW1 said the Forestry Department had issued them with permits to grow trees but that when Defendant took over, they were told to re-apply for a licence, so they did so in 2006 but the said licences were never sent back to them. He testified to the effect that the file that had documents relating to consent to start planting trees in 1992 by the Forestry Department had gotten lost. PW2 said none of them had licences and that the first receipt he got was in 2010, and that all ofthem signed licences in 2006 but were not given the same. PW3 said they started plantingtn2006 when they paid for the licence but were never given licences except for receipts. Similarly, PW4 also said he did not have a licence although the Defendant had promised to issue one for 25 years. He however added that he got authority from the Forestry Department in 1992 to plant trees. PW5's case was also the same, so he did not have a copy ofthe licence but that he paid the dues he was asked to pay, and that he started in planting trees in 1999. PW6 who was a representative of the 8\$ Plaintiff said they started tree planting in 1994 with a permit from the Forestry Department. She equally only had receipts of payment at home but no licence. Even PW7 who started in 2006 said it was upon the promises to give licences by the Defendant that he started planting after paying fees.

It is not disputed that none ofthe 7 Plaintiffs who testified in Court presented a copy of their licence from the Defendant to use the land except Nafuna Juliana (126 Plaintiff) but she did not testifu in Court. It is also true from their evidence that most of them except PW7, started utilising the land by way of tree planting in the 1990's before the Defendant took over the management of the forest reserves and they were not issued with any licences by the Forest Department as it was then. Therefore, whereas the Plaintiffs do not have licences, it is their case that they paid the requisite fees except that the Defendant did not issue the licences. Whereas the Plaintiffs do not have copies of the licences, as pointed out by Counsel for the Plaintiffs, the

Defendant in their written Statement of Defence do not point to the absence of the licences but rather that the Plaintiffs breached the conditions of the licence by planting crops in the forest reserve which was against the law.

ln okot Patrick v Abodo Mary (supra) Justice Mubiru went on the state how the existence of a licence is determined, he held:

"A license is an agreement where the landowner gives permission to another party to use the property for a specific, limited purpose. Llsually the right is (i) nonexclusive, (ii) for a short term or non-consecutiye use, (iii) non-transferrable and (iv) freely revocable... ... ... A licence would have been inferred if there was evidence of a fixed or periodic term agreed upon and without conferment of exclusive possession"

In this instant case, other than the receipts of payment for renewal of the licences that the Plaintiffs claim were issued, there is no evidence ofany licences issued to them permitting them to plant trees on the land in issue. In addition, looking at Table 3 in the memo in DE 7, majority of the Plaintiffs did not have permits and for the few who had, they were expired. Considering that the permits were allegedly issued under the Forestry Act, Section l2 ofthe Forestry Act provides for the production ofa licence when required. The Plaintiffs have never produced the licences therefore it is hard to prove the existence of the same. lJnder sections 60 of the Evidence Act (Cap 6), contents of a document may be proved either by primary evidence or secondary evidence. In this instant case, the Plaintiffs have not produced any to prove their claims that they were issued with licences. Had they done so, those licences would have still been valid pursuant to Section 96 (3) (a) and (b) of the National Forestry and rree Planting Act 2003 which provides that licences issued

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under the repealed Act shall have effect as ifthey granted under the Act and that they would remain in force after the commencement of this Act.

Since the Plaintiffs did not produce their licences issued under the repealed Act, Section 96 above cannot be applied. Neither have they produced any licences issued under Sections 4l and 42 of the National Forestry and rree Planting Act 2003. I have only seen documents indicating fees paid by some Plaintiffs for ground rent and others for licence renewal but none has produced their licence except for the 11th Plaintiff who has both the licence agreement and the licence but whose land is mostly said not to be in the affected area. Without concrete evidence of the existence of such licences, it is difficult to determine if the Plaintiffs had permission to carry out the activities they were carrying out on the land and also to ascertain the terms and conditions of the licence.

I have duly taken note ofthe fact that the Defendant does not deny knowledge ofthe Plaintiffs, in fact, all the Plaintiffs are among the tree farmers on a map marked . B' and titled Status ofthe Private Tree Farmer's Plantation as at 30 January 201l, and also that the Defendant held several meetings with the Plaintiffs to discuss compensation including resettling them as well as offering them tree seedlings to mitigate the loss according to them.

The first question that remains unanswered to date is on what basis was the Defendant carrying out the abovementioned actions without ascertaining the existence of the licences/ permits the Plaintiffs claimed were issued but never adduced as evidence in Court?

Further, the Plaintiffs themselves confirmed that the land in issue upon which they had planted trees was the subject ofa consent between the Defendant and a Third party wherein the Third party was given possession of the same being the original

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owners and had proceeded to cut or destroy the said trees. They also stated to the effect that it had been agreed that the said Third party should be the one to compensate the Plaintiffs.

The second question that arises then is what was the intention of the Defendant when it entered into negotiations for compensation etc. with the plaintiffs who not only did not prove their licences, but also planted trees on land that did not even belong to the Defendant who was also not involved in or responsible for the cutting or destruction of the said trees?

Suffice it to note that many of the Plaintiffs who planted trees in issue without any authorisation as provided by law on land that was purportedly a forest reserve for more than 20 years must have benefitted immensely from the harvest therefrom; and any loss accruing from the alleged actions of a Third party could only be remedied by legal action against the said rhird party itselfand not the Defendant. Therefore, any sort of negotiations between the parties in this suit not only smirks of connivance of some sort, but also casts great doubt on the authenticity of the claims of the parties herein.

From all the fore going, I find that without credible evidence ofthe licences allegedly issued to the Plaintiffs by the Defendant, the Plaintiffs cannot be said to have the same at all.

In the premises, the first Issue is answered in the negative.

### Issue 2

### Whether any licensing agreements were void

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Having held as I have in Issue I above, it follows that this Issue fails because no licences provided for by law were adduced by the plaintiffs for court to determine whether they were void or not.

### Issue 3

# What is the number and value of trees tost by each ptaintifl?

whereas it may be true that the Plaintiffs lost trees, following the outcome of the two Issues above, it is not necessary to determine the number and value of trees lost by each Plaintiff as well as the quantum of loss of future eamings plus foregone profits. I will therefore not delve into resolving this issue.

#### Issue 4

## What remedies are available to the parties?

Since this suit has substantially failed, there are no remedies awarded to the Plaintiffs. However, the Plaintiffs are at liberty to pursue the Defendant for a refund ofthe licence renewal fees allegedly paid by the Plaintiffs to the Defendant and or to pursue legal action against the Third Party who allegedly destroyed their trees for compensation, if at all.

considering the circumstances of the case, I find it fair that each party bears their own costs of the suit.

HON. LADY JUSTICE ANNA B. MUGENYI DArED...............rp.. h