[2010] UGCA 56

#### THE REPUBLIC OF UGANDA

### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

### CORAM:

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# HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

### CIVIL APPEAL NO. 05/2009

# NATIONAL FOREST AUTHORITY APPELLANT ¹⁵ VERSUS

### SAM KIWANUKA RESPONDENT

### IOriginating From High Court Civil Suit NO. 1012006, At Nakawa Before Justice Margaret Oumo Oguli Dated l3ll2/20071

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### JUDGMENT OF A. E. N. MPAGI-BAHIGEINE. J. A.

This appeal arises from the judgment ofthe High Court at Nakawa, dated l3'h December 2008, wherein the leamed trial Judge rnade the fbllowing orders:

- (a) A declaration that the suit land is not a forest reserve. - (b) A permanent injunction restraining the defendant and the workers

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from, in any way interfering with the plaintiff s quiet enjoyment of the suit land.

- (c) Special damages in the sum of Ug Shs 2,160,000,000/=. - (d) Damages for defamation in the sum of Ug Shs 300,000,000/=. - (e) Costs of the suit from the date of filing till final judgment. - (0 Interest on special and general damages above at a rate of l1oh per annum from the date of filing until final judgment.

The respondent had filed a suit seeking the foregoing orders. The issues before the leamed triar judge were:-

## l. Whether the plaintiff had a valid certificate of title.

Whether the plaintiff suffered any loss or damage as a result of the defendant's actions. 2

## 3. What remedies are available to the successful party.

At their joint conferencing held on 14 - 07 - 2009, the parties set out the following agreed facts :

The suit land comprised in Leasehold Register Volume 2269 Folio 5 Plots 6 and 7 Busiro Block 447 at Kyewaga Entebbe, was initially part of Kyewaga Central Forest Reserve.

By Lease Agreement executed on 24tt' August 1994, the Uganda Land Commission leased the land to Sunshine Beach Properties Limited, for a term of 49 years, commencing on l'' March, 1983. The certificate of title to the said land, which was issued to the said company, went through several transfers.

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In 2005, the Respondent bought the land for a sum of Ug shs 500,000,000/:, transferred the certificate of title thereto into his own names and demarcated the land into 76 plots which he started selling to intending developers.

On 31't December,2005, the appellant's authorized officer served an eviction notice on the respondent, contending, inter alia, that the respondent was illegally encroaching on Kyewaga Central Forest Reserve and requiring him to vacate within l4 days.

In January 2006, the appellant evicted the respondent from the suit land. The respondent then sued the appellant for unlawful eviction and trespass and a declaration that the suit land is not a Forest Reserve as clairned by the appellant.

Judgment was entered for the respondent as aforementioned

Hence this appeal

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Only one issue was frarned for this court's determination, namely:-

Whether the learned trial judge erred in law and fact when she held that the suit land was degazzeted before the respondent procured it and he was therefore a bonafide purchaser for value without notice. l5

The parties filed written submissions under rule 98 of the Rules of the Court.

Mr. Benson Tusaasirwe appeared for the appellant while Mr. Francis Buwule represented the respondent.

#### Submissions for the arrrrellant

Learned counsel for the appellant, relying on section 100 of the Evidence Act, stated that the respondent bore both the legal and evidential burden to prove, on

' the balance of probabilities, that the leasehold interest he claimed in the suit land is valid. He has to also prove how he came to procure ownership of the land. He has the evidential burden to prove that the suit land is not part of Kyewaga forest reserve and that his interest is part of the degazetted forest.

He pointed out that de-gazetttement is a legal process. It has to be proved by showing a legal process and instrument, specifically excising the portion of land in question. All that the respondent did was to show that under the Forest Reserves (Declaration) Orders of 1932, 1948 and 1968 respectively, Kyewaga Central Reserve measured 222.6 hectares and that the Statutory Instrument of 1998 showed that area to be 209 hectares and that therefore the 1998 Statutory Instrument excised the 13.6 hectares out of the forest reserve.

He asserted that this was not enough. The process of degazetting is not proved by merely comparing the surface area given by two Statutory Instruments.

Learned counsel further submitted that while S. 4 of the Forest Act, (Cap. 246) Laws of Uganda 1964 laid down the procedure for declaration of both Central and Local Forest Reserve, section 8 of the Act purposely left out the issue of degazetting a forest reserve because once reserved, the forest is supposed to remain gazetted. This Act was repealed by National Forestry and Tree Planting Act, 2003, which also does not provide for the de-gazetting of any forest reserve at all. He submitted that the respondent's argument that Uganda Land Comrnission leased out a gazetted forest reserve is unsustainable.

Therefore, the learned judge erred in finding that the suit land was degazetted before it was leased off. The appeal should be allowed.

#### The submissions for the resDondent:

For the respondent, it was submitted that it was the finding of the trial judge that Statutory Llstrument No. 63 of the 1998 degazetted 13.6 hectares of Kyewaga Central Forest reserve and that the 13.6 hectares was the suit land. It was not disputed at the trial that Kyewaga Central Forest Reserve measured 222.6 hectares in 1932 and that the acreage was even pleaded by the appellant in the court below. The effect of the 1998 Statutory Instrument was to reduce it to 209 hectares.

Learned counsel submitted that the trial judge also found that the respondent had proved on a balance of probabilities that the 13.6 hectares that were degazetted was the suit land and that the appellant failed to show where alse the 13.6 hectares of the forest reserve could have been curved from.

The trial judge was therefore right in holding that on the balance of probabilities the suit land was degazetted in 1998 before the respondent procured it.

It was the respondent's contention that the appellant's argument that degazettement is an elaborate process was not supported by any law. What is clear in the Statutory Instrument No. 63 of 1998 is that it declares the areas in the first schedule thereto to be Central Forest Reserves and this includes Kyewaga measuring 209 hectares. It specifically goes ahead to revoke the earlier order of 1968 which had Kyewaga at222.6 hectares.

Counsel further argued that although degazettement takes cognizance of the changes that have occurred in the area of a given forest, it does not affect the validity of the grant made out of the forest reserve by the controlling authority. Leamed counsel prayed court to dismiss the appeal.

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I now have to consider whether Statutory Instrument No.63 of ¹⁹⁹⁸ amounted to Cegazetting of the suit land or not.

This was titled "The Forest Reserves (Declaration) Order, 1998 under sections 4 and 5 of the Forest Act Cap 246 (now section 324 Cap 146)."

It declared Kyewaga Busiro Central Forest Reserve to be approximately 209 hectares.

The order was gazetted in Statutory Instrument Supplement No.23 on I lth September, 1998 in Uganda Gazette No.56 Vol XCI of I I'h September 1998.

It is importa,rt to note that section 4 of the Forest Act vests the Minister of Lands with powers to declare any area to be a central forest reserve or a local forest reserve or to have an adequate forest estate after instituting such inquiries as he may deem necessary. t0

This declaration was never challenged in court since then.

According to Black's Law Dictionary "Gazette is defined as evidence of acts of state, and of everything done officially. In that respect production of a copy of the gazette containing any official order is evidence of the fact and date thereof. l5

> However, that notwithstanding, at the respondent's own initiative, the respondent after being evicted by the appellant mounted a search in the land office where he found a letter dated 24l9ll98l - Ex p I I .

> This letter was written by a forest Officer in 1983 to the Commissioner of Lands and Surveys, responding to an application by G. K. and Brothers Ltd for 13.6 hectares of the same land.

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He also found a letter from the Commissioner of Lands and Surveys to the Senior Staff Surveyor, requesting for survey of 13.6 hectares at Kyewaga Forest Reserve dated 9.12.1982.

He tendered in evidence the actual lease of'fer dated 20. 10.1982 from the Land office to G. K. Brothers for plot 6/7 Busiro North Block 447 and rhe actual lease document Ex p. l5 & l6 respectively.

He also tendered in the certificate of change of name from G. K. Brothers to Sunshine Beach Properties Ltd. Ex p 17.

The learned judge seems to have been impressed by the respondent's honesty and diligence when she commented:

"In addition to presenting the title (exhibit 2) as evidence of his interest in the land, Mr. Kiwanuka voluntarily and without any hesitation presented to court exhibit 1l-18 which showed the genesis of his title ........

The executive Director of NFA confessed in his testimony that he too was not aware of exhibits l1 - l8 and that NFA was working on old facilities and that they do not have the funds to update their information."

This is a revealing self-indictment by the appellant and a confessed dereliction of duty. The appellant failed to followthe events conceming the suit land for all the years since 1983 when a lease was granted to sunshine Beach Properties Ltd for a term of49 years, till 2005 when the respondent bona fides bought the land. Yet they clairred to be supervisors of the said land. This is a little troubling.

I therefore think that in view of what I have stated above it is not possible for me to hold that 13.6 hectares excised Ilom Kyewaga Forest Reserve was not degazetted. It was degazetted.

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This brings me ro section 59 of the Registration of Titles Act (Cap 230) which makes the respondent's certificate of title indefeasible in absence of fraud. The appellants purported to plead fraud on part of the respondent in their counter-claim.

This position could not have been put any clearer than what was stated by Wambuzi C J in Kampala Bottlers Ltd Vs Damanico (U) Ltd. SCCA No. 22 of 1992 that: "Fraud must be attributable to the transferee. I must add here that it must be attributable to him either directly or by necessary implication. By this I mean the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage ofsuch act..... fraud must be proved strictly, the burden being heavier than on a balance of probabilities generally applied in civil matters." l0

Considering the number of the respondent's predecessors in title and the steps taken by him to search the root ofthe title, both on the ground and in the Land Registry, even after he had been served with an eviction order is a clear manifestation of his bonafides.

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His only contact was with his immediate predecessor in title, Annet Nsubuga, from whom he bought the land after a number ofprevious registrations on the title. Even here there is no evidence of collusion in any malpractice either apparent or by implication.

Also see the Australian case of Waimiha Saw Milling Co. Ltd Vs Waion Timber Co. Ltd (1926) AC. where the Privy Council held:

"The cardinal principle of the statute is that the register is everything and that except in cases of actual fraud on the part of the person dealing with

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the registered proprietor, such person upon registration of title under which he takes from the registered proprietor has an indefeasible title against all the world".

It is common knowledge that our Land Registration system derives from the Australian Torrens system. This brings me to the conclusion that the respondent title is not impeachable.

I would consider that this conclusively resolves the matter of the 13.6 hectares having been degazetted by the Minister of Lands under S I No. 63 of 1998.

I now proceed to discuss the awards made by the learned trial judge.

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The respondent specifically claimed Ug shs 1,200,000: for a grass cutter and Ug shs 5,000,000= for a water pump as special damages. l0

> The learned judge correctly disallowed this itern as it had not been proved, it being trite that special damages have to be specifically pleaded and strictly proved. See Jefford & another Vs Gee (1970) I ALL E R. Frederick J. K. Zaabwe Vs Orient Bank & Others SCCA No 412006.

> The learned judge however awarded the respondent Ug shs 2,160,000,000: representing the sum the respondent would have realized from the sale of 72 plots over a period of 24 months. With respect this was eroneous in view of the fact that she had awarded the respondent the full value ofthe entire land.

The respondent's evidence was that he was eaming an average of Ug shs 90 million per month from the sale of plots from the suit property. It was on this basis that the learned judge awarded him Ug shs 2,160,000,000: general damages. l0

It is not clear what principle the leamed trial judge applied in awarding general damages of Ug shs 2,160,000,000:. I think this was too speculative.

The general rule is that general damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of - see Strom Vs Hutchinson (1905) AC 515.

Under the circumstances of the case this would only entail loss of opportunity to sell the plots as and when required so as to service the Bank loans. Nonetheless, since the land was adjudged to the respondent, he could not retain it and be granted its value as well. He could only have one of the two not both.

Since I have found the respondent's title to be indefeasible, it seems to me that I would be entitled to take judicial notice ofthe fact that land is an appreciating commodity, rising in value each day that passes. l0

> Therefore loss of profit would not be a vital factor to consider. I would only consider the inconvenience and anguish suffered by the respondent resulting from inability to service the loan. He testified that he took a facility of Ug shs 500,000,000/: from a bank. Ex P 1 . This was not disproved.

This case has been pending since 2005 when he was evicted. It is now almost five years when his business is in abeyance. I would thus consider and award interest on the loan facility at 20oA from the date of eviction till the respondent is put in possessi -ln of the land.

I would also consider a sum of Ug shs 150,000,000: (one hundred fifty million) adequate as general damages to atone the appellant's unlawful acts.

This would carry interest at court rate Iiom date of judgment till payment in tult.

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The leamed judge awarded damages of Ug shs 300,000,000/: in respect of the defamatory advertisements in the electronic and press media warning people not to purchase the respondent's plots.

I think the evidence failed to show that the respondent was specifically identified by the public, and therefore that his name was directly affected. There was no proofthat the bad publicity carried out by the appellant generated any negative response from any part ofthe world to so impact the respondent's esteem, as claimed.

This inconvenience would be covered under the general damages awarded above.

I would thus set aside the award of Ug shs 300,000,000=. It had no basis in my vlew.

The respondent cross - appealed seeking damages for trespass but this has been covered above urrder the award of general damages and the commercial interest rate on the loan 1'acility. It need not be repeated.

Exemplary damages were also sought by the cross - appellant; to this I say that courts should be slow to award this remedy which is penal in nature. This can only be awarded for oppressive, arbitrary, harsh, and unconstitutional conduct or where there was a desire to make a profit. I must say, however, that the cross - respondent's conduct towards the cross-appellant was due to its lackadaisical approach to its work. See Rookes Vs Barnard (1964) All ER 367,at 410 and 1ll.

The cross-appeal grievances were sufficiently covered under the appeal.

In sum the appeal substantially fails as indicated above.

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The respondent would be entitled to costs here and below.

Since A. Twinomujuni, JA also agrees, the appeal fails as indicated above by majority of two to one, with the following orders in favour of the respondent:

- (a) The suit land was duly degazetted. - ⁵ (b) The respondent's title to the suit land is not impeachable. - (c ) The responrlent is awarded interest at commercial rate of 20oh per annum on the loan facility of Ug shs 500,000,000/: from date of eviction, in 2005, till he is put in possession ofthe suit land. - (d) He is awarded general damages of Ug shs 150,000,000/: for trespass and inconvenience. This is to carry interest at court rate from date of this judgment till payment in full.

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Hon. Justice A. E. N. Mpagi-Bahigeine JUSTICE OF C URT OF APPEAL 9q I I

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JUSTICE A. E. N. MPAGI-BAHEGEINE, JA HON. JUSITCE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

#### **CIVIL APPEAL NO.05 OF 2009**

## NATIONAL FOREST AUTHORITY ....................................

#### VERSUS

#### SAM KIWANUKA...................................

## [Appeal from the decision and orders of **Uganda High Court at Nakawa (Oumo Oguli, J)** dated 13/12/07 in HCCS No.10 of 2006.

## **JUDGMENT OF TWINOMUJUNI, JA**

I have had the benefit of reading the draft judgment of her Lordship Hon. Justice Alice Mpagi-Behigeine, JA.

I agree with it and the orders made therein and I have nothing useful to add.

..day of

Dated at Kampala this ...

..2010.

Hon/Justice JUSTICE OF APPEAL.