[2024] UGHC 587

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASINDI MISCELLANEOUS APPLICATION NO. 0019 OF 2023) (ALL ARISING OUT OF CIVIL SUIT NO. 0081 OF 2022)**

**NATIONAL FORESTRY AUTHORITY……………………………………………………………………………. APPLICANT**

# **VERSUS**

10 **MULUMBA SALAYI ……………………………………………………………………………………………. RESPONDENT**

## **BEFORE: Hon. Justice Isah Serunkuma**

## **RULING**

This application was filed under Section 98 of the Civil Procedure Act and Order 51 rules 1,2, and 3 of the Civil Procedure Rules in which the Applicant sought the following orders.

**1.** The Applicant conducts a boundary opening and verification exercise for the suit land

20 comprised in **FRV MAS42 Folio 23 Bujenje Block 10 Plot 100 at Kisomabutuzi Rukondwa Bwijanga (hereinafter the Suitland) to the extent of Fumbya Central Forest Reserve.**

- 2. That the report from the verification is put on record. - 3. Costs of the application.

The affidavit of Namuddu Jacqueline supports the application, and the applicant's Legal Officer in support of the application shall be relied on in the determination of the matter but briefly.

- a. The Respondent sued the Applicant in the court vide Civil Suit No. 0081 of 2022. - b. The Respondent claimed in the suit, inter alia, that she owns the suit land measuring 30 approximately 15.3580 hectares. - c. The Respondent, in her suit, claimed that the applicant trespassed on her land.

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- d. That the land that the Respondent claims forms part and parcel of Fumbya Central Forest reserve. - e. That the applicant is a statutory body with the mandate and duty to manage, protect, and develop all central forest reserves in Uganda. - f. It is in the best interest of both parties involved that the boundaries of Fumbya Central Forest Reserve regarding the disputed land be opened and a boundary report filed in Court. - g. That it is after a boundary opening report is filed that the court will guide and be best positioned to precisely determine the extent of each party's interest in the disputed 10 land.

The affidavit in Reply was sworn by the Respondent herself, Mrs. Mulumba Salayi in which she deponed the following.

- a. She sued the Applicant for interfering with the ownership of the suit land, and the case is still pending before this Honourable Court vide Civil Suit No. 0081 of 2022. - b. That she is the registered proprietor of the suit land measuring approximately 15.3580 hectares. - c. That the suit land does not belong to the Applicant nor form part of Fumbya Central Forest Reserve. - d. That she is in full possession of the suit land. - 20 e. That she has a survey report for the suit land. - f. On 7th February 2023, the Court directed the parties to file the Joint Scheduling Memorandum and witness statements, which she complied with but which the Applicant defied. - g. The main suit is fixed for a hearing before the judge on June 5, 2023. - h. That the current application is invalid and incurably defective. - i. That the Applicant should bear the costs of the application. - j. That the Applicant has not proved any ground why this application should be granted.

The Applicant's Legal Officer swore an affidavit in rejoinder to the following effect.

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- a. The Respondent's survey was done without the applicant's involvement; it is just that the applicant is involved in the survey. - b. It is important that the verification is done jointly with the applicant's involvement to determine the extent of the alleged trespass. - c. That it is in the interest of substantive justice that the boundary verification is done to determine the extent of the alleged encroachment. - d. That it is after boundary opening done by both parties is filed that the court will guide, and best be positioned to precisely determine the extent of each party's interest in the disputed land.

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## *Representation.*

The Applicant was represented by the Legal Department, National Forestry Authority, while the Respondent was represented by M/s Kasangaki & Co. Advocates. Both parties filed their submissions, which have been considered in preparing this ruling.

# *Issues: Whether it is necessary to carry out boundary verification.*

# *Applicant's submissions*

The applicant is seeking a boundary verification exercise for the suit land, approximately 20 15.3580 Hectares of land comprised in FRV MAS42 Folio 23 Bujenje Block 10 Plot 100 at Kisomabutuzi Rukondwa Bwijanga to the extent of Fumbya Central Forest Reserve.

Counsel submitted that the Respondent's case is that she acquired the suit land in 1962 by way of purchase together with her late husband John Mulumba, and the suit land neighbours the hill named Fumbya, and that part of it covers Fumbya Hill. The Respondent alleges that the applicant's officials trespassed on the suit land measuring approximately 3 acres. The Applicant contends that as the custodian entrusted with the statutory mandate of protection, management, and development of all the forest estate in Uganda, the land claimed by the Respondent forms part and parcel of Fumbya Central Forest Reserve.

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Statutory instruments and gazettement create forest reserves. The boundaries of all central forest reserves are known and never in dispute. The verification exercise of the suit land will help to ascertain and distinguish the applicant's land from the respondents' land with the required precision. From the foregoing, allowing this application will not in any way prejudice any of the parties but serve the ends of justice since all stakeholders will be clear about their boundaries.

Counsel cited the case of *Odomel G. William v. Otim John C. A 0015 of 2009*, where the evidence relied on by the trial magistrate was inconclusive as to the size and directions of

10 the land. i.e., it was not explained whether one garden was given out of the five and whether the claimed areas are not the ones being contested. The appellant court held that there was a need to scrutinize the evidence further.

Counsel submitted that verification is a process of establishing the truth, validity, or accuracy of something. That the plaint is conflicting as paragraph 4 states that the area is 15.3580 hectares while paragraph 9(a) refers to 91.2 hectares. Paragraph 5 of the affidavit in support is to the effect that the suit land, while another paragraph is to the effect that it does not. A boundary verification will help the court come to a proper conclusion. Counsel also referred to *Omuhereza Rwakaboyo & 119 Others v. NFA Misc. Application No. 0060 of*

20 *2009* court ordered the parties of the forest land to establish whether it tallies with the 1998 Declaration. This was in a bid to help the court come to an accurate decision as regards the ownership of the land.

The Respondent claims that the applicant trespassed up to 3 acres of the suit land; this, out of the entire fraction of the land, is a smaller percentage that could arise out of unclear boundaries, and a boundary opening can rectify this. It is of paramount importance and in the best interest of parties, court, and administration of justice that the verification exercise is carried out and a report of the proceedings and findings is filed in court; it is only after that is done that the court will be able to know with precision the specific land in contention and make precise final orders. It will also assist both parties to know the extent of their

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boundaries. The exercise will be done with the representation of both parties and the findings of the same will be reported and submitted to the honourable court.

#### *Respondent's submissions.*

Counsel for the Respondent submitted that the Respondent sued the applicant for interference with her land, and the case is still pending in court. The respondent is the registered proprietor of the suit land, and it does not form part of the forest reserve. That the Respondent is in full possession of the suit land and the Respondent has a survey report for her land. The applicant did not follow court orders to file the Joint Scheduling Memorandum 10 and written statements, while the Respondent did. That the application is invalid and incurably defective and that the applicant should bear the cost of the application.

Counsel submitted that before filing the suit, the Respondent conducted a survey that a registered surveyor duly carried out. The same was attached to the statement of the Respondent, which was filed in court, and no sooner was the applicant served than it filed this application. By granting this application, the Respondent shall be made to spend twice for the same exercise since she will have to get an independent surveyor to participate in the exercise. That the applicant has not pleaded any fraud and/or false representation of any facts by the Respondent. The applicant has not given any sufficient reason as to why the land 20 ought to be re-opened. Yet, there is a valid survey report that the applicant does not dispute, and no reason has been put across to carry out verification.

The applicant cited the case of *Halima Kyamanywa v. Sajjabi Chris, CACA No. 001 of 2006***,** on the fact that in law, sufficient cause or reason depends on the circumstances of each case and must relate to the inability or failure to take a particular step in time in a matter. Furthermore, the Respondent sued the applicant for an injunction because the applicant was threatening to evict the Respondent and forcefully trespass on the Suit land and plant their trees without the consent of the Respondent, who is an elderly lady. They also threatened to arrest her grandchildren and children. The Respondent implored the court to

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make such orders as are necessary to achieve the ends of justice by dismissing the applicant's applications with costs to the Respondent.

#### *Applicant's submissions in Rejoinder.*

The Applicant re-emphasized that the survey done by the Respondent was done without the Applicant's involvement, and it is only just that the Applicant is involved in the survey. The verification must be done jointly with the applicant's involvement to determine the extent of the alleged trespass. That it is in the interest of justice that the boundary verification is done to determine the extent of the alleged encroachment. Following the boundary opening, a 10 report ought to be done and filed by both parties, and the court will be guided in determining the extent of each party's interest. The application will not in any way prejudice any of the parties but rather serve the ends of justice since all stakeholders will be clear about their

boundaries.

#### *Resolution of Court.*

It should be noted that boundary opening should occur at some point while determining trespass to land such as this one. The opening of boundaries, whether during the locus visit or earlier when requested by either of the parties, is necessary to guide the court in determining whether what is being alleged by the parties is what is on the ground, and such 20 boundary opening ought to be carried out by a licenced surveyor.

In the case of *Bamanya Andrew Mulindwa v. Namuleme Josephine and Nabakooza Caroline Civil Appeal No. 0076 of 2018,* the court explained the relevance of opening boundaries when it held that it was important to have the boundaries opened by a licensed surveyor to clearly determine the actual boundaries of the Appellant`s land, the location, and the ownership of the suit land. The court further held that the actual location of any boundary is subject to the evidence of an on-ground assessment of the facts pertaining to the matter and is best undertaken by a Registered (or Licensed) Surveyor.

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Therefore, this means that where a conflict arises as to the boundaries of a property, such as in this case, it shall be necessary for the boundary opening to be carried out so that the court bases its decision on the independent advice of a surveyor. Surveying deals with determining land boundaries for legal purposes and land ownership, as was determined in the case of *Adrabo Stanley vs Madira Jimmy, HCCS No. 0024 of 2013*. However, carrying out a survey or boundary opening does not determine the rights over the property in contention. The boundary opening shall only aid the court in creating clarity as to the boundaries of the land.

Regarding the issue of resurvey by the Respondent yet the land had already been surveyed, 10 we are cognisant of the financial burden involved in the process of surveying the property. However, it is prudent that where a boundary opening is to be relied on in a matter, it is carried out in the presence of all the parties to the suit and by a licenced surveyor that has been agreed to by both parties. The issue of opening boundaries shall arise sooner than later in the determination of the main suit, and opening the boundaries at this point may even allow the parties to resolve their differences at this point without having to go through a full trial.

A boundary opening shall enable each party to know from an independent report the boundaries of their property, enabling them to establish how to proceed with the main suit. In the circumstances, I find that the boundary opening and verification are necessary for

20 properly determining the main suit, and carrying them out at this point shall aid the court in properly determining the matter.

This Application succeeds, boundary opening is allowed. Each party shall bear its costs. **I so rule.**

**Dated and delivered on this 30th Day of April 2024.**

**……………………… Isah Serunkuma**

**JUDGE**