THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPAI.A

(LAND DIVISION)

CNIL SUIT NO. 135 OF 2OO5

1. EDWARD ACERO.GOLL
2. SHEIK HAJI NASSUR BIN AMIN
T/A KIRULI MIXED FARM PLAINTIFFS

VERSUS

1. UGANDA LAND COMMISSION

2. ATTORNEY GENERAL
3. NATIONAL FORESTRY AUTHORITY DEFENDANTS

Before: Hon. Iustice Byaruhan aa lesse Ruavema

IUDGMENT

t1l In this suit filed way back in 2005, the Plaintiffs; Edward Acero-Goll (1"
plaintiff) and Sheik Haji Nasuru Bin Amin T/a Kiruli Mixed Farm (2'd
plaintiff) sued the Defendants, Uganda Land Commission (l" Defendant),
Attorney General (2"d Defendant) and National Forestry Authority (3'd
Defendant) jointly and severally for:
"general, exemplary and punitive damages for breach of trust,
breach of contract, fraud and trespass to land, breach of
statutory duty and for restitution of their title deed and the
suit premises."

tzl The Plaintiffs' case is that on or about 2'd July 1975, the 1" Defendant made
a lease offer to the Plaintiffs of land now comprised in Bunyangabu Block
94, Plot lO, situate at Kiruli, Hima Kasese District measuring
approximately 449.9 hectares (herein after referred to as the suit
Iand/premises) for 5 y ears which was later in 1983 extended to 44 years.

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t.3l Jhe Registrar of Titles prepared and registered the lease on or about the
2'd day of February 1976. Pursuant to the building and development
covenants of the lease, the Plaintiffs developed the said suit land,
establishing thereon an ultra-modern mixed farm with several amenities,
including but not limited to a permanent residential house, six workers'
residential buildings, gravel road network, exotic and local cattle, goats
and sheep farm with several grazing paddocks, a permanent valley dam
and cattle dip, stores and extensive crop production.

l4l As a result of the developments on the said land, the Plaintiffs were
granted a European Economic Community (EEC) line of credit for the
further development of the said land through the then Uganda Commercial
Bank in January 1988.

t5l That however, unknown to the Plaintiffs, at the time of the offer and
acceptance of the lease in 1975-76, and its renewal for 44 years in 1983,
part of the suit premises fell under the Mubuku Forest Reserve. On the
II/3/L976, the Commissioner for Lands wrote to the then Provincial
Commissioner for lands and Surveys notifying him of a complaint from the
Chief Forest Officer of the area which was to the effect that part of the suit
land (450 acres) were surveyed out of Mubuku Forest Reserve for leasing
to private developers, the Plaintiffs, which in his view was a mistake. As a
result, the District Forest office staff proceeded on the suit land and
removed demarcation stones which act the Plaintiffs referred to as
trespass on the suit land.

16l On or about the 18'h day of April L977, the Plaintiffs wrote a complaint to
the District Forest Officer about the District Forest Office Staff's trespass
on the suit Iand. In spite of the above, in 1983, the l" Defendant extended
the lease of the suit premises to full term, following an inspection
performed in October 1982 by the District Staff Surveyor which confirmed
that the Plaintiffs had fully complied with the covenants of the lease.

l7l On or about 19'h February, 1987, the then District Officer wrote to the
Plaintiffs alleging that they had an illegal lease which encroached on the
Forest Reserve and ordered them to vacate the suit premises by 4'h April,
1987, a position that was also adopted by the Permanent Secretaries of the
2
 Ministries responsible for Lands and Environment, i.e, that the lease was
illegal and the title deed ought to be cancelled.

t81 As a result, the Plaintiffs were evicted from the suit premises in 1988 and
on 16'h May, 1990, the Commissioner Land Registry directed them to
produce the certificate of title to the suit premises for cancellation.
However, to date, the title deed has never been cancelled.

tgl In August 1988, the Plaintiffs appealed to the President of the Republic of
Uganda to intervene in their saga with the responsible ministries and on or
about 14'h February 1989, the President directed the Permanent Secretary
of Water, Lands and Environmental Protection to find an alternative piece
of land for the Plaintiffs.

[10] The Plaintiffs followed up the offer of the alternative piece of land until
January 2004 when in a correspondence with the Acting Director of Lands
and Environment, the 1"' Defendant advised that it was impossible to find
alternative Iand for the Plaintiffs and that compensation be considered
instead. Despite the follow up by the Plaintiffs, the Defendants failed to
compensate the Plaintiffs.

[11] It is the contention of the Plaintiffs that they have since 1975 been the
proprietors of the suit land.,/premises, the Defendants effectively
compulsorily acquired the Plaintiffs' lease without following the statutory
procedure, including compensation as required by law and as a result of
the wrongful conduct of the Defendants, they have suffered:
a) Loss of quiet enjoyment of the premises;
b) Loss of the suit premises as collateral for credit facilities;
c) Loss of further development of the suit premises and profit
therefrom;
d) Loss of their life's savings;
e) Extreme mental anguish and fatigue;
f) Total destruction and erosion of the developments on the suit
premises.

[12] The Defendants on the other hand denied the Plaintiffs'allegations/claims.

The 1"'and 2'd Defendants contended that part of the land occupied by the
3
 PJaintiffs is in a Forest Reserve and the Plaintiffs were informed of this
position, a fact they acknowledge in their pleadings and that they have
since been lawfully removed from the land. The 3'd Defendant contended
that the Forest Reserves in Uganda have at all material times been
properties and assets of the Forestry Department and were therefore
vested in the 3'd Defendant by Act No.8/2003. That the Plaintiffs'
leasehold encroached on the Mubuku Central Forest Reserve by
approximately 355 Hectares.

Scheduling Conference

[13] Parties filed several schedule memos but the latest scheduling conference
memorandum being of 7/8/2U.7 which was modified during trial
proceedings of I/3/3023 as follows;
a) Agreed upon facts
1 The Plaintiffs have since 1975 been the proprietors of the suit land
comprised in Buyangabo Block 94, plot 10 at Kiruli, Hima, Kasese
District measuring approximately 449.9 hectares.
2. The plaintiffs were offered a lease by the Uganda Land Commission
(ULC) inJuly 1975 for the initial period of 5 years and in 1983, it was
extended to 44 years.
3. Part of the suit property measuring about 398 hectares of the 450
hectares fell in or forms parts of the Mobuku Forest Reserve and the
balance of approximately 52 hectares fell outside the Forest Reserve.
4. On or about lg/2/1987, the then District Officer of Kasese wrote to
the plaintiffs claiming that the plaintiffs had an illegal Iease which
encroached on the Forest Reserve and ordered them to vacate the suit
property.
5. The leasehold title of the suit property has never been cancelled for
the Ministry of lands called for the title but it was never handed over.

b) Issues
1. Whether the suit is time barred
2. Whether the Uganda Land Commission (ULC) had powers to grant
a lease over the suit land
3. Whether there are remedies available to the p arties

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 Preliminary findings of court

[14] During the trial, on26/2/2009, it was reported by the Plaintiffs that the
2"d plaintiff had since deceased. As per the record, by 13/12/2017, the 1"'
plaintiff had also passed on. Court directed as follows:
".... counsel should also amend the pleadings to reflect
the substitution of the deceased plaintiffs with the Administrator
of the estate only. Mention on 12fi/2018."

[15] Instead amending the pleadings to reflect the substitution of the

of
deceased Plaintiffs as directed by court, counsel for the Plaintiffs instead
on l5/12/20f 7 filed Misc. Application No.1862 of 2OL7 which was not
contested for orders that;
L.Nelson David Kilama
2.Acan Florence Administrators of the estate of the late Edward Acer -Goll
and
3.Asuman Majid
4.Apangu Hassan Turabi Administrators of the estate of the late Sheik Nassur Amin
5.Makkah Nassur
be made parties to the proceedings and substitute the deceased plaintiffs
accordingly.

[16] Other than the court record of a/fi/2011 disclosing that the 2"d Defendant
Attorney General was served a copy of an amended claim from the
plaintiffs, such "amended claim" appear to had been a mere claim letter
addressed to the Solicitor General for consideration of a settlement. I have
not been able to find any amended pleadings that were filed, indeed, as I
have already noted, on l3/L2/2017, court had to order for filing of
amended pleadings to reflect the substitution of the deceased Plaintiffs
with their administrators of the estate. It is apparent that the counsel for
the Plaintiffs failed and or omitted to file the required amended pleadings.

[17] As a result of the failure and or omission by the Plaintiffs to file amended
pleadings to reflect the substitution of the deceased Plaintiffs, this court
under O.24 r.l CPR is to proceed on the basis of the initial, only plaint on
record since the cause of action is surviving and continuing
5
 Resolution of issues

Issue No.1: Whether the suit is time barred

[18] Counselfor the Defendants Ms. Nabaasa Charity of the Attorney

General's Chambers, Kampala and Moses Muhumuza of the Legal
Department, National Forestry Authority, Kampala jointly submitted
that the Plaintiffs' cause of action in paragraph 5 of the plaintiff against
the defendants jointly and severally is for general damages, exemplary and
punitive damages for breach of trust, breach of contract, fraud and
trespass to land, breach of statutory duty and for restitution of their title
deed and the suit premises. That under S.3 of the Civil Procedure and
Limitation (Misc. Provisions) Act Cap 72;
" 1. No action founded on tort shall be brought against: -

(a) the Government,

(b) a local authority or
(c) a scheduled corporation after the expiration of two years
from the date which the cause of action arose.
2. No action founded on contract shall be brought against
the Government or against the local authority after the
expiration of three years from the date on which the cause
of action arose."

[19] Both counsel argued that the Plaintiffs have brought several causes of
action under tort and contract. That as per the above actions founded on
tort cannot be brought after 2 years and actions founded on contract
cannot be brought after 3 years. That in this case, first, that the Plaintiffs
contend that the Commissioner Land Registration ordered them to produce
the certificate of title on 16'h May 1990 for cancellation and therefore the
cause of action arose l6'h May 1990. Secondly, that as regards trespass,
under paragraph 6(1) of the plaint, on the l9'h February,1987, the then
District Forest Officer wrote to the plaintiffs alleging that they had an
illegal lease which encroached on the Forest Reserve and ordered them to
vacate the suit premises by 4'n April 1987. Both counsel submitted that
limitation not only cuts off the owner's right to bring an action for recovery
of the suit land that has been in adverse possession for over 12 years but

6
 also, the fact that the Plaintiffs were not in physical possession, they are
not entitled to bring a cause of action in trespass to land.

[20] The Defendants' counsel relied on the following authorities, among others;
1. Mathias Lwanga Kaganda Vs UEB, HCCS No.l24 of 2003 and
Sayikwo Murome Vs Kuko & Anor [1985] HCB 68 at p.65 for the
proposition that a suit which is time barred by statute must be
rejected because in such a suit a court is barred from granting a relief.
2. Amin Aroga Vs Haji Mohammad Yokonani & 4 Ors, HCCA No.09 of
2Ol7 for the proposition that the gist of an action for trespass is
violation of possession not challenge to the title. That to sustain an
action for trespass, the plaintiff must be in actual physical
possession.

[21] Both counsel concluded in their joint submissions that in this case, the
plaint was filed on 12'h July 2005, 15 years after the cause of action had
arisen and after the statutory period within which the suit ought to have
been filed, had lapsed and expired when also, the plaintiffs had lost
physical possession of the suit land to entitle them to bring an action in
trespass. They prayed for dismissal of the claim with costs.

[22] Counsel for the Plaintiffs Mr. Kituuma Magala of Kituuma-Magala & Co.
Advocates, Kampala submitted on the other hand thus;
a)It is not in dispute that under paragraph 5 of the plaint, the plaintiffs'
cause of action against the defendants jointly and severally is inter
alia, premised on trespass.
Relying on the authority of Justine E.M Lutaaya Vs Sterling Civil
Engineering Co. Ltd, SCCA No.11 of 2002, that the tort of trespass to land
is committed against the person who is in actual or constructive
possession of the land and that the Plaintiffs being registered owners of
the suit land are in constructive possession of the land and 2ndly, that as
lessees, whose lease is still runningtlll 2024, have capacity to sue in that
capacity for trespass to land, a continuing tort.
b)That the Defendants jointly and or severally are estopped to allege
that the plaintiffs' suit is barred by the law of limitation.
Relying on Sections 22 & 23G) of the Limitation Act and on the authority
of Charles Lubowa & 4 Ors Vs Makerere University, SCCA N f 201r
7
 for the proposition that the Defendant will be debarred from setting up the
statute of limitation if during the negotiations he/she has represented that
helshe desires that the plaintiff should delay proceedings and that the
plaintiff will not be prejudiced by faith of his/her representation. That in
this case, the conduct of the 1" and 2"d Defendants presupposed that they
wanted the Plaintiffs to delay legal action after promising them alternative
land following the directive of H.E the President in his letter of February
1989 and that therefore, limitation time started running from the 14'h
January 2004 when the Ag. Secretary of ULC wrote to the Ag. Director of
lands and Environment recommending that the Plaintiffs be compensated
since the role of the commission had since changed from that of
controlling public land to managing Government land on their behalf.
c)That the 1"'and 2"d Defendants waived their rights to present the
defence of limitation by their conduct.
Relied on the authority of NIC Vs Span International [1997-20021, Uganda
Commercial Law (UCL) Reports at page 105 for the proposition that "if
one party by his conduct leads another to believe that the strict rights
arising under the contract will not be insisted on, intending that the other
should act on that belief, and he does not act on it, then the first party will
not afterwards be allowed to insist on the strict legal rights when it would
be equitable to do so."

[23] In the first instance, I find that the plaintiffs' cause of action is not founded
on cancellation of the plaintiffs' certificate of title by the Commissioner
Land Registration. As per the agreed facts at scheduling conference, the
certificate of title of the suit property is still in the names of the Plaintiffs.
The plaintiffs cause of action in paragraph 5 of the plaint is for general,
exemplary and punitive damages for breach of trust, breach of
contract, breach of statutory duty and for restitution of their title deed
and the suit premises. Restitution of the title deed does not imply that
the title was cancelled and therefore the Plaintiffs seek for its restoration.
It implies that the Plaintiffs require either the title back or be compensated
for its being taken away. However, as rightly submitted by counsel for the
Defendants, the Plaintiffs brought several causes of action under tort and
contract and therefore, the suit is subject to S.3 of the Civil Procedure &
Limitation (Misc. provisions) Act Cap 72 wli,ich limits actions founded on

8
 tprt against Government to be brought before 2 years and actions founded
on contract, before 3 years and S.3 of the Limitation Act which limits
actions founded on contract or on tort to be brought before 6 years as
regards the 3'd Defendant.

124) In FX Miramago Vs A.G [f 979] HCB 24, the period of Limitation begins to
run as against a Plaintiff from the time the cause of action accrued until
when the suit is actually filed. According to the Defendants in this case,
the right of action accrued on the 16'h May 1990 when the Commissioner
Land Registration ordered the Plaintiffs to produce the certificate of title
to the suit premises for cancellation.

[25] It is however apparently pleaded by the Plaintiff that when they were
evicted from the suit land in 1988 and Iater the Commissioner Land
Registration ordered them to produce the certificate of title to the suit
premises for cancellation, as per the directives of H.E the President of
Uganda, the Plaintiffs were to be offered an alternative piece of land. The
Plaintiffs followed up the offer of the alternative piece of land until January
2004 when the 1" Defendant through its Ag. Secretary ULC wrote to the
Ag. Director of Lands and Environment, Ministry of Water, Lands and
Environment on 14/l/2004, about the unavailability of the alternative
Iand and recommending for payment of compensation to the plaintiffs
instead. The Permanent Secretary, Ministry of Water, Lands and
Environment in turn wrote to the 2'd Defendant that in view of the absence
of an alternative land to allocate to the Plaintiffs, compensation be
considered (see bundle of P.Exh.22).

[26] The above was a culmination of negotiations that started in 1987 following
a complaint by the Chief Forest Officer to the Commissioner of Lands and
Surveys that the lease offered to the plaintiffs encroached on the Mobuku
Forest Reserve (P.Exh.6).

l27l ln Charles Lubowa & 4 Ors Vs Makerere University, (supra) Katureebe

JSC, citing the case of NIC Vs Span - International Ltd NCLR [1997-2OOO]
100 held that,
"It would appear therefore that it is possible, on the peculiar
circumstances of a g iven case to hold that the conduct o f a party
9
 . or representations by the party to the other may preclude that
party from raising the defence of time-bar."
He also quoted Halsbury Laws of England, 4'h Edition Vol.28 paragraph
608 for the proposition that indeed, representations made by a party to
another or conduct on the part of that party which make the other party to
believe that proceedings may be delayed, can act to defeat that party's
defence of the action being time barred;
"608. Effect of negotiations between parties.
The mere fact that negotiations have taken place between
the claimant and a person against whom a claim is made does
not debar the defendant from pleading a statute of limitation,
even though the negotiations may have led to delay and caused
the claimant not to bring his action until the statutory period
has passed. It seems however, that the defendant will be
debarred from setting up the statute if during the
negotiations.....he has represented that he desires that the
plaintiff should delay proceedings and that the plaintiff will
be prejudiced by the faith of his representation."

[28] In this case, the long period of protracted negotiations and consultations
among the officials of the 1"' and 2"d Defendant coupled with the petition
to H.E the President of Uganda, the fountain of honour and the further
consultations that proceeded thereafter up to when a decision was reached
that instead of the plaintiffs being allocated an alternative land to the suit
Iand as directed by H.E the President of Uganda, they be paid
compensation, the Plaintiffs had a legitimate expectation that the 1" and
2"d Defendants would live up to their commitment and pay them the
compensation. With the involvement of the Fountain of Honour, the
Plaintiffs had an assurance of either the allocation of an alternative land
or compensation as later decided by the 1'' Defendant and recommended
to the 2'd Defendant. It is when the Plaintiffs followed this up to nil that
they filed the present suit.

[29] The cause of action therefore in the premises, accrued when the Plaintiff
unsuccessfully followed up the payment of compensation as contained in
the set of correspondences, P.Exh.22, the last one being daled 16/l/2OO4.
The plaint was filed on l2/7/2005. The 1" and 2'd Defendants had misled
10
 the Plaintiffs into not taking legal proceedings and it is therefore, the
position of this court that the defendants cannot use the statute of
Limitation to defeat the plaintiffs' claims. The Defendants are estopped
from alleging that the plaintiffs' suit is barred by law because their conduct
as well as by their representation, had waived the right to rely on the
defence of limitation of time.

[30] As regards whether the Plaintiffs could sue in trespass upon parting with
possession of the suit premises, in Justine E.M Lutaaya Vs Sterling Civil
Engineering Co.Ltd (supra), Justice Mulenga JSC (RIP) held,
"Trespass to land occurs when a person makes an un authorised
entry upon land, and thereby interferes or portends to interfere,
with another person's lawful possession of land, Needless to say
the tort of trespass to land is committed not against the land
but against the person who is in actual or constructive possession
of the land. At common law the cardinal rule is that a person
in possession of the land has capacity to sue in trespass.....
a land owner who grants a lease of his land does not have that
capacity to sue, because he parts with possession of the land.
During the subsistence of the lease, it is the lessee in possession,
who has that capacity to sue in respect of trespass to that Iand......
where trespass is continuous, the person with the right to sue may,
subject to the law of limitation of actions, exercise the right
immediately after trespass commences or any time during its
continuance or after it has ended. Similarly, subject to the law of
limitation of actions, a person who acquires a cause of action in
respect to trespass to land, may prosecute that cause of action after
parting with possession of land."

[31] In the instant case, in the first instance, by virtue of the fact that the
Plaintiffs are still the registered proprietors of the suit land, on the
authority of Adrabo Vs Madira, HCCS No.24 /2OL3 l2OL7l UGHCLD 102
(22 December 2OL7l, they are and still enjoy constructive possession of
the land from the time of the entry by the 3'd Defendant onto the suit land.

[32] Secondly, as registered owners of the suit land Iease hold, the Plaintiffs
have capacity to sue in trespass as lessees even after parting with actual
1L
 physical possession of the suit land given the fact that their lease is still
running up to 2024.

[33] In conclusion, I find that in this case, the Plaintiffs have capacity to sue
the defendants and the present suit is not time barred. The issue is
therefore found in the negative.

Issue No.2: Whether Uganda Land Commission had powers to grant a lease
over the suit land.

[34] Counsel for the Plaintiffs submitted that as to whether ULC had the powers
to grant a lease to the Plaintiffs on the suit land is a matter of law and
mixed facts topped up with evidence. That in this case, the plaintiffs were
offered the lease in 1975 extended to full term following an inspection
report dated 22-10-1982. That at the time the Plaintiffs applied for the
Iand, the law in place was "The Land Reform Decree, 1975" and the
"Public Lands Act 1969." Counsel contended that the law at the time
empowered the commission to allocate land as the controlling authority of
public land in Uganda then. That as per S.1(i) of the Land Reform Decree,
1975, all land in Uganda was public land to be administered by the
commissioner in accordance with the Public Lands Act, 1969 subject to
such modifications as may be necessary to bring that Act into conformity
with the Decree. That this position of the law is harmonised by S.10(2) of
the Forest Act Cap 146 which states that;
"If any dispute should arise as to whether or not any area is
included in a forest reserve or village forest, the decision of
the commissioner of lands and surveys shall be final and
a certificate under his or her hand recording the decision shall
be admissible in evidence in any court of law."

[35] Counsel submitted that in this case, the portion of the suit land claimed
by NFA, the 3'd Defendant as being part of Mubuku Central Reserve was
not accompanied by any survey report. This was conceded to by Mudini
Albert (DW2). It is his contention that the Defendants thus failed to prove
to court the actual size or acreage allegedly occupied by the Plaintiffs in
their title and size of the Mubuku Forest Reserve and as a result, they

1Z
 failed to cancel the Plaintiffs' title and or curve off the alleged piece of
land forming part of Mubuku Central Forest Reserve or otherwise.

[36] Counsel concluded that since according to DW2, as per the 1967 S.I No.73,
the size of Mubuku Forest Reserve is shown as 1660 ha and the 1998 S.I
No.63 (D.Exh.6) gives the area as 662 ha. this contradiction goes to show
that there is no evidence that the suit land is part of Mubuku Central
Reserve and therefore ULC had powers to grant a lease on the suit land.

[37] Counsel for the Defendants jointly submitted that according to the Land
Reform Decree L975, all land in Uganda was declared public Iand to be
administered by the ULC in accordance with the Public Lands Act, 1969.
That however, according to S.48 of Public Lands Act, 1969, the operation
of the law applicable to forest, minerals, or national parks is not affected
by that Act. Both counsel concluded that while all land in Uganda is public
land held and administered by the ULC with authority to grant estates,
rights, interest thereon, the land commission cannot legally grant leases
over land gazetted to be a forest reserve as was done in the instant case.

[38] It is my view that once it has been ascertained that any land is a gazetted
forest land or is owned and managed by any other entity or person, ULC
would have no powers to grant a lease on such land because, first of all,
such land would not be available for leasing since it would have already
been owned and managed by another entity or person. In Adan Abdirahani
Hassan & 2 Ors Vs Registrar of titles, Ministry of Lands & 2 Ors [2013]
eKLR, it was held that the commissioner of lands could only alienate un
alienated government land and not land already set aside for public
purpose.ln Funzi Island Development Ltd & 2 Ors Vs County Council of
Kwale & 2 Ors lz0l4l eKLR, the Kenyan court of Appeal held that the land
in question was forest land as per the legal Notice No.774 of 1964 and
proclamation No.44 of 1932 and that the land having been declared a
forest area was not available for alienation. I think, this was also my
position in M/s Bahesco Ltd Vs NFA & Anor, HCCS No.1612009 being
relied on by the 3'd Defendant in this case.

[39] The issue now is whether there is evidence to prove that a portion of the
land formed part of Mubuku Central Forest Reserve.
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[40] The genesis of the conflict is linked to a complaint by the Chief Forest
Officer which was to the effect that out of the approximately 450 acres of
land leased out to the Plaintiffs, 398 ha. are of Mubuku Forest Reserve
(P.Exhs.6 & 16). This complaint was brought to the attention of the
Provincial commissioner, Lands & Survey Department by the
Commissioner of Lands & Surveys by letter dated 1L/3/1976 (P.Exh.6)
where the Provincial commissioner was asked to ascertain the truth or
otherwise of this complaint. By letter dated 30/3/1976 (P.Exh.7), the
Provincial commissioner of lands and surveys (W) confirmed that indeed,
the Plaintiffs' plot encroached on the Mubuku Forest Reserve and that a
title had already been issued out to the Plaintiffs. This was also the
position of Permanent Secretary, Ministry of Lands & Surveys as per letter
dated 18/12 /1987 (P.Exh.15) wherein he attributed the illegal leasing to
mistakes by the previous government regime.

[41] Proof of the extent of the encroachment of the Plaintiffs on Mubuku

Forest Reserve was provided by the 3'd Defendant in the Cadastral
sheet 66/1 with its interpretation i.e, the map of Mubuku Forest
Reserve (BPl1100) against the Deed plan of the suit land (D.Exh.4). The
interpretation conclusion is that 355 hectares of the Plaintiffs' land is
within the Mubuku Forest Reserve. There is however no concrete
evidence as regards how the extent of the encroachment i.e, the 355
hectares was at arrived at. In my view, the cadastral map sheet without
a survey Report cannot be conclusive. It is noted that Mubuku Forest
Reserve like most if not all forest reserves in Uganda has no title as
none was presented in this case. In the absence of a survey Report of
the suit land vis a vis the Mubuku Forest Mapping and or a title either
under the defunct,/repealed S.1 No. 176/1968 which indicates the size
of the Forest Reserve as approximately 6.42 square miles (=1662
halP.Exh.16) or the operative S.I No.63/1998 which indicate the size
as approximately 662 hectares, it becomes apparently clear that the
extent of the encroachment is not ascertained. The foregoing explains
why there is a contradiction on the alleged acreage of the
encroachment, P.Exh.16 gives the acreage as 398 ha. while the
Cadastral sheet 66/1 (D.Exh.4) gives the acreage as 355 ha. yet both
exhibits originate from the defendant's officials.
74
142l Whereas Mudini Albert (DW2), an official of the 3'd Defendant refers to
the extent of encroachment on the forest as approximately 355 ha. the
earlier Ietters of the complaint against the plaintiffs regarding the
extent of the encroachment had referred to 397.83 ha. (Approx. 398
ha.), see P.Exhs.7,15 and 16 authored by the provincial commissioner
of lands and surveys(w), Permanent Secretary of lands and surveys and
the Ag. Chief Forest Officer respectively. It is not clear through
evidence whether the discrepancy of the acreages i.e, reference to 355
ha. as the extent of the encroachment was based on S.I No.63/1998
which reduced the size of the forest to 662 ha. (D.Exh.6) or on the
earlier correspondences based on S.I No.176 of 1968 that maintained
the size of the forest as approximately 6.42 square miles (= 1665.3
ha).

t43l The above notwithstanding, it is apparent to me that the reduction of the

size of the forest which is approximately by more than 1,000 ha. as per S.I
No.63/98, may have had an effect on the status of the Plaintiffs' suit Iand
in terms of the extent of the alleged encroachment into the forest land. The
burden of proof is on the Plaintiffs to show by way of evidence that the
suit portion of the land formed part of the excised/the"degazetted" over
1000 ha. as reflected in S.I No.63/98 and it was therefore not in the
Mubuku Forest Reserve. The Plaintiffs did not adduce such evidence.

[44] Instead, the available evidence i.e, correspondences from Forestry

officials, the Ministry of Lands and Surveys and the Ministry of
Environmental Protection (P.Exhs.13,15-21) appear to had adopted as a
general consensus that the Plaintiffs' approximately 398 ha. of their lease
fell in the Mubuku Forest Reserve.

[45] Nelson David Kilama (PW1) in his evidence appeared to admit that when
the 1" Defendant made a lease offer to the deceased Plaintiffs and granted
them a title, the validity of the lease was affected by the fact that part of
the said land fell under Mubuku Forest Reserve. The Plaintiffs were
evicted from the suit land in 1988. The Commissioner Land Registration
upon considering the lease to be illegal for its encroachment on the
Mubuku Forest Reserve, called for the Plaintiffs' title for cancellation.
Indeed, it is an agreed fa ct from the court conferencin notes of the

15
 to the plaintiffs, 398 ha fell in or forms part of the Mubuku Forest Reserve.
PWI testified in court on L3/3/2O23, with the help of his counsel, he had
the opportunity to adduce further evidence and clarify if the reduction of
the Mubuku Forest Reserve as per S.I 63/f998 placed the alleged 398 ha.
fell outside the gazetted forest. No evidence was adduced by the Plaintiffs
to prove that the agreed upon area of 398 ha. as the portion of
encroachment into Mubuku Forest Reserve in 1975 when the Plaintiffs were
offered the suit land, now fell outside the forest reserve by virtue of S.I
No.63l98 which reduced the forest reserve by 1,000 ha.

[46] The foregoing distinguishes the present case from NFA Vs Sam Kiwanuka,
SCCA No.17/ZOLO because in that case, it was established that the suit
land was indeed that same piece which was excised from the forest Reserve
by virtue of the reduction of its size thus the suit Iand ceased to be a forest
reserve. In the instant case, the plaintiffs fell short of adducing evidence
to prove that the suit portion of land measuring 398 ha. was excised from
the forest reserve by virtue of the reduction of Mubuku forest reserve as
per S.I 63/1998.
147) The foregoing being the true position of the matter, i.e, that the portion of
the Plaintiffs' lease measuring approximately 398 ha. fell in or forms part
of the gazetted Mubuku Forest Reserve, it follows that though the law at
the time in 1975 empowered ULC to allocate land as the controlling
authority of public land in Uganda, it had no powers to grant the lease over
the suit land to the Plaintiffs because the said portion of the land was not
available for leasing. Besides, the law, S.48 of the Public Lands Act 1968
forbid such leases to any other authority, entity or private persons. Section
10(2) ofthe ForestAct is therefore not applicable to the instant case.
[48] Before I take leave of this issue, I note that it is urgently vital that the
management of the 3'd Defendant (NFA) does resurvey of all forest reserves
and secure their respective titles for better future management of forestry
Iand and conflicts arising therefrom. The available relied upon cadastral
map sheets do not provide the necessary precise demarcations of the
forestry reserves' land. Therefore, with forestry land titles and mappings
in place based on survey, forestry land would be easily ascertained and
encroachers properly managed which as of now is a big challenge. The 2'd
issue is nevertheless in the premises found in the negative.

16
,Issue No.3: Whether there are remedies available to the parties.

[49] Considering that the I" Defendant allocated and leased the suit portion to
the Plaintiffs which forms part of a gazetted forest reserve as generally
admitted by both parties, it was important that before the eviction of the
plaintiffs, a survey of the plaintiffs' lease land vis a vis the forestry land,
is carried out for purposes of ascertaining the acreage of the actual
encroachment. As of the present, there is discrepancy as regards the extent
of the encroachment as reflected in P.Exhs.7,15 & 16 and DW2's evidence.
The Plaintiffs were evicted from the entire land and their Iease certificate
of title is subject of cancellation where the Plaintiffs are losing the whole
Iand as opposed to rectification where the Plaintiffs would retain that area
that would be found outside the forest reserve.

[50] In the absence of a survey report streamlining the interests of the Plaintiffs
and the 3'd Defendant, this court is entitled to find that the Defendants
have compulsorily acquired the Plaintiffs' entire land and therefore, they
are entitled to compensation and or damages for the land and
improvements made thereon. This is further fortified by the principle or
doctrine of legitimate expectation.

[51] In Atwongyeire Robert Vs Board of Governors Kyambogo College

School, HCMC No.2L6/2O16, the principle of legitimate expectation may
arise from:
"A promise and conduct or representation ....
The principle ... is concerned with the relationship between
the public administration and the individual. It seeks to resolve
the basic conflict between the desire to protect the individual's
confidence in expectation raised by administrative conduct and
the need for administrators to pursue changing policy objectives.
The principle means that expectqtions raised as a result of
the administrative conduct may have legal consequences.
Etther the administration must respect those expectations or
provide compelling reasons why the public interest must take
priority."

17
I52l The application of the doctrine of legitimate expectation was explained in
the case of Council of Civil Service Unions Vs Minister for the Civil
Service [f984] 3 All ER 935 at 943-944 thus;
"But even where a person claiming some benefit or privilege has
no legal right to it, as a matter of private law, he may have
a legitimate expectation of receiving the benefit or privilege
and if so, the courts will protect his expectation by judicial
review as a matter of public law. This subject has been fully
explained by Lord Diplock in O'Relly Vs Mackman [1982] 3
AII ER 1124, (1983) 2 AC 237....legitimate, or reasonable
expectation may arise either from an express promise given
on behalf of a public authority or from the existence of a
regular practice which the claimant can reasonably expect
to continue."
As I observed in Kafu Sugar Ltd & Anor Vs The Attorney General & 5 Ors,
C.S No.55 of 2Ol7 12O221UGHCCD 106 (17 June 2022), the total effect of
the above authorities is that the principle of legitimate expectation is
based on the proposition that where a public body states that it will do (or
not do) something, a person who has reasonably relied on the statement
should in the absence of good reasons be entitled to rely on the statement
and enforce it through the courts of law.

[53] The Plaintiffs in this case are partly seeking a judicial review of the 1"' and
2"d defendants' decision not to consider compensating the Plaintiffs for the
Iost land, farm and other developments thereon. The plaintiffs are relying
on promises and representations contained in the following
correspondences;
a) A set of letters dated 9/12/2003 by the plaintiffs to the chairman
ULC, 12/l/2OO4 addressed to the secretary ULC, L4/l/2OO4
addressed to the Ag. Director of lands and Environment, Ministry of
water, Iands and Environment and 16/1/2004 addressed to the
Attorney, admitted in evidence and collectively as P.Exh.22. These
correspondences had a report about the intervention of H.E The
President who directed for the provision of an alternative land to the
Plaintiffs in lieu of the suit land.

18
 b) Letter dated 2616/?OOGby the Solicitor General to the Chief
Government Valuer for valuation of the suit land and its
developments with the view to settle the Plaintiffs (Part of P.Exh.23).
c) Letter dated 8/Ll/2oL1 by the Ag. chief Government Valuer
(P.Exh.24).
d) Chief Government Valuer's Report of the suit land (P.Exh.27).

[54] All the correspondences are express and unambiguous promises and
unqualified guarantee/representations as per the conduct of the l" and 2'd
Defendant officials that the plaintiffs would be offered an alternative land
for the alienated suit land or compensation for the loss of the Iand, farm
and other developments thereon.

[55] The 1" and 2'd Defendant officials settled for compensation of the
plaintiffs' lost land and the developments thereon. The plaintiffs under the
doctrine of legitimate expectation, relying on the promise and conduct or
representation of the 1" & 2"d defendants' officials, especially with the
intervention of the fountain of honour, H.E The president of Uganda
(P.Exh.22) expected to ultimately be paid the compensation. The courts
have the duty to protect the plaintiffs' expectation. Legitimate expectation
is neither a claim nor defence but a legal principle that parties need not to
plead for its application as counsel for the Defendants argued in their
submissions. In this case, the facts and evidence for its application are
contained in the admitted correspondences; the Inspection report for the
purpose of lease extension (P.Exh.10), correspondences in regard to the
alleged encroachment and need for allocation of alternative land farm and
compensation of the plaintiffs (P.Exhs.22,23 & 27).

[56] Lastly, as admitted by the parties in this case, the 1" Defendant allocated
and leased the suit land to the plaintiffs and went ahead to give full term
of 44 years after the Inspection Report by the Senior Staff Surveyor
(P.Exhs.1&10). The officials of the Ministry of Lands who are
agents/servants of the 2'd Defendant and who are at the same time the
official custodian of all land documents in Uganda, i.e, titles, public land
gazettes, cadastral map survey sheets, and are vested with the tools,
instruments, machinery and access to information regarding all land in
Uganda failed to alert/ notify and or advise the 1" Defendant about the
19
 status of the suit land and proceeded to process and issue the Plaintiffs
with the lease for the land in question thus one is entitled to regard them
as being responsible for the present predicament affecting the land and
the parties. The 1"' and 2nd Defendants are faulted for their dereliction of
their statutory and constitutional duties in not taking the trouble to know
the true status of the suit land before its lease to the plaintiffs. The 3'd
defendant ought to have first ascertained the actual position regarding the
extent of the alleged encroachment into its land before it swung into the
action of evicting the plaintiffs from the suit land. As per Mudini Albert
(DW2) an official of the 3'd Defendant, the Plaintiffs were by and large
evicted from the suit land. The Iocals are planting on the suit Iand trees on
behalf of the 3'd Defendant. The submissions of counsel for the Defendants
therefore that the Plaintiffs are still on the land is not true and correct.

[57] In conclusion, I find that as a result of the errors and mistakes of the 1"'
Defendant Land Commission and the omissions of the officials of the 2"d
Defendant, the Plaintiffs innocently and in good faith took up the lease
offered by the 1" Defendant, developed it extensively as revealed by the
Inspection report, 1982 (P.Exh.10) and the Chief Government Valuer's
Report, 2011 (P.Exh.27). Then, the 3'd Defendant emerged out without
consideration of the Plaintiffs' entire interest in the suit land and evicted
them therefrom, and as of now, the Plaintiffs are suffering the
consequences of the actions and conduct of the Defendants. The Plaintiffs
did not know and did not have the capacity to know that the suit portion
of land was comprised in the Mubuku Forest Reserve, but for the 1" and
2'd Defendants, they knew or ought to know the full status of the suit land.
Surely, in the circumstances of this case, the Plaintiffs would deserve and
they are entitled to compensation for the loss they occasioned as a result
of the Defendants' actions.

[58] For the reasons above, I find the Defendants liable for payment of
compensatory damages to the plaintiffs for their alienated/loss of the land
and the developments thereon.

20
 a) Compensatory damages

[59] Compensatory damages, also known as actual damages are damages

awarded by court equivalent to the loss a party suffered; Birdsall Vs
Coolidge 93 US.64 [18761. The amount is based on the proven harm, loss
or injury suffered by the plaintiff. In Esso Standard (U) Ltd Vs Semu
Amanu Opio, SCCA No.3/1993, court held thus:
".....compensation to the plaintiff. He must not only be
compensated for proved actual loss but also for any iniury
to his feelings and for having to suffer insults, indignities and
the \ike....."
Compensatory damages are both economic and non-economic. Economic
damages are considered as objectively "verifiable" and therefore "actual"
because they are quantifiable and the non-economic ones are subjective
and are not quantifiable and therefore "general".

[60] Generally, damages are distinguishable from compensation. Compensation

is a broader concept which encompasses payments made to a person in
respect of some kind of loss or damage suffered due to reasons like
acquisition of property by another, statutory violations, termination of
employment etc, requiring the aggrieved party to be compensated; while
for damages, they emanate from actionable wrongs; (Halsbury's laws of
England, Damages, vol. 12 (4'h edn) para. 815). In common parlance
however, compensation is often used to refer to damages. It follows
therefore, that once a party is awarded compensatory damages, he or she
cannot again qualify for separate general damages because damages
generally are compensatory in nature, See Livingstone Vs Rawyards Coal
Co. [18801 5 App.Cas.25 at 59 where it was held that compensatory
damages' objective is to put a party who has been injured or who has
suffered in the same position as he would have been in if he had not
sustained the wrong for which he is now seeking his compensation or
reparation, see also Dharamshi Vs Karsam lL974l EA 41.

[61] In the instant case, counsel for the Plaintiffs submitted that the Plaintiff
were deprived of their land and the developments thereon when their lease
was still running lo 2024 (P.Exh.1). As per the inspection report of the suit
property made in 1982 for the purpose of the lease extension (P.Exh. 10)
2L
 ,the land had been extensively cleared; 50 acres had been cleared for
growing of food and cash crops, there was a Grade A residual house, 6
semi-permanent houses for the workers,33 heads of cattle (cross and
exotic breeds), sheep and goats, a permanent Cattle Dip, a dam etc. That
by 1988, when the plaintiffs were apparently evicted, they had improved
the suit land 20 times better as later found by the Valuation expert (PWs)
and the Valuation report that assessed it at Ugx 15,060,682,770/= as at
December 201 1 (P.Exh.27).

[62] In addition to the above, the perusal of the 1982 Inspection Report
(P.Exh.f0) show that the suit land had other infrastructure; the grazing
field divided into 25 paddocks with extensive supply of water from Hima
cement factory, and a 5km network of road. I find that the entirety of the
above was neither denied nor challenged by the Defendants. The
Inspection Report (P.Exh.10) was a report from the Principal Staff
Supervisor Kabarole, addressed to the secretary ULC for purposes of the
lease extension in 1982 while the Valuation of the suit propertywas at the
instance of the Solicitor General who as per letter dated 26/6/ 2006 (part
of P.Exh.23) asked the Chief Government Valuer, Ministry of water, lands
and Environment to inspect the locus and compile a report on the value of
the land and its developments. As per the Chief Government Valuer's
report, the land and the developments thereon were valued at Ugx
15,060,682,77O/= as of 13l12 /20ll (P.Exh.27).

[63] However, counsel for the Plaintiffs argued that the Plaintiffs are entitled to
a current value of the property and the developments for the projected
crops yield, livestock production and net income in addition to the value
of the land and the developments thereon. Upon his tabulation as per
P.Exhs.23,24,25,26 and.27, he concluded that the Plaintiffs are entitled to
be paid total compensation of Ugx 35,736,655,037.

[64] In addition, counsel for the Plaintiffs sought for general damages for loss
of livelihood, Ioss of business and prospects return on investments,
inconveniences, mental anguish, anxiety and uncertainty which
contributed to the demise of the original 1" and 2'd Plaintiffs and affected
the social economic welfare of the Plaintiffs(deceased) and those living,

22
 their children, family and dependants negatively and proposed Ugx
10,000,000/=.

[65] Lastly, counsel for the Plaintiffs sought for a total of Ugx 5,000,000,000/=
as exemplary damages for the distress and injured feelings the Plaintiffs
were subjected to by the actions of the Defendants arising from the
oppressive, arbitrary and unconstitutional decisions of the Defendants
jointly and or severally. He prayed that the sought for compensation,
general damages, aggravated and exemplary damages carry interest at the
rate of 24% p.a.

[66] Counsel for the Defendants jointly submitted that the Plaintiffs' claim of
compensation of projected crop yields, livestock production and income
projections are speculative because they were based on mere research to
arrive at figures thus they are too excessive.

[67] As regards the Valuation Report (P.Exh.27) which put the value of the land
and the developments thereon at Ugx 15,060,682 ,770/=, both counsel for
the Defendants submitted that the Plaintiffs cannot be compensated for an
illegal dealing as ULC did not have powers at the time to give a lease on a
forest reserve. 2ndly, that the report is also speculative because the
Government Valuer (PWs) did not personally visit the site. As regards the
claim for general damages, aggravated and exemplary damages, both
counsel submitted that they were without proof. They urged this court to
use its discretion judiciously and decline to grant the prayer for the above
damages.

[68] The principle of assessment of damages is generally in "resritutio in inter

grum" that is the Plaintiffs should be restored as far as money can do it,
to the current position that they would have been had the injury or damage
not occurred, Kitgum District Local Government & Anor Vs Ayella, HCCA
No.O8l2015 [20181 UGACCD 118 (6 December 2018). This explains why
as I have already stated in the foregoing, the Plaintiffs cannot claim
compensatory damages and at the same time claim general damages
separately. The Plaintiff can nevertheless claim special damages, punitive
and or aggravated damages separate from compensatory damages if they
are properly pleaded and proved.
23
[69] The court has discretion as to the quantum of damages it would award in
a claim of damages. The assessment does not depend on any legal rules
but the discretion of the court is however limited by the usual caution or
prudence and remoteness of damage when considering the award of
damages, Nasif Mujib & Anor Vs A.G, HCCS No. l6O/2Ot4.ln awarding
general damages, the court would simply be guided by the opinion and
judgment of a reasonable man in determining what sum of money will be
reasonably awarded in the circumstances of the case. The essence of
damages is compensatory, Mugambe Vs Kayita & Anor, HCCS No.339 of
2020.
[70] In this case, whereas the Defendants appeared to down play the Chief
Government Valuer's Report (P.Exh.27l, it is a statement of Ag. Chief
Government Valuer as per his letter dated 6/1L/2OIl, the Director Crop
Resources as per his letter daled24/Il/201L and the Ag. Director Animal
Resources dated 2 5/1 l/2011 (collectively admitted and marked P.Exh.24)
that "the basis of the Chief Government Valuer's Report reflected the fair
compensation the plaintiffs were entitled to." These are Reports of
technical persons from Government departments in the areas of
assessment of land value, crop production and animal resources. Besides,
the Valuation Report, 2011, appear consistent in material aspects with the
inspection Report that was issued about 3 decades ago when the suit land
was inspected for purposes of extension of the lease. The report was based
on the market value of the suit property at the time the valuation exercise
was conducted. The report is neither speculative nor hypothetical because
it is backed by other technical reports on record (see also correspondences
marked P.Exh.24).
[71] In view of the fact that none of the above documentary evidence was
challenged by the Defendants, I find the Chief Government Valuer's Report
(P.Exh.27) a representation of the fair value of the suit land, loss of profit
from crop production, loss of profit from livestock production and
disturbance allowance aI 30% all totalling to Ugx 15,060,682,770/= it is
the best available evidence on record to guide court in the assessment of
the fair compensatory damages for the plaintiffs. The available evidence is
to the effect that the Plaintiffs were evicted from the entire suit Iand and
the valuation report covered the entire land i.e, 444.9 hectares. The
24
 jmplication is that upon payment of the compensation, the entire land is
forfeited to the 3'd Defendant.
[72] The Plaintiffs' claims of damages beyond and above that based on the
Government Valuer's Report on the ground that compensation has been
enhanced by the passage of time from when the Report was made is
untenable. The enhanced claim for crop and livestock production totalling
to Ugx 35,736,655,O37/- is speculative for its basis is not ascertained
because the enhanced claims are not based on the actual loss; they are
hypothetical in nature, for example, the reports relied on by counsel for
the Plaintiff did not take into account weather or climate changes which
may lead to droughts that affect both crops and livestock (there is no
evidence that the water dams and the sprinkling irrigation facilities on the
land would secure and cater for the entire suit land measuring
approximately 444.9 hectares), animal disease break outs (vaccinations do
not guarantee curb of disease break outs) or change of user of the land and
investments which the owner would have been susceptible to during the
period in question. Besides, the Plaintiffs did not address court as to what
happened to the livestock upon eviction from the land. As to what became
the fate of the livestock, I believe the Plaintiffs maintained the stock
elsewhere since there is no evidence that was adduced by the Plaintiffs
that the animals were either destroyed and or killed during the eviction
from the suit land. The issue of the projected current crop yields, livestock
production and income projections does not therefore arise in the
circumstances of this case. Such damages were nevertheless covered by
the compensatory valuation of the property and in any case, they are
covered by interest where it would be awarded and the "disturbance
allowance of 30% that was in this case considered and awarded during the
valuation of the suit property.
t73l As already observed, once the compensatory damage is allowed and
awarded, the Plaintiffs would not be entitled to claim separately for general
damages. The general damages therefore claimed in this case are
untenable.

l74l As regards the claim for aggravated and exemplary damages, no evidence
was adduced by the plaintiffs in support of such i.e, that the defendants'
actions were malicious, high handed, oppressive, arbitrary, harsh and
)q
 ,unconstitutional conduct or where there was desire to a profit; Rookes Vs
Bernard (1964) Atl ER 367. The defendants' conduct appear to had been a
result of an error or mistake for which the stakeholder Ministries of
Environmental protection, lands and surveys, Solicitor General and
Attorney General, found regrettable. The 3'd Defendant's actions were
merely a fulfilment of its mandate to protect and preserve forest reserves.
The misfortune of the Plaintiffs and the mistakes of the 1"' Defendant were
attributed to the previous regime Government which was characterised by
mal administration of state activities, See P.Exh. l5.
[75] In the premises, I find that there is no evidence that would warrant award
of aggravated damages or later on, exemplary damages. I do not therefore
find that the Plaintiffs suffered any compensatable Ioss/damages over and
above the compensation that is obtained in the Government Valuer's
Report (P.Exh.27) which included 30% disturbance allowance.
[76] In conclusion, judgment is given in favour of the Plaintiffs with the
following orders;
a) A declaration that the 1"'& 2'd Defendants breached their statutory
duties and trust to the Plaintiffs which led to the wrongful eviction of
the Plaintiffs from the suit premises by the 3'd Defendant.
b) A declaration that the Plaintiffs are entitled from the Defendants
jointly and severally to compensation of the Ioss of the suit property
and the developments thereon, they are awarded compensatory
damages amounting to Ugx 15,060,682,77O/= as assessed by the
Chief Government Valuer.
c) The compensation to carry interest at court rate from the date of
filing the suit until payment in full.
d) The Plaintiffs as the successful Iitigants are awarded costs of the suit.

Dated this 28'h day of March, 2024.

Byaruhanga Jesse Rugyema

JUDGE.

26