Despite the efforts by the National Forestry Authority (NFA) to bring to court’s attention the need to preserve Bugoma Forest, one of Uganda’s oldest remaining forests, it was decided otherwise. Court ruled that part of the land in dispute, which was being claimed by NFA as part of Bugoma Central Forest Reserve, measuring approximately 5579 hectares, belongs to the Bunyoro Kitara Kingdom and Hoima Sugar. Edward Anyoli writes.

In 2018, NFA moved to the High Court in Masindi to block the Omukama of Bunyoro Kitara, Hoima Sugar, and the Uganda Land Commission over trespass.

NFA sought a conservatory order from court to compel the three entities to vacate the land. 

Through its lawyer, Joseph Kwesiga, NFA said the trio fraudulently acquired a certificate of title, comprised in freehold register volume HQT 876 Folio 18 Buhaguzi Block 2 Plot 216 land at Kyangwali and leasehold register volume HQT 887 Folio12 Buhaguzi Block2 Plot2016 at Kyangwali in Hoima district.

The management of NFA argued that the certificate issued by the Uganda Land Commission (ULC) on August 1, 2018, and August 5, 2018, was done fraudulently.

Subsequently, NFA filed a suit asking court to issue an eviction order, as well as to cancel the title held by the Bunyoro Kitara Kingdom and Hoima Sugar. NFA also asked for general damages, interests, and costs. 

ULC was established by the 1995 Constitution and its mandate is to hold and manage any land in Uganda vested in or acquired by Government. 

The commission is also responsible for managing land owned by the government outside the country.

NFA ARGUMENT 
Kwesiga said the certificates of title that were given to Hoima Sugar by Bunyoro Kitara were illegally acquired and that the land was carved out of Bugoma Central Forest Reserve, which belongs to NFA.

To bolster its case, Kwesiga referred court, presided over by Justice Wilson Masalu Musene, to the testimonies and evidence of two witnesses — Stuart Maniraguha and Benard Opar, both employees of NFA.

Kwesiga, in his submission, stated that Maniraguha participated in the opening of the boundaries of Bugoma Central Forest Reserve to identify a part of the land being claimed by the Omukama of Bunyoro.

A charcoal burning site found in Bugoma Forest

He argued that contrary to the assertion by defence lawyers, Maniraguha knew the boundaries of Bugoma Forest well and that he testified when they were in the field.

Also, Kwesiga presented to court a report on the boundary opening of Bugoma Forest. He stated that overlap does not mean the land is not within the forest, adding that the land forms part of the forest.

He asked court to believe the evidence of the witness, saying he was consistent by showing the mark stones N0.29 and survey report that was done by the people who gazetted Bugoma Forest.

The second NFA witness Opar. He told court that the land the kingdom was claiming is situated within the forest reserve. 

He said Bugoma Forest was surveyed and gazetted under N0 472448/1&3 and that the record is still available at the office of the commissioner surveys and mappings in Entebbe.

Kwesiga told court that the Bunyoro Kingdom stealthily created the title when the boundary opening exercise was going on, which he said was fraudulent. He said land measuring approximately 5,579 hectares, that is being claimed by Bunyoro Kingdom, was part of Bugoma Central Reserve.

Kwesiga asked court to find that ULC granted the certificate of the title outside its mandate and gave out a forest reserve illegally. He, therefore, implored court to cancel the title under section177 of the Registration of Titles Act.

CONTRADICTION
Wilson Ogallo, a top commissioner from surveys and mappings, contradicted NFA. He told court that there was no instruction to survey Bugoma Forest. 

Ogallo said at the department of surveys and mapping, there was no record that the land in dispute was gazetted as a forest reserve. NFA witnesses said the land was surveyed.

He explained to court that the process of survey and acquisition of the titles held by the kingdom and Hoima Sugar was proper, adding that the record in his department showed that registered owners are Bunyoro kingdom and Hoima Sugar.

BUNYORO DEFENCE
Robert Irumba Kasangaki, the lawyer representing the kingdom, argued that the land is an ancestral site that was reinstituted by the Government to the kingdom as a cultural institution and that the land was leased to Hoima Sugar.

Kasangaki maintained that the kingdom and Hoima Sugar titles were acquired transparently and that a title is conclusive evidence of ownership.

Kasangaki told Justice Masalu that the NFA witnesses did not prove any fraud that the land in dispute is a gazetted reserve and asked court to find that the claims of fraud had not been proved to the required standard.

According to Kasangaki, there was evidence of human habitation and that Muhangaizima cultural site and remnants of bricks and grinding stones were visible in the area to confirm that the land belonged to the kingdom.

HOIMA SUGAR’S DEFENCE
James Nangwala, a lawyer who represented Hoima Sugar, told court that under section 4 of the National Forestry and Tree Planting Act, private forests exit. 

Nangwala argued that there is a difference between Bugoma Central Forest Reserve and the Kyangwali area and that the forest in the Kyangwali area constitutes private forest under the control of the Bunyoro Kingdom, which leased it to Hoima Sugar.

On whether there was a fraud, Nangwala said fraud must be actual, adding that the alleged fraud had not been proved by NFA. He said from the survey and analysis that was carried out, the land does not belong to NFA.

COURT DECISION
Justice Masalu said the evidence of defence witness John Musungu, a surveyor, was instrumental and elaborate. 

Musungu testified that he was appointed as the kingdom’s surveyor.

Musungu said he surveyed the land as requested by the chairperson of ULC to secure land titles after the land had been returned to the kingdom.

“I was approached and I agreed to work with the commissioner for surveys and mapping to be able to secure titles for the properties that were returned to the kingdom. That assignment entailed land at Kyangwali. I was satisfied that the land they showed me is, indeed, part of human settlement and nobody would have been settling in a forest reserve previously,” Musungu said.  

Justice Masalu noted that another piece of evidence that was relevant to the case was the report on boundary opening for Bugoma Forest.

“In my view, the exercise was transparent. Bernard Opar, a boundary specialist, represented NFA in the exercise and agreed with the findings as testified by John Musungu,” Masalu said.

He noted that even commissioner Sarah Kulata confirmed in a letter, dated September 1, 2016, that the land in dispute was in the north-western part of Bugoma.

“Kulata was not called as a witness for the plaintiff (NFA) for purposes of verifying whether defence witness number one, Wilson Ogallo, stated as she quoted him.

In the absence of Sarah Kulata as a witness who should have been subjected to cross-examination over the same issue, then I agreed with the submission of Nangwala that in case of any conflict between the evidence of Ogallo and Opar, Ogalo should be believed. 

This is because the authority of the commissioner is derived from section (2) of the surveys Act,” Masalu said.

Justice Masalu said Kyangwali ancestral land is listed as number five on the list of properties returned to the Bunyoro Kingdom by the Government. Court noted that the land in dispute belongs to the kingdom.

On whether the title was fraudulently acquired, Justice Masalu said he considered Ogallo’s evidence, then compared it with that of Opar and established that the land in dispute is outside Bugoma Forest and belongs to the Bunyoro Kingdom.

“In my view, that evidence negates any assertion of fraud as alleged by the plaintiff (NFA) and evidence by Opar. Ogallo did not find any irregularity with the survey process leading to the issuance of the suit titles. What comes out clearly from Ogallo’s evidence is that the suits certificates of titles were regularly procured and cannot be impeached on account of fraud. Evidence coming from a senior government official heading the department of surveys and mapping was very crucial and court cannot take it for granted,” Masalu said.

WHAT THE EU SAYS
The European Union team in Uganda visited Bugoma about three weeks ago and made some observations. 

The EU says while Uganda has a right to development, the country must balance it with environmental conservation. The EU team cautioned against the move to convert part of Bugoma Forest into a sugarcane plantation.

They argued that Bugoma was a home of diversity and a catchment area for Lake Albert. They also warned that climate change was real and places like Bugoma needed to be preserved.

Environmental campaigners have also voiced concern over the destruction of the forest reserve.

Dickens Kamukama, the head of Save Bugoma, says there is incontrovertible evidence that the forest being cut down for sugarcane plantation is part of the forest reserve.

“It is clear that the Government and Hoima Sugar are not following due process of the law as spelled out in the National Tree planting Act and the Constitution," he said.

Kamukama argued that de-gazettement is a process where the communities and National Forestry Authority have to consent and a decision is taken by Parliament. 

"Hoima Sugar and Government have decided to change the land use on Bugoma outside the law,” he observed.