THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

CIVIL SUIT No. 010 OF 2009

1. MRS. LOZIO MASIKA BEATRICE }}

2. MR. MWIGHA EZEKIEL }}

3. MR. IBRAHIM KITALIMIRE }} :::::::::::::::::::::::::::::::::::::::::::::::::::::

PLAINTIFFS

4. MR. BYAKATONDA PAUL }}

5. MR. THEMBO JOSEPH }}

All suing in representative capacity on behalf of 284 others.

VERSUS

ATTORNEY GENERAL OF UGANDA ...................................................... DEFENDANT

BEFORE: - THE HON. MR. JUSTICE ALFONSE CHIGAMOY OWINY – DOLLO

JUDGMENT
The 5 Plaintiffs named herein, together with the 284 others they represent, (all of whom are
hereinafter collectively referred to as the Plaintiffs), have jointly and severally brought this suit
against the Defendant, for wrongful eviction by agents of the Defendants from lands comprised
in LRV. LWFP/211 Folio 14, Volume 2238, Block 38 Bukonjo (measuring 82.4 hectares),
LWFP Block 37 Bukonjo, Plot 1 (measuring 114 hectares), and unregistered customary
landholdings measuring 1854 acres – in all, lands measuring 2050 acres – situated at Bukangara
and Rwehingo villages of Bukonzo West, Kasese District (hereinafter otherwise referred to as
the suit lands); which they claim they are the lawful proprietors and were in occupation of. They
therefore seek declarations or orders of this Court as follows; that: –

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(i) The Plaintiffs are the respective lawful proprietors of the suit lands; and are entitled to
possession and occupation thereof.
(ii) The Defendant, its agents, servants or any person acting under its authority, give vacant
possession of the suit lands to the Plaintiffs.
(iii) A permanent injunction issues restraining the Defendant, its agents, servants, or any
person acting under its authority, from trespassing on the suit lands.
(iv) The Defendant pays to the Plaintiffs special damages of shs. 173,187,201/; and as well,
general and punitive damages.
(v) The Defendant pays costs of the suit to the Plaintiffs.
(vi) The Defendant pays interest on the damages and costs.
(vii) Any other relief the Court may deem proper to grant.

The Defendant has, in its written statement of defence, denied the claim made by the Plaintiffs of
lawful proprietorship of the suit land; and contends that the Plaintiffs’ claims of ownership of the
suit lands is a denial of the landlord’s (Government) title thereto, which is illegal. It also
contends that the Plaintiffs dishonestly acquired titles to the suit lands they claim ownership of. It
has also denied that it forcefully occupied the suit lands. It therefore contends that the suit is
misconceived and frivolous; hence the Plaintiffs are not entitled to any of the reliefs sought, and
the Court should dismiss it with costs.

In their joint scheduling memorandum, the only fact the parties agreed on is that the suit lands
are situated in Rwehingo and Bukangara found in Nyakiyumbu and Mukunyu Sub Counties,
Bukonzo County, Kasese District. In the course of the hearing, Court was informed of some on–
going discussions within Government Ministries with a view to reaching an amicable settlement.
The settlement however did not come to pass; with the result that the case underwent a full trial.
The issues the parties agreed on, and proposed to Court for determination are: –

1. Whether the suit lands belong to the Plaintiffs.

2. Whether the Defendant lawfully evicted the Plaintiffs from the suit lands.
3. What are the remedies available to the parties?

Issue No. 1: Whether the suit lands belong to the Plaintiffs.

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The evidence adduced by and on behalf of all the Plaintiffs in this regard is that the Plaintiffs
hold the suit lands severally either under leases in accordance with the Registration of Titles Act,
or customary tenure under Bakonzo custom and practice of inheritance; and that other
proprietary interests, like that of Lozio Masika Beatrice (PW1), Nyakatonzi Cooperative Union,
Mohammed Issa, and Byakatonda Paul (PW10 – who had customary inheritance as well), were
acquired by purchase either from customary or leasehold owners. Otherwise, the suit lands have
their roots of title in or trace it customary tenure.

To show that the suit lands do not belong to Government, Yosiah Kireru (PW3) testified that the
1993 Task Force for settlement of land disputes in Kasese, headed by Hon Kisamba Mugerwa,
and of which he was a member, in its report of 5 th January 1993 (exhibit PEI(3)), never mention
the suit lands on the list of Government land for resettlement of the landless. Equally, Cabinet
Minutes 179 of 1994 (exhibit PEI(1)), and 254 of August 24th 1994 (exhibit PEI(2)), which both
list Government land identified for resettlement of the landless, make no mention of Rwehingo
or Bukangara. It was instead on the 19 th September 2007 when Hon Hillary Onek, Minister of
Agriculture, made a statement (exhibit PE2) that the suit lands belong to Government and should
be given to the Basongora pastoralists; but the Bakonjo objected to this.

Habib Hamadi Hamisi (PW5), testified that he owns up to 150 acres of land in Rwehingo, whose
root of title he traced to his grandfather. He stated that around 1989 the youth were resettled in
the area on land given by one Salambongo. His further testimony was that in 2007, Dr. Wesonga
requested the community of Rwehingo to offer land to Government; but the community refused.
In the same year, a Ministerial team headed by Hon Al Haji Kirunda Kivejinja also requested
that part of the land be given to Government for allocation to the cattle keepers; but the
community refused. He maintained that Government had, otherwise, never shown interest in
these lands; and certainly had never made any claim of ownership over them before.

Sinowa Gabriel (PW7), an Agricultural Extension worker with 30 years experience, testified that
he served as an extension worker in the area of the suit lands from 1989; and that the farms
therein belong to several people, including the youth, who grew cotton and ground nuts thereon.
Ezekiel Mwigha (PW8) testified that in 1989, Government resettled them together with the youth
at Muruti; and he got 3 acres of land from Salambongo the village elder. He explained that the
750 acres of land distributed among the youth became each individual youth’s property. He
stated that when Hon Minister Kivejinja requested the community sell the land to Government,
they refused.
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The contention by these witnesses that Government has no ownership rights over the suit lands
was corroborated by the testimony in Court by Hon. Minister Crispus Kiyonga (PW11), the
Member of Parliament for Bukonzo West, and himself a Government Cabinet Minister, who has
personal knowledge of the various governmental actions taken with regard to the land conflicts
in Kasese. He stated that he knows as a fact that the Plaintiffs have land in the suit area. He gave
a very sober, cogent, and balanced account of the genesis of and crux of the endemic land
conflicts in Kasese District that has culminated in this Court action by the Plaintiffs.

He stated that with a view of resolving the problem, Government adopted the recommendation
made by two of its Ministerial Committees which was that Government should divest itself of
some of the institutional lands in Kasese District; and a decision was also made that:-

“Governmwent was to negotiate with the land owners of Nyakatonzi, Rwehingo,

Bukangara, and Muruti, on the willing seller willing buyer basis as here there was no
Government institutional land ... The suit area had three forms of land ownership:
customary, leasehold, youth scheme which started in 1988-1989 during NALO insurgency,
and had 750 acres. The youth parcelled the land amongst themselves. This was not
Government land.”

With regard to the evacuation of the cultivators from the suit land, he testified further that: –

“It was hoped that within a short time owners of the land evacuated would sell land to the
Government. ... The owners of the land have however shown their unwillingness to sell.
They seek to go back to the land. ... In my view, the owners of the land who do not wish to
sell should be allowed to go back to their land. As for the Youth Scheme, the land has
relieved problem of unemployment; and due to long stay they should be recognised as
owners as they were settled on public land.”

The sole defence witness, Dr. Wesonga Wanderema (DW1,) testified that an Inter–Ministerial
Committee made recommendations to Cabinet; and Cabinet decided in an Action Extract Paper
Min. No. 387 (CT 2007) recommending settlement of affected pastoralists and cultivators and:-

“directed that mechanisms be put in place to negotiate with those having land titles in
Rwehingo, Bukangara, Nyakatonzi, for settling other people on their land. On the ground, it
was found that both cultivators and pastoralists were at Nyakatonzi with a dividing line.
Same with Bukangara. Some people had land titles. As for Rwehingo, some youth had

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 occupied part of the land. Fighting erupted in the area; so Government intervened and
removed both sides from the area to pacify it. A survey was made and established that there
was 1648.433 acres of land contested. The survey established that the land was largely in
blocks. The question is who to negotiate with so as to settle the remaining pastoralists and
any cultivators on the land. Government showed willingness to compensate the users of the
land for loss of profitability. This can be established professionally through a technical
committee as this is a cotton growing area.”

He tendered two sets of document; one showing meetings held on 26 th May 1989 between cattle
keepers and cultivators of Rwehingo, Nyakatonzi, and Batokema groups, and the District team
(exhibit CD2(a)). The second is brief notes on meetings held on 8 th August 1990 in Nyakatonzi
and Kabirizi over the land disputes between cultivators and pastoralists (exhibit CD2(b)).
Although he admitted not knowing who settled the youth on the land claimed by the youth, he
nevertheless contended that the land the youth were on is Government land; and the Government
is still interested in. He also stated that the defining boundary between the cultivators and the
pastoralist in an area of the suit land was the Lokeris Line.

Although in its written statement of defence, the Defendant denies the claim of lawful
proprietorship of the suit land made by the Plaintiffs; and contends that the Plaintiffs’ claims of
ownership of the suit lands is a denial of the landlord’s (Government) title thereto, which is
illegal, and further that the Plaintiffs dishonestly acquired titles to the suit lands they claim
ownership of, no evidence was adduced whatever to prove ownership of the land by Government
or anyone other than the claimants herein. Worse still, neither did the Defendant disclose the
particulars or nature of dishonesty (which is fraud) it alleged the Plaintiffs were guilty of, nor did
it adduce evidence in proof thereof; contrary to the stringent requirement of the law.

To the contrary, there is ample evidence on record that the suit lands do not belong to
Government. The Report of the Hon. Kisamba Mugerwa Task Force, dated 5 th January 1993
(exhibit PEI(3)), as well as Cabinet Minutes 179 of 1994 (exhibit PEI (1)) and 254 of August
24th 1994 (exhibit PEI (2)), arising there from, which all list Government lands available for
resettlement of the landless pastoralists, do not include the suit lands. Furthermore, the
recommendations by Governmental committees and officials that Government negotiates with
the owners of the suit lands for purchase of their interests, which was in fact taken up by high
profile Government officials but was frustrated by the refusal of the owners of the suit lands to
sell, firmly establishes Government’s recognition that it has no claim on the suit lands.
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The contention by Dr. Wesonga (DW1) that the land on which the youth were resettled belongs
to Government is not borne out by the evidence, and cannot controvert the Plaintiffs’ assertion –
bolstered by the evidence of Hon. Dr Kiyonga who was involved in the resettlement of the youth
– that the Youth Settlement Scheme initiated by Government in 1989 was implemented on land
donated by Salambongo; after which the youth parcelled the land out amongst themselves and
became individual private owners thereof. As for Hon. Kiyonga’s belief that the youth were
resettled on public land, the evidence I find credible is that the 750 acres were availed to the
youth by Salambongo who was the customary owner.

True, the 1967 Constitution and the Public Lands Act of 1969 which were the legal regime in
force when the youth were resettled on the 750 acres in 1989 provided that all unregistered land
was public land. However, even under these laws, any public land occupied by anyone could not
be acquired by Government arbitrarily, but only in accordance with the law; and this made
specific provisions for prompt and full compensation for developments made on the land. The
youths’ land was not acquired from Salambongo through this legal process; so Government
never acquired any proprietary interest in it. The individual youth members settled on
Salambongo’s 750 acres of land acquired no other person’s but his interest in that land.

Court visited the locus and noted that the lands in the Rwehingo area, which is on one side of the
Bwera/Katwe road, do not seem to have any conflict over them. However, in the
Bukangara/Nyakatonzi area, the Court established that the cultivators and pastoralists are in
agreement that the boundary between the two communities is the ‘Lokeris Line’. This is a line
established by Peter Lokeris, who was then District Administrator Kasese. The pastoralists and
cultivators were however not in agreement as to where exactly this line passes on the ground;
with each community contending that the line is located at a position which is adverse to the
claim by the other community.

Fortunately, by consent, the parties tendered in evidence minutes of the meeting chaired by Peter
Lokeris on 26th May 1989, (exhibit CD 2(a)) in which he made the demarcating line – the famous
‘Lokeris Line’ – to keep the feuding cultivators and cattle keepers apart. Also tendered in
evidence by consent is a letter (exhibit CD1(a)), written by surveyor David H. Langoya to the
Minister of State, Water, Lands & Environment dated 7 th August 2005; to which are attached
certified copies of cadastral maps of the area (exhibits CD1(b)) and CD1(c)), showing the
‘Lokeris Line’ as surveyed and mapped by Mr Langoya in 1989 immediately after the
demarcation by Peter Lokeris.
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In his letter to the Minister, exhibit CD1(a)), Mr. Langoya explains that the ‘Lokeris Line’ runs
as follows:-

“The survey started from a point between milestone 21 and 20 on Katwe – Bwera Road,
aligning with an anthill up to a house. The line then turns at 116 0 01 Eastward and 1250 01
Northeast. It then makes another turn of 80 0 01 up to a water trough. At the trough it turns
1330 301 to East Northeast direction leaving the Catholic Church North. At the straight of
the road it turns 930 01 Eastward. This straight meets the Sospeter northerly boundary line
at 1620 01; it then runs along the boundary up to river Nyamugasani.”

I can only add here that the two maps attached to the letter clearly show the ‘Lokeris Line’ as
described by Mr. Langoya. I need to point out here also that from the Minutes (exhibit CD2(a)),
Peter Lokeris had, in demarcating the boundary between the cultivators and pastoralists, directed
that each side would leave space of 50 (fifty) metres from the ‘Lokeris Line’ as a corridor to
avoid livestock straying onto crops.

It is therefore quite clear that in the Bukangara/Nyakatonzi area, subject to the Lokeris Line
which separates the cultivators and pastoralists, the Plaintiffs have proved their ownership of the
suit lands. With regard to the Rwehingo area, the evidence on record shows that the suit lands
belong to the Plaintiffs. Government’s move contained in the Hon Onek Ministerial Statement
seeking to parcel off a huge chunk of the land in the area to the pastoralists is not based on any
evidence. Therefore, I find that on a balance of probabilities, the Plaintiffs have proved their
exclusive and respective ownership of the suit lands; and accordingly, I resolve issue No. 1 in the
affirmative.

Issue No. 2: Whether the Defendant lawfully evicted the Plaintiffs from the suit
lands.

Hon Kiyonga (PW11) testified that land shortage in Kasese District, giving rise to conflict in the
area, was caused mainly due to large chunks of land in the district having been appropriated by
Government for use by various governmental institutions as national parks, farms, and refugee
resettlement scheme. His further testimony was that the recent influx of Basongora pastoralists
who were expelled from the Democratic Republic of Congo where they had settled on the
Virunga National Park precipitated bloody clashes in some areas of the suit lands; and to resolve

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these bloody land conflicts in the area, Government divested itself of large chunks of
institutional lands in order to settle the landless Basongora pastoralists.

Regarding the suit lands, both Hon Kiyonga (PW11) and Dr. Wesonga (DW1) explained that
Government’s desire was to acquire land from the respective owners, on the basis of a willing
seller, willing buyer; and that Government evacuated the cultivators from the suit lands only for
pacification of the area owing to the bloody clashes between them and the pastoralists; and in the
hope that the cultivators may then dispose of their lands. However, Yosiah Kireru (PW3) stated
that the eviction of the Plaintiffs was preceded by a clear statement made by Hon Hillary Onek,
Minister of Agriculture, demanding that the cultivators vacate the suit lands to pave way for
resettlement of the Basongora pastoralists; to which the cultivators objected.

This clearly raises the question of the lawfulness of the evacuation of the cultivators from the suit
lands. In this regard, the Ministerial Statement made by Hon Hillary Onek on the 19 th September
2007, headed ‘MINISTERIAL STATEMENT ON RESETTLEMENT OF BASONGORA OUT
OF QUEEN ELIZABETH NATIONAL PARK’ (exhibit PEII) is quite insightful and instructive
as to the intention of the Government in evacuating the cultivators from the suit lands. The
Ministerial Statement makes no mention of the findings by the earlier committees which
Government had instituted regarding the land conflicts in Kasese District. It purports to be
voicing a recommendation of an Inter Ministerial Committee which it states cabinet approved;
but does not cite the minutes of the alleged Cabinet decision. The salient part of the statement is
that Cabinet decided that:-

“1) Government had an obligation to address the historical injustices and post independence
marginalization of the Basongora.

5) The Basongora ancestral lands of Bukangara and Rwehingo totalling to about 25,000
acres be freed and shared between the cultivators and pastoralists on a 1:3 ratio as
earlier agreed on in 1994. Meaning cultivators get 8,000 acres while pastoralists get
17,000 acres. Government to institute a mechanism for compensation of any title
holders.”

This Ministerial Statement in fact raises more problems than that which it purports to address.
First, in stating that the Basongora lost land in Rwehingo and Bukangara to the cultivators, the
Ministerial Statement contrasts sharply with the Kisamba Mugerwa Task Force’s findings,
contained in their Report of 1993 (exhibit PEI(2)), which was that the Basongora lost their
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ancestral lands way back during colonial times when they were forced to migrate away from the
Nyakatonzi area owing to outbreak of cattle disease. Upon their departure, Government
appropriated huge chunks of their lands and converted them into institutional use like farms,
national parks, and forest reserves. The Bakonzo were then encouraged to come to the plains and
engage in cotton production which Government was promoting.

The Kisamba Mugerwa Report, which Cabinet adopted and implemented, recommended the
divestiture of parts of certain specific Government institutional lands in Kasese District which it
identified; none of which – for the obvious reason that they were settled on by cultivators –
included the suit lands. Second, the 25,000 acres of land the Statement claims is in contention in
the Rwehingo and Bukangara area does not match the survey findings conducted by the
Defendant and testified to by Dr. Wesonga (DW1) that the land belonging to the cultivators in
Rwehingo is 1,648.433 acres.

Since the Plaintiffs’ claim is that their combined land area for Rwehingo and Bukangara, which
they have been evicted from, is 2,050 acres, it is reasonable to conclude that had a survey been
carried out in the Bukangara area, the Government survey would have come up with a figure that
matches the claim by the Plaintiffs. But this raises a serious matter with regard to the evictions.
The Hillary Onek Ministerial Statement is that the cultivators in the Rwehingo and Bukangara
areas would be entitled to a total of 8,000 acres in the resettlement arrangement it proposes.

It does not make sense for Government to evict cultivators from 2,050 acres of land which is
manifestly far less than the land area they would be entitled to under the arrangement proposed
in the Hillary Onek Ministerial Statement. Considered in the light of the Hon Kisamba Mugerwa
Report, which Government adopted and implemented, and the account given by Hon Kiyonga
(PW11) and Dr Wesonga (DW1) who are themselves Government officials actively involved in
the issue of the land conflicts in Kasese District, The Hillary Onek Ministerial Statement
portrays Government as utterly ambivalent and inconsistent in its treatment of the problem.

Indeed, it is in the Hon Onek Ministerial Statement that Government categorically declares its
decision to displace the cultivator communities from the Rwehingo and Bukangara areas to
create space for the pastoralists. It is therefore clear that Government had without any evident
justification, abandoned its earlier position, informed by the Hon Kisamba Mugerwa Report, to
divest itself of institutional lands to address the Basongora pastoralists’ issue. Furthermore, while
the Hon Onek Ministerial Statement promised a harmonious and peaceful resettlement process,

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the very converse took place; and this, to the detriment of the cultivators who were forcefully
evicted from lands they claim as their ancestral inheritance.

I cannot understand why Government chose to act in such a high handed, arm twisting and
partisan manner against its own citizens who have not been shown to be the cause of any bloody
conflicts that may have taken place in the area. Admittedly, Kasese District has been bedevilled
by endemic land conflicts, some of whose root–causes, as explicitly presented in the Hon
Kisamba Mugerwa Report and the testimony of Hon. Kiyonga (PW11), are historical injustices
dating back to colonial times. It is clear that the bloody conflicts are in parts of the suit lands
only; and are fairly recent. Had this not been so, Government would not have resettled the youth
in the area in 1989.

Further, if indeed the Basongora pastoralists were the occupants of the suit land around 1989, as
Hon Onek’s Ministerial Statement implies, it would have been with them that Government
would have negotiated for the resettlement of the youth. Finally, if indeed the evacuation of the
cultivators from the suit land was a consequence of bloody clashes in the area, then it should not
have been done in a sectarian manner that left the pastoralists to utilise the lands as shown by
evidence. The evidence adduced by both Hon Dr Kiyonga (PW11), and Dr Wesonga (DW1) is
that it was hoped that the evicted owners of the suit lands would be prepared to sell their
respective entitlements.

This has betrayed the real intentions behind Government’s eviction of the cultivators; which is
plainly wrong and unacceptable. It went contrary to Government’s expressed policy of engaging
the cultivators with a view to persuade them to dispose of their lands by sale to Government. It
also contradicted the stated reason of the eviction as being for purposes of pacification of the
area. The suit lands were neither taken over from the Plaintiffs in accordance with the 1967
Constitution or Public Lands Act 1969, nor in accordance with the 1995 Constitution which
provides in Article 237(2)(a) for the acquisition of land by Government in the public interest; but
this, subject to the provisions of Article 26 of the same Constitution.

The alleged bloody clashes were no justification for such partisan and high handed action. It is
not gainsaid that Uganda is by no means a failed State. It has the wherewithal to contain anyone
seeking to disturb the societal peace and order obtaining in any part of the country. It is therefore
inexplicable that the Basongora pastoralists or any other person should force the hand of the
State to act against the interest of others who are peaceful residents of an area. Instead of

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deploying the police and the military to forcefully evict the cultivators from their own lands,
Government, which has the duty of protecting the life and property of anyone under its
jurisdiction, should have used these members of the disciplined force to contain the situation and
restore peace.

The landlessness of the Basongora pastoralists is, admittedly, a national problem; and it is
incumbent on the Government to address that predicament. Nonetheless, it would be most
strange for a road overseer to dig murram from a section of the road, as it were, in order to fill up
an existing dangerous pot–hole on the same road. This would not address the problem as it
would only shift it elsewhere on the same road where it would still remain a burdensome
encumbrance. The action taken by Government against the cultivators that has given rise to this
Court action offended several provisions of the law.

First, the claim made out in the Hon Hillary Onek Statement that the Basongora came back to
their lands, which the evidence on record shows they evacuated long before 1995 (when the new
Constitution came into force) is contrary to the provisions of the law. Prior to the 1995
Constitution, all that was called customary land was in fact public land vested in the Uganda
Land Commission. The occupants of such land were in a most precarious position, and could be
displaced by any person in accordance with the provisions of the laws then in force such as the
1967 Constitution and the 1969 Public Lands Act.

The evidence before me is that the cultivators have been in occupation of the suit land for well
over 60 years. PW3, who was 74 years of age when he testified, remembered his grandfather and
Asians utilising the suit lands way back in the 1940s when he was about 12 years of age. The
Hon Kisamba Mugerwa Report confirms presence of cotton stores dating back to colonial times.
Then as recently as 1989, Government obtained land from Salambongo on which it resettled the
youth of Kasese District out of fears that they might be tempted to join NALU insurgents, if left
idle. Therefore, save for those who had registered titles to their respective lands, the rest of the
occupants in the suit lands were occupants of public land.

This was the position until the promulgation of the 1995 Constitution. The 1995 Constitution
however ushered in a radical revolution in land tenure that transformed customary occupancy of
public land into private customary landholding. From the evidence, the persons who the 1995
Constitution found in the suit lands were cultivators who either had valid leasehold titles which
continued after the promulgation of the Constitution, or customary occupants whose occupancy

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automatically became private customary tenure. Article 237 (3) of the 1995 Constitution
recognises the four forms of land tenure: freehold, mailo, leasehold, and customary holdings; and
the Constitution affords them equal protection.

By this, the vulnerability that hitherto characterised customary land tenure was effectively
extinguished. Hence, upon the customary landowners in the suit lands making it categorically
clear that they were not willing to sell their lands to Government, any move to acquire the lands
should have been in accordance with the law. Otherwise the protection accorded property rights,
and well entrenched in the Constitution, would be to no avail. Article 20 (2) of the 1995
Constitution, on fundamental and other human rights and freedom, provides that Government
and all its organs and agencies shall respect, uphold, and promote the rights of the individual
enshrined in the Constitution.

Second, Article 21 (1) of the Constitution provides for equality of all persons before and under
the law; and their entitlement to equal protection of the law. Article 26 provides for protection
from deprivation of property. Clause (2) of the Article provides as follows:-

“(2) No person shall be compulsorily deprived of property or any interest in or right over
property of any description except where the following conditions are satisfied –

(a) the taking of possession or acquisition is necessary for public use or in the interest of
defence, public safety, public order, public morality or public health; and

(b) the compulsory taking of possession or acquisition of property is made under a law which
makes provision for –

(i) prompt payment of fair and adequate compensation, prior to the taking of
possession or acquisition of the property;

...”

It is therefore quite clear from the evidence adduced that the high handed execution, that has
deprived the cultivators of land which is theirs by ancestral inheritance, or purchase, gravely
offends the provisions of the law regarding protection of property rights entrenched in the
Constitution and the 1998 Land Act; and sadly contravenes what is acceptable and demonstrably
justifiable in a free and democratic society. In deviating from its earlier recommendation and
position, which was the pursuit of negotiations for possible purchase of the lands from the

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cultivators, the Government’s action is most objectionable; and must not be allowed to stand.
The eviction of the cultivators from the suit land was, and certainly remains unlawful.

Issue No. 3: What are the remedies available to the parties?

Owing to my finding that the Plaintiffs are the rightful owners of the suit lands, and since I have
found that their eviction from the suit lands was an unlawful high handed act by the State, it
follows that they are entitled to redress. Accordingly, I direct that the ‘Lokeris Line’ in the terms
settled by Peter Lokeris must be located on the ground in accordance with the survey reports of
Mr David Langoya, tendered in evidence. As for the special damages pleaded, although the
Plaintiffs particularised it, I am unable to make any order in that regard; because no attempt was
made to prove it, contrary to the strict requirement of the law for such proof.

However, because the Plaintiffs have been unlawfully deprived of the use of their own lands
which is their mainstay as cultivators, and which has resulted in many of them failing to meet
family obligations such as paying their children’s school fees, or their defaulting in servicing
their loan obligation with financial institutions, I find that each of the Plaintiffs is entitled to an
award of general damages which I hereby grant. The Defendant had ulterior motive in carrying
out the eviction of the Plaintiffs. Furthermore, the eviction was executed in a most inhuman and
inhumane manner. This was a grave abuse of the Plaintiffs’ human and property rights, by the
very Government whose cardinal Constitutional mandate is to zealously protect those rights.

As a clear manifestation of Court’s utter displeasure with, and disapproval of the aforesaid acts
of the State, that have caused so much suffering to the Plaintiffs, and given rise to this suit; and
an assurance that the rule of law we all cherish and wish to be governed under has no place for
impunity, and further that the Courts of law shall at all times rise up to the occasion in the
protection of such rights, I find that each of the Plaintiffs is entitled to an award of exemplary
damages. In the result then, I make the following findings and or orders: –

(i) The Plaintiffs are the respective lawful proprietors of the suit lands; and entitled
to immediate possession and occupation thereof.

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 (ii) The Defendant, its agents, servants or any person acting under its authority, must
immediately give vacant possession of the suit lands to the Plaintiffs; subject to
the ‘Lokeris Line’.

(iii) The Commissioner of Surveys is hereby directed to locate and open up the
Lokeris Line; and put in place distinct landmarks in accordance with the survey
and mapping made by Mr David H. Langoya, and detailed in his letter (exhibit
CD1(a)), and the cadastral maps (exhibits CD1(b) and CD1(c)).

(iv) A permanent injunction hereby issues restraining the Defendant, its agents,
servants, or any person acting under its authority, from trespassing onto or in any
way interfering with the Plaintiffs’ quiet enjoyments of the suit lands.

(v) The Defendant shall pay each of the Plaintiffs, general damages in the sum of U.
Shs 10,000,000/=.

(vi) The Defendant shall pay each of the Plaintiffs, punitive damages in the sum of U.
Shs 2,000,000/=.

(vii) The Defendant shall pay each of the Plaintiffs, costs of the suit.

(viii) The damages and costs awarded herein shall attract interest at Court rate from the
date of the suit.

Alfonse Chigamoy Owiny – Dollo

JUDGE

25 – 04 – 2012

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