Expropriated property , history of expropriated property,

Land Law

1. LAND TRANSACTIONS FIRM C4 Module 5 Workshop 2

2. FIRM C4 PART A:

3. FIRM C4 BRIEF FACTS: James Apuuli Kyaligonza , a business man in Hoima City has come up with a proposal to set up a state-of-the-art Resort Hotel in Masindi District to introduce hunting of wild pigs in Murchison Falls National Park. Additionaly , the resort will cover 720 acres covering part of Murchison Falls National Park and Budongo Forest, hold a golf course, and open camping where guests will be able to have BBQs in the wild. James Apuuli Kyaligonza also plans to introduce bird to see the shoebill and black-headed lapwing which hibernate and produce nestlings around the area of interest. His proposal includes a request to degazette part of Budongo forest and clear trees covering 40 acres in the Forest so that his guests can have an immaculate view of the rest of the forest. Part of the land cleared of trees will have a mini 9-hole golf course which will stretch into the national park. It is also believed that part of the land in the park where his hotel will be (measuring 29 acres) has some rare earth metals, which he hopes to own once he is granted a 49-year lease. As a result of the endorsement by the President, the district land Board of Masindi has already sat in an extra-ordinary meeting and resolved to grant Mr. Kyaligonza a lease over the land he wishes and are only waiting for the necessary paperwork.

4. LEGAL ISSUES: FIRM C4 Whether there are any illegalities/irregularities disclosed in the facts? Whether Kyaligonza’s proposal is feasible? What considerations should be put into account while evaluating his proposal? What are the recommended changes and considerations to be attached to the project? Whether there are any necessary approvals and authorizations needed for the project? What are the post implementation considerations?

5. LAWS APPLICABLE: FIRM C4 The Constitution of the Republic of Uganda 1995. The National Environment Act, Act 5/2019. The Uganda Wildlife Act, 2019. The National Forestry and Tree Planting Act, 2003. The Physical Panning Act, Act 8/2010. The National Planning Act, 2010. Building Control Act 2013 and subsidiary law thereunder. Mining and Minerals Act, 2022 National Environment (Environmental Impact Assessment) Regulations, S.I 153-1

6. FIRM C4 IN RESOLUTION OF ISSUE 1: Whether there are any illegalities/irregularities disclosed in the facts? Illegality is the state of being against the rules or the law. The case of Pastoli versus Kabale District Local Government Council and others (2008) 2 E.A 300 was cited to the effect that acting contrary to the provisions of the law or its principles are instances of illegality and by implication render the entire proceedings null and void. Irregularity according to Black’s Law Dictionary, 2 nd Ed is a technical term for every defect in practical proceeding. Irregularity refers to anything that deviates from the normal or regular. This can pertain to actions or practices that diverge from the usual norms. The likely illegalities and irregularities have been identified in Mr. Kyaligonza's proposal and they are as follows;- Introducing the hunting of wild pigs in Murchison Falls National Park. Whereas trophy hunting is allowed under special circumstances, Uganda Wildlife Act under Section 29 (a) makes it an offence to engage in Hunts of wild animals. RESOLUTION OF ISSUES:

7. FIRM C4 Generally Hunting, taking, killing, injuring a wild animal within a wildlife conservation area, is an offence contrary to Sections 29 (a) and 70 of the Uganda Wildlife Act, 2019. Secondly, Engaging in hunting wildlife without a wildlife use right is an offence contrary to Section 36 (3) and Section 70 of the Uganda Wildlife Act, 2019. Thirdly, assisting another person to hunt a protected animal for gain or reward without a license is an offence contrary to Section 52 (d) of the Uganda Wildlife Act, 2019. Sport hunting was banned in uganda in 1979 to enable the recovery of wildlife. However, Uganda only reintroduced it in 2001 around Lake Mburo National Park, and in 2006 in the Kabwoya and Kaiso-Tonya Game Management Area, with the aim to reduce human-wildlife conflicts, especially poaching, by providing incentives for the local inhabitants.

8. FIRM C4 Mr Kyaligonza plans to open camping where guests will be able to have BBQs in the wild. The position of the law is that Starting/Maintaining a fire without lawful authority within a wildlife conservation area contrary to Section 29 (f) and Section 70 of the Uganda Wildlife Act, 2019. Secondly, entering into a wildlife protected area without permission by the authority, is an offence contrary to Section 30 (1) and Section 70 of the Uganda Wildlife Act, 2019. Thirdly, Failure to kill/capture of a wild animal upon wounding is an offence contrary to Sections 60 (1) (2) and 70 of the Uganda Wildlife Act, 2019. J ames Apuuli Kyaligonza plans to introduce birdwatching to see the shoebill and black-headed lapwing which hibernate and produce nestlings around the area of interest . The Wildlife species above are among those listed in the Third Schedule of the wildlife Act and are therefore protected species in Uganda. The wildlife Act provides for the protection of habitat and especially nesting sites for endangered specie.

9. FIRM C4 A request to degazette part of Budongo forest and clear trees covering 40 acres in the Forest for a good view and a 9 hole golf course. A Forest Reserve, as per Section 3 of the National Forest and Tree Planting Act, 2003 is defined as; “An area declared to be a central or local forest reserve”. The objective 13 of the national objectives and Directive principles of state policy in the constitution postulates that: the state shall protect important natural resources including land, water, wetlands, minerals, oil, fuel and flora on behalf of Uganda. Further Article 237(2) (b) of the Constitution state that: the government or a local government as determined by parliament by law, shall hold in trust for the people & protect, natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and tourist purposes for a common good of all citizens. Setting up a hotel in a national park without a licence is contrary to section 30(1) of the wildlife Act 2019 which provides that a person who attempts to enter into and reside in or attempt to reside in a wildlife protected area without ermission from the authority commits a crime.

10. FIRM C4 Degazetting a national park (Murchison Falls) and a forest reserve ( Budongo Forest) contravenes the National Environment Act (2019) and the Uganda Wildlife Act (2019). These laws prioritize conservation and require strict procedures for altering protected area boundaries. Section 64 (3) of the National Environment Act 2019 provides that Forests shall be managed in accordance with the principle of sustainable development. Section 64 (4) provides that commercial exploitation of any forest shall be carried out in accordance with the principle of optimum sustainable yield. Section 4 provides for Rights of nature. Section 4 (1) Nature has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Section 4 (2) A person has a right to bring an action before a competent court for any infringement of rights of nature under this Act. Disturbing a wild plant within a wildlife conservation area, is an offence contrary to Sections 29 (a) and 70 of the Uganda Wildlife Act, 2019.

11. FIRM C4 Conducting a prohibited activity within a forest reserve, is an offence contrary to Section 14 of the National Forestry and Tree Planting Act 2003. In light of the above, Section 44(4) of the Land Act is to the effect that the government or a local government shall not lease out or otherwise alienate any natural resource referred to in the section. The section further retaliates what Article 237 (2) (b) postulates. Whereas government cannot lease or alienate any natural resource owing to the public trust doctrine, it can under Section 44 (5) of the Land Act grant concession or licenses or permits in respect of natural resources holds in public trust for the public. Mr Kyaligonza has plans to engage in the mining of some rare earth metals . The Wildlife Act under Section 29 (c) provides for an offence for one to prospect for minerals or mines or attempts any of these operations. Causing damage within a forest area, is an offence contrary to Section 34 of the National Forestry and Tree Planting Act 2003. False representation, contrary to Section 82 (c) of the National Forestry and Tree Planting Act 2003. Whereas he seeks a lease for Mining, he is representng it as a lease for Tourism.

12. FIRM C4 Section 54 provides for the Functions of the National Forestry Authority while Section 54(1)(a) provides the Authority with a manadate to develop and manage all central forest reserves in Uganda. To that effect, the decision of the district land Board of Masindi resolving to grant Mr. Kyaligonza a lease to the protected areas is beyond their powers. As mentioned before, Section 44(4) of the Land Act is to the effect that the government or a local government shall not lease out or otherwise alienate any natural resource referred to in the section. The section further retaliates what Article 237 (2) (b) postulates.

13. FIRM C4 IN RESOLUTION OF ISSUE 2: Whether Kyaligonza’s proposal is feasible? Article 8A 1995 Constitution provides for national interest. Policy XXVII National Objectives and Directive Principles of State Policy enjoins the state to promote sustainable development and public awareness of the need to manage land, air and water resources in such a way to meet the development and environmental needs of the present and future generations. To promote and implement energy policies and to create and develop parks, reserves and recreation areas. The Public Trust Doctrine is one which is highly considered in the implementation of various activities. Article 237(2)(b) of the 1995 Constitution of Uganda provides that government shall hold in trust for the people and protect natural resources for the common good of all citizens. Section 44 of the Land Act 227 as amended incorporates the Public Trust Doctrine for the common good of the citizens of Uganda.

14. FIRM C4 In the case of MC Mehta V Kamal Nath (1997) 1 SCC 388 the supreme court of India noted that the public trust doctrine primarily rests on the principle that certain resources like air, sea, waters and forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private interest. Mr. Kyalingonza’s feasibility is questionable due to the environmental consequences that may accrue from it. Mr. Kyalingonza intended idea of hunting of wild pigs and bird tracking would lead to biodiversity loss which project could threaten rare or endangered species that are within National Park. Degazetting part of the Budongo forest to set up a resort and by clearing trees covering 40 acres for his guests to have an immaculate view amounts to habitat destruction for deforestation and construction disrupts wildlife corridors and endangers flora and fauna. Construction and water disposal can pollute water sources for wildlife and surrounding communities.

15. FIRM C4 His idea of owning rare earth metals is not feasible because it is in contravention with Section 9 of the Mining and Minerals Act 2022 and Article 244 which provides that all minerals belong to the government and one cannot deal with them without a license. Therefore Mr. Kyaligonza’s proposal is not feasible because it will affect the environmental diversities and thus in contravention of the national interest and the Public Interest Doctrine. IN RESOLUTION OF ISSUE 3: What considerations should be put into account while evaluating his proposal? If the project is considered with significant modifications, the considerations will include; Relocation ; Explore alternative location recommendations outside protected areas that minimize environmental impact such as If the project is considered with significant modifications, considerations include:

16. FIRM C4 Relocation: Explore alternative location recommendations outside protected areas that minimize environmental impact such as deforestation that would otherwise disrupt the ecosystem and the animals in there natural habitats. Eco-tourism: Focus on eco-tourism activities with minimal disruption, such as bird watching and nature walks which are environment friendly. This is provided for under Section 2(e) of the National Environment Act. Sustainable Practices : Emphasize sustainable construction methods and waste management which do not affect the environment This is Emphasized under Section 2(c) of the National Environment Act 2019 that provides for equitable use of natural resources for the benefit of generations to come. Community Involvement : Include local communities in project planning and benefit-sharing initiatives. This is provided for under section 2(b) of the National Environment Act 2019 which encourages the maximum participation by people of Uganda in the development of policies, plans and processes for the management of the environment.

17. FIRM C4 IN RESOLUTION OF ISSUE 4: What are the recommended changes and considerations to be attached to the project? Reject the proposal of 49 years lease. Article 237(2)(b) of the constitution, and Section 44(4) of the Land Act Cap 227. Reject the proposal degazzating part of Budongo forest. Article 237 (b) and Section 29 National Forest and Tree Planting Act. Reject the proposal of clearing the 40 acres' of Trees at Budongo Forest. Section 44(1)(b) National Forestry and Tree Planting Act 2003 and Section 64(4) NEA 2019 provide that the commercial exploitation of any forest shall be carried out in accordance with the principle of optimum sustainable yield. Therefore, allowing Kyaligonza to clear the land will cause substantial Damage, so he should be advised to setup a resort without any serious damage to the forest.

18. FIRM C4 IN RESOLUTION OF ISSUE 5: Whether there are any necessary approvals and authorizations needed for the project? The project would require approval from various authorities including; National Environmental Management Authority (NEMA) . Section 41 of the National Forestry and Tree Planting Act 2003, requires NFA to grant a license for utilization and management of the forest reserves. In the instant case, Kyaligonza wants to set up a Hotel in Budongo forest therefore he must obtain a license from NFA for that purpose. Kyaligonza will also be required to seek approval from Environment and social impact associated report from NEMA. Under section 25 of the National Environment (Environment & Social Assessment) Regulations 2020, NEMA has a final decision on approving the Environment Social Assessment Report. The Uganda Wild Life Authority (UWA) . Section 6 Uganda Wild life Act 2019 has a duty to ensure sustainable wildlife conservation Areas. Therefore, Kyaligonza will be required to obtain a license to use wildlife reserves under Section 35 of the Act.

19. FIRM C4 The Land Board of Masindi District . Approval of the district land Board required especially in regards to the benefit sharing accruing from the project. This is because Masindi district is where a resort will be locate. IN RESOLUTION OF ISSUE 6: What are the post implementation considerations? They include among others the following; Making regular environmental monitoring reports. The project must continue complying with UWA requirements. This shall be in terms of noise, and close adherence to the acts that are prohibited by UWA e.g patching and hunting. Adherence to the waste management and sustainable practices.

20. FIRM C4 PART B:

21. BRIEF FACTS : James Ssegabudde has seen an advert in the newspapers advertising the sale of property pursuant to a court order in Civil Suit No. 188 of 2021 High Court of Uganda, Commercial Division. He is interested in the property and would like to purchase it. FIRM C4 LAWS APPLICABLE : LEGAL ISSUES : What due diligence can James Ssegabudde conduct before bidding for the property? What are the necessary steps James Ssegabudde must undertake until he acquires title and vacant possession of the property? Registration of Titles Act, Cap 230. Physical Planning Act, 2010. National Environment Act, 2019. Case law.

22. FIRM C4 RESOLUTION OF ISSUES : IN RESOLUTION OF ISSUE 1: What due diligence can James Ssegabudde conduct before bidding for the property? Conducting a search at the land office to ascertain the registered owner of the land – Section 201 RTA. Making a physical visit to the land, this is to ascertain the condition of land and makes inquires about the land from the neighbors.( David Ssejjaka Nalima v. Rebecca Musoke SCCA No. 12/1985 ). NEMA approval : section 9 National Environment Act 2019. Approval from the planning authorities: Section 34,Physical Planning Act 2010. Conducting a survey : Section 2, Survey Act Cap 212.

23. FIRM C4 IN RESOLUTION OF ISSUE 2: What are the necessary steps James Ssegabudde must undertake until he acquires title and vacant possession of the property? Assuming James decides to bid and wins the auction: Payment: He must pay the successful bid price according to the court order and auction terms. Sale Confirmation: The court will issue a sale certificate confirming James as the new owner. Registration of Title: With the sale certificate, James needs to register the property in his name at the Registry of Lands Eviction (if necessary): If tenants are present without a valid lease agreement, James might need to initiate legal proceedings to obtain in an eviction notice to evict them. A lawyer can assist with this process. Taking Possession: Once the title is registered and any occupants are legally evicted, James can take full possession of the property.