[2025] UGHC 379

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT WAKISO**

### **MISCELLANEOUS CAUSE N0. 0005 OF 2025**

## **IN THE MATTER OF AN APPLICATION BY GEORGE BATTE TO BE APPOINTED AS MANAGER OF THE ESTATE OF NABBAALE ROSEMARY**

# **BEFORE HON. LADY JUSTICE SARAH LANGA SIU RULING**

George Batte hereinafter referred to as the applicant brought this application by way of Notice of Motion (exparte) under the Mental Health Act cap 308 and the Administration of the Estate of Persons of Unsound Mind Rules seeking orders that;

- 1. He be appointed as the Manager of the estate of Ms. Nabbaale Rosemary - 2. Court directs on the necessary steps for the proper management of the estate of Ms. Nabbaale Rosemary - 3. Any other relief this Honourable Court deems fit

The application was supported by the affidavit of the applicant, but the grounds briefly are that:

- 1. The applicant is the biological brother of Ms. Nabbaale Rosemary the patient and subject of the application, who has been medically certified as a person of unsound mind by Nakasero Hospital - 2. Due to the condition of Ms. Nabbaale Rosemary, she is incapable of managing her financial or personal affairs, necessitating court intervention

The matter was heard on 29th May 2025 wherein the applicant (unrepresented) presented to court his submissions on the matter highlighting the contents of his pleadings. In court was the patient Ms.

Nabbaale Rosemary accompanied by her caretaker Ms Nanteza Hellen and Ms. Nabagereka Bernadette.

Although the applicant did not cite the actual sections under which he made the application, bearing the provisions of Article 126 (2) (e), this court will proceed to determine the same under the provisions of Sections 59 (3) (b), 61 (1) (2), 62 and 63 of the Mental Health Act cap 208; Section 98 of the Civil Procedure Act, cap 282; Section 37 of the Judicature Act, cap 16 and Order 52, Rules 1, 2 and 3 of the Civil Procedure Rules.

The issues for determination are:

- 1. Whether Ms Nabbaale Rosemary is a person with mental illness and therefore unable to manage her own affairs; - 2. Whether the applicant is a suitable person to be appointed as manager for the estate of Ms. Nabbaale Rosemary

## **Whether Ms Nabbaale Rosemary is a person with mental illness and therefore unable to manage her own affairs**

Section 2 of the Mental Health Act cap 308 defines "mental illness" to mean a diagnosis of a mental health condition in terms of accepted diagnostic criteria made by a mental health practitioner or medical practitioner authorised to make such diagnosis and for purposes of this definition, mental health conditions include but are not limited to depression, bipolar, anxiety disorders, schizophrenia and addictive behaviour due to alcohol or substance abuse among others.

In the same section, a person with mental illness means a person who is proven, at a particular time, by a mental health practitioner.

Section 54 of the Mental Health Act provides for the process of determination of mental health status and this was clearly spelt out by Justice Henry Peter Adonyo **in the matter of Thomas Ibokit High Court Miscellaneous Cause N0. 0006/2022** as follows:

1) A determination of the mental health status of a person shall be carried out, where it is required for proceedings before a court of law or for any other official purpose

- 2) A determination under subsection (1) shalt only be carried out by a psychiatrist or where a psychiatrist is not available, by a senior mental health practitioner - 3) The determination under this section shall be based on only factors which are exclusively relevant to the mental health status of the patient and not on any social, political, economic, cultural, religious or other factors - 4) The determination shall only be used for the purposes for which it was required.

In the instant application, it is the applicant's case under paragraphs 2 and 3 of the affidavit in support that Ms. Nabbale has been medically certified as a person of unsound mind by Nakasero Hospital. The certification by Nakasero Hospital is dated 22nd April 2025 by Dr. Harriet Nankabirwa, a Geriatrician who diagnosed her with Alzheimer's dementia as per the medical report annexure A.

In the case of **Songolo Difasi Mugabo High Court Misc Application N0. 16/2019,** Justice Eva K Luswata accentuated the importance of such inquiry or investigation and held that;

"The requirement for a proper investigation should not be undermined. Nobody should, be adjudged or determined to be of unsound mind when no professional expert advice is available. This would be a serious affront to the personal integrity and would also open them up to fraudulent people who may wish to take over their property."

In my evaluation I have considered the decision in **Aseru Joyce Ajju and Anjoyo Agnes (a patient) MA No. 1/2016** where Justice Stephen Mubiru laid out the procedure to be followed and also relying on Indian authorities gave reasons justification for a proper investiagtion. In **Moohammad Yaqub v Nazil Ahmad & ors (1920) 58 Indian cases 617** it was stated that 'when a person is alleged to be insane…..,there ought to be a careful and thorough preliminary inquiry and the judge ought to satisfy himself that there is a real ground for an inquisition.'

Justice Mubiru further quoted the case of **Ranjit Kumar Ghose v Secretary, Indian Psychoanalytical Society AIR 1963 Calcutta 261**


where it was held inter alia that, 'it would be very desirable that the judge should seek some personal interview with the insane, not with the view of forming a final opinion, as to her real condition, but to satisfy himself in the ordinary way, in which a lay man can do, that there is real ground for supposing that there is something abnormal in her mental condition, which might bring her within the lunacy act.'

Indeed, it was desirable in the instant case to conduct a personal interview with the subject, unfortunately, she could not speak currently, a condition I learnt has now taken 2 years. I thus restricted my inquiry to observations, which was in my considered opinion very satisfactory- Ms Nabbaale was supported into court by her two caretakers who assisted her to sit down. Throughout the hearing, she looked down totally distant and disconnected from reality and made no gesture at all. She was, as one would conclude in 'another world.' These observations resonate with the definition of a person of unsound mind in **Whysall v Whysall (1960) 52** where Phillimore J held that' ….. one who is afflicted by a total or partial defect of reason or the perturbation thereof, to such a degree that he or she is incapable of managing himself or his or her affairs. If a practical test of the degree is required, I think it is to be found in the phrase "incapable of managing himself and his affairs", and that test of ability to manage affairs is that to be required of a reasonable man.

Going by the above definition and the observations made in court; plus that medical report that certified Ms. Nabbaale's mental condition that fits within the definition under section 2 of the Mental Health Act and the submissions of the applicant, this court finds that Ms. Nabbaale Rosemary is mentally ill and unable to manage her affairs.

# **Whether the applicant is a suitable person to be appointed as manager for the estate of Ms. Nabbaale Rosemary**

Section 59 of the Mental Health Act provides for capacity and competence, that;

- 1) A person with mental illness has the right to enjoy legal capacity on equal basis with others in all aspects of life - 2) A person with mental illness has the right to manage his or her affairs

3) (b) Notwithstanding subsection (2), a person with mental illness may be stopped from managing his or her affairs where court on an application by a relative or a concerned person, determines that the person is not able to manage his or her affairs.

As established under issue one, the subject Ms. Nabbaale Rosemary cannot manage her affairs.

Section 61 of the Mental Health Act provides for appointment of personal representative by court. It provides that;

- (1) Where an order is made under Section 59 that a person with mental illness is not capable of managing his or her affairs, or where a person with mental illness does not appoint a personal representative, court shall appoint a suitable relative to be his or her personal representative. - (2) A personal representative shall - (a) Manage the estate of the person with mental illness; or - (b) Be the guardian of the person with mental illness and of the dependants of that person

A relative under section 2 of the Mental Health Act means a spouse, parent, grandparent, child, sibling, uncle or aunt, of a person with mental illness whether by blood, marriage or a relationship established by law.

Section 2 of the same Act defines a 'personal representative' as a person appointed in writing by a person with mental illness to act on his or her behalf, or a person appointed by court to act on behalf of a person with mental illness, where the person with mental illness loses capacity to execute a particular task.

The applicant in both his affidavit in support and submissions in court stated Ms. Nabbaale has no child or dependant but that he is her biological brother and heir to the estate of their late father. By this sibling relationship, he falls within the definition of relative and hence qualifies to be appointed a personal representative. The applicant's commitment to the cause of his sister is demonstrated by his faithful pursuit of this application for five years in several courts including Magistrates Courts that dismissed it for want of


jurisdiction as seen from the judgement from the Matugga Magistrates Court that he availed to this court.

Having resolved issue one in the affirmative, and being satisfied that the applicant is a relative qualifying to be appointed a personal representative, it is pertinent to highlight the responsibilities of a personal representative. These responsibilities are provided for under 62 of the Mental Health Act as follows;

- 1) Court shall grant a personal representative general or specific powers to manage the estate of the person with mental illness - **2)** Notwithstanding subsection (1), a personal representative **shall not, without the special permission of the court** - a) Mortgage, charge or transfer, by sale, gift, surrender, exchange or by any other means, mortgage, charge or transfer any moveable or immovable property of the person with mental illness - b) Lease any property of the person with mental illness for a term exceeding five years, or - c) Invest funds of the person with mental illness in any security except a security authorised by law

# 3) **A personal representative shall not** –

- a) Invest any funds belonging to the person with mental illness in any company or undertaking in which the personal representative has interest; or - b) Purchase immovable property for the person with mental illness without the authority of court.

Under section 63, a personal representative is obligated to furnish the court with an inventory and final accounts. Sections 62 and 63 are pertinent the reason I have restated them for the benefit of the applicant.

This court therefore allows this application in the following terms;

- 1) Ms. Nabbaale Rosemary is mentally ill and unable to manage her affairs - 2) The applicant Mr. George Batte is appointed manager for the estate of Ms. Nabbaale Rosemary - 3) The applicant is authorised to manage the listed properties of Ms. Nabbaale Rosemary;

- a) Untitled land (kibanja) in Matugga Township, Nansana Municiplaity, Wakiso district measuring approximately 0.36 hectares with two permanent houses - b) Undeveloped titled land at Kambugu village, Masulita subcounty in Wakiso measuring approximately 1 acre, fully paid but not registered in her names - c) Bank account No. 0114402661500 in the names of Nabbaale Rosemary at Housing Finance Bank, Kampala Road Branch. The responsibility on this account includes authority to withdraw and deposit monies on the account, and any other thing incidental to it's operation. - d) Household properties including 2 wooden beds, 3 mattresses, 1 refrigerator and 1 television set. - 4) The applicant shall within six months from today 4th June 2025, file an inventory of the property of Ms. Nabbale Rosemary including the money, goods and effects he receives on account of the estate and a statement of debts owed by, or due to Ms. Nabbaale Rosemary. - 5) The estate of Ms. Nabbaale Rosemary will bear the costs of the application.

I so order.

………………………… **Sarah Langa Siu Ag. Judge** 4 th June 2025