[2024] UGHC 948

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT JINJA**

**HCT-03-CV-MA-0237-2023**

***(ARISING FROM HCT-03-CV-15-2022)***

**MALCOM MUGALU :::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

**VERSUS**

1. **CHARLES KABAIRE** 2. **NANTAMBI MARIAM::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

**BEFORE: HON. JUSTICE DR. WINIFRED N NABISINDE**

**RULING**

This Ruling follows an Application brought under **Sections 82 and 98 of the Civil Procedure Act, Cap 71, Section 33 of the Judicature Act Cap 13, Section 5, 6 of the Administration of Estates of Persons of Unsound Mind Act,1951 and Order 46 rule 2 & Order 52 rules 1 and 3 of the CPR SI 71-1** seeking for orders that:-

1. Court reviews the Order appointing the 1st Respondent the Manager of the estate of Kasadha Grace. 2. 1st Respondent furnishes court with an account showing the sums received and disbursed on account of the estate of Kasadha Grace and the balance remaining. 3. 1st Respondent furnishes court with an account showing the sums received and disbursed on account of the estate of Kasadha Grace and the balance remaining. 4. The Applicant be appointed the Manager of the estate of Kasadha Grace. 5. Costs of the Application be provided for.

The grounds upon which this Application are that:-

1. The Applicant is a biological son of Kasadha Grace. 2. The Applicant discovered that the 1st Respondent fraudulently applied to be appointed manager of the Estate of Kasadha Grace and he was appointed by court. 3. The Applicant is aggrieved by the Order appointing the 1st Respondent the Manager of the estate of Kasadha Grace. 4. It is in the interest of justice that the Order appointing the Respondent the Manager of the estate of Kasadha Grace in **HCT-03-CV-15-2022** be reviewed and the Applicant be appointed the legal manager of the estate of Kasadha Grace.

The above stated grounds are reiterated in the Affidavit in Support of the Application deponed by **Malcom Mugalu,** the Applicant, the gist of which are that :-

1. He is a biological son of Kasadha Grace together with his young brother Kasadha Ignatius and Birungi Faridah is their mother **[See copies of the child birth and health cards attached hereto and marked "A1" and "A2'" respectively.]** 2. The 1st respondent is her uncle and Nantambi Mariam the alleged daughter in **HCT-03-CV-15-2022** is her biological daughter, thus a cousin of mine. 3. He discovered the said information upon requesting his lawyers to request for a record of proceedings in **HCT-03-CV-15-2022** [**See copy of the letter requesting for the record of proceedings attached hereto and marked annexure "B').** 4. The 1st Respondent fraudulently obtained an Order to manage the estate of Kasadha Grace and this court appointed him. **(See copy of the court order attached hereto and marked annexure "C")**

**Particulars of fraud**

1. The 1st Respondent deceiving court that he takes care of the children of Kasadha Grace to wit herself and Mariam Nantambi **[See the affidavit of the 2nd respondent the chamber summons and affidavit in support of the chamber summons attached hereto and marked annexure" D'**] 2. The 1st and 2nd Respondents deceiving court that the 2nd Respondent is a daughter of Kasadha Grace well as not. 3. The 2nd Respondent lying to court that the 1st Respondent has been taking care of her as a child of Kasadha Grace and himself since child hood. Which is not true **[See the supplementary affidavit of the 2nd respondent attached here too and marked annexure ‘E’].** 4. The 1st Respondent lying to court that he takes care of his welfare and education well as not **[Refer to annexure ‘D’).** 5. The 1st Respondent deliberately withholding information that the person of sound mind Kasadha Grace has only two biological children -himself and his young brother Ignatius Kasadha **(Refer to annexure ‘D'].** 6. The 1st Respondent deceiving court that he takes care of the person of unsound mind well as not. 7. That he discovered that the 1st Respondent accessed the funds/ accounts of Kasadha Grace but did not spend any penny on Kasadha Grace nor himself and his young brother who is currently constrained with his studies in S.3. 8. That the 2nd Respondent falsely presented herself as a child of Kasadha Grace yet she is not [**Refer to annexure "E'1**). 9. That the 1st Respondent spent monies on the 2nd Respondent yet she is not a child of Kasadha Grace at Kasadha Grace's detriment, at his detriment and at the detriment of his brother Kasadha Ignatius. 10. That the 1st Respondent has never been responsible for his welfare and education and that of his young brother ever since his father Kasadha Grace fell sick of the mental sickness. 11. That the 1st Respondent has also hired out the agricultural land in Kamuli belonging to Kasadha Grace and has selfishly benefitted himself alone and family. 12. That the 1st Respondent has never filed an Inventory in respect of his management of the affairs of Kasadha Grace and he is out of time. 13. 12. That the said information of not filing an Inventory was availed to his lawyers when they requested for the record of proceeding in **HCT-03-CV-15-2022**. 14. That he had been advised by my lawyers which information he verily believe to be true that being aggrieved by the order appointing the 1st Respondent a Manager of the estate of Kasadha Grace which legally affects him and his young brother, he can apply for review of the said order. 15. That he is further advised by his lawyers which information he verily believes to be true that this court has powers to remove the 1st Respondent from being a manager of the estate of Kasadha Grace since he is not a fit and proper person. 16. In addition to the above, the 1st Respondent procured the said Order through fraud as *inter alia* stated and has never taken care of the estate of Kasadha Grace nor can he account for the said estate.

He prayed that:-

1. Being the biological son of Kasadha Grace, the court finds him a fit and proper person and appoints him a Manager of the estate of Kasadha Grace, to look after him and Kasadha Ignatius. 2. Places Kasadha Grace in his custody since when he fell sick 3 months ago, the 1st Respondent removed him from hospital and never took him back to their village house but took him to unknown place not known to him nor his brother. 3. The court reviews the Order of the 1st Respondent to take care of the welfare and education needs of the 2nd Respondent since she is not a child of Kasadha Grace. 4. The court orders the 1st Respondent to file an inventory of the property belonging to Kasadha Grace and to furnish it with an account showing the sums received and disbursed on the account of the estate and the balance remaining in his hands.

**The 1st Respondent Kabaire Charles filed an Affidavit in Reply** in which he deponed that:-

1. He has been informed by his Counsel of M/S. Tuyiringire & Co. Advocates whose information he verily believe to be true that this Application misconceived and an abuse of court process in as far as the affidavit in support of motion does not disclose grounds for review and sets out matters of fraud that can only be determined in an ordinary suit.

In reply to paragraphs 3, 4, 5, 7, 8, 9 and stated that:-

1. The 2nd respondent is a daughter to Kasadha Grace and the applicant shall be put to strict proof thereof. 2. He has never stated that he was taking care of the applicant and the applicant is lying through his teeth, he is an adult and is employed and he actually ought to take care of his father instead of seeking to fleece him of the money that should take care of him. 3. He has dutifully taken care of his brother, Kasadha Grace (person of unsound mind) since 2007 to date and none of his siblings or even the children of Kabaire or even the their mother took care of him. **See annextures A, B and C.** 4. Ignatius Kasadha is not known to him or even the patient has never been brought to his attention or even the patient yet the applicant who has interacted with him and his father on several occasions. 5. In specific reply to paragraph 10, his sister (patient's sister) is the one utilizing the said agricultural land and not himself. 6. By reason of the matters averred in paragraph 4 above, the affidavit of the applicant is riddled with falsehoods that go to the root of this application and per the information of my counsel which he verily believes to be true, it ought to be expunged from the record. 7. In reply to paragraphs l1, 12, 13, 14, 15, 16, 17, 18, 19 and 20;- 8. That upon obtaining the Order in this court, he began to regularize the process of getting the patient's benefits from his employers. **See annexture D** being the previous correspondences. 9. He even had to seek an Order of the court to have the patient's benefits placed on the estate account as and not the patient's personal account since the patient's employer had refused to comply with his correspondences. **See annexture E** being the pleadings in the matter at Kamuli court. 10. The patient has had episodes of sickness that necessitated my immediate presence and have kept him busy with the patient to date. 11. Indeed as a culmination of the ailments he was further diagnosed with Tuberculosis and he is undergoing treatment. **See annexture F** being the patient's medical records. 12. Owing to the matters averred in paragraphs 7 (1) - (d) above he has not ignored to file the inventory, he has been strained by the patient's condition and the fact that the he has received no cooperation from the applicant and the patient's employer. 13. This application is brought malafide by the applicant who seeks to enrich himself to the detriment of the patient having learned that there is money that is expected on the estate account. 14. This application is misconceived and an abuse of court process since it does not pass the test for review. 15. In specific reply to paragraph 17, the same is tainted with false hoods and the said Kasadha Grace has been sick for over 20 years and under his custody and care, he reiterates his resolve to take care of his brother as the law and his antecedents have shown. 16. He swears this affidavit in opposition of the application and prays that it be dismissed with costs since the estate of the patient is being put through an undue burden.

**In rejoinder**, the Applicant specifically deponed that:-

1. In specific reply to paragraph 3 of the 1st respondent's affidavit in reply, lam informed by his lawyers which information he verily believe to be true that this application is not misconceived because it is the only way through which as a person aggrieved by the order in **HCT-03-CV-15-2022** which affects me and my young brother Kasadha Ignatius can get justice. 2. In addition to the above, this application discloses fraud which falls under as sufficient reason for the application of review to be granted since the 1st respondent procured the order in **HCT-03-CV-15-2022** by fraud. 3. In further reply to paragraph 3 above, the application discloses grounds of review because the order in **HCT-03-CV-15-2022** granted to the 1st respondent premised on the supplementary affidavit of the 2nd respondent which supported the application. 4. The said 2nd respondent in the supplementary affidavit in **HCT-03-CV-15- 2022** lied to court that she is a biological daughter of Kasadha Grace. 5. The 2nd respondent further lied to court that the 1st respondent who was the applicant in order in **HCT-03-CV-15-2022** used to take care of her and the applicant well as not. 6. The court relied on the misrepresentations and false hood in the supplementary affidavit to deem the 1st respondent a fit and proper person to manage the estate of Kasadha Grace well as he was not and is not. 7. In further reply to paragraph 3 of the 1st respondent's affidavit in reply, lam informed by his lawyers which information he verily believe to be true that fraud is fraud so long as it is pleaded, court can handle it even in this application which was by way of Notice of Motion. 8. In rejoinder to paragraph 4(a) of the 1st respondent's affidavit in reply, aver 2nd respondent is not a daughter of Kasadha Grace, but rather a daughter of the 1st respondent. 9. In reply to paragraph 4(b) of the 1st respondent's affidavit in reply, he avers that the 1st respondent misrepresented to court when he relied on the supplementary affidavit of the 2nd respondent with falsehoods and lured court to grant him the order in **HCT-03-CV-15-2022**. 10. In reply to paragraph 4(c) of the 1st respondent's affidavit in reply, the 1st Respondent has never taken care of Kasadha Grace save from taking him to unknown place not known to him or his brother nor the family even after his heart crying out to him. 11. In specific reply to paragraph 4(d), Ignatius Kasadha is a biological son of Kasadha Grace and the applicant and the applicant are his only biological children. 12. In reply to paragraph 5 of the 1st respondent's affidavit in reply, the 1st Respondent cannot manage the estate of Kasadha Grace as he clearly states That in reply to paragraph 6of the 1st respondent's affidavit in reply, he was called and asked by the CAO of Kamuli if he had given consent to the 1 respondent to get the order in **HCT-03-CV-15-2022** and that is when he found out that the 1st respondent had been granted the order. 13. Indeed he instructed his lawyers to request for the record of proceedings in **HCT-03-CV-15-2022** and that is when he further found out that the 1st respondent with help of the 2nd respondent procured the order in **HCT-03-CV-15-2022** to take care of him and 2nd respondent which is not true because the 1st respondent has never taken care of him nor paid his school fees. 14. The 1st respondent uses the resources of Kasadha Grace to look after his family and pay school fees for his children like the 2nd respondent. 15. In reply to paragraph 7 of the 1st respondent's affidavit in reply, he aver as follows; 16. The 1st respondent controls the account of Kasadha Grace on which Kamuli District put him as his next of kin and whenever his salary is credited, the same is withdrawn by the 1st respondent. 17. With the help of his lawyers, he filed an application to be added as a party to Originating Summons **No.67 of 2022 vide Miscellaneous Application No.87 of 2023.** **[See copy of the application marked annexure "F**). 18. The employer of Kasadha Grace Kamuli District Local Government does not oppose the said application. **[See copy of their affidavit in reply marked "G').** 19. It is not true that Kasadha Grace has had episodes of sickness which prevented the 1st respondent to file the inventory and there is no letter he wrote requesting for more time. 20. Similarly to the above, he is informed by his lawyers which advice he verily believe to be true that filing an inventory is mandatory and was an order given to the 1st respondent in **HCT-03-CV-15-2022** which he has never complied. 21. It is not true that the person of unsound mind was diagnosed with Tuberculosis which prevented the 1st respondent to file the account of the estate that someone else is utilizing his land and he has done nothing about it as required by the law and even if so persons of Tuberculosis are isolated due to its contagiousness thus there is no way it could prevent 1st respondent from filing the inventory. 22. That in reply to paragraph 7(e) of the 1st respondent's affidavit, he has at all times wanted to take care of his father Kasadha Grace, but the 1st respondent removed him from his house and took him to unknown place and up to now he did not know his whereabouts. 23. The 1st respondent has never been in custody of Kasadha Grace save after obtaining the order in **HCT-03-CV-15-2022** fraudulently and thus took him to a place unknown to him such that he spends the resources as he has been in the guise taking care of him. 24. In reply to paragraph 7(i) of the 1st respondent's affidavit in reply, I aver that the 1st respondent is not a fit and proper person to manage the estate of Kasadha Grace having already failed in his duties prescribed by law. 25. The applicant has failed to take care of the assets of Kasadha Grace as he clearly stated that his agricultural land is being used by someone else, he has not accounted for any monies received from his employer nor the lockup 26. He swears this affidavit in rejoinder to put the record straight that the 1st respondent is not a fit and proper person to manage the estate of Kasadha Grace nor take care of his school going child Kasadha Ignatius.

**BACKGROUND**

The background according to learned counsel for the Applicant are that the applicant and a one Kasadha Ignatius are biological children of Kasadha Grace a person of unsound mind. The applicant in the month of September 2023 discovered that the 1st respondent was granted the order to manage the estate of Kasadha Grace, take care of the welfare of the applicant and the 2nd respondent. The applicant was aggrieved by the order because the 1st respondent does not take care of Kasadha Grace nor himself and also the 2nd Respondent is not a biological child of Kasadha Grace.

That the 1st Respondent by use of the said order removed the person of unsound mind and took him to a place which is unknown to him nor his young brother Kasadha Ignatius. Thus the reason the applicant has made this application to review the order in **HCT-03-CV-15- 2022**, to remove the 1st respondent from being the manager of the estate of Kasadha Grace, to appoint the applicant as the manager of the estate of Kasadha Grace, order the 1st respondent to file an inventory of the property belonging to Kasadha Grace as he named them in **HCT-03-CV-15-2022** and costs of the Application.

**REPRESENTATION**

When this Application came before me for hearing, the Applicant was represented by Learned Counsel Miss. Lydia Ntono of M/S. Signature Advocates, while the Respondents were represented by learned counsel Mr. Hategeka Humphrey of M/S. Tuyiringire & Co. Advocates.

Both parties were directed to file Written Submissions and they have all complied. I have analyzed the same and relied on them in this Ruling.

**THE LAW**

**Section 82 of the Civil Procedure Act provides:-**

*“****Review.***

*Any person considering himself or herself aggrieved—*

*(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or*

*(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit”.*

**Section 98** **of the Civil Procedure Act provides:-**.

*“Savings of inherent powers of court.*

*Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court”.*

**Section 33 of the Judicature Act***.*

*“****General provisions as to remedies.***

*The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided”.*

**Section 5 of the Administration of Estates of Persons of Unsound Mind Act, 1951**

*“Inventory, statement and annual accounts*

*(1)Every person appointed by the court to be the manager of the estate of a person of unsound mind shall within six months of the date of his or her appointment or such other time as the court may order, deliver to the court an inventory of the property belonging to the person of whose estate he or she has been appointed manager and of all such sums of money, goods and effects as he or she shall receive on account of the estate together with a statement of all debts due by or to such person, and every such manager shall furnish to the court annually or at such other periods as the court may order within three months of the close of the year or such other period, an account of the property in his or her charge, showing the sums received and disbursed on account of the estate during that year and the balance then remaining in his or her hands.*

*(2)The inventory, statement and account shall be in such form as the court shall direct.*

*(3)Any person may, on payment of such fee as may be prescribed, inspect and obtain a copy of any inventory, statement or account delivered to the court under subsection (1).*

*(4)Where any person, by petition to the court, impugns the accuracy of any inventory or statement, or of any account prepared under this section, the court may summon the manager and inquire summarily into the matter and make such order on the matter as it thinks proper, or the court, in its discretion, may refer any such petition to a magistrate having jurisdiction in the place in which the property belonging to the estate concerned is situate for inquiry and report, and upon receipt of the report the court may make such order as it thinks fit”.*

**Section 6 of the Administration of Estates of Persons of Unsound Mind Act, 1951**

*“****Removal of managers***

*The court may, for any cause which seems to it sufficient, remove any manager appointed by it under section 3 and may appoint any other fit person in his or her place, and may make such order as it considers necessary to ensure that the person so removed makes over the property in his or her hands, and of which he or she was manager, to his or her successor and accounts to that successor for all money received or disbursed by him or her in connection with the property”.*

**Order 46 rule 2 of the CPR** provides that:-

“***To whom applications for review may be made.***

*An application for review of a decree or order of a court, upon some ground other than the discovery of the new and important matter or evidence as is referred to in rule 1 of this Order, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree or made the order sought to be reviewed”.*

And

**Order 52 rule 1 and 3 of the Civil Procedure Rules** provide for the procedure that an Application of this nature must take.

**RESOLUTION OF THE APPLICATION**

**PRELIMINARY OBJECTION**

In their Written Submissions, learned Counsel for the Applicant raised a preliminary objection that the order in **HCT-03-CV-15-2022** was applied for and granted under repealed law that is to wit; the **Mental Treatment Act Cap 279**, the Administration of **Estates of Persons of Unsound Mind Act, Cap 155** were repealed by **S.77 of the Mental Health Act of 2018.**

They contended that the two laws under which the order in **HCT-03-CV- 15-2022** was granted were repealed. [**See annexure "C" & "D"** on the applicant's affidavit in support of the application]; and prayed that this Honorable Court based on this point of law reviews the said order and sets it side.

They further invited this court on its own motion under **S.98 of the Civil Procedure Rules** to set aside the said order in **HCT-03-CV-15-2022**.

**In reply,** counsel for the Respondent argued its settled law that a point of law once brought to the attention of court ought to be disposed of before proceeding to the merits of the case. ***See National Union of clerical Commercial & Technical Employees vs National Insurance Corporation SCCA No. 17/93.***

That the affidavit in support of motion is incompetent, riddled with grave falsehoods. That at paragraph 2 the applicant contends that Kasadha Ignatius is the biological son of the patient, Kasadha Grace and attached a child birth card and Health Cards but the said Birth card bears the name 'Semei" and the other document bears Egenicios Kessada (none of which have a bearing on the said 'Kasadha Ignatuis'. Cited with approval in ***Reg. Trustees of Khoja vs Sule pharmacy CA 55 of 2010*** marked annexure 'A' with the relevant parts highlighted.

At paragraph 5() the applicant contends that the 1" respondent deceived (lied) to the court that I take care of the children of Kasadha and indeed referred to the affidavit of the 1st Respondent purporting it to be the affidavit of the 2nd Respondent; The impugned affidavit does not state anywhere that the 1" or even 2nd respondent takes care of the applicant or even the 2nd Respondent as the 1 applicant is an adult.

They therefore submitted that the above are grave falsehoods intended to hoodwink the court and create a bad image of the 1st respondent in the face of the court and the affidavit is wholly ought to be struck-out. They relied on ***Andrew Babigumira & Anor vs Global Trust Bank Ltd &x 3 Ors*.**

That this position in respect to falsehoods in affidavits has also been affirmed by this court in ***Nile Agro Industries vs Ochieno Beatrice***

That the application is incompetent in as far as it's based on fraud which cannot be determined by Notice of Motion; and argued that as of trite matters of fraud cannot be proved by way of affidavit evidence. In ***Yahaya Walusimbi vs Justine Nakalanzi & others".***

That the court of appeal held that fraud cannot be proved by affidavit evidence. This decision is binding on your lordships court and invites this court to follow the same. The same reasoning has been followed in ***Musaazi Godfrey & others vs Lwaza Emmanuel Kaweesi*** and in ***Hon Justice Prof. George W. Kanyeihamba vs Commissioner Land Registration & Anor*** where Justice Percy Night Tuhaise Held that matters of fraud would `require a full and careful inquiry where he can be cross examined, that would be appropriately handled in an ordinary suit rather than in a notice of motion.

They invited the court to find that this application is improperly before the court and misconceived and be pleased to strike it out with costs.

1) The Notice of Motion does not disclose the grounds for Review:

**Order 52 rule 3 of the Civil Procedure Rules** provides that a Notice of Motion shall in general terms state the grounds of the application;

The Respondents argued that the import of the **Order 52 rule 3** (specifically the need to set out the grounds) is to set out in the body of the motion and the affidavit is to give evidence in support of evidence set out in the motion.

They submitted that it's improper and unlawful to set out evidence by affidavit for matters not set out in the grounds; and the application is incompetent **Misc. Applic. No.677 of 2013** attached hereto and marked Annextures 'B' and relevant parts highlighted.

**Misc Application No. 137 of 2021** attached hereto and marked annextures C with the relevant parts highlighted.

**Misc. Application No. 386/2018** attached here to and marked annexure D with the relevant parts highlighted.

**MA 881 of 2022** attached here to and marked annexure E with the relevant parts highlighted.

**Misc. Cause No 79/ 2011** attached here to and marked annexure F with the relevant parts highlighted.

***In Masaba Husein vs Monje*** Leonard Justice Stephen Musota (as he then was) held that dismissing the appeal; that the learned trial magistrate properly upheld the objection that the Notice of Motion did not disclose the grounds of the application

They invited court to peruse the Notice of Motion and you will find that the said Notice of Motion sets out 4 paragraphs, none of which sets out the grounds for review but are mere narrations that do not amount to grounds for review i.e.; discovery of new and important matters of evidence which with the exercise of due diligence, knowledge; or a mistake or error appeal on the face of the record:

The notice of motion is incompetent and it ought to be struck out with costs. Applicant's point of law: was not without his/her

The applicant contended that the application was made and granted under a repealed law. That this is not true the **Mental Treatment Act Cap 279** was still in force at the time if the application; and his learned colleague is merely on a fishing expedition, hoping to stumble on a ground for review as shall be shown to this court.

That first and foremost the settled position of the law is that parties are bound by their pleadings and as such the submissions should be reflective of the pleadings. The applicant's counsel did not in any way bring this issue so as to afford the respondents a chance to respond to the same and to trace the commencement instrument of the said act and whether it is saved by the

**Section 78 of the Mental Health Act, 2018.**

They submitted that that it is an afterthought and cannot be heard in this application as the point of law requires all this evidence which lawyers cannot submit on lest they are leading evidence from the bar.

Secondly on this issue that the **Mental Health Act, 2018** was assented to on the 25th December, 2018 but the same is pending commencement. The date of commencement per section I of the **Mental Health Act, 2018** is on a date to be appointed by the minister; as such the point of law is misconceived and it ought to be overruled as at the time of the suit, the commencement date for the **Mental Health Act, 2018** had not been communicated.

Furthermore, that Section 1 further provides that different dates may be appointed for the commencement of certain provisions of the said act. On my part I have traced and found no commencement date for the said Mental Health Act. The duty lies on he who alleges a fact to prove the same.

Thirdly and without prejudice to the above, **section 78 (5) of the Mental Health Act, 2018** provides that documents executed under the **Administration of Estates of Persons Of Unsound Mind Act Cap 155** and which is subsisting at the date of commencement of the Act is deemed to be an action taken under this act.

They submitted that this the ruling and orders of this court fall under such documents; and invited this court to overrule the objection with costs. The respondents stated that they intended to raise a preliminary point of law on their part.

**In response to the above arguments, I do hold as follows;**

In the case of ***Alcon International versus Kasirye Byaruhanga (1995) 111 KALR);*** Justice Musoke held that procedural defects can be cured by the invocation of **Article 126(2)(e) of the Constitution.**

The omission referred to under this objection is one that is curable. I therefore find that this objection is hinged on a procedural defect which can be cured by **Article 126**, this objection is therefore overruled.

**Merits of the Application:**

**Issues:**

1. Whether the Applicant has sufficient grounds for review? 2. Whether the Applicant should be appointed to manage the estate of the person of unsound mind?

The Appellants submitted that

**Issue 1: Whether the Applicant is an aggrieved person?**

The Applicant is an aggrieved person as envisaged under section 82 of the Civil Procedure Act and Order 46 rule 1 and 2 of the Civil Procedure Rules. In ***Mohamed Allibhai vs W. E Bukenya Mukasa & Departed Asians Property Custodian Board Supreme Court Civil Appeal No. 56 of 1996****, Odoki, JSC,15* explained that; 'A personconsiders himself aggrieved if he has suffereda legal grievance. See ***Yusufu v. Nokrach (1971) EA 104***, and ***In Re. Nakivubo Chemists (U) Ltd (1971) HCB 12,*** ***Ladak Adulla Mohamed Hussein v. Griffiths Isingoma Kakiiza and others Civil Appeal No. 8 of 1995 (unreported***). A person suffers a legal grievance if the judgment given is againsthim or affects his interest.

They argued that, the order in **HCT-03-CV-15-2022** affects the interest of the applicant as a biological son of Kasadha Grace, See paragraph 2 and 13 of the applicant's affidavit in support of the application. That the said order was to the effect that the 1st respondent access Kasadha Grace's bank accounts, NSSF funds to use on the Kasadha grace and his two children namely Mugalu Malcom and Mariam Nantabi yet the 2nd respondent is not a biological child of Kasadha Grace. See paragraph 3 of the applicant's affidavit in support of the application.

They contended that, the applicant is aggrieved by the order in HCT-03-CV-15-2022 because the 1st respondent has never taken care of him. See paragraph 9 of the applicant’s affidavit in support.

Further, the said averment is confirmed by the 1st respondent when he states that the applicant is an adult and he does not need to cater for his welfare. See paragraph 4(b) of the Applicant's affidavit in Reply. They contended that , it should be noted that in **HCT-03-CV-15-2022**, the 1st respondent relying on the supplementary affidavit of the 2nd respondent claimed that he was taking care of the applicant well as not.

That, the said order in **HCT-03-CV-15-2022** affects the applicant because the 1st respondent used the same to remove the person of sound mind his biological father from his home to a place which is unknown to the applicant.

**Issue 2: Whether the application raises grounds for review?**

**Order 46 rule 2(b) of the Civil Procedure Rules**, provides that any person considering himself or herself aggrieved by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the court which passed the decree or made the order.

That the applicant discovered that the 1st respondent was granted the order to manage the estate of Kasadha Grace where in the 1st respondent presented to court that the 2nd respondent was a biological child of Kasadha Grace whereas not. See paragraph 3, 4, 7, 18 of the applicant's affidavit in support of the application. Your lordship, the 2nd respondent never rebutted the averment of the applicant that she is not a biological child of the person of unsound mind.

They further argued , what amounts to sufficient cause is a matter for the Court's discretion as was held in the case of ***Noble Builders (U) Limited & Raghbir Singh Sandhu vs Jabal Singh Sandhu S. C. C. Application No. 15 of 2002***. The following are the reasonswhich suffice sufficient cause discussed below;

That the fact that the 1st respondent has never been responsible for the welfare of the applicant qualifies as a sufficient reason for this court to review the said order. See paragraph 9 of the applicant's affidavit in support of the application.

Furthermore, the 1st respondent 's application to be granted the order was also premised on the supplementary affidavit of the 2nd Respondent who stated in the said affidavit that the 1st respondent catered for her education needs together with the applicant whereas not.

It is in the interest of justice that the order in **HCT-03-CV-15-2022** be reviewed and the applicant appointed manager of the estate of Kasadha grace because he removed the 1st respondent from his known place of abode, took him to a place not known to the applicant. See paragraph 17 of the applicant's affidavit in support of the application.

The said averment was not rebutted nor challenged by the Respondents. **See *Serefaco Consultants Itd vs Euro Consult Bv & Anor*** **supra**. Thus the said order legally affects the applicant and his brother because their hearts cry they don't know their father's where aboutsand thus it is the interest of justice that court reviews the said order which made the 1st respondent deny the applicant the right to access their father.

They argued that, the 1st respondent not being able to manage the estate of the person of unsound mind suffices as a sufficient reason for court to review the order. They prayed that the order which gave him the mandate is reviewed and his removed from being the manager of the estate of Kasadha Grace . See paragraph 5 of the 1st Respondent’s affidavit in reply since it is evident that someone else is utilizing the land of the person of unsound mind, he did not demonstrate or show anything he did to stop the said utilization which is at the detriment of the person of unsound mind. See also paragraph 13 of the applicant's affidavit in Rejoinder. Thus a sufficient reason to review the said order.

They argued that as, much as the 1st respondent avers that fraud cannot be determined in such an application, we are alive to the same and wanted to show court how dubious his nature character is that he cannot be entrusted with the estate of the person of unsound mind, however, without prejudice to the above, the applicant’s affidavit in support raises grounds of review as already discussed and the 2nd respondent did not rebut the said averment that she is not a biological daughter of the person of unsound mind. See paragraph 3 the applicant's affidavit in support of the application.

They contended that such averment does not need magic to be challenged or be rebutted nor can it be termed as fraud.

The 2nd respondent did not rebut nor challenge the averment of the applicant that she falsely presented herself as a child of Kasadha Grace yet she is not. See paragraph 7 the applicant's affidavit in support of the application. Your lordship, in the case of ***Serefaco Consultants Itd vs Euro Consult BV & Anor Caca Application No. 16 of 2007***, Justice S. B. K. Kavuma, JA relying on the case of ***H. G. Gandesha and Kampala Estates Ltd and G. J. Lutaya, SC Civil Application No. 14 of 1989***, held that;

It is settled law that if the applicant supports his application by affidavit or other evidence and the respondent does not reply by affidavit or otherwise, and the supporting evidence is credible in itself, the facts stand as unchallenged.

That the record is clear that the 2nd respondent who is also represented by counsel for the 1st respondent never filed an affidavit in reply. It is our submission that the affidavit in support of the application was not controverted by the 2nd respondent. The pertinent averments are paragraphs 3, 4, 7, 8, 18 of the applicant's affidavit in support of the application.

They prayed that this Court takes them as correct and true because indeed they are true since much as the 1st respondent in paragraph 1 of his affidavit in reply avers that his evidence is sufficient in opposition of the application, it is our submission that it is not because save for the general denial, it does not rebut the said averments with any proof that the 2nd respondent is a biological daughter of Kasadha Grace nor did he have authority to swear the affidavit on her behalf.

For emphasis, that the said averments segmented above are independent of paragraph 5()-(vi) of the applicant's affidavit in support of the application and we pray that if court is inclined to agree with the 1st respondent that fraud cannot be determined in such an application, we invite you to consider other paragraphs in the affidavit in support of the application which were not rebutted by the 2nd respondent as *inter alia* discussed and thus review the order in **HCT-03-CV-15-2022.**

They prayed that this court finds that due to the sufficient reasons explained above and in the interest of Justice where an order of court was obtained in guise ,the court being lied to that the applicant is cared for, the court being lied that the 2nd respondent is a daughter of the person of unsound mind, the incompetence of the manager to manage the estate , we pray that this court finds the same as sufficient reasons to review the order in **HCT-03-CV-15-2022**.

**Issue three: Whether the applicant should be appointed to be the estate of the person of unsound mind?**

Counsel for the Applicant cited , **S.62(1) (2) (a) -(b) of the Mental Health Act of 2018**, which provides for appointment of a personal representative by court where the person with mental illness is unable to appoint one to manage his affairs and also be a guardian of his defendants. The law gives the personal representative general and special powers to manage the affairs of person with mental illness.

They argued that as much as the 1st respondent was given the said general and special powers to manage the estate of Kasadha Grace, he failed to exercise the said powers. The 1st respondent admitted that he does not have charge and responsibility over the estate of Kasadha Grace. See paragraph 5 of the 1st respondent’s affidavit in support of the application where he deponed that;

*" in specific reply to paragraph 10, my sister (patient's sister) is the one utilizing the said agricultural land and not myself”.*

They contended the said averment is proof that the 1st respondent does not exercise the powers this court bestowed on him to manage the estate of the person of unsound mind. Similarly the said averment speaks loud that the 1st respondent does not know his duties or responsibilities as a manager of the estate of Kasadha Grace and thus the estate is being put to waste as confirmed by the 1st respondent since someone else is benefitting from it at the expense of the estate of Kasadha Grace.

They pray that this court finds him not fit and proper to manage the said estate and remove him from being the manager of the estate of Kasadha Grace.

They further relied on, **S.5 (1) of the Administration of Estates of Persons of Unsound Act 1951**, provides that a person who is appointed a manager of the estate of the person ofunsound mind shall with in period of 6 months of the date of his or her appointmentdeliver to court an inventory of the property belonging to the person whose estate hewas appointed to manage. That the 1st respondent has never filed an inventoryin respect of the estate of Kasadha Grace. See paragraph 11 of the applicant's affidavitin support of the application.

That much as the 1st respondent attempted tomake a fanciful theory why he failed to comply with the mandatory requirement of thelaw and per court's order in **HCT-03-CV-15-2022** when he averred at paragraph 7(e) ofhis affidavit in Reply that;

*" owing to matters averred in paragraph 7(1) (d) above I have not ignored to file the inventory , I have been strained by the patient's condition and the fact that I have received no cooperation from the applicant and the patient's employer."*

They further contended that the said averment does not hold merit and also one wonders what cooperation the 1st respondent required from the applicant nor the employer of the person of sound mind before making the inventory. The said averment is strange to us, is not supported by any legal position. **S.5(1) of the Administration of Estates of Persons of Unsound Act Cap 155,** is clear and mandates the person appointed as the manager to file an inventory and not a child of the person of unsound mind nor his employer.

That be it as it may, the applicant being a biological child of the person of unsound mind is desirous of taking care of his father if that is the cooperation the 1st Respondent refers to [See paragraph 16(g) of the applicant's affidavit in rejoinder].

That the 1 respondent having exhibited failure, he will not do magic since even the new law obligates to file an inventory per S.64 of the Mental Health Act of 2018.

They argued that the 1st Respondent is not a fit and proper person to administer the estate of Kasadha Grace because in **HCT-03-CV-15-2022** since he did not act in the best interest of Kasadha Grace and also does not care for the defendants of Kasadha Grace yet court ordered him to do so. See paragraph 4(d) of the 1st respondent's affidavit in reply.

That if Kasadha Ignatius is not known to the 19respondent, as the manager of the estate of his father, he ought to have taken charge by performing a DNA test on him, mere averring that he is not known to him is an academic moot because being a child he is supposed to be cared for by the 1" respondent.

That it is also very strange that the 1# respondent averred that Kasadha Ignatius is not known to the person of unsound mind which is illogical, the person of unsound mind does not understand his affairs that is why court appointed him to do so. See paragraph 2 of the applicant's affidavit in support of the application and paragraph 11 of the applicants’ affidavit in rejoinder. Thus, by the 1st respondent not being concerned with the affairs of the estate of Kasadha Grace a person of unsound mind thus as he recklessly ignored Kasadha Ignatius that he is not known to him nor taking any steps to ascertain if he is a child of Kasadha Grace makes him unfit and not proper to administer or manage the said estate since he has not acted in his best interest and in the best interest of the defendants required by **S.62 (5) of the Mental Health Act of 2018.**

That the 1st respondent does not take care of the welfare of the applicant as yet he was ordered by court to take care of his welfare . See paragraph 9 of the affidavit in support of the application. Also See paragraph 5 of the applicant's affidavit in support of the application.

The said non taking care of the welfare of the applicant is confirmed by the 1st respondent's averment at paragraph 4(b) of the 1st Respondent's affidavit in Reply that;

*"That I have never stated that I am not taking care of the applicant and the applicant is lying through his teeth, he is an adult and is employed and he actually ought to take care of his father instead of seeking to fleece him of the money that should take care of him".*

That the above averment is an admission and proof that the 1st respondent does not cater for the welfare of the applicant as was ordered by court and thus not a fit and proper person to manage the estate of Kasadha Grace yet Court ordered him to do so. Similarly to the above, the said averment indeed shows that the 1st Respondent does not know his responsibilities which include the welfare of the applicant as this court ordered in **HCT-03-CV-15-2022**.

In addition to the above, much as the 1st respondent avers that the applicant is an adult, the applicant has not disputed so and even the 1st respondent then in the application to be made the manager of the estate of Kasadha Grace mentioned that the applicant a one **Mugalu Malcom was aged 24 years. See annexure D** onthe affidavit in support of the application, hence he is estopped from saying that theapplicant is of age, even court was aware that the applicant was of age but ordered himto take care of his welfare.

Thus by the 1st respondent changing goal posts to fit the purpose of the situation like in the instant case yet he benefitted from the said fact in **HCT-03-CV-15-2022** which fact was supported by the affidavit of the 2nd respondent only exposes him as a person who is not fit and proper to manage the estate of Kasadha Grace.

Further, be it as it may, the chamber summons/ application in **HCT-03-CV-15- 2022** was supported by the affidavit of the 2nd respondent in which she deponed that the 1st respondent takes care of her and the applicant. See Paragraph 9 of the Applicant's affidavit in rejoinder. Also annexure D on the affidavit in support of the application *inter alia* stated.

That much as the 1st respondent in panic states that fraud can only be determined in an ordinary suit. See paragraph 3 of the 1st respondent’s affidavit in reply. It is our submission that such averment could hold water if the 1st and 2nd Respondents were not given chance to tender in their evidence to rebut the averment of the applicant that the 2nd respondent is not a biological daughter of Kasadha Grace . See paragraph 3, 5(ii), 5(ii), 7 and 8 of the applicant's affidavit in support of the application.

That the said averments were not challenged nor rebutted by the 2nd respondent and were told to court through affidavit evidence. They cited the principles in the case of ***Massa vs Achen 1978 H. C. B. 197*** where this Court held that where certain facts are sworn to in an affidavit, the burden to deny them is on the other party, and if he does not, they are presumed to have been accepted.

They prayed that court grants the prayers sought in this application since the 2nd respondent is deemed to have accepted them and indeed confirms the applicant's averments that 2nd respondent is not a biological daughter or a legally adopted daughter of Kasadha Grace yet her supplementary affidavit lured court to grant the orders in **HCT-03-CV-15-2022**; and prayed that court finds the evidence and the affidavit credible and reliable and contradictory.

**Issue four: Whether the applicant has any remedies in the circumstances?**

They prayed that court finds the evidence and the affidavit of the applicant Credible, reliable and not contradictory. There are no discrepancies in it. Unlike the alien to his affidavit in reply of the 1st respondent which is contradictory and responsibilities of managing the estate of Kasadha Grace as laid out in **S.4(1) of cap 155 supra.**

The 1st respondent miserably failed to manage the estate and affairs of Kasadha Grace such as filing an inventory, filing the account of the sums received nor disbursed on account of the estate and showing the remaining balance . The 1st respondent even attempted to give an explanation that he was strained by the person of unsound mind's sickness and the noncooperation of the applicant and the employer of Kasadha Grace which explanation have only come out because he has been exposed for failing to manage the estate . Perhaps the explanation would hold water if he had written to court but he never did not. The law does not give room for the said laziness and irresponsibility in managing the estate of Kasadha Grace which this court has powers to save from such unfit and dishonest person by finding him unfit and removing him from being the manager of the said estate.

They further prayed that this court appoints the applicant being his biological son and his desirous of taking care of Kasadha Grace unlike the 1st respondent complaining that the applicant is not cooperative thus reason he did not file an inventory. The 2nd respondent did not challenge the averment that she is not a biological daughter of the Kasadha Grace yet herself together with the 1st respondent misrepresented this court to grant the 1st Respondent the order in **HCT-03-CV-15-2022** for which we pray that this court reviews the same.

They also prayed that since costs follow the event, this court be pleased to grant the prayers sought in this application with costs.

**In reply**, counsel for the Respondent submitted that I shall address the merits of the case in the event am overruled on the above objection.

**They cited the provisions of Section 82 of the Civil Procedure Act** (supra); and **Order 46 of the Civil Procedure Rules** provides that;-

*1) any person considering himself or herself aggrieved*

1. *by a decree or order from which an appeal is allowed but from which no appeal has been preferred; or* 2. *by a decree or order from which no appeal is hereby allowed, and who from discovery of new and important matter of evidence which, after the exercise of due diligence was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for review of judgment to the court which passed the decree or made the order.*

*2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of the appeal is common to the applicant and the applicant, or when being respondent, he or she can present to the appellate court the case on which he or she applies for the review.*

They applicant submitted that, the 1st respondent was granted this order to manage the estate of Kasadha Grace and he represented to court that the 2nd respondent was a biological child of Kasadha Grace whereas not, and that this was not rebutted by the 2nd respondent.

That the 1st respondent led evidence in reply to the application in which that specific averment was denied specifically at paragraph 4(a) of the affidavit in reply; and submitted that the evidence of Kabaire Charles in reply is sufficient to this contention as per paragraph l clearly states; the 2nd respondent would also state the same thing; denying the contention.

They cited the case ***of Alibhai Salim & others v URA Misc Cause No. 123 of 2020*** is the authority for the proposition in law that it would not be necessary for other applicants/ respondents to swear separate affidavits if they are saying the same thing.

Furthermore in the case of ***Jethro Jones Opolot &r 93 others vs Attorney General***" Justice Ssekaana quoting the ratio of Justice Stephen Mubiru in the case of ***Namutebi Imelda vs Ssemanda & 2 others misc. Application no, 430 of 2021*** held that there is no required number of affidavits to support (in this case to oppose) an application as long as the affidavit is in the knowledge of the facts.

The 1st respondent led evidence to deny the facts deponed by the applicant and the applicant is duly bound to prove to court, that the 2nd respondent is not a child of the patient; on a balance of probabilities; no shred of evidence was set up besides the contention in the affidavit which are unsubstantiated.

This contention was also never set forth in the grounds in support of the notice of motion and as such cannot be heard as a ground for review.

They also submitted that the application did not lead evidence to prove this issue and to that this information could not be obtained at the trial. This is also because it's a matter that would require the applicant to lead evidence by way of DNA reports or Birth certificate aiming this to prove, which are better handled in an ordinary suit.

That counsel for the applicant submits that sufficient cause is a matter of courts discretion; this is grossly misleading and entirely untrue and the authority cited is misplaced and out of context.

In matters of review under **section 82 and Order 46 Rule l of the CPR**: as is the one before

It is now settled that *"any other sufficient reason ought to be read as meaning sufficiently of a kind analogous to the first two grounds.* They relied on the case of ***Neville James Stevens vs Sandra Stevens Misc. Application No. 368 of 2016***

The following are set out as other sufficient cause;

**Misc. Application no. 687 of 2021** attached hereto and marked **annexture ‘H’** with the relevant parts highlighted. ***Neville James Stevens vs Sandra Stevens Misc Application No. 368 of 2016*** attached hereto and marked annexture with the relevant parts highlighted.

That the respondent has never been responsible for the applicant's welfare...

b) That...he removed the 1st respondent from whose known place of abode and took him to an unknown place.

c) The Respondent is not all to manage the estate of the person of unsound mind.

According to counsel these matters were not rebutted by the respondent and that they amount to other sufficient reason within the meaning of the law of review.

That with respect, his learned colleague is being blatantly disingenuous and it's regrettable. He drew courts attention to paragraph 7 of the affidavit in reply and specifically paragraph 7(h) the court will find details of; the fact that the patient is in the care and custody of the 1st respondent; is undergoing medication at Jinja referral hospital; the 1st respondent also duly answered the charge that he was not taking care of the applicant in as far as he contends that the applicant is an adult who is employed and as such the insinuations are malafide and wrong.

That the other question would be if these amount to other sufficient cause; and submitted that such allegations do not amount to other sufficient reason within the meaning of **Order 46 rule l** and the precedents cited above as they are not analogous to the new evidence which could not be attained at the time of trial or an error apparent on the face of them record. That these are matters that should be handled in an ordinary suit.

That it's also incredible how the applicant produces no evidence of his father being lost, no police report, and no attempt to follow up on his father's health especially when his father is being treated at Jinja referral hospital as deposed in the affidavit in reply of the 1st respondent but contends that he is in an unknown place.

That this is grossly disingenuous and cannot be condoned by this court; and invited the court to disbelieve the applicant and their submissions in the limb of the application and dismiss the whole application with costs to the respondents. They prayed for costs because the estate of the person of unsound mind is being put through unnecessary litigation and a wastage of the much needed resources to handle petty matters.

**In rejoinder,** learned counsel for the Applicant submitted that counsel for the respondents had an opportunity to seek court's leave to cross-examine the applicant on the affidavit in support of the application but he chose not to.

Further, that one of the Health Card bears different names than those the applicant deponed in the affidavit is not true. The name of Egenicios Kasadha was specifically written in Luganda and not English just as the name Peter is written in Luganda as Petero, thus the submission that the said name is not for Ignatius Kasadha the only sibling of the applicant is just a wishful theory.

That the applicant's affidavit in support of the application had an annexure of the 2nd respondent which was the supplementary affidavit the 1st respondent attached to his application to this court to be appointed a legal manager of Kasadha Grace (the person of unsound mind) and his children were the 2nd respondent who deponed that the 1st respondent was taking care of her and the applicant as children of Kasadha Grace yet the 1st respondent has never taken care of the applicant nor is the 2nd respondent a child of Kasadha Grace.

That the applicant comes to court with clean hands and to bring to court's attention that the 1st respondent while applying to be a legal manager of Kasadha Grace, only tabled falsehoods intended to benefit them as a family since the 2nd respondent is her daughter yet she stated to this court in her supplementary affidavit that the 1st respondent then applicant was going to pay for her school fees at Jinja School of Nursing and not to benefit the patient Kasadha Grace and also she has never been a daughter of Kasadha Grace.

Further that the application has several grounds, fraud is just one of the grounds and the said dishonesty talked of is in black and white which has not been rebutted by the 2nd Respondent who alleged that she was a daughter of the person of unsound mind. They retaliated their earlier submissions regarding the lies, misrepresentations the 1st and 2nd respondent presented to court to procure the order to manage the estate of Kasadha Grace.

In addition that the application discloses grounds of review for which they retaliate our earlier submissions.

**Point of law regarding the application to be the legal manager by the 1st respondent and order granted under a repealed law.**

In respect of the above, it was submitted that they are alive to the position of the law that parties are bound by their pleadings, however, the applicant has not introduced any knew grounds to the application, the applicant has raised a point of law which can be raised at any time and thus it is still the applicant's point of law that the application by the 1st respondent to be made a legal manager of the estate of the applicant's father and the order which granted the same premised on a repealed law.

They argued that much as counsel for the respondents contends that there is a commencement instrument for the said **Mental Health Act of 2018;** and submitted that there is a commencement instrument vide **Regulation 2 of the Mental Health Act (Commencement) Instrument, SI No, 14 of 2021** which came into force upon the **Mental Health Act of 2018** being gazatted in September 2021, thus the repealed law is not saved by **S.78 of the Mental Health Act** as alleged by counsel for the respondents.

In addition that when a law is repealed, it ceases to have effect from the time the repeal takes effect as is the position of the law in **S.13 of the Interpretation Act cap 3 Laws of Uganda**. They cited the case where his Lordship Nshimye Allan Paul M, held in **HCT-05-CV-MC-0033-2023**, ***In the Matter of******Mutereba Isaiah a person of unsound mind and in the Matter of Appointment of the Estate of a Person of Unsound Mind***, held that;

*“The principle is that when a law is repealed, it ceases to have effect from the time the repeal takes effect. ......the application that was brought under* ***Cap 155*** *was repealed by* ***S.77 (b) of the Mental Health Act 2018****”.*

That it is in black and white that the application and order making the 1st respondent a legal manager of the applicants father was applied for under a repealed law thus does not exist and granted under a repealed law, hence the same cannot stand for which we invite Court to review it and set it aside.

They added that they are not aggrieved by counsel for the respondent 's attack on the person of counsel for the applicant as clearly seen on page 7 of the respondents' submission, the 3rd paragraph from the top, the first line that; with due respect, their learned colleague is being blatantly disingenuous and its regrettable".

They prayed that court grants this application and the sought remedies based on the point of law, on court's own motion since an order granted under a repealed law cannot have force because its force of existence also ceased as amplified in **S.13 of the Interpretation Act Cap 3** and on the sufficient grounds in the application.

**RESOLUTION OF THE APPLICATION**

**Section 2 of the Administration of Estates of Persons of Unsound Mind Act (CAP.155**) gives the High Court jurisdiction to appoint managers of estates of persons of unsound mind. The appointment may be made from several classes of people who are then tasked to act in the best interest of the person of unsound mind. Court is further guided by the provisions of the Administration of Estates of Persons of Unsound mind (Procedure) Rules in determining the conditions for the appointment of the Manager.

A person of unsound mind is defined under the Act to mean

*“Any person adjudged to be of unsound mind under Section 4 of the Mental Treatment Act or a person detained under Section 113 or 117 of the Magistrates Courts Act.”*

**Rule 3(1) of the Administration of Estates of Persons of Unsound Mind (Procedure) Rules SI 155-1** requires applications for appointment of a manager to be supported by an affidavit of kindred and fortune in Form A of the First Schedule to the Rules;

From the proceedings of court made on the 12/10/2022 counsel Shafiq in his submissions on pg.2of the record of proceedings he stated:

*“This is an application exparte, seeking the Applicant be appointed Manager to the estate of a person of unsound mind the Respondent that is Kasadha Grace a patient. The Applicant swore an affidavit in support of the Application. Before I proceed to argue the application I pray for leave to file Supplementary affidavit of a child to the Respondent a Patient whom I believe is above 18 right now, she appears in court. The applicant seems to take the estate for himself. (Emphasis mine) And also supplementary affidavit for medical practitioner”.*

This shows the selfish interests of the 1st Respondent in bringing this Application for which he sought to benefit from his sick brothers hard earned property at the expense of his spouse and children.

The Applicant has proved that he is of age to take care of his father and that the 1st Respondent has not taken care of his father’s illness. By looking at the Exparte Application in **HCT-03-CV-15-2022**, and the current Affidavit in Reply to the instant Application, the 1st Respondent has never furnished any proof of Medical Reports or Medication that is administered to the person of unsoumd mind.

What is also mind boggling is the fact that management of the estate was granted to the 1st Respondent on false information, yet the Kasadha Grace has children of mature age and a spouse.

Further, the 2nd Respondent whom the 1st Respondent claims to be a biological daughter, no proof has been furnished to show and there is no affidavit I reply which this court will conclude that she does not contest to the averments in in paragraph 3 and 5(ii) that she is not a daughter to Kasadha Grace Person of unsound mind is true which imputes bad faith by the 1st Respondent.

Further, the 1st Respondent not being able to manage the estate of the person of unsound mind suffices as a sufficient reason for court to review the order. We pray that the. In paragraph 5 of the 1st Respondent’s affidavit in reply he states that;-

*“In specific reply to paragraph 10, my sister (patient’s sister) is the one utilizing the said agricultural land and not myself”.*

I find this very absurd, that the 1st Respondents and his relatives are using this unfortunate situation to sideline the direct beneficiaries of the Estate of the Late Kasadha Grace and this I deduce is the reason for the failure of the 1st Respondent to file an inventory and annual accounts as prescribed under **Section 5 of the Administration of Estates of Persons of Unsound Mind Act, 1951 (Supra)** which is at the detriment of the person of unsound mind.

Furthermore, the 1st Respondent in Exparte Application in **HCT-03-CV-15-2022**,

Therefore I am inclined to believe counsel for the Applicant that the 1st Respondent has failed in his statutory duty as bestowed on him by court to manage the estate of Kasadha Grace and that the estate is being put to waste as admitted by the 1st Respondent at the expense of the children and spouse of the person of unsound mind.

There were therefore errors especially when the court assumed that the 2nd Respondent was a child to the person of unsound mind, mistakes that this court has identified, apparent on the face of the record, in light of the foregoing.

This court finds numerous grounds to review the judgment or orders of this Court in **Civil Suit No. 15 of 2022.**

**Issue 2: Whether the Applicant should be appointed to manage the estate of the person of unsound mind?**

In the instant case there is evidence of Kasadha Grace being adjudged a person of unsound mind and the evidence of him having been detained under **sections 113 or 117 of the Magistrates Courts Act** to qualify his estate to be administered by a court appointed manager.

The 1st Respondent having failed in his statutory duty to manage the Estate as held above, In the given circumstances, I find this application competent for purposes of allowing the applicant to manage the estate of Kasadha Grace as a person of unsound mind within section 2 of the Administration of Estates of Persons of Unsound Mind and rule 3 of the Administration of Estates of Persons of Unsound Mind (Procedure) Rules.

I hereby find as follows:

1. The Applicant has showed sufficient grounds for review of the order appointing the 1st Respondent as Manager of the Estate of Kasadha Grace, and review of the Ruling and Orders of the Court in **Miscellaneous Application No.15 of 2022.** 2. The Application for Review is allowed. 3. The 1st Respondent furnishes court with an account showing the sums received and disbursed on account of the estate of Kasadha Grace and the balance remaining. 4. The Applicant is hereby appointed the Manager of the estate of Kasadha Grace. 5. Costs are awarded to the Applicant.

**I SO ORDER**

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**JUSTICE DR. WINIFRED N NABISINDE**

**JUDGE**

**12/03/2024**

This Ruling shall be delivered by the Magistrate Grade 1 attached to the chambers of the Resident Judge of the High Court Jinja who shall also explain the right to seek leave of appeal against this Ruling to the Court of Appeal of Uganda.

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**JUSTICE DR. WINIFRED N NABISINDE**

**JUDGE**

**12/03/2024**