[2025] UGCommC 95

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) MISCELLANEOUS APPLICATION NO. 2198 OF 2024 (ARISING OUT OF CIVIL SUIT NO. 1190 OF 2024)**

## **NALWANGA ANNET:::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS PAULINE KABANYANA MBABAZI:::::::::::::::::::::::::::::: RESPONDENT**

#### 15 **Before: Hon. Lady Justice Dr. Ginamia Melody Ngwatu**

## **RULING**

The applicant filed this application under section 14 of the Judicature Act cap16, section 98 of the Civil Procedure Act cap 282, Order 32 Rules 3 and 16 of the Civil Procedure Rules S. I. 7l-1, 20 as amended. The application seeks orders that:

- 1) the applicant be appointed guardian *ad litem* of the defendant in respect to *Pauline Kabanyana Mbabazi vs Robert Mayengo Civil Suit No. 1190 of 2024*; - 2) the time within which to file an application for leave to appear and defend *Civil Suit No. 1190 of 2024* be extended; - 25 3) costs be in the cause.

The background to this application is that Pauline Kabanyana Mbabazi sued Robert Mayengo vide *Civil Suit No. 1190/2024* for breach of contract and recovery of Ugx 166,750,000 (Uganda Shillings one hundred and sixty-six million seven hundred and fifty thousand) as compensation for termination of a tenancy/lease agreement that was terminated in July 2024; although the exact

- 30 day is not indicated. The terms "tenancy" and "lease" are used interchangeably in the agreement. The plaintiff expected to be compensated for the developments she made on the said property hence the filing of *Civil Suit No. 1190/2024* upon the defendant's failure to pay compensate her. The defendant did not file an application for leave to appear and defend as required; hence this application for appointment of *guardian ad litem* since it is alleged that the defendant is mentally - 35 ill; and a grant of extension of time within which to file an application for leave to appear and defend.

The grounds of the application were stated in the affidavit of the Nalwanga Annet, the applicant, and are briefly that:

- 40 1) The applicant is a biological sister of the defendant who has had a long history of a mental disorder and has been on medication for mental treatment. - 2) The applicant has no interest in matters adverse to that of the defendant and believes that the defendant is incapable of protecting his interests for which court should make an

- 5 inquiry of the unsoundness of the mind or mental infirmity of the defendant upon which the applicant should be appointed as the defendant's guardian ad litem. - 3) The applicant has authorized lawyers to have her appointed as guardian ad litem for the defendant by court; which is in the best interests of the defendant and for justice to prevail.

#### 10

### **Representation at the hearing**

Mr. Bumpenje Christopher of M/s Bumpenje & Co. Advocates, represented the applicant; while the respondent was represented by Mr. Terence Kavuma of Kabayizi, Kavuma, Mugerwa & Ali Advocates. The parties proceeded by way of oral submissions during the hearing of the

15 application.

#### **Issue for determination**

The issues for determination are:

- 1) Whether this application is properly before court? - 20 2) Whether this application raises sufficient grounds for the appointment of Ms. Nalwanga Annet as *guardian ad litem* to Mr. Muwonge?

### **Submissions of Counsel for the Applicant**

Counsel for the applicant submitted that the application is premised on the fact that the defendant 25 in the main suit is a person of unsound mind who has a spell of mental disorder which the medical doctors have diagnosed as bipolar affective disorder. That as a result, the defendant in the main suit is incapable of defending his own interests. Counsel for the applicant relied on a medical report marked as annexure "A" in the affidavit in support and annexure "B" in the affidavit of rejoinder. Counsel for the applicant prayed that court conducts an inquiry about the 30 soundness of mind of the defendant and appoints a *guardian ad litem* to enable the applicant file

a defence to the main suit to defend the interests of the defendant.

#### **Submissions of Counsel for the respondent**

Counsel for the respondent opposed the application. He argued that under Section 59 of the 35 Mental Health Act, a person with mental illness has the right to legal capacity on equal basis with others in all aspects of life; and this legal capacity includes the capacity to defend himself in his proceedings. He stated that Mr. Mayengo can, therefore, defend himself since the law gives him capacity. Counsel for the respondent further submitted that under Section 59 (3) of the Mental Health Act, a person is incapable of managing his affairs if there are orders to that effect

40 from the board. He argued that there is no determination on court record that Robert Mayengo is incapable of determining his affairs. Counsel also submitted that without an order of the Board or

5 court that Mayengo is incapable of managing his affairs, Section 59 (1) of the Mental Health Act is operative, which gives him the right to manage his affairs.

Counsel for the respondent relied on the case of *MA 26/2017 Re Khalid Latiff,* to argue that for a person to be considered of unsound mind, there has to be some quasi-judicial pronouncement on 10 his unsoundness of mind. Counsel for the respondent contended that there is no evidence before

- court that Robert Mayengo is of unsound mind. That the purported evidence attached to the application is hearsay evidence and that the alleged doctors who purportedly made the reports had not sworn affidavits stating that they examined Mayengo and came up with the said reports. Counsel for the respondent prayed that the application be dismissed and that judgment be entered - 15 against Robert Mayengo under Order 36.

## **RESOLUTION**

## **Issue 1: Whether the application is properly before court?**

20 This is an application for appointment of Nalwanga Annet as guardian *ad litem* to Robert Mayengo, the defendant in *Civil Suit No. 1190/2024 Pauline Kabanyana Mbabazi vs Robert Mayengo* who is said to be mentally ill. A *guardian ad litem* is a neutral person appointed by the court to act on behalf of a person who is incapacitated in a legal proceeding. The appointment of a *guardian ad litem* applies in instances where a party is a minor or, like alleged in this instance, 25 mentally ill. *Guardian ad litem* in this instance, would be appointed to specifically cater for the best interests of a person who is incapacitated. Much as the applicant refers to the defendant as being "mentally unsound", it should be noted that the legally accepted term/definition under section 2 of the Mental Health Act cap 308 is "mentally ill".

Applications such as this begins with the filing of a notice of motion supported by an affidavit, 30 that outlines the grounds upon which an applicant bases to be appointed *guardian ad litem*. This is in line with Order 32 rules 3 and 15 of the Civil Procedure Rules, SI 71-1.

Applications for appointment of *guardian ad litem* are provided for under the Mental Health Act cap 308. The long title to the Act provides that it is an act to provide for, among other 35 aspects, the right to appoint personal representatives and orders for custody, management and guardianship. Pursuant to this, section 54(1) of the Mental Health Act states that:

> *"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"*

The application for appointment of a *guardian ad litem* is a proceeding before court within the meaning of section 54 (1) of the Mental Health Act. This, therefore, means that before this 5 court can entertain an application for the appointment of a *guardian ad litem* for Mr. Robert Mayengo, the subject of this application, he ought to have previously been adjudged as one who is mentally incapacitated or ill, first.

An application to have a person adjudged mentally incapacitated or ill ordinarily falls within 10 the purview of the Family Division of the High Court. However, the Commercial Division of the High Court, by virtue of the inherent powers it holds under Article 139(1) of the 1995 Constitution of the Republic of Uganda as amended, Sections 14 and 33 of the Judicature Act cap 16, and Section 98 of the Civil Procedure Act cap 282, is clothed with jurisdiction to make orders necessary for the ends of justice, including considering and determining an application 15 pertaining to the appointment a *guardian ad litem* in a matter before it.

On the basis of the foregoing provisions, this court will go ahead to entertain the application.

## **Issue 2: Whether this application raises sufficient grounds for the appointment of Ms. Nalwanga Annet as** *guardian ad litem* **to Robert Muwonge?**

20 The issue that now arises in the circumstances is whether Ms. Nalwanga Annet is a fit and proper person to be appointed as *guardian ad litem*.

Section 59(1) and (2) of the Mental Health Act cap 308 recognise that a person with mental illness has the right to enjoy legal capacity on equal basis with others in all aspects of life; and

- 25 the right to manage his or her affairs. Section 59(3) of the Mental Health Act further acknowledges that 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. - 30 It is the duty of Court to establish the suitability of the proposed *guardian ad litem*. In this, various factors including their character, financial standing and willingness to act are assessed by court. However, before this consideration, court ought to have been satisfied that the person in issue, Robert Mayengo, is indeed mentally ill to warrant the appointment of a *guardian ad litem* to manage his affairs.

A person with mental illness is one who is adjudged to be so under the Mental Health Act. Mental illness is defined under section 2 of the Act to mean "a diagnosis of a mental health condition in terms of accepted diagnostic criteria made by a mental health practitioner or medical practitioner authorized to make such diagnosis. Under the same provision, mental health 40 conditions include: depression, anxiety disorders, schizophrenia and bipolar, the condition in issue, in the instant case.


5 The mental illness in issue ought to have the effect of rendering the subject incapable of managing himself or herself or their affairs. Justice Stephen Mubiru in the case *of Aseru Joyce Ajju vs Anjoyo Agnes HCMA 001 of 2016* stated that*:*

*"A person is deemed to be of unsound mind for purposes of these proceedings if he or she is afflicted by a total or partial defect of reason or perturbation thereof, to* 10 *such degree that he or she is incapable of managing himself or herself or his or her affairs."*

Section 54 of the Mental Health Act provides for the procedure for determination of the mental health and it provides thus:

#### *"54 Determination of mental health status*

- 15 *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) shall only be carried out by a psychiatrist or where a psychiatrist is not available, by a senior mental health practitioner.* - 20 *3) The determination under this section shall be based on only the 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.*

*5) A person, who carries out a determination of the mental health status of a* 25 *person contrary to this section, commits an offence and is liable, on conviction, to a fine not exceeding one hundred twenty currency points or to imprisonment for a term not exceeding six months, or both."*

In *Aseru Joyce Ajju vs Anjoyo Agnes*, Justice Mubiru opined the need for the conduct of an inquiry into the mental state of the patient before making orders of this nature; and considered 30 the Indian case of *Moohammad Yaqub vs Nazir Ahmad and others, 1920 58 Ind Cas 617* which explained this need as follows:

*"When a person is alleged to be insane …. there ought to be a careful and thorough preliminary enquiry and the Judge ought to satisfy himself that there is a real ground for an inquisition. It is impossible to lay down any hard and fast rule, but in the first* 35 *place it is essential that the person making the application should support it ordinarily by affidavit or by tendering himself for examination to the Judge on oath in support of the allegations in his application. The learned Judge would naturally want to know what relationship existed, what previous association had existed between the applicant and the alleged insane person, how long the illness was* 40 *supposed to have lasted, why no previous steps had been taken and what were the present symptoms and actual causes which had induced the applicant to make the application as and when he did. …….an application of this kind ought to be supported by some medical evidence in the nature of a certificate of some doctor, lady or otherwise, who has had a reasonable opportunity of seeing the condition of*

5 *the alleged invalid. If no medical evidence is forthcoming of more recent date than eight years before the application, so much the worse for the applicant…."*

In this application, there is no doubt that Ms. Nalwanga, the applicant, is in support of the application to be appointed *guardian ad litem* as she swore an affidavit in support of the application. In the said application and the affidavit in support, Ms. Nalwanga clearly states that 10 she is a biological sister to Robert Mayengo, the defendant in *Civil Suit No. 1190/2024;* and expresses her willingness to be appointed *guardian ad litem* to Robert Mayengo and to protect his interests.

- The evidence presented by Ms. Nalwanga to support this application is a medical report marked "A", annexed to her affidavit in support of the said application. The said report is dated 28th 15 August 2024 and was issued by Dr. Robert Agenda of Bugolobi Medical Centre, which predates the notice of motion for this application. The notice of motion was signed by the applicant on 16th October 2024; almost two months after the said medical assessment was conducted. - 20 Further, the said medical report is addressed to the High Court and indicates that Mr. Mayengo Robert was diagnosed with Bipolar Affective Disorder which is described as an episodic mental illness which can stabilize with time on medication. It is deduced from this medical report that it is only where there is an episode of Bipolar Affective Disorder that proper judgment or decision making of the patient is affected. This means that the defendant in *Civil Suit No. 1190/2024*, Mr. - 25 Robert Mayengo, can manage his affairs normally and without any incapacitation, when not experiencing an episode of Bipolar Affective Disorder.

The medial report also indicated that Mr. Mayengo was not mentally fit to appear before court at that time and it recommended that he be given three months to be treated and to get in a better mental state. The said three months lapsed on 28th 30 November 2024 and there is no recent medical report presented by the applicant to show that there was a decline in the mental health of Mr. Mayengo. Further, the medical report relied on by the applicant does not, at any point, state that Mr. Robert Mayengo is unable or incapable of managing his affairs.

- Having noted that the said medical report was dated 28th 35 August 2024 and addressed to the High Court, it should be observed that the plaint in *Civil Suit No. 1190/2024* from which this application arises, was signed off by the counsel for the respondent herein on 2nd October 2024. One would conclude, therefore, that the said medical report relied on in this application was intended for another matter before the High Court and it was definitely not intended for purposes - 40 of having Mr. Mayengo adjudged mentally ill; but rather to seek an adjournment.

The applicant also attached an authorization to counsel Bumpenje, to apply to court to appoint her as the *guardian ad litem* of the defendant in *H. C. C. S No. 1190/2024* at Commercial Division.

5 In the said authorization, Ms. Nalwanga instructs counsel to have her appointed as the *guardian ad litem* of the defendant who was diagnosed with mental infirmity years back. However, no proof of the diagnosis was attached.

In the premises, this court is not satisfied that Ms. Nalwanga Annet should be appointed 10 *guardian ad litem* in the absence of evidence showing that Mr. Mayengo is unable or incapable of managing his affairs due to mental illness.

Since the issue as to whether Ms. Nalwanga should be appointed *guardian ad litem* is resolved in the negative, it follows, therefore, that the issue as to whether the applicant should be granted 15 extension of time within which to file an application for leave to appear and defend *Civil Suit No. 1190 of 2024*, is also answered in the negative.

This application is dismissed with costs to the respondent.

20 I so order.

*Dr. Ginamia Melody Ngwatu Ag. Judge 19* 25 *th May 2025*

*Ruling delivered via ECCMIS*