[2025] UGHC 276

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**HCT-01-LD-MC-0030-2024**

**IN THE MATTER OF AN APPLICATION UNDER SECTION 63 OF THE MENTAL TREATMENT ACT 2018**

**AND**

**IN THE MATTER OF BYAMUKAMA SAM, A PERSON PRESUMED TO BE MENTALLY ILL**

**AND**

**IN THE MATTER OF AN APPLICATION BY NSIIMIRE JENINAH TO BE APPOINTED AS MANAGER OF THE ESTATE OF BYAMUKAMA SAM**

**NSIIMIRE JENINAH ::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

**VERSUS**

**BYAMUKAMA SAM**

**(PERSON OF UNSOUND MIND) :::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE: HON. JUSTICE VINCENT WAGONA**

**JUDGMENT**

**Introduction**:

1. The Applicant brought this Application under Section 63 of the Mental Health Act, Section 98 of the Civil Procedure Act, and Order 52 Rules 1, 2, and 3 of the Civil Procedure Rules seeking the following reliefs; - 2. **A declaration that the Respondent is suffering from a mental illness and has become incapable of managing his own affairs;** 3. **An Order authorizing the Applicant to manage the estate of the Respondent; and** 4. **Any further Orders that Court may deem fit.**

**Grounds of the Application**:

1. The grounds of the Application as contained in the Notice of Motion are as follows; - 2. That the Respondent is the husband to the Applicant and they have three children who are aged 10 years, 10 years and 2 years respectively from the eldest and the Applicant is an expectant mother. 3. That the Respondent has the following property currently; - 4. Land at Rwigo about 5 acres with both a coffee and banana plantation. 5. Land at Ibanda with a residential house about half an acre. 6. Land at Kinyangabi Kyatambasi Kasenda with a commercial house of 2 rooms. 7. Land at Kiburara, Rwenyawawa, Isongororo Sub County, Ibanda District about half an acre. 8. Bank accounts in Equity Bank A/C No. 404200010878 and in Bank of Africa A/C No. 05410950007 9. That the Respondent started experiencing nightmares every time he slept, he would wake up in horror, sweating, breathing heavily, heart racing and as a result he experienced struggle to sleep again. 10. That the Respondent has continuously got these attacks, as if they are recurring, he dreams about them, he has no energy, he is always in fear, sadness, suffers lack of sleep coupled with night mares, he is always in irritable mood and he likes isolation. 11. That the Respondent was taken to Entebbe Regional Referral Hospital and when examined, the medical report showed that the Respondent was suffering from Post-Traumatic Stressful Disorder (PTSD) and major depression by Dr. Moses Wakabi (Psychiatric Clinic Officer). 12. That after the diagnosis by the doctors, the Respondent has only been controlled and is living on Anticonvulsants, Anti Psychotics and Psychotherapy and is unable to manage his own affairs. 13. It is necessary that a manager is appointed to manage the estate of the Respondent and the Applicant is qualified to perform such duties. 14. That the Applicant will administer the estate according to the law and render an account of all property real or personal which shall come into her possession custody or control as its manager and give such security as court may require for the due administration of the estate. 15. That it is in the interest of justice and fairness, equity that this Application is granted.

**Evidence in Support of the Application**:

1. Whereas it is stated in the Notice of Motion that the Application is Supported by the sole Affidavit of the Applicant, I have perused the Application and noted that the Application is supported by two Affidavits containing the evidence in support of the Application. The Application is supported by the Affidavit of the Applicant and that of *Mwebaze Innocent*, a Senior Psychiatric Officer attached to Fort Portal Regional Referral Hospital. 2. In her Affidavit in Support of the Application, ***the Applicant***, in brief, stated as follows; - 3. That she has been cohabiting with the Respondent for 4 years now and that as a result, they together have a 2-year-old daughter named *Akankwasa Trinah*. That the Applicant is an expectant mother for the Respondent. 4. That the Respondent has other 2 children namely *Kakuru Samuel* and *Kato Simon*, both aged 10 years, who are also in the Applicant’s custody. 5. That while working at the US embassy in Iraq, angry protesters attacked the embassy which was followed by rocket attacks and continuous gun shots and as a result, the Respondent witnessed deaths of several people including his workmates. This caused him to start experiencing nightmares, waking up in horror, sweating, heavy breathing, heart racing and struggle to sleep. 6. That at Entebbe Regional Referral Hospital, the Respondent was found to have suffered a condition called Traumatic Stressful Disorder (PTSD) and major depression. The Applicant attached a medical report to that effect as Annexture A. 7. That the Respondent is; - 8. A holder of A/C No. 404200010878 in Equity Bank and A/C No. 05410950007 in Bank of Africa; 9. The owner of a Plot of land with a residential house mearing approximately ½ acres at Kyantambara village, Kasenda Sub County, Kabarole District; 10. The owner of a Plot of 17ft by 70ft with a 2 roomed commercial house at Kyantambara village, Kasenda Sub County, Kabarole District; and 11. The owner of land measuring approximately 5 acres at Rwigo village, Kyantambara village, Kasenda Sub County, Kabarole District developed with a banana and coffee plantations. 12. That the Respondent is now unable to take care of himself, his family and his affairs and that it is necessary that a manager is appointed to manage the estate of the Respondent. 13. On his part, ***Mwebaze Innocent***, stated in his Affidavit in Support of the Application, in brief, as follows; - 14. That he is a Senior Psychiatric Officer attached to Fort Portal Regional Referral Hospital who examined the Respondent on 24th May 2024 after the Respondent had reported persistent feelings of sadness, experiencing sudden loud noise and creeping objects which causes him panic and that the Respondent also reported experiencing night mares, low mood and staying in isolation. 15. That after examining the Respondent, he found him to have suffered Post Traumatic Stressful Disorder (PTSD) and major depression which condition developed as a result of traumatic war events experienced by the Respondent. He attached a medical report to that effect as Annexture A. 16. That the Respondent continues to suffer the condition diagnosed and is unable to manage his affairs.

**Representation and Hearing**:

1. The Applicant was represented by *M/s Rwabogo & Co. Advocates* who addressed me by way of written submissions which I have duly considered. The Application proceeded *exparte* since the Respondent is alleged to be a person of unsound mind.

**Submissions of Applicant’s Counsel**:

1. Learned Counsel for the Appellant referred me to the case of **Yambuka (Patient), Miscellaneous Cause No. 40 of 2018** where it was held that in an application of this nature, it is the duty of court to determine; - 2. Whether the patient is a person of unsound mind; and 3. Whether the Applicant is qualified to be appointed manager of the estate of the patient. 4. On whether the patient is a person of unsound mind, learned Counsel submitted that the Applicant provided a medical report from a psychiatrist clinical officer (*Moses Wakabi*) attached to Entebbe Regional Referral Hospital and another medical report by *Dr. Mwebaze Innocent* attached to Fort Portal regional referral hospital and that the evidence of both medical reports shows that the Respondent is suffering from a condition called traumatic stressful disorder (PTSD) and major depression and that he is unable to manage his own affairs. 5. On whether the Applicant is qualified to be appointed manager of the estate of the patient, learned Counsel referred me to **Sections 61** and **2** of the **Mental Health Act** and contended that she is the patient’s spouse since she has been cohabiting with him for 4 years as husband and wife and that they together have once child and an unborn child. Further that the Applicant has the sole care and upbringing of the Respondent’s other two children. That the Applicant is willing and qualified to manage the affairs of the Respondent. Counsel concluded by praying that this Application be allowed and the Applicant be appointed as the Respondent’s personal manager.

**Burden and Standard of Proof**:

1. **Sections 101-106** of the **Evidence Act, Cap 8** impose the burden of proof on the party who alleges the facts to exist and the standard of proof is on the balance of probabilities. There is a legal burden of proof and an evidential burden of proof. Legal burden of proof is a burden fixed by law and is a fixed burden of proof (**See Cross & Tapper on Evidence-8th Edition at page 121**). 2. In civil cases, the standard is on a balance of probabilities. On the other hand, evidential burden of proof is the burden of adducing evidence to prove a fact in one’s favour. While the evidential burden keeps shifting, the legal burden never shifts. (**See Phipson Law of Evidence, 14th Edition**). 3. **Section 103** of the **Evidence Act, Cap 8** provides thus: *The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person*.

**Issues**:

1. In my view, the following are the issues for determination by this Honourable Court; - 2. **Whether the Respondent is a person of unsound mind.** 3. **Whether the Applicant should be appointed a manager of the estate of Byamukama Sam, a person of unsound mind.** 4. **Remedies available to the parties.**

**CONSIDERATION OF THE APPLICATION**:

**Issue No. 1: Whether the Respondent is a person of unsound mind:**

1. **Section 2** of the **Mental Health Act, Cap 308** (herein referred to as the Act) defines “**mental capacity**” to mean the independent and informed cognitive ability to understand the nature and effects of one's decisions and actions and "**mental illness**" as a diagnosis of a mental health conditions in terms of accepted diagnostic criteria made by a mental health practitioner or medical practitioner authorized to make such diagnosis. Mental health conditions include but are not are limited to depression, bipolar, anxiety disorders, schizophrenia and addictive behavior due to alcohol/substance abuse among others. 2. Therefore, for one to be found to be of unsound mind, his or her mental capacity should be one that does not allow him or her to take independent decisions or to comprehend the consequences of his or her decision or the ordinary nature of things. The Act restricts the determination of one’s mental status to a psychiatrist or a senior mental health practitioner. The determination of one’s mental status is provided for under **Section 55** of the Act. **Section 55 (1) & (2)** of the Act provides that:

*“(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.”*

1. In the instant case, the Applicant led evidence of a medical report dated 30th December 2021 by ***Dr. Moses Wakabi***, a Psychiatrist Clinical Officer attached to Entebbe Regional Referral and another dated 24th May 2024 by ***Dr. Mwebaze Innocent***, a Senior Psychiatric Officer attached to Fort Portal Referral Hospital. I have critically examined both medical reports and established that they both state that the Respondent served for SOC LLC security company at US Embassy Baghdad in Iraq from 19th November 2018 to 29th September 2021. That before reporting for the said employment, the Respondent underwent medical examination at City Medical Hospital Kampala which certified him as medically fit to serve on a regular basis. That one day he started feeling stomach pain and he went to CHC clinic condor in Iraq where he was diagnosed with hypertension, systolic murmur (suspect aortic stenosis) and he also tested positive for covid-19 while working at the US embassy, but that he was treated and recovered on admission. That he later started reporting multiple incoming rocket attacks because he witnessed an attack at the US embassy by angry protesters which was followed by incoming rocket attacks. That as a result, he stated experiencing night mares every time he slept. That he would wake up in horror, sweating, breathing heavily, heart racing, and struggled to sleep. That presently, he has mental health problems/symptoms characterized by relieving past events of water, fearfulness, sadness, lack of sleep associated with night mares and irritable mood. Accordingly, that he suffered from post-traumatic stress disorder (PTSD) and major depression as a result of the nature of his job and due to traumatic events experienced in a war zone. 2. The said medical reports ably corroborated the averments of the Applicant with whom the Respondent cohabits. The Applicant averred in **Paragraphs 5, 6** and **7** of her Affidavit in Support of the Application that while working at the US embassy in Iraq, angry protesters attacked the embassy which was followed by rocket attacks and continuous gun shots and as a result, the Respondent witnessed deaths of several people including his workmates and that his caused him to start experiencing nightmares, waking up in horror, sweating, heavy breathing, heart racing and struggle to sleep. 3. I am satisfied based on the medical evidence and the Applicant’s personal experiences with the Respondent, that the Respondent (patient) is a person of unsound mind. I therefore find and declare that the Respondent is a person of unsound who is not capable of managing his affairs.

**ISSUE No. 2: Whether the Applicant should be appointed a manager of the estate of Byamukama Sam, a person of unsound mind.**

1. **Section 61** of the Act allows a person of unsound to appoint a personal representative to take decisions on his behalf. This provision in my view is only applicable where the illness may be seasonal where the patient gains moments of soberness or where he can comprehend the decisions he is taking. Otherwise a person with mental illness as defined under the Act may not be in position to take sound decisions. Where a patient is mentally ill and cannot take decisions, then court can appoint a personal representative to manager his or her affairs under **section 62** of the Act. **Section 62** provides thus:

*“(l) Where an order is made under section 63 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 of that Person.*

*(3) Where court determines that a person with mental illness is capable of managing himself or herself and that that person is not dangerous to himself or herself or to others and is not likely to act in a manner that is offensive to public decency, the court may make an order only for the management of the estate of that person and not for guardianship.*

*(4) Where court cannot identify a relative, suitable to manage the affairs of the person with mental illness, the court shall appoint as a personal representative, the Public Trustee, to manage the affairs of the person with mental illness.*

*(5) The personal representative or public trustee shall act in the best interest of the person with mental illness, to the extent determined by court to- (a) manage the estate of the person with mental illness; and (b) ensure proper care of the person with mental illness and the defendants of that Person.*

*(6) Where, upon review, a person with mental illness is found capable of managing his or her affairs, the court shall revoke the order made to the personal representative or Public Trustee.”*

1. The above provisions empower court to appoint a representative to manage the affairs of a person with mental illness who is not capable of managing his or her affairs. However in my view, before the court appoints a representative to manage the estate of a person of unsound mind, the court has to first satisfy itself, firstly that the person so appointed is a relative of the person of unsound mind, and, secondly that the property which the applicant seeks to manage actually belongs to the person of unsound mind. 2. On the first consideration of whether the Applicant is a relative of *Byamukama Sam*, the Applicant averred that she has been cohabiting with the Respondent for 4 years now and that as a result, they together have a 2-year-old daughter named *Akankwasa Trinah*. That the Applicant is pregnant and is expecting another child for the Respondent. She further stated that the Respondent has 2 other children namely *Kakuru Samuel* and *Kato Simon*; both aged 10 years, who are also in her custody and care. **Section 2** of the Act defines a relative to include 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. A spouse is defined by the **Black's Law Dictionary (8th ed. 2004)**, at page 4391 as, *“one's husband or wife by lawful marriage; a married person.”* Accordingly, since the Applicant is not the Respondent’s wife by marriage, she is neither his spouse, parent, grandparent, child, sibling, uncle nor aunt. In Uganda, cohabitation, or living together without being legally married, is not recognized as marriage under the Marriage Act. I therefore find that the Applicant is not a relative of *Byamukama Sam*. This requirement has not been met. 3. The second consideration is whether the property which the applicant seeks to manage belongs to the person of unsound mind. The Applicant in an Application of this nature has to be appointed to manage the estate or property belonging to the person of unsound mind. Therefore, the Applicant must on a balance of probabilities prove that the estate sought to be managed belongs to the patient. In this case, under **Paragraph 2** of the grounds of the Application as contained in the Notice of Motion, it was stated that Respondent owns 6 properties namely; - 4. Land at Rwigo about 5 acres with both a coffee and banana plantation, 5. Land at Ibanda with a residential house about half an acre, 6. Land at Kinyangabi Kyatambasi Kasenda with a commercial house of 2 rooms, 7. Land at Kiburara, Rwenyawawa, Isongororo Sub County, Ibanda District about half an acre, 8. Bank account in Equity Bank A/C No. 404200010878, 9. Back account in Bank of Africa A/C No. 05410950007. 10. However, in her Affidavit evidence, the Applicant excluded and made no mention of the half acre piece of land allegedly at Ibanda with a residential house. Additionally, the Applicant did not adduce any evidence to prove on a balance of probabilities that the Respondent owns any of the cited pieces of land. She also did not adduce any tangible evidence to prove on a balance of probabilities that the Respondent is the owner of the said Bank Accounts in Equity Bank and the Bank of Africa. Under **Paragraph 10** of her Affidavit in Support of the Application, the Applicant stated that the Respondent has savings with NSSF to the tune of **Ug. Shs. 9,700,000/=** but she never provided the court with any cogent evidence for the court to rely on. Applications of this nature are very sensitive in nature and whoever wants court to give judgment in their favour must adduce cogent evidence to prove their averments to the satisfaction of court. Courts have to be reluctant in ordering the management of property for which it is not sure belongs to the person of unsound mind, and to establish the ownership of such property, courts are can only be persuaded by cogent evidence and not mere uncorroborated averments.

**Issue No. 3: Remedies**

1. **In the result, the Applicant only succeeds to the extent that: The Respondent is declared as a person of unsound who is not capable of managing his affairs. The rest of the application fails. I make no Orders as to costs. It is so ordered**

**Dated at Fort Portal this 25th day of April 2025**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**