Lakot v Odong (Miscellaneous Cause 5 of 2024) [2024] UGHC 740 (31 July 2024)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

### **MISCELLANEOUS CAUSE No. 05 OF 2024**

## **IN THE MATTER OF THE MENTAL HEALTH ACT, CAP. 308**

### 5 **AND**

# **IN THE MATTER OF AN APPLICATION BY MS. LAKOT RHODA (APPLICANT/RESPONDENT'S WIFE) TO BE APPOINTED PERSONAL REPRESENTATIVE TO MANAGE THE ESTATE AND AFFAIRS OF MR. ODONG PAINENTO (RESPONDENT/HUSBAND)**

10 **LAKOT RHODA APPLICANT**

#### **Versus**

**ODONG PAINENTO RESPONDENT**

# **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

# **RULING.**

# 15 **Introduction and Background.**

- [1]. This Application by Motion, *Ex Parte*, filed on the 3rd April, 2024 was instituted pursuant to the provisions of **Sections 60, 62 and 63 of the Mental Health Act No. 15 of 2019; Section 98 of the Civil Procedure Act, Cap. 71; and, Order 52 Rules 1, 2 and 3 of the Civil Procedure Act, SI 71-1**. - 20 [2]. These citations have since changed under the **Law Revision Act, Cap. 3** and **SI No. 049/2024: The Law Revision (Commencement of the 7th Revised Edition) (Principal Laws) Instrument, 2024** – and are now cited as **Ss. 59, 61 & 62: Mental Health Act, Cap. 308** and **S. 98: Civil Procedure Act**, **Cap. 282**.

- [3]. The Applicant seeks Orders from the Court; firstly, to the effect and that the Respondent, Mr. Odong Painento, is mentally ill – which the Court understands to mean that he is mentally incompetent and therefore incapable of administering his estate and managing his own affairs by virtue of mental illness; and, secondly, 5 that she is appointed his personal representative so as to manage his estate and his affairs. - [4]. The Applicant, Ms. Lakot Rhoda, presented herself as the wife of the Respondent, Mr. Odong Painento, whom she alleges is mentally ill and therefore seeks orders of the Court to make such declaration and orders enabling her as 10 his personal representative to manage his estate and affairs. This would presumably include but not be limited to managing his affairs including those relating to his health and treatment, care and well-being, property, obligations and responsibilities and other personal matters arising from time to time. - [5]. The Respondent is eighty-one (81) years and a retired civil servant stated to be 15 bedridden and afflicted by mental illness suffering dementia and other ailments. - [6]. The Application is supported by the Affidavit of Ms. Lakot Rhoda in which she states that she is the Respondent's wife and that in 2017 he developed mental illness exhibited by forgetting people and *"things"* – which the Court understands to mean objects - around him which condition has deteriorated. Presently, the 20 Respondent can neither sit nor walk unassisted and is not conscious of his surroundings. - [7]. As a result, he received medical treatment and on the 29th February, 2024 he was diagnosed at Kitgum General Hospital with age related dementia. The Applicant avers that the Respondent cannot manage his estate and affairs on his own and 25 requires a personal representative to manage his estate and his affairs. Special care is required in providing him a suitable diet which when considered together with accumulated medical expenses renders his upkeep expensive.

- [8]. The Applicant is a housewife without the capacity to independently provide the necessaries of life for the Respondent to give him dignified care and treatment. - [9]. The Applicant states that the Respondent has some funds in a bank account which he cannot access owing to his mental state and condition and which she 5 could use to provide him with palliative care. It is on this basis that she seeks appointment as the Respondent's personal representative in his best interests. - [10]. In the evidence attached to the supporting Affidavit is a Medical Report of Kitgum General Hospital – Private Wing Services of February, 2024 and a receipt of Kitgum General Hospital – Private Wing Services. - 10

#### **Representation and Proceedings before the Court.**

- [11]. At the proceedings commencing on the 28th May, 2024 and subsequently, the Applicant represented herself *Pro Se* and present was Ms. Adong Milly introduced as the adult daughter of both the Applicant and the Respondent. - 15 [12]. The Court observed that the Medical Report obtained following examination of the Respondent at Kitgum General Hospital was inappropriately presented by the Applicant herself, being a lay person in the area of medical expertise, as opposed to a qualified Medical Professional - who could be examined by the Court or for that matter subjected to cross-examination - and as a result the 20 Court was prompted to and made due enquiry into the evidence in regard to the mental state of the Respondent based on the Medical Report as well as the authenticity of the Medical Report.

[13]. In that regard, the Court invoked its inherent powers under **Section 98 of the Civil Procedure Act, Cap. 282** and summoned Dr. Ayella Caesar, a Medical 25 Officer, whom authored the Medical Report at Kitgum General Hospital and subsequently the Medical Superintendent of Kitgum General Hospital to appear before the Court on the 19th June, 2024 and on the 20th June, 2024 respectively.

#### **Considerations and Determination of the Court.**

- [14]. The Application is instituted under the provisions of the **Mental Health Act, Cap. 308** and is intended for the Applicant to assume responsibility for the Respondent's estate and his affairs as his *"personal representative"*. In the 5 circumstances, the responsibilities would extend to *"guardianship"* concerning his health and treatment together with his care, safety and well-being as well as other similar matters arising and affecting him with the overriding consideration being the best interests and welfare of the Respondent. - [15]. It is noteworthy that the Applicant who as the Respondent's wife (spouse) is 10 considered both a *"dependant"* and *"relative"* under the interpretation provisions of the **Mental Health Act, Cap. 308**. This is because the Act places significant responsibility on family for the treatment, care, safety and well-being of persons afflicted by mental illness. - [16]. The core initial consideration of the Court is to establish whether the 15 Respondent has in fact been professionally diagnosed with a mental health condition by experts in the field and if he is in fact afflicted by mental illness warranting an exercise of the Court's discretion to first adjudge him incompetent and incapable of managing his estate and his own affairs and on so determining subsequently upon being moved appoint a suitable personal representative to 20 manage his estate and affairs as well act as his *"guardian"* in his overall best interests. This constitutes the duty of the Court. - [17]. The personal representative in essence serves as a Trustee and great reliance is placed on the diagnosis of mental illness to trigger such an appointment. This enables the Court make an informed pronouncement on the status of the 25 Respondent in as far as his competence, capacity and ability to manage his estate and his own affairs.

- [18]. The Court accordingly considered the testimony of Dr. Ayella Caesar who examined the Respondent. Dr. Ayella Caesar testified before the Court on the 19th June, 2024 during which he submitted to the Court his academic qualifications including a Bachelor of Medicine and Bachelor of Surgery Degree 5 (MBChB), registration by the Medical and Dental Practitioners Council in October, 2022 and explained his experience in the practice of Medicine. - [19]. Dr. Ayella testified that he personally examined the Respondent and confirmed his authorship of the Medical Report in respect of which he explained to the Court the medical and mental condition of the Respondent. It was his 10 professional determination that the Respondent whom he has been attending to since October, 2023 suffers from age associated dementia which is a psychiatric condition he diagnosed in February, 2024 and affects him in as far as - being unable to recall his caretaker or his past, speaking inappropriate words (language) and random words, wandering around whilst crawling, aggression, 15 disorientation, impaired judgment with a childlike intellectual state as well as being unaware that he is in fact unwell – hence diagnosis of a mental health condition or for that matter mental illness as defined by the Act. - [20]. It was his testimony that the Respondent is completely dependent and looked after by the Applicant. Other medical conditions include hypertension and 20 hypertensive heart disease, lumber prolapse rendering him unable to walk, urinary and fecal incontinence as well as bed sores to his back and hips. He is treated as an outpatient being ordinarily resident at his home and attending hospital from time to time. - [21]. Upon review of his academic qualifications, experience and seniority stated as 25 two (2) years, the Court had concerns regarding the capacity of Dr. Ayella Caesar to duly perform psychiatric examinations.

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- [22]. As a consequence, the Court further invoked its inherent powers and subsequently summoned the Medical Superintendent, Kitgum General Hospital for clarification. It will be recalled that the Applicant is a *Pro Se* litigant. - [23]. The District Health Officer, Kitgum, Dr. Okello Henry Otto, appeared on the 20th 5 June, 2024 apparently delegated by the Medical Superintendent, Kitgum General Hospital. It was his testimony, after establishing his own Medical academic qualifications and experience, that Dr. Ayella Caesar was duly qualified and competent to diagnose psychiatric conditions having studied psychiatric medicine as a course component in his undergraduate studies and also having 10 received such training in his Medical Internship. - [24]. The Court observes and accepts that much as the Medical evidence was not by particularly specialized Medical practitioners in Psychiatry, it was nonetheless competent as expert testimony and admissible. In considering previous related Legislation and Instruments (Legislative History), it is noted that similarly 15 presented testimony has been generally accepted by the Courts. - [25]. In **High Court (Gulu) Criminal Session Case No. 125/2015: Uganda Vs. Akena Nixon Gasfero**, Hon. Justice Margaret Mutonyi, in considering the nature of expert evidence in regard to specialized Medical professionals observed that where an expert opinion of a specialist Medical Officer (in that case one 20 specialized in Pathology) could not be obtained for one reason or the other including a shortage of such specialized and experienced Medical professionals, the opinion of a Medical Officer would generally suffice owing to their having studied the area in question in order to qualify as a Doctor whether as a Medical Officer or Medical Practitioner as defined by the **Public Health Act** and, or the - 25 **Uganda Medical and Dental Practitioners Act.** - [26]. Much as the case cited herein-above was determined in April, 2016 under earlier Legislation then in force, the Court accepts this pragmatic position. For the avoidance of doubt, this does not extend to lesser qualified personnel. - [27]. The scope of enquiry and assessment by the Court in this Application is specified 5 under **Section 59(3) and (6) of the Mental Health Act, Cap. 308** – which is to evaluate and determine whether the Respondent in view of his affliction by mental illness can and in fact has the ability to manage his own affairs – the test is the capacity, competence and ability of a person afflicted by mental illness to manage one's own affairs. The reference to *"estate"* is by necessary implication. - 10 [28]. Accordingly, in view of the testimony and evidence of the Medical Professionals cited and upon considering their respective academic qualifications and experience with emphasis on the factual testimony that Mental Health was one of the areas of study of the principal witness (Dr. Ayella Caesar) whom examined, diagnosed and authored the Medical Report as well as the clarification and 15 corroboration of the District Health Officer - Kitgum, the Court accepts the stipulated Medical evidence and diagnosis and finds based on the Medical Report from Kitgum General Hospital of February, 2024 that the Respondent, Mr. Odong Painento, is in fact mentally ill. - [29]. As a final measure to enable the Court reach a firm conclusion, it was directed that Mr. Odong Painento is produced before the Court on the 31st 20 July, 2024 to enable the Court visualize and observe for itself his condition and establish whether there is corroboration with the testimony already given. - [30]. The Court duly observed the Respondent who was brought by Ambulance to the Court premises and after directing at the Respondent questions about his 25 general well-being, state and condition, it was clear that he was disoriented and incoherent, physically incapacitated, elderly and very ill indeed. This was consistent with the medical evidence and diagnosis presented to the Court.

- [31]. Upon due consideration of the testimony and evidence presented, it is the finding of the Court that the Respondent (Mr. Odong Painento) is incapacitated by mental illness, is entirely dependent and is therefore incompetent and incapable of managing his estate and his own affairs. - 5 [32]. Upon making the above finding, the Court is empowered to appoint a *"suitable relative"* as a personal representative of the person with mental illness under **Section 61 of the Mental Health Act, Cap. 308** and whose responsibilities are detailed in **Section 62 of the Public Health Act, Cap. 308**. The rationale for deliberate and careful scrutiny of both the condition of the person of with mental 10 illness and the credentials of the intended personal representative were well and extensively elaborated and articulated by the Hon. Justice Stephen Mubiru based on pertinent authorities - abridged as to protect the afflicted from neglect, abuse and exploitation and furtherance of their best interests - in **Miscellaneous Civil**

## **Application No. 1/2016: Aseru Joyce Ajju Vs. Anjoyo Agnes (A Patient)**.

- 15 [33]. The Court has carefully and extensively reviewed the credentials of the Applicant vis-à-vis the Respondent. The Court required the Applicant to provide documentary evidence as regards her assertion that she is the wife (spouse) of the Respondent. She adduced in evidence her Marriage Certificate establishing her marriage to the Respondent at St. Phillip Church of Uganda at Kitgum Matidi celebrated and solemnized on the 22 20 nd May, 2016 by the Rt. Rev. John Charles Oduk Kami and duly witnessed. This was submitted together with both the Applicant's and the Respondent's National Identity Cards which were in order. - [34]. In the numerous enquiries made by the Court on the 28th May, 2024, the 19th June, 2024 and on the 20th June, 2024 the Applicant was consistent and 25 responsive. The foregoing was supportive of her *bonafides*. The Court did not discern any potential for exploitation or abuse of trust should the Applicant be appointed the Respondent's personal representative.

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- [35]. This was coupled with the Applicant's familiarity and ease with the Medical Personnel from Kitgum General Hospital treating the Respondent which the Court considers as beneficial to the Respondent. - [36]. In view of the foregoing, the Court considers that it has already been established 5 that the Applicant as the wife of the Respondent is already taking care of his treatment and care in as far as hospital attendance and liaising with Medical Personnel which the Court observed she was familiar and comfortable with as well as managing and making provision for his personal needs and sustenance. It is clear that the Respondent is entirely dependent and reliant on the Applicant 10 for his every need, being incapable of looking after himself. The Court is satisfied that the Applicant is best suited and has the Respondent's best interests at heart. - [37]. The Court thereby under the provisions of **Section 61(1) of the Mental Health Act, Cap. 308** - read together with **Ss. 61 (2) & 61(5)** - appoints the Applicant, Ms. Lakot Rhoda wife of the Applicant, as his personal representative to manage 15 his estate and his affairs and provide for his welfare, treatment and care in his best interests as well as provide necessaries for persons ordinarily dependant on him with the resources available from the estate including the stated funds in his Bank Account(s) which may be utilized for the purpose. - [38]. In conclusion, based on the obligations and responsibilities imposed on personal 20 representatives under **Section 59, 61 and 62 of the Mental Health Act, Cap. 308**, the Applicant is – required to submit inventory and accounts including debts and credits due and owing to the Respondent within six (6) months of the date of issuance of this Order; return to the Court for review of the Order at the end of two (2) months from the date of the Order; and, is prohibited from selling, 25 transferring, mortgaging, gifting, surrendering, exchanging or otherwise charging, conveying, alienating and disposing of the Respondent's moveable or immovable property without the specific authorization of the Court.

- [39]. The prohibitions and restrictions imposed on the personal representative herein appointed by this Court, it must be made clear, include and extend to other prohibitions and restrictions provided for and stipulated in the **Mental Health Act, Cap. 308**. - 5 [40]. In the event that this Order is not renewed within two (2) months from the date of issuance today 31st July, 2024 which will fall on the 1st October, 2024 (or for that matter an appropriate Application under the Act is not presented before the Court) whereupon the Court shall issue further directions, the Order shall forthwith immediately lapse. - 10 [41]. Having carefully given due consideration to the Application, supporting Affidavit and Annextures thereto as well as the testimony of Dr. Ayella Caesar and Dr. Okello Henry Otto and the entirety of the circumstances of the case, the Application is hereby granted with the Respondent, Mr. Odong Painento, hereby adjudged incompetent and incapable of managing his estates and his own affairs 15 by virtue of mental illness and the Applicant, his wife Ms. Lakot Rhoda, is hereby appointed the Personal Representative of Mr. Odong Painento to manage his - [42]. The Applicant shall meet her own costs of the Application.

estate and his affairs.

## **Orders of the Court.**

- [43]. Accordingly, the Court makes the following Orders: - - 1. The Application succeeds and the Orders sought are hereby granted in as far as the Respondent, Mr. Odong Painento, is hereby adjudged 5 incompetent and incapable of managing his estate and his own affairs by virtue of mental illness. - 2. The Applicant, Ms. Lakot Rhoda wife of the Respondent, is hereby appointed the Respondent's personal representative to manage his estate, accounts and affairs. - 10 3. The duties of the Ms. Lakot Rhoda as the personal representative of Mr. Odong Painento shall include - managing his estate and accounts; discharging his obligations and responsibilities; providing for his treatment, personal care and well-being; providing the necessaries of persons ordinarily dependent on the Respondent; and, other related 15 matters that may arise from time to time. - 4. The Applicant as the personal representative of the Respondent shall not sell, transfer, mortgage, gift, surrender, exchange or otherwise charge, convey, alienate and dispose of the Respondent's moveable or immovable property without the specific authorization of the Court. - 20 5. The Applicant will submit inventory and accounts of the Respondent's estate and properties including debts and credits due and owing within six (6) months, on or before Friday, 31stJanuary, 2025. - 6. This order will be reviewed after two (2) months and the Applicant will appear before the Court on Tuesday, 1st October, 2024 for further 25 directions, otherwise it shall forthwith immediately lapse. - 7. The Applicant shall meet her own costs of the Application.

It is so Ordered.

**Signed and Dated on the 31st day of July, 2024 at Kitgum High Court Circuit.**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Ruling has been delivered in Open Court on **Wednesday, the**

**31st day of July, 2024 at 10:00am** and the parties present are recorded hereunder -

- 1. The Applicant, Ms. Lakot Rhoda, *Pro Se* the Respondent's wife. - 10 2. Ms. Adong Milly, daughter of the Parties. - 3. The Respondent, Ambulance. - 4. Court Clerk and Interpreter: Mr. Atube Michael.

**Philip W. Mwaka**

15 **Acting Judge of the High Court.**

**Kitgum High Court Circuit.**

**31st day of July, 2024.**