Muwanga & 3 Others v Mohan Musisi Kiwanuka (Miscellaneous Application 937 of 2023) [2025] UGHCCD 13 (31 January 2025)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (clvlL DlvlsloN)

# MISCELLANEOUS APPLICATION NO,937 OF 2023 (ARTSTNG OUT OF MISCELLANEOUS CAUSE N0.82 OF 2023)

# IN THE MATTER OF AN APPLICATION SEEKING A DETERMINATION OF THE MENTAL HEALTH STATUS OF MUSISIMOHAN KIWANUKA

JALIA MUWANGA 1

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- NANTEGE YUDAYA NSEREKO 2 - BERTINSEREKO KAWOOYA 3 - SARAH NSEREKO APPLICANTS 4

#### VERSUS

1. MOHANMUSISI KIWANUKA RESPONDENT

## BEFORE: HON. JUSTICE. DR. FLAVIAN ZEIJA

### RULING

This application was brought by way of Notice of Motion under section 33 of the Judicature Act Cap 13, sections 82 and 98 of the civil Procedure Act Cap 71, Order 46 rules 1 and <sup>8</sup> Civil Procedure Rules, S.l 71-1 lor orders that;

- 1. The ruling of this Honourable Court dlsmrssrng Miscellaneous Cause No. 82 of <sup>2023</sup> which was delivered on the 25h August 2023 be reviewed, sel aslde; - 2. This Honourable Court conducts a comprehensive inquiry into the propriety of the Respondenl's Counsel I nstructions; - 3. An order setting down Miscellaneous Cause No. 82 of 2023 for hearing; - 4. Any other retief which this Honourable Courl may deem fair and iust.

The application is suppo(ed by the affidavits of the 2nd and 3rd Applicants, in which the grounds of the application were set out and briefly that;

1. The applicanls are aggrieved by the ruling of this Honourable courl dlsmlsslng Miscellaneous Cause No. 82 of 2023.


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- 2. There is an error apparent on the face of the courl's record in Miscellaneous cause No. 82 of 2023. - 3. rhls Honourable courl omitted to con sider the admrssion by the Respondenf's counse/ and the evidence on the Respondenf 's affidavits to the effect that the Respondent had an existing mental disability. - 4. The Honourable courl's omission to deal with the error apparent on the face of its record has occasioned a miscarriage of justice to the Applicants. - 5. There is sufficient cause to warrant review and setting aside the ruling of this court dlsmrsslng Miscellaneous Cause No. 82 of 2023. - 6. /tislnlhernleresfs of justice, farrness, reasonableness andequityforthisapplication to be allowed.

on the other hand, counsel Edwin Busuulwa c/o M/s Buwule & Mayiga Advocates deponed an affidavit ln opposition to the application. Briefly that;

- 1. The application is misconceived, an abuse of couft process, has no merit and should be dismlssed with cost. - 2. That there is no error or mistake apparent on the Courl record in Miscellaneous Cause No. 82 of 2023 to warrant this application. - 3. The propriety of the instructions of counsel for the Respondent was raised before courl on the Sth July,2023 by counsel for the Applicants and court took a decision overruling him, allowing counsel for the Respondent to proceed with the matter by filing a notice of instructions, and file affidavit in reply and later fl/e submlsslo ns for the Respondent. This decision of court was not appealed. - 4. That the law firm of Buwule & Mayiga Advooates subsequenily filed a notice of instructions indicating that they had been instructed to represent the Respondent in Miscellaneous Cause No. 82 of 2023. - 5. That the law firm of Buwule & Mayiga Advooates has represented the Respondent in several matters since its inception in 1994. That owing to the long standing relationship that their law firm has with the Respondent, it was circumstantially, duty bound to represent him in Misc. cause No. 82 of 2023 especially in the absence of any directions to the contrary. - 6. That in 2ol9 the Respondent also appointed one of the paftners in their law firm Mr. Francis Buwule to be the company secretary to many of his companies and he has been so ever since.

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- 7. Thatwhenthe Respondent wasdeclaredincapableofhandling hisown affaisbyhis doctors our law firm was retained by the lruslees appointed by the Respondent under a durable Power of Attorney to continue to represent hls lnferesls, - 8. That dlsmlssa/ of Mrs cellaneous Cause No. 82 of 2023 on grounds of res iudicata was a decision of courl taken after examination of the relevant materials on record and if the Applicants were dlssallsfle d with that decisiott, then the remedy lay in an appeal as opposed to a review.

The 2no Applicant deponed an affidavit in rejoinder in which she generally disputed the averments in the affidavit in reply and briefly that;

- 1. That the Coul did not make a ruling on the propriety of Respondent's counse/s rnslruclions but simply directed counselto file affidavits and a notice of instructions. - 2. Cou4's diection to the Respondent's counsel to file a notice of instructions was given on June 05, 2023, before the Respondenls'counsel own admission that the respondent has mental disabilr\$ made on July 05, 2023. - 3. The Respondenl's counset has up to date not provided that proof that they have lnstrucllons from the Respondent lo represent him and that previous tnstrucflons do nof mean they have instructions from the Respondent to represent the Respondent in the rnslant case. - 4. The Respondenf's counse/ admit that the Respondent is incapable of handling his own affairs and that they were not appointed by the Respondent but by his alleged trustees, which evidence tlse/f was never examined. - 5. That the atteged trustees of the Respondent were appointed under a forged power of Attorney which was renounced by one of the alleged attomeys, Dr. Muhammed Buwule Kasasa, who is the sole surviving uncle of the Respondent. - 6. The said Dr. Muhammed Buwule Kasasa swore an affidavitin Miscellaneous Cause No. <sup>82</sup>of 2023 to the effect that he knows the Respondent to have a mental disability and that he has never taken any pal in instructing his lawyers or any doctors on behalf of the Respondent. - l. The trial Judge in Miscellaneous Cause No. 82 of2023 made an error by not considering the said affidavit by Dr. Muhammed Buwule Kasasa who is both an uncle and a medical doctor to the ResPondent. - 8. That they have preferred a review over appeal.

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### Reoresentation

The Applicants were represented by M/s BKA Advocates whereas the Respondent was represented by M/s Buwule & Mayiga Advocates. Both Counsel filed written submissions which I will not reproduce but rather refer to where applicable.

### Decision of Court

Applications for review and setting aside are governed by the provisions of section 82 of the civil Procedure Act, cap 71 and order 46 rules 1 and 2 of the civil procedure Rules.

Section 82 of the Civil Procedure Act provides thus;

82. Review

Any person considering himself or herself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Act, butfrom 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 courl may make such order on the decree or order as it thinks fit.

Order 46 rules 1 and 2 of the Civil Procedure Rules provide thus;

1. Application for review of judgment.

(1) Any person considering himself orherself aggrieved-

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

(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important mafter 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.

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The grounds for review are further enunciated in the case of FX Mubuuke Vs UEB, High Court Misc. Application No.98 of 2005 to be;

- i. That there is a mistake or manifest mistake or error apparent on the face of the record. - ii. That there is discovery of new and important evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made. - iii. That any other sufficient reason exists.

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sufficient cause was defined in the case of Sardar Muhamad vs. Charan Singh and Another [1959] EA 793 as "reason sufficient on grounds at least analogous to those speci/ied in the rules".

The Applicants herein filed Miscellaneous Cause No. 82 ol 2023 against the Respondent herein seeking among others for, 1) an order directing the Respondent to appear before this Honourable Court for an inquiry into his mental status; 2) an order appointing one or more psychiatrists or senior mental health practitioners to make professional determination of the Respondent's mental health status; 3) an order adiudging the Respondent to be of unsound mind by reason of mental illness; 4) an order giving directions on the Respondent's medical care and treatment.

During trial, counsel for the Respondent raised preliminary objections among others; that the application is res judicata. This Court upheld the preliminary objection and dismissed Miscellaneous Cause No. 82 of 2023. Hence this application.

The Applicants allege that this court ignored the oral application of the Applicants' Advocates for an order directing the Respondent to appear before court to confirm his counsel's instructions.

I have looked at the record of proceedings. On pages 3-4 thereof, the Court record of June 05,2023 in Miscellaneous Cause No. 82 of 2023, counsel for the Applicants therein contested the Respondent's capacity to instruct Advocates. The court indicated on page 5 of the record of proceedings, thus "l believe it will be more exponent if the objections are considered at the same time as the merits of this application. lt is clear to me that it will be difficult to avoid a discussion on matters tending the merits of the application. Let pleadings therefore close and the matter comes up for final directions and agreement on issues for final trial"

However, when the matter came up on July 05, 2023, counsel for the Respondent informed court that they have objections to raise against the application. Court gave the parties schedules for filing written submissions and thus the ruling dismissing Miscellaneous Cause No, 82 of 2023 for being res ludicata. The ruling and the court record do not show that court determined the issue of Respondent's capacity to instruct the Advocates. The issue of an Advocate having received instructions to act for a client is central to any case. lt is trite that no Advocate can act for a client without receiving instructions from that client or his or her authorized agent. (see Kabale Housing Tenants Association vs. Kabale Municipal Local Council SCCA No. 15/2013). Any action taken in a case by counsel without instructions is incompetent. Therefore, where a question of counsel having instructions is raised, the court has a duty to determine the same before counsel whose instructions have been questioned proceeds in the matter. This was not done. This is clearly a mistake apparent on the record of Court, that ought to be corrected.

Another concern raised by the Applicants is the issue of Court dismissing Miscellaneous Cause No. 82 of 2023 on the basis that the subject matter therein had already been determined in HCMC No. 249 of 20'19: Jordan Sebuliba vs. Mohan Musisi yet there was an admission of the Respondent's mental disability by the Respondent's Counsel.

A perusal of the court record shows that in reply to Miscellaneous Cause No. 82 of 2023 is an affidavit dated June 01 , 2023 sworn by Dr. Simon Sekiganda Luzige a family physician of the Respondent since 2014. ln paragraph 11 of his affidavit he deponed that the Respondent had developed a lot of anger and depression. He adds in Paragraph '12 that as time went on


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Dr. Harriet Nankabinva a Geriatrician also deponed an affidavit in reply dated May 30th 2023 to Miscellaneous Cause No. 82 of 2023.|n paragraph 3 of her affidavit, she states that she was introduced to the Respondent in the year 2020 to examine and assess his condition. ln paragraph 8 of her affidavit, she states that she realized that the Respondent was becoming more and more forgetful and with a significant personality change. ln paragraph 9 of her affidavit she states as follows; "l was able to make appropriate assessment of his mental health condition and agreed on a treatment plan which we are following ." clearlv thrs is an indication that the Re spondent was beinq treated for mental health issues. Underlined emphasis is mine.

ln paragraph 10 of the above affidavit by Dr. Harriet Nankabirwa, she states thus, "during my interactions with the respondent I took him through the usual routine preparation we normally carryout with patients of this nature including inquiring if he had made anangements for the appointment of trustees who can take decisions on his behalf in the event that he was unable to do s0..,"

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Perhaps what is more revealing of the alleged mental status of the Respondent is in the affidavit deponed by Edwin Busuulwa. Edwin Busuulwa deponed in paragraph 12 of his affidavit in reply to Misc. Cause 8212023 affirms that the Respondent was declared incapable of running his affairs by his doctors.

Therefore, clearly the above affidavit evidence by the Respondent's own witnesses point to the fact that the Respondent was having mental health issues.

I have perused the ruling of my Learned Brother Hon. Justice Ssekaana Musa in HCMC No. 249 of2019: Jordan Sebuliba vs. Mohan Musisi Kiwanuka dated September 27, 2019. Hon. Justice Ssekaana Musa indicates in his ruling that the court had interacted with the Respondent. He held thus "...in this matter, the respondent contests the intended or involuntary mental examination, The same cannot be forced through an order of court since there is no iota of evidence pointing to mental derangement of the respondent. The respondent is capable of managing his affairs."

Fronr the foregoin affidavit evidence of Dr. Simon Sekiganda Luzige and Dr. Harriet Nankabirwa, it is clear that in about May or June2023, the Respondent had developed mental health issues. And from the affidavit evidence of Edwin Busuulwa the Respondent was declared unable to manage his own affairs by his personal doctors. This is cleady contrary to what was subsisting at the time my learned Brother Hon. Justice Ssekaana Musa delivered his ruling on September 27,2019 in HCMC No. 249 of 2019: Jordan Sebuliba vs. Mohan Musisi Kiwanuka.

The question now to be answered by this Court, is whether Court Miscellaneous Cause No. 82 of 2023 was not res judicata on the basis of the facts pleaded.

Section 7 of the Civil Procedure Act provides that:

"No court shall try any suit or issue in which the matter directly and substantially rn issue has been directly and substantially ln issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title, in a court competent to try the subseguent suit or the suit in which the issue has been subsequently raised and had been heard and finally decided by the court"

The doctrine of res judicata applies;

- a) There was a former suit between the same parties or their privies; - b) The matter was heard and finally determined by the court on its merits; - c) The matter was heard and determined by a court of competent jurisdiction; and - d) The fresh suit concerns the same subject as the previous suit.

(See: Ganatra v. Ganatra 1200711EA 76; Karia & Another v. Attorney General & Others [2005] 1 EA 83 at 93 -994)

Further still, the case o't Kamunye & others vS the Pioneer General Assurance Socje& Ltdd (1971 E. A 263 gives the test to be applied by court to determine the question of res judicata. lt states:

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"Ihe test whether or not a suit is barred by res judicata seems to me to be - is the plaintiff in the second suit trying to bring before the court in another was and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. lf so, the plea of res judicata applies not only to points upon which the first courl actually reguired to adjudicate but to every point which properly belonged to the subject ol litigation and which pafties, exercising reasonable diligence, might have brought foruard at the time. The subject mafter in the subsequent suit must be covered by the previous suit, for res judicata to apply".

It is this Court's finding that Miscellaneous Cause No. 82 of 2023 is not res judicata. This is because, there were new facts pleaded which were moreover admitted by the Respondent.

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Although a litigant whose case has already been tried is normally unable to sue the same party on the same subject again. There is an exception. That is, if the litigant can prove that new events occuned or were revealed following the first judgment.

The Supreme Court of the United States explained more than 50 years ago in Lawlor v. NationalScreen Servlce Corp,,349 U. S. 322 (1955), that res judicata does not bar a suit, even if it involves the same course of wrongful conduct as alleged earlier, so long as the suit alleges new facts or a worsening of the earlier conditions.

lnLawlor v. National Screen Servrce Corp.,349 U. S.322 (1955), the Supreme Court unanimously reversed the application of res judicata where the lower court applied the same reasoning as this court in Miscellaneous Cause No. 82 of 2023. ln Lawlor v. National Screen Service Corp.,349 U. S. 322 (1555), the plaintiffs brought an antitrust suit that was ultimately dismissed with prejudice. Seven years later, the plaintiffs brought a second antitrust suit against many of the same defendants, alleging the same course of wrongful conduct, which had worsened in the interim. The lower courts applied res judicata to bar the second suit.

The Supreme Court reversed the lower court's decision, explaining that even though "both suits involved essentially the same course of wrongful conduct," res judicata did not apply. The Court noted that "such a course of conduct-for example, an abatable nuisance-may frequently give rise to more than a single cause of action. The Court held that claims in the

second suit based on events that had not yet occurred at the time of the first suit were not barred: "... While the earlier.ludgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case..." The Court further held that the plaintiffs' claims in the second suit survived res judicata to the extent that those claims alleged worsening of the earlier wrongful conduct.

ln State of Ohio ex rel. Susan Boggs, et al. v. City of Cleveland, 655 F.3d 516 (6th Cir. 2011) Susan Boggs and her family sought compensation in 2002 for damage caused by airport operations close to their home, but the suit was dismissed on merits. Since that time, worsening damage from newly expanded runways, new water pollution, and the revelation that the City has designated their property for mandatory acquisition, have made their home unlivable and destroyed its monetary value. Based on these new facts, they filed a new complaint which the district Court rejected relying on the principle of res judicata. The United States Court of Appeal for the 6th Circuit while citing Lador v. National Screen Seruice Corp., 349 U. S. 322 (1955) overturned the lower Court decision on the basis of new events that had occurred after the initial judgment holding. The court held that res judicata cannot prevent them from the opportunity to substantiate their well-pleaded allegations of new facts in the district court.

ln the instant case, like I have already observed my learned Brother Hon. Justice Ssekaana Musa in his ruling in HCMC No. 249 of 2019: Jordan Sebuliba vs. Mohan Musisi Kiwanuka dated September 27,2019 indicated that before his ruling, he interacted with the Respondent first in the presence of Advocates for both sides, and then in his own presence with Respondent. He noted that there was no mental derangement on the Respondent whom he adjudged capable of managing his affairs. This was the reason he dismissed HCMC No. 249 of 2019:Jordan Sebuliba vs. Mohan MusisiKiwanuka.

However, in2023, when Miscellaneous Cause No. 82 of 2023 was filed, there is affidavit evidence from the Respondent's own witnesses to wit; Edwin Busuulwa, Dr. Simon Sekiganda Luzige and Dr. Haniet Nankabinrua who in their own aflidavits admit that in about May or June 2023, the respondent had developed mental health issues as mentioned in their respective affidavits. ln preparations for a worst case scenario, Dr. Harriet Nankabirwa affirmed that she started to prepare the Respondent in case he was unable to manage his


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own affairs by taking him through steps they take in cases of patients of that nature. Edwin Busuulwa in his affidavit evidence deponed that the Respondent was declared by his personal doctors unable to manage his affairs. This is clearly evidence of occunence of new facts that did not exist when my learned Brother Hon. Justice Ssekaana Musa delivered his ruling in HCMC No. 249 o12019'. Jordan Sebuliba vs. Mohan Musisi Kiwanuka on 27tt September 2019. Therefore, the action in Miscellaneous Cause No. 82 of 2023 based on the occunence of new and critical facts cannot be barred by the principle of res judicata.

Before I take leave of this matter, counsel for the Respondent in his submissions raised the issue of forum contending that although 0.46 of the CPR is permissive for another judge to hear an application for review, the case under review was originally allocated to Hon. Justice Boniface Wamala but subsequently on instructions of the Principal Judge, the file was transfened to the PrincipalJudge who has entertained the instant application. Counselfurther cited the decisions of Outa Levi vs Uganda Transport Corporation [1975] HCB 353 and Re Dr John Chrizestom Kiyimba Kato Misc. Cause No. 29 of 1989 as his authorities that the applications for review should be filed in the same Court that made the decision.

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Let me point out that there is only one High Court in Uganda. The duty to distribute business in the Court is an administrative responsibility of the Court. At High Court level, that duty is vested in the Principal Judge by Section 20 of the Judicature Act. ln Civil Application No. 313 of 2020 the Court of Appeal of Uganda held thus; "... lhere is only one High Courl in Uganda' Any Judge of the High Court anywhere in this country has jurisdiction to hear any suit civil or criminal. Couri files may move from one High Courl Judge to another as may be directed by the Principal Judge, Heads of Division and Registrars or by order of appellate Courl. Every individual Judge of the High Cout has jurisdiction to hear and determine any matter brought before him or her at any stage of the proceedings even lf lt ls lust to write iudgment. The Principal Judge, Heads of Division or Heads of Circuit in respect of the specific Division or Cicuit may remove any matter pending before one Judge or Registrar and allocate it to another..."

My view is that this is a simple dispute to resolve. Mr. Mohan Kiwanuka is either sane or insane. On the basis on the new facts that were pleaded, some of which admitted by the Respondent's own witnesses in their affidavit in reply as indicated herein, it does no harm for


the respondent to appear or be caused to appear before this honorable court as it was done before my learned brother Hon. Justice Ssekaana Musa and matter is put to rest. The applicants will then be put to shame if their averments are incorrect. Mental status is a condition that can change within hours. Someone who is sane today may be insane tomorrow and viseversa.

In the end result, this application is allowed with the following orders;

- 1. The ruling and orders of this court in Miscellaneous Application No. 82 of 2023 is hereby reviewed and set aside. - 2. *Miscellaneous Application No. 82 of 2023 shall be heard and determined on merits.* - 3. The issue pertaining propriety of the Respondent's Counsel instructions shall be handled during the hearing of Miscellaneous Application No. 82 of 2023. - 4. Each party shall bear own costs since the parties are family members. - 5. *Miscellaneous Application No.* 82 of 2023 is fixed for hearing on February 11, 2025, at 11:00am and Mr. Mohan Kiwanuka is hereby directed to personally appear in Court or be caused by those having him in custody to appear in court, on the date and time of the hearing mentioned herein.

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Dated at Kampala this.

Flavian Zeija (PhD) **PRINCIPLE JUDGE**