Misc. Civ. Cause 10-M-70; 25/1/72; El-Kindy,
J.
The petitioner, a parliamentary
candidate in the general election held on the 30th of October, 1970,
Sought to avoid the results of the said election in respect of the
parliamentary seat of Busega Constituency. The petitioner alleged that due to
non-compliance of the election provisions enacted in the Elections Act, 1970
No. 25 of 1970 the results were affected and therefore they
should be avoided. The petition was opposed by the first respondent Mrs.
Dorothea Milembe Ng’wishemi, who was the successful candidate, and the second
respondent, the attorney General. At the general elections the first respondent
polled 18, 550 votes, the petitioner, 14,400. There was, therefore, a majority
of 4,160 votes in favour of the first respondent who was declared the
successful candidate. Some 484 votes were spoilt. In his petition, the
petitioner claimed, inter alia, that some ballot boxes were left for two nights
in a bar unguarded and this irregularity left room for any person to tamper
with the votes. He asked the court to declare the election void and order a
scrutiny or recount. A preliminary point of burden of proof was raised.
HELD:
(1) “Section 123(1) of the elections act, 1970, simply states that the grounds
for avoiding an election have to be “proved to the satisfaction of the court.”
It does not state what form of known standard of proof should be applied. To
this extent, the act left the Act, what standard of proof should be required.
With such provision, there are at least three possible standards of proof. One,
that the Act meant no more than an ordinary standard of proof required in a
civil suit. That is to say proof on balance of probability. I Am no certain
whether proof of that standard necessarily means that the court is “satisfied”,
bearing in mind that often an ordinary civil court finds that more probably
than not a particular issue is proved. The second possibility is that the proof
required is proof beyond reasonable doubt which is a normal standard of proof
required in a criminal trial. And thirdly, it is possible that it means that it
is a standard of proof which is between balance of probability or preponderance
of probability and proof beyond reasonable doubt. This is an in-between
standard of proof. In normal circumstances, courts do not like to interpret
provisions of law out of nothing and without any assistance from other sources.
Courts have to take into account the spirit of the Act or provision of law, and
compare that with any other legislation or Act or judgment (precedents) so that
a reasonable interpretation can be made. It is for this reason that the learned
Chief Justice Georges and Bramble J., as they were then, went out of their way,
in the case Mbowa v. Eliufoo (1967) E. A. p. 240, to consider the case
of Bater v.Bater (1950) 2 All E. R. 458 which was a matrimonial case
which had a similar phrase embodied in the English matrimonial Legislation. And
they came to the conclusion that where a reasonable doubt is established by the
evidence led they could not say that
they were satisfied and hence they required that there should be proof which
left the court in “no reasonable doubt” that one or more grounds for avoiding
election was or were proved. Now in normal civil suits one does not talk about
proof which leaves “no reasonable doubt.” It is simply a normal language of a
criminal court where proof has to be beyond reasonable doubt. It is for this
reason that I did not mince my words when I held, in the case Yongolo v.
Erasto & AG (1971) H.C.D. 259, that the required proof was proof beyond
reasonable doubt. And I still think that it was a reasonable interpretation to
put to this phrase. And in the case of Philip Tibaijuka v. Samuel Kassano
& AG my learned brother judge (Kisanga Ag. J.) said, when commenting on
my decision in the above quoted case; “With great respect I think this
interpretation is sound and correctly represents the law” thereby he accepted
the standard of proof set out by me. In supporting his contention, the
petitioner’s counsel argued that, at least the learned judge Onyuiuke J. in the
case of Ng’weshemi v. Kisehna and AG. (1971) H.C.D. No. 251, did not
accept the proposition in the case of Mbowe v. Eliufoo. With due
respect, having re-read Ng’weshemi case several times, I do not accept
the interpretation in the case of Mbowe v. Eliufoo. The said
judgment is silent about the required standard of proof. This silence cannot be
taken to mean dissent on the part of the learned judge. Silence on an issue
such as the one in hand can mean anyone of several things. I could mean
dissent, or acceptance and approval, or no opinion on the matter, or doubtful
on the proposition, or any other reason. It cannot, therefore be said that one
or the other meaning was the one intended by the learned judge. It would not,
therefore, be correct to read too much in the silence of the learned judge. It
seems to me, therefore, that this
Court has come down firmly with the
requirement that such proof has to be beyond reasonable doubt by sheer
examination of the language used in the Act and persuasion of other
authorities. I am unable to hold that this requirement was not good law. No
doubt the requirement places a heavy burden on a petition and, with respect,
with some good justification. As my learned brother Kisanga Ag. J. said in
Tibaijuda’s case quoted above, that an election petition is more serious matter
and had wider implications than an ordinary civil suit. What is involved is not
merely the right of the petitioner to a fair election, but the right of voters
to non interference with their already cast votes i.e. their decision without
satisfactory reasons. In my view, to require the petitioner to satisfy such
standard of proof is not only fair but reasonable in the circumstances.
Petitions, as the Act itself provides, should not be easily allowed by mere
production of evidence which might probably prove the allegations. This is why
it is not enough merely to prove the allegations but also necessary to prove
that the allegation affected the results of the election. No doubt a
person who seeks to avoid election results has the duty of leading evidence in
support of this allegation. Without doing so, his petition would fail, although
the trial court is not bound to decide an election petition only on
petitioner’s evidence.”
(2)”Having regard to the evidence before this Court, I
find that the allegation in issue has not been proved to the satisfaction of
this Court.”
(3) Petition dismissed.
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