Madundo v. Mweshemi & The A. G. Misc. Civ. Cause 10-M-70; 25/1/72; El-Kindy, J.

 

Madundo v. Mweshemi & The A. G. Misc. Civ. Cause 10-M-70; 25/1/72; El-Kindy, J.

The petitioner, a parliamentary candidate in the general election held on the 30^th 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.