The republic of uganda in the supreme court of uganda at kampala

101. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

102. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existance, unless it is provided by any law that the proof of that
fact shall lie on any particular person.”

The term “burden of proof” which is at times also referred to as “onus of proof” is similarly defined in PHIPPSON ON EVIDENCE 12TH Ed. p.36 para 91 and in SARKAR’S LAW OF EVIDENCE 14th Ed., at p.1338. The learned author in the latter work states:

“It has two distinct and frequently confused meanings: (1) The burden of proof as a matter of law and pleading- the burden of, as it has been called, establishing a case (2) The burden of proof as a matter of adducing evidence. The burden of proof in this sense is always unstable and may shift constantly, throughout the trial according as one scale of evidence or the other preponderates.

The learned author commenting on shifting of the burden of proof goes on to say, at p.1339:

“It is not always easy to determine at what particular point the onus shifts from the plaintiff to the defendant and then again from the defendant to the plaintiff and so on but at the conclusion of the trial when the issues come to be judged it has to be seen whether the initial onus cast on the plaintiff, has been discharged or not it would be wholly wrong to allow the burden of proof to be shifted by a redundant averment in the pleading of an issue framed upon that averment.” (Emphasis is added).

The test to apply in determining the shift of the burden was put by Lord Hanworth M.R., in STONEY vs. EASTBOURNE RURAL COUNCIL (1962) 1 Ch.367 thus:

“It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on one side or the other and of saying that if there were two feathers on one side and one on the other that would be sufficient to shift the onus. What is meant is that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence given.”

I agree with that test. In the instant case it is evident that the Petitioner had the burden as a matter of law and pleading. He had to show that the statement complained of was false in order for its publication by the 1St Respondent to constitute an illegal practice as defined under S.65, and to be a ground for annulment of the Presidential election under S.58(6) (c) of the Act. It must be in this sense that the Petitioner’s counsel conceded that the burden of proof lay on the Petitioner. However, he also had the onus to adduce such evidence as would at least establish prima fade that the statement was false, in other words to show that he was not a victim of AIDS.

What evidence did the Petitioner produce? In his affidavit accompanying the petition he deponed in paragraph 51:

“…..I know that I am not suffering from AIDS but the 1st Respondent maliciously made false allegation that I was victim of AIDS without any reasonable grounds for believing that was true…”

I agreed with Dr. Byamugisha’s submission that the assertion was no more than was pleaded in the petition, and standing alone, did not amount to proof that the statement was false, for it begged the question: how did he know that he was not suffering from AIDS? The assertion was however supplemented after the Petitioner had read the 1St Respondent’s affidavit setting out the reasons that led him to believe that the Petitioner was a victim of AIDS. On 5th April, 2001, the Petitioner swore an affidavit in reply, much of which was devoted to refuting the 1st Respondent’s reasons. But he also deponed, in paragraph 9:

“.... I am not and I have not been bed-ridden in my life and I am able to work normally and during the Presidential campaigns I travei4ed the whole of Uganda without breaking down or feeling particularly fatigued.”

And in paragraph 17 he deponed that he was not an invalid as suggested by the 1 Respondent. Presumably, though he did not indicate the necessary nexus, the new averments were in reference to signs and symptoms he would expect to find in a victim of AIDS.
Meanwhile, however, two affidavits sworn on April 2001 had been filed in support of the petition. One was sworn by Dr. Ssekasanvu Emmanuel, a Registered Medical officer of Makerere University, with 10 years experience, currently doing research in HIV infections. He annexed to his affidavit a “Report on case definition of AIDS.” In the report Dr. Ssekasanvu explained:

“The acronym/term AIDS in full stands for acquired immune deficiency syndrome. This is used to mean a conglomeration of signs and symptoms associated with late HIV disease.”

He then mentioned two definitions of AIDS, namely the internationally accepted full definition compiled by the Centres for Disease Control, Atlanta, Georgia, USA; and the clinical definition arrived at by World Health Organisation (WHO) experts, using signs and symptoms. But he stressed that a clinical criteria can only be used by trained medical personnel to make presumptive diagnosis; and even then after detailed examination of the person in question. He also stressed that diagnosis of HIV infection, and AIDS, cannot be made on basis of loss of a partner and/or child, because infection may not be passed onto the partner despite intimate contact.

The second affidavit, sworn by Major Rubaramira Ruranga, who deponed that he had been living with HIV for 1 6 years was defective for not distinguishing what was sworn from his knowledge and what was on information. In any event it was not of assistance to the issue at hand.

Mr. Balikuddembe submitted that in considering the sufficiency of the evidence, the Court should take into account: (a) the fact that the Petitioner was a medical doctor, and (b) the peculiarity of proving a negative. The Petitioner’s evidence, however, was not stated to be from any professional examination or assessment carried out by himself or any other competent person, in the manner stressed by Dr. Ssekasanvu or at all. In my view, his evidence in that connection was, and had to be taken, on the same footing as evidence of any intelligent person describing his or her health condition, without assistance of medical professional knowledge or skills.

The question of proving a negative is more of a problem. We were referred to the decision of this Court in J.K.PATEL vs. SPEAR MOTORS LTD Civil Appeal No.4/91 where the question was considered in a suit for breach of contract. The plaintiff claimed, and gave evidence on oath, that he carried out the work he contracted for, but was not paid. The defendant did not dispute the work, but claimed that it had paid, its Managing Director giving evidence on oath to that effect. The trial court dismissed the suit on the ground that the plaintiff’s evidence was vague. The Supreme Court allowed the plaintiff’s appeal holding, inter alia, that the defendant had not discharged the onus on it to prove payment. In the leading judgment of Seaton J.S.C., there were quotations from judgments of the House of Lords in the case of CONSTANTINE STEAMSHIP LINE LTL vs. IMPERIAL SMELTING CORP. (1941) 1 All ER 165, of several expressions of misgivings about imposing on a litigant the burden to prove a negative, because it is always difficult, and often impossible, to prove a negative. However the decision in J.K. PATEL vs. SPEAR MOTORS LTD (supra) was not that the plaintiff did not have a burden to prove the non-payment, but rather that the burden had shifted. The Court clearly accepted the view expressed by Viscount Maughan in the CONSTANTINE LINE case (supra) at p.179 as follows:

“….I think the burden of proof in any particular case depends on circumstances in which the claim arises. In general the rule which applies is ei qui affirmat non ei qui negat incumbit probatio (the burden of proof lies on him who affirms a fact not on him who denies it). It is an ancient rule founded on considerations of good sense, and it should not be departed from without strong reasons In my considered opinion, the circumstances of the instant case provided good reasons for departing from the ancient rule, if indeed there was a departure. In the first place, proof of the negative, namely that the Petitioner was not a victim of AIDS, did not appear to be any more difficult, than proof of the affirmative, namely that the Petitioner was a victim of ADS. Secondly, the burden to prove that the statement was false, was imposed by statute, namely by the provision in S.65 of the Act. To prove that the illegal practice as defined in that provision was committed, the Petitioner had the onus to prove that the statement published by the 1 St Respondent was false, and he had to prove it so as to leave the court certain that it was false. Even if the 151 Respondent offered no evidence at all, the burden would not be any less. Whilst the illegal practice is similar to defamation in nature, it differs in the way it has to be proved. This may well appear harsh, as in the saying of adding insult to injury, but the illegal practice being quasi criminal, leads me to the conclusion that the onus of proof would shift only if a prima facie case had been made out. To my mind, evidence advanced by the Petitioner did not establish a prima fade case, sufficient to shift the burden of proof. I was therefore unable to find that the Petitioner had proved to the required standard that the statement was false. This would be sufficient to dispose of that as a ground for annulment. However, I am constrained to make known, in brief, my views on the evidence in respect of the other components of that illegal practice.