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

The degree of probability which a reasonable and just man would require to come to a conclusion — and likewise the degree of doubt which would prevent him from coming to it — depends on the conclusion to which he is required to come. It would depend on whether it was a criminal case or a civil case, what the charge was, and what the consequences might be, and if he was left in real and substantial doubt on the particular matter he would hold the charge not to be established. He would not be satisfied about it.

What is a real or substantial doubt? It is only another way of saying a reasonable doubt and a reasonable doubt gets one no further. It does not say that the degree of probability must be as high as ninety per cent, or as low as fifty-one percent. The degree required must depend on the mind of the reasonable and just a man who is considering the particular subject matter. In some cases fifty one percent would be enough but not in others. When this is realized, the phrase “reasonable doubt” can be used just as aptly in a Civil case or a divorce case as in a criminal case, and indeed it was so used by BACK WILL, L.J., in Davis VS Davis (1950) 1 All E.R 40 and Gower vs Gower (1950) 1 All E.R. 804 The only difference is that, because of our high regard for the liberty of the Individual a doubt may be regarded as reasonable in the Criminal Courts which would not be so in the Civil Courts.”

As it is apparent from this passage of the judgment of Denning L.J., to which I have just referred in: Bater vs Bater (supra) he did not say that “proof to the satisfaction of the Court” meant the same as “proof beyond reasonable” as Georges CJ, apparently said in: Mbowe’s case (supra), and as courts in many election petition cases in this Country have held.

In the instant case the learned counsel for both the l and 2 Respondents have suggested a standard proof which is higher than proof on a preponderance of probabilities but short of proof beyond reasonable doubt. I agree with them.

In my view the word “satisfied” is a clear and simple one and one that is well understood. I would have thought that interpretation or explanation of the word would be unnecessary. It needs no addition. From it there should be no subtraction. The Courts must not strengthen it; nor must they weaken it. Nor would I think it desirable that any kind of gloss should be put upon it. Parliament has ordained that a court must be satisfied. Only Parliament can prescribe a lesser or more requirement. Parliament would have said in the Act that election offences should be proved on the balance of probability or beyond reasonable doubt if it wanted to do so. It did not, and left it to the discretion of the courts or judges what is meant by being “satisfied.”

All that is required, in my view, is that the Court must be satisfied that alleged grounds for annulment of an election have been proved, If it has reasonable doubt then the court is not “satisfied.” This is different from saying that for a court to be satisfied, proof must be made beyond reasonable doubt. If in election petitions, illegal practices or non-compliance have to be proved beyond reasonable doubt, then there would appear to be no need for criminal proceedings to be instituted under section 58(9) of the Act.

With regard to the burden of proof, it is the respondent who has to prove to the satisfaction of court the grounds on which the election should be nullified. The burden does not shift.

I shall now proceed to consider the issues in this petition on the basis of my views expressed herein regarding affidavit evidence, burden and standard of proof.

At the commencement of hearing the Court, in consultation with the counsel for the parties, framed the following five issues for determination: