[2017] UGCA 140

# **THE REPUBLIC OF UGANDA IN** THE COURT **OF** APPEAL OF **UGANDA** AT KAMPALA ELECTION PETITION **APPEAL NO.29 OF 2016 (Arising from High Court Election Petition No.004 of 2016)**

### APPELLANT **WALIGO AISHA NULUYATI**

### **10 VERSUS**

### **1. SSEKINDI** AISHA

**15**

#### RESPONDENTS **2. THE ELECTORAL COMMISSION**

## **BEFORE: HON. JUSTICE REMMY KASULE, JA HON. JUSTICE ELIZABETH MUSOKE, JA** HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA

*(Appeal from the Judgment and Orders of the High Court of Uganda sitting at Masaka before Hon. Justice Michael Eiubu dated 2^ June, 2016, in Election Petition No. 004 of2016).*

# **JUDGMENT OF THE COURT**

**20** This is a first appeal arising from the Judgment and Orders of the High Court at Masaka (Hon. Justice Michael-Eiubu) wherein the appellant's " Election Petition seeking to annul and set aside the election of the 1st respondent as a Woman Member of Parliament for Kalungu District was dismissed.

#### **25 Background to the appeal:-**

**30** On the 18th February, 2016, the 2nd respondent conducted Parliamentary Elections where the appellant, Waligo Aisha Nuluyati, the 1st respondent, Ssekindi Aisha and 3 other candidates contested for the Kalungu District Woman Member of Parliament seat. At the conclusion of the polling exercise, the 2nd respondent declared the 1st respondent the winning

**1**

candidate with 19,884 votes while the appellant obtained 16,819 votes. - The 1st respondent's name was published in the Uganda Gazette of 3rd March, 2016 as the elected Woman Member of Parliament for Kalungu District.

**10** Being dissatisfied with the outcome of the election, the appellant filed a petition in the High Court at Masaka seeking to annul and set aside the election of the 1st respondent. The main grounds of the appellant's case were that:-

- 1. The 1st respondent was not validly elected as Woman Member of Parliament in accordance with the provisions of the Law. - 2. At the time of her nomination, the 1st respondent had no academic qualifications required to contest as Woman Member of Parliament for Kalungu District. - 3. The Electoral process was not conducted in accordance with the provisions of the law. - 4. The 1st respondent uttered false academic documents at the time of her nomination.

5. The 1st and the 2nd respondents compromised the principle of impartiality and transparency, thereby failing to conduct the election as required by law, which affected the results in a substantial manner.

The 1st and 2nd respondents separately filed replies to the petition where they each denied the allegations raised by the appellant in her petition. The 1st respondent contended that at the time of her nomination and election, she held the requisite academic qualifications as well as all the

**I**

**15**

'

**20**

other requirements provided for under the law. She denied the allegations of bribery of voters or commission of any electoral offences as had been alleged by the appellant. The 2nd respondent further denied all the allegations of bribery, intimidation of voters or non-compliance with the provisions of electoral laws during the election process.

- **10** At the scheduling conference held at trial, the following issues were agreed upon for determination: - 1. Whether the 1st respondent at the time of nomination and election was possessed of the requisite academic qualifications for election as Woman Member of Parliament for Kalungu District. - **15** 2. Whether at the time of nomination the 1st respondent was possessed of a valid Certificate of Equivalence from the National Council for Higher Education *I* Whether her academic documents were equated according to the law. - 3. Whether the 1st respondent personally or through her agents, with her knowledge and consent, committed any electoral offences or malpractices during the election period. - 4. Whether the said election was conducted in accordance with principles laid out in the Constitution, the Parliamentary Elections Act (PEA) and the Electoral Commission Act. - 5. Whether 4 above affected the results in a substantial manner. - 6. What remedies are available.

The learned trial Judge answered all the issues in the negative and dismissed the petition with costs to the respondents. The appellant, being dissatisfied with the findings of the High Court filed this appeal. At the

**Vs JU**

**I** .1

**i**

**i i** i

**20**

**5**

**. .. \ -vt**

**c**

**25**

scheduling conference held in this Court, the following issues were framed for determination:

- 1. Whether the learned trial Judge erred in law and fact by holding that the 1st respondent was possessed with the minimum academic qualifications for the nomination and election of a Member of Parliament. - 2. Whether the learned trial Judge erred when he held that the National Council for Higher Education duly and lawfully equated the academic qualifications of the 1st respondent.

3. Whether the learned trial Judge erred in law and fact when he held that the 1st respondent was not guilty of bribery.

- 4. Whether the learned trial Judge erred in law by placing a higher burden and standard of proof on the petitioner than is required by law. - 5. Whether the learned trial Judge erred in law and fact by failing to evaluate evidence properly and therefore arriving at a wrong conclusion.

Representation

At the hearing of the appeal, the appellant was jointly represented by Hon. Medard Lubega Ssegona, Mr. Ahmed Kalule and Mr. David Mayinja, while the 1st and 2nd respondents were represented by Mr. Ntambirweki Kandeebe.

Learned counsel for the appellant addressed issues 1, 2, 4, 3 and 5 in that order. However, we shall address issue 4 on the standard of proof first, followed by issues 1, 2, 3 and 5 respectively.

**!**

**I**

**i ^>**

**15**

**10**

\ »■

**5**

**20**

ISSUE 4.

**5**

**25**

*Whether the learned trial Judge erred in law by placing a higher burden ondstandard ofproofon the petitioner than is requiredby law.*

**10 15 20** Counsel for the appellant submitted that the trial Judge placed a higher standard of proof on the appellant than was required by law. It was his contention that throughout the hearing and determination of the petition, the trial Judge held the view that the appellant's burden was to prove the case to a standard higher than the statutory balance of probabilities and to prove the case to a standard that left the Court without reasonable doubt. Counsel cited *Tooiit Simon Akecha Versus Ouianyah Jacob L'Okori, Election Petition Appeal No.19 of 2011,* **(Court of** Appeal!) and submitted that the appellant only had the obligation of proving her case to ^a standard of balance of probabilities. It was his contention that the trial Judge erred in relying on *Kiiza Besisgye Versus Museveni, Supreme Court election Petition No, 1 of 2001,* which decision related to ^a presidential and not a parliamentary election, to raise the standard beyond what was provided for by the law.

In reply, counsel for the 1st respondent submitted that being alive to the proper standard of proof, the trial Judge had made reference to Section 61(3) and (5) of the Parliamentary Elections Act that provided for the standard of proof in the present case. In that regard, therefore, the trial Judge had the proper standard of proof in mind and arrived at a correct decision regardless of the fact that he made reference to the *Kiiza Besigye Versus Museveni* case (Supra).

Wi2 have looked at the Judgment of the trial Court in regard to the standard of proof. For purposes of clarity, the trial Judge made a finding as follows:

*"Before I come to the resolution ofthe issues agreed on by both the parties and the Court, I will highlight and remind myself as to the burden and standard of proofin Election matters.*

*Section 61 of the Parliamentary Elections Act stipulates the grounds upon which an election may be set aside and sub section 3, provides that any ground specified shall be proved on the basis ofa balance ofprobabilities.*

*It was held in the case of Col. Kiiza Besigye vs Yoweri Kaguta Museveni, Election Petition Appeal No. ¹ of²⁰⁰¹ (SC) on the burden ofproof in election petitions, that it lies on the petitioner and is on a slightly higher degree than the balance of probabilities applicable in an ordinary civil suit.*

*Sub section ¹ ofsection 61 ofthe PEA states that the election ofa candidate as a Member of Parliament shall only be set aside on grounds proved to the satisfaction ofthe Court. In Kiiza Besigye (Supra) the Supreme Court considered the phrase 'proved to the satisfaction of the court' and held 'proved to the satisfaction of the court connotes absence of reasonable doubt...the amount of proof that produces the court's satisfaction must be that which leaves the court without reasonable doubt'*

*That is the burden that rests on the petitioner's shoulders and the standard to which he has to discharge that burden".*

While the trial Judge rightly made reference to section 61(3) of the Parliamentary Elections Act that lays out the standard of proof as being on a balance of probabilities, we find that he subsequently misdirected himself in relying on the decision in *Kiiza Besigye Versus Museveni, (Supra)*

**6**

**15**

**20**

**25**

**30**

fl

**5**

**10 15 20** which was a presidential election petition, wherein the standard of proof is not prescribed by the Presidential Elections Act, unlike the parliamentary election, where the Parliamentary Elections Act in its section 61(3) prescribes the standard of proof to be on a balance of probabilities. As the Law stands now, the standard of proof in a presidential election petition is that set by the Supreme Court in Kiiza Besigye Versus Museveni (supra) namely:- slightly higher than the balance of probabilities. However, as regards the Parliamentary election petition the standard of proof is that prescribed by Section 61(3) of the Parliamentary Elections Act, namely proof of the allegations alleged in the petition on a balance of probabilities. The Court in *Toolit Simon Akecha Versus Oulanyah Jacob L'Okori, (supra),* while citing *Paul Mwiru Versus Hon. Igeme Nathan Nabeta Court ofAppeal Election Petition Appeal No. 2 of2011* held that it was wrong for the courts to rely on the authority of *Kiiza Besigye Versus Museveni* when trying Parliamentary or other Election Petitions which was no longer applicable to election matters filed under the Parliamentary Elections Act.

We therefore find the trial Judge applied a standard of proof that was higher than that provided for under the relevant law, in reaching his decision.

**²⁵** This ground of appeal is therefore allowed.

**\5**

**c**

As a result, in reviewing the evidence and the materials that were presented at trial, we shall ourselves as the Court of Appeal of first instance, which also under the law is the final one in an election appeal for Parliament, therefore consider the burden of proof upon the petitioner as

being on a balance of probabilities pursuant to section 61(3) of the Parliamentary Elections Act (17 of 2005). We shall determine whether or not the appellant, as petitioner, satisfied that standard of proof.

## ISSUE 1.

**-5**

**10**

**15**

**20**

**25**

*Whether the learned trial Judge erred in law and fact by holding that the 1st respondent was possessed with the minimum academic qualifications for the nomination and election ofa Member ofParliament*

In arguing this issue, counsel for the appellant submitted that the 1st respondent had gained entry to secondary school education using qualifications that did not belong to her and had also joined Kibuli Teachers' Training College using qualifications that were not hers. Counsel contended that although there was no law that required the 1st respondent to possess a Primary Leaving Examinations (PLE) before joining secondary school, once she led evidence at the trial Court to show that it was on the basis of the said qualification that she joined secondary education, then she brought herself within the ambit of the law on fraud, and the qualifications so submitted had to be investigated by court.

Counsel further submitted that upon the trial Judge finding that the discrepancies in the names used by the 1st respondent at different levels of education raised strong suspicion, the burden of proof then shifted to the 1st respondent to prove that the qualifications actually belonged to her. In that regard, the trial Judge erred when he held that even then, the appellant still had the burden to prove that the academic qualifications were not authentic. Counsel relied on *Balingilira Abdui Nakendo*

**i**

*Versus Patrick Mwondha, Election Petition Appeal No,!® of 2QO7,* (Supreme Court) for the above submission.

**5**

**10**

**15**

**I**

Counsel was of the view that the 1st respondent had failed to discharge the burden of proving that the academic qualifications in question actually belonged to her. In that regard, the 1st respondent's Teacher Training Certificate was without basis or was obtained through impersonation or identity fraud.

In reply, counsel for the respondents submitted that the burden of proof could never shift at any one time. It was the evidential burden of proof that could possibly shift after the appellant had established a prima facie case. Counsel also relied on Balingilira *Abdul Nakendo Versus Patrick Mwondha, (Supra)* to support his submission. He contended that in the present case, it was the appellant's obligation to prove that the academic documents presented by the 1st respondent were not authentic.

**20 25** Counsel for the respondents further contended that the Verification Statement from UNEB, which was relied upon and submitted to the lower Court by the appellant was not admissible in evidence considering that the appellant was not the author of the document. Further, that there was a Statutory Declaration on record which explained the reason for the discrepancies in the 1st respondent's name on different academic documents.

We have carefully considered the evidence adduced by the parties at trial and the submissions of counsel on either side.

ItIs not in dispute that the ¹st respondents different academic documents presented before the National Council for Higher Education prior to her nomination and election had discrepancies in regard to her name. The Verification Statement from Uganda National Examinations Board (UNEB), which was relied upon by the appellant reflects the name Sekindi Isa as opposed to Sekindi Aisha which apparently is the appellants true name. The 1st respondent blamed the above discrepancy on her Headmaster who filled in her forms during registration at primary level.

**15** The trial Judge made a finding that the anomalies stated above raised strong suspicion as to the identity of the person holding the names. However, while relying on *Col. Kizza Besigye Versus Museveni, Supreme Court Election Petition Appeal No.l of 2001,* the trial Judge further made a finding that the burden of proof remained on the appellant to show that the explanation given by the 1st respondent was false/ not true. He stated as follows:

**20** *"In the instant case, the burden therefore fell on the petitioner to show that the explanation given by the 1st respondent as to why the P.7 name was registered as Isa Sekindi was false. She could have produced ^a Sekindi Isa, if he existed, to show that the names belonged to someone else. The petitioner also had the option of producing other evidence like the headmaster or class mates who could have helped the court to resolve any doubts as to names. That burden to prove that there was an Isa Sekindi, who is not the petitioner, in Kyato Primary School, has not been discharged".*


**I**

**25**

**■L**

**5** **15 ⁵ -** The burden of proof lies with the petitioner/ appellant herein, considering j the law that he who alleges must prove. (See Section ¹⁰¹ of the Evidence Act). However, Section 106 of the Evidence Act also provides that when ^a fact is especially within the knowledge of any person, the burden of proving that fact is upon that person. To that extent, we are of the opinion that the moment the trial Judge formed the view that later led to a finding that the anomalies in the documents raised suspicion, the burden shifted to the 1st respondent to show that the qualifications in question were genuine and valid and actually belonged to her. In *Electors! Commission snd 3 Others Versus Chelimo Meison Kaprokuto, Court ofAppeal Election Petition Appea! No.33 of 2011,* the Court, while citing *Ealingiiira Abdul Nakendo Versus Patrick Mwondha, (supra)* stated as follows;

> *"In this petition, however, the burden ofprooffor the overall election petition fell to the respondent. As learned Counsel for the respondent correctly stated, "the import ofArticle 80 of the Constitution is that the duty to produce valid certificates to the electoral authority lies with the intending candidates for election. Where the authenticity of those Certificates is questioned, it can only be his burden to show that he has authentic certificates" - Abdul Balingira (supra). This is consistent with section 101 ofthe Evidence Act (Cap 6) which states, ... "In civil proceedings when any fact is especially within the knowledge of any person, the burden of proving that fact is upon thatperson." Therefore as to the issue of whether the 3^d appellant is qualified, the burden lies with the 3^d appellant to offer proof that he has in fact completed 'A'Level or its equivalent'.*


**20**

**25**

*c*

**10**

We, therefore, find that the trial Judge erred in finding that the burden of proving that the 1st respondent held valid academic qualifications remained upon the appellant. Once the appellant succeeded to bring evidence that raised doubt in the eyes of Court as to the genuiness of the respondent's academic qualifications, then the burden shifted to the 1st respondent to prove that she had actually completed Primary 7 and that the examination results actually belonged to her.

**.' -**

**10**

**15**

**20**

**25**

It is necessary to resolve whether the ¹st respondent discharged that burden. The position of the law at that time (1984) was that at the time when the 1st respondent apparently joined secondary education, there was no requirement of law that she ought to have been in possession of PLE qualifications for her to join secondary education. (See *Butime Tom Versus Muhumuza David andAnother, High CourtElection Petition No.02 of2011* and Court of Appeal Election Appeal No. ¹¹ of 2011). It is only with the enactment of the Education of (Pre-primary and Post-Primary) Act 13 of 2008 that possession of PLE qualifications became a pre-requisite to pursue secondary education.

In that regard, we do not accept the submission of counsel for the appellant that if at all the 1st respondent did not possess the PLE qualifications, then her subsequent secondary school and teachers training qualifications were baseless and of no relevance. Although the 1st respondent did not prove that she held the PLE qualification, it did not have any bearing on her entry into secondary education at that material time. It is the Secondary School qualification that formed the basis for her

subsequent entry in Kibuli Teachers Training College and the Institute of Teacher Education, Kyambogo.

Accordingly given the position of the law as it was before 2008, the 1st respondent's lack of Primary Leaving Certificate, whether proved or not proved, cannot form the basis of challenging the subsequent academic qualifications that the 1st respondent acquired and formed the basis of her being nominated as a Member of Parliament.

**10**

" " - **•5 '**

**15**

It is apparent that there were some discrepancies in the names appearing on the 1st respondent's Uganda Certificate of Education and those on the Grade 111 Teachers Certificate issued by the Institute of Teachers Education Kyambogo. While the Grade 111 Teachers Certificate bears the name Sekindi Aisha, the Uganda Certificate of Education bears the name Sekindi Ayisa. We reiterate the position that the burden shifted to the 1st respondent to prove that the qualifications were actually authentic and that they belonged to her.

**20 25** The 1st respondent's explanation in her Statutory Declaration in Verification of names and also in her other evidence at trial was that during her secondary education at Kaddugala Senior Secondary School, her name was spelt as 'Ayisa' instead of 'Aisha'. However, upon joining Kibuli Teachers College, her name was corrected to 'Aisha' upon the insistence of the tutors at the said College.

We accept the finding of the trial Court that the above evidence by the 1st respondent was satisfactory. We are convinced that 'Sekindi Ayisa' and 'Sekindi Aisha' is one and the same person. We have taken into


**I**

**l**

**I**

**I**

**\5 "** consideration the appellant's evidence that the appellant's signature did not appear on the signing sheet of persons who picked their Certificates from Kaddugala Secondary School. However, we find that this alone would not amount to sufficient evidence considering that there was no requirement under the law that the owner of the certificate had to personally pick his/her academic documents from the said school. Indeed on the very signing sheet that was exhibited (P.53 of the Record) one person picked the certificates for three people numbers 5: Kamulegeya, 6: Nkalubo and 7: Nampinge R. The first respondent never claimed to have picked her certificate in person. No evidence was adduced that she did.

**15** We are therefore not persuaded by the evidence put forward by the appellant that the 1st respondent was not possessed with the minimum academic qualifications for the nomination and election as a Member of Parliament in the 2016 general elections.

This issue is therefore answered in the negative.

**20**

**10**

## ISSUE 2.

*Whether the learned trial Judge erred when he held that National Council for Higher Education duly and lawfully equated the academic qualifications ofthe ¹st respondent.*

**25** The gist of the complaint in this issue is that the 1st respondent was not possessed of a valid Certificate of Equivalence from National Council for Higher Education as was required by law.

**^> -v** Article 80 of the Constitution lays down the qualifications and disqualifications for a person to become a Member of Parliament. Under Article 80(1) (c), it is provided that:

**. '^V**

**.'.5**

*s •* ^O

**c**

**15**

**20**

*"(1) ^A person is qualified to be ^a Member of Parliament if that person-*

**10** *(c) has completed a minimum formal education ofAdvanced Level standard or its equivalent which shall be established in a manner and at ^a time prescribed by Parliament by law."*

The above is reiterated in section 4 of the Parliamentary Elections Act, 2005, that provides that a person is qualified to be a Member of Parliament if that person has completed ^a minimum formal education of Advanced Level standard or its equivalent. Under section 4(6), it is provided that:

> *"A person required to establish his or her qualifications under subsection (5) shall do so by the production ofa certificate issued to him or her by the National Council for Higher Education in consultation with the Uganda National Examinations Board'.*

In the present case, it was the case for the appellant that the 1st respondent did not possess a valid Certificate issued by the National Council for Higher Education as required under section 4(6) of the Parliamentary Elections Act.

**25** Learned Counsel, Medard Segona Lubega, submitted that the process of equating provided for under section 4(6) of the Parliamentary Elections Act was a very serious exercise and was the only way the 2nd respondent could satisfy itself that the 1st respondent had met the constitutional academic

**15**

-5 - threshold. It was his submission that in the said process, it had to be - proved that:

**(1)** The candidate had made an application for equating.

- (2) The candidate had paid the equating fees. - (3) The Uganda National Examinations Board (UNEB) had been consulted before a position could be reached by National Council for Higher Education (NCHE), - (4) And that a fresh equating process was undertaken before any certificate of equivalence could be issued. Counsel contended that ail the above processes were not complied with in the present case.

It was **20 25** Counsel's contention that the 1st respondent never filed an application for equating of her academic qualifications for the elections held in 2016. Further, that the letter written by the National Resistance Movement (NRM) Electoral Commission to NCHE was a general letter requesting for a verification of the documents and not an application for equating. Further still, that there was no evidence on record to show that fees for the equating process had ever been paid. It was counsel's contention that the non-payment of fees pointed to the conclusion that no equating was ever undertaken considering that the process could not be undertaken without the payment of the fees. Counsel criticized the trial Court's finding that this fact was not pleaded considering that the appellant had in her pleadings generally challenged the lawfulness of the entire equating process.

**16** ,0

I I

**i**

**io**

**, •• \***

**15**

**.'5 10 15** Counsel also contended that from the evidence, the consultation with UNEB had not been carried out before the issuing to the 1st respondent the Certificate of Equivalence in 2015. While the trial Judge had made reference to the Verification Form by NCHE in forming the opinion that UNEB was consulted, counsel contended that the said Form simply stated that consultation had been done but no letters constituting the alleged consultation were on record. Further, that the letter from UNEB elated 8th October, 2015, did not prove that consultation had been done; it was a confirmation that at the time NCHE wrote to UNEB, a decision had already been reached and UNEB just confirmed in agreement. Counsel relied on *Pau! Mwiru Versus Hon. Igeme Nathan Nabeta and 2 Ors (supra)* and submitted that UNEB could not merely concur but had to form an integral part of the equating process.

**C.**

**1**

**20 25 ^I** It was counsel for the appellant's further submission that while the law required a fresh equating process to be carried out at every cycle of general elections, no such equating was carried out before the Certificate of Equivalence was issued for the 2016 general elections. Counsel cited *Pau! Mwiru Versus Hon. 1'geme /Nathan Nabeta (Supra)* for the above position of the law and further submitted that the rationale for the above was that there could be changes in the law or guidelines in relation to the equating process. For that reason, NCHE had the obligation of equating the 1st respondent's academic qualifications afresh and to issue ^a fresh Certificate thereof, which was not done in the present case for the 2016 elections. Counsel then concluded that the 1st respondent was not possessed with a valid Certificate of Equivalence from NCHE as required by

**z**

**i**

law at the time she was nominated to stand as a Member of Parliament for the 2016 elections.

**5**

**10**

**15**

**20**

**25**

In reply, counsel for the 1st respondent made reference to the letter from the NRM dated 14th July, 2015, addressed to NCHE, and submitted that the same amounted to an application for equating and verification of documents. Counsel contended that as far back as 14th July, 2015, NRM had applied for verification of its candidates, the 1st respondent inclusive. With regard to the allegation of non-payment of the equating fees, counsel submitted that this fact was not pleaded and could not rightly be raised by the appellant since the 1st respondent had not anticipated such a matter to be raised and as such she had not adduced any evidence in answer to the allegation made of non-payment of fees. Counsel cited Section 4(9) of the Parliamentary Elections Act which provides as follows:

> "A certificate issued by National Council for Higher Education under Subsection (6) shall be sufficient in respect of any election for which the same qualification is required."

In view of the above provision, counsel contended that where a candidate obtained a Certificate of Equivalence, it was not necessary to reapply and get another certificate every time they intended to contest considering that the certificate issued initially would be sufficient to qualify the said candidate. The decision in *Pau/ Mwiru Versus Hon. Igeme Hatban Habeta (Supra)* did not specifically deal with this particular issue in question. Counsel invited this Court to disregard the said Paul Mwiru decision on this aspect of the case. He also however submitted that, in the present case, the 1st respondent had obtained a fresh Certificate of

equivalence and there was a letter on record from UNEB and a confirmation from NCHE that consultation with UNEB had been carried out.

**5-**

**10**

**25**

Counsel further contended that there was no given format for how consultations between UNEB and NCHE would be carried out. In counsel's view, ^a meeting or correspondence between the two would be sufficient.' It was his submission that UNEB was consulted by NCHE before the issuing of the Certificate of Equivalence to the appellant for the purposes of the 2016 elections.

**15 20** From the evidence of the parties at trial and the submissions of counsel before this Court, the facts surrounding the present issue are that on 4th October, 2006, the 1st respondent who was a holder of a Grade 111 Teachers Certificate, applied to NCHE to be issued with a Certificate of Equivalence. By letter dated 10th October, 2006, NCHE wrote to the Secretary of UNEB requesting for confirmation that the 1st respondent had been awarded with a Uganda Certificate of Education by UNEB. On the 26th September, 2006, UNEB confirmed that indeed the 1st respondent had been awarded the Uganda Certificate of Education. NCHE subsequently issued the 1st respondent with a Certificate of Equivalence.

In finding that the above did not amount to consultation as envisaged by law, the trial Judge held as follows:

*"From S. 4(6) ofthe PEA itis dear UNEB must be consulted. The law, as far as I can establish has not laid out what form the consultation must take, In Paul Mwiru (supra) the Court ofAppeal held that,*


*'...the consultation must be actual... The only inquiry which the 3^d respondent (NCHE) made with regard to the ¹st respondent's academic papers concerned the authenticity ofhis 'O' Level certificate. UNEB replied to that query. It stated that the O' level certificate was genuine. This inquiry in my view did not satisfy the requirements of the law. There is no other evidence showing the participation of UNEB in the equating exercise'*

*From this holding, by which the Court is bound, it is dear that the consultation must show the participation of UNEB, which is the decisive factor, before the Certificate ofEquivalence is issued.*

*I find that although the NCHE issued ^a Certificate of Equivalence in respect of the ¹st respondent's application in 2006, UNEB had clearly not been consulted"*

**20** We accept the finding of the trial Judge in that regard. It is apparent that no consultation had been done with UNEB before NCHE issued the Certificate of Equivalence in 2006.

However, on the 14th July, 2015, the Chairman of the National Resistance Movement (NRM) wrote to the Executive Director of NCHE seeking for verification of NRM's candidate's documents. The letter in part reads as follows:

**15**

**25**

**10**

**•**

**5"** "RE: $N$ $R$ $M$ PARTY NOMINATIONS AND **VERIFICATION** $OF$ DOCUMENTS - 2015

The above subject matter refers. Our NRM aspirants are required to certify documents and we request that you give my office an official communication with regards to verification or certification of equivalent qualifications.

In case you verified a candidate in 2010 or earlier please give us a letter to that effect if you still feel that what you did then is still relevant".

On the 7^th October, 2015, following the above request from NRM, the Director of NCHE completed a Verification Form for politicians indicating $15$ the $1^{\rm st}$ respondent as the applicant and giving an assessment of the $1^{\rm st}$ respondent's academic qualifications. The verifying officer made the following remarks:

"The applicant was previously issued with a certificate of formal completion of A-level or its equivalent, she has a Uganda Certificate of Education and a Grade 111 Teachers Certificate awarded by the Institute of Teacher Education Kyambogo (ITEK). UNEB was the examining body. The two bodies confirmed authenticity of the qualifications. At that time, no consultation with UNEB had been done, but has been done now. In accordance with the Court of Appeal Decision (Paul Mwiru Vs Igeme Nathan Nabeta and others) that requires a fresh Certificate of Equivalent to be issued for every election, the candidate applied for a fresh certificate."


$\overline{25}$

$20$

Also, by letter dated 8th October, 2015, UNEB's Executive Director wrote to NCHE setting out the 1st respondent's academic qualifications, and also stating as follows;

**-5**

**10**

**25**

*"Reference is made to your letter dated 07th October 2015 with reference number NCHE/GR/QE/19 on the above subject. Uganda National Examinations Board (UNEB) does concur with your position that the candidates listed below qualify for the certificate of forma! completion of '/I 'Level or its equivalent."*

**15** However, according to the evidence of Prof Opuda Asibo John, who was the Executive Director of NCHE, when the responsible Committee of NCHE met in 2015, it was found that there were no changes from the time the initial Certificate of Equivalence was issued in 2006. Basing on the above and coupled with the certification from UNEB, the Committee authorized a reprint of a new Certificate of Equivalence.

**20** It was the case for appellant that the above steps fell short of the requirements laid out under the law for the issuance of the Certificate of Equivalence.

The first complaint was in regard to alleged non-payment of fees for the equating process. In counsel's view, the non-payment of fees pointed to the conclusion that no equating process was undertaken at all. We, however, agree with the finding of the trial Court that this issue was not canvassed in the pleadings. It was not put to the ¹st respondent during her examination and was only raised to the last witness who was a witness that had been invited by Court. We find that this would amount to taking

zUr

**!**

the respondents by surprise, which would prejudice them on their right to a fair hearing. *(See Interfreight Forwarders Ltd Versus East Africa DevelopmentBank, Supreme Court CivilAppeal No.33 of2011).*

We have taken into consideration the argument raised by Counsel for the appellant that the appellant had generally criticized the whole process of equating, which would essentially include the non-payment of fees. However, we find that the above was a general allegation which did not give the 1st respondent an opportunity to specifically answer to the allegation of non-payment of fees. We thus reject the appellant's submission on non-payment of fees by reason thereof.

**15** With regard to the complaint that UNEB was never consulted before NCHE issued the Certificate of Equivalence, the position of the law is that although NCHE is the entity that issues the Certificate of Equivalence, it must do so in consultation with UNEB. In defining what consultation amounts to, the Court in *Paul Mwiru Versus Hon. Igeme Nathan Nabeta (Supra),* held as follows:

**20**

**.15**

- ¹

**10**

**k**

"The word consultation as was rightly submitted by both counsel is not defined in the Act. The modalities it should take is also not specified. In the case of *Rollo & another vs Minister of Town and Country Planning [1947)2 ALL 488* Mr. Wakida cited, it was held:

**25**

*'In considering whether or not there has been consultation within S.l(l) of the Act, between the Minister and local authorities it is necessary to look at the substance and reality of what occurred and*


**i**

**j!**

**i**

*to determine whether the local authorities have had proper opportunity ofexpressing their views and rendering advice."*

*, ' 5-*

**25**

*10* **15 20 ⁱ** From the letter dated 8th October, 2016, from UNEB, excerpts of which were reproduced above, it is evident that NCHE had written to UNEB with regard to the questioning of issuing the 1st respondent with a Certificate of Equivalence. UNEB then indicated in the said letter that it was in agreement with NCHE's position that the 1st respondent qualified for the certificate of formal completion of W Level or its equivalent. In our view, UNEB had been given an opportunity to give its opinion on the subject, and it chose to agree with the opinion held by NCHE. The requirement to consult with UNEB did not restrain NCHE from having an opinion of its own. The Certificate of Equivalence was issued on 28th October, 2015, which was subsequent to the communication from UNEB. It is apparent that there was correspondence between NCHE and UNEB on the subject. In our opinion, in NCHE issuing the Certificate of Equivalence, it did so in consultation with UNEB, as is prescribed by law.

It was also the appellant's case that no fresh equating process was conducted prior to the issuing of the Certificate of Equivalence to the 1st respondent. In *Pau! Mwiru Versus Hon. Igerne Nathan Nabeta (Supra)* Court held that equating of academic papers for purposes of elections was not a once in a lifetime exercise, unless the law was amended. The certificate issued would therefore not be valid for future elections. It is not in dispute that ^a fresh Certificate of Equivalence was issued to the 1st respondent for the 2016 general elections. The appellant

however contended that the process prior to the issuing of the said Certificate was not conducted afresh.

From the evidence of Prof. Asibo, the Committee in charge of verification at NCHE sat and considered the 1st respondents academic qualifications which had not changed since 2006. Then there was consultation with UNEB, prior to the issuing of the Certificate of Equivalence. We thus find that all the vital steps were taken prior to the issuing of the Certificate. If there were any lapses, they did not affect the validity of the process. We find that whether the Certificate of Equivalence was a reprint or not, it was a fresh Certificate and different from the one issued in 2006. It was also issued after compliance with all due processes.

*\Nq,* accordingly, uphold the trial Judge's decision that at the time of her nomination, the 1st respondent was possessed of a valid Certificate of Equivalence issued by NCHE.

Issue 2 is therefore answered in the affirmative.

**20** ISSUE 3.

**»V**

**.5-**

**10**

**15**

**(**

*Whether the learned trial Judge erred in law and fact when he held that the ¹st respondent was notguilty ofbribery.*

**25** Learned Counsel for the appellant submitted that there was no evidence that the 1st respondent had been in the habit of making donations before the campaign period. She started to do so when the campaigns started in preparation for the general elections. It is then that the ¹st respondent began the habit of accompanying her donations with requests to be voted for, which showed her intention to tilt the voting pattern in her favor.

*i*

Counsel submitted that in evaluating the evidence before him, the trial Judge took the stand that the appellant had the burden of proving the case against the respondents higher than on the balance of probabilities. Further, that in his evaluation of evidence, while the trial Judge pointed out evasiveness on some witnesses, he did not indicate in his judgment which questions had been evaded or elaborate on instances in the trial where the witnesses had appeared shaky.

**S'**

**10**

**15 20 25** It was counsel's further contention that the ¹st respondent had merely answered to the allegations of bribery generally without any specifics. In reference to the allegation that the 1st respondent had bribed voters at ^a football tournament by awarding the participants with gifts/prizes of money and goats, counsel contended that the 1st respondent simply stated that together with other leaders, she had been asked to hand over prizes which had been provided by the organizers of the tournament. In counsel's view, the above general denial lessened the appellant's burden in proving the allegations of bribery against the 1st respondent. In any case, the 1st respondent had not proved that she was a leader in the community so as to justify that she had been requested as such a leader together with other leaders to give out the prizes on behalf of the organizers. Counsel further submitted that while Isma Lutwama (DW3) had tried to give an account on how he had arranged for the availability of the gifts at the tournament, the other witnesses were not aware of the source of the prizes. Further, that the said witness did not produce documentation to prove that he had actually purchased the prizes.

Counsel invited this Court to find that the trial Judge erred in finding that bribery committed by the 1st respondent had not been proved to the satisfaction of court.

-s

**10**

In reply, Learned Counsel for the respondents submitted that considering that the 1st respondent had been a Resident District Commissioner for about 10 years, she had been a leader, contrary to the submission by counsel for the appellant. Further that the evidence of Isma Lutwama and Semanda Ssenyonga clearly explained the source of the gifts given at the football tournament, and that it was not the 1st respondent who had provided the same.

**15 20 25** With regard to the complaint that the trial Judge failed to justify in his judgment his reference to some witnesses as being evasive, shaky or not credible, counsel submitted that the trial Judge had taken the initiative of even recording in the proceedings such behavior like deliberate refusal to answer questions, evasiveness and delay in answering questions. Counsel made reference to the evidence by the petitioner's witnesses and submitted that the trial Judge was right in not believing the said witnesses considering that their evidence was filled with grave contradictions. Counsel relied on **Masiko Winfred Komuhangi Versus** Babihuga **Winnie: Court of Appeal Election Petition Appeal No.9 of 2002,** for the proposition that before court could give judgment to a petitioner, there must be cogent evidence and that cogent evidence ought not to be contradictory in nature. In counsel's view, the appellant had failed to produce cogent evidence to prove the alleged bribery and as such the trial Judge rightly held that the same had not been proved.


I

**i**

With regard to the allegation that the 1st respondent had given out basins and money at a campaign rally, counsel submitted that the evidence by the appellant's witnesses was contradictory as to the actual date when the event took place. That while in their affidavits witnesses indicated that the rally took place on the 23rd of January, 2016; during cross examination, however, some of them said the date was 21st January while the rest said it was on the 22nd January, yet the affidavits had been sworn 2 to 3 days before the court hearing. It was, therefore, difficult to tell the day when the alleged bribery actually took place.

**15** Counsel further contended that the affidavits sworn by some of the appellant's witnesses were not valid. Counsel submitted that some of the witnesses testified that it was counsel for the appellant who administered the oath, others said that it was the appellant who had taken to them the affidavits at their bodaboda stage, and others could not remember the person who had administered the oath. In counsel's view, the trial Judge rightly dismissed the said affidavits.

**20**

**25**

**-5 -**

*(*

**10**

We have carefully considered the evidence on record, the submissions of counsel for either side or the authorities relied upon, as well as the law.

Section 61(l)(c) of the Parliamentary Elections Act provides that the election of a Member of Parliament shall be set aside if proved to the satisfaction of court that an illegal practice or other offence under the Act was committed in connection with the election by the candidate or with his or her knowledge and consent or approval. Bribery is one of the illegal practices provided for under Section 68 (1) of the same Act. It provides as follows:

**^A A**

**I**

*"A person who, either before or during an election with intent, either directly or indirectly to influence another person to vote or to refrain from voting for any candidate, gives or provides or causes to be given or provided any money, gift or other consideration to that other person, commits the offence ofbribery and is liable on conviction to a fine not exceeding seventy two currency points or imprisonment not exceeding three years or botti'.*

**. 5-**

**10**

**25**

In *Kirunda Kivejinja Versus Katuntu Abdul, Court of Appeal Election Petition Appeal No.24 of2006,* in regard to what constitutes bribery, the court held that:

**15 20** *"In my view the offence of bribery would be complete the moment there was a gift, money or other consideration provided by one person to another who is a voter and it is known that the gift, money or other consideration is for purposes ofbribing voters. It is common knowledge that every village has registered voters because every village is a polling station. A donation to a village in a constituency by a candidate who is seeking votes would be targeting voters in that village and those who can influence them to vot'd'.*

In the present case, the appellant raised allegations of several instances of bribery of voters by the 1st respondent through giving out gifts of money, goats, basins and soap during the campaign period.

In addressing this ground of appeal, we are alive to the duty of this Court to re-appraise the evidence adduced at trial and to draw inferences therefrom, bearing in mind that we did not have the opportunity to observe

the demeanor of witnesses at the trial. *{See Fr. Narsensio Begumisa Versus eric Tibebaga, Supreme Court CivilAppeal No.2.7 of2QC2).*

We shall begin with the allegations that the 1st respondent at a football tournament held at Nabutongwa sub-county gave out gifts of a goat and money to voters with the intention of inducing them to vote for her.

- **lb** It was not in dispute that the said tournament indeed took place and the 1st respondent was in attendance. The evidence of the appellant's witnesses was that the 1st respondent was the guest of honour at the said event and after the match; she made a speech and thereafter awarded prizes of a goat, and money which she picked from her hand bag. - **15 20** The 1st respondent denied the above allegations and her evidence was that she gave a goat to the team that took the second position and that it was not her who provided the said gift. She denied the allegation that she handed over any cash and also testified that she was not the guest of honour at the tournament. In evaluating the evidence adduced for the appellant, the trial Judge summarized the testimonies by the witnesses as follows:

*"PW2 Kaweesa Michael, a voter, attended the match and states that he saw the 1st respondent give goats and 50,000/-(fifty thousand shillings) to each team. He also stated in cross examination that his affidavit was written by Counsel for the petitioner. The record shows that the affidavit was commissioned by one Kamya Stuart. The question then arises what weight can court put to evidence in such an affidavit? He said he did not hear Hon. Sewungu make a speech*

**I**

**I**

**25**

e. *but immediately after states he heard his speech. I noted the demeanor ofthis witness when questioned in detail about a basin he states was given to him by the 1st respondent after the match. He appeared shaky. I decided that his conduct in court rendered his evidence suspect.*

*PW3, Kisolo Hamidu was a councillor who arrived for the match in the company ofthe area MP, Hon Joseph Sewungu. In his affidavit it is stated that Sekindi gave out two goats and 50,000/-to each team. He also said all the invited politicians spoke. However, in cross examination he testified that Sewungu gave out a goat to each team. When pressed on whether it was proper for Sewungu to give outgifts during campaigns he stated that Sewungu had not been sued and has no case to answer in this court.*

*PW4, Serunkuma Joseph was an elderly voter who had attended the match. It was his evidence that he saw Sekindi give the winners ^a goat and money. She handed the first to Buseke and then another to KaIokero. PW4 says he was given 2,000/- by Sekindi. PW4 told the Court that he was a poor man for sale and was available to go with whoever offered him money. He told the Court he sold his vote and had been paid to swear his affidavit emphatically stating a poor man is for sale. Later in his re-examination he retracted his statement that he was paid to sign the affidavit, clearly this was a witness with diminished credibility.*

*Senkubuge Leonard was PW5 and attended the match and said he saw Sekindi give out the prizes ofgoat and 50,000/- to each team.*

**i**

**20**

**25**

**15**

**. .5**

**10**

*That she was the guest of honour although Hon. Sewungu also spoke. Ofimport however for PW5's evidence is that he informed the court that the affidavit in court was never read back to him. He repeated this in re-examination. Ihave therefore no reason to believe that he can confirm the affidavit to be truthful. This court can therefore attach only minimum value to his evidence.*

*PW6 was Mutebi Charles who was contesting for the position of councillor but also served as master of ceremonies at the football match. He stated in examination in chiefthatAisha Sekindi gave each of the teams 50,000/- (fifty thousand shillings) and a goat. He saw herpick the money from her handbag. In cross examination however he told court that he did not see from where the money/envelopes came from. He also stated that Sewungu gave out a goat. He admitted that Paragraph 6 of his affidavit in which he stated that Sekindi gave out both goats and the money was not truthful. He also stated that several other prizes including mosquito nets, basins and envelopes were given out by several others present at the match. Mutebi stated that apart from the two teams (1st and 2^d place) he did notsee any other team given a moneyprize.*

*Senoga Alex, PW13 averred that he was the captain ofKikaabya LC1 team which came third in the tournament. He stated that on 25th of December 2015 he attended the final match between Kalokero and Buseke and he saw Aisha Sekindi give each team 50,000/- and a goat. It is his testimony that she picked the two envelopes from her handbag before handing them over. She then picked another*

**15**

**5-**

**10**

**25**

**^I 20**

*envelope of20,000/- and handed it to him as the captain of the 3^d placed team. Senoga states that Sekindi then knelt down to beg for their votes on the l&^h of February 2016. In cross examination he stated that he did not see Hon. Sewungu give anything or any gift to any team. He goes on to state that the affidavit he deposed was administered to him in the presence of the petitioner, Aisha Waiiggo, by a man in Masaka town. His affidavit which is on the record however shows that it was sworn before ^a commissioner for oaths called Matovu John and bears a certificate of translation by one Katende John. There should have been two men present. Clearly therefore this affidavit is suspect".*

**-¹ 'r**

**5**

**/**

**10**

**15**

**20**

**25**

One of the areas of complaint raised before this Court is that the trial Judge referred to the above witnesses as being shaky, and/or evasive, without giving any details and without the said comments having been included in the trial Judge's record of proceedings. As already stated above, in re- evaluating evidence, this court is mindful that it did not have the opportunity to observe the demeanor of the witnesses at the trial. In *Kifamunte Henry Versus Uganda, Supreme Court Criminal Appeal Ho.10 of 1997,* the court held that where ^a situation arises where the trial Judge has to determine amongst a number of witnesses, who should be believed, and the question turns on manner and demeanor, the appellate court must be guided by the impressions made on the trial Judge who saw the witnesses testify in the witness box.

We have perused the record of court proceedings, including those of the appellant's witnesses during cross examination. We find that indeed the

**i**

**i i**

> **I I**

**5- 10 15 20** trial Judge endeavored to record the conduct of the witnesses in answering questions. He used phrases such as "after substantial hesitation", "witness is evasive", "demeanor of witness is evasive", "demeanor of the witness is **shaky and uncertain" and "long** pauses before answering" (See PW17, PW16, and PW12). The mode in which ^a witness answers questions would also reflect the conduct of the witness without the record specifically stating so. The trial Judge had occasion to observe these witnesses as they testified. Although the court in Kifamimte's case (supra) relying on Pandya vs R [1957] EA 33 among others, stated that there may be other circumstances, quite apart from manner and demeanour, which may show whether a statement of a witness is credible or not, which may warrant an appellate court in differing from the trial Judge even on a question of fact turning on the credibility of witness whom the appellate court has not seen, we don't find such circumstances exist in this case. The trial Judge's consequent findings based on his observations of the said witnesses' as to their respective conduct and demeanour were well founded. We find no reason to differ from the trial Judge in his analysis and conclusion as regards the conduct and demeanor of these witnesses.

**c**

**!**

**25 30** The appellant's case in support of the allegation that the 1st respondent bribed voters at a football tournament by giving out gifts and money at the end of the match was contained in the affidavits of Kawesa Michael (PW2), Kisolo Hamidu (PW3), Serunkuma Joseph (PW4), Senkubuge Leonard (PW5, Mutebi Charles (PW6), Matovu Hussein (PW12) and Senoga Alex (PW13). We have perused the record and we find that the trial Judge gave a true account of their evidence. In brief, it was the evidence of those

witnesses that on 25th December, 2016, at a football tournament, the 1st respondent gave the winning team a goat and also gave out money to the participating football teams.

**,V.\**

**10 15 20 25** On the other hand, the 1st respondent's evidence was that she was merely invited as a guest at the football match together with other politicians including the area Member of Parliament Hon. Joseph Sewungu, who was the guest of honour. Contrary to the allegations of the appellant, the 1st respondent insisted that she did not give out money to any teams, but was just requested by the organizers of the tournament to hand over a goat to the winning team. Lutwama Isma (DW3) testified that he was the chairperson of the Committee that organized this football tournament. He was the one who had donated the goat for the winning team and the 2nd goat was donated by his friend called Semanda Frank. Each participating team in the tournament had according to this witness, (DW3), contributed UGX 20,000= which money was used for acquiring prizes for the tournament. The team was of each L. C. I of the area. The total cash contribution he received this way was Shs. 200,000=. In that regard, according to this witness (DW3), it was not true that the gifts given at the tournament were donated by the 1st respondent. DW4, who was the captain of the winning team also testified that each participating team contributed 20,000/= in the organization of the match.

As to the evidence of the appellant's witnesses on this aspect of the case, we agree with the trial Judge's finding that the same had grave inconsistencies and contradictions and thus less credible in contrast to that of the 1st respondent and her witnesses which was straight forward and

**t.'V7'-**

**i**

**i**

**I I I**

uncontradictory. We therefore find that the trial Judge was right to reject the appellant's evidence and that of her witnesses on this aspect of the case and to accept that of the 1st respondent and her stated witnesses as the credible evidence.

**c**

s

**10** With regard to the allegation that the 1st respondent at a rally held at Bulingo Trading Centre on the 23rd January, 2016, had given out gifts of basins and soap to voters, the appellant led the evidence of Nanono Florence, (PW15), Nakalisa Rebecca (PW14), Namale Jesca (PW16) and Sengabi Baker (PW17).

**15 20 ^I** Nanono Florence (PW15) testified that on the 23rd January, 2016, at a rally held at Bulingo Trading Centre, the 1st respondent, while addressing the public handed two basins to her on the basis that she was a good mobilizer. PW14 and PW16 also gave similar accounts that the 1st respondent had given them gifts of basins and soap on the same day, during and after the rally. PW17 testified that he had also attended the said rally. According to the witness when the 1st respondent started distributing the basins and soap to the people who had attended the rally, he himself refused to take the basin. He explained that it was his wife Namale Jesca who was given a light blue basin which they still have.

**25** However, the trial Judge found that the affidavits sworn by the said witnesses, PW14, PW15, PW16 and PW17, were improper. He held as follows:

> *"The other witnesses from Bulingo who testified were Nakalisa Rebecca PW14, Namale Jesca PW16 and Sengabi Baker PW17. They*

were *all taken as a group to Masaka to swear their affidavits. PW14 like PW15 states that it was Counsel Tebusweke who administered the oath. The affidavits were all extracted from the witnesses as a group; this explains why the averments are virtually identical. Namale told the Court thatparagraph 4 and 7 ofher affidavit were false. This paragraph is replicated in the affidavits of Sengabi, Nanono and Nakalisa. Sengabi Bakar was an aggressive and evasive witness. His wife, Namale, told the Court he was not at the rally but he insisted he was. He struck me as a iiar. Namale was a hesitant; evasive and shaky witness. Idid not believe her testimony.*

**c**

**5**

**10**

*('*

**15 20** *From the foregoing, the evidence ofthese witnesses, PW14 to PW17 were improper. It is notjust ^a matter ofthe procedure used to swear them; the affidavits are themselves fatally defective, Counsel Tebusweka was said to have administered the oath yet the Commissioner indicated on all is one Matovu John. Secondly the certificate of translation states it was done by Katende Simon. It is not dear which of them is the second man mentioned by the deponents"*

The trial Judge made a finding that Section 6 of the Oaths Act had not been followed which made the affidavits fatally defective.

**25** We analyzed the evidence of the said witnesses in cross examination. PW14 testified that it was Counsel Tebusweke who had given her the Bible to take oath. PW15 stated that it was Counsel Tebusweke who had given her the affidavit for signature but that another man had read the contents of the document to her and that upon confirming, she signed the

**37**


**• ^|**

**I ⁱ** i **I i**

document. PW16 testified that it was Counsel Tebusweke who read the document to her but she later changed her statement that it was another man who had read the document to her. PW17 did not testify as to who actually administered to him the Oath.

**10 15** From the above evidence, it is not clear who actually administered the oath to the said witnesses considering that they mostly made reference to Counsel Tebusweke yet he was not indicated on the affidavits as having been the Commissioner of Oaths. We accordingly agree with the finding of the trial Judge that the said affidavits were a nullity for lack of credible evidence to prove that an oath was administered to the deponents of the said affidavits.

According to the evidence of the 1st respondent, on 23rd January, 2016, when it was alleged that she had attended the rally at Bulingo Trading Centre, she did not carry out any campaign as she was attending other functions on the same day. She attached a copy of her diary which indicated that she was at funerals and a wedding.

**20**

**- 5**

We find, like the trial Judge also found, that the account of the events of the day given by the 1st respondent to be more believable while the appellant produced no cogent evidence to support her version as regards this aspect of the case.

**25** In the result, this issue is answered in the negative and the findings of the trial Judge are upheld.


**I**

**I**

**I**

**!**

**I**

**<**

**• I**

y- ISSUES.

**- ^&gt;**

**^7**

**. c •**

*(:*

**10**

**15**

*Whether the learned trial Judge erred in law and fact by failing to evaluate evidence properly and therefore arriving ata wrong conclusion.*

In regard to this issue, counsel for the appellant contended that the trial Judge had not properly evaluated the evidence in regard to the 1st respondent's academic qualifications. The trial Judge had not taken into account that the 1st respondent had not proved that she had attended secondary education at Kadugala Secondary school, nor had she proved that she had passed Primary Leaving Examinations to join Secondary Schools. Further, that the trial Judge had erred in failing to shift the burden of proof to the 1st respondent in regard to her academic qualifications.

Counsel further submitted that in case the 1st respondent had qualifications at all, the same had not been equated in accordance with the law.

As already stated above, the duty of this Court as the 1st appellate Court is to re-appraise the evidence adduced at trial and to draw inferences there from. *See Fr. Narsensio Begumisa Versus Eric Tibebaga, Supreme Court CivilAppeal ilo.17of2002).*

We did re-appraise the relevant evidence that was adduced at trial while dealing with issues, 1, 2, 3 and 4 above and in the course of doing that we also addressed the matters relating to this issue 5. We therefore do not find it necessary to address it afresh.

**25**

**20**

In the result, we uphold the decision and orders of the High Court in regard to grounds 1, 2, 3 and 5 of the appeal and thus dismiss the said grounds of the appeal. We allow ground 4 of the appeal. However we find

**i**

i

that the appellant did not prove her case even on the lower standard of proof of balance of probabilities. Accordingly the appellant's appeal stands dismissed.

As to costs, since the appellant was successful in ground 4 of the appeal, the $1^{st}$ and $2^{nd}$ respondents are awarded 3/4 of the costs of the appeal but are to have full costs of the court below. We so order. $10$

Dated at Kampala this ....... S.............................

Remmy Kasule 15 **JUSTICE OF APPEAL**

**Elizabeth Musoke** 20 **JUSTICE OF APPEAL**

Catherine Bamugemereire 25 **JUSTICE OF APPEAL**

wered

$\int$ 3^rd

$ul$ 2017,

40