Sematiko v Nsegumire and Another (Election Petition Appeal 67 of 2021) [2022] UGCA 322 (23 May 2022)

### **THE REPUBLIC OF UGANDA**

### **IN THE COURT OF APPEAL OF UGANDA AT KAMPALA**

## **ELECTION PETITION APPEAL NO.67 OF 2021**

**(Arising from High Court Election Petition No.005 of 2021)**

<sup>5</sup> **SEMATIKO GORDON KATENDE APPELLANT**

#### **VERSUS**

### **1. NSEGUMIRE MUHAMMAD KIBEDI**

**2. ELECTORAL COMMISSION RESPONDENTS JUDGMENT OF COURT CORAM: HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA HON. MR. JUSTICE STEPHEN MUSOTA, JA HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA**

This is an Appeal from the Decision of the Hon. Justice Emmanuel Baguma delivered by email on 22nd day of October, 2021 at the High Court of Uganda at Mubende.

# **Background of the Appeal**

The Appellant and the 1st Respondent were nominated by the 2nd Respondent as candidates in the election for Member of Parliament of Mityana North Constituency held on 14th January 2021. On the 15th January 2021 the 2nd respondent returned and declared the 1st Respondent as the duly elected Member of Parliament for Mityana North Constituency. The 2nd Respondent published the 1st

**io**

the validly elected Member of Respondent in the gazette as Parliament.

The Appellant did not accept the results of the Election and accordingly challenged the election results by filling Election Petition No.005 of 2021 in the High Court of Uganda at Mubende claiming illegal practices of bribery and making false statements concerning the character of the appellant and other offences allegedly committed by the 1st Respondent. In the Petition the Petitioner now Appellant sought the following declarations and orders;

- 10 *1. The 1st Respondent during campaigns and election day personally or with knowledge and consent or approval committed illegal practices of offering bribes to voters for purposes of influencing them to vote for him* - *2. That the 2nd Respondent failed to conduct the election in accordance with the Electoral CommissionAct, the Parliamentary Elections Act and the principles governing afree andfair election which non-compliance affected the results of the election in a substantial manner* - *3. The election of the 1st Respondent as a directly elected Member* - *of Parliament for Mityana North Constituency be annulled, set aside and afresh election be conducted in the constituency.* - 4. *The respondents pay the costs ofthis Petition.*

25 The 1st Respondent filed an Answer to the Petition denying the allegations in the Petition and in opposition to the Petition. The 1st respondent denied committing any acts of bribery and defamation

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against the Petitioner/Appellant as alleged in the Petition. The 1st Respondent further contends that the electoral process was conducted fairly and in compliance with the Laws of Uganda and that he was validly returned and declared as the winner of the elections for the Member of Parliament Mityana North Constituency. In the alternative but without prejudice to the foregoing the 1st Respondent contends that if there was any non-compliance with the electoral laws, such non-compliance did not affect the outcome of the election in a substantial manner.

10 The 1st Respondent did not admit any liability for any of the allegations made in the petition and disputed all of them. The 1st respondent therefore prayed that the Petition be dismissed with costs.

15 The 2nd Respondent also filed an answer to the Petition and contended that no complaint at all ofthe false statements concerning the character of the Petitioner was reported to the Electoral Commission (2nd Respondent) or any relevant authority. Further that no incident of bribery, was reported to the 2nd Respondent by the Petitioner against the 1st Respondent.

20 25 That the Election of the Member of Parliament for Mityana County North Constituency was conducted in accordance with the Constitution, the Electoral Commission Act, the Parliamentary Elections Act, all other relevant enactments and conformed to the principles enshrined therein. The election was free, fair, administered and supervised in an impartial, neutral, efficient, accurate and

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accountable manner. That no illegal practices and/or electoral offences in connection with the said election were reported to have been committed. That all claims to the contrary are mere conjecture and mere assertions born out of misconception of electoral processes of counting, filling of statutory forms, tallying and declaration of results. That the counting of votes announcement and declaration of results were all conducted in accordance with the law. The tallying of the results was based on the outcome announced at the respective polling stations and transmitted to the returning officer.

- 10 The 2nd Respondent also contended that in the alternative but without prejudice to the foregoing, if there were any irregularities or non-compliance with the electoral laws which is denied, such noncompliance or irregularities did not affect the outcome of the election in a substantial manner. - 15 The matter proceeded interparty with each party filing written submissions. Only four issues were framed by the trial court for determination, vide; - *1. Whether the 1st Respondent committed any electoral offence of bribery during the election period?* - *2. Whether the 1st Respondent committed acts of defamation against the Petitioner during the election period?* - *3. Whether the affidavits sworn by Lukabwe Fred Kisiriko in support ofthe Petitionfiled on 20th August 2021, should be struck offthe record?* - 25 *4. What remedies are available to the parties?*

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The trial Judge answered all issues in favor of the 1st and 2nd Respondents. The trial Court found that the Petitioner's claims of bribery and defamation were not supported with cogent evidence sufficient to annul an election. In the final result the trial Judge made

5 the following orders;

*a) The Petition is hereby dismissed.*

**b)** *Costs ofthe Petition are awarded to the Respondents.*

10 The Appellant (Petitioner at the High Court) was dissatisfied with the Judgment and decree of the High Court of Uganda at Mubende and lodged this Election Petition Appeal.

**The Appeal**

In the Memorandum of Appeal, the appellant raises the following grounds of appeal;

- *1. The learned trial Judge erred in law and fact when he held that the Petitioner failed to prove the offence of bribery to the satisfaction of court and dismissed the Petition.* - *2. The Learned trial Judge erred in law andfact when he held that there was no evidence of acts of defamation adduced by the witnesses to prove the offence of defamation because they did not state out the exact words verbatim.* - *3. The Learned trial Judge erred in law andfact when he held that the defamatory words were recorded in the video and translated version from Luganda to English, was unclear since court could*

*not pick out any defamatory statement about the personal character ofthe petitioner verbatim.*

- *4. The Learned trial Judge erred in law and fact in holding that the Petitioner's evidence on bribery and defamation were not supported by cogent and sufficient evidence to annul on election.* - *5. The learned trial Judge erred in law and fact when he failed to evaluate the evidence on record thereby coming to a wrong conclusion that the Petitionerfailed to prove the offence ofbribery to the satisfaction ofthe Court.* - *6. The Learned Trial Judge erred in law and fact when he failed to evaluate the evidence on record thereby coming to the wrong conclusion that the petitioner failed to prove the offence of defamation to the satisfaction of court.*

The Appellant proposes that this court grants the following orders;

- *a. That this appeal be allowed.* - *b. The 1st and 2nd Respondent be ordered to pay the Appellant costs ofthe Petition in the lower court.* - **c.** *The 1st and 2nd Respondent be ordered to pay the Appellant costs ofthe appeal.*

### <sup>20</sup> **Representations.**

At the hearing of the appeal, Mr. Katumba Chrisestom, appeared for the Appellant. Bautu Ronald appeared for the 1st Respondent and Mr. Musinguzi Geoffrey appeared for the 2nd Respondent.

On 24th March 2022 the Appellant abandoned all the applications in this case and decided to proceed with the appeal. All parties filed written submissions which were adopted and have been considered in determination of the grounds of this appeal.

## <sup>5</sup> **Duty of a Last Appellate Court**

Under S. 66 (3) of the Parliamentary Elections Act it is provided that

*ofthe Court ofAppeal pertaining to parliamentary elections "(3) Notwithstanding S. 6 of The Judicature Act, the decisions petitions shall be final"*

io Therefore, this being a last Appeal it is important that we state the duty of this Court as a last appellate court. The role of this court as a last appellate court is laid down under **Rule 30(1) of the Judicature (Court ofAppeal Rules) Directions** which provides that;

> *"30. Power to reappraise evidence and to take additional evidence.*

> *(1) On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may*—

> *(a) Reappraise the evidence and draw inferences of fact; and*

*(b)*

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This Court is therefore obliged to reappraise the inferences of fact drawn by the trial court.

In the case of **Kifamunte Henry v. Uganda Criminal Appeal No. 10 of 1997** the Supreme Court had this to say on the duty of a first appellate court which is applicable to us, *mutatis mutandis,* as a last appellate court in Election matters;

> *"We agree that on a first appeal, from a conviction by a Judge the appellant is entitled to have the appellate Court's own consideration and views of the evidence as a whole and its own decision thereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding thejudgment appealed from but carefully weighing and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour the appellate Court must be guided by the impressions made on the judge who saw the witnesses. However there may be other circumstances quite apart from the manner and demeanour, which may show whether a statement is credible or not which may warrant a court in differing from the Judge even on a question offact turning on credibility of witness which the appellate Court has*

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*not seen. See Pandya v. R [1957] EA 336, Okeno v. Republic [1972] EA 32 and Charles Bitwire v. Uganda Supreme Court Criminal Appeal No. 23 of 1985 at page 5.*

*Furthermore, even where a trial Court has erred, the appellate Court will interfere where the error has occasioned a miscarriage ofjustice..."*

**10** *In Banco Arabe Espanol* **Vs.** *Bank of Uganda Supreme Court Civil Appeal No.8 of 1998* the Supreme Court of Uganda applied the Kifamunte standard in a civil matter. Therefore, our duty is to review the evidence of the case and to reconsider the materials before the trial Judge then make our own conclusion.

shall consider the above principles in determining this appeal. These principles were further stated in the case of **Father Nasensio Begumisa & 3 Others V. Eric Tibebaga, Supreme Court Civil Appeal No. 17 of 2002,** as to subject the evidence adduced at the trial to a fresh and exhaustive reappraisal, scrutiny and then decide whether or not the learned trial judge came to correct conclusions, and if not then this court is entitled to reach its own conclusions. We

**<sup>20</sup> Consideration of the Appeal**

**5**

**15**

We shall deal with the grounds of appeal in the order in which they have been raised.

# **Burden and Standard of Proof in Election Petition Cases**

Page 9 of 27 The burden of proof is cast on the Petitioner to prove the assertions to the satisfaction of the court that the irregularities or malpractices or non-compliance with the provisions and principles laid down in the relevant laws were or is committed and that they or it affected the results of the election in a substantive manner in the election petition. The evidence must be cogent, strong, and credible. The standard of proofis on a balance of probabilities. In a recent decision of **Paul Mwiru v. Hon. Igeme Nabeta & Others-Election Petition Appeal No. 06 of 2011** this court said;

> *"Section 61(3) ofthe PEA sets the standard ofproofin parliamentary election petitions. The burden ofproof lies on the petitioner to prove the allegations in the petition and the standard ofproof required is proof on a balance of probabilities. The provision of this subsection was settled by the Supreme Court in 35 the case of Mukasa Harris v Dr Lulume Bayiga (supra) when it upheld the interpretation given to the subsection by this court and the High Court."*

20 **Ground <sup>1</sup>** *The learned trial Judge erred in law and fact when he held that the Petitionerfailed to prove the offence ofbribery to the satisfaction of court and dismissed the Petition.*

*And*

*Ground 5 The learned trial Judge erred in law and fact when he failed to evaluate the evidence on record thereby coming to*

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*a wrong conclusion that the Petitioner failed to prove the offence of bribery to the satisfaction of the Court.*

## <sup>5</sup> **Appellant's Submissions**

10 15 The Appellant's submissions on this Ground of Appeal are that clear and unequivocal proof is required to have been established before a case of bribery can be held to have been proved. That of the 22 affidavits in support of the Petition the 1st Respondent's illegal acts of bribery were elaborated by the affidavit evidence of PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW13, PW14, PW15, PW16, PW17, PW19, PW20. That PW1 Sematiko Gordon Katende recorded the 1st respondent and other agents while distributing money. That the 1st Respondent appointed Kitale Jane as his agent to procure votes.

That in **Odo Tayebwa versus Bassajjabalaba Nasser & Another Election Petition Appeal No. 13 of 2011 A. E. N Mpagi Bahigeine DCJ.** held that there is no precise rule as to what would constitute evidence of being an agent. That every instance in which it is shown that either with knowledge of the member or candidate himself; a person acts in furthering the election for him, trying to get votes for him, is evidence that the person so acting was authorized to act as his agent. That the 1st respondent merely made a general denial of Kaitale Jane being his agent.

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Further that the absence of corroborating evidence was no reason for the Judge to dismiss the allegation of bribery. That the fact that the receipt for the chairs which the 1st respondent bought for voters was not in the 1st respondent's name did not mean that he did not bribe because the evidence showed that he is the one who bought the chairs. That in dismissing the allegation of giving the voters 300,000 UGX (three hundred thousand) the trial Judge held that there were inconsistencies and contradictions in the evidence of PW7 yet the tidal Judge did not identify or state those contradictions and inconsistencies.

That the 1st Respondent admitted in paragraphs 3.14 of the written submissions that the appellant had presented evidence of bribery. That the bribery was through the 1st respondent's known agents.

## 1st **Respondent's Submissions**

15 20 The 1st respondent's submissions are that the learned trial Judge upon evaluating evidence from all the witnesses found that the Petitioner had failed to prove the election offence of bribery to the satisfaction of the court. That the burden of proof of any allegation in the election petition lies on the Petitioner. Per the case of *Peter Mugema vs Mudiobole Abed Nasser and Another Election Appeal No. 30 of2011.*

That the standard of proof is as provided for in **section 61(1) and (3) of the Parliamentary Elections Act, 2005 (as amended)** on a balance of probabilities to the satisfaction of court. That evidence to prove the offence of bribery must consist of unequivocal proof and

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should be cogent free from deliberate signs of untruthfulness. Counsel relied on the case of **Odo Tayebwa vs Basssjjabalaba and Another Election Appeal No. 13 of 2001.** That the Petitioner must also prove the ingredients of the offence of bribery. That the evidence presented by the Petitioner/Appellant could not satisfy the court because it was lacking in many ways.

That there was no evidence that the alleged giver of bribes was an agent of the 1st Respondent. Concerning the chairs allegedly given, the contradiction was that whereas the claim was that the 1st respondent had given a bribe the receipt presented in court was not in the name of the 1st Respondent. Regarding the claims of bribery at the playground, the Appellant did not present any evidence of a person who received the bribes allegedly given and the said persons were not proved to have been voters. Further that the videos did not prove or show the 1st respondent giving any bribe and the people who were alleged to be agents of the 1st respondent were not proved to be agents. The appellant did not also prove that the people in the videos were actually voters capable of being influenced to vote.

20 That therefore the trial Judge was right in finding as he did on the issue of bribery because all the evidence presented by the petitioner was either contradictory, not corroborated, tainted with deliberate untruthfulness, not cogent, did not establish the principal-agent relationship, or even identify the alleged recipients of the bribes as voters.

## 25 **2nd Respondent's submissions**

The 2nd Respondent associated with the submissions of the 1st Respondent. In summary the 2nd Respondent submits that the trial Judge properly directed himselfto the law, evaluated the evidence on record and subjected the same to serious and exhaustive scrutiny and came to the right conclusion that the allegations of bribery had not been proved to the satisfaction of the court. That the Judge did this at pages 7-14 of the Judgment. That none of the allegations of bribery were proved to the required standard. That the learned trial Judge subjected each and every allegation of bribery incidents to exhaustive scrutiny before deciding that the evidence before court was not to the satisfaction of the court.

That the ingredients of bribery are provided in Section 68(1) of the Parliamentary Elections Act. Given the gravity of the offence of bribery in elections, it is necessary that the persons said to have committed the offence and those said to have been bribed be identified clearly and such evidence be corroborated. **See Hellen Adoa & Electoral Commission vs Alice Alaso Election Appeal No.54 of 2016.**

20 The 2nd Respondent submitted on each ofthe incidents of bribery and supported the findings of the trial Judge on each of the allegations. The 2nd respondent then concluded that the learned trial Judge after looking at the wanting character of the evidence relating to this issue could not have come to another conclusion than that the Appellant failed to prove the offence of bribery to the satisfaction of the court.

The 2nd Respondent prayed that this court finds no merit in the issues in grounds <sup>1</sup> and 5 of the Appeal.

## **Determination of Ground <sup>1</sup> and 5.**

We have carefully considered the submissions of the parties. Bribery as an election offence is provided for under **Section 68(1) of the Parliamentary Elections Act.**

In Election Petitions bribery is an offence committed by a person who gave or promised to give or offered money or any valuable inducement to a voter, to corruptly induce the voter to vote in a particular way or to abstain from voting or as a reward to a voter for having voted in a particular way or abstained from voting. The offence has three ingredients which must be proved by the Petitioner;

- *1. That a gift was given to a voter* - *2. The gift was given by a candidate or their agent* - **3.** *The gift was given with the intention of inducing the person to whom it was given to vote*

We agree with the submissions of the respondents that clear and unequivocal proof has to be presented to the court before the offence of bribery can be found to have been established by the Petitioner. Mere suspicion shall not suffice and admissions of people who claim to have received the bribes is not enough. Proof of bribery as an election offence does not require proof beyond reasonable doubt as is the case in criminal cases.

The petitioner alleging bribery has the duty to prove to the satisfaction of the court all the elements of the illegal practice of bribery to the satisfaction of the court. The evidence presented to the court must be cogent before the court can be satisfied that the offence has been established before it.

In *Amoru and Electoral Commission versus Okello John Election Appeal No.39 and 95 of 2016* it was held that the court has to subject each allegation of bribery to a serious scrutiny and to be alive to the fact that in an election petition, in which the prize is political power, witnesses who are invariably partisan may resort to telling lies in their evidence, in order to secure judicial victory for their preferred candidate.

15 Further it is important to note that no particular number ofwitnesses are required to prove any particular fact however, the evidence available must be corroborated by the general body of evidence before the trial Court. Where witnesses presented by the petitioner contradict each other none of them can be believed. The trial court cannot annul an election based on allegations of bribeiy without cogent evidence to prove the said allegations.

20 Where the Petitioner fails to provide sufficient evidence to prove that the giver of the bribe was the Agent of the respondent then the trial court has no option but to dismiss the claims. The bribe has to have been given by either the candidate himself or a person proved to have been an agent of the Candidate. It is also very important that the

petitioner proves that the people who were given the alleged bribes were actual registered voters.

In the instant appeal, the trial Judge did give the evidence the serious scrutiny it required. He analyzed the evidence for each of the incidents of bribery and rightly found that the evidence was not sufficient to satisfy the court that the 1st respondent had committed the illegal practice of voter bribery.

The evidence of the Appellant in paragraphs 7 and 8 of the Affidavit in support of the Petition; was of little evidential value. The statements therein were based on information and not first-hand account of incidents of bribery alleged; including annextures SGK5, the receipt from Angels & Sons Trading Store and SGK6 the picture of a pile of portable chairs.

15 20 25 certain way. The affidavit of Kiwuwa Christopher, Ssentongo Eric, Muyanja Edrine, Ssempala Julius, Sempuubo Steven, Ssewankambo The affidavit of Kigundu Paul in support of the Petition was full of allegations of bribery but no proof of the registered status of the allegedly bribed persons and no proof of the agency between the 1st Respondent and the alleged distributor of the bribes (Jane Kaitale). Whereas he identified persons who received money of between 6,000 and 1,000 UGX he did not attach any evidence to show that the alleged recipients of the money were registered voters. The affidavit of Lukabwe William did not also identify who the alleged village members were, to whom the plastic chairs were given and he himself does not state that he voted and that the chairs caused him to vote a

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Yazid also generally said people gathered and were given money and they vowed to vote for the 1st Respondent but the identity of the persons is unknown and who they are is not clearly stated in the affidavit. The affidavit ofKasibante Godfrey did not state any evidence

5 relating to bribery of voters. None of the persons who were allegedly bribed swore affidavits to support the allegations of the Petitioner.

All the affidavit evidence before the trial Court proved that a gift was given but failed to prove that it was given to a voter and that it was given by the 1st Respondent as a candidate or through his agent.

- 10 The trial Judge properly evaluated and gave the evidence on record a serious scrutiny for all the alleged incidents of bribery and came to the correct conclusion. The alleged incidents were; - a. Bribery at Kitamavu Polling Station - b. Bribery at Lugazi A Polling Station - c. Bribeiy at Buleleje Playground - d. Bribery at Kanyigo - e. Bribeiy with sugar at Kayondo LC1 - f. Bribery at Serungwangu village - g. Bribeiy at Nabumbugu village - h. Bribery at Binajja - i. Bribeiy at Kiyoganyi LC1 - j. Bribery at Lweyo LC1 Namutamba Parish - k. Bribery at Kitego Trading Centre and - l. Bribery at Kirundi boda boda stage

In absence of any proof of essential ingredients of bribery, the trial Judge had no option but to find no sufficient evidence to prove bribery to the satisfaction of the court.

**5** We would accordingly, for the above stated reasons, agree with the analysis and findings of the trial Judge that each of the allegations of bribery were not proved and find no merit in Grounds <sup>1</sup> and 5 of the Appeal.

*Ground 2 The Learned trial Judge erred in law and fact when he held that there was no evidence of acts of defamation adduced by the witnesses to prove the offence of defamation because they did not state out the exact words verbatim.*

**15 20** We have considered the submissions of all counsel on this ground of appeal. The trial Judge dealt with this issue *at pages 314-316 of the record of Appeal.* The trial Judge rightly cited and relied on *Section 73(1) ofthe Parliamentary Elections Act.* The trial Judge also relied on *Herbert Tom Kinobere versus Wairagala Godfrey Kamba Election Petition Appeal No.53 of*2016 where it was held that with no proof provided by the appellant that the statements made by the 1st Respondent were; false, court was unable to find that they were defamatory of the appellant.

The learned trial Judge then concluded as follows;

**10**

"It *is court'sfinding that there is no evidence of acts of defamation adduced by the above witnesses because they didn't state out the exact words in*

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*verbatim. The said defamatory statements were allegedly recorded in the video and the translated version from Luganda to English was not clear since court could not even pick any defamatory statement about the personal character of the Petitioner in verbatim*

*All the statements ofwitnesses about the defamatory statements could not be traced in the video and their evidence was not credible but full of inconsistencies and contradictions which could not be believed by this court."*

15 20 Indeed, when we looked at the Affidavits of Sematiko Gordon, Kigundu Paul, Lukabwe William, Kiwuwa Christopher, Sentongo Eric, Kasibante Godfrey, Muyanja Edrine, Ssempala Julius, Sempuubo Steven, Ssewankambo Yazid on the Record of Appeal it was very difficult correlating the affidavit evidence to the Petition as a Pleading. So many statements made none actually prepared for proof. On that basis alone we would agree with the trial Judge's finding that *there is no evidence of acts of defamation adduced by the above witnesses because they didn't state out the exact*

## *words in verbatim.*

It is important to note that a trial Judge must not be seen working a case in favor of either party to the suit. The Judge ought to be as balanced as is humanly possible when dealing with the trial of any case. The reason for this is not too difficult to see. It is to secure the

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are making a false statement or be reckless as to whether such statements were true or false.

By the respondent to the petition's actions the petitioner must demonstrate that it is by the actions of that respondent that the false statements had been brought to the attention of third parties.

The case of *Ibaale Daniel Joseph versus Katuntu Abdul & Electoral Commission Election Petition Appeal No.41 of 2016* demonstrated that the false statements complained of must be made about and shown to have affected the character of the victim by lowering their esteem in the eyes of the voters or fair-minded persons. Without demonstrating or showing which of the statements of the Respondent to the petitioner related to and defamed the character of the appellant, it could not be found that the 1st Respondent committed any such offences.

- 15 Further a candidate is not guilty of making defamatory statements if he or she had reasonable grounds for believing those statements to be true. - It is clear that the elements to be proved in *Section 73(1) of the Parliamentary Elections Act* are; - 1. *There were words either spoken or written* - 2. *The words were pleaded verbatim*

- 3. *The words were attacking the personal character of the candidate knowing they were eitherfalse or true* - 4. *The words were uttered recklessly and*

5. *The intention was to prevent the election ofthe candidate*

Therefore, the Petitioner must present evidence to show that the effect of the specified words complained of was that, the electorate, who held him in high esteem, shunned him. Further that the electorate, or a very good proportion ofit, lost all the respect they had for him after the said words.

A petitioner who fails to quote verbatim the words which were said to have been uttered automatically has failed to prove effect because one cannot prove effect ofwhat is not known or ascertained, see *Ocen*

#### 10 *petition Appeal No.83 of 2016. Peter and Electoral Commission versus Ebil Fred ELECTION*

On the requirement to translate statements not in the language of court, it ought to be a perfect complete translation. A loose translation is not considered a translation for purposes of Defamation claims in Election Petitions. Therefore, accuracy is required to prove a false statement or a defamatory statement.

In the case of *Mulimba John versus Onyango Gideon and Others Election Petition Appeal No.48 of2016* court found that the exact words used were never brought to the attention of the court. Instead, there was a loose translation. In any case, it was nowhere shown that the personal character of the appellant was ever under attack, since even the institution of one being 'academically challenged' did not relate to personal character.

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Suffice it to say that the Petitioner need not fill up the Petition with all the words the Respondent made through out all the campaign meeting. He needs only a few incidents where all the ingredients of the section 73 can fully be satisfied or seen.

5 10 15 Petition. In the instant case upon perusal of the entire record of appeal we are inclined to agree with the findings of the trial Judge. The petition itself did not quote verbatim the statements which had been made. The primary pleading in an Election Petition is the Petition itself. In our own summation, we would find that actually even the cause of action for false statements was not properly disclosed or pleaded in the Petition. The petition actually lacked the required standard of pleading to make a proper claim of false statements or defamation. The false statement should be stated in the Petition not in the affidavit in support of the Petition because the affidavit is but only evidence supporting the petition. A party cannot present supporting evidence for a statement which he or she has not stated in the

Therefore, we also find that indeed *there was no evidence of acts of defamation adduced by the witnesses of the Petitioner because they did not state out the exact words in verbatim.* Even if they had done it the way it is supposed to be done it would all be in vain the claim for false statements having failed first in the Pleading/Petition itself.

For the reasons we have given hereinabove we find no merit in this ground 2 of appeal.

## *Ground 3.*

*The Learned trial Judge erred in law and fact when he held that the defamatory words were recorded in the video and translated version from Luganda to English, was unclear since court could not pick out any defamatory statement about the personal character ofthe petitioner verbatim.*

<sup>10</sup> or Given our analysis of the evidence above on ground 2, we find that it would not have mattered whether or not the videos made a clear statement of the defamatory words. The video should have been presented only to support a transcription of the dialogue monologue in the video stated in the Petition. In the instant case the Petitioner failed in doing so. Therefore, there was no case of false statement clearly made out in support of which evidence would be required.

<sup>15</sup> On that basis we find no merit in this Ground 3 of appeal.

## *Ground 4.*

*The Learned trial Judge erred in law and fact in holding that the Petitioner's evidence on bribery and defamation were not supported by cogent and sufficient evidence to annul on election.*

## *And*

*Ground 6 The Learned Trial Judge erred in law and fact when he failed to evaluate the evidence on record thereby coming to*

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# *the wrong conclusion that the petitioner failed to prove the offence of defamation to the satisfaction of court.*

Given our Analysis on the Grounds 1, 5, 2, and 3 above, it is clear that the trial Judge cannot be faulted for failing to evaluate the evidence.

We accordingly find no merit in Grounds 4 and 6 of appeal.

## **Conclusion**

**io**

Having found no merit in any of the grounds of appeal raised by the Appellant and for the reasons we have given in this Judgment we would dismiss this appeal with the following orders;

- a. This appeal is on all grounds laid out in the Memorandum of Appeal, dismissed - b. The Judgment, Decree and orders entered against the Appellant by the Learned trial are confirmed and upheld. - c. The 1st Respondent is confirmed as the duly Elected Member of Parliament for Mityana North Constituency as declared and returned by the 2nd Respondent. - d. The costs of this appeal are awarded to the 1st and 2nd Respondents. - <sup>20</sup> We would so order

Dated this day of 2022

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## HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA.

### **<sup>5</sup>** HON. MR. JUSTICE STEPHEN MUSOTA, JA.

HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA.

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**l**