By Gabriel Enogholase

BENIN-THE Court of Appeal sitting in Benin, Edo State, will tomorrow deliver judgment on the Delta State January 6, 2011 governorship re-run appeal by Chief Great Ogboru against the judgment of the lower tribunal, which upheld the declaration of Dr. Emmanuel Uduaghan as winner of the election by the Independent National Electoral Commission, INEC.

Lead counsel to Chief Ogboru and the Democratic Peoples’ Party, DPP, Mr. Mogbeyi Sagay (SAN), on the issue of burden of proof, contended that at the lower tribunal the petitioner asserted the negative, while INEC asserted the positive. He insisted that the tribunal in its judgment shifted the burden of proof to the petitioners.

Sagay said: “The issue of burden of proof is an issue of law. It does not shift until the party on whom the law places the burden has fully discharge that burden.”

He informed the court that at the lower tribunal, relevant documents used in the election were tendered by INEC without reference to any local government area or voting unit to which ballot papers were tied to show that INEC conducted the election properly.

On accreditation, he argued that INEC could not prove that voters were accredited in all the places the petitioner was challen-ging the conduct of the election, noting that the ballot papers were not referable to form EC 8. He argued that Section 150 of the Electoral Act could not apply in this case when there was no substantial compliance with the Act.

He prayed the court to allow the appeal, dismiss any other appeal pending on the matter and declare Chief Ogboru Governor of Delta State.

Counsel to Uduaghan, Chief Wole Olanipekun (SAN) urged the court to dismiss the appeal for lacking in merit. He argued that the assertion of negative by appellant does not change the position of the law in section 135, 136 and 137(1) of the Evidence Act and insisted that the burden was always on the petitioner to prove.

He contended that section 150 (1) indicates that result declared by INEC was presumed to be correct and regular, saying that the case of Ogboru vs Udugahan cited by the petitioners’ counsel was not a talisman, as he did not meet the standard of proof.

He argued that the lower tribunal was right and still right in holding that the petitioner did not prove the case of non-compliance with the Electoral Act or how that non-compliance affected the result.