Benin (NAN) The Court of Appeal sitting in Benin will on Thursday give judgment in the Delta Jan. 6  governorship election rerun.

The News Agency of Nigeria (NAN) reports that Chief Great Ogboru of the Democratic Peoples’ Party had filed the appeal against the decision of the tribunal which upheld the declaration of Gov. Emmanuel Uduaghan as winner of the election.

Ogboru’s counsel, Mr Mogbeyi Sagay (SAN), in the appeal argued that the first issue the court would have to determine was that of  “burden of proof”.

Sagay contended that the petitioner at the tribunal had asserted the negative, while INEC, the third respondent in the appeal asserted the positive  and the tribunal in its judgment shifted the burden of proof to the petitioners.

He 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.”

According to him, INEC had tendered the relevant documents before the tribunal without reference to any local government or voting unit to which ballot papers were tied to show that it conducted the election properly.

On the issue of accreditation, Sagay argued that INEC had failed to prove that accreditation took place in all the places the petitioner was challenging the credibility in the conduct of the election.

He said that the ballot papers were not referable to form EC 8, contending that Section 150 of the Electoral Act could not apply in this case when there was no substantial compliance with the Act.

In his reply, lead Counsel to Uduaghan, Chief Wole Olanipekun (SAN), urged the court to dismiss the appeal for lacking either merit in law or in fact.

He argued that the assertion of the negative by appellant “does not change the position of the law in section 135, 136 and 137 sub-Section 1 of the Evidence Act’’.

He maintained that the burden was always on the petitioner to prove.

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

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

He, therefore, urged the court to dismiss the appeal.

In his submission, the lead counsel to the second respondent, PDP, Mr A. Adenipekun (SAN), adopted Olanipekun’s  submissions.

He added that contrary to the submission of Ogboru’s counsel, burden of proof was not static but changes, depending on the circumstances of the case.

He said the petitioners had failed to prove their case, and urged the court to dismiss the appeal as lacking in merit.

The Court of Appeal, led by Justice I. Agbo, fixed Thursday for the determination of the issues canvassed. (NAN)