The Court of Appeal sitting in Benin, has fixed Thursday, September 22, 2011 for judgment in the Delta state January 6, 2011 governorship re-run election appeal filed by Chief Great Ovedje Ogboru against the decision of a 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 Great Ovedje Ogboru and the Democratic Peoples’ Party (DPP), Mogbeyi Sagay, (SAN) had argued that the appeal is in contention with the first issue that the court will have to determine, as a burden of proof.

He argued that at the lower tribunal, the petitioner asserted the negative, while INEC, the third respondent in the appeal asserted the affirmative, saying that instead, the tribunal’s judgment shifted the burden of proof to the petitioners.

“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,” Mogbeyi said, and he told the court that at the lower tribunal, relevant documents used in the conduct of the election were tendered by INEC without reference to any local government or voting unit to which ballot papers were tied to show that INEC conducted the election properly.

On question of accreditation, Mogbeyi argued that INEC could not prove that accreditation took place in all the places the petitioner was challenging the conduct of the election, adding 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.

While urging the court to rely on the decision of the Court of Appeal in Ogboru versus Uduaghan, Mogbeyi also advocated that the court should allow the appeal and dismiss any other appeal pending on the matter by declaring Chief Great Ogboru governor of Delta State.

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

Olanipekun argued that the assertion of negative by the appellant does not change the position of the law in section 135, 136 and 137 sub-sections 1 of the Evidence Act, and asserting that the burden was always on the petitioner to prove.

He further mentioned that section 150 (1) indicates that result declared by INEC is 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.

Chief Olanipekun said the lower 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 that non compliance affected the result of the election, and therefore urged the court to dismiss the appeal.

In his submission, lead Counsel to the second Respondent, PDP, A. Adenipekun (SAN), adopted the submissions of Chief Olanipekun and 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 have failed to prove their case and urged the court to dismiss the appeal as lacking in merit.

Earlier while arguing a cross appeal filed by Dr. Emmanuel Uduaghan, Chief Olanipekun had urged the court to allow the appeal and hold that before the lower tribunal, there was no life issue to contend with by the petitioner to arouse the jurisdiction of the tribunal.

Citing Section 180 (2), 2A of the constitution and the judgment by Justice Buba of the Federal High court sitting in Asaba, Chief Olanipekun said “the seat for which there was a re-run had expired, a new election had taken place, a new tenure has commenced and a court cannot make an order which cannot be enforced either practically or legally,” and urged the court to allow the appeal.

Also in his reply, Counsel for Ogboru and DPP, Prof. Joseph Mbadugha argued that the judgment of Justice Buba referred to by Olanipekun was not in anywhere referred to and discountenanced  any submission based on it, saying that by reason of Section 150 of the Evidence Act, Justice Buba’ s judgment did not qualify as one judgment in realm.

He therefore contended that to determine whether there is a life issue in Ogboru’s appeal, the court should look at issues arriving from the lower tribunal.

After hearing arguments from Counsels to the parties in the appeals, the five-man Justices of the Court of Appeal led by Justice I. Agbo fixed Thursday, September 22, 2011 for the determination of the issues canvassed.