The Appeal Court in Akure has affirmed former deputy governor Agboola Ajayi as the authentic senatorial candidate for the Peoples Democratic Party in Ondo south.

The appellate court, headed by Justice Ayobode Olujimi Lokulo-Sodipe, on Tuesday, dismissed the appeal filed by incumbent senator, Nicholas Tofowomo.

Mr Tofowomo is currently representing Ondo South senatorial district against the verdict of the Federal High Court, which initially affirmed Mr Ajayi as the authentic PDP candidate.

Earlier, the Federal High Court had struck out the case of Mr Tofowomo against Mr Ajayi for failing to file his argument and addresses within the time stipulated by the law.

The appellate court, however, on Tuesday, affirmed the judgement of Justice Rilwanu Aikawa of the Federal High Court that dismissed the suit filed by Mr Tofowomo challenging the emergence of Mr Ajayi as the PDP candidate.

The incumbent senator, who was not pleased with the outcome of the primary election that produced Mr Ajayi, had approached the lower court to challenge his emergence. 

At the keenly contested primary election, Mr Ajayi scored 78 votes to defeat Mr Tofowomo who polled 74 votes during the exercise. 

Mr Tofowomo through his counsel, Femi Emodamori, had accused Mr Ajayi of alleged act of perjury and an education scandal. 

In a suit number: FHC/CS/AK/ 83 /2022 filed on July 5, 2022, Mr Tofowomo prayed to the court to nullify Mr Ajayi’s nomination, citing alleged controversial academic records presented to the Independent National Electoral Commission (INEC).  

According to him, once the winner was declared as not qualified, the runner-up should be declared as the winner.

But the former deputy governor, through his lawyer, Kayode Olatoke, argued that the allegation of perjury against him was unfounded. 

According to Mr Olatoke, the school registrar at the time Mr Agboola wrote his West African Examination Council (WAEC), has sworn to an affidavit in 2006, to absolve him of the controversial error about the date of birth on his external examination certificate. 

The counsel said the case was filed outside the time allowed by law, and noting that the court lacked jurisdiction to entertain the matter.

Recall that in a verdict delivered in October by Justice Aikawa, the judge held that the Supreme Court in several cases held that the date of occurrence is to be used to determine the status of the case and not the date the plaintiff was aware of the infraction.

He said the date of the occurrence of the cause of action was June 9, 2022, and that the date the case was filed was July 5, 2022. 

While dismissing the case, he held that the case which was supposed to be filed in 14 days was filed 26 days after the cause of action. 

Not satisfied, Mr Tofowomo challenged the judgement, asking the appellate court to order for retrial of the case, and that merit should take preeminence over technicalities employed by the trial court.

The appellate court in its verdict dismissed the appeal of Mr Tofowomo as the suit could not be heard on merit because the electoral act, practice direction, and constitution stipulated the time within which such a suit should be filed. 

The appeal court said the failure of the appellant to key into the period stipulated by the law, which was 14 days after the cause of action, made the case and the appeal nugatory. 

The Judge consequently dismissed the appeal with a N250,000 fine.