By Eric Ikhilae
The Independent National Electoral Commission, INEC, its chairman, Professor Attahiru Jega and one of the commission’s contractors, Zinox Technologies Limited, are expected, on March 14, to commence their fight to stay the execution of a January 28 (N17.3 billion) judgment entered against them and three others by the Federal High Court, Abuja.
On the said date, INEC, Jega and Zinox are expected to argue their applications for stay of the judgment’s execution pending appeal.
The same exercise was to take place on February 11 but for the absence of the applicants, who neither gave reasons for their absence nor sent legal representations. The development informed Justice Ibrahim Auta’s decision to adjourn to March 14.
The judgment is on a suit by a firm – Bedding Holdings Limited (BHL), marked: FHC/ABJ/CS/816/2010. It was filed shortly after INEC awarded the about N34.5billion contracts for the supply of Direct Data Capturing machines for the registration of voters, preparatory to the 2011 general elections.
Defendants in the suit included INEC, Jega, the Attorney General of the Federation, AGF, Haier Electrical Appliance Corporation Limited, Zenox and Avante International Technology Incorporated.
The plaintiff had claimed the sole ownership of the subsisting patent rights Nos: RP16642 and RP NG/P/2010/202, and copyrights designs No: RD13841covering its inventions – the Proof of Address System Scheme (PASS) and the Electronic Collapsible Transparent Ballot Box (ECTBB).
It claimed that a combination of both inventions creates a voters’ register involving “the process and application of DDC machines for the compilation and collection of various bio-data.”
It said the suit was intended to protect its inventions after INEC proceeded to award the DDC contracts despite having been notified of its subsisting patents and the need to first obtain its consent.
While parties led evidence in the course of trial, it became evident that the process, over which the plaintiff claimed ownership, was that which include “the collation of bio-data of any Nigerian living in the country,” a process similar to what INEC applied the DDC machines for.
In the judgment, Justice Auta noted that the plaintiff’s case was mainly, that it is the bona fide owner of the patent rights Nos: RP16642 and RP NG/P/2010/202; copyrights designs No: RD13841(covering its inventions), while INEC and Jega denied infringing the plaintiff’s patent, arguing that the plaintiff’s invention was not novel, and that it was designed for electronic voting, which they did not employ for their elections.
Haier and Zinox equally argued that BHL’s invention was not new and that similar process had been used in other countries before now.
After a thorough analysis of evidence presented by parties, the judge observed that none of the defendants claimed to have patent rights over the process claimed by the plaintiff in Nigeria.
He also noted that none of the defendants was able to discredit the plaintiff’s claim to the patent rights, which certificates it tendered in court, but have only argued that such patents were not new.
The judge also noted that although Zinox filed a counter-claim, it failed to lead evidence in its support and therefore abandoned it.
Relying on the provision of Section 2(1) of the Patents and Designs Act (PDA) 2004, Justice Auta upheld BHL’s claim to the patent rights.
Section 2(1) provides: “Subject to this section, the right to a patent in respect of an invention is vested in the statutory inventor, that is to say, the person who, whether or not he is the true inventor, is the first to file, or validly claim a foreign priority for, a patent application in respect of the invention.”
On the issue of novelty, the judge also held that, in the absence of any evidence to challenge the certificate issued to the plaintiff by the Registrar of Patent, it implies that the invention in question is new.
In resolving the question whether the plaintiff was able to establish that the defendants infringed on its intellectual property rights, the judge relied on the provision of Sections 6(1)(b) and 25(1) of the PDA in holding in favour of the plaintiff.
The judge hinged his decision on the ground that the plaintiff had shown that INEC, without its consent, awarded contracts to the three companies, for the supply of DDC machines for the process of voters registration.
Section 6(1)(b) provides: “Where the patent has been granted in respect of a process, the act of applying the process or doing, in respect of a product obtained directly by means of the process, any other acts mentioned in the paragraph (a) of this subsection.”
Section 25(1) provides: “The right of a patentee or design owner are infringed if another person, without the licence of the patentee or design owner, does or cause the doing of any act which that other person is precluded from doing under Sections 6 or 9 of this Act, as the case may be.”
Justice Auta also referred to a book titled: “Reflections of a Nigerian electoral umpire,” written by former INEC Chairman, Abel Guobadia, who under similar circumstance, sought the plaintiff’s consent prior to the 2003 general election.
Guobadia, on page 85 of the book explained how the sound advice from a former Permanent Secretary in the Federal Ministry of Commerce (the patent issuing ministry), Dr. Hakeem Baba Ahmed and then AGF, assisted INEC in avoiding needless, long-winding and fund-wasting litigation over a patent right, they found to genuinely belonged to BHL.
Justice Auta observed that, rather than follow the example laid by his predecessor, Jega and his INEC chose to award the contracts, even when they knew that somebody else has a subsisting patent right over the process they intended to adopt and that they do not have the patentee’s consent.
The judge noted that, while the plaintiff, during trial, tendered evidence to show that it has the right to the intellectual property, none of the defendants claimed to have any. He also noted that none of the defendants presented evidence to show that they did not infringe on the plaintiff’s existing right.
“From the above compelling evidence before the court, which the former Chairman and Secretary of INEC admitted – that the plaintiff is the registered owner of the said patent – the court has no option, but to hold that the defendants have breached the plaintiff’s right to the said property.
“Everybody, for the avoidance of doubt, including INEC and all government institutions have the responsibility to obey the law of the land.
“The business of election is a very serious business, which affects the interest of the country, as it affects elections into the various arms of government.
“Therefore, INEC should always play by the rules, so that its failure to follow due process in awarding contacts should not affect elections to be so conducted,” the judge held in entering judgment in the plaintiff’s favour.
This is not the first time the plaintiff is obtaining judgment against INEC over the same issue.
On June 5, 2012 another judge of the same Federal High Court, Abuja, the now retired Justice Adamu Bello, in a judgment in suit No: FHC/ABJ/CS/82/11 held among others, that BHL owns valid and subsisting patent rights over Transparent Ballot Boxes and Electronic Collapsible Transparent Ballot Boxes being used by INEC for elections in the country.
Justice Bello upheld BHL’s claim to being the bona fide patentee and the exclusive owner of the invention named “Transparent Ballot Boxes” on which it was issued certificate of registration patent rights No. RP12994 and registration of industrial designs rights No. RD5946 by the Registrar of Patents on January 12, 1998.
The court also upheld the subsequent certification of an improvement on the invention named “Electronic Collapsible Transparent Ballot Boxes” (with certificate of registration of patent rights No. RP16642 and registration of industrial designs rights No. RD13841 issued on November 27, 2006 which are still valid.
The judge voided the rights over similar inventions purportedly issued later, by the Registrar of Patent, to three firms – are Emchai Limited, Tambco United Nigeria Ltd and Anowat Project and Resources Ltd – (to which INEC issued contract for the importation of BHL’s patented ballot boxes without its consent).
Similar incidents had preceded the award of contract for the supply of the ballot boxes as was the case with the DDC machines.
And as if playing the same script, INEC has again applied for a stay of execution of the latter judgment as it did with the former judgment.
It did not only fail to seek BHL’s consent in its subsequent procurement and deployment of the ballot boxes, INEC went ahead to conduct elections despite the judgment by Justice Bello.
As it has done now, INEC later applied that the judgment be stayed. But in his ruling on May 28, 2013
Justice Bello refused to stay the execution of the judgment on the ground that it was declaratory in nature (as the one by Justice Auta).
The judge equally frowned at INEC and Jega’s decision to deploy the same ballot boxes for subsequent elections, including the governorship elections held in Edo and Ondo states, without the consent of the plaintiff and in disregard of the court’s subsisting order made on June 5, 2012.
Justice Bello held that it was funny that INEC and Jega would approach his court for an indulgence having willingly disregarded and flouted its order.
They (INEC and Jega) conducted the elections on July 14 and October 20, 2012 using the same ballot boxes as averred by the plaintiff/respondent (BHL) in its counter affidavit, which has not been denied by the 6th and 7th defendants (INEC and Jega) in the two further and better affidavit, in total disregard to the injunctive order, the execution of which they now seek to stay by their application.
“Since the elections have been conducted, the need for staying the execution of the injunctive order granted by the court has abated, at least for now. And even if the need for the order for stay of execution has not abated, the defendants by proceeding to conduct the two elections, using the same ballot boxes, the use of which was restrained by the court’s judgment, have soiled their hands and can not therefore seek the indulgence of the court.
“He, who comes to equity, must come with clean hands. The 6th and 7th defendants have not come with clean hands before the court and can not therefore seek for equitable relief of stay of execution of the order in the judgment.
“Consequently, I refuse to grant the application, as granting it will be tantamount to the court encouraging further breach of its own judgment order, which subsists until set aside by the Court of Appeal.”
Justice Bello however, stayed proceedings in the contempt case brought against INEC, Jega and others by BHL for flouting the court’s orders as contained in the June 5, 2012 judgment.
Today, INEC’s refusal to simply play by the rules and avoid needless litigation, as was the tradition in the past, has exposed it to multiple litigation, on which the country’s scarce resources is being expending to the pleasure of some few.
BHL has not only appealed Justice Bello’s decision to stay proceedings in its contempt case, it has also initiated fresh case in relation to fresh instances of violation of its patent right, as upheld in the June 5, 2012 judgment.
>>> In its appeal, BHL is contending that Justice Bello had no business staying proceedings in the contempt case, having found that INEC and Jega disobeyed his court’s order.
It also argued that since contempt proceedings are separate proceedings from the cases from which they emerged, they could run separately.
BHL queried Justice Bello’s decision to make the consequential order staying proceedings in the contempt case when no party sought for such order.
Among other suit initiated by BHL following the Judgment by Justice Bello is a contempt proceedings against the People’s Democratic Party, PDP, and its key officials, including President Jonathan and Vice President Namadi Sambo, over the use of its ballot boxes at the party’s last mini-convention held in Abuja, without its consent.
It has also filed different cases in which it, among others, prayed the court to void the elections that produced Adams Oshiomhole (Edo Governor), Olusegun Mimiko (Ondo) and Willie Obiano (Anambra) on the ground that its ballot boxes were used without its consent, in violation of the June 5, 2012 judgment.
The cases, now before Justice Ahmed Mohammed, also of the Federal High Court, Abuja, have been adjourned to March 18.
The question bordering everyone is why INEC, under Jega, wilfully opens itself to unnecessary litigation, in which it spends huge sums engaging senior lawyers, when it could simply avoid them.
The fear is now that, aside the public funds that are deployed to fight these needless legal battles, like in actual war, no one can predict the outcome of these cases.
What happens if the plaintiff, as has been the case in two instances, succeeds in the cases that seek to void the elections held after the June 5, 2012 judgment?
What happens should the court find that President Jonathan and other PDP leaders were in contempt of court when INEC led them into deploying BHL’s ballot boxes without its consent?
Will it not be wise for INEC to simply heed Justice Auta’s counsel to learn to “play by the rules” and learn that its primary role is the conduct of free, fair and unencumbered elections, and that it will serve the nation better by simply avoiding courting unnecessary troubles?