Despite a court verdict, upholding the exclusive right of Bedding Holding Limited (BHL) to design ballot boxes, the Federal Government has issued a gazzette, voiding the patent. Can the government so act when case is appeal? ERIC IKHILAE asks.
Can a party validly destroy the res during the pendency of a case? This question will drive arguments next week as parties return to court in the various cases involving the Independent National Electoral Commission (INEC), a firm – Bedding Holdings Limited (BHL) and others.
INEC and BHL have been locked in disputes for some time now, over the legitimacy of BHL’s claim to sole ownership of the patents and designs rights in relation to collapsible transparent ballot boxes and voters’ dada capture process, two key components of INEC’s election activities.
Although INEC had consistently denied the existence of such patents and designs rights, as claimed by BHL – a claim it supported with documents and certifications, the Federal High Court in Abuja had in two judgments, upheld BHL’s claim.
In a judgment given on January 28 this year, by Justice Ibrahim Auta of the Federal High Court, Abuja, the judge upheld BHL’s claim to having a valid patent over the process of applying the Direct Data Capture (DDC) machine to register voters. He also awarded about N17.3billion damages against INEC and others for utilising the process without the prior consent of the patentee as required under the Patent and Designs Act 2004 and ordered INEC not to use the patented product without the consent of the patentee.
Justice Auta’s judgment came almost two years after another judge of the court, Justice Adamu Bello, gave a judgment on June 5, 2012 upholding BHL’s claim to being the sole holder of a valid patent over the transparent ballot boxes being used for elections. He voided similar patents subsequently issued to three other companies; ordered INEC to always seek the consent of the patentee before utilizing the products, failing which the exercise for which the product was used would be deemed null and void.
INEC made failed attempts to stay the execution of both judgments. In one instance, Justice Bello, while ruling on May 28, 2013 refused an application by INEC for stay of execution of his earlier judgment. 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 contained in the June 5, 2012 judgment.
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 affidavits, 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 cannot therefore seek the indulgence of the court.
“He, who comes to equity, must come with clean hands. The 6th and 7th defendants (INEC and Jega) have not come with clean hands before the court and cannot 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,” the judge held.
INEC and Jega have again, filed a similar application for stay before the Court of Appea, Abuja. In the application filed on March 24 by a team of lawyers including five Senior Advocates of Nigeria, led by Adegboyega Awomolo (SAN), the applicants failed to indicate that a similar application was refused by Justice Bello and why.
However, while parties had thought that the battle has shifted to the appellate court, with INEC’s two appeals pending, the Federal Government, acting in a manner suggestive of an attempt to pull the rug off BHL’s feet, issued a gazette on March 19 purporting to void all the patents earlier issued to BHL, including those on which the court had given judgments.
BHL’s lawyer, John Okoriko observed that themove is an attempt by the Fed Govt to stop the patents owner – BHL – from further benefiting from his inventions, by invoking the public interest rule to void duly registered patents including those covering transparent ballot boxes and Direct Data Capture (DDC) process being used by the Independent National Electoral Commission (INEC).
The registered patents and designs affected by the government’s fiat include: “RP No. 10511 (for collapsible steel frame structures); RP No. 12994 (for transparent ballot boxes); RP No. 16642 (for electronic collapsible ballot boxes); NG/P/2010/202 (for Proof of Address System Schemes – PASS); RD No. 13841 (for electronic collapsible ballot boxes); RD No. 5946 (for transparent ballot boxes) and RD No. 3962 (for collapsible steel structures.”
The Minister said he was exercising his powers under Paragraph 15 of Part II of the First Schedule to the Patents and Designs Act Cap P2 Laws of the Federation of Nigeria 2004 in issuing the gazette, which INEC attached as exhibit in a suit by BHL to stop INEC’s alleged continued use of its patented product for voters’ registration in Ekiti and Osun states
Okoriko argued that the gazette did not only contradict INEC’s earlier argument that such patents do not exist, it confirms BHL’s claim to being the valid holder of the affected patents.
The firm argued, in an affidavit, that INEC ought to have awaited the outcome of its pending appeals, if it actually believed it had valid appeals, rather than resort to self-help, as done with the gazette, with which INEC seeks to justify its continued uses of the patented products without the consent of the patentee (BHL).
BHL further argued that it was wrong for the Industry Minister to void the patents without informing or seeking the consent of the patentee as stipulated in Paragraph 18 of Part II of the First Schedule to the Patents and Designs Act.
BHL also queried constitutionality of the provision of Paragraph 15 of Part II of the First Schedule to the Patents and Designs Act which the Minister purportedly relied on in issuing the gazette. It argued that the provision that allows the government to unilaterally take away the intellectual property of a citizen violates the constitutionally guaranteed rights of citizens to own property.
It argued that the government cannot invoke public interest to void its duly issued patents where private interest is involved. BHL noted that the gazette seeks to allow INEC award contacts to private companies to produce and supply its inventions and thereby make profit, without it (BHL) benefiting from it.
By the new case marked: FHC/ABJ/CS/172/2014 BHL is praying the court to among others, restrain INEC from proceeding with it voters’ registration/validation exercises in Ekiti and Osun states as a way of preserving the subsisting January 28 judgment. Proceedings resume in the case on May 13 before Justice Auta.
The Nation learnt form documents tendered in court by parties that INEC and BHL have had a cordial business relationship until Professor Maurice Iwu became the Chairman of the electoral body. The relationship dates back to 1987 when the electoral umpire was known as National Electoral Commission (NEC).
NEC, by a letter dated October 6, 1987 awarded BHL a contract to supply it with metal ballot boxes, which the company invented and produced then. The product was later modified into the current transparent ballot box.
In 2003, under the leadership of the late Dr. Abel Guobadia, INEC, after exhaustive investigation which extended to the Ministry of Industry, acknowledged BHL’s patent right over the Transparent Ballot Boxes (TBB). And in accordance with the provision of the Patent and Designs Act, INEC got the company to issue it with the requisite License Agreement to cover the manufacture and procurement of 500,000 TBB.
Also in line with the agreement, INEC in the contract award letters issued to other companies engaged to manufacture and supply TBB, by virtue of the License of Right, included a clause that read thus: “Please be informed that the product is covered by Patent and the Commission has secured the approval of the patent holder to grant you license to manufacture/import the product.”
BHL averred that the relationship collapsed under Professor Iwu in 2007 whose INEC refused to honour its patents and allegedly infringed on them by awarding contracts in to companies, who presented patents certificates that were later voided in the June 5, 2012 judgment by Justice Bello.
Prof Iwu was said to have maintained his position not to honour BHL’s patents even when INEC’s in-house lawyers including Oluwole Osaze-Uzzi ( in a memo dated December 15, 2006) suggested that INEC act in accordance with the law.
“In 2011, under the leadership of highly respected Professor Attahiru Mohammed Jega, the infringement committed by Professor Iwu was sustained as the same company was again awarded contract for TBB in the billions of naira and again presented to FEC for ratification under the same erroneous impression and scenario. This illegality is still being sustained till date despite a valid and subsisting court judgment,” it said.
In its bid to assert its right and ensure that the leadership of INEC play by the rules, BHL has filed various cases including those challenging the use of the TBB for the last governorship elections in Edo, Ondo and Anambra states, and the use of the box for the last convention of the ruling People’s Democratic Party (PDP).
The company also seeks the voiding of the various elections for which its patented ballot boxes were used by INEC without its prior consent as ordered in Justice Bello’s judgment.
On March 31, a group – Partners for Electoral Reform (PER) – via its letters to President Goodluck Jonathan, Senate President, David Mark and other major stakeholders in the nation’s democratic project, drew the nation’s attention to the threat posed by INEC’s alleged willful disobedience of court orders and reluctance to obey the law.
Senator Mark has since referred the letter written for the group by a Lagos-based lawyer, Malachy Ugwummadu to the Senate Committee on INEC for investigation. The group warned that if not urgently checked, INEC’s continued defiance to court orders and judgments could derail the democratic process.
It stated that INEC’s refusal to comply with the court order to always obtain the patentee’s consent before utiziling its patented products “remains a potential threat to the proposed electoral exercise both in Osun and Ekiti states and the impending general elections of 2015.
“The present disregard of orders of competent courts of law in relation to the subject matter of the present suit (FHC/ABJ/CS/816/2010) have far reaching consequences in the sense that it provides a ready recipe for unscrupulous elements in the polity to foment chaos.
“Needless to say that disgruntled contestants will definitely seize such veritable opportunities to undermine the outcome of any process that will be based on the disputed content of this judgment. It is the law, and that much we are bound to know, that an order or judgment of court, however justified or not, remains judgment of court and binding until it is set aside by a competent court.
What INEC seems not to realize is that, the possible direct implications of these cases could be far reaching, and may provide a perfect recipe, a veritable and apparent danger, should unscrupulous elements, disgruntled contestants and opposition politicians take advantage existing judgments to undermine or challenge the validity of past and ongoing process(s) or outcome of any exercise, not minding the billions of investment, and thereby throwing spanners in the country’s political stability.
It is however left to be seen how the Fed Govt and its INEC wriggle out of this unhurt.
