A Federal High Court in Abuja declared in 2012 that the Independent National Electoral Commission (INEC) had since 2011, unlawfully deployed the collapsible ballot boxes in elections. It restrained the commission and its Chairman, Prof. Attahiru Jega, from further using the boxes, except with the permission of the patent right owner, Bedding Holdings Limited (BHL). The court also declared that unathorised use of the boxes will render null and void, the purpose for which the boxes were used. INEC and Jega have appealed against the decision. Parties have equally settled their briefs, awaiting a hearing date. Eric Ikhilae examines issues canvassed by parties and the case’s likely implication for next year’s general elections.
As the yearly vacation of the Court of Appeal gradually comes to an end,parties in an appeal lodged by the Independent National Electoral Commission (INEC) at the Court of Appeal, Abuja are anxiously awaiting a hearing date. Parties have settled and exchanged their briefs.
INEC is by the appeal, seeking to set aside a judgment delivered on June 5, 2012 by Justice Adamu Bello (now retired) of the Federal High Court, Abuja in a suit instituted by a firm, Bedding Holdings Limited (BHL).
BHL had in 2010 sued INEC, Jega, and five others over the electoral body’s decision to award contracts to three private firms for the purchase of ballot boxes in preparation for the 2011 elections.
The suit marked: FHC/ABJ/CS/783/2010 also had as defendants, the Registrar of Patent, Federal Ministry of Commerce and Industry, the Attorney-General of the Federation (AGF) and the three firms – Emchai Limited, Tambco United Nigeria Ltd and Anowat Project and Resources Ltd.
The plaintiff’s case was that it possessed subsisting patent right over the ballot boxes which INEC had awarded contracts without its (BHL’s) prior consent, as required by law.
But, upon overtures by the AGF for an out of court settlement, the court struck out the case on December 16, 2010 following an application to the effect by the plaintiff’s lawyer. BHL returned to court shortly after settlement became impossible. It filed a similar suit, which was marked: FHC/ABJ/CS/82/201.
In his judgment on June 5, 2012, Justice Bello 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.
The judge 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 judge 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.
Justice Bello voided the rights over similar inventions purportedly issued later, by the Registrar of Patent, to three firms – Emchai, Tambco and Anowat.
He restrained the defendants from further utilising the ballot boxes without the consent of BHL. The judge declared that any unathorised use of the boxes will render null and void, the purpose for which the boxes were used.
Justice Bello refused a subsequent application for stay of the judgment pending appeal, which INEC and Jega filed. In his ruling on May 28, last year, the judge hinged his refusal on the ground that it was declaratory (as the one by Justice Auta).
The judge frowned at INEC’s and Jega’s decision to deploy the same ballot boxes in subsequent elections, including the governorship elections in Edo and Ondo states, without the consent of the plaintiff and in disregard of the court’s orders contained in the June 5, 2012 judgment.
“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 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,” Justice Bello said.
In their appeal numbered: CA/A/535/2012, INEC and Jega are praying the appellate court to set aside the judgment by Justice Bello, arguing among others, that the trial judge erred in granting all the prayers by the plaintiff.
The appeal was filed for them by a team of seven lawyers, including six Senior Advocates of Nigeria. The SANs include Adegboyega Awomolo, Mrs. V. O. Awomolo, A. B. Mahmood, Onyechi Ikpeeazu, H. A. Liman and Ahmed Raji.
The appellant raised five grounds of appeal and distilled two issues for the court’s determination. They challenged the competence of the suit as constituted before the lower court and faulted the decision of the trial judge to grant the plaintiff’s prayers, arguing that the plaintiff did not sufficiently prove its case to have warranted the granting of all the reliefs it sought.
INEC and Jega equally challenged the plaintiff’s locus standi (its right to sue and be heard). They argued that having failed to show before the trial court that it was a corporate entity, registered by the Corporate Affairs Commission (CAC), by allegedly not exhibiting its certificate of registration as required by law, BHL (named as the 1st respondent) ought not to have been granted audience by the trial court.
The appellants also raised the issue of fair hearing, accusing the trial court of denying them their constitutional right to be heard. They denied being served with processes and hearing notices in relation to the case at the trial court. The appellant argued that BHL has not shown anywhere in its pleadings that the appellants were served with the originating summons or any of the hearing notices.
In challenging the competence of the suit at the lower court, the appellants argued that BHL ought to have initiated the suit by way of writ of summons owing to the contentious nature of the claims, which could only be resolved by the calling of further evidence.
They further argued: “The grant of declaratory reliefs as sought by the plaintiff (BHL) are not automatic, rather, they are granted based on proof of cogent, credible, sufficient and reliable evidence to show that it (BHL) is entitled to same. This, the respondent failed to do.”
In its respondent’s brief filed by Karina Tunyan (SAN) and John Okoriko, BHL urged the court to uphold the judgment by the trial court, and “not to disturb the finding of fact reached by the court below” because it proved and established its case with credible affidavit and documentary evidence to the satisfaction of the court.
“This is particularly so when the respondents, including the appellants, did not file any counter affidavit by way of defence to the 1st respondent’s case at the court below despite being served with the originating summons and the various hearing notice,” BHL said.
It argued that since the trial court had delivered its judgment in the case and has become functus officio (it could no longer act on it.), BHL urged the court to disregard the appellants’ argument on whether or not it showed it as a corporate body worthy of being heard.
It submitted that since the issue about its corporate existence was not raised at the lower court, and the appellants having also failed to include it as a ground of appeal in their notice of appeal, they could no longer raise it.
On service, the 1st respondent argued that “there is overwhelming documentary and affidavit evidence, by way of numerous proofs of service and publications in the newspapers, to the effect that the appellants were duly served with both the originating processes and hearing notices of this case.
“In spite of the numerous services of the court processes and hearing notices on the appellants, informing them of the pendency of this suit against them, the appellants refused to appear in court or put up a legal representation in defence of this action against them,” BHL argued.
There many other pending cases involving INEC, Jega, BHL and some others, most of which are offshoots of the case over ballot boxes.
There is a pending appeal by INEC and Jega against the January 28, this year judgment in which Justice Ibrahim Auta of the Federal High Court, Abuja awarded about N17.3billion in favour of BHL and against INEC, Jega and three others for infringing the subsisting patent rights of the plaintiff.
The judgment was on a suit marked: FHC/ABJ/CS/816/2010, 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 AGF, Haier Electrical Appliance Corporation Limited, Zenox Technologies Limited 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.
There are other pending cases in which BHL is among others, seeking 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 are before Justice Ahmed Mohammed (also of the Federal High Court, Abuja).
As the nation prepares for general elections next year, the fear in many quarters is that, beyond the huge public funds being deployed in these legal battles by INEC, no one, as it is the case in actual battle, knows how these cases will end.
There is also the concern over what will happen should the plaintiff, as has been the case in two instances, succeeds in the cases seeking to void the elections held after the June 5, 2012 judgment, including the 2015 elections.
