Can IP really halt a general election?

Can IP really halt a general election? Possibly, in Nigeria, says Kingsley Egbuonu (currently reading for a MSc in the Management of Intellectual Property at the Centre for Commercial Law Studies, Queen Mary, University of London), referring to the recent High Court Abuja decision in Bedding Holdings v INEC & Others. Since this case began with allegations of fraud and corruption and even once involved the police and the EFCC (Nigeria's anti-graft agency), it is extremely difficult to analyse this case without steering into politics.

Bedding Holdings, brought an action in November 2010 against the Independent National Electoral Commission (INEC) and the other defendants, asserting that it had exclusive patent rights to produce Electronic Collapsible Transparent Ballot Boxes (ECTBB), as well as being the patentee of the Proof of Address System/Scheme (PASS), used for the collation and collection of the names, age, gender, address, fingerprint, geographical description and location of various places in the country, including the biodata of every person resident in Nigeria.

In its infringement claim, Bedding sought N10 billion (£41,620, 251.67p) in damages, together with an order for interim injunctive relief to restrain INEC from awarding contracts and going ahead with its planned voter registration exercise pending the hearing and determination of the substantive suit. The court granted this request on 3 December, though at least one report suggests this was in fact struck out.

On 13 December the court rejected the defendants' claim to set aside the order on the grounds that (a) the act which the claimant sought to prohibit had already been completed; (b) the claimant’s case lacked substance since no intellectual property right subsisted, (c) the action threatened the holding of the 2011 general election and (d) the claimant had not provided sufficient undertaking for the relief sought (see here).

Kingsley has managed to find the laws/rules governing intellectual property in Nigeria here, though failed to locate the official national IP office’s website or supposedly, the site holding information on registered patent rights in Nigeria (see the National Office for Technology Acquisition and Promotion here).

With the nature of information gathering, storage and dissemination in Africa, it is often the case that accurate or up-to-date information is scarce or complicated because those seeking justice just simply have no clue where to find it. This is evident from the report here that Technocrat Consult and IT Systems Limited (and perhaps the same claimant, Beddings Holdings) filed a law suit against same defendants, and various other reports also alleging copyright infringement. There is also a report that this suit was struck out on same day because the claimant had apparently named the wrong defending parties in the particulars of claim.

It is Kingsley's understanding that Bedding Holding took similar claim to court three years ago (see here) but still participated in the tendering process to supply the article(s) in question. Whether it dropped the case a few years ago and/or resurrected it in grief, having lost out on this particular contract, is another fairy tale.

Kingsley has also learned that the claimant did involve the president in this matter with a letter seeking his intervention in evidencing a certificate of registration of various patent and design rights.

Apart from obvious inadequacy of law reporting in Nigeria, Kingsley says, one would imagine that several eyebrows or questions would be raised by IP practitioners and enthusiasts in well-established jurisdictions on two essential issues in any litigation: (a) costs and (b) professional ethics (misleading the court/abuse of court process).

Kingsley would very much appreciate responses and comments from any readers of this weblog who have sufficient familiarity with both the Nigerian system for patent litigation and any other system to be able to highlight differences between them in procedural and substantive terms, especially with regard to issues such as how to deal with frivolous claims and counter-claims, and whether the public interest in holding a general election can in any other jurisdiction be seriously raised as a ground upon which to resist an action for infringement or an application for interim injunctive relief.

Kingsley concludes by expressing the belief that, among other areas, intellectual property law and practice in Nigeria needs urgent technical legal assistance -- and the sooner that comes, the better if foreign direct investment and local businesses are to thrive.

The Court's decision in Bedding Holdings v INEC & Others was expected this month.