A recent ruling by the Federal High Court in Abuja against the Independent National Electoral Commission, INEC, and six others over the use of transparent ballot boxes has invalidated the election of President Goodluck Jonathan and the entire 2011 general election, the International Centre for Investigative Reporting is reporting.
In a judgment that has possible far reaching political implications for the current political dispensation, the court also threatens the conduct of the governorship election in Edo State scheduled for next month.
Ruling in a case instituted by Beddings Holdings Limited against INEC, Attahiru Jega, its chairman, the Registrar of Patents, Federal Ministry of Commerce and Industry, and four companies, Justice Adamu Bello declared that the electoral body used the transparent ballot boxes illegally without the consent of the valid patent owner.
Having established Beddings Holding Limited’s ownership of the patent rights to transparent ballot boxes and that they were used without the company’s permission, the court ruled that “any action or actions whatsoever and howsoever taken or purported to have been taken by the defendants relating to the said products without the prior and express license, consent, authority and/or approval of the plaintiff is unconstitutional, illegal, unlawful and is therefore Null and Void.”
Also, significantly, the court placed a perpetual injunction on anyone from using the transparent and collapsible ballot boxes without the consent, license or authority of the patent owner, thus putting the upcoming governorship election in Edo State in jeopardy.
Beddings holdings Limited instituted the case in January, 2011 shortly before the general elections alleging that the electoral body was planning to infringe on it patent rights on transparent ballot boxes.
The company took the action after INEC sought for bids for the supply of transparent ballot boxes for use during the polls.
Bedding Holdings told the court that it wrote the commission to inform it that it holds the patent rights to both collapsible and transparent ballot boxes in Nigeria and that its consent or license was required before they could be used for the elections.
However, the electoral body went ahead and awarded the contract for the supply of the ballot boxes to three companies. The firms are Emchai Limited, Tambco United Limited and Anowat Project and Resources Limited. The three companies and the attorney general are the other defendants in the suit by Bedding Holdings.
Subsequently INEC sought and got approval of the Federal Executive Council, FEC, for the purchase of the ballot boxes.
The President presented the commission’s request to FEC through a memo dated November 15, 2010 in which he sought the council’s approval “for the award of contract for the supply of 150,000 units of Collapsible Transparent Ballot Boxes with pre-numbered security seals at N13, 000.00 each for the conduct of the 2011 General Elections, in favour of Messrs Emchai Limited, in the sum of N1, 950,000,000.00.”
In the memo, the president noted that the same company got the award of the contract for the supply of 300,000 collapsible transparent ballot boxes which were used for the 2007 election by INEC.
He went further to state that “Emchai Limited has the patent to its design and specifications” and that the commission decided to adopt the direct procurement method in the award of the contract to it “in order to maintain standardisation.”
After FEC approved the award of the contract, Bedding wrote a letter to the President dated November 25, 2010 wherein it informed him that is was the bona fide owner of the patent rights on collapsible transparent ballot boxes and that Emchai Limited and INEC had led him to misrepresent the facts put to FEC.
The company told the court that it got no response from the president.
Investigations show that, indeed the registrar of patents, a department in the ministry of commerce and industry, did issue Bedding Holdings a certificate of registration of patent rights No. RP 12994 and a certificate of industrial design rights No. RD 5946 for transparent ballot boxes on January 12, 1998.
Again on November 7, 2006 the registrar of patents, which is now under the ministry of trade and investments, issued Bedding Holdings certificates of registration of patent right (No. RP 16642) and registration of industrial design (No. RD 13841) for an invention names electronic collapsible transparent ballot boxes.
However, the registrar of patent went ahead to issue the same patents to other companies without first invalidating the right of Bedding Holding. On October 14, 2010, it registered and issued a certificate of industrial design rights (No. NG/RD/2010/702) for the same invention, which it renamed Tambco ballot box, to Tambco United Nigeria Limited.
On the same day, the registrar equally issued a certificate of registration of industrial design (No. NG/RD/2010/708) for what it renamed collapsible transparent ballot boxes to Anowat Project and Resources Limited.
Interestingly, the two patents were issues to the companies in October, 2010 the month that INEC called for bids for the supply of transparent ballot boxes.
In its originating summons, Bedding Holdings asked the court to answer four questions and grant seven reliefs. The questions and prayers before the court were to determine and declare that its patent rights over both transparent ballot boxes and electronic collapsible ballot boxes subsist and that the others were illegally issued.
The company also sought a declaration that actions taken by the all the defendants relating to the ballot boxes without its consent, license or authority be declared unconstitutional, illegal, unlawful and therefore Null and Void.
In his judgment, Justice Adamu Bello observed that although all the parties were served with all the processes of the court, only the attorney general of the federation reacted through a memorandum of conditional appearance in which he asked its name to be struck out from the suit.
Agreeing that the attorney general had a basis for the request, the trial judge struck out his name from the suit.
Justice Bello observed that INEC, the Registrar of Patents and the other defendants did not file any processes before the court or make any appearance in spite of evidence that they were served.
He stated that he granted an order of substituted service on the three companies involved when the bailiff reported to the court that the addresses given to INEC by them were found to be either fake or nonexistent. The processes were then pasted on the notice boards of the federal high court, Abuja and the federal high courts in Lagos, Minna and Port Harcourt, the judicial jurisdiction of the firms.
The judge declared that “in the absence of any counter affidavit to controvert the plaintiff’s averments in the affidavit in support of the originating summons, those averments are deemed to be true.”
In his ruling, Justice Bello averred that the distinguishing features of the patents granted Bedding Holdings are that its boxes are transparent and collapsible and that its possesses exclusive rights over any ballot boxes with these specifications.
The judge also determined that the Registrar of Patents erroneously issued patent and design rights to Emchai Limited over Envopac Ballot Boxes in August 2006 instead of and Envoseal, a security plastic coated metal bolt seal, a situation which allowed it bid for supply of transparent ballot boxes.
Justice Bello therefore ruled that the plaintiff’s patent claims supersedes any other subsequently given, thereby rendering others patents issued on transparent or collapsible ballot boxes after Bedding Holdings’ null and void.
However, the two most significant declarations in the ruling are the voiding of all actions taken by the defendants concerning the transparent ballot boxes without the consent or authorisation of the plaintiff and the perpetual injunction restraining anybody from further using the transparent ballot boxes for any purpose without the consent or authorisation of Bedding Holdings.
The import of this is that the 2011 general elections which were conducted using collapsible ballot boxes have been voided while the Edo State governorship election slated for July can also not go on unless with the consent of Bedding Holding.
However, INEC dismissed the claim of Beddings Holding when our reporter sought the commission’s reaction to the court ruling and its implications for the last general elections.
Kayode Idowu, the commission’s spokesman claimed that the electoral body did not use the transparent ballot boxes referred to in the judgment for the 2011 election. He said therefore that the judgment could not in any way affect the 2011 election or the upcoming Edo polls.
Idowu also stated that the commission never knew of the court case until judgment was delivered, inferring that it was not served. He recalled that Bedding Holding had previously taken the electoral body to court in 2010 but hurriedly withdrew it only to institute the latest one.
Contrary to Idowu’s claims, however, court papers obtained by icirnigeria.org showthatINEC was, indeed, served all the court papers by the bailiff. The document shows that the legal the commission and its chairman were separately served in February 2011.
Besides, it is also not true that INEC did not use transparent boxes in the last elections. Apart from the fact that pictorial evidence abound of the commission’s use of transparent ballot boxes, the president’s memo and the approval of FEC were for the supply of transparent ballot boxes for the conduct of the 2011 election.
The Registrar of Patents in the commercial law unit of the ministry of trade and investments, who is in charge of patents and trademarks was unavailable for comments. Her secretary told our reporter that she was away from the office and that she would not be able to speak on the matter as she resumed work only last March.
Also, Edet Oti, head of the legal team in the unit who was said to be conversant with the Bedding Holding case who was also away in Lagos declined speaking on the matter. He told our reporter that he could not speak unless he got permission from the registrar and that that would take over a week.
However, a source in the Registrar’s office who knows about the case informed recollected that Bedding Holding did write a letter to the office complaining of the issuance of another patent for transparent ballot boxes to another firm.
The source said that a tribunal in the office sat on the petition and ruled against Bedding Holding. According to the source, a decision was given to grant all the companies what he termed “concurrent patent rights.”
Explaining why patents were issued to the other companies only following INEC’s calls for bids for the supply of transparent ballot boxes, the source said that it was done because of the timeframe for the elections and to meet the commission’s requirements.
“We did that as a matter of public policy because of the exigency of time because INEC appealed to us that it had a time frame. So we had to meet INEC’s requirements because it said that only one company would not be able to supply the number of ballot boxes it required for the 2011 elections.”
Although INEC does not regard the ruling as posing any threat to the coming elections in Edo State, an Abuja based lawyer, Abdul Mahmud, observed that “if there is an injunctive relief barring INEC from using the boxes because patent rights belong to Bedding, INEC would have to discharge that relief aspect of the judgment.
Another lawyer, however, said that because of the declaratory nature of the reliefs granted bedding, “The ruling cannot be stayed by a court of first instance and the appellate court, meaning that INEC cannot use the patented product for any election while any appeal lasts”