Protections: A Commentary On Trade Secrets In Nigeria – Intellectual Property

Protections: A Commentary On Trade Secrets In Nigeria – Intellectual Property

“Forget patents, trademarks and copyrights… trade
secrets could be your company’s most important and valuable
assets.”


James Pooley, former Deputy Director-General,

World Intellectual Property Organisation (WIPO).1

Introduction

From Campari to Coca-Cola to Google’s
PageRank,
businesses and corporations have continued to keep
their trade secrets (TS), to enhance prospects of their long term,
sustainable future through market relevance and profitable business
operations. Some of these TS have spanned decades, generations and
centuries,2 therefore the need for adequate protection
against prejudicial disclosures, cannot be overemphasised. Whilst
Nigeria – through lack of subject-specific legislation – can be
said to be partly indifferent about TS, other countries like Uganda
(through her Trade Secrets Protection Act
2009)
, the United States of America (through their
Uniform Trade Secrets Act 1985
(UTSA)
3 and the Defend Trade
Secrets Act 2016 (DTSA))
and the World Trade
Organisation (WTO, through Article 39
Trade Related Aspect of Intellectual Property
Rights
1995
(“TRIPS“)), have sought to
protect TS.4

Unlike patents that can be documented, the concept of TS
lies in the fact that it is a ‘secret’;
5
hence a bit ‘difficult’ to regulate and protect. Where
protection of TS is lax, the effect could be drastic and damning
for businesses. TS – as a subset of intellectual property – is a
critical asset that must not be misused, essentially through unfair
competition.6

TS, is essentially a formula, process, device, or other business
information kept confidential to maintain an advantage over
competitors; information – including a formula, pattern,
compilation, program device, method, technique, or process, that:
(i) derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable
by proper means by other persons who can obtain economic value from
its disclosure or use, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its
secrecy.7

Whilst the concepts and facets of TS continue to attract
classification debates and the level of protection it should be
offered, the reality is that our 21st century reality demand that
countries must guarantee and protect TS. Unsurprisingly, the
robustness of extant national TS protection framework could be a
factor in investment competitiveness, an issue of interest,
especially to emerging economies.

This article offers a perspective of TS through an analytical
exploration of the applicable Nigerian legal framework, the
relationship with other IP rights, a comparative analysis with
other jurisdictions and concludes with suggestions for more
efficacious TS protection in Nigeria, pursuant to identified
gaps.

Conceptual Issues: ‘Trade Secrets’

The concept of TS began to develop with the rise of industrial
capitalism in the early 19th century.8 While Patent had
helped to restrain third parties from reaping the fruit of
others’ research and development efforts; it nevertheless was
too costly, unwieldy, and limited to protect the full
range of technological and business innovations and
know-how.9TS on the other hand, does not have to be
innovations or inventions but valuable information (on processes,
finance, technical know-how, and management decisions, etc.) that
are not generally available.
TS encompasses commercially
valuable, sensitive and confidential, but competitiveness
impacting, information or know-how.10

Article 39 TRIPS has classified TS as
undisclosed information that needs to be protected so long as
“such information:

  1. is secret in the sense that it is not, as a body or in the
    precise configuration and assembly of its components, generally
    known among or readily accessible to persons within the circles
    that normally deal with the kind of information in
    question;

  2. has commercial value because it is secret; and

  3. has been subject to reasonable steps under the
    circumstances, by the person lawfully in control of the
    information, to keep it secret.”

In National Mutual v.
Mortensen
11,
this last condition under TRIPS which is
also contained in UTSA was been held by
the United States Court of Appeals, Second Circuit to be a germane
condition. There, it was decided that the fact that the Agency
Office Automation (AOA) information existed in a different,
better-protected format than the physical folders did not elevate
it to TS status. Rather, it is the protection afforded the
information that matters and not the medium of storage.

Thus, TS is different from Patent (which is the closest to TS
amongst the other IP rights) in that there is no need for
registration12 and a timeline of 20 years,13
no territorial limitation,14 and periodic
renewals15. To establish a TS claim, the plaintiff must
be able to establish that: (a) the plaintiff’s information
qualifies for TS protection; (b), the conduct of the acquirer of
the TS is wrongful (thus amounting to misappropriation); and (c)
the plaintiff’s conduct in protecting the TS has been
reasonable under the circumstances.16

Trade Secrets: A Class of Intellectual Property
Rights?

Globally, there has been a wide gulf in the course of the
classification of TS; there has been the classification by
subject-specific laws as a class on its own,17 some have
subsumed TS under the law of contract18 or tort which
attracts civil remedies like damages and injunctions19
while another has had it classified under the law of unfair
competition.20 Another element of the controversy is
whether to classify TS as an IP.

Whilst some have argued that TS does not confer exclusive rights
against the world because an independent discovery of the secret by
a third party would not necessitate an action, others have argued
that it is only a form of property rights.21 TS can
therefore be tagged as usufructuary rights, which confer
rights to use a resource and to be free from interference with the
use, but which do not confer the right to exclude those who derive
benefits from the resource by their independent
efforts.22

A close look at the other IP rights will reveal that TS is in a
class of its own, notwithstanding its resemblance to any of the IP
rights. Whilst: Copyright protects original expression
which may be expressed in writing, songs, artistic works, etc.;
Trademarks seek to protect the consumer’s association
with words, images, etc.; and Patent seeks to protect
innovations and inventions which are expressed in different
processes, formulations, processes and inventions; TS sui
generis
only protects that which is undisclosed so far it has
some economic value.

Rationale: Why Protect Trade Secrets?

One of the questions that have dominated the TS regime is -
why protect TS when it is a ‘secret’? Protecting
TS does not mean acknowledging that they are in the public domain,
ripe for piracy by analysis or otherwise.23 Rather,
it entails preserving the ingenuity of such a secret that has
real economic value for such a business
. According to the
World Intellectual Property Organisation (WIPO), protecting TS will
help to:

  1. maintain and promote standards of commercial ethics and fair
    dealing;

  2. provide an incentive for businesses to innovate by safeguarding
    the substantial time and capital invested to develop competitively
    advantageous innovations, both technical and commercial, and
    especially those that are not patentable or do not merit the cost
    of patenting; and

  3. prevent competitors from using these innovations without having
    to shoulder the burden of costs or risks faced in developing the
    innovations.24

Aside the above, TS being property, can also be used as
collateral in the event of debt financing.25 However,
preliminary execution of agreement amongst the parties concerned to
keep the TS secret must first be executed. Another reason for
protecting is because TS, a form of an intangible asset according
to the Organisation for Economic Cooperation and Development
Base Erosion and Profit Shifting (BEPS) Guidelines
Action 8
may be a source of revenue for an
organisation.

Management and Protection of Trade Secrets in
Nigeria

Despite the increasing number of Small and Medium-scaled
Enterprises (SMEs) and technology-driven start-ups in Nigeria, the
regulation of IP is still limited to Patents, Designs, Copyright,
and Trademark.26 This no doubt imposes a challenge on
the protection of TS in Nigeria and further raises the concern of
possible remedies where such secrets are being breached. In the
absence of any definite legislation protecting or regulating TS in
Nigeria, the originator of such TS has to put in extra effort to
protect such from being disclosed to a third party or the entire
world.

Confidentiality/Non-Disclosure and Non-Compete
Agreements

One such option is to execute a confidentiality/non-disclosure
agreement (CNDA) with every employee and contractor of the
business, most especially those exposed to or who come in contact
with and may have knowledge of such TS.27 Alternatively,
an appropriately worded non-compete clause could be inserted into
employment, service or other contracts (as the case may be) to
protect the interest of the originator of the TS, in the event of
disengagement by resignation or dismissal from
service.28

This was the situation in Koumoulis v. Leventis
Motors Ltd
29 where the Appellant who was
in the employment of the Respondent and in the know of the
Respondent’s TS, resigned and started working with the
Respondent’s competitor, Nigerian Technical Company Limited.
After the Appellant left the Respondent, the Respondent found out
that the business plan which constitutes their TS that was being
discussed within the Respondent’s company had now being
divulged and explored by, the Appellant’s new employer, thereby
leading to loss of business opportunities.

The undertaking in the Appellant’s agreement with the
Respondent that he will not for “a period of one year
undertake to carry on either alone or in partnership nor be
employed or interested directly or indirectly in any capacity
whatever in the business of Merchants Engineers or any other
business carried on by the Company within a radius of fifty miles
from any Trading Station in West Africa”
was held to be
valid. Accordingly, the Appellant was liable to the damages imposed
by the lower court.

Drafting the non-compete clause is critical to ensure that the
provisions do not run the risk of being declared null and void by
the court for being too restrictive.30 In 7th Heaven
Bistro Limited v. Desphande,31 the National Industrial
Court (NIC) found that one of the terms of the Executive Employment
Contract (Expatriate) viz, that the employee is not to accept
employment with any other employer in Nigeria or the same line of
business as the company and/or its shareholders outside of Nigeria
for a period of three (3) years from the date of termination or
resignation, was too restrictive. Consequently, the NIC declared
the provision null and void.

Similarly, the NIC in Samson Systems and Investment
Limited v. Chmchoum
32 and
Infinity Tyres Limited v. Kumar &
Ors
33 had held the non-compete clauses
that prevented the employees from working for five (5) years and
from working in any other company in Nigeria respectively were too
restrictive, hence null and void.

Filling the Gaps: Injunctive Remedy and Other Judicial
Approaches to TS Enforcement

Another remedy that could be in favour of the owner/valid
licensee of the TS is the equitable remedy of injunction – applied
where there is a prima facie case, insufficiency of
damages to remedy the wrong done, the balance of convenience tilts
in favour of the applicant and undertaking as to damages by the
Applicant. 34 The courts, always mindful of the
foundational legal principle of ubi jus, ibi remedium
(where there is a wrong, there must be a remedy) will intervene in
order for justice to come to the aid of the injured or likely to be
injured party.

However, in the absence of specific legislation, the Court has
leaned on the side of the employer to protect information that can
be classified as TS. In Aero Contractors Co. of Nig Ltd
v. Akingbehin,
35 the disclosure of the
Defendant to his Counsel who in return threatened to publish
confidential information with the intent to blackmail the Plaintiff
was held to be a breach of the confidentiality imposed on the
Defendant.

Similarly, the National Industrial Court in
Akinsanya v. Coca-Cola 36 held
that the Plaintiff’s disclosure of official confidential
information – the records of a sensitive internal report pursuant
to a whistleblower’s complaint – to her spouse, was a breach of
the company’s Code of Business Conduct. The Court however
failed to grant any damages against her, because of her wrongful
dismissal by the Defendant.

A clog in the wheel of confidential proceedings on TS in Nigeria
is the provision for public proceedings of civil matters under
section 36(1) and (3) 1999 Constitution of the Federal
Republic of Nigeria (as amended) (1999 Constitution)
.
While the use of Alternative Dispute Resolution (ADR) can help stem
the disclosure in adjudicating disputes, the enforcement procedures
of the award through the judicial system may undermine the secrecy
initially enjoyed during the ADR proceedings.

Concerns: Statutory Confidentiality Protections

One issue of concern is potential exposure of TS subject to
mandatory disclosure as a result of regulatory applications or
other regulatory interactions, to (inimical) third party access.
Given the absence of subject-specific TS legislation, review of
disparate provisions is required to see whether they indirectly
define or protect TS, notwithstanding that the challenge with these
legislations is that they are limited when compared to TS focused
provisions.

For example, the Revised Guidelines for Registration
and Monitoring of Technology Transfer Agreements in
Nigeria
(Guidelines) made
pursuant to the National Office for Technology
Acquisition and Promotion Act
37(NOTAPA)
mandates the submission of relevant technology transfer (service)
agreements (which could implicate disclosure of TS), as part of
documentation requirements for NOTAP’s registration of such
agreement. However, there is no corresponding provision for
protection in both the Revised Guidelines
and the NOTAPA. Even if practice the risk
of unauthorised disclosure is remote, it is however not
non-existent.

Similarly, the Federal Ministry of Interior through
Paragraph 4 Immigration Regulations 2017
and the Handbook on Expatriate Quota Administration
(Revised 2020)
made pursuant to the
Immigration Act requires that Nigerian
companies with foreign participation obtain a Business Permit
before commencing operations. A checklist of documents amongst
others includes a Feasibility Report/Business Plan which could
involve the disclosure of the business model and trade secrets.
38

Whilst arguably, corporate documents submitted to regulatory
agencies accordingly become public documents, 39Rule 030416 and 030417 Public
Service Rules 2008
only imposes an obligation of
“due care and diligence to prevent the knowledge of any
such article, note, document or information being communicated to
any person
against the interest of the
Government
40 but
prohibits disclosures without compliance with official
routine, special permission of Government or with the special
permission
of the Permanent Secretary/Head of
Extra-Ministerial Office of such body. Again it is unlikely that
disclosure to third parties without legitimate right to receive
such can enjoy the validity cloak of the exceptions.

By sections 54 and 55 Finance Act (No.2)
2020
which amended sections
39
and 50
Federal Inland Revenue Service (Establishment)
Act
41, there is now a stricter penalty
for breach of the imposed obligation for confidentiality of tax
payers’ information 42 and criminal liability for
conviction for a fine of N1 million or three (3) years imprisonment
or both. Disclosure must only be on the basis of the stipulated
exceptions (such as in pursuance of any mutual assistance or double
taxation agreements). These provisions as laudable as they may be,
failed to provide for compensation or accounts for profits and
undertaking to pay requisite damages to the taxpayer(s) where there
is a breach of the obligation of secrecy, howsoever arising.

Similarly, section 1 Official Secrets
Act
43 makes it an offence to transmit,
obtain, reproduce or retain classified matter without requisite
authorisation on behalf of the government. 44 The
limitation of this provision to TS is the restriction of classified
matter to information that would be prejudicial to the security of
Nigeria. Although this does not directly protect any TS submitted
as part of regulatory application, presumably the sanctions provide
the necessary incentive for compliance, and thereby obviate the
risks and consequences of breach.

Probably the most significant “reassuring” provision
from a regulatory interface TS protection perspective is
section 15(1)(a) Freedom of
Information Act 2011 (FOIA).
45 It
mandates public institutions to deny applications for information
that contains “trade secrets and
commercial or financial information obtained from a person or
business where such
trade secrets
or information are proprietary, privileged or confidential, or
where disclosure of such trade secrets or information may cause
harm to the interests of the third party.

Section 15(1)(a) is thus a welcome
curtailment of the section 1 right of an
applicant to request information in the custody of any public
official, agency or institution.

Since disclosure otherwise than in valid performance of official
duties is either expressly forbidden or would be generally as
presumed unlawful at common law, whilst the
FOIA excludes TS from disclosure,
arguably the cumulative effect of the Nigerian regulatory regime is
that there is some, albeit insufficient protection of TS.

Monopoly and Anti-Trust Concerns

The question may be asked: will the protection of TS by private
individuals and corporations not lead to a dominant position or
monopoly thereby leading to market abuse? This writer does not
think so.

By section 70(2) Federal
Competition and Consumer Protection Act 2019 (FCCPA),

46 an undertaking is said to be in a dominant position
where it “enjoys a position of economic strength enabling
it to prevent effective competition being maintained on the
relevant market and having the power to behave to an appreciable
extent independently of its competitors, customers and ultimately
consumers.”
Monopoly on the other hand deals with the
commercial terms of manufacture, sale and supply of goods and
services so far it affects competition in Nigeria.
47

The above when compared to TS reveals that there is no
confluence. Whilst TS is restricted to secrets that have economic
implications, dominant position and monopoly are concerned about
competition through price fixing, free trading and supply of goods
and services.

Comparative Scan: Trade Secrets in Other
Jurisdictions

United Kingdom (UK): The UK had overtime relied on the
common law (especially contractual principles) in granting remedies
for infringement of TS until the EU Trade Secrets
Directive 2016/943
and the Trade Secrets
(Enforcement, etc.) Regulations 2018 (Regulations)

were issued. 48The
Regulations
introduced confidentiality document
disclosures by way of application or knowledge in the course of
proceedings, which applies even after the proceedings have ended.
49 Also, the grounds for grants of interim injunction
and final award of remedies are spelt out to guide the Court such
as the value and other specific features of the trade secret, the
measures taken to protect the trade secret, etc.

Peoples’ Republic of China: China in also
protecting TS has enacted the Anti-Unfair Competition
Law 2019.
Specifically, Article
9
provides that a business is not allowed to: (a)
acquire TS through theft, bribery, fraud, coercion, electronic
intrusion, or any other illicit means; (b) disclose or allow
another person to use a TS acquired from the right holder, or in
breach of confidentiality obligations; and (c) abet any form of
infringement of the TS. Breach triggers remedies such as damages to
the tune of up to 500% of the amount of damages caused (or a
maximum of five million yuan (¥5,000,000) where the actual loss
cannot be determined), 50 injunction and confiscation of
the income and imposition of financial penalties. 51

There is a further provision for confidentiality during
investigation 52 and punishment under the law where an
employee of the Government Authority engages in acts that foster
the infringement of TS that the employee becomes aware of in the
course of an investigation. 53 In an action for
infringement, all the owner/obligee of the TS has to establish is:
(a) preliminary evidence that he (the owner/obligee) has taken
steps to ensure confidentiality; (b) the TS has been infringed; and
(c) any of these: (i) evidence of access of the infringer to the TS
and that the information used is identical to his; or (ii) that the
information has been disclosed or risks being disclosed by the
infringer; or (iii) any other evidence of infringement by the
infringer. 54

United Stated of America (USA): In the USA,
Section 2(2) DTSA provides for ex
parte
application for the propagation or dissemination of the
TS. The Court is also expected to grant protection from publicity
by the Respondent, the content of the injunctive order and the
materials seized pursuant to the injunction. Where there is a case
of misappropriation of TS, the court may grant an award of damages,
injunction or two-times amount of damages where such
misappropriation was wilful and malicious. Furthermore, where the
case of misappropriation is made in bad faith, the law allows an
award of reasonable attorney’s fees to the other party.

Conclusion

The need to protect TS in Nigeria is gaining traction daily,
most especially with the adoption of remote working and the
entrepreneurial underpinnings of business impacting technological
innovations and other non-technical ideas that are being developed.
While the Court has at some point helped to preserve the ingenuity
of these TS, the lack of subject-specific laws and mandatory
confidentiality requirements is still a huge hindrance to its
maximum protection. For instance, the use of the Court to protect
TS or through enforcement of awards pursuant to an ADR process can
be counterproductive considering the fact there could be eventual
disclosure to third parties or the entire world in the courtroom
and through case law reporting.

As it stands in Nigeria, apart from the few remedies already
stated, there is no other law or mechanism set up that protects TS.
The National Assembly or the State Houses of Assembly 55
should enact subject-specific legislation like the
DTSA and the
Regulations which provide for injunctive
relief against propagation or dissemination of TS, protective
measures in trials 56 and for materials seized and
remedies in case of actual or attempted prejudicial disclosure like
injunction and damages, and award of cost of attorney’s fees
where an injunction was obtained unduly.

Footnotes

1. K.F. Jorda, ‘Trade
Secrets and Trade-Secret Licensing
‘, in A.
Krattiger, et al (eds.), ‘Intellectual
Property Management in Health and Agricultural Innovation: A
Handbook of Best Practices’
, (MIHR 2007),
p.1046
: http://www.iphandbook.org/handbook/chPDFs/ch11/ipHandbook-Ch%2011%2005%20Jorda%20Trade%20Secret%20Licensing.pdf
(accessed 19.02.2021).

2. Col. Sanders’ handwritten original
recipe of 11 herbs and spices for KFC in 1940, WD-40’s
formula for a rust-prevention solvent and degreaser for the
aerospace industry since 1953 and Coca-Cola’s recipe
which was invented in 1886 are examples of TS that have been
treasured and protected over the years. See R. Mark Halligan,
‘The Secret of Trade Secret Success
‘, Forbes,
19.02.2010
https://www.forbes.com/2010/02/19/protecting-trade-secrets-leadership-managing-halligan-haas.html?sh=24daab941372
(accessed 16.12.2020).

3. This is a uniform law which has been
adopted by most States in the United States of America except some
States like New York.

4. Article 39
TRIPS
specifically references it as
undisclosed information“, and not
trade secrets.”

5. “For a trade secret to have
any practical value, the owner usually must share it in order to
collaborate with a limited group of employees and business
partners. Laws thus expect and account for a certain amount of
protected disclosure, within a constrained circle. Nevertheless,
even if trade secrets are not “secret” in the strictest
sense of the term, they must in fact remain non-public and known
only to a limited number of people
.” OECD,
Enquiries into Intellectual Property’s
Economic Impact’,
2015, p. 130: https://www.oecd.org/sti/ieconomy/Chapter3-KBC2-IP.pdf
(accessed 09.12.2020).

6. Faisal Santiago,
Trade Secret Protection on Globalization
Era’,
European Research Studies Journal, 2017
Vol. 20 No.4A, p. 67.

7. Bryan A. Garner,
Black’s Law Dictionary’
(Thomson Reuters, 9th ed., 2009), p.1633.

8. Robert G. Bone,
A New Look at Trade Secret Law: Doctrine
in Search of Justification’,
California Law
Review, 1998 Vol. 86 No. 2, 251
.

9. Peter S. Menell,
Tailoring a Public Policy Exception to
Trade Secret Protection’,
California Law
Review, 2017 Vol. 105 No. 1, p.8.

10. C. Cronin and C. Guillemin,
‘Trade Secrets: European Union Challenge in a
Global Economy’,
International Fragrance
Association, p.2
: https://ifrafragrance.org/docs/default-source/policy-documents/22900_pr_2012_02_09_trade_secrets__eu_challenge_in_a_global_economy.pdf?sfvrsn=dd65b7d1_0
(accessed 16.12.2020).

11. 606 F.3d 22 (2d Cir.
2010)
decided on 11.05.2010.

12. An invention must be registered under
section 3 Patents and Designs Act Cap P2, LFN 2004
(PDA)
to enjoy the privilege of a patentable
invention under section 6 PDA.

13. Section 7
PDA
provides that a patent shall expire at the end of
the twentieth year from the date of the filing of such
application.

14. Enforcement of patent registered
outside Nigeria becomes applicable in Nigeria provided; (i) there
is an order in the Federal Gazette declaring a treaty, convention
or other international arrangement or agreement to which Nigeria is
a party (Section 27
PDA
); and (ii) an application for an
a applicant to avail himself of a foreign priority in respect of an
earlier application made in a country outside Nigeria.
Section 3(4) PDA.

15. The PDA
provides for the payment of annual dues as a condition for the
continual validity of the patent for twenty years.
Section 17 and 18 Patents
Rules
(made pursuant to Section 30
PDA
).

16. W.S. Coats et al,
‘Internet Law and Practice’,
(Thomson Reuters, 2012), p.18-6.

17. The United States of America has by
the UTSA and
DTSA protected TS.

18. An example is the use of
non-disclosure agreements in contracts of employment.

19. The classification of TS as a tort
can be traced to collection in the ‘Restatement of
Torts’
published in 1939. See Peter S. Menell, op.
cit., p. 14.

20. See Article 10bis Paris
Convention for the Protection of Industrial Property
1883
and Unfair Competition Prevention
Law Act
No. 47 of 1993 of
Japan
.

21.The US Supreme Court in
Ruckelshaus v. Monsanto Co.
467 U.S. 986 1001-1004 found that TS were
in fact property and that “trade secrets have many of the
characteristics of more tangible forms of property. A trade secret
is assignable. A trade secret can form the res of a trust and it
passes to a trustee in bankruptcy.

22. OECD,
Enquiries into Intellectual Property’s
Economic Impact
‘, 2015, p. 134: https://www.oecd.org/sti/ieconomy/Chapter3-KBC2-IP.pdf
(accessed 09.12.2020).

23. Prof. François
Dessemontet, ‘Protection of Trade
Secrets and Confidential
Information’
, (undated),
p.3:
https://www.unil.ch/files/live/sites/cedidac/files/Articles/Protection%20Trade%20Secrets.pdf;Protection
(accessed 14.02.2021).

24. WIPO, ‘Trade
Secrets
‘, Module 4, https://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_panorama_4_learning_points.pdf,
(accessed 14.02.2021).

25. Daniel P. Saredau, et al,
The Legal Regime for Protection
of Trade Secrets in Nigeria: Breach of Confidence Claim as
Gap-Filler
‘, NAUJCPL (2020)
Vol. 7 No. 1, p.3:
https://journals.unizik.edu.ng/index.php/jcpl/article/view/355/330
(accessed 14.02.2012).

26. See the
PDA, Copyright
Act
Cap. C28, LFN 2004 and
the Trademarks Act Cap. T13,
LFN 2004
.

27. “Factory owners and other
innovative businesses came to use physical security around their
facilities,
nondisclosure
agreements
, and other techniques to secure
protection for the broader range of technological advances and
strategic information driving their competitive
advantage
.” Peter S. Menell, (supra), (emphasis
supplied). Such CNDA may be separate, embodied in a clause of
another agreement, explicitly undertaken or impliedly in fact or
may be accompanied with an undertaking to pay cost.

28. François
Dessemontet, (footnote 23 (supra)),
p.5
.

29. (1973)
LPELR-1710(SC).

30. See Israel Olawunmi,
Non-Compete Clauses in Contracts of Employment:
Contractually Beneficial or a Challenge to Public
Policy?
‘, DNL Legal & Style, 03.08.2020 https://dnllegalandstyle.com/2020/non-compete-clauses-in-contracts-of-employment-contractually-beneficial-or-a-challenge-to-public-policy-israel-olawunmi/
(accessed 16.12.2020).

31.Unreported Suit No:
NICN/LA/87/2015, Obaseki-Osaghae, J’s Judgment of
27.09.2018.

32. Unreported Suit No:
NICN/LA/396/2015, Peter, J’s Judgment of
13.03.2019.

33. Unreported Suit No:
NICN/LA/170/2014, Kanyip, J’s Judgment of
11.07.2018.

34. See Obeya Memorial
Hospital v. A- G Federation [1985] 3 NWLR (Pt. 60), 325
SC.
In Celgard, LLC v. Shenzhen Senior Technology Material
Co Ltd
[2020] EWHC 2072 (Ch.) the
Chancery Division, England considered similar grounds in granting
injunction against the Defendant. In this case, Celgrad was held to
have adduced sufficient evidence to establish that the Defendant
was producing battery separators using Celgrad’s confidential
information and TS obtained from two of Celgrad’s former
employees.

35. Unreported Suit No:
NICN/LA/123/2013, Oyewunmi, J’s Judgment of
16.06.2015.

36. Unreported Suit No:
NICN/LA/40/2012, Kanyip, J’s Judgment of
07.04.2016.

37. Cap. N62, LFN
2004.

38. See generally, Afolabi Elebiju,
Musing II: Is Business Permit under the
Immigration Act Still Tenable in Nigeria
‘,
LeLaw Thought Leadership Perspectives, December 2020 https://lelawlegal.com/add111pdfs/AE_-_Business_Permit_in_Nigeria.pdf
(accessed 15.02.2021).

39. See for example, section
102(b) Evidence Act 2011
which provides that public
records kept of private documents are public
documents.

40. The restriction to the
“interest of the government” does not favour
individual(s) or corporation(s) who have had their TS being
disclosed without any corresponding remedy like damages, account
for profit and confiscation of goods where necessary.

41. No. 13 of
2007.

42. For example, detailed
information/documentation requirements under the
Transfer Pricing Guidelines 2018 may make
TS disclosure inevitable.

43. Cap. O3, LFN
2004.

44. See section
7
for sanctions of terms of imprisonment and fines
for offences committed under sections
1,2,3
and 5 of the
Act. The fines are paltry (maximum of
N200), whilst by section 7(3),
proceedings may not be brought without the consent, authority or
instructions of the Federal or State Attorney-General/Director of
Public Prosections (DPP).

45. No. 4 of
2011.

46. No. 1 of
2019
.

47. Part X
FCCPA.

48. Prior to Britain’s exit from the
European Union (‘Brexit’), Article 288 Treaty
on the Functioning of the European Union 1957
provide
that a directive shall be “binding, as to the result to be
achieved, upon each Member State to which it is addressed, but
shall leave to the national authorities the choice of form and
methods.”
It is based on this that Britain in 2018 issued
the Regulations.

49. Regulation
10.
This further applies to restricting access to
documents and persons to the proceedings and making an abridged
version of the reports of the case whereby, information containing
the TS has been expunged or redacted.

50. Article
17.

51. Fines of between ¥100,000 (One
Hundred Thousand Yuan) and ¥1 Million, but where the
circumstances are serious, a fine of between ¥500,000 and
¥5 Million could be imposed: Article
21.

52. Article
15.

53. Article
30.

54. Article
32.

55. Arguably, State Governments can enact
laws on TS since TS is not on the Exclusive
List
in Schedule II, Part I
and the Concurrent List in
Schedule II, Part II, 1999 Constitution.
Item 13 and 43, Part 1, Schedule II (the
Exclusive Legislative List) only made
provision for copyrights, patents, trademarks, trade or business
names, industrial designs and merchandise marks. Any matter which
is not contained in both the Exclusive and Concurrent List is
deemed to be a ‘residual matter’ and therefore
within the purview of the State Houses of Assembly and the National
Assembly for the Federal Capital Territory (FCT) alone. The Supreme
Court in supporting this conclusion held in A.G. Ogun
State v. Aberuagba & Ors (1985) LPELR-3164 (SC)

per Mohammed Bello JSC that “a
careful perusal and proper construction of section 4 would reveal
that the residual legislative powers of government were vested in
the States. By residual legislative powers within the context of
section 4, is meant what was left after the matters in the
Exclusive and Concurrent Lists and those matters which the
Constitution expressly empowered the Federation and the States to
legislate upon had been subtracted from the totality of the
inherent and unlimited powers of a sovereign legislature. The
Federation had no power to make laws on residual
matters.
” See also A.G. Lagos State v. A.G.
Federation (2003) LPELR-620 (SC)
per Onu
JSC
where he held that “since town and
regional planning is not in the Exclusive and Concurrent Lists, it
is clearly a residual matter for the States.”
Meanwhile,
the National Assembly by sections 4(4)(b)
and 299 1999 Constitution can only
legislate on TS for the purpose of the FCT. See
Fawehinmi v. Babangida & Ors (2003)
LPELR-1255(SC)
where it was held that the
Tribunals of Inquiry Act is only limited
to the FCT.

56. Section 36
(1)
and (3) 1999
Constitution
must be first amended to grant the Heads
of Courts or the State Legislatures the allowance for ‘secret
trials’ in civil proceedings that involves TS. Parties can
therefore first file an abridged version of the court process and
an ex parte application for a secret trial stating in the
accompanying affidavit that the matter to be filed involves TS.
Where the court in the course of proceedings finds out otherwise,
the court can order that the matter be transferred to the general
cause list to allow public trials.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Source: www.mondaq.com