ZINOX TECHNOLOGIES LTD v. BEDDING HOLDINGS LTD & ORS
(2021)LCN/15891(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, June 18, 2021
CA/A/132/2014
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
ZINOX TECHNOLOGIES LIMITED APPELANT(S)
And
1. BEDDING HOLDINGS LIMITED 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. PROFESSOR ATTAHIRU MOHAMMED JEGA (CHAIRMAN, INEC) 4. THE ATTORNEY-GENERAL OF FEDERATION AND MINISTER OF JUSTICE 5. HAIER ELECTRICAL APPLIANCES CORPORATION LIMITED RESPONDENT(S)
RATIO
THE STANDARD OF PROOF IN CIVIL CASES
It is necessary to note that none of the parties tendered any evidence to debunk the validity of the Exhibits B, C, and D, the Patents Right and Design of the 1st Respondent. However, it is pertinent to note that the existence and tendering of Exhibits B, C and D without more is not the establishment of the 1st Respondent’s case. The question needs be asked whether the 1st Respondent discharged the burden of proof of the duty which rested squarely on it given its assertion that the Appellant had infringed its right. Did it prove its case on the preponderance of evidence or balance of probabilities as required in civil matters. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 PT. 540 1, ITAUMA V. AKPE-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214 and LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228. A party is not allowed to rely on the weakness of the case of the opposing side, rather should rely on the strength of his case. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65. PER WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated as a result of the judgment of the Federal High Court, Abuja, delivered on January 28th, 2014 by Hon. Justice Ibrahim N. Auta C. J wherein the Court entered judgment in favour of the 1st Respondent (the Plaintiff at the Court below) that it proved its right to the intellectual property in question.
The Appellant, (the 5th Defendant at the Court below) was dissatisfied with the Court’s decision and therefore filed its Notice of Appeal dated March 12th, 2014, with eleven (11) grounds of appeal (12A-L), contained on pages 3-8 of the Supplementary Record ll.
The relief being sought from this Court in the main is, to allow this appeal and dismiss the entire suit of the 1st Respondent.
At the Court below, the 1st Respondent claimed as follows against the Appellant and the 2nd to 6th Respondents vide its amended statement of claim:
1. A declaration that the Plaintiff is the bona fide owner of the Patent Rights No. RP 16642 and Copyrights Designs No. RD 13841 in and over Electronic Collapsible Transparent Ballot Boxes (ECTBB) and Patent Rights No. RPNG/P/2010/202 – Proof of Address System/Scheme (PASS) (Embedded with the Concept of the Coded Metal Plate) and the process and application of these products respectively to produce the Voter’s Register.
2. A declaration that the contract entered into between the 1st and 2nd Defendants of the one part and the 4th – 6th Defendants of the other part for the production, procurement, supply, acquisition, importation, procurement, purchase, receipt, sale, of the Direct Data Capturing Machines, Laptops and/or any other equipment ancillary to, or associated with the process and application of the said products for the registration of voters and/or the collation/compilation and production of the Voter’s Register for the 2011 general elections or any other elections without first seeking and obtaining the written license, consent and authority of the Plaintiff is a flagrant infringement on the Plaintiff’s Patent Rights No. RP 16642 and Copyrights Designs No. RD 13841 in and over Electronic Collapsible Transparent Ballot Boxes (ECTBB) and Patent Rights No. RPNG/P/2010/202 – Proof of Address System/Scheme (PASS) (Embedded with the Concept of the Coded Metal Plate).
3. A declaration that the Plaintiff is entitled to 50% of the total contract sum of N34,517,640,000 (Thirty Four Billion, Five Hundred and Seventeen Million, Six Hundred and Forty Thousand Naira Only), which is N17,258,820,000 (Seventeen Billion, Two Hundred and Fifty Eight Million, Eight Hundred and Twenty Thousand Naira only) being the minimum reasonable royalty accruable to the Plaintiff for the production, procurement, supply, acquisition, importation, procurement (sic) purchase, receipt, sale, of the Direct Data Capturing Machines, Laptops and/or any other equipment ancillary to, or associated with the process and application of the said products for the registration of voters and/or the collation/compilation and production of the Voter’s Register for the 2011 general elections or any other ejections (sic) by the Defendants (particularly the 4th – 6th Defendants) without first seeking and obtaining the written license, consent and authority of the Plaintiff who is the bona fide patentee of the Patent and Designs Rights in an over the process and application of the said products respectively to produce the Voter’s Register.
4. An order compelling the Defendants to obtain the plaintiff’s written license, consent and authority forthwith for the production, supply, acquisition, importation, procurement, purchase, receipt, sate, of the Direct Data Capturing Machines, Laptops and/or any other equipment ancillary to, or associated with the process and application of the said products for the registration of voters and/or the collation/compilation and production of the Voter’s Register as bona fide patentee of the Patent and Design Rights in and over the said process and application of these products respectively to produce the Voter’s Register.
ALTERNATIVELY:
5. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants either by themselves, agents, privies, surrogates or any other person or persons claiming through them, from producing, procuring, acquiring, improving, buying, receiving, selling, teasing, alienating or otherwise using the Direct Data Capturing Machines, Laptops and/or any other equipment ancillary to, or associated with the process and application of said products being supplied or supplied to the 1st and 2nd defendants for the registration of voters and/or the collation/compilation and production of the Voter’s Register for the 2011 general elections or any other elections whatsoever EXCEPT with the prior written license, consent and authority of the Plaintiff to that effect.
6. THE SUM OF N20,000,000,000.00 (Twenty Billion Naira Only) being general damages for the acts of infringement committed by the Defendants on the Plaintiff’s Patent rights No. RP 16642 and Copyrights Designs No. RD 13841 in and over Electronic Collapsible Transparent Ballot Boxes (ECTBB) and Patent Rights No. RP NG/P/2010/202 – Proof of Address System/Scheme (PASS) (Embedded with the Concept of the Coded Metal Plate) for the production, procurement, acquisition, importation, and/or supply of the Direct Data Capturing Machines, Laptops and/or any other equipment ancillary to, or associated with the process and application of the said products for the registration of voters and/or the collation/compilation and production of the Voter’s Register for the 2011 general elections of any other elections without first seeking and obtaining the written license, consent and authority of the Plaintiff. As garnered from the printed record before this Court, the facts involved in this appeal, briefly are that, the 1st Respondent claimed infringement of its Patent Rights No. RP 16642 and Copyrights Designs No. RD 13841 in and over Electronic Collapsible Transparent Ballot Boxes (ECTBB) and Patent Rights No. RPNG/P/2010/202-Proof of Address System/Scheme (PASS) (Embedded with the Concept of the Coded Metal Plate), the process which it claimed was used by the Appellant and the 2nd 5th Respondents for the production of the voter’s register used for the conduct of the 2011 general elections, amongst other elections. That, the 2nd – 5th Respondents failed to seek and obtain its prior written license, consent and authorization as it is the bona fide patentee of the Patent and Designs Rights in and over the process and application for the production of the Voter’s Register. It therefore instituted a suit against the Appellant and the 2nd to 6th Respondents at the Court below in pursuit of afore said claims.
The 2nd Respondent headed by the 3rd Respondent, awarded the contract for the production of the Direct Data Capturing Machines (DDC Machines) to the Appellant, 4th and 5th Respondents, which contract the 1st Respondent claimed, its prior written consent ought to have been sought and obtained. As already stated, the Court found in favour of the 1st Respondent and consequently the instant appeal by the Appellant.
The parties in compliance with the Rules of this Court filed and exchanged their briefs of argument. The Appellant’s brief as amended, dated July 8th, 2016, filed July 11th, 2016, which was settled by A. B. Anachebe, SAN was deemed as properly filed and served on November 14th, 2017. Mr. Anachebe SAN who argued the appeal urged that, the appeal be allowed. The 1st Respondent’s brief which was settled by John Okoriko Esq., dated October 16th 2020 as amended, was filed October 19th 2020 and deemed as properly filed and served. Mr. Olalekan Ojo Esq., on behalf of the 1st Respondent urged that the appeal be dismissed.
The 2nd to 5th Respondents filed no brief and urged nothing on the Court.
APPELLANT’S ISSUES SUBMITTED FOR DETERMINATION
i. Whether the Court below had the jurisdiction to entertain this suit when the Respondent failed to establish that it is a juristic entity capable of maintaining the suit (Ground K).
ii. Whether the judgment of the lower Court is legally sustainable despite non-production in evidence of both the mutual contract document and the claimed patented inventions on which the Respondent’s case was premised (Grounds A & J).
iii. Whether upon a proper evaluation of the pleadings and evidence, the conclusion of the learned trial Judge that the Respondent had established by overwhelming evidence that his patent rights had been infringed on, is justified (Grounds B, C, F & L).
iv. Whether in any case, upon a proper application of relevant provisions of the Patent & Designs Act, the claimed “inventions” relied on by the plaintiff are valid and in the circumstance of this case, judicially enforceable against the Appellant (Grounds D, E, G & I).
v. Whether the lower Court in its judgment, rightly relied on an unpleaded book tendered by the Plaintiff/Respondent from the Bar during final address, when the author was neither fielded nor subjected to cross-examination by the Appellant (Ground H),
1ST RESPONDENT’S ISSUES SUBMITTED FOR DETERMINATION
1. Whether the Appellant joined issue with the 1st Respondent in respect of paragraph 1 of the 1st Respondent’s Statement of claim in their statement of Defence concerning the juristic personality of the 1st Respondent to have necessitated the 1st Respondent tendering in evidence before the trial Court the 1st Respondent’s Certificate of Incorporation.
2. Whether the non-production of evidence contract between the 2nd and 3rd Respondents on the one hand and the Appellant and the 4th and 5th Respondents on the other hand by the 1st Respondent in establishing its claim under the registered patents is fatal to the case of the 1st Respondent.
3. Whether upon a proper evaluation of the totality of the evidence before the trial Court, the 1st Respondent established that its patent rights had been infringed by the Appellant and the 2nd – 5th Respondent to justify the judgment of the Honourable trial Court delivered in favour of the 1st Respondent.
4. Whether by virtue of the relevant provisions of the Patent and Design Act, Cap P2, Laws of the Federation of Nigeria, 2004, the registered patents of the 1st Respondent are valid and judicially enforceable against the Appellant and the 2nd – 5th Respondents in the circumstances of this case.
5. Whether the learned trial Judge rightly relied on the Book; Reflections of A Nigerian Electoral Umpire by Abel Guobadia submitted to the Court as an additional authority during the delivery of final written address by the 1st Respondent’s Counsel, even though the Book was not pleaded or its author cited as witness and subjected to cross-examination.
I have very carefully read through the two sets of the issues submitted by both sides for determination. I find amongst others that the third issue by both parties are quite similar and in my view, humbly, will determine this appeal in a fair and just manner. In that wise, issue 3 by the Appellant as follows is adopted:
“Whether upon a proper evaluation of the pleadings and evidence, the conclusion of the learned trial Judge that the Respondent had established by overwhelming evidence that his patent rights had been infringed on, is justified. “
SUBMISSIONS MADE ON BEHALF OF THE PARTIES
APPELLANT’S SUBMISSION
The learned silk for the Appellant, Mr. A, B. Anachebe, submitted that the 1st Respondent failed to establish its juristic personality, notwithstanding the Appellant’s admission in its pleading in that regard and cited in support the cases of AJAO V. SONOLA & ANOR. 1973 5 SC 119, MANAGEMENT ENTERPRISES LTD. V. JONATHAN OTUSANYA 1987 4 SC 367 and FAWEHINMI V. NBA (NO. 2) 1989 2 NWLR PT. 105 558. That, the issue of legal personality is a matter of law and cannot be settled by pleadings and that there is no presumption of legitimacy in favour of an artificial entity and cited the cases of ABU V. OGLI 1995 8 NWLR PT. 413 353, NJEMANZE V. SHELL BP 1966 NCLR 284 and AGBONMAGBE BANK LTD V. G.B.O. LTD. 1961 1 ALL NLR 11. Therefore, the Court lacked the jurisdiction to entertain the suit for the 1st Respondent’s failure to establish that it’s a juristic person.
He argued that the Court was wrong to have granted the 1st Respondent patent right over a “product” and “process” which were not proved by evidence as it failed to tender the patented inventions, the “Transparent ballot boxes, and collapsible poling booths” or “Proof of address system/scheme”. That, the patentee had the burden to show what act constituted an infraction of his right and that it comes under Section 25 (1) of the Act. Further that, it failed to place before the Court evidence of the kind and terms of the alleged contract between the Appellant and the 2nd and 3rd Respondents which the 1st Respondent claimed it read about in the Newspapers including This day Newspaper of Friday July 23rd, 2010 and that, the Court could not rely on Newspaper report. In support cited the cases of LEKWOT V. JUDICIAL TRIBUNAL 1997 8 NWLR PT. 515 22, NITEL V. OGUNBIYI 1992 7 NWLR PT. 255 543, OLATUNJI V. MILITARY GOVERNOR (OYO) 1995 5 NWLR PT. 397 586, OYINLOYE V. ESINKIN 1999 10 NWLR PT. 624 P. 540 and OBI V. INEC 2007 11 NWLR PT. 1046 565.
He argued that all the reliefs granted to the 1st Respondent particularly the declaratory judgment for “minimum reasonable royalty” are speculative and cannot be justified. Further that, the Court was wrong when it granted monetary relief in disregard of Section 21 of the 1st Schedule to the Patents and Designs Act which exempts liability for any patented article purchased used or vended by or on behalf of a government agency, as in the instant, the INEC, the 2nd Respondent. That, the 1st Respondent failed to properly plead the claim for royalty which is a claim for special damages which must be specially pleaded, particularized and proved before it can be granted. He cited in support the cases of UNION BANK V. AJABULE 2011 18 NWLR PT. 1278 P. 152, OSUJI V. ISIOCHA 1989 3 NWLR PT. 111 P. 623 and LAYINKA V. MAKINDE 2002 10 NWLR PT. 775 P. 358.
He argued that the Appellant was never contracted to supply such product or device as claimed by the 1st Respondent nor did it supply any of such. That, the ECT BB and PASS of the 1st Respondent are both not ejusdem generis with the DDC Machines and Laptops and that the 1st Respondent has no patent over the DDC Machines and voter’s register. He asserted that the Appellant is an Original Equipment Manufacturer of the DDC Machine, which has as its main components, a laptop, printer, scanner, camera and software. He argued that from the dates of the 1st Respondent’s ECTBB and PASS, 27/11/06 and 24/02/10 respectively, it shows that Exhibits K and L produced by the Appellant, predate the ECT BB and PASS patent right by the 1st Respondent. And in support, cited the case of AREWA TEXTILES PLC & ORS V. FINETEX LTD. 2003 7 NWLR 322. He contended that, the claim of the 1st Respondent covered the voting process. That, failure to show proof of due payment of the prescribed annual renewal fees for the patents which were since 2006 and 2010, means that the patents should therefore be deemed to have automatically expired and invalidated.
The learned silk submitted that the style of writing judgment by the Court herein occasioned a miscarriage of justice which denied the Appellant’s right to a fair hearing and cited in support the case of DURU V. NWOSU 1989 4 NWLR PT. 113 24. That, the Court mixed up the patent registration of a product and that of a process and it failed to decide which was which. He submitted that the book referred to by the Court has no evidential value as the Author was not called as a witness and in support cited the cases of BUSTIN OKPARA V. FRN 1977 4 SC 53, OJUKWU V. GOV. LAGOS STATE 1985 2 NWLR PT. 806-818 and FLASH FIXED ODDS LTD. V. AKATUGBA 2001 9 NWLR PT. 717 46. In conclusion, he urged that the appeal be allowed.
SUBMISSION ON BEHALF OF THE 1ST RESPONDENT
The learned silk for the 1st Respondent, M. Olalekan Ojo, submitted that there was no frontal or specific traverse of the issue of the legal personality of the 1st Respondent which amounted to joinder of issues between the parties and call for proof of same and in support cited the cases of N.T.A. V. A.I.C. LTD. 2018 LPELR-45320 CA P. 15, AIR VIA LIMITED V. ORIENTAL AIRLINES LIMITED 2004 ALL FWLR 272 1565, ATTORNEY-GENERAL ABIA STATE V. ATTORNEY-GENERAL, FEDERATION 2007 6 NWLR 1029 200, BENDEX ENGINEERING V. EFFICIENT PET. NEGERIA LIMITED 2001 8 NWLR 715 333 and WILLIAMS V. UDOFIA 2017 7 NWLR 1563 35. That, the Appellant’s averment in paragraph 2 of its amended Statement of Defence did not constitute a proper and effective denial and traverse of the 1st Respondent’s statement of claim as to put its juristic personality as an incorporated company in issue. And therefore, the Court was right that the issue was no issue and since the Appellant admitted that the 1st Respondent is a juristic person, the latter needed not prove same. In support, he cited the cases of UZOMA OKEREKE V. THE STATE 2016 LPELR-26059 SC P.19 and GBADAMOSI V. KABO TRAVELS LTD. 2000 8 NWLR PT. 668 CA P. 243. That the case of THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH ETC V. A-G (MID-WEST) & ORS 1974 4 SC 150 is not the current position of the law. Therefore, the Court below properly exercised jurisdiction.
He submitted that the argument by the Appellant that the 1st Respondent had a duty to prove the existence of the said contract between the Appellant and the 2nd – 4th Respondents should be discountenanced and that the authorities cited in that regard were inapplicable. Further that the authorities cited in respect of the Newspaper publications are inapplicable as the Evidence Act allows the Court to take judicial notice of Newspaper publications. And that it was the means by which the 2nd and 3rd Respondents informed the whole world of the award of the said contract for the process and application of the DDC Machines for the compilation and production of the Voter’s Register.
He submitted that the 1st Respondent’s claim as it relates to the Voter’s Register is a combination of the process and application of the ECT BB and the PASS to produce the Voter’s Register with the bio-data derivable from a voter. That, it was achieved by the use of the DDC Machines, Laptops and/or any other equipment ancillary to or associated with the process and application of the said products to produce the Voter’s Register. That, having failed to seek and obtain the prior written license, consent and authority of the 1st Respondent constituted the infringement. He submitted that the 1st Respondent’s claim is made up of Patent Rights No. RP 16642 relating to the ECCTBB Exhibit B, Copyright Designs No. RD 13841 relating to the ECTBB, Exhibit C and the Patent Rights No. RP NG/P/2010/202 in respect of PASS, Exhibit D and in support referred to Sections 3 (3) (a), 6 (1) (a) (b), (2) and 14 (1) of the Patents and Designs Act, Cap P2 Laws of the Federation of Nigeria, 2004. He argued that, from the testimonies of DW2, DW3 and DW4, the patents of the 1st Respondent are new, unique and patentable. In support he cited the case of AREWA TEXTILES PLC & ORS V. FINE TEX LIMITED supra. Further that the 1st Respondent was not claiming a patent over the Voter’s Register or the DDC Machines, but the process and application of the said DDC Machines to obtain bio-data information from prospective voters which eventually culminate into in the final production of a comprehensive Voter’s Register. And that the 1st Respondent is laying claim to the process and application of these component parts, like laptops and other equipment to obtain the bio-data used for the compilation and production of the Voter’s register and referred to Section 3 (3) (a) and 14 (1) of the Patents and Designs Act.
The learned silk submitted that the Appellant failed to substantiate its complaint that the Court failed to properly evaluate the evidence placed before it. Further that, from the evidence of the PW1, the Appellant’s and other Respondents’ witnesses, the 1st Respondent led credible evidence to show that it has exclusive patent in and over the process and application of the DDC Machines which were supplied by the Appellant and the 5th Respondent to the 2nd Respondent. That, the machines were used by the Appellant and 2nd – 5th Respondents to collate bio-data of voters which ultimately produced the Voter’s Register and in support cited the case of MANI V. SHANONO 2006 4 NWLR PT. 969 CA P. 132. He submitted that, the Court evaluated the evidence before it thoroughly and critically demonstrated how it reached its decision as it is the Court’s duty and cited in support the cases of JULIUS BAYODE AYENI V. THE STATE 2016 LPELR-40105 SC and CHIEF BROWN UZUDA V. MR. EZEKIEL EBIGAH & ORS, 2009 LPELR-3458 SC P. 23. He argued that because, the Court’s style of writing judgment may be different from the expectation of the Appellant, the judgment cannot therefore not be vitiated and cited the case of CHIEF BROWN UZUDA V. EZEKIEL EBIGAH & ORS supra. Further that, the Appellant failed to show how miscarriage of justice was occasioned because the Court failed to pronounce on some issues as it alleged. He submitted that there was no miscarriage of justice such that will warrant a disturbance of the Court’s judgment and in support cited the case of AHMADU TATU V. ESTATE OF LATE ISAH AJH. ADAMU & ANOR 2014 LPELR-24160 CA. Therefore, the decision of the Court remains valid, subsisting and faultless, he added.
He submitted that the PW1 testified to the way the 1st Respondent’s patent rights were infringed. That, so long as the DDC Machines used by the Appellant and the 2nd – 5th Respondents involved the process and application which provided the names, age, sex, address, photographs, finger print impressions and other bio-data of voters for the compilation and production of the voter’s register, there was infringement. He argued that the 1st Respondent’s patent in and over the process and application of ECT BB and PASS is new under Section 1 (1) (a) of the Patents and Designs Act. That, the said Copyright and Patent and Designs so registered subsist, have not been withdrawn and rights there under not revoked by the appropriate authorities. Further that, the validity or otherwise of the 1st Respondent’s patents was not on trial, therefore Section 9 of the Act is inapplicable and the issue of non-payment of annual fees should be discountenanced and referred to the Patent and Design Act Cap P 2 LFN 2004 as the current law. He submitted that, the Appellant’s argument on whether or not the 1st Respondent raised new issue for which no leave was sought and obtained should be discountenanced and in support cited the cases of OZOUGWU V. STATE 2006 9 NWLR PTC 985 P. 240 and MADAM SARAH OSCAR & ANOR. V. MANSUR ALIYU ISAH 2014 LPELR-23620 SC P. 21.
On whether or not the Court was right to have referred to the said Book, the learned silk submitted that the Court could refer to it, citing Section 45 of the Evidence Act 2011 to the effect that this Court can take judicial notice of the judgment of the Federal High Court on patent right, which is on all fours and a subject of appeal before this Court. And that, the said judgment showed that the 1st Respondent had always granted the requisite license to the 2nd Respondent to use its patented products/processes and in support cited the cases of CLETUS OKWUCHUKWU ICHE V. THE STATE 2013 LPELR-2200035 CA P. 53, BUWANHOT V. BUWANHOT 2009 16 NWLR PT. 1166 P. 22 CA, OSUJI V. EKEOCHA 2009 16 NWLR PT. 1166 SC 81 and AMAECHI V. INEC 2008 5 NWLR PT. 1080 P. 277. He argued that the Court could have suo motu relied on the Book even where it was not cited by any of the parties. In conclusion, he urged that the appeal be dismissed as it lacks merit.
THE POSITION OF THE COURT
Having very carefully considered all the briefs filed and exchanged by the parties as well as the record, particularly the decision of the Court, I shall proceed to consider the sole issue as adopted for the determination of this appeal which is hereunder reproduced for ease of reference:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
SOLE ISSUE
“Whether upon a proper evaluation of the pleadings and evidence, the conclusion of the learned Trial Judge that the Respondent had established by overwhelming evidence that his patent rights had been infringed on, is justified.”
The 2nd – 5th Respondents and the Appellant strongly contend the 1st Respondent’s patent claim. It is important to state that as contained in the record, the 1st Respondent denies ownership over the voter’s register but lays claim over the process and application of the DDC Machines with component parts as laptops, scanners and other equipment which eventually lead to the compilation of the voters’ register.
The Court in its evaluation of the evidence placed before it found that the 1st Respondent discharged the burden of proof that the patent belongs to it by virtue of Section 2(1) of the Patents and Design Act. See page 1600 of the Record. Respectfully, one is of a contrary view. The fact that the 4th and 5th Respondents testified that they did not have any patent over the products they supplied to the 2nd Respondent should not and did not automatically translate into infringement of the patent right of the 1st Respondent. The pertinent issue herein from a careful and global consideration is whether or not the Appellant vide the contract with the 2nd Respondent infringed the patent rights of the 1st Respondent. The contention of the Appellant together with the 2nd to 5th Respondents is that the patent being claimed by the 1st Respondent is not new or novel. Then one would ask, was there infringement of the patent as claimed by the 1st Respondent by the supply of DDC Machines for the compilation of the voters’ register.
It is necessary to note that none of the parties tendered any evidence to debunk the validity of the Exhibits B, C, and D, the Patents Right and Design of the 1st Respondent. However, it is pertinent to note that the existence and tendering of Exhibits B, C and D without more is not the establishment of the 1st Respondent’s case. The question needs be asked whether the 1st Respondent discharged the burden of proof of the duty which rested squarely on it given its assertion that the Appellant had infringed its right. Did it prove its case on the preponderance of evidence or balance of probabilities as required in civil matters. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 PT. 540 1, ITAUMA V. AKPE-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214 and LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228. A party is not allowed to rely on the weakness of the case of the opposing side, rather should rely on the strength of his case. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65.
The answer to the question whether the 1st Respondent discharged the burden of proof in my view and humbly, is in the negative as one finds from the record before this Court.
The PW1 in his testimony painstakingly described in my opinion the substance and contents of the patent rights, the ECTBB and the PASS, both of which are contained in Exhibits B, C and D. However, it failed to show or state specifically whether it was the 1st Respondent’s process and application of its ECT BB and PASS that were made use of by the Appellant that eventually produced the voters’ register and consequently amounted to infringement. See pages 1297 to 1300 of the record. On pages 1313, 1484 and 1486 of the record, the testimony of the witnesses for the Appellant and the other Respondents to the effect that it is only the 1st Respondent that is known with the said patents, ECTBB and PASS, respectfully was misapplied by the Court in my humble view to mean therefore that the Appellant and others infringed the right. See page 1602 of the record. The said testimony of the Appellant’s witness in my view did not relieve the 1st Respondent of the burden of proof to show how the Appellant infringed its patents rights.
One point which one finds in the record and important which was correctly argued by the learned Appellant’s Counsel, is that the content of the contract between the Appellant, the 2nd Respondent and the 4th and 5th Respondents, was not known or placed before the Court by the 1st Respondent. The 1st Respondent claimed to have read it from the pages of the Newspaper. So, how could the 1st Respondent ascertain exactly what was to be supplied and what exactly was supplied or done.
The Appellant was not challenged that it is an Original Equipment Manufacturer, a fact admitted by the 1st Respondent. See page 1480 of the Record Vol. II. It testified that its contract with the 2nd Respondent involved production of DDC Machines which the 1st Respondent did not manufacture and not within its claimed patent right. And the said DDC Machines were for details such as name, sex, age address, finger print and photograph of eligible voters. That it was not contracted to supply the ECTBB boxes and the PASS and that the software used for the integration of the component parts it supplied in its processing, the Open VR linus based free software was produced in-house and given to it by the 2nd Respondent and not the 1st Respondent’s patent. Further that the bio-data of the registrant would first be provided by the registrant and could not peculiarly be generated even by the 1st Respondent’s ECT BB and PASS. The testimony in that regard and position of the Appellant remained unchallenged from the record. See pages 1465 to 1472 of the Record Vol. ll.
The Court found on page 1602 of the record that Sections 6 (1) and 25 (1) of the Patents Act provided the 1st Respondent protection and excluded others from using its patent and design where no license is given by the patentee. Upon a very calm and thorough consideration of the record, one is unable and respectfully to agree with the findings and conclusion reached by the learned Court on pages 1602 of the record that there was infringement as both the 4th and 5th Respondent Witnesses acknowledged the patent of the 1st Respondent. From the evidence before the Court, such conclusion cannot be drawn as the evidence according to the record cannot be interpreted to mean that the witnesses accepted or admitted infringement of the 1st Respondent’s patent right. In particular, the testimonies of the Appellant’s witnesses to the effect that the Appellant did not use the 1st Respondent’s software or its process and application of the ECTBB and PASS, were not challenged nor discredited and remains good defence against the claim of the 1st Respondent. Consequently, one is unable to find as the Court that “it has also been established that the process employed is an infringement on the plaintiff’s rights.”
In the result, in the light of the foregoing, this appeal is successful, it is hereby allowed. The Judgment of the Court below in suit No. FHC/ABJ/CS/816/2010, delivered on January 28th, 2014, is hereby set aside.
UCHECHUKWU ONYEMENAM, J.C.A.: I studied before now the lead Judgment just delivered by my learned brother, E. O. WILLIAMS-DAWODU, JCA.
I agree with the holdings of my learned brother in the lead judgment. I also hold that the appeal is meritorious and the same is accordingly allowed. I too set aside the judgment of the Federal High Court Abuja delivered on 28th January, 2014 by Ibrahim N. Auta C. J in suit no: FCH/ABJ/CS/816/2010.
STEPHEN JONAH ADAH, J.C.A.: I was opportuned to read in draft the judgment just delivered by my learned brother, Elfrieda Otuwayemisi Williams-Dawodu, JCA.
I concur with the reasoning and the conclusion which I adopt as mine. I, for those reasons do allow this appeal and I abide by the consequential orders made therein.
Appearances:
MR. B. O. ANACHEBE For Appellant(s)
MR. J. O. OJO SAN with him SOJI TOKI, JOHN OKORIKO, E. K. OKOKO AND VINCENT OKOEDION FOR 1ST RESPONDENT
MR. EYITAYO FATOGUN with him LLOYD I EKWEREMADU FOR 2ND AND 3RD RESPONDENTS
MR. CORNELIUS ALAJE with him L. L. NDAN FOR 4TH UNREPRESENTED For Respondent(s)