13th December, 2010
A desperate attempt by the Independent National Election Commission, INEC, to get a Federal High Court sitting in Abuja to set aside an order it made on the 3rd of December restraining the electoral umpire from going ahead with preparations with regards to the procurement of the Direct Data Capture machine, collapsed on Monday as the trial judge, Justice Ibrahim Auta refused to vacate the order.
The electoral body represented by Mr. A. B Mahmud, a senior advocate of Nigeria, had appealed to the court to vacate the restraining order to enable INEC continue with the process of the acquisition of the machines with which it plans to embark on the voter registration exercise scheduled for second week of January 2011.
In an application moved before the court, Mr. Mahmud contended that the restraining order issued against INEC is too broad, vague, uncertain, incomprehensible and incapable of enforcement and argued that the award of contract for the DDC machines is a completed act for which no restraining order can reverse.
The senior advocate further contended that the restraining order issued against his clients was not hinged on any alleged legal right nor does it aims at protecting any right. While contending that the order seeks primarily to disrupt the forthcoming elections, Mr. Mahmud conceded that any claim based on infringement of Patents or Copyrights are commercial disputes and can be adequately compensated by the award of damages if established and called on the court to set aside its order.
The Attorney General of the Federation and Minister of Justice represented by Carol Ajie joined in the attempt to get the court to vacate the order. The lawyer contended that the restraining order was made against a completed act as the DDC machines were already being expected to arrive at the INEC Headquarters any time soon. Ms. Ajie took the call for the setting aside of the order to a new dimension when she alleged that the patent right which the plaintiff, Beddings Nigeria Limited, claims to hold over the DDC machine is a ruse, a deception.
In his response to these calls to the court to vacate the order, counsel representing Beddings Nigeria Limited, Chief Asam Asam, also a senior advocate of Nigeria prevailed on the court not to vacate or set aside the restraining order against INEC which he accused on infringing on his client’s Patent Rights. He argued that the essence of the grant of an order of injunction is to protect the existing legal rights of a person from unlawful invasion by another.
He frowned at INEC’s calculated attempt to infringe on the legal rights of a Nigeria citizen and urged the court to allow the restraining order to remain so as to protect the res, the subject matter of the suit. He also called on the court to order for an expedited hearing of the substantive suit.
Chief Asam also pointed out to the court that the defendants have not shown that any grounds as enunciated by the Supreme Court for a court to set aside its order exists in this case and urged the court to refuse the defendants application since the order i
—Nnamdi Felix / Abuja
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