17th December, 2010
Justice Ibrahim Auta of a Federal High Court sitting in Abuja on Friday vacated his earlier order restraining the Independent National Electoral Commission, INEC, from going ahead with the awarding of contracts for the procurement and supply of the Direct Data Capture machines for the voterâ€™s registration exercise.
The vacation of the restraining order was fallout of an application filed by the electoral body represented by Mr. A. B. Mahmud, a senior advocate of Nigeria Â Â Â who 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. He told the court that the contract had already been awarded while delivery of the equipment is being expected.
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 also 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 also joined in the attempt to get the court to vacate the order as she contended that the restraining order was made against a completed act since the DDC machines were already being expected to arrive at the INEC Headquarters any time soon.
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 clientâ€™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 INECâ€™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 it granted earlier on was properly granted.
In delivering his ruling, Justice Auta agreed with the electoral body and the Attorney General of the Federation that the 2011 election is of utmost national importance and held that what the court intends to protect; that is the contract for the procurement of the DDC machines, has been implemented and that the court cannot maintain the res.
He however observed that Beddings Nigeria Limited has established with material exhibits that it owns the patent rights over the subject matter of the suit and that the electoral body did not exhibit any evidence to show otherwise and further stated that the company has also established that it has a right which is about to be breached which also deserves monetary compensation if it proves its case.
The hearing of the substantive was subsequently adjourned to 27th and 28th Janyary 2011 in line with the accelerated hearing ordered by the court.
â€”Nnamdi Felix / Abuja