BEDDING HOLDINGS LIMITED V. INEC & 5 ORS: PATENT TROLLS VIS A VIS THE DECISION OF THE COURT.

OVERVIEW 

The background facts are that BHL sued INEC and 5 others at the Federal High Court (the Court) for infringing its Patent Right No. RP 16642 relating to Electronic Collapsible Transparent Ballot Boxes, and Patent Rights No. RP NG/P/2010/202 in respect of Proof of Address System/Scheme (PASS) (I refer to Patent Right No. RP 16642 and Patent Right No. RP NG/P/2010/202 collectively as the “Patents”). The Court in arriving at its decision held that the Defendants violated the Patents and consequently made a declaration inter alia that BHL is entitled to 50% of the total contract sum amounting to N17, 258, 820, 000. 00 (Seventeen Billion, Two Hundred and Fifty Eight Million, Eight Hundred and Twenty Thousand Naira Only) as the minimum reasonable royalty accruable for the infringement committed by INEC and the other Defendants.

 In this article, the writer explained with reasons why he did not agree with the decision of the Court in this case based on the following:

1.      BHL did not identify the particular claims contained in the Patents that were allegedly infringed. In support of this he submitted that whether or not a patent is infringed depends on the identification of the claims contained in the Patent in accordance with Section 6 (2) of the Act. Section 6 (2) of the Act provides that: The scope of the protection conferred by a patent shall be determined by the terms of the claims; and the description (and the plans and drawings, if any) included in the patent shall be used to interpret the claims, accordingly the question of patent infringement will ultimately depend on the identification of these claims

2.      BHL did not make a clear showing that the allegedly infringing DDC machines applies the same process protected by his Patents.

3.      The Court misconstrued the meaning of “new” or “novelty” in the Act that by section 1 (2) (a) of the Act states that an invention is new if it does not form part of the state of the art. Section 1 (3) defines the “art” to mean the art or field of knowledge to which an invention relates and “the state of the art” means everything concerning that art or field of knowledge which has been made available to the public anywhere and at any time whatever (by means of a written or oral description, by use or in any other way) before the date of the filing of the patent application relating to the invention… Therefore, novelty is really a question of whether the invention is “new” or has been “anticipated” for example, by a previous patent, or by publication or use.

He concluded that the Court wrongly proceeded to affirm the novelty (validity) of the Patents because BHL was able to establish that he owns the Patents, and Defendants failed to prove otherwise. In this regard, the Court misconstrues novelty to mean proof of existence (and/or ownership) of a patent right rather than whether the invention (or process) subject to that patent right is new, or is anticipated by prior art.

He concluded by noting that the precedent set by the decision of the Court will give rise to a new breed of patent trolls (Wikipedia defines a patent troll as a person or company who enforces patent rights against accused infringers in an attempt to extort licensing fees) who will apply to patent just about anything patentable under the sun in other to claim ownership to the invention, (rather than proving novelty) in accordance with the decision of the Court. This is especially so because the Act does not require patent examiners to conduct a substantive examination as to whether the invention (contained in the patent application) is in fact patentable, thus giving patent trolls the ability to “game” the patent system in Nigeria.

MY COMMENT

The Chief Judge of the Federal High Court, Justice Ibrahim Auta , in his judgment, maintained that having gone through the totality of evidence adduced before it by both the company and INEC, it was satisfied that the electoral body, violated a subsisting patent right over the process, application and use of DDC machines for voters’ registration, solely acquired ab initio by the firm.

The CJ held that in the award and execution of the contracts, INEC, its chairman and three companies involved in the transaction, infringed on a valid right of the plaintiff.

Consequently, the court ordered INEC, Jega and the others to pay BHL N17.25 billion as compensation for infringing on its valid and subsisting patent rights. He held that the nation’s Patent and Design Act precludes anybody from using a patented invention without the consent of the inventor.

He said Section 6 of the Act provided for the protection of a patent right, adding that it was the duty of the court to ensure such protection. He also frowned on the decision of INEC and Jega to award the contracts without BHL’s consent, despite being aware it had the patent right over the invention and I quote:

“INEC, like every other government agencies has the responsibility of obeying the law of the land.

“INEC as an electoral body should realize that the business of election is important. It touches on the life of the nation.

“So, INEC should always play by the rule, so that its conduct does not affect the outcome of elections,”

I will like to align myself with the position of the Honourable CJ.

In view of the 3^rd issue raised by the writer that the Court misconstrued the meaning of “new” or “novelty” in the Act as its provided for under Section 1 of the Act. I will like to submit that section 9 of the patent Act provides that on the application of any person (including a public officer acting in the exercise of his functions) the court shall declare a patent null and void:

a.       If the subject of the patent is not patentable under section 1 of this Act or

b.      If the description of the invention or the claim does not conform with subsection 2 of section 3 of this Act or

c.       If for the same reason a patent has been granted in Nigeria as the result of a prior Application or an Application benefiting from an earlier foreign priority.

It is my humble view that the validity or otherwise of BHL’s patent right goes to the root of this case and INEC and Ors ought to have applied for the nullification of the patent right through a Preliminary Objection. Therefore in the absence of any Preliminary Objection or Counter Claim as to validity of the patent right and the existence of a patent right in favour of BHL, in effect BHL was the sole owner of the patent rights over the process and its rights was infringed by the conduct of INEC and Ors.

CONCLUSION

Thus the CJ was right when he held that the nation’s Patent and Design Act precludes anybody from using a patented invention without the consent of the inventor, the electoral body therefore violated a subsisting patent right over the process, application and use of DDC machines for voters’ registration, solely acquired ab initio by the BHL.

Yinka Olaiya

CURBING THE EXCESSES OF THE FINANCIAL REPORTING COUNCIL

INTRODUCTION

The Federal Reporting Council Act was signed into law in July 2011 to replace the National Accounting Standards Board Act. Just like the National Accounting Standards Board, the Federal Reporting Council (FRC) was established to develop and publish accounting and financial reporting standards to be observed in the preparation of financial statements of Public Entities in Nigeria. This article is written against the backdrop of the road map of the Financial Reporting Council which states that it shall be mandatory for other Public Interest Entities and Small and Medium-Sized entities to adopt the International Financial Reporting Standards (IFRS) which can only be completed by registering with the Financial Reporting Council.

COMMENT

Financial reporting involves the presentation of a company’s operating performance, position and flow of funds during a specified accounting period.  The disclosure requirements in financial reporting vary with legal and regulatory requirements of various jurisdictions but the primary objective of the process is usually the same in most jurisdictions – the presentation of reliable financial information to the stakeholders and the public.

All companies in Nigeria are required, under the Companies and Allied Matters Act (CAMA), to prepare and keep accounting records in a specified format.  The disclosure requirements are also specified by CAMA and the directors have an obligation to prepare annual accounts that must be audited and presented to the shareholders at general meetings of the company.  These disclosure requirements may be altered by the Minister in statutory instruments that have been issued after due consultation with the Nigerian Accounting Standards Board (NASB).  The functions of the NASB were transferred to the Financial Reporting Council of Nigeria (FRCN) with the repeal of the NASB Act when the FRCN Act was passed.

The development and issuance of accounting standards in Nigeria was the principal role of the NASB.  The FRCN has however been given a much larger role to play in the FRCN Act.  The functions of the FRCN are specified in section 8 of the Act and its functions include development of accounting and financial reporting standards, enforcement of accounting standards, advising the federal government on accounting and financial reporting standards, maintaining a register of professional accountants and other professionals engaged in the financial reporting process, monitoring compliance with the code of corporate governance, promotion of compliance with standards issued by the International Federation of Accountants and International Accounting Standards Board, conduct practice reviews on registered professionals, receiving qualified reports, specifying minimum disclosure requirements and performing such other functions that give effect to the Act.

The FRCN’s powers are wide and its management has sought to exercise them to the fullest extent possible. 

Section 33(a) of the Act requires every registered professional to pay an annual levy of not less than N5,000 to the FRCN’s fund.  The FRCN appears to have extended the definition of a professional beyond what is contemplated by the Act.  The definition on the FRCN’s website is “a professional, for the purpose of this registration, refers to any person whose education and training allow for his judgment to be relied upon and possesses a certification issued by a recognised professional body or association and is currently working or wishing to work in Nigeria”.  The initial registration fee is N17,000 and the registration is thereafter renewable annually upon payment of an annual levy of N5,000.

A non-exhaustive list of 89 professional institutions ranging from the Institute of Chartered Accountants of Nigeria to the Nigerian Institution of Surveyors has been provided on the website and any members of institutions that are not listed have been advised to contact a counselor at the FRCN for guidance on registration.  This interpretation of the law has basically given the FRCN power over all professional bodies in Nigeria even those that are not involved with financial reporting. This is not the role of any similar agency around the world and it is unlikely that this would have been the legislative intent at the time the law was passed.

The FRCN appears to have overlooked a critical aspect of the Act while seeking to enforce their powers.  A close reading of the Act from the long title to the definition section shows that the FRCN’s powers are meant to be exercised over “public interest entities” in Nigeria.  The Act is clear and unequivocal on this issue as the phrase is mentioned anytime a direct reference is made to the exercise of powers specified therein.

Section 77 defines “Public interest entities” as government, government organizations, quoted and unquoted companies and all other organizations and all organisations which are required by law to file returns with regulatory authorities and this excludes private companies that routinely file returns only with the Corporate Affairs Commission and Federal Inland Revenue Service. This definition of Public Interest Entities clearly excludes what is now provided for in the road map as “other Public Interest Entities” and Small and Medium-Sized Entities”.

In the recent case of Eko Hotels Limited V. Federal Reporting Council of Nigeria  (unreported) the FRCN sought to enforce its powers against Eko Hotels Limited (EHL) but the company objected by instituting an action at the Federal High Court; and Justice Abang delivered judgment in favour of EHL on 21 March 2014.

The FRCN wrote to EHL on 2 June 2012 requesting evidence of compliance with the registration requirements of the Act and payment of statutory and renewal dues.  EHL informed the FRCN that it was a private company that only filed returns with the FIRS and CAC and was not a public interest entity as contemplated by the Act.  The FRCN however contended that EHL was a public interest entity because it filed returns with the Nigerian Tourism Development Corporation.

The court ruled in favour of EHL and provided guidance on the following notable issues –

1.         There is no provision in the FRCN Act that requires private companies to be registered with the FRCN as the registration can only be extended to public companies and public interest entities.

2.         The FRCN cannot seek to exercise implied, incidental or consequential powers where there are no express provisions in the Act empowering it to do so as implied or incidental powers can only be necessary for carrying out express powers in the statute.

3.         Private companies are not liable to pay statutory or renewable annual dues to the FRCN.

4.         Private companies are not liable to file returns with the FRCN or provide evidence of their filings to the CAC and FIRS to the FRCN.

5.         The functions and powers of the FRCN can only be exercised over public interest entities, public companies, professional accountants and other professionals engaged in the financial reporting process.

6.         The FRCN cannot enlarge its regulatory powers beyond the limit provided in the statute.

7.         The FRCN has no power to penalise private companies that fail to comply with its directive as it has no disciplinary or regulatory control over them.

This precedent is far reaching and has effectively limited the powers of the FRCN in all respects to public companies, public interest entities, professional accountants and professionals engaged in the financial reporting process.  The court has clearly curtailed the powers of the FRCN in this landmark ruling and one can only watch and see how it develops where the FRCN decides to take it through the appeal process.

CONCLUSION

Section 77 of the FRCN Act clearly defines Public Interest Entities which clearly excludes what is now provided for in the road map as Other Public Interest Entities and Small and Medium-sized Entities. Apart from lack of capacity to deal with such numbers of companies to ensure compliance,  I do not understand why the Federal Reporting Council would go beyond its powers as provided for under the Act. The decision in the recent of between Eko Hotels Limited and the Federal Reporting Council will go a long way in curbing the excesses of the Federal Reporting Council.

Yinka Olaiya is an Associate at Ayodele Olugbenga & Co

Uganda court annuls anti-homosexuality law

Uganda’s Constitutional Court has annulled tough anti-gay legislation signed into law in February.
It ruled that the bill was passed by MPs in December without the requisite quorum and was therefore illegal.
Homosexual acts were already illegal, but the new law allowed for life imprisonment for “aggravated homosexuality” and banned the “promotion of homosexuality”.
Several donors have cut aid to Uganda since the law was adopted.
Uganda is a deeply conservative society where many people oppose gay rights and the sentence for homosexual acts has always been life imprisonment.
Earlier drafts of the anti-homosexuality act made it a crime not to report gay people – which would have made it impossible to live as openly gay – but this clause was removed.
However the legislation that was passed in parliament was “null and void”, the presiding judge at the Constitutional Court said, as not enough lawmakers had been present to vote on the bill, the AFP news agency reports.

Man in court for paying with dud cheque

The police have arraigned a-34-year-old man, John Ehoche, before a Tinubu Magistrate’s court for obtaining goods under false pretences, having issued dud cheques to the seller as payment.

It was learnt that the goods, said to be furniture items valued N2.45m, was sold to the defendant by one Chibueze Okafor.

Our correspondent gathered that the items were obtained between February and November, 2013.

It was said that the cheques were not honoured at the point of payment due to insufficient balance in the issuer’s account.

The charges read in part, “That you, John Ehoche, and one other at large, on February 27, October, 25 and November 29, 2013 at Lagos in the Lagos Magisterial District did conspire among yourselves to commit felony to wit; obtaining goods under false pretences, stealing and issuance of dud cheques.

“That you and one other at large on the same date, time and place in the aforementioned Magisterial District, did fraudulently obtain good sets of chair which valued N2, 450,000 by false pretences.

“That you and one other at large on the same date, time and place in the aforementioned Magisterial District, did steal some sets of furniture valued at N2, 450,000, property of one Chibueze Okafor.

“That you and one other at large on the same date, time and place in the said Magisterial District did issue three cheques of Diamond Bank, all valued N2,450,000 which was presented for payment but was not honoured due to insufficient fund.”

The offences were said to be punishable under sections 409, 312, 285 and 319 b of the Criminal Laws of Lagos State of Nigeria 2011.

Ehoche pleaded not guilty to the four counts preferred against him.

The magistrate, Miss. A.O. Awogboro, admitted the defendant to bail in the sum of N200,000 with two sureties each in like sum.

Demolished shops: Contractor petitions Lagos ministry, Assembly

The contractor that handled the construction of demolished shops at the Obadore Market, Igando-Ikotun Local Council Development Area, Lagos, Alhaji Rafiu Olanrewaju, has written to the Lagos State Ministry of Local Government and Chieftancy Affairs and the state House of Assembly to look into the matter.

PUNCH Metro had earlier reported that over 63 new shops in the market were demolished, and that the traders, who suffered losses, urged the government to intervene in the illegal demolition.

In the letter, which was obtained by our correspondent, Olanrewaju said a large number of traders had already been allocated to the newly constructed shops before the sudden demolition.

It reads in part, “The construction of the market was approved by the Lagos State Ministry of Local Government and Chieftaincy Affairs in a letter issued on January 29, 2010 with Ref no MLG/C27/S.45/130. Also, our application for a waiver on the construction was approved by the state Governor, Mr. Babatunde Fashola, in another letter dated June 7, 2010.

“It is not true that the shops were built without government approval. We urge the state to intervene.”

Olanrewaju urged the Assembly to recommend compensation for those who lost property.

38-year-old in court for sexually abusing girl, 3

A 38-year-old man, Michael Edise, has been arraigned before an Ebute Meta Chief Magistrate’s Court for allegedly abusing the daughter of his neighbour.

Edise, who resides with the victim’s parents, on Fagbamu Street, Apapa Road, Ebute Meta, Lagos, was said to have inserted his finger into the private parts of the three-year-old.

The police told the court on Monday that the incident happened on Tuesday, last week, around 8pm.

On the fateful day, the neighbours were said to be interacting in the compound.

The victim’s parents reportedly left their child in Edise’s care and went inside for a while.

On returning, the three-year-old was said to have shown some discomfort and upon inquiry, told her parents the suspect allegedly inserted his finger in her private parts while they were away.

Her enraged parents were said to have reported the matter to the police.

Edise was subsequently arrested and arraigned on one count of sexual abuse.

The charge reads, “That you, Michael Edise, on July 29, 2014, at about 8pm at Fagbamu Street, Apapa Road, Ebute Meta, in the Lagos Magisterial District, did dip your finger into the private parts of one (name withheld), aged three years old.”

The police prosecutor, Etim Nkankuk, said the offence was punishable under Section 137 of the Criminal Law of Lagos State, Nigeria 2011.

The defendant said he was not guilty and elected summary trial.

His defence counsel, F.C. Osordi, prayed the court to grant him bail in liberal terms, citing Section 115 of the Administration of Criminal Justice Law of Lagos State as basis.

The Chief Magistrate, Mrs A.A. Demi-Ajayi admitted him to bail in the sum of N500, 000 with two sureties each in like sum.

She added, “The sureties must be gainfully employed and resident in Lagos. They must be at least 40 years of age and should deposit a refundable sum of N50, 000 into the Chief Registrar’s account. Their addresses and means of livelihood should be verified. One of the sureties must also be a blood relation of the defendant.”

The matter was adjourned till September 22, 2014 for trial.

Police arraign suspected burglar of PUNCHman’s residence

The police have arraigned 35-year-old Martins Osakoni for allegedly breaking into the home of a PUNCHman, Emma Anya.

PUNCH Metro had reported on Tuesday that the suspect broke into the Anyas’ residence in the Akoka area of Lagos on Sunday, while the couple were in church, and stole some property.

Our correspondent reported that he was caught with PUNCHman’s wife jewellery, and upon further interrogation, he confessed to have stored up the rest of his loot in an open shop.

Osakoni was arraigned on Wednesday before a Yaba Magistrate’s Court on two counts of burglary and stealing.

The charges read in part, “That you, Martins Osakoni, on August 3, 2014 at about 11am on Adeyinka Osijo Street, Akoka, Yaba, Lagos in the Lagos Magisterial District, did enter into the dwelling of one Emma Anya, with intent to commit felony.

“That you did steal one Dell laptop valued about N120, 000, one DVD player, one Sony Xpera phone valued N70,000, one Samsung phone valued N5,000 only, one tablet PC valued N65,000 and some jewellery. Total value of items stolen is about N325,000.”

The police prosecutor, Inspector Rita Momah, said the offences were punishable under sections 306 and 285 of the Criminal Law of Lagos State, Nigeria, 2011.

The defendant pleaded not guilty to the charges and elected summary trial.

His defence counsel urged the court to grant him bail in liberal terms.

The Magistrate, Mrs. O.A. Erinle, admitted him to bail in the sum of N100, 000 with two sureties in like sum.

She added, “The sureties must show evidence of tax payment, prove their affidavit of means and their addresses must be verified.”

The matter was adjourned till September 17, 2014.

Suspects sell N11.5m goods to policeman for N3m

The Ogun State Police Command has arrested two men for allegedly diverting goods worth N11.5m and attempting to sell it for N3m.

The Police Public Relations Officer for Ogun State, Mr. Muyiwa Adejobi , said the suspects ─ Idowu Jimoh,42, and Emeka Godwin,21 ─ agreed to sell the goods for N3m to a policeman who worked undercover in order to catch the suspects red-handed.

PUNCH Metro gathered that the goods, said to be Nestle PLC products worth N11m, were loaded on a truck marked, LAGOS, LND 182 XB, which was headed for Abuja.

The police said the duo had made plans to divert and sell the goods before a police informant alerted the command.

Adejobi explained that a police detective was detailed to work undercover and gain the confidence of the suspects.

He said the detective managed to establish contact with Jimoh and Godwin and entered into negotiation with them. He added that the suspects agreed to sell the goods to the policemen for N3m.

The PPRO said, “The suspects are the driver of the truck, Idowu Jimoh of Kokale Coca Cola Area of Ota, Ogun State, who also hails from Epe in Lagos State and the motor boy, Emeka Godwin, who hails from the Anocha Local Government Area of Anambra State.

“The truck was loaded with Nestle PLC products worth 11.5m. The goods were meant for a customer in Abuja, but the duo planned to divert it to another place to sell.

“When the police detectives heard of the plan due to our intelligence gathering, they quickly keyed into the arrangement and a detective from the Special Anti-Robbery Squad, Ogun State, entered into negotiation with the suspects through the help of an informant.

“The suspects agreed to sell the goods for N3m to the potential buyer (the police man) before they were eventually arrested at Ijoga Orile. They had tactically removed the tracker fixed on the truck so that the company would not be able to track its movement.

“The driver of the truck, Idowu, had worked in a company in Ota and was sacked for a similar offence of stealing and diverting a truck loaded with some chemical products. He is married with children and has even built a house.”

Adejobi said the Commissioner of Police, Ikemefuna Okoye, had directed SARS to carry out a thorough investigation of the matter and get others connected with the crime.

He added that the commissioner advised firms to screen their employees and install sophisticated vehicle trackers unlike the type which was removed by the driver.

Court remands cop for killing guard

A Lagos State Magistrate’s court has ordered the a policeman, Salisu Ibrahim, should be remanded in custody for killing a guard with First Bank Plc, Olanrewaju Majekodunmi.

The Magistrate, O.A. Komolafe, said the cop should be kept in custody pending when his matter would be taken to the High Court.

The police arraigned Ibrahim on Wednesday on one count of manslaughter.

The police prosecutor, Inspector Frank Inah, said the offence, which was committed in the Epe area of Lagos,was contrary to Section 227 of the Criminal Law of Lagos State, Nigeria, 2011.

It was learnt that the policeman was also guarding the bank and had fired the shots while testing his rifle.

The bullets were said to have hit the 42-year-old, who died at a hospital.

When the suspect was arraigned before the Ebute Meta Magistrate’s Court on Wednesday, the Directorate of Public Prosecutions had also released its legal advice.

The legal advice, dated December, 2013 and signed by the Director, Olayide Eboda, stated that the policeman did not intentionally kill the deceased and hence the case did not qualify for murder.

The advice stated in part, “Facts available showed that rifle exploded accidentally, hitting the deceased.”

The advice said it could only establish a prima facie case of manslaughter against the police officer.

The defence counsel, Spurgeon Ataene, prayed the court to admit the suspect to bail, pending his arraignment at the High Court.

In his ruling, the Magistrate refused the bail application of the defence counsel.

Komolafe said, “The legal advice from the DPP shows he has a case of manslaughter. The   defendant is hereby refused bail. He is to be remanded pending his arraignment at the High Court.”

Police arraign motorist for manslaughter

A 34-year-old man, Matthew Hope, has appeared before an Igbosere Magistrate’s Court, Lagos State for allegedly killing one Ernest Okoran, 35.

The police said the defendant on July 14, 2014, recklessly drove a Peugeot Boxer bus with number plate, AGL 439 CJ, along the Lekki-Epe Expressway and killed Okoran in the process.

The police said the vehicle also rammed into a HITECH street light valued at N2.7m after the deceased was knocked down. They added that Okoran, who was rushed to a hospital, was confirmed dead on arrival.

The prosecutor, Sergeant Philip Osijale, brought the defendant before the magistrate, Mrs. T.V. George, on three counts bordering on reckles driving.

The charges read in part, “That you, Mathew Hope, on July 14, 2014 at about 5pm, along the Lekki-Epe Expressway, by Ilaje Bus Stop, in the Lagos Magisterial District, being the driver of one Peugeot Boxer bus with registration number, AGL 439 CJ, drove same on the public highway in a reckless manner.

“That you on the same date, time and place in the aforementioned Magisterial District, drove same car recklessly and caused the death of one Ernest Okoran, 35 of Baale Street, Ikota Housing Estate, Lagos.

“That you on the same date, time and place in the aforementioned Magisterial District, drove dangerously and caused serious damage to HITECH street light valued N2,740,000.”

The offence was said to be punishable under Section 19 of the RTA CAP 27 Vol. 45 Law of Lagos State of Nigeria 2012.

After a prayer to the court by the defence counsel, Ganni Oyareruegbe, that his client be admitted to bail in liberal terms, George granted bail to the defendant in the sum of N250,000 with two sureties each in the like sum.

She added, “One of the sureties must be related to the defendant by blood and must be working in a reputable organisation. The sureties must also present two years tax clearance and their residential addresses must be verified by the prosecutor.”

The case was adjourned till August 22, 2014.

FEDERAL HIGH COURT DECLARES EXECUTIVE INTERFERENCE WITH JUDICIAL FUNDING UNCONSTITUTIONAL

INTRODUCTION

Former President of the Nigerian Bar Association (NBA), Olisa Agbakoba (SAN) dragged the Attorney-General of the Federation and Minister of Justice, the National Judicial Council (NJC) and the National Assembly to court to challenge the constitutionality of allowing funds meant for the judiciary to pass through the executive arm of government.

Agbakoba also argued that the practice was in breached of constitutional provisions as enshrined in Sections 81 (2) (3) (c) and 84 (2) (7) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Justice Ahmed Ramat Mohammed of the Federal High Court Abuja declared as illegal and unconstitutional the control and disbursement of funds earmarked for the judiciary by the executive arm of government. The declaration effectively grants fiscal autonomy to the third arm of government and protects it from undue influence from the executive.

MY COMMENT

This is a laudable judgment as it is in tandem with the provisions of the 1999 constitution. Judicial independence according to Wikipedia is the concept based on the needs to keep the judiciary away from the undue influence of other branches of government. Courts should not be subject to improper pressure from the other branches of government, or from private or partisan interests. Judicial Independence in all democracies is vital and important to the idea of separation of powers.

Regrettably, over the years, the Nigerian judiciary have been denied the freedom to operate without interference by the executive arm of government both at the federal and state levels, because they have been withholding funds appropriated for the third arm of government. The executive has demonstrated an unwillingness to recognise and respect the financial independence of the judiciary, thereby forcing heads of the various courts to run to it and plead for the release of funds appropriated for the judiciary.

This is in spite of the provision of Section 81 of the 1999 Constitution (as amended) which provides that:

 “any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the states under section 6 of the Constitution”.

With respect to the judiciary in the 36 states of the federation, Section 121 of the same Constitution similarly stipulates that:

“any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the courts concerned.”

Therefore in view of the above constitutional provisions Justice Ahmed Mohammed, held that the disbursement of budgetary funds to the judiciary by the executive arm is unconstitutional, null and void.

The judge also declared that a situation whereby the judiciary would continue to depend on the executive arm of government for its budgeting and funds’ release offends the provision of Section 81 (2) and Section 84(1), (2), (3), (4) and (7) of the 1999 Constitution of the Federal Republic of Nigeria.

CONCLUSION

The Judiciary is an arm of government like the Executive, and not a Ministry under the Executive, if the National Assembly does not submit its budget to the Executive Arm for appropriation and disbursement, why should the judiciary do so?

The provisions of Sections 81 (3) and 162 (9) of the 1999 constitution are crystal clear in respect of funding of the judiciary and the concept of separation of powers envisages a level of independence for the Judiciary and this is to ensure that it secures sufficient detachment to act as a check on the other arms of government and also be in the best capacity and position to apply the rule of law in any situation without fear or favour. So, to that extent, I believe that the judgment is a welcome development.

Yinka Olaiya is an Associate at Ayodele Olugbenga & Co