AKIN KUPONIYI
A Federal High Court,in Lagos south west Nigeria has dismissed a preliminary objection filed by the Central Bank of Nigeria, CBN, in an N8 billion patent right suit filed against the apex bank by an IT firm, Technocrat Consult and IT System Solution.
Joined as defendants are Chartered Institute Of Bankers of Nigeria and Ernst and Young Nigeria.
The Technocrat Consult and IT Systems Solution Limited had filed the suit against the three defendants on the allegation that they wanted to infringe on its patent right.
The plaintiff in its amended statement of claim filed before the court by a Lagos lawyer, Barrister Norison Quikers, SAN, averred that it specialises in information technology, designing and development of software and general information technology and consultancy business and that it invented a device known as Portable Telecommunication (Mobile Client), used in biometric finger print and photograph-based identification system for individuals.
The plaintiff averred that both the CBN and Chartered Institute Of Bankers of Nigeria, through the Bankers’ Committee issued a public request for expression of interest to participate in a biometric project with the request being coordinated by the third defendant in this case, Ernst and Young Nigeria, on behalf of the Bankers Committee and that it participated and shortlisted and given the full request for proposal document.
The plaintiff averred further that while submitting the response to the request, it attached a letter informing the Bankers Committee that it owns a critical patent required for the successful completion of the project in Nigeria and proposed to use its innovation. The plaintiff’s letter also indicated its willingness to meet any technical qualification that would be required. But to its surprise, the Bankers Committee through an e-mail dated 30 November, 2012, informed the plaintiff that they were no longer considering it for the project.
The plaintiff stated in the particular of the case that the defendants required the vendor to procure a machine which will be accessing the application through a web browser, that is, internet explorer 6.0/8.0 mozilla fire fox, where the finger print devices are connected. It also listed the machines to include desktops and /or for laptops which include plurality of client workstations the same as its plurality workstations which all specifications are contained in its registered patent number NG/P/2010/283.
The defendants were aware that the project if not executed by the plaintiff will lead to a deliberate infringement on the invention comprised in its registered patent number NG/P/2010/283. It said that the Bankers’ Committee had concluded their plan and were ready to award the over 100million Dollar contract on January 7, 2013 to another vendor who was almost likely to make use of its invention for the successful completion of the project.
Consequently, the plaintiff sought a court order declaring its registered patent number RP: NG/P/2010/283 for portable telecommunication (mobile clinic) Device used in biometric identification as valid and subsisting as its original author, inventor, creator and designer of the portable telecommunication (mobile clinic) Device used in biometric identification as comprised in its registered patent.
The plaintiff is also seeking a declaration order of the court that the defendants’ proposed implementation of a biometric solution, application servers, database servers and finger print devices infringe on his registered Patent Number RP: NG/P/2010/283 for portable telecommunication (mobile clinic) Device used in biometric identification.
Consequently the plaintiff while claiming the sum of N8Billion as damages urged the court to restrain the defendants whether acting by themselves, agents, servants or privies whosoever from infringing on his registered Patent Number RP: NG/P/2010/283 for portable telecommunication (mobile clinic) Device used in biometric identification, importing, manufacturing or distributing, the biometric solution, application servers, database servers and finger print devices or any machine with the scope of his registered patent number NG/P/2010/283 for portable telecommunication (mobile clinic) Device used in biometric identification.
Responding to the suit, the CBN in its preliminary objection dated February 18,2013,contended that the court lacks jurisdiction to entertain the suit as proper parties are not before the court, therefore seeking the order of the court setting aside the writ of summons and the motion on notice dated December 14, 2012, on the ground that the court lacks jurisdiction to hear them. It also seeks an order striking and/ or dismissing the suit in its entirety.
However, the presiding judge, Justice Saliu Saidu, while dismissing the CBN preliminary objection said; “I have carefully gone through the statement of claim, the plaintiff’s list of witnesses, written statement on oath, registration certificate sought to be put in evidence in this case and all other documents the plaintiff seek to rely on in this case, all bearing the name of the supposed plaintiff in this case.
“The plaintiff has described the inclusion of the word “solution” in the plaintiff’s name on the writ of summons is known to law. therefore the court cannot be seen sacrificing substantial justice in the name of technicality. The court must always stand up to what will be just in the circumstances of each case.
“With the accompanying statement of claim before the court, the plaintiff in this case is not in doubt If I have to consider the submission of the defendant to strike out this case, it will amount to delay and denied justice. What I believe is justice in the instant case is to allow the plaintiff to do necessary amendment and treat typographic error as irregularity that will not lead to injustice.
“With the above analysis, considering the fact that all that has happened is typographic error which can be seen as a mere irregularity that can be amended without causing any injustice to the defendants/applicants “I dismiss the preliminary objection of the first defendant (CBN) in this case and allow the necessary correction as can be seen on the statement of claim and the accompany exhibits by removing the word solution from the plaintiff’s name on the writ of summons before the court in this case.
The matter has been adjourned till 20th March 2015, for hearing.