Nigeria: A Critique Of The Jurisdiction Of The Federal High Court In Nigeria To Entertain Intellectual Property Matters

1. Introduction

The significance of the mental ingenuity and physical exertion expended in human creativity is one of the major reasons why intellectual property rights holders may go to any length to enforce their rights against infringement and preserve ownership. In a bid to enforce this intellectual property right, the creator or inventor of a work would rely on regulatory and/or judicial institutions to ensure that such enforcement conforms to the rule of law enacted for this purpose.

The World Intellectual Property Organisation (WIPO) defines Intellectual Property (IP) as the creations of the mind, such as inventions; literary and artistic works; designs; symbols; names and images used in commerce.¹ According to the TRIPs agreement, IP rights include Copyrights, Trademarks, Patents, Industrial Designs, Geographical Indications, Trade secrets etc.² IP Law consists of enactments, regulations and rules governing the creation, acquisition and protection of IP rights as well as adjudication over allegations of their misappropriation. IP law therefore aims to protect the application of ideas and information that are of commercial value.³

2. The Jurisdiction of the Federal High Court in Nigeria to entertain Intellectual Property matters

In Nigeria, the Federal High Court is conferred with jurisdiction over the enforcement of IP Rights by virtue of Section 251 (1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and other federal enacted legislations.⁴

Jurisdiction, thus, refers to the official power and authority conferred on courts to make legal decisions and judgments in respect of legal matters, especially civil/commercial disputes between parties; thereby administering justice within a defined field of responsibility. It exists when the court takes cognisance of the class of cases involved, proper parties are present and issues to be decided are within the powers of the court.

There are several types of jurisdictions, and they include: Pecuniary Jurisdiction, Territorial Jurisdiction, Subject Matter Jurisdiction (including Substantive jurisdiction), Exclusive Jurisdiction, Concurrent Jurisdiction, Original Jurisdiction, Special Jurisdiction, Appellate Jurisdiction, Legal Jurisdiction and Extending Jurisdiction.⁶

Substantive Jurisdiction is a significant type of subject matter jurisdiction which relates to the subject matter of a litigated dispute. This kind of jurisdiction can be raised at anytime even at the Supreme Court for the first time. It can also be raised suo motu by the court itself.⁷ It is important to note that jurisdiction goes to the root of the cause of action, and an action might be dismissed or struck out if the court lacks the jurisdiction to hear the matter.

Every court is established by law, and it is usually the law establishing the court that defines the jurisdiction of the court. The jurisdiction of the Federal High Court as aforementioned is enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended), and section 251 (1)(f) of the constitution confers exclusive jurisdiction on the Federal High Court to hear Intellectual Property Law cases. The section provides thus:

A similar provision is stated in section 7(1) (f) of the Federal High Court Act.⁸ It provides:

The legislations so far enacted on various types of intellectual property rights specifically confer jurisdiction on the subject areas only on the Federal High Court.⁹ From the above provisions, the Federal High Court is conferred with the exclusive jurisdiction to hear and determine causes and matters, whether criminal or civil, relating to intellectual property rights in Nigeria.

However, these provisions can be said to be limited as they do not capture, contemplate or account for other kinds of rights in order to tally with global standards and best practices. Therefore, it is important to recognise that the World Intellectual Property Organisation (WIPO),¹⁰ established in 1967 as the current global forum for intellectual property (IP) services, policy, information, and cooperation, has identified major intellectual property rights that should be generally enforceable. These rights include Copyright, Patents, Trademarks, Industrial Designs, Geographical Indications, and Trade Secrets.¹¹ It is pertinent to note that WIPO further recognises some other intellectual property rights such as traditional knowledge (TK), traditional cultural expressions (TCE), genetic resources (GR), new plant varieties under patent protection because as correctly stated in one of its publications:

Further, IP rights evolve globally, and several rights emerge to reflect changes in social, cultural and technological advancements which require protection. Some recent developments have addressed trademarks unrelated to goods, including service marks, scent marks, expressions of folklore, sound marks and slogans. The grant of patent on some plant varieties and seeds, already in force in England, has also been recognised and regulated in Kenya and South Africa and it is indeed a milestone development.¹²

Recognising those traditional and evolving elements as protectable IP would enable their holders to have a say in their use by others. This does not mean that conventional IP systems are being forced upon TK, TCEs and GRs, but rather that values and principles embedded in IP Law (such as that creations of the human mind should be protected against misappropriation) could be adapted and redeployed for new subject matter and for new beneficiaries.¹³ But by the itemised list provided in Nigerian laws, such new rights may not be protected or enforced in the Federal High Court.

3. The inadequacy of the current Laws on IP

It is our duly considered opinion that the provisions of the Federal High Court Act are insufficient to accommodate the enforcement of all IP matters; especially considering the fact that the intellectual property space is a dynamic sector in Nigeria and worldwide. An intellectual property rights holder in Nigeria who intends to seek redress against an infringement is only presumptively limited to the rights listed in Section 251(1)(f) of the Nigerian Constitution, thus clogging the wheels of the administration of justice and making it difficult for litigants to enforce other non-listed types of intellectual property claims. Thus, the specificity of the itemised IP rights limits the powers of the court to adjudicate narrowly only on the items stated in the list thereby impliedly excluding other IP rights that are not provided in the list.

It is worthy of note that if the drafters had used certain general or omnibus words after the specific listing in the provision herein, it would have been easy to construe the adroit implication of other types of IP rights. But the laws do not make this provision and under the ejusdem generis rule of interpretation, where general words (as in a statute) follow specific words in a list, they must be construed as referring only to the types of things identified by the specific words. In other words, when a list of two or more specific descriptors are followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. Herein, there are only distinct and specific categories and no general word to which the other classes can be construed as a connector to the specific categories listed; and where this is lacking, even the ejusdem generis rule will not be applicable.¹⁴

Furthermore, in 1999,¹⁵ there was an amendment by the legislature to insert the word 'passing off' into the constitution. Passing off as an ancillary claim relating to trademark, is not a type of intellectual property right, thus, we further opine that the draftsmen were in error for inserting it among the types of IP rights in the legislations. This could be interpreted as a lack of adequate knowledge of IP rights by the draftsmen. If the intention of the draftsman was to introduce a statutory right of passing off, merely inserting this term into the Constitution did not achieve that objective as the term 'passing off' is not a type of IP category comparable to the other listed genres and no description of its scope and limits was provided.

The effect of the anomaly in the legislations in practice is that although trademark passing off actions not connected to an infringement claim can now be instituted at the Federal High Court as affirmed in the Supreme Court's decision in Omnia (Nig.) Limited v. Dyktrade Limited¹⁶ there are still reservations as to whether the mere insertion of the term 'passing off' is sufficient statutory enactment of a common law cause of action.¹⁷

In view of the above, creators are left with no choice to enforce their rights (such as claims for trade secrets misappropriation) but to seek redress at the State High Courts as this is the court conferred with general jurisdiction to adjudicate on any civil claims.¹⁸ This defeats the purpose of conferring exclusive powers of enforcing IP rights in Nigeria on the Federal High Courts.

The development of IP rights depends on the interpretation made by the courts. The extent to which creators can observe and enforce their full rights and obligations with regards to the protection and commercial exploitation of such IP rights is determined by the court's interpretation and pronouncements on cases brought before it.¹⁹

The drafting technique employed by the draftsmen by laying out specific subject areas of IP Law excludes other areas not specifically itemised in the provisions. This deters the Federal High Courts from adjudicating on such areas, and unfortunately, undermines the objective of establishing specialised courts to regulate and adjudicate on technical subject areas such as intellectual property.²⁰

With the vibrant commercial and technological conditions and environment for the continuity of IP rights, the provisions of IP Laws in the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Federal High Court Act are inadequate in dealing with the rights.

4. Conclusion and Recommendations

The recognition of significant value attached to intellectual property assets should be sufficient for countries across the globe to adopt or establish national departments or agencies solely devoted to the administration and enforcement of intellectual property matters. An intellectual property rights holder should be confident that his work or innovation can be protected by the pillars of law and its enforcement agencies, in the event of misappropriation.

This is also because IP protection benefits the Nigerian economy in terms of promoting locally made inventions, and innovations, and helps individuals and firms to receive commercial value from these creations of the mind. Therefore, as a first step, Nigeria as a signatory to the TRIPs agreement, should by virtue of a constitutional amendment adopt the generic term "Intellectual Property" rather than the itemised list stated in the provisions conferring jurisdiction on the Federal High Court. This would capture the evolving subject areas pertaining to IPRs and eliminate the restrictive approach the courts tend to adopt in enforcing intellectual property laws.

Ancillary to the above, by virtue of Section 4 of the Nigerian Constitution and Items 67 and 68 of the Exclusive Legislative List, the National Assembly should extend its amendment to provide for other triable intellectual property matters or input the generic term 'intellectual property causes or matters' to shelter any kind of intellectual property matter that is brought before the Federal High Court. The National Assembly should also give priority to the domestication of international treaties on intellectual property to which Nigeria is signatory or has ratified, as it will assist the courts in specifically enforcing IP rights acquired by virtue of international arrangements.²¹

Furthermore, the main function of the court is the interpretation of the law, demonstrated by landmark decisions, principles and pronouncements made by the court. In utilising this function of judicial law-making, the courts can make pronouncements on the ignored areas in the legislations while enforcing other IP rights provided in the itemised list as expressed in the case of Patkun Industries Ltd v. Niger Shoes Limited.²² This double-edged approach would advance the development of the law whilst interpreting the law. Interpretation and development of the law are essential objectives of the function of the court. This facilitates the introduction of effective legal solutions to complex social problems.

Furthermore, the establishment of the National Industrial Court²³ in Nigeria to cater for labour or trade disputes should be reciprocated in the establishment of an independent specialised Court for intellectual property causes or matters, considering the expanded and unwieldy jurisdiction of the current Federal High Court. Specialised courts can be regarded as being better equipped to adapt to dynamic developments in law. Also, an intellectual property department could be incorporated at the Federal High Court and manned by an intellectual property expert who could preside as a judge over any intellectual property proceedings.

Recently, the High Court of Delhi, India had taken a bold step in providing a specific law under the umbrella of intellectual property by issuing a Public Notice dated October 10, 2021, proposing a Draft 'Delhi High Court Intellectual Property Rights Division Rules, 2021'. Earlier in the same year, July 7, 2021, the Delhi High Court as a progressive I.P. savvy court, had established an Intellectual Property Division (IPD) with dedicated I.P. benches to handle all I.P. right issues, and further implemented the Nomenclatures and Court Fees for the newly created Intellectual Property Division. The I.P.D. will be responsible for the following underlisted matters;

1. All original and appellate proceedings, including Writ Petitions (Civil), Civil Misc. (Major) etc., relating to I.P. rights disputes, except those that are to be heard by a Division Bench.
2. All new filings under the different I.P. rights categories.
3. I.P. rights suits, revocation applications, cancellation, applications, other original proceedings, appeals from the offices of the Registrar of Trademarks, Controller of Patents, and Copyright Registrar, and all other proceedings previously maintainable before the former I.P. Appellate Board under the provisions of India's Trade Marks Act 1999; the Copyright Act 1957; the Patents Act 1970; the Designs Act 2000; the Geographical Indications of Goods (Registration and Protection) Act 1999.²⁴

The need for reforms and amendments of laws especially IP Laws cannot be overemphasised. The period of enactment of the affected legislations clearly show that the laws were enacted a long ago, at a time that many of the current day developments were not in the consciousness of the legislators. The result of the use of these outdated legislations is that the protections offered in Nigeria are substandard in comparison to the updated laws operating in other jurisdictions. The lack of reform of the laws hinders the development of IP rights. This has negatively impinged on the role of judicial interpretation in determining and defining the boundaries of IP rights.

Significantly, the creation of a stand-alone specialised court to entertain IP-related disputes or a division of the Federal High Courts specifically established for the enforcement of Intellectual Property Law in Nigeria will encourage swift, adequate, and accurate adjudication of IP disputes.

The lack of requisite knowledge on IP matters on the part of the presiding judges before whom these cases are brought deter the relevant development of the subject matter. Specialisation in IP matters amongst Nigerian lawyers should also be encouraged. Specialisation could also be a pre-requisite during the appointment of judges to the specialised court or division to entertain IP-related disputes. This will address technically complicated disputes in the fields of IP Law.²⁵

The present authors firmly believe that the propositions highlighted herein, if carefully considered in the next Nigerian Constitutional review, will be able to cater for evolving IP rights, the enforcement needs of intellectual property rights holders, influence the quality of judicial decisions rendered and ensure adequate dispensation of justice with respect to IPRs in Nigeria.

Footnotes

1. WIPO, "about IP" available at https://www.wipo.int/about-ip/en/, accessed on 7th November 2021.

2. WTO, "TRIPs agreement" available at https://www.wto.org/english/docs_e/legal_e/27-trips.pdf accessed on 22nd November 2021.

3. ICC, "Promoting and Protecting Intellectual Property in Nigeria," available at https://iccwbo.org/content/uploads/sites/3/2017/01/Promoting-and-Protecting-Intellectual-Property-in-Nigeria.pdf accessed on 5th November 2021.

4. Section 46 of the Copyright Act, Section 67 of the Trademark Act, Section 32 of the Nigerian Patents and Design Act.

5. https://www.writinglaw.com/types-of-jurisdiction/ accessed on Tuesday, 18th January, 2022.

6. Supra.

7. Other types of jurisdictions that exist are: supervisory, exclusive, limited, unlimited, and procedural.

8. Cap. F12, Laws of the Federation of Nigeria, 2004.

9. Section 46 of the Copyright Act, Section 67 of the Trademark Act, Section 32 of the Nigerian Patents and Design Act.

10. See https://www.wipo.int/about-wipo/en/ accessed on 9th November 2021.

11. See https://www.wipo.int/about-ip/en/ accessed on 9th November 2021. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)1995 provides for these areas of Intellectual property: copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data. See https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm accessed on 9th November 2021.

12. ICC, "Promoting and Protecting Intellectual Property in Nigeria." available at https://iccwbo.org/content/uploads/sites/3/2017/01/Promoting-and-Protecting-Intellectual-Property-in-Nigeria.pdf accessed on 9th November 2021.

13. See WIPO, 2020. Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions. pp. 10-11, https://www.wipo.int/edocs/pubdocs/en/wipo_pub_933_2020.pdf accessed on 19th November 2021.

14. Rule of Ejusdem Generis https://www.southcalcuttalawcollege.ac.in/Notice/50455MAXIMS%20TOPIC%205.pdf accessed on 21st January, 2022.

15. Pursuant to Federal High Court Amendment Decree No. 60 of 1991.

16. [2007] 15 NWLR (Pt. 1058) 576.

17. John Onyido, "Intellectual Property Law and Practice in Nigeria: A Practitioner's Perspective" https://www.clrnn.net/2021/07/08/intellectual-property-law-and-practice-in-nigeria-a-practitioners-perspective/ accessed on 10th December 2021.

18. Section 272 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

19. Adebambo Adewopo, "Role of the Court in the Interpretation and Development of Intellectual Property Law: The Nigerian Experience", The Gravitas Review of Business & Property Law, Vol.6.No1, March 2015, at pp 2-3.

20. John Onyido, "Intellectual Property Law and Practice in Nigeria: A Practitioner's Perspective"

https://www.clrnn.net/2021/07/08/intellectual-property-law-and-practice-in-nigeria-a-practitioners-perspective/ accessed on 10th December 2021.

21. Section 12 of the 1999 Nigerian Constitution provides for the implementation or domestication of treaties.

22. [1998] 5 NWLR (Pt. 193) 138.

23. Section 254C (1) (a) of the 1999 CFRN (Third Alteration) Act 2010 confers exclusive original civil jurisdiction on the NICN over civil causes and matters relating to or connected with any labour, employment, trade unions and matters arising from the workplace, the conditions of service and matters incidental thereto or connected therewith. ... Alteration) Amendment Act, 2010.

24. See, Priya Adlakha and Shilpi Sinha, "Delhi High Court proposes Intellectual Property Rights Division Rules, 2021" ( 14th October 2021), available on https://ssrana.in/articles/delhi-high-court-proposes-intellectual-property-rights-divisions-rules-2021/ accessed on 19th January 2022.

25. John Onyido and Yetunde Okojie, "Intellectual Property Law and Litigation in Nigerian Courts", in A Review of Contemporary Legal Trends in Nigerian Law, (Babatunde Ajibade et al, eds.) LexisNexis 2017, Ch. 6, p 76.

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