by Ayokunle Odekunle
During my sojourn at the famous Mayflower School, Ikenne, there was an incident I would forever and ever regret. And which still haunts me…
There was this girl who used to be very beautiful and was highly coveted by the Mayflower big boys. I wanted her too and I never hid my desires to be her boyfriend. I was always by her side, giving her advice, buying her gifts, spending my whole time with her. Infact, I flaunted her and gave people the impression that we were dating. I did not ask her out.
I spent a certain Saturday walking her all around. Then at night after spending over 12 hours with her without any ‘meaningful’ achievements, She called me to her side to tell me she had a boyfriend. I was shell shocked and dumbfounded. Amidst tears, I asked her why she had chosen to embarrass me. She broke into guttural laughter and told me I did not ask her out, I did not signify my intention to have anything intimate with her and I was just like a “brother” to her. Meanwhile, all the time I had spent fooling myself, one sharp guy somewhere was ‘filing’ his “processes” and had read his manifesto to her. I had been the pretender all the while.
Now, who do I blame? Myself of course! In the legal parlance, a mens rea (Intention) is not substantive without the actus reus (Act). Some things cannot be inferred by conduct, they have to be expressed!
The unfolding ‘APC’ imbroglio is something I find most hilarious. As I write this, 3 groups are laying claim to the acronym ‘APC’. The first group, ALL PROGRESSIVES CONGRESS which I would henceforth refer to as ‘APC 1’ is the loud voice and it comprises of the so called progressives.
It is a merger between 4 main opposition groups which are: The Congress for Progressive Change (CPC) led by Muhammadu Buhari, The Action Congress of Nigeria (ACN), a faction of All Progress Grand Alliance (APGA) and the All Nigeria Peoples’ Party (ANPP). Also included in the merger are a group of disgruntled ex-PDP members who have suddenly become ‘progressives’ just to stay relevant. (I didn’t say Achike Udenwa, Dino Melaye, Ifeanyi Ararume and Nasir El-rufai)
Upon announcing the name and logo to the press amidst glee, fanfare and in a chest beating manner, they insisted that they were in the game to KICK the PDP out of power. They hurriedly designed their logo inspite of the fact that there were rumours of infighting over certain symbols on the logo. The APC1 Governors even went on a showboating trip to the streets of Maiduguri to ‘show their power and fearlessness’. Their grandstanding and acute playing to the gallery continued with braggadocios and Mohammed-Ali like boasts in the media. They had even started thinking about picking a Vice Presidential candidate. Then the spoilers came!
It was revealed some time ago that another group named ‘AFRICAN PEOPLES CONGRESS’ which I would call APC2 had already quietly started registering with the Independent National Electoral Commission (INEC). And they made no fuss or noise. It was even made known that they submitted their letter of intent to INEC sometime around February. They showed how serious they are when they released their first Press release and unveiled their logo and National offices on 14th March, 2013.
Meanwhile, APC1 stopped their macabre dance and became jolted. They had been caught unawares.
I later learnt again on Thursday that a 3rd APC group (All Patriotic Congress) had also submitted their intent to register with INEC.
Now, it is elementary Law that you cannot have 3 legal entities bearing the same name. So, the problem now is which of the 3 APCS is the recognized APC under the law?
APC 1 is threatening to go to court saying they cannot change their name. According to the chairman of their merger committee, Mr. Tom Ikimi, they possess patents and intellectual property to the acronym ‘APC’ because they made the public announcement first. The APC2 is saying since it followed due process by filing its letter of intent to INEC, it should be recognized.
So, what are the legal issues that arise in the circumstances?
1. Which of the APCs is duly registered under the Law?
2. Can APC1 lay claim to the ‘intellectual property’ of the name just because they announced to the public without due registration?
3. What is the position of the Law as regards ‘registration of title’?
4. Can ‘APC1’ sue as a corporate entity?
Let me begin with issue 4. Now that the APC1 are threatening to go to court to ask the court to compel INEC to recognize them as the duly registered APC, can they sue under the acronym APC?
It is a trite principle of Law that before a court can have jurisdiction to hear a matter, the PROPER parties must be before the court. See Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587; Sken Consult v. Secondy Ukey (1981) SC 6.
In this instance, the APC1 cannot sue under the acronym ‘APC’ because they are not a body corporate under the Law and not registered by the electoral umpire (INEC). They cannot sue and be sued. The locus classicus case of SALOMON V SALOMON sheds more light on the issue of corporate personality.
On issue 2, as to whether the APC1 can lay claim to the use of the acronym ‘APC’ just because they first made public their ‘intention’? All that is required is to distinguish the difference between MENS REA and ACTUS REUS.
Having the intention without actually carrying the action out is tantamount to not having carried out the action at all: FAGAN V METROPOLITAN POLICE COMMISSIONER (1968) QBD.
According to the Electoral Act 2011 as amended, there are steps that should be taken before a party can be said to have been duly registered with INEC. Declaration to the public does not fall within such purview. Declaration to the public and press without making your intention known to INEC doesn’t make your claim to the ‘intellectual property’ cocksure and watertight.
In as much as the condition precedents to do registration under the law is not followed, the action goes to no issue. On issue number 2 therefore, the APC1 cannot lay claim to the right to owning the ‘patent’ APC.
As regards issue Number 3, the law is clear. An equity maxim says ‘when there are two equal equities, the first in time prevails’. Another maxim goes thus ‘VIGILANTIBUS ET NON DORMIENBITUS JURA SUBVENIUNT (the law assists those that are vigilant with their rights and not those who sleep on them).
In the instant case, the APC1 clearly slept on their right by not registering and laying claim to their ‘title’. The APC2 however CLEARLY fulfilled the requirements of the Law. Going by the above, equity would aid APC2 and not APC1 in this matter.
On the last issue for determination, going by the above explanations, it is clear here that APC2 are DULY registered under the Law. While the APC2 followed the requirements required by Law, the APC1 engaged in tomfoolery and delusion of grandeur.
If I have the intention of floating a company ‘ODDY LTD’, I rent an office, run adverts on TV but I shriek in my responsibility by failing to register and my neighbor quietly goes to the CAC, fulfills the provisions of Section 32 of the Companies and Allied matters act and registers ‘ODDY LTD’, I have lost the right to use the name.
Simple and short!
And as for those blaming the PDP for the APC1’s plight, I don’t understand the rationale. If really the PDP are behind it, it shows that the PDP is run by geniuses who don’t make noise. It means the PDP have mastered the book ‘THE GODFATHER’ by Mario Puzo and are acting like Don Corleone.
It also teaches the APC1 that they should concentrate more on the germane things and forget the noise they make in the media. Elections are not won by Lai Mohammed’s long and boring press statements, they are won by painstaking preparations.
So what next for APC1? They should swallow their pride, walk shamefully with their tails between their legs and register another party or go their separate ways, if they choose to.
They should also stop blaming imaginary enemies for their plight. Using ‘The Nation Newspapers’, ‘Osun Defenders’ and other media outfit to hound and harrass the young lawyer that registered APC2 would not help matters.
It however promises to be an interesting few weeks ahead. Would the APC1 swallow their pride and change their name? Would they go to court? Would they keep looking for cheap sympathy from the public? And I wonder if Tinubu and Buhari were expecting INEC to reserve the name for them or even register the APC on their behalf. I think if the APC1 deserve to rule this country, they should be smarter than this.
Do I think they can displace the PDP from the top after that gaffe from them?
Let me ask my oga because I don’t want to say one thing now and my Oga at the top would say another thing.