THE IMPACT OF SECTION 43(2) OF THE PLANT VARIETY PROTECTION ACT 2021

While plant breeders, farmers, and stakeholders in the agricultural sector have welcomed the development, one major concern of stakeholders is the implication of section 43(2) of the PVPA on the rights of breeders to appeal any unfavourable decision by the Minister concerning their application or representation. By the provision of the section, any decision of the Registrar as regards refusal, nullification, or cancellation of a breeder’s right can be appealed to the Minister of Agriculture, whose decision shall be final. It is feared that the finality of such a decision deprives an appellant of the right to seek remedy in a court of law. This article seeks to analyse the said provision and offer recommendations thereto.

Background

The Act confers Breeder’s Rights on Breeders who introduce plant varieties that are new, distinctive, uniform, and stable. This right underpins a breeder’s prerogative to, inter alia, produce or reproduce, sell, offer for sale, market, export or import the propagating material of any protected variety.[1]

However, crucial to the enforcement and optimum exploitation of breeder’s rights created under the PVP Act, is the need to effectively administer the Act in such a way that allows for a facile application procedure for the registration of the rights. Also, an equal desideratum is the provision of seamless access to efficient and potent mechanisms for the redress of potential breach of rights provided for under the Act. To cater to this necessity, the Act creates the office of the Registrar[2], which is tasked with duty to, oversee the grant of breeder’s rights as well as to maintain the register for the provision of information concerning breeder’s rights issued in Nigeria.

The Registrar is also empowered by the Act to make certain decisions which affect the rights of breeders and applicants alike. These decisions include the rejection of an application for a breeder’s right, as well as nullification[3] and cancellation[4] of the breeder’s rights. Where a party is aggrieved by the decision of the Registrar, Section 42 & 43 of the Act provide, essentially, that an appeal will lie to the Minister who would then give a decision on the facts. Interestingly, the Act makes the decision of the Minister final. Literal meaning of ‘finality’ supposes that appeals cannot lie from the decision of the Minister to the Courts. Does this then mean that the Court is formally precluded from assuming jurisdiction over appeals from the decision of the Minister? To answer this question correctly, it is pertinent that we examine the provisions of section 42 and 43 of the PVPA.

[1] Section 29(1) of the PVP Act.

[2] Section 4 of the PVP Act.

[3] Section 35 of the PVP Act.

[4] Section 36 of the PVP Act.