Plant Variety Protection Act, 2021. Act no. 5 of 2021

FEDERAL REPUBLIC OF NIGERIA ACT No. 5 PLANT VARIETY PROTECTION ACT 2021 Produced by National Agricultural Seeds Council (NASC) Extraordinary Federal Republic of Nigeria Official Gazette No. 84 Lagos - 26th May, 2021 Vol. 108 Government Notice No. 118 The follow: ‘as supplement to this Gazette: Act No. Short Tittle Page | 5 Plant Variety Proteciion Act, 2021 . = . A97-120 Printed and Published by The Federal Government Printer, Lagos, Nigeria FGP 125/072021/300 Annual Subscription from Ist January, 2021 is Local: N45.000.00 Overseas: N60.500.00[Surface Mail] ¥75.000.00 [Second Class Air Mail]. Present issues 2,000 Per copy, Subscribers who wish to obtain Gazette after Ist January should apply to the Federal Government Printer, Lagos for amended Subscriptions. A97 PLANT VARIETY PROTECTION ACT, 2021 ARRANGEMENT OF SECTIONS Section: Part I — PRELIMINARY PROVISION 1. Objectives. 2. Application. PART II—PLANT VARIETY PROTECTION OFFICE 3. Establishment of Plant Variety Protection Office. 4. Appointment of Registrar. 5. Functions of the Office. 6. Register of plant variety protections’ rights. 7. Register to be evidence. 8. Inspection of register. 9. Plant Variety Protection Advisory Committee. 10. Functions of the Committee. 11. Powers of the Comyn": PAE ETIES TO BE PROTECTED 12. Genera and spec:. protected. 13. Conditions of protection. 14. Novelty. 15. Distinctness. 16. Uniformity and stability. PART IV—APPLICATION FOR PLANT VARIETY PROTE CTION RIGHTS 17. Application for plant variety protection’s r ight 18. The contents of an application 19. Variety denomination PART V—CONSIDERATION AND DISP OSITION OF APPLICATION 20. The filing date of an applic ation 21. Right of priority 22. Amendment of application 23. Publication of notice of application 24. Objection to the proposed gran t of breeder’s right. — Plant Variety Protection A ct, 202] oo A98 2021 No.5 25. Grounds for objection, 26. Notice to the applicant and reply to an objection. 27. Disposition of applications. PART VI-PROVISIONAL AND FINAL PROTECTION 28. Provisional protection. 29. Scope of the breeder’s right, essentially derived and certain other varieties. 30. Exceptions to the breeder’s right. 31. Exhaustion of the breeder’s right. 32. Duration of a plant breeder’s right. 33. Protection and damages for infringement of a breeder’s right. 34. Fees. Part VII-NULLITY, CANCELLATION AND SURRENDER OF BREEDER’SS RIGHT 35. Nullity of the breeder’s right. 36. Cancellation of the breeder’s right. 37. Notification of nullification and cancellation. 38. Surrender of breeder’s right. 39. Authorisation or assignment of breeder’s right. 40. Restrictions on the exercise of breeder’s right. 41. Information on authorisation or assignment of breeder’s right. PART VIII —APPEALS. 42. Appeals from decisions of Registrar. 43. Decisions of the Minister on appeals. PART IX-PLANT BREEDERS’ RIGHTS DEVELOPMENT FUND, ACCOUNTS, AUDIT AND ANNUAL REPORT 44. Plant Breeders’ Rights Development Fund. 45. Accounts and audit. 46. Annual report to be submitted to the Minister. PART X—OFFENCES AND PENALTIES 47. Offences and penalties. PART XI—GENERAL PROVISIONS 48. Collection of fees. 49. Confidentiality and disclosure. 50. Action against the State. 8 reais right in respect of existing varieties of recent creation. * “Agreement with foreign governments. "h h w e tr y ts ar ta i t h de i n O N ~l Plant Variety Protection Act, 202] 2021 No.5 A99 Agents. Registrar to make guidelines. Regulations. Interpretation. . Citation. A 10] PLANT VARIETY PROTECTION ACT, 2021 AN ACT FOR THE PROTECTION OF PLANT VARIETIES, TO ENCOURAGE INVESTMENT IN PLANT BREEDING AND Crop VARIETY DEVELOPMENT, TO ESTABLISH A PLANT VARIETY PROTECTION OFFICE FOR THE PROMOTION OF INCREASE STAPLE Crop PRODUCTIVITY FOR SMALLHOLDER FARMERS IN NIGERIA: AND FOR RELATED MATTER. (21st Day of May. 2021) Commence ment ENACTED by the National Assembly of the Federal Republic of Nigeria— 1. The objectives of this Act are to— Objecayes: (a) promote increased staple crop productivity for smallholder farmers : in Nigeria and encourage investment in plant breeding and crop variety development ; (b) promote increased mutual accountability in the seed sector ; and (c) protect new varieties of plants. 2. This Act applies to— Application. (a) breeder ; and (6) any plant genera and species. PART IJ—-PLANT VARIETY PROTECTION OFFICE 3. There is established the Plant Variety Protection Office (in this Act Establishment referred to as “the Office”) which is domiciled in the National Agricultural of Plant Seeds Council. Variety Protection Office. 4. (1) The Board shall appoint a fit and proper person as the Registrar Appointment on the recommendation of the Director-General. of Registrar. (2) The Registrar shall have at least a master's degree in plant breeding, seed science, agronomy or in related fields with a minimum of seven years cognate experience and shall perform the functions assigned to him by the Director-General. (3) The Registrar shall be responsible for the day-to-day management and administration of the Office and answerable to the Director-General. Functions of 5. The Office shall— ’ sheveaceex (a) grant breeder’s rights ; . (b) maintain a register and provide information on plant breeders’ rights issued in Nigeria a (c) facilitate transfer and licensing of plant breeder's rights; 2 Registrar of plant variety Protections rights. Register to be evidence. spection Plant Variety Protection Act, 202 y| 2021 No. 5 ° e a collaborate with local and international bodies whose functions relate to ‘d) aa breeder’ rights matters: and perform other functions as are necessary for the furtherance of the (e) perf objects of this Act. 6.(1) The Registrar shall maintain a breeder’ rights register in which the information required to be registered under this Act shall be entered, (2) The information to be listed in the register for each registered variety shall include— (a) the species and denomination of a variety (b) the full name and address of the : (i) applicant or holder of the breeder's right. and (ii) person who bred or discovered and developed the variety, in case the person is different from the applicant or holder of the breeder's right. (c) the date and time of inception of the breeders right (d) any other matter which: (i) is required by this Act or any other written law to be entered in the register, and (ii) may affect the validity or ownership of plant breeder's rights and (e) any other information which may be required by Regulations made under this Act. (3) The register shall be the first evidence of any matter entered in it. 7.— (1) The register shall be evidence of all matter directed or authorised by the Act to be noted in it. (2) A certificate by the Registrar to the effect that an entry has or has not be made in the register or that any other thing authorised by this Act to be done, has or has not been done, shall be first evidence of the matters specified in that certificate. : (3) A copy of an entery in the register or an extract from the register, certified by the registrar, shall be admitted in evidence in any court without further proof or production of the register. 8— (1) The register shall be open for i ti public during business hours, Pp nspection by any member of the (2) A certified copy of an 7 : ° Y entry in the register shall be given upon eae va payment of the fees prescribed in the Regulation made under Plant Variety Protection Act, 202] » £02 2021 No.5 9.41) An Ad-hoc C -hoc Committee > iy ’ et . ce to be . . ties . Advisory Committee Ga th is a as the Plant Variety ommittee ) may be established to Perform thi fi ee ae 10 of this Act. ¢ functions specified in section > ore 7 “ ° , o sende co i i i : . nsi each from— a)the 1 ; sa M oe hho shall be the Chairman of the Committee (c) aregistered, plant breeder association; (d)aregistered seed traders association; (e) aregistered farmers" association; () auniversity offering a course on plant breeding; (g) the Attorney-General of the Federation's office: (h) the National Office for Technology Acquisition and Promotion; (i) the National Quarantine Services ;) the National Biotechnology Deve lopment Agency Y iosafety Management Agency; (k) the National Bi (i) the National Crop Variet y Release Committee; (m) Registrar of Trad emarks; (n) Registrar of Patents and Design; and (o) the Registrar (3) The Secretary of the Council shall be t he Secretary of the Com mittee. 10. The Committ ee shall— General of Nat ional Agricu nforcement of this Act; eders' rights ap plications from the Registrar, ant breeders’ rig hts reports and on the (a) through the Di rector (NASC) advise the Minister on € (b) receive reports of plant bre (c) receive in formation on the pl Registrar's tests results ; and (d)manage th e operations of the Fund. ill fprocedure, ; a specif ic and general nature, and interested perso n for hearing on plant 11. The Commi ttee shi ywn rules 0 directives of any other fa)make its € (b) give the Regis trar fc) call on b reeders and variety protectio n matters. Itural Seed Council A 103 plant variety Protections Advisory Cmmittec. Functions of the Committee. Powers of the Committee. 2021 No. 5 Plant Variety Protection Act, 202] APO ne nes PART II] VARIETIES TO BE PROTECTED Cieisore and 12. The protection of varicties under this Act shall apply to aj] plant species to be penera and species. protected 13. (1) The breeder's right shall be granted with respect to a Variety which is new, distinct, uniform and stable. , (2) The grant of the breeder’ right shall ‘lot be subject to any further or different conditions, provided that the— (a) variety is designated by a denomination in accordance with the provisions of section 19 of this Act ; and (b) applicant complics with the provisions of this Act and that he pays the fees prescribed in the Regulations made under this Act. Conditions of protection. 14.-(1) The variety is deemed to be new if, at the date of filing of the application for a breeder's right, propagating or harvested material of the varicty has not been sold or otherwise disposed of to any person with the consent of the breeder, for purposes of exploitation of the variety in Novelty. (a) Nigeria, earlier than one year before the date of filing the application ; and (6) aternitory other than Nigeria earlier than (i) fouryears, or (ii) six years before the said date in the case ofa tree or vine. (2) Subject to subsection (1), the following acts shall not be considered toresult in the loss of novelty (a) a trial of the variety not involving sale or disposal of, to others for purposes of exploitation of the variety ; and (b) sale or disposal of, to: (i) others without the consent of the breeder, (ii) any person that forms part of an agreement for the transfer of rights to the successor-in-title. (iii)any person that forms part of an agreement under which a person multiplies Propagating material of the variety concerned on behalf of the breeder, provided that the property in the multiplied material reverts to the breeder and the multiplicd material is not used for the production of another variety, t (iv) i Gitar rn part of an agreement under which a ee rg iat rane adoratory trials, or small-scale processing trials g the variety. Plant Variety Protection Act, 2021] 2021 No.5 A 105 v) any person that forms part of the fulf ‘ im} my on that forms part of the fulfillment of a statut ory or Sect adn iMistrAuive obligation conceming biological security or the entry ofvanieties nan official catalogue of varieties admitted to trade (vf) any person of harvested material which is a by-product or a surplus product of the creation of the variety or the activities referred to in subparagraphs (ii)-(v) provided that the said material is sold or disposed of without variety identification for the purposes of consumption, and (vii) any person due to or in consequence of the fact that the breeder had displayed the variety at an official or officially recognised exhibition. 13. (1) A variety is deemed to be distinct where it is clearly Distinct ness. distinguishable trom any other variety whose existence is a matter of common knowledge at the time of the filing of the application. (2) For purposes of subsection (1), the filing ofan application for the granting of breeder’ right or for the entering of another variety in the official register of varieties in any country, is deemed to render that other variety a matter of common knowledge from the date of the application , provided that the application leads to the granting of breeder's right or to the enter ing of the said other variety in the official register of varieties. 16. Avariety is deemed to be— Uniformity and stability. (a) uniform if, subject to the variation that may be ex pected from the particular features of its propagation, it is suffic iently uniform in its relevant characteristics’; and ristics remain unchanged after (b) stable, where its relevant charac te ar cycle of propagation, at the repeated propagation or, in the case of a particul end ofeach such cycle. PART [V—APPLICATION FOR PLANT VARIETY PROTECTION RIGHTS apply for the grant ofa breeder’s Applicatio n 17. A breeder of a new variet y may right for that variety. for plant variety protection’s right. 18. The application for breeder's right relating to a variety shall c ontain— the contents (a) the name and address of the applicant; obamn ccessor-in-title of the person who bred, applica tion. (b) where the applicant is the su or discovered and developed t he variety— (i) proof of title or authorit y in the form and content satis factory to the Registrar or as may be specified by Regulations establishing the ex istence and validity of the assignment or succession, an Plant Variety Protection Act, 293 ; ee] A 106 20 21 No. 5 retort, n y ip the name and address of t he person who bred, or discov ercg = developed the vari ety ; (c) the proposed denomination and the descrip tion of the Characterj, tics fthe variety as the Regi strarmayrequire; 0 (d) samples of the propagating material in the quantities @S the i ay requir e ; and | Registrar may ditional information, documents and material that ma be (e) any a | required in connection W1 Regulations. 19— (1) The variety shall be designated by a denomination which shal] sesom be its generic desi gnation. denomination. (2) Subject to subsection (6), the rights in the designation registered as the denomination of the variety shall not hamper the free use of the denomination in connection with the variety even after the expiration of the breeder's right. (3) The denomination—. (a) shall enable the variety to be identified; (5) shall not mislead or cause confusion concerning the characteristics. value or identity of the variety or the identity of the breeder ; (c) shall be different from every denomination which designates, in the territory of any member of an international organisation dealing with plant breeders! rights matters to which Nigeria is a party, an existing variety of the same plant species or of a closely related species ; and (d)may not consist solely of figures except where this is an established practice for designating varieties. th the application as may be prescribed jp the (4) The denomination of the variety shall be submitted by the applicant to the Registrar and where the Registrar finds that the denomination does not satisfy the requirements of this section, he shall— (a)refuse to register it : and (d)direct the applicant to propose another denomination within the Period to be prescribed in the Regulations made under this Act. (>) The Registrar shall r egister the denomination at the time the breeder's Tight is granted, pie rights of third persons shall not be affected and where 4 prior right, the use of the denomination ofa variety is forbidden a person wh ; ; 0, In accordance with the provisions of subsection (1). obliged to use it i : , the Regist ; . + . it anov denomination for the y : aa Shall direct the applicant to submit ant Plant Variety Protection Act, 2021 2021 No.5 ; » 1 Ws - Scene i variety is already protected by a member of an international organisation dealing with the plant breeders' rights matter to which Nigeria is a party or an application for the protection of the same variety is filed in a member of such organisation, the variety denomination which has been proposed or registered in that other member of the organisation shall be submitted by the applicant to the registrar, — a ee (8) The Registrar shall— (a) register the denomination submitted, unless he considers the denomination unsuitable within Nigeria , and (b) direct the applicant to submit another denomination where the denomination is unsuitable. (9) The Registrar shall in writing, inform the authorities of the members of UPOV on, matters concerning variety denominations, in particular the submission, registration and cancellation of the denominations. (10) Any person who, within Nigeria, offers for sale or markets propagating Taterial of a variety protected within the said territory shall be obliged to use the denomination of that variety, even after the expiration of the breeder's right of that variety, except where prior rights prevent the use. (11) When a variety is offered for sale or marketed, it shall be permitted to associate a trademark, trade name or other similar indicatio n with a registered variety denomination and where such an indication is so associated, the denomination shall nevertheless be easily recognisable. PART V- CONSIDERATION AND DISPOS ITION OF APPLICATION 20.(1) The file date of an application shall be the date which the application was filed at the registry by the applicant. (2) For the purposes of this section, an application is deemed to have been submitted in the form prescr ibed under this Act. 21.-(1) Any breeder who has duly filed an application for the protection of a variety in one of the members of an international organisation deali ng with plant breeder's right matters which Nigeria is a party shall enjoy a right of priority fora maximum period of 12 months. (2) The period referred to in subsectio n (1) shall be computed from the date of filing the first application and the day of filing shall not be included in the latter period. (3) The applicant shall, in order to benefit from the right of priority in the subsequent application in Nigeria, claim within 12 months the priority of the first application. A 107 The filing date of an application. Right of priority. A 108 Amendment of application. Publication of notice of application. Objection to the proposed grant of breeder’s right. Grounds for objection. No.5 Plant Variety Protection Act, 2021 2021 No. . i licant to furnish, within a pey; trar may direct the app Period of at (4) Le is from the filing date, a certified true copy of the documents least ante stitute the first application that was filed and samples o; other aries aa dicating that the variety which is the subject matter of both evi applications is the same. i it to the Registrar any necessary informati The applicant may submi nation, d ea or uel required in this Act for the purpose of the examination sritiin a period of two years after the expiration of the period of Priority or 4 period of six months where the first application is rejected or withdrawn, 22.-(1) An applicant may amend his application for the grant of a breeder's right for a variety at any time without affecting Its filing date, provided that the amendment does not affect the variety which is the subject of the application. (2) Where any amendment of an application occurs after publication of a notice under section 23 of this Act, the applicant shall be liable to pay the cost of re-publication. 23.— The Registrar shall publish in the Federal Government Gazette or in two national daily newspapers of wide circulation, a notice of every filed application for plant breeder's right thaf satisfies the requirements of the Act specifying (a) thename and address of the applicant (6) the filing date of the application (c) the proposed denomination; and (d) such other information as may be specified in the Regulations. 24.—(1) A person may submit to the Registrar a written objection to the matter specified in the notice under section 23 of this Act within one month of its publication. (2) Anotice of. objection made under subsection (1) shall (4) specify the grounds on which the objection is based; (b) include a Statement of the facts alleged in support of the grounds Stated under Paragraph (a) : and b ’ . i sees © Support by an affidavit or other proof where required by th 25,- oi allegation ieee submitted under section 24 shall be based on t! (a) applicant is Not entitled to file the application; Plant Variety Protection Act, 2021 2021 No. 5 hoy « . (b) applichtion contains a material misrepresentation ; and (c) contents of the application do not ‘ ot compl Regulations, ply with this Act or the 26,- ( 1) The Registrar shall, within two weeks from the date on which, an objection has been filed— (a) notify the applicant that an objection has been made under section 24 ofthis Act; and (b) provide the applicant with a copy, of the notice of objection and all the supporting documents that have been submitted with the objection. (2) The applicant may submit a written response to the objection to the Registrar within two weeks or such further period as the Registrar may allow from the date of the notification made under subsection (1). (3) Where the applicant submits a response. under subsection (2), he shall send a copy to the person making the objection. (4) The Minister may reply to any objection made against the F ederal Government. 27.-(1) The Registrar shall examine all application and reply upon— (a) completion of the notice requirements under sec tion 23 ; and (b) the expiration of time limits its for objections and replies. (2) Where any decision to grant a breeder's right require an ex amination for compliance with the conditions specified under this A ct, the Registrar may, in the course of the examination, grow or cause to be grown the variety or carry out other necessary tests, or take into account t he results of growing tests or other trials which have already been carr ied out. (3) The Registrar may, for the purpose of an exami nation, direct the breeder to provide the necessary information, do cument or material. (4) The Registrar shall grant the breeder's right where he concludes that— (a) the applicant is entitled to file the application (b) the application conforms to the require ments of this Act (c) no objection has been filed ; and (d) where an objection has been filed, ther e are no grounds for objection. (5) For each variety fo shall— (a) issue a certificate of registration to the holder, r which breeder's right is granted, the Re gistrar A 109 Notice to the applicant and reply to an objection. Disposition of applications. Plant Variety Protection Act, 202] A 110 2021 No. 5 o N f . . at — — —— (b) enter the variety in the register as provided for under Section 6 of this Act; and (c) publish a notice of the grant of breeder's right and the approved denomination in the Federal Government Gazette. PART VI—PROVISIONAL AND FINAL PROTECTION isional 28.-The holder of a breeder's right shall be entitled to equitable VIS . . ; ait remuneration from any person who, during the period between the Publication of the application under section 23 of this Act for the grant of a breeder's right and the date of the grant of that right, has carried out acts which, once the right is granted, require the breeder's authorisation as provided for under section 29 of this Act. 3 Scope of the 29.1) Subject to sections 29 and 30 of this Act, the following acts in breeder’s respect of the propagating material of the protected variety shall require the right, authorisation of the holder of the breeder's right— essentially Se aes (a) production or reproduction (multiplication) : varieti b) conditioning for the purpose of propagation: varieties. g purp propag (c) offering for sale; (@) selling or marketing ; (e) exporting ; (f) importing ; and (g) stocking for any purposes mentioned in paragraphs (a)-(f). (2) The holder of the breeder's right may give his authorisation subject to conditions and limitations. (3) Subject to the provisions of sections 29 and 30 of this Act, the acts referred to in subsection (1) (a)-(g) in respect of (a) harvested material, including entire plants and parts of plants, obtained through the unauthorised use of/propagating material of the protected calor a ae ne authorisation of the holder of the breeder's nig ekercite hiacron” oO | 1¢ breeder's right has had reasonable opportunity iSnight in relation to the said propagating material ; and b ts m; use of the said harveste, ee of paragrah (a) ee breeder, unless the breeder ae shall require the authorisation : in relatfonse.the Said h; i. a had reasonable Opportunity to exercise DISS “tvested material, Plant Variety Protecti ton Act, 202] peOZ 2021 No. 5 4 ~ C ae ae eee ty Eire (1)-(3) shall apply toa variety— aes Tive . protected variety is not itselfan essentially fae — (6) which is not clearly distineui i this Act from the protected Varietycand In accordance with section 15 of c) who i : (c) se production requires the repeated use of the protected variety. (5) For the purposes of subsecti be essentially derived from another aoe shall be deemed to ‘hat Oe redomiaaath oerived from the initial variety, or from a variety ntly derived from the initial variety, whil ini al ve ; e retainin the expression of the essential characteristics that result from the aaa or combination of genotype of the initial variety; (b) itis clearly distinguishable from the initial variety ; and (c) except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essen tial characteristics that result from the genotype or combination of genotypes of the initial variety. (6) For the purpose of this section, an essenti ally derived variety may be obtained through— (a) the selection of a natural, variant (b)the selection of (c) backcrossing, induced mutant or of somaclo nial a variant individual from plants o f the initial variety; and or transformation by genetic en gineering. 30.-(1) The breeder's righ t shall not extend to any act carried out— (a) privately and for non commercial purposes , (b) for experimental pu rposes , and . er variety, and, except w here the (c) for the purpose of breeding any oth t n 29 (4)-(6) of this Ac t apply, any act refer red to in section provisions of sectio AAC r varieties. 29 (1)-(3) in respect o f such othe ecified by the Minister, th e breeder's hin reasonable limits and subject to (2) For the list of ag ricultural crops SP re holder of the breed er's right, right shall not exten d to a farmer who, wit the safeouarding of t he legitimate interests of th uses poupropaanting purposes on his own holding, the product o f the harvest which he has obtaine d by planting on his own holding, the prot ected variety or a variety referred to in section 2 9 (4) (a) or (b) of this Act. imi feouarding the legi timate 3) The reasonable limits and the mea ns of saleguarcil Teper of the hol der of the breeder 's right shall be s pecified in the reg ulations made under this Act. A lll Exceptions to the breeder’s right. Plant Variety Protection Act, 202] se31 No.5 9 bia | td The breeder's right a not oxen vo al act conceming omy Exhaustion naterial of the protected variety or of a variety : y the provisige™ ei r’s section 29 (4)-(6) of this Act, which has been sold or otherwise marketed by right the breeder or with his consent in Nigeria, or any material derived from thy said material, unless the act involves— ietyi tion ; or further propagation of the variety in question ; oS an export of material of the variety, which enables the Propagation of the variety, into a country which does not protect varieties of the plant genius or species to which the variety belongs, except where the exported materia] is for final consumption purposes. (2) In this section "material" means, in relation to a variety— (a) propagating material of any kind ; (b) harvested material, including entire plants and parts of plants ; and (c) any product made directly from the harvested material. 32.—(1) Except as specified in Part VII of this Act, the breeders' rights ee granted under this Act shall expire after 20 years from the date of the grant f a plant : tates ‘ breeder's except for trees and vines whose breeders' rights shall expire after 25 years right. from the date of grant. — (2) The Registrar may extend the duration referred to in subsection (1) for an additional five years where he receives a six month written notice from the holder of the breeder's right before the expiration of the original term. Protection 33.-(1) A breeder's right is protected by both civil and criminal measures stipulated in any written law. and damages for een (2) A suit by the holder of breeder's right against any person who breeder’s infringes the breeder's ri ght may be brought tothe court. °” right, Fass, 34.-The holder of a breeder's right shall pay fees at times and rates specified in the Regulations made under this Act. | PART VII-NULLITY, CANCELLATION AND SURRENDER OF BREEDER'S RIGHT Nullity of 7 : : 35. The Registrar shall declare a breeder's right granted by him null the breeder’ wes . aie : ee it in established that sie — © variety did not comply with the conditions specified in sections i+ b) : time the breeder's right was granted : Ww . ° dhitoeniatiane ta frant of the breeder's r ght has been essentially based up: ©cuments furnished by the applicant, the condition ! down in section 16 of thi is i ee ofthe breeder ioc Act were not complied with at file time Of the gr Plant Variety Protecti es ty Protection Act, 2021 2021 No. 5 Al13 (c) the br eeder's right has been a { a ; co ¢ gr. nted to Pp On Ww 1 enti it 1 iti tot 3 , ait mn ho isnot entitled to 1) 36.-(1) The Registrar may cancel d breeder's right granted by him where he Cancellation has established that the conditions speci . > ified : longer fulfilled. P in sect ion 16 of this Act are no Tcnicste right. (2) Without prejudice to subsection (1 ), the Regi breeder's right granted by him, within the ceded Sate det tic Regulations made under this Act, where the holder of the breeder's right (a) does not provide the Registrar with the information, documents or materials deemed necessary for verifying the maintenance of the variety; b) fails to pay the fees which may be payable to keep his right ‘in force ; or (c) does not propose another suitable denomination where the denomination of the variety is cancelled after the grant of the right. 37.1) The Registrar shall notify the holder of the breeder's right of Notification any decision made under sections 35 and 36 of this Act and the grounds for of such decision. nullification and : . . cancellation. (2) Aperson who receives the notice referred to in subsection (1) may send a written objection to the Registrar within 30 days from the date of receipt of the notification. (3) The Registrar may hold, within a reasonable time after recei pt of an objection, a hearing or may decide the matter based on the written submission of the interested parties. (4) Where the Registrar nullifies and cancels any br eeder's right under this section, he shall publish the nullification or cancella tion by a notice in the Federal Government Gazette or two national daily newspapers of wide circulation, after the expiration of 30 days from t he date of the decision or following a decision made under subsection (3 ). (5) The holder of the breeder's right sh all. retuin to the Registrar any certificate of the grant ofa breeder's right that has been nullified or cancelled under this section. 38.—(1) A holder of a breeder's right may , by written notice to the Surrender surrender Registrar, surrender the right. of enaels gent. (2) The registrar shall; within one mont h from the date of receiving the notice referred to in subsection (1) , terminate the breeder's right and publish a notice in the Federal Government G azette or two national daily newspapers of the termination; of breeder’s right. Restrictions on the exercise of breeder’s right. Information on authorisation or assignment of breeder’s right. Appeals from decisions of the Registrar Decisions of the Minister on appeals Plant Variety Protection Act, 2021 14 2021 No. 5 I Ls J i he holder of a breeder's right may assign or authorise an Authorisation a ia eike any activity described or referred to in section 29 ofthis Acro” or assignment 40.— (1) The free exercise of a breeder's right shall, unless where expressly provided in this Act, not be restricted for reasons other than of public interest. . (2) When any such restriction has the effect of the Registrar authorising a third party to perform any act for which the breeder's authorisation is required, the breeder shall receive equitable remuneration. ‘ 41.— (1) A person authorised under section 39 of this Act may, in not more than 60 days from the effective date of the authorisation (a) notify the Registrar of the transaction ; and : (b) submit a copy of the authorisation agreement to the Registrar. (2) the Registrar may prescribe the form and manner of the notification to be made under subsection (I). (3) Where an assignment or other transmission of all ofa breeder's right is made, the assignee or recipient shall notity the Registrar for the purposes of making changes in the register. PART.VI II— APPEALS 42.—{1) An appeal from the decisions of the Registrar made under this Actshall lie to the Minister. (2) A person who is aggrieved by any of the decisions of the Registrar may appeal to the Minister by submitting a notice of the appeal within 60 days following the publication, or of the receipt, of the individual notice of such decision by the person whose interest is the source or subject of the appeal. “ty 43.—(1) The Minister— ine" @ may conduct an investigation, if he deems necessary to do so, and ne’ @ hearing of the appeal or make a decision based on written submissions; Revises contin, set aside or vary any decision or action of the (c) shall ay order the Registrar to carry outhisdecision;and a™ lve the reasons for his decision in writing, and copies 0! the decision shal] : interested party." Siven to the appellant, the Registrar and any othe: (2) Subject to. the | . wile provisi Minister shall be ons of this section, a decision of | final. MS bey 0. ——ee AR IX— i. . PART PLANT BREEDERS’ RIGHTS DEVELOPMENT FUND, ACCOUNTS AUDIT AND ANNUAL REPORT 44.- 1) The Mini responsible Ne a oo Shall, after consultation with the Minister Fund (in this Act referr ‘it : nah the Plant Breeders’ Rights Development Breeder's ed to as "the Fund’) into which money realised under Rights Development this Act shall be kept. Fund. (2) The sources of money for the Fund shal as (a) fees payable under this Act ; and hall include | (b) any donation or grant from the Government or any other person (3) The Fund shall be applied for— (a) development and promotion of the plant breeders' rights (b) training of plant breeders on matters concerning plant breeders’ rights (c) establishment and maintenance of variety collection and data base ; and (d) any other activity relating to administration of this Act. (4) In addition to the functions entrusted to it under section 10 of this Act, the Committee shall operate as the Fund Committee, whereby— (a) the Registrar shall be a member of the Fu nd Committee and shall serve as the Secretary of the Fund ; (b) the Fund Committee shall make rules and procedures for the operations and management of the F und; (c) separate books of accounts a nd other records in respect of the Fund shall be kept properly and mainta ined and be subject to audit. ain proper books of Accounts and audit. 45.—(1) The Office shall cau se to be kept and maint accounts with respect to— (a) all sums of money re ceived and expended by t he Office and matters dexpenditure take place ; in respect of which the receipt an (b) all the assets and lia bilities of the Office and the Fund ; and atement of the Office. (c) the income and expend iture st (2) The financial year o f the Office and the Fun d shall end on 31 December of each year. s of the Plant Breeders’ Ri ghts Office and the nd of each financial year by the Accountant or-general of the F ederati on. | (3) The books of ac count Fund shall be audited at the ¢ General of the Federal and Audit ‘ 116 2021 No. 5 Plant Variety Protection Act, 2021 Annual 46.—({1) The Registrar shall, submit to the Minister a copy of the report to be audited accounts and annual report on the activities of the Office in respect racer ae ° of that particular year not later than six months after the end of each financial , year. (2) The Registrar shall, within a period of six months or such longer period as the National Assembly may by resolution prescribe after the accounts have been audited, lay-the audited accounts and audit report before the National Assembly. PART X— OFFENCES AND PENALTIES aay 47.—(1) Any person who knowingly— \ malties. i i eas (a) makes a false entry in the register, (5) makes a writing which falsely purports to be a copy of an entry in the register or ofa document lodged with the Registrar, (c) produces or tenders a false entry of copy as evidence, (d) submits a false document or makes a false statement or representation to the Registrar in regard to any action described under this Act, (e) obstructs or hinders the Registrar or any officer in the exercise of his powers or the carrying out of his functions under this Act, (f) having been duly summoned to appear at any proceedings under this Act, fails without lawful excuse to appear, (g) having appeared as a witness at any proceedings under this Act, refuses without lawful excuse to be sworn or to produce any document or answer any question which he may be lawfully required to produce or answer, (A) contravenes the obligation to use the denomination as required by section 19 (10) of this Act, (i) gives false information in any application or makes any false statement in evidence, (7) violates breeders right, (k) violates the provisions of section 29, and () contravenes any other provisions of this Act, commits an offence. (2) Any person who commits an offence referred to under this Act is liable on conviction a (a) as a first offender, to a fine of at least N 1,000,000 or imprisonment for aterm ofat least one year ; and, pant Variety Protection Act, 2021 2021 No. 5 (b) in the event of such person having been previously convicted under ection, he is liable toa fine of at least N2,000;000 or imprisonment for a this § east two years or both, terns ofat I PART XI-—GENERAL PROVISIONS , 48.~ Notwithstanding any other provision’of this Act, the Registrar ghall collect fees from the appl icant or any other person filling a document or requesting access of administrative action under this Act, for each application, extension, filing, inquiry or other administrative process or service. 49.-(1) The contents of any license or assignme nt shall be confidential unless both parties agreed to permit access to a third party and only to the extent of the permiss ion so granted, (2) The applicant may declare some portion of the application to be confidential, where declared so, the Registrar shall determine whether the application can be processed without'the publication or other violation of that confidentiality, and give the applicant the option of altering his statement of confidentiality or withdraw the application. (3) Except as otherwise provided for in this Act, any person who discloses any information made available under this Act, except to— (a) the Minister, the Registrar or any other person for the purposes of carrying out his duties or the performance of his function under this Act, (b) a police officer for the purposes of an investigation or inquiry relating to the enforcement of the provision of this Act, or (c) any other person when required to do so by any court or under any written law, commits an offence and is liable on conviction to a fine of at least N5,000,000.00 or to imprisonment for a term of at least two years or to both. 50.—(1) Subject to the existing law on institution of action against the State, this’ Act shall be binding on the Government with regard to its applications for breeder's right and other interests acquired or given in breeder's right to the same extent and with the same effect as its applies to any other person. (2) No claim shall lic against the State, the Minister, the Registrar or any other officer for anything done in good faith in the discharge of duties under the powers conferred by this Act. any Where, according to section 12, this act applies to a plant a vi = to which it did not previously apply, varieties belonging to sively de pe or species shall be considered to satisfy the condition of ¥ defined in section 14 (1)even where the sale or disposal of to others A117 Collection of fees. Confidentiality and disclosure. Action against the State. Breeder's right in respect 0 existing varieties of recent creation eee AQIS 2021 No. 5 ‘Plant Varley). Protection Act, 2021 described in that paragraph took place i in Nigeria within four Years before the filing date or, in the case of trees or of vines, ‘within six years before the said date. (2) Within 12 months from the date of commencement of this Act, the breeder ofan existing variety of recent creation may apply to the Registrar in respect of that variety to benefit from the provisions under subsection (I). Agreement 52.—The Minister may enter into bilatera} or multilateral agreements with foreign with states and intergovernmental or non-governmental organisations in governments order to facilitate cooperation in testing. Agents. 53.—(1) When the breeder is a non-resident or. in the case of a corporatign, does not, have its registered office in Nigeria, he shall have an agent who is resident in Nigeria. (2) The Registrar may, for any gross misconduct or prescribed cause or any other reasonable cause considered by the Registrar to be sufficient, refuse to, Tecognise or to continue to recognise any person as authorised by the breeder to act in the capacity ofan agent. Registrar 54.—The Registrar shall at ake guidelines for the proper to make implementation of this Act and Regulations made under this Act. guidelines. , = " . a . ( : : * . I Regulations. 55.—(1) The Registrar shall, with the approval.of the Minister make Regulations under this Act. (2) Without prejudice to the generality of subsection (1), Regulations made shall prescribe— (a) various forms to be used under this Act; (6) the procedure to be followed in any proceedings before the Registrar (c) specific information and facilities to be provided, and of the propagating and other matcrials to be submitted with respect toa variety , (d) the test, trials, examinations and other steps to be taken with respect to a variety, by applicants or by the Registrar and the time within which the steps are to be taken ; and ,» (e) the fees to be paid in respect of- . (i) application for the grants of breéder's right, for extension of its terms, (ii) maintenance of breeder's right, (iii) request for administrative review, including objections to nullity and cancelation of breeder; t's right, appeals from administrative decisions and other ‘administrative actions, Plant Variety Protection Act, 202] 2021 No.5 0 0.5 ic technical examination v) the inspection tai the of obta di ransactioninvlvngabreder sgh ahi vi) provision of certified !) copy ofany entry init, ¢ (vii) any other fees to be paid under this Act hand 56. In this Act— "agent", i : ; deans 2 pers on revation acl an are ora holder of plan t breeder's right, behalf of the applicant or ee or ised by the applicant or holder to ac t on "a y ” . pike aca me breeder entitled to file an application for the 1 right in accordance with tl iti erovided forin this Act: ne definition of breeder "breeder" means a— ‘ (a) person who bred or discovered and developeda variety (5) person who is the employer of the pers on who bred or discovered and developed, a variety or who has commissione d the latter’s work ; or (c) asuccessor-in-title ofa person mentioned in paragraph (a) or (b); A "breeder's right" means the right of the breeder provided for i n this ct “business hours" means 9 am 3pm Mondays-Fridays, exclud ing public holidays; means the National Agricu ltural Seed Council (NAS C); “Council” eans the Director-G eneral of National “Director-General ” m Agricultural Seed Counci l ; “Eynd’” means the F und established unde r section 44 of this Ac t "Gazette” means the Federal Government G azette ; means the Minister respo nsible for agriculture; "Minister" "Ministry” means th e Ministry responsible for agriculture, “register” means t he register of plant b reeders’ rights kept under section 6 of this Act; egistrar of plant b reeders’ rights app ointed in "Registrar" means the R s Act; accordance with s ection 4 of thi "propagating material " means 4 plant or part of the plant use d to multiply the plant; deli “sell” means to offe r, advertise, keep, expose, transmit, co nvey, eliver or~ ; ; 7 (a) prepare for sale, exchange, dispose of for an y consideration ; or A119 Interpretation. 2021 No. 5 Plant Variety Protection Act, 2021 (b) transmit, convey or deliver in pursuance of the sale ; “UPOV” means Union Internationale Pour la Protection des Obtentions vegetales ; “variety” means a plant grouping within a single botanical tax of the lowest known rank, which grouping, irrespective of whether the conditions for the grant ofa breeder’s right are fully met, can be— (a) defined by the expression of the characteristics resulting from a given genotype or combination of genotypes ; (4) distinguished from any other plant grouping by the expression of at least one of the said characteristics ; and ; ; (e) considered as a unit with regard to its suitability for being propagated unchanged. 57. This Act may be cited as the Plant Variety Protection Act, 2021. Citation. I, certify, in accordance with Section 2 (1) of the Acts Authentication Act. Cap. A2, Laws of the Federation of Nigeria 2004, that this is a true copy of the Bill passed by both Houses of the National Assembly. OJO O.A., fnia, feia Clerk to the National Assembly 21st Day of April, 2021 EXPLANATORY MEMORANDUM This Act protects plant varieties, encourages investment in plant breeding and crop variety development and establishes a Plant Variety Protection Office for the promotion of increased staple crop productivity for smallholder farmers in Nigeria. SCHEDULE TO THE PLANT VARIETY PR OTECTION BILL, 20 21 () (2) 3) (4) (5) Short Title Long Title of the Summary of the Date Passed by| Date Passed by of the Bill Bill Contents of the Bill the Senate the Hou se of Representatives Plant variety | An Act for the protectio n of plant | This Bill protects plant varieties, |3rd March , 17th Decem ber, Protection varie ties, to encourage inve stment in | encourages investment in plant 2021 2020. Bill, 2021. plant b reeding and crop. vari ety development, to e stablish a Plant Variety Protection Office for the promotion of inc rease staple crop productivity for s mallholder farmers in Nigeria; and fo r related matter. breeding and crop variety development, to es tablish a Plant Variety Protectio n Office for th e promotion of incre ase staple crop productivity for sma llholder farmers in Nigeria; and for related matter. Be 1 certify that t his Bill has be en carefully c ompared by me with the decisio n reached by t he National Ass emble and foun d by me to be t rue and correc t decision of the Houses and is in accordan ce with the pr ovisions of the Acts Authenticat ion Act Cap. A2, Laws of th e Federation of Nigeria., 2 004 Ojo O. A., fni a, fcia Clerk to the Nat ional Assembly 1 ASSENT 3b 1st Day of April, 2021 MUHAMMADU BUHARI,GCFR President of t he Federal Rep ublic of Nigeri a 21st Day of M ay. 2021