Federal High Court, Lagos
By Akinwale Akintunde
Justice Musa Kurya of the Federal High Court, sitting in Lagos Wednesday fixed Friday for ruling on which of the applications filed by the Registered Trustees of the Newspaper Proprietors’ Association of Nigeria (NPAN) and Advertising Practitioners’ Council of Nigeria (APCON) should be given priority.
The judge gave the date after listening to the arguments of counsel to the parties involved in the suit.
NPAN had dragged APCON to court over the harassment and intimidation of its members and staff.
When the matter came up for hearing Wednesday, counsel to the plaintiff (NPAN), Tayo Oyetibo (SAN), asked the court to hear both the preliminary objection of APCON and the substantive suit simultaneously.
Oyetibo stated that the matter should not have come up since the second defendant (the IG) was yet to enter appearance.
He argued that since the 30 days required for the second defendant to make an appearance was to elapse Wednesday, the motion on preliminary objection filed by the first defendant (APCON) challenging the plaintiff’s right to sue and the court’s jurisdiction to hear the suit should not be heard yet.
“On the substantive suit, the 2nd defendant has up to today (Wednesday) for his case. He was served on October 22, 2012 so they have up to the end of business today,” he said.
He argued that the Supreme Court had resolved that on matters that ensue through originating summons, the preliminary objection and the substantive suit be heard together.
According to the Senior Advocate, this is to save the time of the court and cost to the parties.
APCON had filed a motion on notice dated November 2, 2012, urging the court to dismiss the suit on the grounds that the plaintiff has no legal standing to sue.
It also submitted that the suit is incompetent as presently constituted and that the court lacks jurisdiction to entertain it, having regard to the fact that the action was not properly initiated.
Counsel to APCON, Olapeju Banwo, wanted the preliminary objection to be heard immediately by the judge as she argued that the court had the discretion to do so.
She said taking the preliminary objection and the substantive suit together could prejudice the case.
NPAN had dragged APCON to court over harassment and intimidation of its members and staff and to also challenge some provisions of the Nigerian Code of Advertising Practice and Sales Promotion.
In the suit filed on its behalf by Tayo Oyetibo’s Chambers, the association wants the court to determine whether Articles 21 and 137 of the Nigerian Code of Advertising Practice and Sales Promotion are not beyond APCON to the extent that they affect media houses who do not engage in the practice of advertising.
Joined in the suit as co-defendant is the Inspector General of Police.
In the suit, NPAN said the second defendant acting on the orders of APCON, has been subjecting its members to interrogation and intimidation with threats of further arrests and prosecution for allegedly violating certain provisions of the first defendant’s code.
The association is therefore seeking a declaration by the court that APCON does not have the power to regulate the activities of members of the plaintiff or any of its employees who are not registered members of APCON.
It also believes that the provisions of Articles 21 and 137 of the Nigerian Code of Advertising Practice and Sales Promotion which the first defendant relies on are inconsistent with Section 39 of the 1999 Constitution and therefore unconstitutional, null and void.
Pursuant to the duties imposed on APCON by the Act establishing it, the council enacted the Nigerian Code of Advertising Practice and Sales Promotion.
Article 21 of the code provides that “All advertisements except public notices, goodwill messages, obituaries and vacancies shall be presented for vetting and approval by the Advertising Standards Panel (ASP) before exposure. It is mandatory for all media houses to demand the ASP’s Certificate of Approval, which are issued for all approved advertisements.”
On the other hand, Article 137 (a) of the code provides that “A media house which publishes or exposes an advertisement without the ASP’s Certificate of Approval shall be liable to a minimum penalty of N200,000. Sub-section (b) provides that an agency which creates and/or places for publication or exposes an advertisement without ASP’s Certificate of Approval shall be liable to a minimum of N200,000 while (c) says that an advertising practitioner who publishes, exposes or knowingly aids the publication or exposure of an advertisement without ASP’s Certificate of Approval shall be subject to the APCON disciplinary procedure notwithstanding the payment by its client of the appropriate penalty.”
NPAN is also seeking the court’s declaration that Articles 21 and 137 of the code are ultra vires in so far as the provisions of the articles affect members of the association who do not engage in the practice of advertising.
The association wants a declaration that APCON has no power under the Advertising Practitioners Act Cap A7 Laws of the Federation 2004 to create criminal offences and impose penalties as done in Article 137 of the Nigerian Code of Advertising, contending that Article 137 (a) (b) and (c) is unconstitutional, null and void.
It is also seeking a perpetual injunction restraining the first defendant from treating or continuing to treat Article 21 and 137 (a) of the code as valid articles in the code and an injunction further restraining the defendants, whether by their servants or agents, from implementing, or applying the provisions of the Article 21 and 137 of the code against any members of the plaintiff’s association or their servants, officers or representatives.