Appeal Court Affirms Judgement Barring NBC from Imposing Fines on Broadcast Stations

Alex Enumah in Abuja

The Court of Appeal in Abuja on Thursday upheld the judgement of the Federal High Court, which barred National Broadcasting Commission (NBC) from imposing fines on broadcast stations over alleged infringement of its code.

The appellate court, in a unanimous decision, affirmed the judgement of the trial court, after dismissing the appeal of NBC for being incompetent and lacking in merit.

As a reminder, Justice James Omotosho of the Abuja division of the Federal High Court had in a judgement delivered in 2023 declared as unlawful and unconstitutional the act of imposing fines on broadcast stations by NBC.

Dissatisfied, the commission approached the appellate court to set aside the decision of the trial court, citing, among others, lack of fair hearing.

But, in its judgement delivered on Thursday, the three-member panel of the Court of Appeal disagreed with the submissions of the appellant.

Justice Oyejoju Oyebiola Oyewumi, who delivered the lead judgement, held that having failed to challenge the suit at the Federal High Court, NBC could not now challenge it at the Court of Appeal.

Oyewumi held that NBC’s appeal lacked merit and, subsequently, dismissed it.

The two other justices, who sat on the panel, Justice Abba Bello Mohammed and Justice Donatus Uwaezuoke Okorowo, agreed with her.

Recall that Omotosho had in the landmark judgement issued an order of perpetual injunction restraining NBC from imposing fines, henceforth, on broadcast stations in the country.

Besides, the court had also set aside the N500,000 fines imposed on March 1, 2019 on each of the 45 broadcast stations.

According to the judge, NBC, not being a court of law, has no power to impose sanctions as punishment on broadcast stations.

It was the position of the trial court that the NBC Code, which gave the commission the power to impose sanction, was in conflict with Section 6 of the 1999 Constitution that vested judicial power in the court of law.

Omotosho emphasised that the court would not sit idle and watch a body impose fines arbitrarily without recourse to the law.

The court said the commission did not comply with the law when it sat as a complainant and at the same time, the court and the judge on its own matter.

The judge agreed that the Nigeria Broadcasting Code, being a subsidiary legislation that empowers an administrative body, such as NBC, to enforce its provisions could not confer judicial powers on the commission to impose criminal sanctions or penalties, such as fines.

He also agreed that the commission, not being Nigerian Police, had no power to conduct criminal investigation that would lead to criminal trial and imposition of sanctions.

“This will go against the doctrine of separation of powers,” the judge held, adding, “The action of the respondent qualifies as excessiveness,” as it had ascribed to itself judicial and executive powers.

NBC had on March 1, 2019 imposed the sum of N500, 000 each on 45 broadcast stations in the country over alleged violation of its code.

However, the Incorporated Trustees of Media Rights Agenda had, in an originating motions marked: FHC/ABJ/CS/1386/2021, sued NBC as sole respondent in the suit.

In the motion dated November 9, 2021 by its lawyer, Noah Ajare, the group sought a declaration that the sanctions procedure applied by NBC in imposing N500,000 fines on each of the 45 broadcast stations on March 1, 2019 was a violation of the rules of natural justice.

The lawyer also said the fines were in violation of the right to fair hearing under Section 36 of the 1999 Constitution (as amended) and Articles 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act (Cap AQ) Laws of the Federation of Nigeria, 2004. The group had argued that this was so because the code, which created the alleged offences of which the broadcast stations were accused, was written and adopted by NBC, “and also gives powers to the said commission to receive complaints of alleged breaches, investigate and adjudicate the complaints, impose sanctions, including fines, and ultimately collect the fines, which the commission uses for its own purposes.”

They, therefore, sought an order setting aside the N500,000 fines purportedly imposed by NBC on each of the 45 broadcast stations on Friday, March 1, 2019.

They also sought “an order of perpetual Injunction restraining the respondent, its servants, agents, privies, representatives or anyone acting for or on its behalf, from imposing fines on any of the broadcast stations or any other broadcast station in Nigeria for any alleged offence committed under the Nigerian Broadcasting Code”.