Appeal Court: Regulatory Agencies Cannot Impose Fines without Recourse to Court


By Davidson Iriekpen

The Court of Appeal in Calabar yesterday struck down the powers of regulatory agencies to impose fines without recourse to the courts.

In its judgment in favour of ExxonMobil in an appeal filed by the National Oil Spill Detection & Response Agency (NOSDRA) against the decision of the Justice Ijeoma Ojukwu of the Federal High Court in Uyo, the Court of Appeal struck down section 6(3) of the NOSDRA Act empowering it to impose fines on organisations it is regulating, saying it was in clear violation of the 1999 Constitution.

Justice Ojukwu’s decision delivered on May 16, 2017 on the motion filed by Mobil against NOSDRA at the lower court was to the effect that the imposition of fines by regulatory agencies, as was done in this case by NOSDRA, without due recourse to the courts, was illegal and did not accord with the rules of natural justice and fairness.

Dissatisfied with the judgment, NOSDRA appealed the decision.

But upholding the submissions of counsel to Mobil, Prof. Fabian Ajogwu (SAN), as canvassed by Mr. Ituah Imhanze, and affirming the ruling of the lower court, the Court of Appeal in Calabar in a unanimous decision, held that by the imposition of penalty on Mobil, without due recourse to the courts, NOSDRA had “acted in a judicial capacity which they were not imbued with” under the 1999 Constitution.

In the lead judgment delivered by Justice Chioma Nwosu-Iheme, she held that by fining Mobil, NOSDRA constituted itself into a court with judicial or quasi-judicial powers, when in fact the law creating it did not donate such jurisdiction to it.

The judge noted that by the imposition of the fine, the federal agency acted in a judicial capacity which they were not imbued with under the constitution, and by so doing, it became a judge in its own cause, the complainant as well as the judge.

She submitted that penalties or fines were imposed as punishment for an offence or violation of the law, adding that the power, as well as competence to come to that finding, belongs to the courts. She said that NOSDRA was not clothed with the power to properly exercise that function in view of the law creating it.

The jurist held that since Section 6(6) of the Constitution in Section vests judicial powers on the courts, “sentence can safely be pronounced after a conviction for an offence has been made by a court of competent jurisdiction.”

Saying that it is very well known in law that a fine is a criminal sanction, She cited the judgment delivered by Justice Abba Aji of the same court in the Abdullahi vs. Kano State (2015) LPELR – 25928 (CA) where he defined fine as a payment of money ordered by a court from a person who has been found guilty of violating law and that a fine it may be specified as the punishment for an offender, usually a minor offence, but could also be specified and used as an option to imprisonment for major crimes or a complement to other punishments specified for such crimes. 

Justice Nwosu-Iheme averred: “I must here underline the fact that awarding a fine is a judicial act and it is the sole prerogative of a court of law under Section 6 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended). No other organisations or bodies can usurp that power. Any law that would consign to anybody other than the courts the power to award fine is unconstitutional.”

She held that the courts will not allow any authority to act ultra vires its powers under the Constitution, adding that Sections 1 and 6 of the 1999 Constitution empower the courts to declare any Act of the National Assembly inconsistent with the provisions of the Constitution, null and void.

The panel consequently, restated the power of the courts under the constitution to declare any Act of the National Assembly that is inconsistent with the constitution as null and void and pronounced that the offending provisions of the NOSDRA Act which provided the basis for the arbitrary imposition of fine by the federal agency constitutes a lacuna in the NOSDRA Act.

“By the provisions of Sections 1(1) and (3) of the 1999 Constitution, the Constitution is supreme and its provisions are binding on all authorities and persons in Nigeria. Therefore, if any law is inconsistent with any provisions of the constitution, the constitution shall prevail and the other law shall to the extent of that inconsistency be void,” Justice Nwosu-Iheme held.