Case Summary and Outcome

The Federal High Court sitting in Abuja, Nigeria held that the National Broadcasting Commission (NBC) had violated the right to a fair hearing in imposing fines on broadcast stations. A media rights non-governmental organization applied to court to have the fines set aside on the grounds that the NBC had acted ultra vires (beyond its powers) and had failed to provide the stations with an opportunity to be heard before the fines were imposed. The NBC did not respond to the suit. The Court found that as the NBC is neither a court nor a tribunal it is not capable of imposing fines on erring entities, and that its actions in imposing fines on the stations without affording them fair hearing is a nullity. The Court stated that it would “not sit idly and watch as a government agency arbitrarily imposes fines on a broadcast station which is capable of curtailing the freedom of the press and the media. The media must be free at all times and imposing fines on them without fair hearing will be met with stiff resistance by this court”. [p. 18]

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Facts

On March 1, 2019, the Nigerian National Broadcasting Commission, through its Director General Mallam Ishaq Kawu, announced the imposition of fine of N500,000 on each of 45 broadcast stations for alleged contravention of provisions of the Nigerian Broadcasting Code (NBC). Kawu stated that the sanction was determined after the NBC’s Second Quarter Monitoring of broadcast stations’ profile from April to June 2019. Media Rights Agenda (MRA), an NGO seeking to promote and protect the right to freedom of expression, media freedom, access to information, and digital rights and freedoms, believed that the NBC had contravened the principle of fair hearing when it did not invite the broadcast stations to defend themselves before the imposition of the fine and that the NBC’s action “breaches right to freedom of expression and undermines press freedom in the country”. [p.4].

The MRA filed an application in the Federal High Court sitting in Abuja seeking a setting aside of the NBC’s decision.

The Court noted that the NBC had been served with the Originating Summons on February 24, 2022  in the case and was also served with several hearing notices but failed to file any responses.

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Decision Overview

The presiding Judge, J.K. Omotosho delivered the judgment of the court. The sole issue for determination was whether the MRA is entitled to its relief sought.

In their Originating Summons, dated November 9, 2021 but filed on November 10 2021, the MRA argued that according to the provision of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a party cannot be a judge in its own cause and submitted that the NBC violated this principle as it created the alleged offence through the NBC Code, investigated it and sanctioned the 45 broadcast stations accordingly. In support of this argument, the MRA cited and relied on the decision of court in MFA v. Inongha (2014) 4 NWLR (Pt.1397) 343 at 375 and argued that “any proceeding that does not factor in natural justice pillars is a nullity” [p. 6].  The MRA argued that the Nigerian Broadcasting Code is subservient to the National Broadcasting Commission Act and that the National Broadcasting Commission Act does not give powers to the NBC to prescribe and impose sanctions on broadcast stations and so their imposition of fines is ultra vires. The MRA relied on the decision in NOSDRA v. ExxonMobil (2018) LPELR-44210 (CA) that it is only a court that can impose sanctions and not an administrative body like the NBC through subsidiary legislation.

Section 36 (i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

The Court noted that the MRA had instituted the case as a fundamental rights’ case and that fundamental rights are special kind of rights which are guaranteed for every person by reason of being a human being. It stated that “fundamental human rights in themselves are liberties guaranteed citizens of a free and democratic society such as Nigeria. As a defining feature of sovereign states, its provision and enforcement is sacrosanct to the wellbeing of citizens and inhabitants of a society as it strikes at the very core of human existence.” [p. 9] The Court cited the case of Mbaeyi v. EFCC (2022) LPELR-57515 (CA) which had held that: “Fundamental human rights are rights which stand above every other law of the land. The factum of their enshrinement in the Constitution of the Federal Republic of Nigeria, 1999 (“CFRN”), which is the supreme law of the land confers on them, a preeminent status over and above other human rights. … Although the origin of fundamental rights is said to date back to Magna Carta of 19^th June 1215, these rights are in fact antecedent to the political society itself: ‘they are inherent in man because they are part of man’ … In the words of Lord Cooke of Thorndon, they are ‘rights that are inherent and fundamental to democratic civilized society (and) conventions, constitutions, bills of rights and the like merely respond by recognizing rather than creating them’ …Thus fundamental human rights constitute ‘the basic minimum standard for civilized humanity’ enshrined in the constitution so that they could be inalienable and immutable to the extent of non-immutability of the constitution itself”. [p. 9-10]

The Court noted that the guarantee of fundamental rights which include right to a fair hearing and right to freedom of thoughts and expression is a vital symbol of a free and democratic society, and that these rights are captured in Sections 33 to 46 of the Nigeria’s Constitution and the African Charter on Human and People’s Rights. The Court accepted that these rights are not absolute and do have a number of constitutionally recognized exceptions.

In examining the nature of the principle of a fair hearing, the Court said that this requires that both parties to a dispute must be heard which is expressed in a Latin Maxim “Audi alterem partem” and that a party cannot be a judge in its own cause as expressed in Latin as “Nemo judex in causa sua”. The Court also quoted the case of INEC v. Musa (2003) LPELR-24927 (SC) that: “Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the court. Where parties are given opportunities to be heard, they cannot complain of breach of fair hearing principles.” [p. 12]

The Court found that the MRA had demonstrated that the NBC had violated the right to fair hearing of the stations and that where an administrative body is to make a decision concerning a person, such person must be given opportunity to make representation before such a decision is made.

In addressing the question of whether the NBC was empowered to impose criminal sanctions, the Court referred to the case of Abdullahi v. State (2015) LPELR-25928 (CA) which held that: “A fine is strictly restricted to crimes. By definition therefore, a fine is a payment of money ordered by a court from a person who has been found guilty of violating a law”. [p. 14] It therefore held that it is an abnormality in law for an administrative body like the NBC to impose sanctions on the broadcast stations when it is not vested with judicial powers to do so. With reference to the case of NOSDRA v. ExxonMobil (2018) LPELR-44210 (CA), the Court held that the NBC was neither a court nor a judicial tribunal and could not pronounce on the guilt of the broadcast stations, notwithstanding the provisions of the NBC Code.

The Court emphasized that press freedom is guaranteed under Section 22 of the Constitution, which is in line with the protection of freedom of expression under Section 29. It stated that “This court will not sit idly and watch as a government agency arbitrarily imposes fine on a broadcast station which is capable of curtailing the freedom of the press and media. The media must be free at all times and imposing fines on them without fair hearing will be met with stiff resistance by the court”. [p.17-18] The Court clarified that it is not its position that the broadcast stations must not be regulated but that regulation must be within the confines of the law.

Accordingly, the Court found merit in the MRA’s case and set aside the sanctions imposed on the 45 broadcast stations, and declared that the NBC lacked the power to impose such fine. The Court also imposed a permanent injunction against the NBC imposing such fines or any other fines on those broadcast stations or any other broadcast stations in Nigeria.

NOTE:

After the judgment was delivered, the NBC filed an application seeking the setting aside of the judgment. It submitted that it had not been served with the Originating Summons and hearing notices in the case, and that there are other judgments of the court where challenges to the the powers of the NBC to impose fines in that manner had been dismissed. The NBC argued that if the court had been made aware of those judgments its decision would have been different.

At a hearing on October 5, 2023, Justice J.K Omotosho heard counsel to both parties.

The NBC argued that the default judgment of May 10, 2023 delivered by Justice K.S Omotosho was delivered per incuriam (through lack of regard to law or facts) and without jurisdiction.

The MRA opposed the NBC’s argument and maintained that the NBC had been served the Originating Motion and other hearing notices. It submitted that other judgments cited by the NBC focused on different issues, and argued that the NBC’s application lacked merit and urged the court to dismiss it.

The Court adjourned to November 23, 2023 for ruling in the application for setting aside its judgment of May 10, 2023.

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