From Lateef Taiwo

A Federal High Court in Abuja on Wednesday declared null and void the provisions of the Nigeria Broadcasting Code authorizing the National Broadcasting Commission (NBC) to impose fines on broadcast stations for alleged breaches of the Code.

The presiding judge, Justice Rita Ofili-Ajumogobia while delivering judgment in a suit brought before the court against the NBC following the Commission imposing a fine of N5 million each on a television station and three pay TV platforms in 2022 for allegedly undermining Nigeria’s national security by broadcasting documentaries on banditry in Nigeria.

She agreed with all MRA’s arguments and granted all the declarations and injunction sought by the organization. She however refused to grant the organization’s claim for N700,000 as costs it incurred in litigating the action; another claim for N2 million as general damages for NBC’s infringement on its rights as well as a request for N1 million as punitive damages for the Commission’s “outrageous conduct in abusing its powers and arbitrarily imposing fines on broadcasting stations”.

Justice Ofili-Ajumogobia however commended MRA for its legal action against NBC and issued an order of perpetual injunction restraining the Commission or anyone acting on its behalf from further imposing any fine on any media platform or broadcast station in Nigeria for any alleged offence committed under the Nigeria Broadcasting Code.

The court held that the NBC not being a court of law, acted above its powers by imposing such fines.

The court ruled that administrative and regulatory bodies could not exercise judicial powers.

The suit which was filed by the institute of Media Rights Agenda (MRA) MRA sought a declaration from the court stating that the procedure adopted by the NBC in imposing the fines is a flagrant violation of the rules of natural justice and the right to fair hearing under Section 36 of the Constitution and Article 7 of the African Charter as the Commission is the drafter of the Code, which provides for the alleged offences for which the media platforms and the station were punished, and which empowers the NBC to receive complaints, investigate and adjudicate on the complaints, impose fines and collect fines.

The suit which was filed by an Abuja-based human rights lawyer, Mr. Uche Amulu, on behalf of MRA prayed the court to hold, among other things, NBC’s action where it imposed a fine on each of the media platforms and the station for broadcasting a documentary about the state of banditry and insecurity in Zamfara State which the commission had claimed to be unlawful and unconstitutional.

MRA held that this has a chilling effect on the freedom of media to impact information and ideas.

MRA held that it would deter the platforms and station from reporting the true state of affairs regarding the security situation in Nigeria, and therefore constitutes a violation of the rights of MRA, its members, and other citizens of Nigeria to freedom of expression, particularly their rights to receive ideas and information without interference, as guaranteed by the Constitution and the African Charter on Human and People’s Rights.

MRA contended that the NBC, not being a court of law and not having been constituted in a manner as to secure its independence and impartiality, has no power or competence to impose fines on broadcast stations as punishment or penalties for the commission of an offence as the competence to establish that as an offence has been committed and to impose criminal sanctions or penalties belongs to the courts.

Also, MRA held that the NBC, not being the Nigerian Police or a law enforcement agency, has no power to conduct a criminal investigation or an investigation that could lead to criminal charges against the affected media platforms and stations or the imposition of criminal penalties and accordingly, that the investigation purportedly conducted by the Commission, leading to the fines imposed on the media platforms and station for alleged offences under the Nigeria Broadcasting Code is ultra vires, null and void.

MRA also urged the Court to declare that the Nigeria Broadcasting Code issued by the NBC, being a subsidiary legislation that empowers it as a regulatory and administrative body to enforce the provisions of the Code, cannot confer judicial powers or jurisdiction in criminal matters on the Commission to impose criminal sanctions or penalties such as fines, particularly as the Code was made by the NBC itself.

It urged the Court to declare the fines unconstitutional, ultra vires, null and void, set them aside and issue an order of perpetual injunction restraining the NBC, its servants, agents, privies, representatives or anyone acting for or on its behalf, from further imposing any fine on any of the media platforms or station, or any other broadcast station in Nigeria for any alleged offence committed under the Nigeria Broadcasting Code.

The court set aside the fines imposed by the NBC on August 3, 2022 on Multichoice Nigeria Limited, owners of DSTV; TelCom Satellite Limited (TSTV); Trust-TV Network Limited; and NTA Startimes Limited for broadcasting a documentary about the state of banditry and security in Zamfara State, saying the regulator’s action was wrong and unjustifiable in a democratic society.