Daily Trust (Abuja)

Nigeria: NPAN Vs APCON - Goal Post Shifts to Appellate Court

Lagos — The struggle of the Newspaper Proprietors' Association of Nigeria (NPAN) to purge the Nigerian Advertising Council of Nigeria(APCON) of its powers to regulate advertisement in media houses in the country suffered a setback last Thursday.

This is because of Justice Musa Kurya of a Lagos Federal High Court's verdict that he had no jurisdiction to entertain the suit. Newspaper owners are challenging the constitutionality of certain provisions of the Nigerian Code of Advertising Practice and Sales Promotion, as they affect newspaper houses in the country. The battle is, however, not over as the newspaper owners are now set to approach the appeal court for the next stage of the action.

Justice Musa said his court declined jurisdiction to hear the matter on the premise that the plaintiff failed to bring the action properly.

He said, "The only way the plaintiff would have been properly vested in law with the standing to sue the defendants, was for them to have commenced the action by way of representative action on the part of NPAN, and after obtaining leave of court."

NPAN had sued the Advertising Practitioners' Council of Nigeria (APCON), along with the Inspector General of Police, before the court and contended that the powers of APCON as captured in Articles 21 and 137(a) of the Nigerian Code of Advertising Practice and Sales Promotion seeking to vet the advertisement of media houses violate superior provisions of Sections 34 and 4(1) of the constitution.

The plaintiff also said the Articles violate the freedom of expression, comprising "freedom to hold opinion, and to receive and impart ideas and information without interference" as guaranteed under Section 39 of the Constitution.

Specifically, newspaper proprietors wanted the court to determine :

* Whether having regard to the provision of Section 1(d) of the Advertising Practitioners (Registration, etc) Act CAP A7, LFN 204, Articles 21 and 137 (a) of the Nigerian Code of Advertising Practice and Sales Promotion are not ultra vires by the Advertising Practitioners' Council of Nigeria (APCON) in so far as the provisions of the Articles affect media houses who do not engage in the practice of advertising.

* Whether the provisions of Articles 21 and and 137(a) of the Nigerian Code of Advertising Practice and Sales Promotion are not inconsistent with the provisions of Section 39 of the Constitution of the Federal Republic of Nigeria 1999 which guarantees the freedom of expression including the freedom to hold opinion, and to receive and impart ideas and information without interference;

* Whether having regard to the provision of Section 4 of the Constitution of the Federal of Nigeria 1999, it is competent for the Advertising Practitioners' Council of Nigeria to create offenses and impose penalties as done in the Nigerian Code of Advertising Practice and Sales Promotion.

The group, therefore, sought three declarations to which: - that provisions of Articles 21 and 137(a) of the Code is ultra vires as it affects members of the Plaintiff's Association; - that Article 21 that requires all advertisements except public notices, goodwill messages, obituaries, - and vacancies to be vetted by the Advertising Standard Panel before publication is inconsistent with the provisions of Section 39 of the Constitution.

It, therefore, sought three declarations among which are that the manner APCON created criminal offenses and impose penalties as done in Articles 137 (a) (b) and (c) of the Code and the Article 137 is unconstitutional, null and void; a perpetual injunction restraining APCON (the first defendant) from continuing to treat Articles 21 and 137 as valid Articles of the Code and a perpetual injunction restraining the defendants, whether by themselves, servants or agents and or representatives from implementing or otherwise applying provisions of Articles 21 and 137 (a), (b) and (c) of the Code against any of the members of the Plaintiff's Association or their servants.

The suit also witnessed exchange of legal fireworks between counsels to the parties in it. Inspector General of Police, Mohammed Abubakar, who is the second defendant in the suit didn't enter any legal appearance within 30 days of being served the papers of the suit

Canvassing points on behalf of his client, NPAN's counsel, Tayo Oyetibo(SAN), had sufficient interest to institute the suit on the strength that APCON's regulation adversely affects owners of media houses in Nigeria.

He explained suit was filed to challenge the control of newspaper houses by APCON and not to fight for the people in the employ of newspaper houses who had become objects of harassment and intimidation by the council and police. He prayed the court to hold that the association had locus standi in instituting the case, and dismiss the objection of APCON.

But in his preliminary objection, counsel to APCON, Chief Anthony Idigbe, urged the court to dismiss the suit on the premise that the newspaper owners lacked the competence to institute the suit. He contended that NPAN lacks locus standi to institute the suit because the Code being challenged by it was enacted to regulate the activities of advertising practitioners who are employees of the media houses.

He said the relationship between APCON and advertising practitioners is like the one which exists between the Chartered Institute of Bankers of Nigeria and bankers. According to him, advertising practitioners are only using the media houses as the platform for their work just like bankers, who are being regulated by CIBN use various banks which employ them as their own platforms. But the newspaper owners said the battle is not over yet and instantly gave an intent to proceed to the Appeal Court for the continuation of struggle to free some media activities in Nigeria from the control of APCON.

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