The Court of Appeal in Abuja has deferred its judgment to an unspecified date in an appeal by the National Broadcasting Commission (NBC) seeking to overturn a Federal High Court’s “default” judgment obtained by Media Rights Agenda (MRA) on May 10, 2023, in which the court ruled that the NBC lacked the legal authority to impose fines on radio and televisions stations and issued an order of perpetual injunction restraining the Commission from further imposing such fines.
The Appeal Court deferred its judgment in the appeal after hearing the submissions by lawyers to the parties, who also formally adopted their respective briefs of argument, namely Mr Victor Ogude (SAN), leading Mr Kehinde Wilkey, on behalf of the NBC, and Mr Ezenwa Anumnu, representing MRA, which is the respondent in the appeal.
In the appeal, the NBC is asking the Court of Appeal to set aside the ruling delivered by Justice James Omotosho on November 23, 2023, in which he dismissed the Commission’s application to set aside his May 10, 2023, default judgment, which he entered in favour of MRA after the NBC failed to appear in the proceedings and defend the suit. In addition to asking the Appeal Court to set aside the ruling, the NBC is also praying the appellate court to overturn Justice Omotosho’s judgment, which he refused to set aside.
Recall that the judgment arose from a suit instituted by MRA, challenging the powers of the NBC to fine broadcasters, following a March 1, 2019, announcement by the Commission that it had imposed a fine of N500,000 each on 45 broadcast stations for alleged contraventions of the Nigeria Broadcasting Code.
In his May 10, 2023, judgment, Justice Omotosho ruled that fines are sanctions imposed on a person who has been found guilty of a criminal offence and that under the law in Nigeria, only courts of law are empowered to impose sanctions for criminal offences. In setting aside the fines of N500,000 each imposed on the stations, he held that the NBC “is neither a Court nor a judicial tribunal to make pronouncements on the guilt of broadcast stations notwithstanding what the NBC Code says,” adding that the Commission’s action violated the Constitution.
Consequently, the judge declared all actions taken by the NBC regarding the matter null and void and accordingly made the following declarations and orders:
• That the sanctions procedure applied by the NBC in imposing N500,000.00 fines on each of the 45 broadcast stations on Friday, March 1, 2019, is a violation of the rules of natural justice and 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 A9) Laws of the Federation of Nigeria, 2004 in that the Nigeria Broadcasting Code, which created the alleged offences of which the broadcast stations were accused was written and adopted by the NBC, and also gives powers to the 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.
• That the NBC, not being a court of law, 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 an offence has been committed and to impose criminal sanctions or penalties belongs to the courts.
• That the Nigeria Broadcasting Code, being a subsidiary legislation that empowers an administrative body such as the NBC to enforce its provisions, cannot confer judicial powers on the Commission to impose criminal sanctions or penalties such as fines.
• 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 the imposition of criminal sanctions and accordingly, that the investigation purportedly conducted by the Commission leading to the sanctioning of the 45 broadcast stations for alleged offences under the Nigeria Broadcasting Code is ultra vires, null, and void.
• That the N500,000.00 fines purportedly imposed by the NBC on each of the 45 broadcast stations on Friday, March 1, 2019, as punishment or sanctions for the alleged commission of various offences by each of the broadcast stations is unconstitutional, ultra vires, null, and void.
• An order setting aside the N500,000.00 fines purportedly imposed by the NBC on each of the 45 broadcast stations on Friday, March 1, 2019.
• An order of perpetual injunction restraining the NBC, 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.
At the hearing of the appeal on February 4, 2026, Mr Ogude adopted the brief of argument filed on behalf of the NBC in support of the appeal, in which it argued that the Federal High Court had statutory power to set aside its own judgment under Order 14 Rule 10 of the Federal High Court (Civil Procedure) Rules 2019
He noted that the grounds canvassed by the NBC as the basis for its application to set aside the default judgment of the Federal High Court were non-service of the originating processes and hearing notices on the Commission, lack of jurisdiction, Res Judicata, and fraud/misrepresentation of and abuse of court process.
Mr Ogude said the NBC’s contention in challenging the Federal High Court’s jurisdiction was founded on the fact that the process of the court was being abused by the re-litigation of issues finally and conclusively determined by a court of competent jurisdiction on the same subject matter by the same parties.
To support this claim, he referred to a suit filed against the NBC by seven organisations, namely the Socio-Economic Rights and Accountability Project (SERAP), the Centre for Journalism Innovation and Development (CJID), MRA, HEDA Resource Centre, the International Centre for Investigating Reporting (ICIR), the African Centre for Media and Information Literacy (AFRICMIL), and Premium Times, in which they challenged the imposition of fines of N3 million each on Channels Television, Arise Television, and the Africa Independent Television (AIT) over their coverage of the ENDSARs protests, as well as another fine of N5 million on Nigeria Info 99.3. Justice Nkeonye Maha delivered judgment in the suit on April 26, 2022, dismissing the suit.
Mr Ogude also referred to another suit filed by MRA in 2021 against the NBC in which the organisation challenged the constitutionality and legality of the Commission’s action on May 27, 2020, in imposing fines of N250,000 on Breeze FM radio, based in Lafia, Nasarawa State; N500,000 on Adaba FM radio in Akure, Ondo State; and N250,000 on Albarka FM radio in Ilorin, Kwara State. Justice Obiora Atuegwu Egwuatu delivered judgment on March 2, 2023, dismissing the suit.
He contended that both suits involved the same parties and subject matter as they both sought an interpretation of the regulatory powers of the NBC vis-à-vis the constitution and the propriety of the Commission exercising quasi-judicial powers to impose fines on broadcasters who allegedly breached the broadcasting code.
Saying that MRA was aware of the two previous suits it filed and lost before the Federal High Court and yet decided to file another suit at the same judicial division rather than appeal against the previous decisions it was aggrieved with, Mr Ogude submitted that this was an abuse of court process.
He submitted that to the extent that the suits in which MRA was seeking a declaration on the regulatory powers of the NBC to impose sanctions on defaulting broadcasters were dismissed, Justice Omotosho ought not to have affirmed his earlier judgment delivered in favour of MRA.
Mr Ogude, therefore, urged the court to allow the NBC’s appeal and set aside the May 10, 2023, judgment of Justice Omotosho.
Responding on behalf of MRA, Mr Anumnu also adopted the brief of argument he filed on behalf of the organisation.
Saying that the grounds of the NBC’s application were fully considered by Justice Omotosho before reaching his decision, he argued that the judge was right when he refused to set aside the judgment, as the grounds did not support the grant of the relief sought by the commission.
Mr Anumnu noted that in the brief of argument filed on behalf of the NBC, the Commission abandoned the first ground of its application to set aside the judgment of the Federal High Court, which was the claim that it was not served with originating processes and hearing notices in the suit. He added that since NBC has now conceded that it was served with all originating processes as contained in the judgment, its ground on that failed.
He accused the NBC of misrepresenting the position of the law in claiming that a party can challenge the jurisdiction of the court at any stage of the proceedings, “even after judgment”, saying “The correct position of the law is that the issue jurisdiction can be raised at any stage of the proceedings, and this means proceedings before judgment by the trial court. If a party fails to raise the issue of jurisdiction during proceedings at the trial court and the trial court concludes its proceedings by delivery of its judgment, the issue of jurisdiction cannot be raised in that trial court because proceeding therein ended with the judgment of that court.”
Mr Anumnu submitted further that “it’s now notorious that if you fail to challenge the jurisdiction of a court during the proceedings and the court delivered its judgment in the matter, your right to raise the issue again will not be in the same court but in appellate courts. This is lawfully and procedurally so because the operative word is ‘at any stage of the proceedings’. It is trite and elementary that after judgment, there is no proceedings.”
He argued that since the court had delivered its judgment in the matter without the NBC raising the issue of jurisdiction, the Federal High Court was, therefore, not the competent avenue for the NBC to raise the issue of jurisdiction which it ought to have raised during the proceedings.
On the NBC’s accusation of fraud, misrepresentation and abuse of court process levelled against MRA, Mr Anumnu noted that Justice Omotosho found as a fact that the NBC was served with the originating processes and hearing notice leading to the trial in the suit and concluded that the Commission willfully refused to appear in the proceedings.
He also drew the Appeal Court’s attention to the finding of Justice Omotosho that the NBC had the opportunity to bring its allegations at the trial and that failing to do so rendered the “belated contentions as a mere afterthought.”
According to Mr Anumnu, Justice Omotosho also held that the act of the NBC in ignoring the proceedings after being duly served with the originating court processes and hearing notices amounted to indolence on the part of the Commission as a result of which he held that “equity does not aid the indolent” and therefore resolved the issues of fraud/misrepresentation /abuse of court process in favour of MRA.
He argued that the first condition which an applicant must satisfy in an application to set aside a default judgment is to give reasons for its failure to appear at the hearing or trial of the case in which judgment was given in his absence, stressing that “This is so vital that unless the applicant to an application to set aside a default judgment given in his absence satisfies the court with sufficient reason for his absence at the trial, the court will not exercise its discretion to hear his application.”
Mr Anumnu told the Appeal Court that in the instant case, the NBC lied that its reason for not being at the trial of the suit was because it was not served with the originating processes and hearing notices in the suit, adding: “The court found the alleged ground of non-service of the originating processes and hearing notices on the appellant was not true.”
Rather, he said, the court found that the NBC was duly served with the originating processes and hearing notices in the suit and that it was the Commission that “willfully decided to ignore the court and its proceedings in the suit.”
Mr Anumnu submitted that the NBC’s action of ignoring the court and its proceedings in the suit does not just amount to indolence on the part of the Commission, but is “also an act of gross contempt of the trial court.”
He argued that Justice Omotosho was therefore right to hold that the NBC’s indolence was fatal to its case while refusing to exercise the court’s equitable discretion” in favour of the Commission, adding that “This is even more so when the appellant failed without limit to give reason for its failure to appear at the hearing or trial of the cause in which judgment was given against it.”
Mr Anumnu, therefore, urged the Appeal Court to refuse and dismiss the appeal in its entirety and affirm the ruling of the Federal High Court delivered on November 23, 2023.
Following the conclusion of arguments by the lawyers to the parties, Justice Abba Bello Mohammed, who presided at the hearing, thereafter reserved judgment.
