The Court of Appeal in Abuja has deferred its verdict to an unspecified date in a second appeal by the National Broadcasting Commission (NBC) against another Federal High Court judgment obtained by Media Rights Agenda (MRA) prohibiting the Commission from imposing fines on radio and television stations.
A panel of three judges, made up of Justice James Gambo Abundaga, Justice Jane Esienanwan Inyang, and Justice Polycarp Terna Kwahar, sitting over the appeal, reserved judgment after hearing arguments from the lawyers representing the NBC and MRA, the parties in the appeal.
The NBC was represented by Mr. Bashir Ramoni, a partner and Head of Litigations in the law firm of SimmonsCooper Partners, leading Ms Rosecarmel Odeh and Mr. Chukwuebuka Chukwukelu, while Mr. Ezenwa Anumnu, a Senior Partner at Joint Heirs Chambers, leading Mr. P.Y. Donladi, appeared on behalf of MRA.
The NBC’s appeal is against a judgment delivered on January 17, 2024 by Justice Rita Ofili-Ajumogobia of the Federal High Court in Abuja, in a suit filed against it by MRA on September 2, 2022 following the Commission’s imposition of fines of N5 million each on a television station and three pay TV platforms on August 3, 2022, for allegedly undermining Nigeria’s national security by broadcasting documentaries about the state of banditry and security in Zamfara State.
The Court of Appeal in Abuja had on April 2, 2026 dismissed another appeal by the NBC seeking to overturn the judgment of another Federal High Court judge, Justice James Omotosho, delivered on May 10, 2023, in which the court had similarly invalidated the fines imposed by the Commission on 45 broadcast stations on March 1, 2019 for alleged breaches of the Nigeria Broadcasting Code and issued an order of perpetual injunction restraining the NBC from further imposing fines on broadcast stations.
The affected media platforms and stations in the NBC’s current appeal are Multichoice Nigeria Limited, owners of DSTV; TelCom Satellite Limited (TSTV); Trust-TV Network Limited; and NTA Startimes Limited.
In her judgment, Justice Ofili-Ajumogobia held that the NBC’s act of imposing fines of N5 million on each of the media platforms and stations for broadcasting a documentary about the state of banditry and security in Zamfara State is unlawful and unconstitutional, and 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 Section 39 of the Constitution and Article 9 of the African Charter on Human and People’s Rights.
She also ruled that:
• The procedure adopted by the NBC in imposing the fine on each of the media platforms and stations is a flagrant violation of the rules of natural justice and the right to fair hearing;
• The threat by the NBC to impose more severe sanctions on each of media platforms and stations if they failed to pay the sum of N5 million illegally imposed on them by the Commission constitutes a violation of the right to fair hearing under section 36 of the Constitution and Article 7 of the African Charter;
• The NBC, not being a court of law and not having been constituted in such 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 an offence has been committed and to impose criminal sanctions or penalties belongs to the courts;
• 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 stations for alleged offences under the Nigeria Broadcasting Code is ultra vires, null and void;
• The Nigeria Broadcasting Code made by the NBC, being a subsidiary legislation, cannot confer judicial powers or jurisdiction in criminal matters on the Commission to impose criminal sanctions or penalties such as fines; and
• The imposition of the sum of N5 million each by the NBC on the media platforms and stations as punishment or fines for the alleged breach of the Nigeria Broadcasting Code is unconstitutional, ultra vires, null and void.
The judge therefore set aside the N5 million fines purportedly imposed by the NBC on each of the media stations through its press release dated August 3, 2022; and issued 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 stations or any other broadcast station in Nigeria for any alleged offence committed under the Nigerian Broadcasting Code.
At the hearing of the appeal, Mr. Ramoni adopted the NBC’s brief of argument in which it argued that the NBC’s Code, with the civil offences and sanctions contained in it, were validly made pursuant to the National Broadcasting Commission Act as contained in Sections 2 and 21 of the Act.
He contended that Section 2(1) of the Act clearly empowers the NBC to “establish” a broadcasting code and “apply” sanctions for the purpose of regulating broadcasting stations licensed under it in the public interest, adding that Section 21 of the Act explicitly vests the NBC with the authority to impose sanctions on any station that contravenes the provisions of the code, holding them liable to the prescribed sanctions.
Mr. Ramoni submitted that pursuant to Section 4 of the 1999 Constitution, the National Assembly has delegated its power to make the Code to the NBC, which puts the NBC in the shoes of the National Assembly, thereby rendering the Code valid and lawful.
According to him, the Code made by the NBC pursuant to Section 2(1)(h) of the NBC Act is backed with the legal framework and possess the force of law and that the Federal High Court was clearly wrong in having failed to consider the enabling statute that establishes the NBC to see that the National Assembly had conferred the power on the NBC to establish the codes and apply sanctions.
The Federal High Court’s failure, he said, precipitated its erroneous conclusion that the NBC does not have the power to make the Code and the sanctions contained in it. He therefore urged the Court to set aside the judgment complained about on this ground.
Mr. Ramoni noted that it is not the Code that confers powers on the NBC, as a critical look at the facts of the case shows that it is the National Assembly that gave the powers to the NBC through the NBC Act, the principal legislation, and that the NBC derives its powers from the Act and not the Code, as suggested by the Federal High Court.
More importantly, he said, what the Code does is simply define the civil offences and penalties or sanctions to be levied against erring media stations without any criminal imputation or conviction.
Mr. Ramoni insisted that the Federal High court’s decision restraining the NBC from imposing any sanctions under the Code, therefore, undermines the regulatory authority of the Commission as conferred on it by the National Assembly, arguing that this will potentially lead to a scenario where broadcasters operate without fear of repercussion for violations of the Code.
He said the Federal High Court’s decision was not only a misinterpretation of the scope of the NBC’s powers but also jeopardizes the broader public interest that the regulatory measures seek to protect.
The lawyer submitted that the Federal High Court was wrong in holding that the NBC lacks the power to impose sanctions, as the NBC’s authority to regulate and enforce standards, including the imposition of sanctions, is firmly rooted in the Constitution, affirmed by judicial precedents, and explicitly provided for in the NBC Act.
Besides, he argued, the NBC’s ability to impose sanctions is essential for maintaining the integrity, order, and ethical standards of the broadcasting sector.
Noting that the Federal High Court had expressed the view that the NBC did not observe the rule of natural justice to justify its conclusion, Mr. Ramoni submitted that the reasoning is flawed, considering the fact that MRA is neither a media station licensed by the NBC in Nigeria nor was any of the alleged offences committed by it or the sanctions directed at it.
He stressed that the allegations were directed to distinct legal personalities, which are corporate legal entities on their own and under the regulatory and supervisory role of the NBC.
Mr. Ramoni said in administrative and constitutional law, it is well-established that the imposition of administrative fines or sanctions is a crucial mechanism for ensuring compliance with legal and regulatory requirements, adding that regulatory bodies must possess the authority to impose sanctions to effectively enforce their mandates, thereby preventing them from becoming toothless entities incapable of enforcing their regulatory provisions.
He argued that the judiciary has consistently recognized the power of regulatory bodies to impose sanctions, often categorizing them as statutory penalties.
Mr. Ramoni submitted that MRA lacked locus standi to file the suit, which led to the judgment under appeal, as the matter concerned regulatory fines imposed by the NBC on broadcasting stations, all of which are capable of instituting legal actions in their own right.
He said MRA failed to establish any justiciable interest affected by the NBC’s actions, or any injury or damage resulting to it from the actions, as required by established jurisprudence on locus standi.
Arguing that human rights are personal actions which are not transferrable to another person, especially in the circumstances of this appeal, he stressed that the NBC’s regulatory authority under the NBC Act and Code extends exclusively to entities engaged in broadcasting activities, adding that MRA, being a non-governmental organization, and not a broadcasting institution, falls outside this jurisdictional scope of the NBC.
Mr. Ramoni insisted that the actions or decisions of the NBC pertaining to its members cannot be said to have legally or logically harmed MRA.
On MRA’s claim that the NBC violated the rights to freedom of expression and fair hearing and the Federal High Court’s finding to that effect, he submitted that regulating broadcasters to prevent the dissemination of information capable of causing mass panic, political and societal upheaval, security breaches, or general social disorder constitutes an exception for the enforcement of right to freedom of expression and cannot infringe on the rights of either MRA, assuming it is a media station, or any Nigerian.
Replying, Mr. Anumnu also adopted MRA’s brief of argument in which the organization urged the Court to affirm the judgment of the Federal High Court delivered on November 23, 2023 and dismiss the appeal in its entirety.
He submitted that the Federal High Court was right when it nullified the Code made by the NBC on the ground that the Commission cannot make provisions for the imposition of sanctions or penalties such as fines against erring media outfits.
According to him, this is lawfully and factually so because the code purports to give powers to the NBC to make laws, investigate an alleged offender or breach of the laws it made, sit in judgment to determine the case and punish the alleged offender.
Mr. Anumnu argued that the Federal High Court’s decision is supported by Section 36 (1) of the 1999 Constitution, as amended, which the Court held as codified in the Latin legal maxims, audi alteram partem, meaning “hear the other side”, and nemo judex in causa sua, meaning “no one should be a judge in their own cause.”
Noting that the Mr. Ramoni had argued that it was Section 21 of the NBC Act that conferred the power to impose sanctions on the NBC through its code, he submitted that even the NBC Act cannot confer the powers on the NBC to be an accuser, investigator and judge over its own case.
Also referring to the NBC argument that it was the National Assembly that delegated its powers to the Commission to make the Code, Mr. Anumu said: “The question here is: can the National Assembly itself make law that will make the NBC an accuser, investigator and a judge over its own case? The answer here is a resounding ‘No’”.
Observing that the totality of the NBC’s argument is that it is an agent of the National Assembly in regard to the making of the code, he submitted that “It is trite that an agent cannot do what its principal has no power to do. What is outside the competence of the principal is also outside the competence of the agent of such principal.”
Mr. Anumnu recounted that the Federal High Court had decided that the power to impose fines is a duty which belong to the courts while stating clearly that the right of the NBC under the Constitution remains that of making allegation of the breach of any of the provisions of the code and taking its allegation to the police for investigation and if established, then to court for trial which if successful would lead to a finding of guilt, conviction and then punishment which may be or include a fine.
He submitted that the issue of the legal capacity of MRA to institute the suit in its name was never raised nor argued at the Federal High Court and therefore, that Ground 3 of the NBC’s Notice of Appeal did not arise from the judgment it appealed against and that similarly, Issue 3 in the issues for determination that distilled and argued in the NBC’s brief of argument is therefore incompetent.
Mr. Anumnu therefore urged the court to strike out Ground 3 of the NBC’s Notice of Appeal and Issue 3 distilled and argued in its brief of argument for lack of competence.
He conceded that rights provided and guaranteed under Sections 36(1) and 39(1) of the 1999 Constitution, like other rights guaranteed in Chapter IV of the Constitution, are not absolute and have exceptions, but submitted that the NBC’s broadcasting code does not fall within the exceptions.
Mr. Anumnu urged the court to uphold the Federal High Court’s decision that the code is a violation of the rights conferred by sections 36(1) and 39(1) of the Constitution, as it created offences in which the NBC arrogated to itself the powers of investigation, prosecution, trial, conviction, and punishment for the offences it created.
