A Federal High Court in Abuja has fixed ruling for November 23, 2023 in a motion by the National Broadcasting Commission (NBC) asking it to set aside its judgment delivered on May 10, 2023 in which the court issued an order of perpetual injunction restraining the Commission from further imposing fines on broadcasting stations in Nigeria.
The judgment arose from a suit instituted by Abuja-based lawyer, Mr. Noah Ajare, on behalf of Media Rights Agenda (MRA), challenging the powers of the NBC to fine broadcasters, following a March 1, 2019 announcement by its then Director General, Mallam Ishaq Kawu, that the Commission had imposed a fine of N500,000 each on 45 broadcast stations for alleged contraventions of the Nigeria Broadcasting Code.
In his judgment delivered on May 10, 2023, Justice James 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, the judge noted 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” and held that the Commission’s action violated the Constitution.
However, the NBC filed a motion through its lawyer, Mr. Babatunde Ogala (SAN), on May 24, 2023, asking the court to set aside the judgment on the ground that the court lacked jurisdiction to deliver the judgement and that it arrived at the decision in ignorance of relevant facts.
In its motion, the NBC claimed that contrary to the finding of the judge in his judgment that the NBC “was served with the Originating Summons on 24th February, 2022 and served with several hearing notices but failed to file any process”, it was never served with the originating summons in the suit, which led to the judgment. It also alleged that MRA “has two un-appealed, subsisting and binding decisions of the Federal High Court on the same issues and parties” and that rather than appeal those decisions, the organization brought a fresh suit, setting the Court on a collision course with decisions of the other Federal High Court in the same complex.
In response to the NBC’s motion, MRA filed a counter-affidavit on July 19, 2023 in which it deposed that contrary to NBC’s claim of having no knowledge of the suit, the originating processes filed by MRA, as well as several hearing notices, were served on NBC before the court delivered its judgment.
MRA also argued that the subject matter of the two suits referred by the Commission, namely suits number FHC/ABJ/CS/1436/2020 and FHC/ABJ/CS/1386/2021, was completely different from the current suit.
It argued that the NBC could not legitimately complain about the judgment of the court on the grounds it is relying on when it failed, refused, and neglected to appear before the court to preent its case despite being given ample time to defend itself and challenge MRA’s suit.
MRA urged the court to dismiss NBC’s application as it is an attempt by NBC to have another chance to defend itself after failing to do so initially.
In response to MRA’s counter-affidavit, the NBC filed a further affidavit in which it insisted that it was never served with any process by the court’s bailiff despite the affidavit of service deposed to by the bailiff and that the subject matter in the suit was similar to the two other suits between MRA and the NBC previously decided by other courts.
When the motion came up for hearing on October 5, 2023, Ms. Ogechi Ohamara, representing the NBC, argued the Commission’s application and adopted its further affidavit, as well as the reply on the point of law to MRA’s counter-affidavit. She urged the court to set aside its judgment of May 10, 2023.
Responding on behalf of MRA, Mr. Ajare similarly adopted MRA’s counter-affidavit and urged the court to dismiss the NBC’s motion as it is frivolous and amounts to abuse of the court’s process.
He also asked the court to disregard the NBC’s further affidavit as well as the Commission’s reply on points of law on the ground that both documents were filed after the time prescribed by the court’s rules had lapsed without the NBC applying to the court to allow it file the documents out of time or to deem the documents properly filed.
After hearing the arguments of both counsel, Justice Omotosho adjourned the matter to November 23, 2023 for his ruling.