Court: NBC Lacks Power to Regulate Advertising in Nigeria

Wale Igbintade

The Federal High Court sitting in Lagos has held that the National Broadcasting Commission (NBC) acted beyond its powers by seeking to regulate the practice of advertising in Nigeria.

Justice Ambrose Lewis-Allagoa held that the NBC lacks the power to prohibit exclusivity on privately acquired intellectual property right in programme contents of a right holder.

He further set aside the proposed amendment to the 6th Edition of the NBC Code for being ultra vires, incompetent null and void, and perpetually restrained the Commission from implementing it.

The judge made the orders in suit FHC/L/CS/1152.2020 filed by Mr. Femi Davies as sole plaintiff and the NBC as defendant.

Davies argued, among others, that if allowed, the amendment would greatly violate his right to a fair hearing.

He prayed the court to uphold his six prayers as set out in his originating summons.

The plaintiff’s reliefs include a declaration that the Commission lacks the requisite vires to prohibit exclusivity on privately acquired intellectual property right in program content of a right-holder viz-a-viz the salient provisions of the constitution and the Copyright Act.

“A declaration that the commission acted ultra-vires in so far as it sought to regulate the practice of advertising in Nigeria contrary to the provisions of the extant Advertising Practitioners (Registration, etc) Act, 2004.

“A declaration that the commission acted ultra vires when it sought to retroactively compel right holders of programme content to compulsorily share extant right acquired under existing licence under the proposed amendment to the 6th Edition of the NBC Code.

“A declaration that the Commission acted ultra vires when it sought to retroactively compel right holders of programme content to compulsorily share extant right acquired through a partnership and /or joint venture with an investor under the proposed Amendment to NBC Code.

“An order setting aside the amendment of the NBC Code and an order of perpetual injunction restraining the NBC from implementing the Amendment to the NBC Code.

In his judgment, the court granted all of the plaintiff’s reliefs.

Justice Lewis-Allagoa held: “I agree with the submission that acquisition of exclusive rights to Broadcast a particular program is an investment for returns and by virtue of the above-stated provisions, no one should be forced to surrender same when it is lawfully acquired.

“I am in agreement with the plaintiff counsel that the said proposed amendment is a violation of the principle of fair hearing and natural justice.  The proposed amendment purports that the defendant NBC shall without any fact-finding or recourse to the other party place the advertising agency on its black list, solely based on the complaint of a media house to the defendant and the defendant acting has the authority to itself shall pass its verdict without hearing the other parties.

“I have determined the questions in the originating summon in favour of the plaintiff.

“For reasons hereinbefore given, consequently, all the reliefs sought by the plaintiff are granted as prayed.  That is the judgment of the court .”