A Federal High Court has nullified it more than a year after the Minister of Information and Culture, Alhaji Lai Mohammed, launched the amended 6th Edition of the Broadcasting Code.
Despite opposition from some industry players, Mohammed had, in August 2020, launched the Amended Code and said that the government was unperturbed by the reactions of critics.
He said: “What I have observed in the reactions to the last Amendment are interests who believe that their singular business interest is superior to the national interest. Therefore, they have resorted to blackmail, using hack writers.
“Ladies and gentlemen, we remain unperturbed because we act in the national interest. The Broadcasting Code is not a static document. As we often say, broadcasting is dynamic. Therefore, even the 6th Edition of the Code shall be reviewed at the appropriate time. But, as it currently stands, the 6th edition and the amendments, which we are unveiling today, remain the regulations for broadcasting in Nigeria.”
However, the Federal High Court sitting in Lagos last Wednesday held that 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 the defendant.
Davies argued, among others, that if allowed, the Amendment would significantly 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. 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 .”
Recall that apart from people like IrokoTV founder Jason Njoku and Nobel Laureate Professor Wole Soyinka, who had strongly criticised the Code, the then Governing Board of the NBC also accused Alhaji Mohammed of duplicity over the issue.
Then Board Chair, Ikra Aliyu Bilbis, alleged that Mohammed did it alone instead of involving all stakeholders in the amendment exercise.
Bilbis claimed that the Minister deliberately twisted President Muhammadu Buhari’s instructions to satisfy a pre-determined end that would ultimately harm the broadcast industry.
The Board Chair said: “From the history, traditions and the convention of the NBC, no Honourable Minister of Information has ever interfered in any NB Code review. After the 2019 presentation of the 6th Code (which is the present one), the Minister has acted alone with just a handful of his loyalists who have written a new NB Code that has created an uproar in the industry, threatening to destroy investments and lead to job losses.
“The Minister has constantly dropped the name of President Muhammadu Buhari as having approved his version of the code review. The NB Code is a regulatory framework put together jointly by stakeholders to guide their operations in the industry. Therefore, it is not a unilateral government instrument and is already covered by Law hence, not requiring any further Presidential approval. This might be the reason why till date, the Minister cannot show us a copy of the Presidential approval.
“President Buhari is a stickler for due process, and he always insists on organisations doing the right thing. The Honourable Minister’s version of the revised NB Code does not meet any known criteria of due process and inclusiveness of stakeholders.”
Last Wednesday’s nullification by the court would therefore be seen as a victory in some quarters. It is unclear yet if NBC will appeal the ruling.
