The Illegality Of The Imposition Of Fines By The National Broadcasting Commission (NBC) On Television and Radio Stations – Douglas Ogbankwa Esq.

The current National Broadcasting Code being used by the Commission was amended arbitrarily by the Minister of Information and not the Board of the NBC as statutorily provided for by the National Broadcasting Commission (establishment), Act, Cap N11, 2004.

The Illegality Of The Imposition Of Fines By The National
Broadcasting Commission (NBC) On Television and Radio Stations-Douglas
Ogbankwa Esq.

The National Broadcasting Commission (NBC) – the regulatory body for
all broadcasts in the Nigerian Media Space has been fining Radio and TV
stations all across the country with reckless abandon. This treatise
will determine the legality or otherwise of the actions of the
Regulatory Agency, considering decided cases and the law on the subject
matter.

The National Broadcasting Commission was created by the National Commission (Establishment ), Act, Cap N11, LFN 2004.). The Act creates the Board of the National Broadcasting Commission,
which is imbued with the powers to make and amend the National
Broadcasting Code, the Regulations that guide broadcasting in Nigeria.

The Section of the National Broadcasting Code that provides for fines for infractions is Section 7.6.5 which provide thus:

A Broadcaster shall ensure that a political advert/broadcast does not
contain hate messages or speeches (jingles, campaigns and
advertisements)

The next section of the Code Section 7.6.6. states that an offender
who is liable at first instance pays a fine of five hundred thousand
naira and when aggravated pays a fine of one million naira.

Now, Section 7.6.5. only talks about political advert/broadcast and
qualified it in the bracket to include jingles, campaigns and
advertisements and nothing more. The law is trite that the express
mention of one thing is the express exclusion of another. In this light,
the part of the National Broadcasting Code that relates to fines
pertains to only political jingles, campaigns and advertisements and
nothing more. The National Broadcasting Commission’s act of fining
broadcast stations for Nigerians airing their minds is therefore illegal

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and it is even against section 39 (1) of the Constitution of the
Federal Republic of Nigeria, 1999 (As Amended), by the 4th alteration
which states as follows:

Every person shall be entitled to freedom of expression, including
the freedom to hold opinions and to receive and impart ideas and
information without interference

This is a provision from the highest law of the land – the
Constitution. A Regulation, that is the National Broadcasting Code, can
not, therefore, obliterate the express provisions of the Constitution
which is not qualified in any way.

In any case, the Code does not give the National Broadcasting
Commission powers to impose fines, it only says that an offender is
liable to pay a fine. The powers to impose fines have been found by the
Courts to be the express duties of the Courts and not the regulators.

The Court of Appeal in the case of ABDULLAHI V. KANO STATE (2015) LPELR-25928 (CA) per Abba Aji, JCA,
defined fine as a payment of money ordered by a Court from a person who
has been found guilty of violating law. Truly, a fine is a criminal
sanction and only the court is empowered, by the Constitution, to impose
same. Fine imposed by regulatory agencies without recourse to the
courts is illegal and null and void ab intio. By the NBC imposing fines
on broadcast stations, NBC has become the complainant, the investigator,
prosecutor and judge. This is against the principle of Nemo Judex in
casua sua- No man can be Judge in his own cause.

Additionally, for an administrative or regulatory body to impose
fines or penalties without recourse to the court is a naked violation of
Section 36 of the 1999 Constitution of the Federal Republic of Nigeria,
as amended. The Supreme Court in its wisdom held in MFA v. INONGHA
(2014) 4 NWLR (Pt.1397) 343 at 375 that “fair hearing within the meaning
of Section 36(1) of the Constitution of the Federal Republic of
Nigeria, 1999 means a trial or hearing conducted according to all legal
rules formulated to ensure that justice is done to the parties. It
requires the observance of the twin pillars of the rules of natural
justice, namely: audi alteram partem and nemo judex in causa sua”. If a
regulatory body imposes any fine whatsoever without the intervention of
the court, the principles of “nemo judex in causa sua” which literally
means one cannot be a judge in his own cause and “audi alteram partem”
which literally means no one should be condemned unheard, is arbitrarily
contravened.

The Court of Appeal in the popular case of NATIONAL OIL SPILL
DETECTION AND RESPONSE AGENCY (NOSDRA) v. MOBIL PRODUCING NIGERIA
UNLIMITED (EXXONMOBIL) (2018) LPELR-44210(CA), held that :

NOSDRA has no powers to impose fines on EXXONMOBIL without recourse
to the Courts whilst considering the powers conferred on NOSDRA by
Sections 6(2) and (3) of the NOSDRA Act, which is impari materia with
section 7.6. 5. and 7.6.6. of the National Broadcasting Code The court
unambiguously stated that the imposition of fines by NOSDRA was contrary
to its powers, on the basis that penalties or fines are imposed as
punishment for an offence or violation of the law and the power as well
as competence to establish that an offence has been committed belongs to
the courts and not a regulatory agency.

The issue also dovetails to whether the imposition of fines by the
NBC, without allowing the Broadcast Station to defend itself in a Court
or appropriate tribunal or forum is not a denial of the right to fair
hearing as enshrined in Section 36 of the Constitution of the Federal of
Nigeria, 1999 (As Amended), by the 4th alteration.

The Supreme Court in the case of MFA v. INONGHA (2014) 4 NWLR
(Pt.1397) 343 at 375,answered the question in the affirmative when it
held that

“Fair hearing within the meaning of Section 36(1) of the Constitution
of the Federal Republic of Nigeria, 1999 means a trial or hearing
conducted according to all legal rules formulated to ensure that justice
is done to the parties. It requires the observance of the twin pillars
of the rules of natural justice, namely: audi alteram partem and nemo
judex in causa sua”

It does follow to reason that NBC imposing any fine whatsoever without
the intervention of the court, contravenes the principles of “nemo judex
in causa sua” which indicates that one cannot be a judge in his own
cause and “audi alteram partem” which indicates that before you take a
decision on an issue, you must hear from the other side.

It is apposite to adumbrate that the imposition of a fine is a
judicial act and only the Judex, under Section 6 of the Constitution of
the Federal Republic of Nigeria,1999 (As Amended) by the 4th Alteration
can exercise such a power.

It is my submission that all fines hitherto imposed by the NBC is
unconstitutional and ultra vires its powers and NBC must return those
fines to the broadcast stations. NBC can not hide under the National
Broadcasting Code which is mere regulation and not even an Act of
Parliament to gag Nigerians.

The current National Broadcasting Code being used by the Commission
was amended arbitrarily by the Minister of Information and not the Board
of the NBC as statutorily provided for by the National Broadcasting
Commission (establishment), Act, Cap N11, 2004. There is therefore no
National Broadcasting Code in force known to Law in Nigeria as we speak.
What we have is a private document of the Minister of Information not
known to any written law in force in Nigeria throughout the Federal
Republic of Nigeria.

About the Author:

Douglas Ogbankwa Esq , is a Benin Based Private Legal Practitioner
and the Founder of the Vanguard for the Independence of the Judiciary
(V4IJ).