This writer was in shock and dismay when he came across this NEWS and the Fining by NBC has been trailed with series of arguments from writers and divergence of opinions have been submitted therein. this writer seeks to pour his own perspective on this issue. However, it’s pertinent to bring forth the information that triggered this article for smooth understanding.

According to Premium times on the 26th of October 2020, reported that The National Broadcasting Commission (NBC) has fined Channels Television, AIT and Arise TV N3 million each over their “unprofessional coverage” of the EndSARS protests and the crisis that followed it.

Acting Director-General of NBC Prof Armstrong Idachaba announced the sanction at a press conference in Abuja.

He said that if the commission escalates the violations that emanated from the misuse of social media sources by broadcasters, sanctions according to the provisions of the law, NBC can comfortably shut the stations down.

Idachaba said the stations’ offence was capable of leading to a breakdown of law and order but the option of the fine will serve as a warning to the stations and others.

where would it be said that NBC derives this power?

Quick response to the above question would be traced to NBC Code 2020(Amendment to New edition). The Section provides for WARNING over UNCONVENTIONAL REPORTAGE and LIABILITY for violating same.

For the purpose of clarity and avoidance doubt, Code 5.6.1 read thus

The Broadcasters shall verify news materials emanating from unconventional source as fake news is prohibited

The code further provides that

The broadcasters shall ensure that news materials sent in by the public are vetted to ensure editorial responsibility also

The Broadcaster shall be liable for any of the breach of this Code emanating from the use of materials from user generated sources

There are plethora of guidelines for any broadcasters provided by same Code but the focus of this writer is whether the Fine is constitutional or otherwise.

Another question that needs to be asked is, did NBC act within the purview of Twin pillar of Natural JUSTICE in arriving at their decision?

This question would be responded in negative.

From all indication, the fined broadcasters were deprived of being heard by NBC and as such being denied in presenting their case.

Infact,, NBC acted in judicial capacity and by so doing it became the COMPLAINANT and the JUDGE in its own cause and this has offended the provision of 36 of 1999 Constitution (amended)

The section is to the effect that

(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

Flowing from the above section and considering the legal implication of imposition of fines by NBC I submit that such imposition of fine constitutes a determination of *fined broadcasters’* Civil obligation and as such NBC is expected to have provided a room for the fined broadcasters to defend the allegations.

This writer is also not unmindful of section 36(2) of the Constitution which of the Constitution provides an exception to section 36(1) of the Constitution and this portrays that NBC in the administration of a

law it is empowered to administer, may make a decision affecting a person’s civil obligation provided that such law provides that the persons whose obligation is being determined, is allowed to present his case, before a decision affecting that person is made.

For ease of reference the section provides thus

Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law

(a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

(b) contains no provision making the determination of the administering authority final and conclusive.

it’s glaring from the wordings of these sections that before any decision could be made by any administration or authorities the parties must be given room for REPRESENTATION. Did Fined broadcasters allowed to make their representation in order to defend the allegation? NO.

However, the effect of failure to observe the principles of fair hearing has been submitted in a long line and replete of authorities. NBC’s decision on imposition would be faulted by the decision of His Lordship, Niki Tobi JSC(as he then was) where he rightly and poignantly submitted in Orugbo& Anor. Vs Una&Ors. (2002) 16 NWLR

(Pt.792) 175 @ 199 A-D that The fair hearing principle entrenched in the Constitution is so_

fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction.

It’s to be noted that principles of FAIR HEARING isn’t only applicable in court of Law but also in any tribunal or authority(ies) who act in Judicial capacity. See Mohammed Vs Olawunmi&Ors (1990) 2 NWLR (Pt.133) 458 @

Hence, the imposition of fine by NBC is in violation of Fundamental Right of the Broadcasters and same is said to be unconstitutional.

Having said that, does NBC even have the power in Law to impose fine since they are just a regulatory body?

This would also be answered in negative.

But it must be noted that there are conflicting decisions of Court of Appeal on this issue.

Few of these conflicting cases are

CAC v. Seven-up Bottling Co. (2017), 17 Moses Ediru v F.R.S.C (2016), 18 and Ebong V Securities And Exchange Commission (2017) LPELR-43547(CA)36, the Courts of Appeal have held in aforementioned cases that regulator has the authority to impose civil penalties without recourse to the Courts.

But however, contrary decision was submitted in the most recent case of NOSDRA v. ExxonMobil (2018) LPELR-44210(CA), the Court held that an Administrative/Regulatory Agency has no power to impose fines without proper adjudication by a Court of law. For the purpose of clarity, the words of the court is hereby produce verbatim,

the Appeal Justices:

I must here underline the fact that awarding a fine is a judicial act and it is the sole prerogative of_ a

_Court of law under

_Section 6 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended). No other organizations or bodies can usurp that power. _Any law that would consign to anybody other than the Courts the power to award fine is unconstitutional_.

It’s settled principles of Law that where there are conflicting decisions of Court the latter in time prevails.

It appears that NOSDRA’s case is the latest decision and lower Court is bound to follow same. See OSAKWE v FEDERAL COLLEGE of EDUCATION (2010) 3 SCNJ

On this note, NBC was wrong to have imposed such fine without giving room for REPRESENTATION….

SHEHU ABDULWAHEED ADISA is a final year Law student of Ahmadu Bello University, Zaria.

shehuwaheed2018@gmail.com