By Abdul Haqq Buhari
Times without number, the media has always reported news that the National Broadcasting Commission via its Chairman, has sanctioned a particular broadcasting station for what it terms as violation of the National Broadcasting Act.? It is not in doubt that the National Broadcasting Act gives the commission the power to impose fines. This article shall vide the preceding paragraphs attempt to x-ray the position of the law on imposition of fines by regulatory body.
MEANING AND NATURE OF FINE
In Bashiru v. F.R.N (2016) LPELR-40252 (CA), per Abba Aji, JCA., the Court of Appeal held that “a fine is pecuniary penalty imposed by a competent court upon a person convicted of a crime.”
The Court of Appeal per Abba Aji, JCA, in ABDULLAHI VS. KANO STATE (2015) LPELR-25928 (CA) defined fine as a payment of money ordered by a Court from a person who has been found guilty of violating law. It may be specified as the punishment for an offender, usually a minor offence, but could also be specified and used as an option to imprisonment for major crimes or a complement to other punishments specified for such crimes.
A critical examination of the definitions above makes it crystal clear that the imposition of fine is not within the ambit of a regulatory body such as the NBC. The imposition of fine by regulatory bodies by the Director General of the NBC without recourse to the court is an unconstitutional act and if allowed, amounts to usurping the Court powers under Section 6 of the 1999 Constitution.
Permit me to reproduce the wordings of the court in NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY (NOSDRA) v. MOBIL PRODUCING NIGERIA UNLIMITED (2018) JELR 41137(CA) ADAH, J.C.A stated clearly
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.
Again, in National Oil Spill Detection and Response Agency (NOSDRA) v Mobil Producing Nigeria limited (MOBIL) Supra, the court in Page 22 of the records stated that, by the imposition of the fine, the Appellant acted in a judicial capacity which they are not imbued with under the Constitution. By so doing, the Appellant became a Judge in its own cause, the Complainant as well as the Judge, contrary to the maxim “nemo judex in causa sua”
Flowing from the pronouncement of the court in the above case, it is glaring that a regulatory body cannot impose fine because it is the sole prerogative of the court. The Constitution in Section 6(6) vests Judicial Powers on the Courts. A sentence can safely be pronounced after a conviction for an offence has been made by a Court of competent jurisdiction and not a regulatory body.
IMPOSITION OF FINE OFFENDS FAIR HEARING
The purported act of imposing fines also offends Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended which provides thus:
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.
The National Broadcasting Commission being a regulatory agency is not empowered by law to act as the claimant and the judge as this is in contravention of the principle of Nemo judex in causa sua which means one cannot be a judge in his own cause. Likewise, in the adjudication of a matter no one should be condemned unheard, following the maxim Audi Altarem partem.
The Apex Court in MFA v. INONGHA (2014) 4 NWLR (Pt.1397) 343 at 375 held as follows:
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 is a settled law that the Courts will not allow any authority to act ultra vires its powers under the Constitution. To this end, Sections 1 and 6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) empowers the Courts to declare any Act of the National Assembly inconsistent with the provisions of the Constitution, null and void. See SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA V. AJUNWA (2015) 14 NWLR (Pt.1480) 403 at 473.
The Court in A.S.H.A. V. TIJJANI (2012) 8 NWLR (Pt.1303) Pg.511 held:
By the provisions of Sections 1(1) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, the Constitution is supreme and its provisions are binding on all authorities and persons in Nigeria. Therefore, if any law is inconsistent with any provisions of the Constitution, the Constitution shall prevail and the other law shall to the extent of that inconsistency be void.”
It must be noted that any form of fine imposed for violating offences created under the Act without trial and conviction amounts to denial of fundamental right to fair hearing enshrined under section 36 of the Constitution. The court in the celebrated case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt18) 550 at 576, held that: Without subjecting any criminal allegation against any student to the machinery provided by the state for ascertaining the truth of the allegation, a very painful denial of fundamental right is inflicted on the student howbeit laudable or sympathetic the intention of the authorities might be.
The court in Timothy v Oforica (2008) 9 NWLR (Pt. 1091), Pg. 204-213 stated interalia, that no law or custom that stands in the way of our constitution should be allowed to stand tall no matter the circumstances.
It is therefore submitted that it is the exclusive preserve of the Court to impose fine as a punishment for offences as constitutionally provided for under Section 6 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended). This exclusive preserve cannot be shared, exercised or usurped by any person, organisation or regulatory body as such shall be ultra vires. On this strength, it is my submission that the imposition of fines by the NBC on media stations are illegal and unconstitutional.
Just before I get to the tail end of my write up, let me quickly examine press freedom within the context of the law. Lately, the Nigerian Broadcasting Commission has been in the business of imposing fines on Media stations in Nigeria for either one violation or the other. During the ENDSARS protest, some media stations received statements from the NBC on fines being imposed on them. Very recently, Channels TV was fined again for airing the views of the spokesman of the Indigenous People of Biafra.
The right to press freedom is well safeguarded under Section 39 of the 1999 Constitution which empowers Media Stations to disseminate information without any interference as held in the case of Okogie v AG Lagos State (1981) NCLR 33. The Supreme Court in this case held that the section confers untrammeled right on any individual to establish and run any educational institution as a medium for dissemination of ideas.
Similarly, in Gomes v Punch Nig Ltd & Anor (1995) NWLR (Pt. 602) 303 Aderemi JCA as he then was in held that I should here say that it is much to be desired that Newspaper, television of news media generally should be free to bring to the notice of any matter of public interest or concern.
Relying on the strength of the above decisions, it is my humble advice and submission that the NBC should stop this naked display of draconian powers by attempting to silence the media at all times through the imposition of fine.
Abdul Haqq Buhari (04/08/2021)