Continuation: Osun Guber Aspirant Slams APCON With A N100 million Lawsuit

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General Form of Originating Summons

In the Federal High Court
Holden At Osogbo
Suit No:
Between:
Kunle Rasheed Adegoke ………Plaintiff

And

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Advertising Practitioners Council of Nigeria (APCON) ……Defendant

Originating Summons
Brought Pursuant to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as Altered); Section 23 of the Advertising Practitioners (Registration, etc.) Act; Order 3 Rule 1, Order 13 Rule 35(15) of The Federal High Court (Civil Procedure) Rules, 2009; and under the Inherent Powers of the Honourable Court
Let the Defendant of 41, Offa Road, GRA, Ilorin, Kwara State, Nigeria within 14 days after service of this summons on it, inclusive of the day of such service, cause an appearance to be entered for it to this summons which is issued upon the application of Kunle Rasheed Adegoke of 44A, Adeleke Freeway, Alekunwodo, Osogbo, Osun State for the determination of the following questions:

Whether the Defendant has the powers under the Advertising Practitioners (Registration Etc.), Act to control and/or regulate the activities of, and/or sanction non-APCON members who do not carry on the business of advertising as a profession but whose advertisements are sourced out to advertising practitioners.
Whether the Defendant can prescribe or impose penalties for alleged violation of the provisions of the Advertising Practitioners (Registration Etc.), Act on ordinary members of the public like the Plaintiff who is not a member of the Advertising Practitioners Council of Nigeria and whose advertisements are sourced out to another person who carries on advertisement as a professional and member of the Advertising Practitioners Council of Nigeria.

Whether the Defendant can prescribe or impose penalties for alleged commission of offences that are not contained in any written Law.

Whether the Defendant can enforce a penalty for the alleged violation of any law upon the Plaintiff who is not a member of the Defendant’s professional association without a judicial interpretation of such laws by way of order/judgment of a competent judicial body.

Whether the Defendant can lawfully order the Plaintiff, by a public notice, to remove his property from a public place without a prior opportunity of fair hearing and/or a valid court order to the effect.

Whether the Defendant’s act of defacing, subsequently removing, confiscating and carting away the Plaintiff’s political campaign banners from public places without any valid order of a competent court of law is not unlawful, ultra vires its powers, null and void.

Whereof the Plaintiff claims as follows:
A declaration that the Defendant does not have the powers under the Advertising Practitioners (Registration Etc.), Act to control and/or regulate the activities of, and/or sanction non-APCON members.
A declaration that the Defendant cannot prescribe or impose penalties for alleged violation of the provisions of the Advertising Practitioners (Registration Etc.), Act by non-members of the Advertising Practitioners Council of Nigeria.

A declaration that the Defendant cannot prescribe or impose penalties for alleged commission of offences that are not contained in any written Law.

A declaration that the Defendant cannot enforce a penalty for the alleged violation of any laws upon the Plaintiff who is not a member of the Defendant’s professional association without a judicial interpretation of such laws by a way of order/judgment of a competent judicial body.

A declaration that the Defendant cannot lawfully order the Plaintiff, by a public notice or any means, to remove his property from a public place without a prior opportunity of fair hearing and/or a valid court order to the effect.

A declaration that the Defendant’s act of defacing, subsequently removing, confiscating and carting away the Plaintiff’s political campaign banners from public places and taking same away without any valid order of a competent court of law is unlawful, ultra vires the Defendant’s powers, null and void.

An order of the honourable court directing the Defendant to give a written apology to the Plaintiff to be published in at least 3 national daily newspapers for the injury caused to his reputation.

An order of perpetual injunction restraining the Defendant, its agents, privies etc. from further tampering with the Plaintiff’s political campaign property in any unlawful manners.
N100, 000, 000.00 (One Hundred Million Naira) as general and aggravated damages.

Dated this 6th day of August 2018.

This summons was taken out by Akinwunmi Omisade, Abdulrahman Okunade and Muhydeen Abiodun Adeoye, Legal Practitioners of the address below, and counsel for the above-named Plaintiff.

__________________
Akinwunmi Omisade
Abdulrahman Okunade
Muhydeen Abiodun Adeoye
Apex Solicitors
(Plaintiff’s Counsel)
9, Pepsi Cola Area,
Osogbo, Osun State.
e-mail: apexsolicitors05@gmail.com
+234902-514-4471, +234703-423-7702, +234806-248-0498.

For Service On:
Advertising Practitioners Council of Nigeria (APCON),
41, Offa Road,
Ilorin, Kwara State.

In the Federal High Court
Holden At Osogbo
Suit No:
Between:
Kunle Rasheed Adegoke …………Plaintiff

And

Advertising Practitioners Council of Nigeria (APCON) ………Defendant

Affidavit Setting Out the Facts Relied Upon

I, Muideen Olalekan Raheem, male, businessman and Nigerian of TIWA N TIWA HOUSE, Adeleke Freeway, Alekunwodo, Osogbo, Osun hereby make oath and state as follows:
I am conversant with the facts of this suit as they are within my personal knowledge or where indicated to have been relayed to me.

I have the consent and authority of the Plaintiff to depose to this affidavit.

The Plaintiff is a member of the All Progressives Congress (APC), which is a registered political party in Nigeria.

The Plaintiff was, until the 20th day of July, 2018 when the APC primary election was held in Osun State, an aspirant to the office of Governor of Osun State under the All Progressives Congress (APC), for the State’s 2018 governorship election.

The Plaintiff ran a state-wide campaign which included print, audio, visual and physical sensitisation towards the realisation of his governorship aspiration.
I was (and still am) the coordinator for the Plaintiff’s campaign and consultation activities.
Towards improving the visibility of the Plaintiff within Osun State Nigeria, I, as his campaign coordinator, engaged the services of a certain Mr. Wale Alarape, an advertising practitioner of Fagbewesa Road, Osogbo to hoist the Plaintiff’s campaign banners on Mr. Alarape’s billboards at strategic locations in Osun State.

I verily believe that the said Mr. Wale Alarape is a registered member of the Defendant.

The said Mr. Wale Alarape was paid all fees which I verily believe included all the requisite statutory and permit fees for the hoisting and hosting of the Plaintiff’s campaign banners on the billboards belonging to the said Mr. Wale Alarape.

Consequent upon the payment of the requisite fees to Mr. Wale Alarape, he hosted the Plaintiff’s campaign banners on his billboards at different locations within Osogbo, Osun State.

The billboards erected by Mr. Wale Alarape had the photographs of the Plaintiff and notices of his intention to contest for the office of the Governor of Osun State in 2018. Attached herewith and marked as ‘Exhibit K Rad1’ is a copy of the sample submitted to Mr. Wale Alarape.

The plaintiff did make regular payments into the purse of the government of Osun State for the public hoisting of his campaign banners on several billboards, through the said Mr Wale Alarape. Copies of the receipts for some of such payments are annexed herewith and marked ‘Exhibit K-RAD 2’.

Sometime around the 8th day of May 2018, the Defendant, without prior notice to the Plaintiff, unilaterally and without consideration for the political interests of the Plaintiff, posted a Removal Order on some of the Plaintiff’s campaign banners hoisted on the billboards erected across the Capital City of Osogbo by Mr. Wale Alarape, thereby punitively defacing the campaign banners of the Plaintiff in the process.

Shortly after the facts stated in paragraph 13 above, the Plaintiff was served with a letter titled ‘Notice of Violation’, dated the 14th day of May, 2018 and referenced as RMED/VOL.3/2018/KRAD by the Defendant. A copy of the letter is annexed herewith and marked ‘Exhibit K-Rad 3’.

The Plaintiff responded to the above-mentioned letter by a letter dated the 15th day of May, 2018 through his lawyers, and by which he protested against the Defendant’s manner of defacing his campaign banners and billboards without first affording him the benefit of fair hearing. A counterpart copy of the reply letter is annexed herewith and marked ‘Exhibit K-Rad 4’.

The above-mentioned reply letter by the Plaintiff was dispatched to the Defendant on 17th day of May, 2018 via the NIPOST Express Mail Service (EMS). A copy of the dispatch receipt is annexed herewith and marked ‘Exhibit K-Rad 5’.

On the 5th day of July, 2018, in spite of the protest letter by the Plaintiff, officials of the Defendant suddenly went round Osogbo, the capital city of Osun State and destroyed, pulled down some of the Plaintiff’s campaign banners on Mr. Alarape’s billboards, confiscated and carted away the said banners and has refused to return them till date.
I verily believe that the Defendant is not empowered under any extant laws, regulations and or guidelines to penalize the Plaintiff by malevolently removing, defacing and or magisterially placing any punitive Removal Order on the Plaintiffs campaign banners without being afforded the right to fair hearing as such Removal Order was (and still is) calculated to punish and ridicule the Plaintiff, a gubernatorial aspirant, before the unwary public whose understanding of such Order conveys the impression that the Plaintiff is a lawbreaker, an irresponsible person and probably a debtor who cannot afford the cost of ‘advertisement’.
I verily believe that the Plaintiff is not a member of the Defendant’s professional body and consequently cannot be subject to penal jurisdiction of the Defendant, if any, for any perceived violation of its extant laws and that if at all, there has to be any imposition of penalty, the Plaintiff is not the proper party to be penalized.

I was informed by Akinwunmi Omisade, a counsel to the Plaintiff herein in our campaign office at the above address in the evening of Friday the 3rd day of August, 2018, while taking briefs and I verily believe that:
the act of the Defendant in punitively posting Removal Order on the Plaintiff’s campaign banners without affording him any right to fair hearing amounts to a breach of the Plaintiff’s fundamental human right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as altered).

the Defendant has exceeded its authority and or powers if any, by defacing, removing, confiscating and or carting away the campaign banners of the Plaintiff.
I swear to this affidavit in good faith conscientiously believing the contents to be true and correct and in accordance with the Oaths Act, Cap. 01, Laws of the Federation of Nigeria, 2004.

__________________
Deponent
Sworn to at the Federal High Court’s Registry, Osogbo,
This _______ day of August, 2018.

Before Me

Commissioner for Oaths

In the Federal High Court
Holden At Osogbo
Suit No:
Between:
Kunle Rasheed Adegoke …………Plaintiff

And

Advertising Practitioners Council of Nigeria (APCON) ………Defendant

Written Address in Support of Originating Summons
Introduction
This is an Originating Summons brought pursuant to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as Altered); Section 23 of the Advertising Practitioners (Registration, etc.) Act, Cap. A7, LFN, 2004; Order 3 Rule 1 of The Federal High Court (Civil Procedure) Rules, 2009 and under the inherent powers of the Honourable Court. The Originating Summons is praying for the reliefs stated on the Originating Summons.

The Originating Summons is supported by a 21-paragraph affidavit deposed to by Muideen Olalekan Raheem, the Plaintiff’s campaign coordinator. We shall rely on all the paragraphs of the affidavit together with the exhibits attached thereto.

Issues for Determination
The Plaintiff submits the following issues for determination:

Whether the Defendant has the powers under the Advertising Practitioners (Registration Etc.), Act to control and/or regulate the activities of, and/or sanction non-APCON members who do not carry on the business of advertising as a profession but whose advertisements are sourced out to advertising practitioners.

Whether the Defendant can prescribe or impose penalties for alleged violation of the provisions of the Advertising Practitioners (Registration Etc.), Act on ordinary members of the public like the Plaintiff who is not a member of the Advertising Practitioners Council of Nigeria and whose advertisements are sourced out to another person who carries on advertisement as a professional and member of the Advertising Practitioners Council of Nigeria.

Whether the Defendant can prescribe or impose penalties for alleged commission of offences that are not contained in any written Law.

Whether the Defendant can enforce a penalty for the alleged violation of any law upon the Plaintiff who is not a member of the Defendant’s professional association without a judicial interpretation of such laws by way of order/judgment of a competent judicial body.

Whether the Defendant can lawfully order the Plaintiff, by a public notice, to remove his property from a public place without a prior opportunity of fair hearing and/or a valid court order to the effect.

Whether the Defendant’s act of defacing, subsequently removing, confiscating and carting away the Plaintiff’s political campaign banners from public places without any valid order of a competent court of law is not unlawful, ultra vires its powers, null and void.
Argument
For ease of treatment, we shall treat some of the issues identified above together as hereunder done.

Issues 1 and 2 – Powers of APCON to regulate Advertising
Advertising Practitioners Council of Nigeria is a statutory body established pursuant to the provision of Section 1 of the Advertising Practitioners (Registration, Etc.) Act, Cap. A7, Laws of the Federation of Nigeria, 2004 (hereinafter referred to as “the Act”. To that extent, the body is regulated principally by the Act.

Aside from the nature of Section 1 being an establishing provision, the functions of APCON (hereinafter referred to as “the Council”) are also clearly spelt out in the said provision as follows:
“There is hereby established for advertising practitioners a body to be known as the Advertising Practitioners Council of Nigeria (in this Act referred to as “the Council”) which shall be charged with the general duty of-
determining who are advertising practitioners;
determining what standards of knowledge and skill are to be attained by persons seeking to become registered as members of the advertising profession and reviewing those standards from time to time;
securing in accordance with the provisions of this Act, the establishment and maintenance of a register of persons entitled to practice as advertising practitioners and the publication, from time to time, of lists of those persons;
regulating and controlling the practice of advertising subject to the approval of the Minister of Health, where the advertisement relates to matters of foods, cosmetics, beverages and drugs;
conducting examinations in the profession and awarding certificates or diplomas to successful candidates as and when appropriate and for such purpose the Council shall prescribe fees to be paid in respect thereof;
performing the other functions conferred on the Council by this Act.

It is submitted that the primary functions of the Council are as contained in the provisions above-stated. To that extent, it is contended that the purpose of the Council is to regulate advertising practitioners and how they carry out their business and not to regulate directly or impose penalty on non-practitioners of advertising in Nigeria.

It is the duty of the court to give legislations literal or ordinary interpretation where the words are not ambiguous. See Brittania-U Nig. Ltd. v. Seplat Petroleum Development Company Ltd.&Ors. (2016) LPELR-40007(SC) where the Supreme Court held as follows:
“…In construing the provisions reproduced above, there is no need to resort to external sources. The words used in them ought to be given their grammatical and ordinary meanings. In the Levy, ex parte, Wultin (1881) 17 Ch.D 746 at 751 Jessel M.R. opined:
“The grammatical and ordinary sense of the Words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.”
Any modification of the grammatical and ordinary sense of the words reproduced above may lead to absurdity and inconsistency with the intention of the provisions. Per NGWUTA, J.S.C. (Pp. 57-58, Paras. E-C)

To that extent, it is submitted that the literal interpretation of the above provisions of Section 1 shall be for the Council to regulate advertising practitioners in Nigeria in the performance of their trade or practice and shall not extend to the general members of the public in their day-to-day lives who do not operate any business of a registered practitioner of advertising.

My Lord, while the provision of Section 3(1) of the Act seems to be conferring on the Council certain powers beyond the contemplation of Section 1 of the Act, it is certain that a court of law would not rush to such a presumption. According to Section 3(1) of the Act,
“Subject to subsection (2) of this section and to any directions of the Minister under this Act, the Council shall have power to do anything which in its opinion is calculated to facilitate the carrying out of its functions under this Act.”

As extensive as the above provision may look, it is submitted that it harbours ambiguity tending towards absurdity which can never be within the contemplation of the law. Can the Defendant Council, in its opinion, arrest, detain, inflict punishment or kill an alleged offender, if in its opinion it is calculated to facilitate the carrying our of its functions? It is vehemently submitted that that can never be the contemplation of the law. While it may be argued that Section 3(1) is vesting in the Council the power to do anything it may fancy to facilitate the carrying out of its functions under the Act, it is incontrovertible that it can never be the contemplation of the law as Section 3(1) of the Act cannot be read in isolation from Section 1 of the Act. A statute must be construed as a whole and not in isolation. According to the Court of Appeal in Elder Ikechukwu Amadi Obuzor v. Hon. Wilson Asinobi Ake (2008) LPELR-4670(CA) pages 28 – 29 paras D – C:
“The principles governing the interpretation of statutes are well settled. Where the words of the statute are precise and unambiguous they must be given their natural and ordinary meaning. The words of the statute best declare the intention of the lawmaker. See: Ibrahim Vs Barde (1996) 9 NWLR (Pt. 474) VsUdom (1990) A.N.L.R. 191. However it is also trite that in order to meaningfully construe the provisions of a section in a statute it should not be considered in isolation. In certain circumstances it is necessary to consider other related or relevant provisions of the statute to determine the intention of the legislature.”(Emphasis ours).

The implication of the above submission and position of the law is that the power that the Council can exercise must be to facilitate its functions under the Act. Those functions are as contained in Section 1 or in any other part of the Act. It is, therefore, submitted that the Council has no power to regulate or impose sanctions or penalties on members of the public who patronize the services of advertising practitioners without themselves being advertising practitioners. We refer to paragraph 13 of the Affidavit in Support of this Originating Summons in which it is testified that:
“Sometime around the 8th day of May 2018, the Defendant, without prior notice to the Plaintiff, unilaterally and without consideration for the political interests of the Plaintiff, posted a Removal Order on some of the Plaintiff’s campaign banners hoisted on the billboards erected across the Capital City of Osogbo by Mr. Wale Alarape, thereby punitively defacing the campaign banners of the Plaintiff in the process.”

Further to the above, in paragraph 14 of the Affidavit in Support, it is deposed as follows:
“Shortly after the facts stated in paragraph 13 above, the Plaintiff was served with a letter titled ‘Notice of Violation’, dated the 14th day of May, 2018 and referenced as RMED/VOL.3/2018/KRAD by the Defendant. A copy of the letter is annexed herewith and marked ‘Exhibit K-Rad 3’.”

My Lord, it is the duty of the Council to regulate and control the “practice of advertising” as a trade. Such power shall only apply to the control of such practice as a trade by its practitioners who are subject to the control of the Council. The Council can impose sanctions on its members who may be found to have erred within the ambit of the law subject to the right to fair hearing. It can never be within the contemplation of the law that the Council can unilaterally impose sanctions on a member of the public patronizing the services of an advertising practitioner as the Plaintiff who has sourced the services to Mr. Wale Alarape, an advertisement practitioner.
The unilateral pasting of the Removal Order defacing the pictures of the Plaintiff on the billboards erected by Mr. Wale Alarape is nothing but placement of sanction on the Plaintiff. Whereas it is the practitioner who is subject to control and sanction by the Council, it is not in dispute that such penal exercise of power cannot be extended to the Plaintiff who is neither an advertisement practitioner nor a member of the Council.
Further to the above, the Defendant, in another reckless and brazen show of force, went round the City of Osogbo destroying, removing, confiscating and carting away the campaign banners of the Plaintiff without a court order and without any judicial process authorizing same. We refer to Paragraph 17 of the affidavit in support of the Originating Summons where it is deposed as follows:
“On the 5th day of July, 2018, in spite of the protest letter by the Plaintiff, officials of the Defendant suddenly went round Osogbo, the capital city of Osun State and destroyed, pulled down some of the Plaintiff’s campaign banners on Mr. Alarape’s billboards, confiscated and carted away the said banners and has refused to return them till date.

It is submitted that the powers of the Defendant cannot be to impose penalty on the Plaintiff to the extent of confiscating his property without any judicial process being put in place. The Plaintiff is not subject to the professional regulatory capacity of the Defendant. It is just like the Legal Practitioners’ Act imposing penalty on members of the public who patronize the services of lawyers. May God forbid bad thing. To hold otherwise is to turn the law upside down. It is not possible.

We urge Your Lordship to uphold the argument of the Plaintiff in this regard.

Issue No. 3
Whether the Defendant can prescribe or impose penalties for alleged commission of offences that are not contained in any written Law.
My Lord, the fons et origo of the land, the Constitution of the Federal Republic of Nigeria, 1999 (as altered) has forbidden convicting a person of a criminal offence not contained in a written law together with its penalty duly spelt out. By Section 36(12) of the Constitution,
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”

This provision, as previously contained in Section 33(8) of the defunct 1979 Constitution, was given consideration in the case of Sele v. State [1993] 1 NWLR (Pt. 269) 276 @ 290 paras E – G wherein Karibi-Whyte, JSC (as he then was) stated the law as follows:
It is a cardinal principle of our concept of criminality, and which is protected by our Constitution, that a person can only be charged with and convicted for an offence recognized by the law and in existence at the time the act was committed – See S. 33(8) of the Constitution 1979. This is the hallowed and sacred principle of legality. It is because of its importance and high public policy that the legislative jurisdiction of the legislature is also excluded from having retrospective effect in relation to any criminal offence whatsoever

My Lord, it is the allegation of the Plaintiff that the Defendant simply imposed punishment on the Plaintiff by defacing his banners containing his pictures through pasting of “Removal Order” and subsequent removal of the Plaintiff’s banners off the billboards belonging to Mr. Wale Alarape. These unlawful acts were done on the 8th day of May, 2018 and the 5th day of July, 2018. We refer to Paragraphs 13 and 17 of the Plaintiff’s affidavit in support of the Originating Summons deposed to by Muideen Olalekan Raheem. The above acts were done without regard to the political interests of the Plaintiff who was a popular gubernatorial aspirant in Osun State at the time relevant.

Our contention basically is that no provision of the law stipulates that the Plaintiff can be punished by Removal Order for an alleged violation of Article 21 of the Nigerian Code of Advertising Practice and Sales Promotion. For the Plaintiff to be duly punished by the Council by issuance of Removal Order and subsequent yanking off of the Plaintiff’s banners and carting away of same as done by the Defendant, there must be express provision in the law making it an offence and that the appropriate punishment(s) are a Removal Order, a subsequent actual removal and confiscation without trial. The Council or any of its organs must have been empowered to duly do such acts.

No provision, My Lord, I repeat, no provision authorizes the Council or any of its agencies to deface an aspirant’s political campaign banner, destroy its appeal to the voting public as a punishment for failure to comply with Article 21 of the Nigerian Code of Advertising Practice and Sales Promotion which only provides that:
“All advertisements except those for public service announcement, goodwill messages, obituaries and vacancies shall be presented for vetting and approval by the Advertising Standards Panel (ASP) before exposure. It is mandatory for all media houses to demand the ASP’s Certificate of Approval, which are issued for all approved advertisements before placing any such advertisements (details and modalities are available in the Vetting Guidelines published by the ASP).” (Emphasis ours).
The above provision only applies to the media houses who are involved in the practice of advertising. It does not apply to the Plaintiff who is just an aspirant on the platform of a political party and is not engaged in the business of advertising, for God’s sake! How on earth would the officials of the Defendant just wake up one morning and think that the best way to adversely affect the popularity of the Plaintiff in his electoral campaign was to destroy and deface his banners, remove same, confiscate and cart them away as punishments for an alleged failure to comply with Article 21 of the Nigerian Code of Advertising Practice and Sales Promotion. At best, the person that can be punished using the provision above (that is, if it can be used to punish at all) is the advertising practitioner who offered the service of advertisement to the Plaintiff and who owns the billboards on which the banners were hoisted.

It is sad that in this country public officials exercise their powers without due regard to legal provisions and fundamental rights of citizens. Worse case, the Defendant’s officials went ahead to remove and cart away the Plaintiff’s banners without returning them till date. These are personal chattels of the Plaintiff to which no law authorizes the Defendant to lay claim of ownership. The billboards were left bare whereas the Plaintiff had fully paid Mr. Wale Alarape for the services of displaying, hosting and hoisting the banners on his billboards. The Plaintiff had, through the said Mr Wale Alarape, paid all the necessary charges to the State Government of Osun with respect to its own levies. How on earth would a public official overstep his bounds without respect for the rights of the citizens?

We urge Your Lordship to uphold the contention of the Plaintiff in this regard. There is no law that criminalises failure to comply with Article 21 of the Nigerian Code of Advertising Practice and Sales Promotion and makes the appropriate punishment to be confiscation by the Defendant of the allegedly offending publication without any order of court. Were there to be any such law, it means that the Defendant shall be exercising quasi-judicial powers which cannot be exercised without resort to the rules of natural justice.

Issues Nos. 4, 5 and 6
Defendant’s breach of fundamental right to fair hearing and usurpation of judicial powers.

Assuming, but without conceding, that the Defendant has the power to exact punitive powers on the Plaintiff, the question is whether it can do so without affording the Plaintiff right to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).

It is the law that it is not allowed for a body levying an allegation to constitute itself into the judicial body meant to adjudicate over the offence alleged. The dicta are audi alteram partem and nemo judex in causa sua. It is a rule of natural justice that a person cannot be a judge in his own cause and the other party must be heard. See Mohammed v. Olawunmi [1990] 2 NWLR (Pt. 133) 458 @ 485 paras B – C; Ogundoyin v. Adeyemi [2001] 13 NWLR (Pt. 730) 403 @ 421 paras A – D; Saleh v. Monguno [2003] 1 NWLR (Pt. 801) 221 @ 246 para G; 248 paras E – F.

It is infra dignitatem for the Defendant’s officials to just embark on punitively defacing the campaign banners of the Plaintiff without first notifying him of any rule of law he had contravened. The letter of May 14, 2018 (‘Exhibit K-Rad 3’) written by the Defendant cannot be said to have been written in good faith. It was purely an after-thought. That was after it had defaced the banners of the Plaintiff with the Removal Order by which it had already decided the guilt of the Plaintiff without trial. By that singular act, the members of the public had already had the perception that the Plaintiff was guilty of non-compliance with the law or was in breach of certain statutory obligations which made him liable to be so punished by the Defendant.

For God’s sake, what would it cost the Defendant to have written the letter of May 14, 2018 (‘Exhibit K-Rad 3’) before placing the ignominious Removal Order pre-judging the Plaintiff of violation of Article 21 of the Nigerian Code of Advertising Practice and Sales Promotion? What benefit has the Defendant derived from judging the Plaintiff guilty of a non-existent offence and ridiculing him before the voting public without affording him a hearing? Interestingly, the Defendant did not institute any action against the Plaintiff for a pronouncement on the legality or otherwise of the alleged violation of the Nigerian Code of Advertising Practice and Sales Promotion.

In fact, it was after the Defendant had made up its mind and pre-judged the Plaintiff that it chose to write the letter of May 14, 2018 (‘Exhibit K-Rad 3’). The Defendant had the effrontery to just deploy its full might by destroying and removing the banners of the Plaintiff and carting them away on 5 July 2018 without seeking any legal aid to determine the liability of the Plaintiff. It sat down in its office and passed its own judgment and the punishment it considered appropriate for the Plaintiff was to destroy all its banners, remove them and take them to God knows where. Who even knows whether the banners the Plaintiff spent a lot of money to do are now being used for dusting tables or mopping the floors in the offices of the Defendant? This would be sad!

It is submitted that the Plaintiff is entitled to be heard before a decision of the Defendant is passed on him. Whereas the Defendant must obtain a court order if it feels that the Plaintiff is liable to pay any fee that had not been paid, what the Defendant had chosen to do was to rather resort to self-help. We urge this honourable Court to condemn the act of the Defendant as done by the Supreme Court in Spiess v. Oni (2016) LPELR-40502(SC) where His Lordship, Muhammad, JSC, held as follows:
“My noble lords, Law is meant to provide peace, security, protection concord and purposeful co-existence amongst citizens. No reasonable society will encourage resort to self-help for whatever reason and not certainly on mere suspicion.” Per MUHAMMAD, J.S.C. (P. 36, Paras. A-B)

We urge Your Lordship to condemn the acts of the Defendant in their entirety as no law allows a party, no matter how highly placed, to deploy might over another whatever could be the latter’s status in life. The Defendant acted in excess of its powers by destroying, confiscating the banners of the plaintiff and carting them away without an order of court. Rather than seek judicial intervention, the Defendant only deployed raw force by destroying the Plaintiff’s campaign banners and taking them away. No law empowers the Defendant to do that. Interestingly, the property in the banners belongs to the Plaintiff and could not have been lawfully confiscated by the Defendant. What the Defendant has done is reminiscent of the naked use of force as was commonly done under military regimes. This is a democratic dispensation when the Constitution is supreme. The acts are utterly condemnable.

It is submitted that it is ultra vires the Defendant to impose and execute penalty on the Plaintiff without a judicial intervention. The Plaintiff is not a member of the Defendant’s professional body. If the Defendant honestly believes that it is entitled to certain claims against the Plaintiff, the law courts are there. It is, therefore, ultra vires the Defendant to unilaterally and in a magisterial manner pass a judgment by pasting Removal Order on the Plaintiff’s campaign banners without a judicial intervention. It went further to remove the Plaintiff’s banners hoisted on an advertising practitioner’s billboards and not on the Defendant’s billboards and carted the banners away. Where, in the Defendant’s various laws, is it provided that the Defendant can suo motu disgracefully and ignominiously order a member of the public patronizing an advertising service of a practitioner to remove his advertisement without an inquiry and without resort to court process? Where is it contained in the Defendant’s enabling Act and other legislations that it can unilaterally and in complete usurpation of judicial powers destroy, remove, confiscate and cart away a political campaign banner of a person without a judicial order to that effect? It is completely ultra vires the Defendant to so form an allegation of contravention of Article 21 of the Nigerian Code of Advertising Practice and Sales Promotion in its office against the Plaintiff, hold court in the absence of the Plaintiff and, just like a conqueror, execute its order or judgment without any aid of legal process.

In Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599 @ 623 paras A – C; (1985) LPELR-2565(SC) (P. 35, Paras. C-F), the Supreme Court, per Oputa, JSC, in analyzing the concept, nature and effect of the doctrine of ultra vires, exponentially stated the position of the law as follows:

“If the powers of a Corporation are given or acquired at common law or by custom or by charter, the corporation is a person at common law and may do anything which an ordinary person can do, see: Wenlock (Baroness) v. River Dee Co. (1885) 10 App. Cas. 354: see also British South Africa Co. v. De Beers Consolidated Mines (1910) 1 Ch. 354. On the other hand, a Corporation or Company which is created by or under a Statute cannot do anything at all, unless authorised expressly or impliedly by the Statute or instrument defining its powers. It simply has not got the vires or the powers or authority to act outside the Statute. If it so acts, the act will be held to be ultra vires and declared null and void.”(Emphasis mine)

By the force of the Nigerian Constitution, 1999 (as altered), the Defendant is a statutory body established by an Act of Parliament. It cannot act or exercise any power outside the provisions of the Act and Regulations made pursuant thereto where such Regulations are validly made. It has been submitted that Section 3 of the Act does not make the Defendant almighty organisation plenipotentiary beyond the laws and the Constitution. According to the Supreme Court in Magit v. University of Agric., Makurdi [2005] 19 NWLR (Pt.959)211 @ 257 paras A – B, per Pats-Acholonu, JSC:

“I am well aware that in the case of University of Nigeria Teaching Hospital Management Board v. Hope C Nnoli (1994) 8 NWLR (Pt. 363) 376 at 412, (1994) 10 SCNJ at 98-99 Oguntade JSC said:
“Where a public body fails to comply with certain procedural safeguards in an enabling Act or Regulations, there is a breach of a duty imposed on it and its decision in such circumstances is ultra vires.”

It is, therefore, the case that in an appropriate situation in which a statutory body can even levy punishment, aside from the point that the punishment and the underlying offence must be statutorily stipulated, such body must afford the subject of trial an opportunity to be heard. It is only a court of law that can pronounce the punishment carried out by the Defendant in this case. The act of placing a Removal Order on the Plaintiff’s banner is a pre-judgment and pronouncement of guilt on the Plaintiff. The act of actual destruction, removal and confiscation and carting away subsequently carried out is an ultimate punishment levied by the Defendant without an order of court.

My Lord, assuming, without even conceding that the Act that established the Defendant confers on it the power to punish summarily the Plaintiff who is not a member of the Defendant professional body by placing a Removal Order on the Plaintiff’s banner and confiscating the said banner for an alleged failure to comply with the law, it is submitted that such provision of the Act vesting such judicial power of penalty in the Defendant would be completely unconstitutional as a clear usurpation of the judicial powers of law courts.

May I refer Your Lordship to the brilliant and impeccable reasoning and decision of Your Lordship’s learned brother, Tsoho J of the Federal High Court, Lagos in Tope Alabi v. National Assembly [2015] All FWLR 1830 @ 1852 –
“However, the power of the 2nd Defendant to impose fine against alleged offenders is open to serious contention. This view is better appreciated upon examination of the definition of the term “fine”.
The meaning “fine” as given in the Black’s Law Dictionary, 9th Edition on page 708 is:
“5. A pecuniary criminal punishment or civil penalty payable to the public treasury”
From this definition, it is possible for a fine to be a civil penalty depending on the facts and circumstances. In the instant case, the involvement of the element of arrest takes the imposition of fine by the 2nd defendant to the realm of criminal punishment. It is noteworthy that a fine when viewed from that perspective, is a component of sentence.
The Black’s Law Dictionary, 9th Edition, on page 1485 defines “sentence” thus:
“Sentence [n] – the judgment that a court formally pronounces after finding a criminal defendant guilty, the punishment imposed on a criminal wrongdoer.

The same Black’s Law Dictionary on page 1486 defines “sentencing” as: “the judicial penalty for a crime”.
From these definitions, it is obvious that the act of sentencing is a judicial action or exercise. Imposition connotes conviction for an alleged offence. This presupposes a trial and conviction of the person fined, especially having regard to the definition of sentencing. It is thus very clear that the 2nd Defendant (Federal Road Safety Commission) not being a court of law cannot impose fine, especially that it has no powers to conduct trial.

His Lordship further pronounced:
Hence, the exercise of the statutory powers given to the 2nd Defendant under the Act as pertaining to imposition of fine is clearly a usurpation of judicial powers exclusively vested in the courts.
This leads to issue 3 whether the power conferred on the 2nd defendant by the enabling Act is inconsistent with any provision of the Constitution of the Federal Republic of Nigeria, 1999.
Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides in relevant part as follows:
6. (1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.
It is very significant that Section 1 provides for supremacy of the Constitution. Subsection (1) and (3) are reproduced thus:
“1. (1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.”
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
Section 6 of the Constitution undoubtedly vests judicial powers in the courts established for the Federation and the States. Therefore, a legislation such as the Federal Road Safety Commission (Establishment) Act, 2007 which purports to empower the 2nd defendant to impose fine, which is a component of sentencing, which itself is a judicial action is inconsistent with section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the circumstances, I endorse the plaintiff’s submission that by virtue of section 1(3) of the Constitution the power to impose fine conferred on the 2nd Defendant by the enabling Act is null and void to the extent of its inconsistency with section 6 of the Constitution.”

My Lord, our submission, by parity of reasoning, relying on the above dicta of Your Lordship’s learned brother, is that were the Advertising Practitioners (Registration, etc.) Act to vest in the Defendant the power to punish the Plaintiff by a Removal Order and subsequently to destroy the Plaintiff’s campaign banner and confiscate same, it would amount to punishment which only a court of law can order in accordance with Section 6 of the Constitution. Thus, such provision would be inconsistent with the Constitution and shall be void to the extent of its inconsistency.

On Damages
As regards the award of damages, it is submitted that the act of the Defendant sojourns in the realm of tort and aggravated damages of N100, 000, 000.00 (One Hundred Million Naira) as demanded by the Plaintiff is modest and in order. The malevolence by which the acts of the Defendant were carried out justifies the award of damages of this nature which in tort is normal and appropriate. It is not in doubt that the property of the Defendant in the banners, the status and feelings of the Defendant have been generally injured and such damages are generally appropriate in the circumstance.

May we refer Your Lordship to the decision of the Court of Appeal in N.M.A. v. M.M.A. Inc. [2010] 4 NWLR (Pt. 1185) 613 @ 649 paras B – C where His Lordship, Salami, JCA, as he then was, stated the position of the law as follows:
“Learned counsel are unanimous that an aggravated damages may be considered and awarded as a result of malevolence on the part of the tortfeasor, spite by him or the manner of committing the breach which injured the feeling of the plaintiff.”
See Chief FRA Williams v. Daily Times of Nigeria Ltd. [1990] 1 NWLR (Pt. 124) 1, 31-32; Ilouno & Ors. v. Chiekwe [1991] 2 NWLR (Pt. 173) 316 @ 325 per Uwaifo JCA.
We urge Your Lordship to award to the Plaintiff against the Defendant general and aggravated damages as herein claimed as the acts of the Defendant are contumacious, contumelious and grossly malevolent. A strict award of this nature would deter such a violent approach to law enforcement which prides itself on deployment of naked force.

Conclusion
To that extent, and relying on all the submissions above, we urge Your Lordship to uphold the contention of the Plaintiff and grant the prayers contained in the Originating Summons.

Dated this 6th day of August, 2018.

__________________
Akinwunmi Omisade
Abdulrahman Okunade
Muhydeen Abiodun Adeoye
Apex Solicitors
(Plaintiff’s Counsel)
9, Pepsi Cola Area,
Osogbo, Osun State.
e-mail: apexsolicitors05@gmail.com
+234902-514-4471, +234703-423-7702, +234806-248-0498.

For Service On:
Advertising Practitioners Council of Nigeria (APCON),
41, Offa Road,
Ilorin, Kwara State.