MIC ROYAL LIMITED v. ADVERTISING PRACTITIONERS COUNCIL OF NIGERIA
(2018)LCN/11854(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/L/1140/2016
RATIO
COURT AND PROCEDURE: FAILURE OF THE TRIAL COURT TO FILE WRITTEN ADDRESS
“The failure by the trial Court to consider the written address it ordered the Appellant to file is a fundamental breach to the right of the Appellant to fair hearing, such omission is sufficient to vitiate the decision of the lower Court, and render the entire process null and void. In CHIEF NKEREUWEM UDOFIA Vs. FRN (2011) LPELR-3956 (CA) my lord and learned brother NWODO JCA (of blessed memory) said as follows:
“The issue of fair hearing may arise when a party submits an issue for determination before the Court and the Court fails to pronounce on it. In Samba Pet & Anor vs. UBA Plc & 3 ors (2010) 5-7 SC (Pt.11) 22. The Supreme Court per Muhammed JSC held: “It is thus, a statutory responsibitity of all Courts to consider adequately and properly all issues placed before them. Failure to do so will lead to denial of fair hearing which is capable of rendering any proceedings a nullity.”” PER TIJJANI ABUBAKAR, J.C.A.
COURT AND PROCEDURE: THE INTERPRETATION OF STATUTE
“It remains to be emphasised that the duty of the Court is to expound the law and not to expand the law; its duty in the construction of a Statute is to primarily expose the manifest intention of the legislature. Where the language of the Statute is clear and unambiguous, the duty of the Court is limited to accord them their ordinary meaning. See AMAECHI v INEC & ORS (2008) LPELR 446 (SC); BRITTANIA-U (NIG) LTD v SEPLAT PETROLEUM DEVELOPMENT CO. LTD & ORS (2016) LPELR – 40007 (SC); AGBITI v NIGERIAN NAVY (2011) LPELR 2944 (SC). In the instant case, the learned trial judge failed to do so, the conclusion reached by here is thus liable to be set aside. A conflation of the Long Title of the APCON Act as well as Section 1 of the Act, cannot by any stretch of imagination be expanded beyond the statutory allowance to warrant the application of the provision of the Act to persons other than those engaged the practice of advertisement.” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
MIC ROYAL LIMITED Appellant(s)
AND
ADVERTISING PRACTITIONERS COUNCIL OF NIGERIA (APCON) Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the Federal High Court, sitting in the Lagos Division, delivered by Ofili-Ajumogobia J. on the 4th day of December, 2014 in Suit No: FHC /L/CS/1140/2014 which is contained at pages 185 – 204 of the Records of Appeal wherein the Appellant’s Originating Summons was dismissed and judgment given in favor of the Respondent.
Piqued by the decision of the Lower Court, the Appellant filed Notice of Appeal on the 25th day of January, 2015 premised on six (6) grounds as contained at pages 205 – 215 of the Records of Appeal.
The Appellant’s Brief of Argument was filed by Chinedum Umeche Esq. on the 8th day of August, 2017. Appellant’s counsel also filed a Reply Brief on the 6th of April, 2018 and same was deemed as properly filed- and served on the 9th day of April, 2018. The Respondent’s Brief of argument on the other hand was filed by learned counsel Okorie Kalu on the 1st day of November 2017 but deemed as properly filed and served on the 9th day of April, 2018.
The Appellant’s counsel crafted 4(four) issues for determination as follows:
1. Whether the Lower Court was right when it held that the provisions of the Advertising Practitioners (Registration etc.) Act, CAP A7, LFN, 2004 and subsidiary legislation made pursuant thereto apply to the persons who are not engaged in the practice of the profession of adverstising?
2. Whether having regards to the facts of this case and the decision of this Honourable Court in the case of APCON V. The Registered Trustees of International Covenant Ministerial Council (ICMC) & Ors. (2010) LPELR 3630, the Lower Court was right to hold that the provisions of Articles 0.5, 0.7, 21 and 140 (b), (c) the Code is not inconsistent with provisions of the Section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)?
3. Whether the Lower Court was right when it held that the Code is not inconsistent with provisions of the Advertising Practitioners Council of Nigeria Act?
4. Whether the Lower Court was right to have considered and acted on the Respondent’s counter-affidavit and Written Address filed in opposition to the Appellant’s Originating Summons, same having been filed out of time permitted by the Federal High Court (Civil Procedure) Rules 2009?
The Respondent also distilled 4 (four) corresponding issues for determination as set out below:
1. Whether the Lower Court was right when it held that the provisions of the Advertising Practitioners (Registration etc.) Act, CAP A7, LFN, 2004 and subsidiary legislation made pursuant thereto apply to the persons, including the Appellant herein, who are not engaged in the practice of the profession of advertising?
2. Whether Articles 0.5, 0.7, 21 and 140 (b), (c) of the Nigerian Code of Advertising Practice and Sales Promotion, and other rights/restrictions on Practice (5th edition) are inconsistent with provisions of Section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which guarantees freedom to hold opinion, and to receive and import ideas and information without interference?
3. Whether the Nigerian Code of Advertising Practice and Sales Promotion, and other rights/restrictions on Practice (5th edition) is inconsistent with provisions of the Advertising Practitioners (Registration etc.) Act?
4. Whether having regards to the provisions of Order 1 Rule 5, Order 46 Rule 6 the Federal High Court (Civil Procedure) Rules 2009 and case law the Lower Court was right to have considered and acted on the Respondent’s counter-Affidavit and written Address filed in opposition to the Appellant’s Originating Summons.
SUBMISSIONS OF COUNSEL:
ISSUE ONE
Learned counsel for the Appellant referred paragraph 3 of the Appellant?s Affidavit at page 4 of the Records of Appeal to argue that there was unchallenged evidence before the Lower Court that the Appellant engages in funeral homes, carpentry and joinery trade; and that the Lower Court agreed that the Appellant is neither an advertising practitioner nor engaged in the business of advertising. Counsel relied on VACHER & SONS LTD VS. LONDON SOCIETY OF COMPOSITORS & ORS (1913) 3 ALL ER 241 and referred this Court to the long title of the Advertising Practitioners (Registration etc.) Act (APCON Act) to submit that the Long Title which is part of the Act itself tells the intent, purpose, scope and applicability of the Act which is to make provisions for the control of the practice of the advertising profession.
Learned counsel referred to the Black’s Law Dictionary, 9th Ed. to submit that ‘advertising profession’ as used in the APCON Act can only relate to those who are educated, skilled and are in the vocation of drawing public attention to something to promote its sale. Counsel referred to the functions of the Respondent pursuant to Section 1 of the APCON Act to contend that the Act was enacted to control the practice of those engaged in the profession of advertising. Learned counsel cited JAMES Vs NIGERIAN AIRFORCE [2000] 13 NWLR (Pt.684) Pg.406 at 426 to submit that the Respondent cannot go outside the scope of its functions as prescribed by the APCON Act and that any person, including the Appellant herein who is not engaged in the practice of the profession of advertising is not within the purview of the Act.
Learned counsel referred to APCON VS. THE REGISTERED TRUSTEES OF INTERNATIONAL COVENANT MINISTERIAL COUNCIL (ICMC) & ORS (2010) LPELR 3630; PSYCHIATRIC HOSPITAL MANAGEMENT BOARD VS. EJITAGHA (2000) 11 NWLR (Pt.677) pg. 154; MAYOR ETC OF WESTMINISTER VS. LONDON & NORTH-WESTERN-RAILWAY CO. (1905) AC 426 at 430 and AMASIKE VS. REGISTRAR GENERAL, CORPORATE AFFAIRS COMMISSION (2010) 13 NWLR (PT.1211) PG.377 to submit that the Lower Court erred in holding that individuals who are not advertising practitioners are within the purview of the APCON Act. Counsel argued that Section 1(d) and (f) of the APCON Act cannot be interpreted to mean that the Act applies to non-members of the advertising profession.
Learned counsel further referred to the findings of the Lower Court at page 17 of the judgment to submit that the Lower Court relied on Section 1(d) and (f) of the Advertising Practitioners Council of Nigeria Decree No.55 of 1988 which is different from the provisions of the APCON Act presently in force. Counsel referred to AMAECHI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION [2008] 5 NWLR (Pt.1080) Pg.27 at 437 and submitted that there is no legal justification for the Lower Court to have substituted the express words of the provisions of the Act with that of the Decree when the words used and the intentions meant are unequivocally different. Learned counsel concluded that the Respondent failed to justify that the APCON Act applied in the circumstances of this case or that it was empowered under the Act to rope in persons who are not engaged in the advertising profession.
In response to the Appellant’s submissions, learned counsel for the Respondent referred to ALIU BELLO Vs. A.G. OF OYO STATE (2006) NWLR (PT.1011) PG.373 to contend that the Long Title of an Act may only be used to ascertain the general scope of the Act; and that it is legally possible not to use only the Long Title in interpreting the scope and application of the Act especially where there are other means of interpretation that can be used to infer the general scope of the Act. Counsel referred to Section 1(d) and (f) of the APCON Act to submit that the Act gives power to the Respondent to regulate and control the practice of advertising and that where advertisement relates to matters of foods, cosmetics, beverages and drugs, such control and regulation is subject to the approval of the Minister of Health.
Learned counsel cited A.G. LAGOS Vs. A.G FEDERATION [2003] 14 NWLR (Pt.833) Pg.185-187, Paras.H-B and ADEWUMI Vs. A.G.EKITI STATE [2002] 2 NWLR (Pt.751) Pg.474 at 511-512, Paras. H-B to submit that the provisions of Section 1(d) of the Act is plain and unambiguous and therefore should be given its literal and ordinary grammatical meaning.
Counsel further referred to the Nigerian Code of Advertising Practice and Sales Promotion, and other Rights/Restrictions on Practice (5th Edition) (APCON Code) which was passed by the Minister of Information pursuant to the powers conferred on him by the provisions of Section 29 of the APCON Act. Learned counsel referred particularly to Articles 0.2, 0.3, 0.5 and 0.7 of the APCON Code to submit that the provisions of the APCON Act apply to all organizations, corporate bodies and individuals which are/who use advertising services and that an advertiser as defined under the code is a person or organization who/which causes an advertisement to be produced and is the sponsor and beneficiary of such advertisement. Counsel added that the Respondent has the power to regulate the conduct of the Appellant who on the 29th of May, 2014 advertised its services on the page of Punch Newspaper.
Learned counsel submitted that a juxtaposition of Sections 1(d) & (f), 3(1), 23 and 29 of the APCON Act as well as Articles 0.5 and 0.7 of the APCON Code undoubtedly points to the fact that the Respondent is saddled with the responsibility of not only regulating advertising professionals but advertising practice as a whole. Counsel further argued that the true intendment of an Act can be ascertained from the history behind the legislation and that in the instant case, the Advertising Practitioners council of Nigeria Decree No.55 of 1988, Cap.7 LFN,1990; the amendment thereto in Decree No.93 of 1992; and a further amendment made in Decree No.116 of 1993.
Learned counsel referred to Section 1(d) of the APCON Act and submitted that the functions of the Respondent today remain the same as it was under the Military Decrees which includes the mandate to regulate and control advertising practice as a whole. Counsel referred to SALOMON VS SALOMON (1897) AC 22 at 38 and submitted that the Lower Court was right when it considered the historical antecedent of the Respondent.
Learned counsel again referred to Sections 1(a) – (f), 3, 12, 17 and 23-25 the APCON Act as well as Articles 0.3 of the APCON Code to contend that even a literal approach to the provisions of the Act clearly discloses the widest possible powers of the Respondent to regulate the practice of advertising and the profession of advertising.
Counsel referred NIGERIA PORTS AUTHORITY VS. LOTUS PLASTICS LTD [2005] 19 NWLR (Pt.959) Pg.158 at 182, Paras.F-H; A.G. LAGOS Vs. A.G FEDERATION (Supra); ONOCHIE Vs. ODOGWU [2006] 6 NWLR (Pt.975) pg. 65 at 88-89, paras. A – E and NURTW Vs. RTEAN [2012] 10 NWLR (Pt.1307) Pg.170 at 195 and submitted that both the provisions of the APCON Act and the APCON Code should be considered and read together to determine the intendment of the National Assembly in making laws to regulate advertisement pursuant to Section 4 and the 2nd Schedule of the 1999 Constitution.
Learned counsel further referred to FCSC Vs. LAOYE (1989) ANLR pg. 350 at 374 to submit that it would be contrary to the intendment of the APCON Act for this Court to consider only the Long Title of the Acting, construing the intendment of the law makers. Counsel submitted that the Appellant by placing an advert in the Punch National Daily has for all intent and purpose become an advertiser within the con of the APCON Act and APCON Code and he must therefore conform with all the provisions of the law regulating and controlling advertising business which includes Section 23 of the APCON Act and Section 21 of the APCON Code. Counsel urged this Court to resolve this issue in favor of the Respondent.
In the Reply to the Respondent, learned counsel for the Appellant contended that the provisions of Sections 1(d) and (f) of the APCON Act are very clear and that it cannot be argued that the Act confers powers to regulate and control non-members of the advertising profession. Counsel argued that the Respondent’s submissions that the Minister is empowered to make laws to give full effect to the provisions of the Act by virtue of Section 29 of the APCON Act is an invitation to this Court to resort to presumption and inference not intended or expressed by the Act and discountenance the clear and unambiguous provisions of the Act.
Learned counsel referred to SALAMI vs. CHAIRMAN L.E.D.B. [1989) 5 NWLR (Pt.123) Pg.539 at 555; A.G.,FEDERATION Vs. A.G., LAGOS STATE [2013] 16 NWLR (Pt.1380) Pg.249; JOLLY TEVORU NYAME vs. FRN (2009) LPELR-CA/A/96C/08; Pg.170 at 196 and NNPC & ANOR Vs. FAMFA OIL LTD [2012] 17 NWLR (Pt.1328) pg.148 to submit that any regulation must be within the scope and application of the principal Act and that the power of the Minister to make regulations cannot exceed the powers delegated to him by the APCON Act.
ISSUE TWO
On issue number two, learned counsel for the Appellant submitted that Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Article 9 of the African Charter on Human and Peoples Right Cap. A9, LFN, 2004 provide for the right of every person to express himself or pass information without hindrance. Counsel referred to OKOGIE Vs. A.G., LAGOS STATE (1981) 1 NCLR Pg.218 to submit that the exercise of the right of freedom of expression guaranteed by the Constitution shall be without restrictions, hindrance or impediment of any sort. Learned counsel referred to Section 1(1) & (3) of the Constitution;LAFIA LOCAL GOVERNMENT Vs. GOV., NASARAWA STATE [2012] 17 NWLR (Pt.1328) Pg.94; FRN Vs. IFEGWU [2003] 15 NWLR (Pt.842) Pg.113 and ABACHA vs. FAWEHINMI [2000] 6 NWLR (Pt.660) Pg.228 to argue that the Constitution, being the Supreme Law of the Land prevails over any law that is inconsistent with its provisions and such inconsistent law shall be void to the extent of the inconsistency.
Learned counsel also contended that even the Courts appreciate and jealously guard the supremacy of the Constitution over any other law enacted by the National Assembly. Counsel referred A.G. ABIA STATE Vs. AG. FEDERATION [2002] 6 NWLR (Pt.763) Pg.264; A.G., ABIA STATE VS. A.G. FEDERATION [2003] 4 NWLR (Pt.809) Pg.124; FASAKIN FOODS (NIG) LTD VS. SHOSANYA [2006] 10 NWLR (Pt.987) pg.126 and A.G. ABIA VS. AG. FEDERATION (2006) 16 NWLR (Pt.1005) Pg.265 at 389 to submit that the provisions of Articles 0.5 and 0.7, 21 and 140 (b) and (c) of the Advertising Practice and Sales Promotion, and other Rights/Restrictions on Practice (5th Edition) Code are inconsistent with the provisions of Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in so far as they fetter the Appellant’s right to freedom of expression without interference.
Learned counsel submitted that the requirement in Article 21 of the APCON Code that all advertisements, except those excluded, must mandatorily be presented for vetting and approval by the Advertising standard Panel before exposure amounts to a form of censorship which affects the exercise and enjoyment of the constitutionally guaranteed right of freedom of speech and as such this Court is urged to hold that Article 21 of the APCON Code is illegal, and unconstitutional. Counsel referred to EKEJIUBA Vs. INEC & ANOR (2016) LPELR-40926 (CA); COTECNA INT?L LTD Vs. CHURCHGATE (NIG.) LTD. [2010] 18 NWLR (Pt.1225) Pg.345 SC; I.G.P. vs. A.N.P.P. [2007] 18 NWLR (Pt.1066) Pg.457 at 499 and A.G., FEDERATION Vs. ABUBAKAR [2007] 10 NWLR (Pt.1041) Pg.1 to further buttress his submission that the aforementioned provisions of the APCON Code and APCON Act are void for reasons of inconsistency with Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Learned counsel referred to the findings of the Lower Court at page 202 of the Records of Appeal and submitted that the Lower Court curtailed and totally removed the Appellant’s right to freedom of expression by holding that the Appellant has to engage the service of a registered advertising practitioner/professional before he can express his constitutional right to be heard. Counsel argued that the Lower Court erred in its conclusion that Section 45 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) restricts the Appellant’s right. Learned counsel argued that Section 45 of the Constitution is inapplicable to the facts and circumstances of the instant case and that it cannot be interpreted or used to restrict the exercise of fundamental rights.
Learned counsel referred to the facts in APCON VS. THE REGISTERED TRUSTEES OF INTERNATIONAL COVENANT MINISTERIAL COUNCIL (ICMC) & ORS. (SUPRA) and urged this Court to follow its earlier decision in that case as they are applicable to the instant case. Counsel submitted on the strength of ADETOUN OLADEJI (NIG.) LTD Vs. N.B. PLC [2007] 5 NWLR (Pt.1027) Pg. 415 at 436 that the Lower Court ought to have followed the decision of this Court in APCON VS. THE REGISTERED TRUSTEES OF INTERNATIONAL COVENANT MINISTERIAL COUNCIL (ICMC) & ORS.(supra). Learned Counsel urged that this issue be resolved in favor of the Appellant.
In response to the Appellant’s submissions learned counsel for the Respondent submitted that the APCON Act and the APCON Code made pursuant thereto are in consonance with the spirit and intendment of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and cannot be said to be inconsistent with the provisions of the constitution to the extent of warranting the Court to render void the provisions of Articles 0.5, 0.7, 21 and 140 of the APCON Code. Counsel argued that the Appellant’s case revolves around the unconstitutionality of a subsidiary legislation made pursuant to a statute; and that matters relating to the constitutionally or otherwise of a statute raise the issue of interpretation of the Constitution.
Learned counsel while referring to Section 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) conceded that the Constitution is Supreme and establishes the framework for all other laws in the Nigerian Legal system. Counsel contended that the doctrine of supremacy of the Constitution is however not absolute; that the Constitution itself qualifies the extent of supremacy of any of its provisions; and that the issues raised by the Appellant in this suit fall squarely within a justifiable and justified exception. Learned counsel referred to the provisions of Articles 0.5, 0.7, 21 and 140(b) and (c) of the APCON Code and also Sections 4(2), 11 and 45 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that the National Assembly may make laws for the Federation or any part thereof in the interest of defense, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons.
Learned counsel further submitted that pursuant to Sections 4(2), 11 and 45 of the Constitution,the APCON Act was passed for the regulation and control, of the practice of advertising; and that pursuant to Section 29 of the APCON Act, the Minister of Information passed the APCON Code to give full effect to the intendment of the Act by ensuring the promotion and maintenance of high ethical standards in the advertising industry. Counsel relied on ADENE Vs DANTUNBU (1994) 2 NWLR (Pt.328) pg.509 and SULEMAN VS. OSIDEINDE (1994) 2 NWLR (Pt.327) PG.477 to submit that subsidiary legislation has the force of law and derives its efficacy and binding legal strength from the principal legislation. Counsel also relied on UHUNMWANGHO Vs. OKOJIE [1989] 5 NWLR (Pt.122) Pg. 471 at 491 and submitted that the APCON Code is as efficacious as an Act of the National Assembly and therefore constitutional and valid by the combined effect of Section 315(1)(a) of the Constitution of the 1999 (as amended) and Sections 1(d), 3(1), 23 and 29 of the APCON Act.
Learned counsel for the Respondent referred to OSADEBAY Vs. A.G., BENDEL STATE [1991] 1 NWLR (Pt.169) Pg.525 and TOGUN Vs. OPUTA [2001] 16 NWLR (Pt.740) Pg.597 to submit that the APCON Act and the APCON Code made there-under remain valid as existing law within the meaning of Section 315 of the Constitution and that even where there is a conflict with Provisions of the Constitution, it remains valid subject to any modification to bring it into conformity with the extant constitutional provisions. Counsel argued that Section 39 of the Constitution is not absolute but it is made subject to Section 45 of the Constitution which curtails the rights of an individual in the interest of defence, public safety, public order, public morality or public health.
Learned counsel referred to IDEHEN Vs IDEHEN [1991] 5 NWLR (Pt.198) Pg.382 and Article 0.6 of the APCON Code to submit that the mischief which the APCON Act and the APCON Code was intended to combat was to curtail a situation where any person, either as advertising professional or otherwise is allowed to advertise without any form of regulation or control. Counsel cited NBN LTD Vs. SAVOL W.A. LTD [1994] 3 NWLR (Pt.333) Pg.435 at 468 to submit that the APCON Act and the APCON Code were legitimately made in the interest of public safety, public order, public morality and public health and remain valid and justifiable.
Learned counsel referred to NIGERIA PORTS AUTHORITY Vs. LOTUS PLASTICS (Supra) OSAWE vs. REGISTRAR, TRADE UNIONS [1985] 1 NWLR (Pt.4) Pg.755 to argue that the APCON Act and the APCON Code are therefore not inconsistent with any provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Learned counsel further referred BUHARI Vs. YUSUF [2003] 14 NWLR (Pt.841) Pg.446; INEC Vs. MUSA [2003] 3 NWLR (Pt.806) Pg.72 at 109; ADESANYA Vs PRESIDENT, FRN (1981) 2 NCLR 358 at 359 and A.G., BENDEL Vs. AG. FED. [1981] 10 SC 132 at 134 to submit that no provision of the Constitution is higher than the other and that the interpretation and application of the provisions of the Constitution must be in such a way as to give life to the spirit and intendment of each constitutional provision. Counsel further referred to DR. BASIL UKAEGBU Vs. A.G. IMO STATE (1983) ANLR 179 to restate that expression “without interference” used in Section 39 of the Constitution is qualified and made to be subordinate to Section 45 of the Constitution. Learned counsel argued that the case of APCON Vs. ICMC & ORS (2010) LPELR-3630 Pg.405 at 425 relied upon by the Appellant is inapplicable to the instant case and that the said decision is pending on appeal at the Supreme Court.
Learned counsel referred to CLEMENT VS. IWUANYANWU [1989] 3 NWLR (Pt.107) Pg.39 and DONGTOE VS. CSC PLATEAU STATE [2001] 4 SC (Pt.2) Pg.43 at 60 to urge this Court to take note of the doctrine of stare decisis and the fact that the Respondent relied on Supreme Court authorities unlike the Appellant. Counsel submitted that it would be totally improper for this Court to rely on the case of APCON Vs. ICMC & ORS (supra) in deciding this appeal because this Court did not make reference to or considered Section 45 of the Constitution in the said case. Learned counsel further referred to Sections 1 and 12 of the Interpretation Act and Section 315 of the Constitution to submit that any regulation made by the Respondent in line with its statutory powers for the purpose of regulating and controlling the practice of advertising as a whole is not inconsistent with any provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or with any other Statute because the said laws are reasonable and justifiable having been made in the interest of public safety, order and public morality. Counsel urged this Court to resolve this issue in favor of the Respondent.
In the Reply Brief, learned counsel for the Appellant submitted that the failure of the legislature to extend the applicability of the APCON Act to persons who are not advertising practitioners cannot be rectified by the Court in its interpretive jurisdiction because the Court lacks the vires to expand the frontiers of the APCON Act. Counsel relied on AMAECHI vs. INEC [2008] 5 NWLR (Pt.1080) 277 SC and AROMOLARAN Vs AGORO (2014) LPELR-24037(SC) to submit that the primary duty of the Court is to interpret the law as it ought to be; and that it is not the function of the Court to sympathize with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. Learned counsel cited Section 315 (3) of the Constitution and submitted that this Court has the judicial powers to nullify and hold the provisions of Article 0.5, 0.7, 21 and 140(b) of the APCON Code as inconsistent with the provisions of Section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
ISSUE THREE
On the third issue erroneously labeled as ‘issue four’ in the Appellant’s Brief, learned counsel for the Appellant submitted that the APCON Code which was made pursuant to Section 29 of the APCON Act must of necessity be limited to, or be in furtherance of the express objectives of the Act. Counsel submitted that the Minister of Information, cannot hide under any pre of giving effect to the provisions of the Act to make regulations that will modify, vary or alter the scope of powers expressly conferred by the Act or enlarge the intended scope of the applicability of the Act. Learned counsel relied on NNPC Vs. FAMFA OIL LIMITED [2012] 17 NWLR (Pt.1328) Pg.148 to submit the provisions of subsidiary legislations must conform to the provisions of the principal Act. Counsel further referred to COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTANCY AFFAIRS & ANOR VS. ONAKADE [2000] 13 NWLR (Pt.684) Pg.406 at 426 to submit that whatever is not expressly included or mentioned is excluded as express in the expression uniusest exclusion alterius – the express mention of thing is the exclusion of the other not mentioned.
Learned counsel contended that the APCON Act expressly provided that it was intended to regulate the advertising profession; and therefore, it cannot include people not expressly mentioned by the provisions of the Act. Counsel argued that the general provision of giving effect to the provisions of the Act cannot be interpreted to include changing the scope and applicability of the Act as intended by it. Counsel further submitted that the Minister who is not a member of the legislature cannot be said to have been delegated the power to add to the scope of the Act which would amount to saying a Minister is clothed with the power to amend an Act of the National Assembly through executive fiat. Learned counsel therefore urged this Court to hold that the APCON Code which purports regulate persons who are not advertising practitioners, like the Appellant herein, is inconsistent with the provision of the Act and as such is null and void.
The learned counsel for the Respondent on the third issue adopted its earlier submissions under issues No.1 and 2 and referred to Sections 1(d) & (f), 23 and 29 of the APCON Act as well as the preamble down to Article 0.5 of the APCON Code to reiterate that the Minister is empowered to make regulations like the APCON Code which clearly give effect to the intendment of the Act by providing for the regulation and control of the profession and practice of advertising.
Counsel submitted that the Appellant practiced advertising by virtue of the advert it placed in the National Dailies and therefore bound to obey the provisions of the APCON Code. Learned counsel relied on PRINCE ODENEYE Vs. EFUNUGA [1990] 11-12 SC 122 and contended that Section 12 of the Interpretation Act, CAP 123 LFN, 2004 allows for the making of subsidiary legislations and that such legislations have the force of law provided they are consistent with the principal legislation; and that in the instant case, the provisions of the APCON Code are consistent with the provisions of the APCON Act. Learned counsel therefore urged this Court to resolve this issue in favor of the Respondent.
In the Reply Brief, learned counsel for the Appellant contended that the purpose of Section 45 is neither to create censorship which is the control of the information and ideas circulated within the society nor is it intended to limit the right of freedom of expression. Counsel further submitted that the provisions of Article 21 of the APCON Code which makes it mandatory for adverts to be presented to the ASP (Advertising standard Panel) for vetting and approval is unconstitutional, null and void. Learned counsel further submitted that the argument that the case of APCON Vs. THE REGISTERED TRUSTEES OF INTERNATIONAL COVENANT MINISTERIAL COUNCIL (ICMC) & ORS (supra) is inapplicable because Section 45 of the Constitution (as amended) was not considered in that case is a misconception by the Respondent which this Court should discountenance because this Court considered the fact that there are laws which could derogate from constitutional rights contained in Chapter 4 of the Constitution.
ISSUE FOUR
On the fourth issue, which the learned counsel for the Appellant also erroneously labeled as ‘issue five’, it was argued that the Respondent’s Counter-Affidavit and Written Address filed in opposition to the Originating summons was filed on the 17th of September, 2014 which is clearly outside the 14 days permitted by Order 13 Rule 35 (15) of the Federal High Court (Civil Procedure) Rules, 2009 considering that the Originating Summons dated and filed on the 4th of August, 2014 had been served on the Respondent since the 12th day of August, 2014.
Counsel referred to the proceedings of the Lower Court on the 15th day of October, 2014 and the findings of the Lower Court at pages 176-177 of the Records of Appeal to submit that the Lower Court despite agreeing with the Appellant that the Respondent’s Counter-Affidavit was filed out of time still proceeded to rely on the said processes and the submissions therein.
Learned counsel further submitted that the Respondent did not seek and obtain leave to regularize the late filing of its Counter-Affidavit. Counsel referred to MUSTAPHA Vs. SUNTAI & ORS (2013) LPELR-CA/YL/38/2013 to submit that processes filed outside the prescribed and permitted time by the relevant rules is incompetent and by implication in the instant case, there was no reply on points of law to the Appellant’s originating Summons. Learned counsel referred to page 199 of the Records of Appeal to submit that the lower Court violated the Appellant’s constitutional right to fair hearing.
Learned counsel referred to OTU BASSEY EKPENETU VS. MWAFA OFEGOBI [2012] 15 NWLR (Pt.1323) Pg.276; BAMGBOYE Vs. UNIVERSITY OF ILORIN [1999] 10 NWLR [Pt.622] Pg.290 and BUZU vs. GBARABI [2000] 13 NWLR (Pt.684) Pg.227 to submit that once the Appellate Court finds that a party entitled to be heard was not given the opportunity of a hearing before a decision was reached, the decision will be declared a nullity and set aside. Counsel urged this Court to allow this appeal and set aside the judgment of the Lower Court.
On this issue, learned counsel for the Respondent referred to Order 13 Rule 35(15) of the Federal High Court (Civil Procedure) Rules, 2009 to submit that the time within which to file a counter-affidavit to an Originating Summons is 14 days after its service and that Respondent’s processes filed on the 17th of September, 2014 were filed within time. Counsel argued that on the 15th of October, 2014, when the Appellant?s counsel raised the issue of the Respondent’s process having been filed out of time and the Lower Court at pages 176-177 of the Records in addition to finding that the Respondent’s counter-affidavit was filed out of time invited the parties to file written address within 7 days to address the issue. Counsel further argued that the Lower Court asked if the Respondent wanted to file a Reply to the Respondent’s counter-affidavit to which the Appellant said no.
Learned counsel for the Respondent relied on Order 3 Rules 6 & 7 of the Federal High Court (Civil Procedure) Rules, 2009 and WAKWAH vs. OSSAH [2002] 2 NWLR (Pt.752) Pg.548 at 551-562, paras. F – B to further contend that an originating summons is used to commence an action where the principal question is one of construction of a written law or an instrument made under any written law or of any deed, will or contract or other document or some other question of law and where there is unlikely to be any substantial dispute of facts. Counsel further referred to NNPC Vs. FAMFA OIL LIMITED (Supra) at Pg.189, Paras. E-F; AGBAKOBA VS. INEC [2008]18 NWLR(Pt.1119) Pg.549, Paras. D-E; Order 13 Rule 4 & 5 of the Federal High Court (Civil Procedure) Rules, 2009; Black’s Law Dictionary, 6th Edition;. Pg. 1151 to submit that the Affidavits and written addresses of both parties served as pleadings; but that the Originating Summons itself is not a pleading.
Learned counsel referred to OJUKWU Vs. YARADUA [2008] 4 NWLR (Pt.1078) Pg.461, Para. B; OLALOMI IND LTD Vs. N.I.D.B. LTD [2009] 16 NWLR (Pt.1167) PG.266 SC; BALONWU V. GOV OF ANAMBRA STATE [2009] 18 NWLR (Pt.1172) Pg.13 SC; GROSVENOR CASINO VS. HALAOUI [2009] 10 NWLR (Pt.1149) Pg. 309 SC and ADEWUMI vs. A.G., EKITI STATE [2002] 2 NWLR (Pt.751) Pg.474 at 511-512, Paras.H-B to submit that by the clear provisions of Order 1 Rule 5 of the Rules, a Counter-Affidavit is a pleading. Counsel referred to Order 46 Rule 6 of the Federal High Court (Civil Procedure) Rules, 2009; NIGERIA LIQUEFIED GAS LIMITED vs. ADIC [1995] 8 NWLR (Pt. 416) Pg. 677 at 697 and ONOCHIE VS. ODOGWU [2006] 6 NWLR (Pt.975) Pg.55 at 89 to submit that the time for filing and service of the pleadings of both parties in the instant case shall not in view of the fact that the Originating summons was served on the 12th of August, 2014 during the annual Court vacation.
Learned counsel submitted that time only began to count in respect of the Originating Summons on the 15th day of September, 2014 when the Lower Court’s vacation ended and that the Respondent’s Counter-affidavit filed on the 17th of September, 2014 was therefore filed within time in accordance with the Rules of Court. Counsel said that the Lower Court acted appropriately when it determined the suit based on the pleadings filed by the parties. Learned counsel submitted that the Appellant who had the chance but chose not to file a Reply cannot be said to have been denied fair hearing.
Learned counsel further contended that on the strength of E.B. UKIRI VS. GEO PARAKA (NIG) LTD (2010) 16 NWLR (Pt.1220) Pg.544 SC; MOBIL VS. MONOKPO (2003) 18 NWLR (Pt.852) Pg.411, Paras. A – B; ODUA INVESTMENT VS. TALABI (1997) 10 NWLR (Pt.523) pg.52, Paras. E – F and FAMFA OIL LIMITED VS. A.G., FEDERATION [2003] 18 NWLR (Pt.852) Pg.468, Paras. A – B that assuming the Respondent’s Counter-affidavit was not filed within time, it is an irregularity which will not vitiate the process unless it will occasion a miscarriage of justice…. Counsel urged this Court to consider the merits of the processes filed and do substantial justice as against technical justice; and to dismiss the Appellant’s appeal with substantial cost.
In Reply, learned counsel for the Appellant referred to ETIM VS. P.D.P & ORS (2016) LPELR-40129 and INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt.1025) Pg.423 at 701 to submit that pleading have no place in an action commenced by Originating Summons. Counsel submitted that the submission of the Respondent that the Respondent’s Counter-affidavit and Written Address were field within time is of no moment in the face of the findings of the Lower Court at page 176-177 of the Records of Appeal that they were filed out of time. Counsel referred to NWAOLISAH VS. NWABUFOH [2011] ALL FWLR (Pt.591) Pg.1439; ADEWALE & ANOR Vs. ADEOLA & ORS (2015) LPELR (CA); SPDC NIG LTD Vs. EDAMKUE & ORS (2009) LPELR-304(SC); IYOHO Vs. EFFIONG [2007] 4 SC (Pt.111) Pg. 90 and AMALE VS. SOKOTO LOCAL GOVERNMENT & ORS (2012) LPELR-7842(SC) to submit that the Respondent did not appeal against the findings of the Lower Court and that there is nothing on record to show that the Respondent’s processes were regularized or deemed as properly filed by the Lower Court. Counsel again urged this Court to allow this appeal.
RESOLUTION
In the determination of this appeal, I will consider the four issues nominated. Considering the nature of the question crafted for determination under issue No. 4, I think it is necessary to first determine same, as a determination of the said issue may have the effect of rendering the other issues moot. The issue is whether :Whether the Lower Court was right to have considered and acted on the Respondent’s Counter-Affidavit and Written Address filed in opposition to the Appellant’s originating summons, same having been filed out of time permitted by the Federal High Court (Civil Procedure) Rules 2009.
The Appellant’s originating Summons was dated and filed on the 4th of August, 2014, and served on the Respondent since the 12th day of August, 2014; the Respondent’s Counter. Affidavit and Written Address filed in opposition to the originating summons was filed on the 17th of September, 2014. The Appellant argued that the Counter-Affidavit was filed outside the 14 days limited by the Rules of Court Order 13 Rule 35(15) of the Federal High Court (Civil Procedure) Rules, 2009.
The Respondent on the other hand argued that its counter-Affidavit was filed within time because by virtue of Order 46 Rule 6 of the Federal High Court (Civil Procedure) Rules, 2009, the Appellant’s Counter affidavit qualifies as a pleading and that since it was served during the vacation, time would not count.
The Appellant relied on the comments by the Lower Court in the proceeding of 15th October, 2014 at pages 176-177 of the Records of Appeal that the Respondent’s counter-Affidavit was filed out of time. The learned trial Judge said: ”I have listened. After considering the submission of both counsel I am of the opinion that the Defendants counter’ Affidavit was filed out of time.”
The Lower Court however proceeded to order that Appellant should file a Written Address apparently to address it on the issue and that the Respondent should file a Reply upon receipt of the Appellant’s Written Address. On the 20th day of October, 2014 the Appellant filed a Written Address pursuant to the order of Court on the issue of the counter-Affidavit being filed out of time, the Respondent did not file any Reply.
The Lower Court thereafter proceeded to deliver its judgment on the 4th day of December, 2014 without considering or addressing the Appellants written Address dated 20th October, 2014 addressing it on the fact that the Respondent’s counter-Affidavit was filed out of time. In the circumstance, I think the Lower Court; having admitted and found that the Respondent’s Counter-Affidavit was filed out of time ought to have struck out the said process. The Lower Court also failed to consider the Appellant’s written Address which it ordered the Appellant to file. See NNPC Vs. ZARIA & ANOR (2014) LPELR-22362(CA) Pg.52, Paras. A-E where this Court held as follows ”…it is trite that a trial Court has an abiding duty to consider and pronounce on all issues raised before it and its judgment must demonstrate a full and dispassionate consideration of all such issues’ the Court is bound to consider every material aspect of a party’s case validly put forward In arriving at a decision a Court of law has compelling obligation to demonstrate full and undoubted understanding of the facts and the basis of the decision, the decision of the Court must demonstrate full and dispassionate consideration of the issues submitted for determination, material points submitted to the Court must be determined.
I was granted the privilege of writing the lead judgment in MR. TAJUDEEN IBIKUNLE & ANOR Vs. AIR FRANCE (2015) LPELR-25773(CA), in that Judgment this Court held as follows and I quote:
Material issues must be considered by the Court such as, the law applicable to the issues and the facts involved. Failure to take critical details from the submissions of parties into account by the Court in arriving at a decision may lead to failure of justice occasioned by denial of fair hearing, SEE: OVUNWO & ANOR VS. WOKO & ORS (2011) LPELR-2841 (SC).
The failure by the trial Court to consider the written address it ordered the Appellant to file is a fundamental breach to the right of the Appellant to fair hearing, such omission is sufficient to vitiate the decision of the lower Court, and render the entire process null and void. In CHIEF NKEREUWEM UDOFIA Vs. FRN (2011) LPELR-3956 (CA) my lord and learned brother NWODO JCA (of blessed memory) said as follows:
“The issue of fair hearing may arise when a party submits an issue for determination before the Court and the Court fails to pronounce on it. In Samba Pet & Anor vs. UBA Plc & 3 ors (2010) 5-7 SC (Pt.11) 22. The Supreme Court per Muhammed JSC held: “It is thus, a statutory responsibitity of all Courts to consider adequately and properly all issues placed before them. Failure to do so will lead to denial of fair hearing which is capable of rendering any proceedings a nullity.”
Rules of Court must be obeyed and where there is noncompliance with the Rules, the Court must not be passive, in-active and helpless. Non-compliance with the Rules of Court must be met with sanction, otherwise the purpose of the rules will be defeated and rendered meaningless, See: OBA AROMOLARAN & ANOR VS. OLADELE & 2 ORS (1990) 7 NWLR (Pt.162) 359. Rules of Court are not only meant to be obeyed, they are also binding on all the parties in litigation before the Court, see: AJAYI & ANOR Vs. OMOROGBE (1993) 7 SCNJ (Pt.1)168. Compliance with the rules of Court is a must unless such compliance is waived. See: G. M. O NWORAH & SONS COMPANY LTD V. AKPUTA (2010) LPELR-1296 (SC) PG.23, Para. E ? F and DINGYADI VS. INEC (2010) LPELR-952 (SC) Pg. 33, Paras. A – D.
I must state at this stage that I am also fully conscious of the decision of the Supreme Court of Nigeria in FRN Vs. DAIRO & ORS (2015) LPELR-24303(SC)Pg.62-63, Paras G-D and several other similar decisions where the Courts held the view that substantial justice must be accorded priority over and above technicalities. In other words justice must not be sacrificed to the altar of technicalities, this position of the Courts is not an approval for litigants to embark on deliberate and outright disobedience to Rules and Orders of Court. Apart from filing its Counter-Affidavit out of time as prescribed by the Rules of Court and as rightly found by the trial Court, the Respondent failed to obey the order of the Lower Court directing it to file Reply to the Written Address of the Appellant on the issue despite the fact that the Lower Court made a finding against it on the 15th October, 2014.
Justice must be done in accordance with the law. The law is settled that whoever seeks for the intervention of equity must approach the court with clean hands, a recalcitrant party in litigation cannot earn the sympathy and intervention of equity. See AIZEBOJE VS. EFCC (2017) LPELR-42984 (CA) Pg.22, Para.B.
In OKOROCHA VS. PDP & ORS (2014) LPELR-22058 (SC) PG.45, paras. A – D, OGUNBIYI JSC said as follows: “The rules of Court are to be obeyed for purposes of protecting the sanctity and dignity of the law and Court. He who comes to equity must come with clean hands which presuppose diligence and care. In light of the foregoing, I am inclined to resolve this issue in favor of the Appellant against the Respondent. I must also hold that the Lower Court was in grave error when the Court failed to consider the Appellant’s written Address dated 20th October, 2014 contained at pages 179 – 183 of the Records of appeal in its judgment, the Lower Court also erred in proceeding to consider the Respondent’s Counter-Affidavit having held that same was filed out of time. There was no application to regularize the said counter affidavit, there was no Reply to the Appellant’s Written Address dated 20th October, 2014. I think the learned trial Judge was in grave error having failed to consider the written address filed by the appellant. The Lower Court was obviously wrong, the decision reached by the Lower Court is therefore a nullity. The decision of the Court dismissing Appellants suit is therefore perverse having been founded on denial of fair hearing. This issue is resolved in favor of the Appellant against the Respondent.
Having held the view that the decision of the Lower Court is a nullity, the natural decision would be for this Court to remit the suit to the Lower Court for retrial. However, I am conscious of the need for intermediate Courts to proceed to pronounce on other issues and in line with the decisions of the Supreme Court in OVUNWO & ANOR vs. WOKO & ORS (2011) LPELR – 2841 (SC); OBISI V. CHIEF OF NAVAL STAFF (2004) LPELR – 2184 (SC), I will invoke the general powers of this Court under Section 15 of the Court of Appeal Act, 2016 which empowers this Court to have full jurisdiction over the whole proceedings if the proceedings had been instituted in the Court of Appeal. There is no doubt that the real issue raised by the Appellant’s originating summons are capable of being sustained by the six (6) grounds of appeal contained in the Notice of Appeal filed by the Appellant. It is also plain that all the necessary materials are available before this Court for consideration, and it will be unfair, considering the circumstances of this case, to remit the suit to the Lower Court as so doing may entail substantial time wasting and expose the litigation process to be unduly prolonged. See EZEIGWE Vs. NWAWULU & ORS (2010) LPELR-1201 (SC); INAKOJU & ORS Vs. ADELEKE & ORS (2007) LPELR – 1510 (SC). I shall therefore consider the other issues adopted by the parties in this appeal.
Now, the issue to be considered first is whether the Lower Court was right when it held that the provisions of the APCON Act and any subsidiary legislation made pursuant thereto apply to persons who are not engaged in the practice of the profession of advertising?
I have given careful consideration to the submissions of learned counsel on the other relevant issues in this appeal. It is the contention of learned counsel for the Appellant that the Appellant, does not engage in the practice of the profession of advertising, and cannot therefore be bound by the provisions of the APCON Act; the Respondents’ learned counsel contends to the contrary. Now, the relevant statute in this case is the Advertising Practitioners (Registration etc) Act, CAP A7, LFN, 2004, which establishes the Respondent. It is instructive that the question to be resolved here relates to the scope and extent of the Act; and it appears both the Appellant and Respondent’s Learned counsel are not in agreement that this is discoverable from the Long title of the Act.
While the Appellant is of the view that the Long Title shows the intent of the legislature and the purpose for which the Act was enacted; the Respondent’s counsel argues that it is legal and logical not to use only the long title in interpreting the application of a statute, urging the Court to also construe the provisions of Section 1 of the Act.
Without doubt, long title can be relied on to discern the purpose and scope of a statute; however, it must be said that where the statute is clear and unambiguous, it will be unnecessary to resort to the long title for purposes of interpretation. See the decision in BELLO & ORS vs. AG. OYO STATE (1986) LPELR -764 (SC), where it was held as follows:
“The long title of a statute is now accepted as an important part of it and may be relied upon as explaining its general scope and aids in its construction. Thus, in this case, the general scope of the Torts law as stated in the long title is inter alia to provide the compensation of the families of deceased persons kitted by accident. However… resort is only to be had to the long title to resolve ambiguity. It is not permissible to look at the scope of the long title to modify the interpretation of the plain words of the section….”
Having sought guidance from the Supreme Court, it is my view that the starting point under this issue is to consider the relevant section of the Act, and if it is discovered that there is any ambiguity, resort can be made to the long Title in discovering the scope of the Act.
It is common knowledge that Section 1 of the APCON Act expansively enumerated the functions of the Respondent; the section reads:
”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 –
a. Determining who are advertising practitioners.
b. 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;
c. 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 list of those persons;
d. Regulating and controlling the practice and advertising subject to the approval of the Minister of Health, where the advertisement relates to matters of foods, cosmetic, beverages and drugs;
e. Conducting examination 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.
f. Performing the other functions conferred on the council by this Act.
It is not in doubt that learned Counsel for the Respondent urged the Court to construe the provisions of Section 1(d) supra to the effect that it gives power to the Respondent to regulate and control the practice of advertising and where the advertisement relates to matters of foods, cosmetics, beverages and drugs, such control and regulation is subject to the Minister of Health’s approval. With greatest respect, I cannot pretend that I am fully with the learned counsel on this contention. I have closely read and re-read the entire 31 sections of the Act, and I have no doubt in my mind that the scope and extent of the APCON Act is limited to the regulation and control of practitioners of the profession of advertising. The intention of the Nigerian Legislature in enacting the APCON Act is in my view to regulate the practice of the profession of advertising or simply put, regulate the affairs of those engaged in the profession of advertising.
Section 1(d) relied upon by the Respondent is clear and plain to the effect that in matters under the scope of the Act, bordering on advertisement relating to food, cosmetics, beverages, and drugs, the approval of the Minister of Health must be obtained. As the Appellant’s counsel rightly submitted, Section 1(d) does not in any way confer powers to regulate or control non-members or persons not engaged in the practice of the profession of advertising. It is clearly visible that the section only circumvents the blanket powers of the Respondent to regulate and control persons engaged in the practice of advertisement, with a qualification that where the advertisement relates to the items mentioned therein, the Minister must give approval.
In my view, the purpose of the APCON Act is obviously to regulate the activities of any person who is engaged in the advertisement profession and no more. This view is complemented and even made clear and visible from the Long Title of the Act, which states that the purpose of enacting same is “establish a council for advertising practitioners and to make provisions for the control of the practice of the profession of advertising.” As I have earlier mentioned, a title of a statute, both long and short are meant to provide a guide for its construction but not to control its clear provision.
See:IBRAHIM Vs. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1997) LPELR – 1408 (SC).
In the instant case, the clear provision of Section 1 of the APCON Act is that the Act was enacted to regulate the practice of the profession of advertising and in essence persons engaged in that profession and not nonmembers.
This is because to ascribe to the relevant provisions of the Act any expansive and loose meaning, as the Respondent has urged, would amount to importing into the words of the statute, such additional meaning, which were not provided there in the first instance by the legislature; that exercise is not within the domain of the Court, because in the interpretation of a statute, the duty of the Courts of law is limited to interpreting the words used by the legislature; it is neither within the province of the Courts nor do they have the vires to circumvent the clear intention of the legislature. As the Supreme Court aptly said in IBRAHIM Vs. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (Supra) to do so would naturally mean to usurp the functions of the legislature under the guise of judicial interpretation.
The argument by the Respondent that the APCON Act is applicable to the Appellant was sternly resisted by the Appellant’s Learned counsel and I am convinced that the contention of the Appellant is well founded because it is undisputed that the Appellant is not engaged in the practice of the profession of advertising but as stated at paragraph 3 of the Appellant’s Affidavit filed in support of the Originating Summons at page 4 of the record of appeal, the Appellant is engaged in the business of funeral homes; carpentry and joinery trade and also carries on business of manufacturing. There is nothing on record showing that the Appellant had engaged in practicing the profession of advertising, which the Act relates to, but it seems clear to me that the Appellant had only exercised its right to operate its own medium of disseminating information which is permitted under Section 39 of the 1999 Constitution.
There will be no need to engage in a voyage of discovery to consider and determine the two other issues relating to the purported inconsistency of the Nigerian Code of Advertising Practice and Sales promotion and other Rights/Restrictions on Practice (5th Edition) with the APCON Act and the latter with the provisions of the 1999 Constitution; because having found that the Act is inapplicable to the Appellant, the latter lacks the locus to challenge the purported inconsistency.
However, before I draw the curtain on this appeal, I wish to draw the attention of the Respondent once again to the opinion expressed by PETER-ODILI, JCA (now JSC) in APCON Vs. INTERNATIONAL COVENANT MINISTERIAL COUNCIL (Supra) as follows:
what the Appellant seem to be after is to force into membership of the advertising practitioners, persons or bodies or establishments who have neither the inclination nor the interest to become same? The sum total of what the Appellant is pushing forward is to forcibly make members, those who cannot be and who are completely outside the purview of the Act. The Council is better advised to keep its tentacles within its authorized membership and leave well alone person not within their scope or profession
It is instructive that the facts of the above case are substantially impari materia with those in this case, because in that case, consequent upon the receipt of a letter from the Respondent herein, APCON, requesting them to submit their religious advertisements for vetting to avoid sanction from APCON, the Plaintiff/Respondent had filed an action at the Federal High Court, Abuja Division, where the Court upheld the Plaintiff/Respondent’s contention that the APCON Act imposed a restriction on their freedom of worship guaranteed under Section 38 of the 1999 Constitution. Of particular importance to the issue at hand, the Lower Court held, and same was affirmed by this Court, that the Respondents therein, who are Religious Groups, and not being advertising practitioners are not bound by the provisions of the APCON Act. Speaking for myself, and for all the reasons I have advanced supra, and contrary to the erroneous conclusion of the learned trial judge, I entertain no doubt that the decision of this Court in the above case is applicable herein.
In conclusion, I hold the view that the learned trial judge was clearly wrong in law in holding that the Appellant, a person not engaged in the practice of the profession of Advertising can be regulated by the provisions of the APCON Act.
The end result is that Appellants appeal has merit and is therefore allowed, the judgment of the Lower Court delivered on the 4th day of December 2014 by OFILI-AJUMOGOBIA J, is hereby set aside.
Parties in this appeal shall bear their respective costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Tijjani Abubakar, JCA, made available to me the draft of the leading judgment which has just been delivered.
The reasoning and conclusion in the leading judgment are in accord with my views. I consequently adopt the reasoning and conclusion therein as mine and equally join in allowing the appeal.
I abide by the consequential orders made in the leading judgment, inclusive of the order as to costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege of reading in draft the leading judgment of my learned brother, TIJJANI ABUBAKAR, JCA, just delivered. His Lordship has comprehensively considered and resolved the relevant issue(s) in contention in this appeal.
I agree with the reasoning and conclusion that the relevant provisions of the Advertising Practitioners (Registration etc.) Act, Cap A7, Laws of the Federation of Nigeria, 2004 does not apply to the Appellant, who from the settled fact on record, is not engaged in the practice of the advertising profession.
It remains to be emphasised that the duty of the Court is to expound the law and not to expand the law; its duty in the construction of a Statute is to primarily expose the manifest intention of the legislature. Where the language of the Statute is clear and unambiguous, the duty of the Court is limited to accord them their ordinary meaning. See AMAECHI v INEC & ORS (2008) LPELR 446 (SC); BRITTANIA-U (NIG) LTD v SEPLAT PETROLEUM DEVELOPMENT CO. LTD & ORS (2016) LPELR – 40007 (SC); AGBITI v NIGERIAN NAVY (2011) LPELR 2944 (SC). In the instant case, the learned trial judge failed to do so, the conclusion reached by here is thus liable to be set aside. A conflation of the Long Title of the APCON Act as well as Section 1 of the Act, cannot by any stretch of imagination be expanded beyond the statutory allowance to warrant the application of the provision of the Act to persons other than those engaged the practice of advertisement.
It is in light of the above reasons and the elaborate ones contained in the leading judgment that I agree that the present appeal is meritorious and is hereby allowed. I abide by the consequential order as to costs made in the leading judgment.
Appearances:
C. I. Umeche with him, S. I. Iwuoha, C. Ahunaya, F. Saliu Bello and I. AjiboyeFor Appellant(s)
N.K.O. Oragwu with him, O. Anozie and A. Abdul-SalamFor Respondent(s)
