NPAN/APCON advert rift: Court rules case to continue

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By BARTHOLOMEW MADUKWE
The disagreement between Registered Trustees of the Newspaper Proprietors Association of Nigeria (NPAN) and Advertising Practitioners Council of Nigeria (APCON) over placement of adverts on newspapers would soon be laid to rest as a Federal High Court in Lagos yesterday ruled that the matter be continued.

In a ruling, Justice Musa Kurya held that justice cannot be slaughtered in one hand and ordered that cost be paid to the 1st defendant (APCON) before the next adjourned day, saying “on November 21, they came to court to argue the issue of cost. On the other hand, the learned counsel cannot say cost would not be paid.”

At the resumed hearing, Counsel for NPAN, Mr. Tayo Oyetibo (SAN), opposed APCON’s motion challenging the locus standi of his client saying “the summary of the plaintiff is that Articles 21 and 137(a) of the Nigerian Code of Advertising Practice and Sales Promotion are ultra vires (beyond the powers) of APCON, which adversely affects the right and interest of Media House Owners, who are members of the plaintiff’s association (Registered Trustees of the Newspaper Proprietors Association of Nigeria).”

Urging the court to hold that the plaintiff has locus standi, Oyetibo said the plaintiff claim is not as to the harassment of its employer by the defendants, adding that the peak and substance of plaintiff case is the Constitutionality of Article 21 and 137(a) of the advertising code.

“Under the administrative law, a person who had been, has been or is likely to be affected by a particular statutory provision can go to court to complain. Article 21 and 137(a), which the plaintiff is complaining against did not mention employers but media houses” he added.

Oyetibo submitted that APCON has no power to control the right of Media House Owners by asking them to present their adverts to APCON before any publication, adding that Articles 21 and 137(a) of APCON’s Code expressly measures media houses as target and the plaintiff is an association of media house owners, comprising of more than 20s media houses.

“There is no separate interest of the plaintiff with that of media houses. The plaintiff has no other business but to protect the interest of media houses. This is why the plaintiff has standi to come to the court to complain” he said.

In an objection, APCON’s lead counsel, Mr. A. Idigbe (SAN), told the court that the plaintiff does not have the standi to initiate the action, looking at what is filed by the plaintiff originating summon.

Idigbe said that in paragraph 12, 13, 14, 15, 16 and 17 of the affidavit in support, the plaintiff has admitted that the complained and regulatory action was against named staff and employees of NPAN members, noting that the named staff and employees are not members of the plaintiff.

He told the court that owners of newspapers coming out to fight APCON for inviting its staff to the police and their statements taken is simply “busy-body”, adding that they do not have any business in the matter but the staff that have business in the matter.

According to him, “the regulatory action is against the practice of advertising by individuals. These individuals are not members of the plaintiff. So the action of the plaintiff is not targeted at protecting its members but at protecting its non members who happen to be his employees.”

Idigbe argued that for the court to have jurisdiction, under section 6 of the 1999 Constitution of the Federal Republic of Nigeria, there must be controversy between the plaintiff and 1st defendant.

“The code states the basic principle of advertising in Nigeria, which should be legal, decent, honest, truthful and mindful of Nigeria’s culture. All advertisement must be prepared with a due sense of social responsibility and done in a manner that will not put advertising to dispute” he stressed.

Urging the court to dismiss the case, Idigbe said that the dispute was with the professional practicing advertising, who are first to have a certificate from APCON, before placing any advert on newspaper, adding “but at this stage, let the employees go to the regulators and sort out themselves.”

After listening to the argument of both counsels, Justice Kurya adjourned the case to December 13 for ruling.

The newspaper owners had filed an originating summons brought pursuant to Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009, on the ground that APCON does not have the power to regulate the activities of the plaintiffs members or any of their employees who are not registered members of APCON or practising advertising.

In the suit, NPAN is asking the court to make a declaration that Articles 21 and 137(a) of the Nigerian Code of Advertising Practice and Sales Promotion are ultra vires (beyond the powers) of APCON in so far as the provisions of the Articles affect media houses who do not practise advertising.

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