IN THE FEDERAL HIGH COURT HOLDEN AT LAGOS, NIGERIA
ON THURSDAY, FEBRUARY 25, 2010
BEFORE A. M. LIMAN
JUDGE
SUIT NO: FHC/L/CS/1324/99
BETWEEN:
MALLAM ISMAILA ISA,  SAMAMUKA,  RAY EKPU, CHIEF AJIBOLA OGUNSHOLA,   NDUKAOBAIGBENA,   LADE BONUOLA, for themselves and on behalf of other Members of the Newspaper Proprietors Association of Nigeria,  (Plaintiffs)
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA,   ATTORNEY-GENERAL OF THE FEDERATION, . MINISTER OF INFORMATION,  NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC of  NIGERIA (Defendants)

JUDGMENT

However, the difficulty the  proposition presented was its inherent stricture, its narrow interpretative perimeters that appeared to overlook the broad concept of legislative jurisdiction over general matters that could only be legislated by the National Assembly, because it then extend beyond the boarders of individual states. Secondly, Sections 4(3) and (4) of the Constitution in my view do not provide an exhaustive, limited definition of the scope of the legislative powers of the National Assembly given the fact that subsection (4).  Section 4 (4) (b) which provides as followr.-  “any other matter with respect to which it is empowered to make laws in accordance with the provision of this Constitution”.

Paragraph (b) in my respectful view, expands the legislative powers of the National Assembly to make laws in addition, with respect to matters contained in the legislative list, can legislate on any matter it empowered by the Constitution.  The proposition is supported by the decision of the Supreme Court in the case of ATTORNEY GENERAL ONDO STATE VS ATTORNEY GENERAL OF THE FEDERATION, PER UWAIS CJN in which he stated the following.  “It is submitted that “corruption” is not a subject under either the exclusive legislative list and therefore being a residual matter, the National Assembly has no power to legislate upon it.

This submission overlooks Section 4(4) (b) of the Constitution which provides that the National Assembly has the power to legislate on any matter with respect to which it is empowered to make law in accordance with provision of the Constitution”. The case of A. G. ONDO STATE (supra) lays to rest the contention as to whether the National Assembly has a broader legislative powers beyond the items contained in both the exclusive and legislative list. At any event, 1 agree with the learned counsel for the Defendants that item 49 of the Second Schedule, Part 1 of the Exclusive list, that is “professional occupation” should by literal interpretation include “journalism” as professional occupation.

This  submission to me can hardly be faulted on any strong credible or logical argument. I accordingly hold that the National Assembly possess the powers under Section 4(2)(4) (a) and (b) read together with paragraph 49 of Part 1 of Second Schedule to the Constitution of Federal Republic of Nigeria 1999. In effect, the National Assembly has the power to designate any occupation as professional and to legislate on it. However, the question whether the exercise of such a power has a constitutional limitation is a matter that, in ‘the cause of this judgment will be determined. In the result, I hereby hold that the 1st arm of the Plaintiffs’ issue number two which is similar to the Defendant’s issue number one is resolved against the Plaintiff.

The next issue argued by both counsel is the plaintiff’s 2nd arm which is similar to the defendants’ issued formulated in the Plaintiffs council’s argument is that Decree No. 85 is inconsistent with Section 39 (1) and (2) of 1999 Constitution. He further argued that Section 39 (1) and (2) of the constitution is self executing which does not require the need for an aid or a supplementary legislation to become fully operative.

Learned counsel urged the court to restrain the Defendants or their agents, from implementing or otherwise giving effect in any manner, whatsoever to the “Press Decrees”. Learned counsel for the Defendant, however, argued Section 1, 2, 3,16,17, 29, 30, 31, 32, 33, 35 and 36 of the Decree 60 as now contained in CAP N128 LFN 2004 have not been shown to be inconsistent with the provision of Section 39 of the 1999 Constitution.

He argued contrary to the averment of the Plaintiffs counsel, that the Nigerian Press-Decree is rather complementary to the  provision of Section 39 of the Constitution. They are intended to actualise and realise the goal and objective of the relevant Sections of 1999 Constitution and to that extent the Decrees are valid and constitutional. I think this issue presented for determination requires this court to examine in elaborate fashion, the concept of freedom of expression in all its ramification, the protection it provides for free speech and the extent to which the provisions of the Decrees have conformed to the free speech requirements of the Constitution.

Section 39 (1) and (2) of the 1999 Constitution provides as follows:-  “(1)     Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact idea and information without interference.

(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the discrimination of information, ideas and opinions.  Provided that no person, other than the government of the federation or of a state or any other person or body authorised by the president on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever”.  ‘let me at this stage briefly examine the concept of freedom of expression, with the historical and constitutional perspective.

No doubt, section 39 (9) (1) of the constitution unqualifiedly preserves an inhibited unhindered freedom of expression, which includes the freedom to hold opinion, receive ideas and information and in the exercise of such a freedom, an individual shall be entitled to own, establish and operate any medium for the dissemination of views and opinion.

Section 39 is in chapter 4 of the constitution which is headed fundamental rights. The arrangement of the wordings of the chapter owes much to the European convention for the Protection of Human Rights and Fundamental freedoms signed by certain members of the council for Europe in 1950.

The European convention was itself largely based on the unilateral declaration as its little suggests, is concerned mainly, if not exclusively, with human rights, that with rights of individual human beings, but the Europeans convention appears to apply also to artificial person. See ATTORNEY GENERAL &ANORVS ANGUA TIMES LITEL (1975) 3 ALL ER 81. In the case of UKEAGBU VS ATTORNEY GENERAL OF I MO STATE (1983)

The 1st amendment to the constitution of the United State of America provides asfollows:- “congress shall make no law representing establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech , or of the press, or of the right of the people re… to assemble, and to petition the government for a redress of grievances”. e elegantly terse wordings of the 1st amendment covered the provisions of sections 10, 38, 39 and 40 of the 1999 Constitution and yet it has the same effect or even greater effect in its clarity than the similar provisions in our constitution. However, it should be noted that the 1st amendment to the US Constitution, does have the provision that is similar to Section s 39(3) and 45. I have already set out section 39 (3) above, but it is important to set out the provision of Section 45 which has the effect of derogation from the certain provision under chapter 4. Section 45: “(1)    nothing in Sections 37, 38, 39, 40 of the 1999 constitution shall invalidate any law that is reasonably justifiable in a democratic society – In the interest of defence, public safety, public order, public morality or public health;  (b) For the purpose of protecting the rights and freedom of other persons.

Let me here observe that the constitution, by Section 45 (1) laid down an objective test for determining whether, a law, which derogate from the provision of Section 39 (1) must conform with the standards recognised by civilised nations. This test must also apply to specific situation that might arise under paragraph (a) and (b) of the Section 45 (1) of the constitution.

In effect, a reference to constitutional models in other countries of the world which practice democracy and governance under the rule of law will be consistent with the requirement of the constitutional mandate. Idigbe JSC, in the case of  BASIL UKEAGBU VS A. G. IMO STATE in considering whether, the restriction to establish a university, a center of learning was an abridgement of the freedom of expression recognised the comparative for adopting a broad interpretation of the constitutional provisions, for a narrow interpretation could lead to fragrant and unwholesome abuse of the right of the subject under Section 36 of the 1999 Constitution,
which is pari materia with Section 39 of the 1999 constitution.

It is also to be noted that section 45 of the constitution has been adequately examined and interpreted by the court. The case of ATTORNEY GENERAL OF ONDO STATE VS ATTORNEY GENERAL OF THE FEDERATION (supra) and UKEAGBU VS ATTORNEY GENERAL OF IMO STATE clearly establish the law that the National Assembly has the power to make laws that derogate from the right enshrined in section. What is still uncertain is the constitutional limits within which these powers are to be exercised.

The court in Ukaegbu rather examined these limit within the context of several American authorities, which it rejected on the broad principle of constitutional incongruous and on the narrow ground disparateness of facts. Even a closer look at the dictum will disclose a delicate indispositiveness on the point. In my view, Ukeagbu’s case does not appear to establish a general principle of law on the question of correct scope of Section 45 of the 1999 Constitution as it applies to Section 39 thereof, it is in my respectful view a decision insofar as the question of derogation is conserved that should be applied with the narrow and peculiar facts of the case.