By Jude-Ken Ojinnaka
Consequent upon the ruling by Justice James Omotosho of the Federal High Court in Abuja on November 23, 2023 in which the judge dismissed the National Broadcasting Commission’s motion to set aside his judgement delivered on May 10, 2023, restraining the NBC from further imposing fines on radio and televisions stations, the Commission has filed appeal at the Appeal Court challenging the ruling.
In a Notice of Appeal filed on its behalf by Mr. Babajide Koku (SAN), leading Mr. Victor Ogude (SAN), Mr. Kehinde Wilkey, and Ms Anuoluwapo Babalola, the NBC is asking the Appeal Court to set aside the ruling and grant the Commission’s application to set aside the judgement delivered on May 10, 2023.
The judgement delivered on May 10, 2023 arose from a suit instituted by Abuja-based lawyer, Mr. Noah Ajare, on behalf of Media Rights Agenda (MRA), challenging the powers of the NBC to fine broadcasters, following a March 1, 2019 announcement by the NBC that it had imposed a fine of N500,000 each on 45 broadcast stations for alleged contraventions of the Nigeria Broadcasting Code.
In his May 10, 2023 judgement, Justice Omotosho held that fines are sanctions imposed on a person who has been found guilty of a criminal offence and that under the law in Nigeria, only courts of law are empowered to impose sanctions for criminal offences.
In setting aside the fines of N500,000 each imposed on the stations, he held that the NBC “is neither a Court nor a judicial tribunal to make pronouncements on the guilt of broadcast stations notwithstanding what the NBC Code says,” adding that the Commission’s action violated the Constitution.
But in its appeal, the NBC said in its 4-ground notice of appeal that it is complaining about the entire decision.
Its first ground of appeal is that Justice Omotosho erred in Law when he refused to set aside the judgement, which the NBC alleged, was demonstrated before him to have been deceitfully obtained on the ground that the NBC was indolent and ought to have raised the objection in the substantive suit timeously.
In the particulars of error, the NBC said the law confers on a court the inherent power to review and set aside its earlier judgement on grounds of fraud and deceit if those grounds are subsequently brought to its knowledge and demonstrated to exist and alleged that by failing to set aside its earlier judgement in the face of evidence of fraud, the court permitted MRA to perpetuate and/or enjoy the benefit of the fraud practised on the court.
The second ground of appeal is that the judge erred in law when he held that he would not set aside his earlier judgement because “res judicata” was not a ground for settling aside a default judgement.
In its particulars of error, the NBC said the judge overlooked the fact that res judicata is an objection that goes to the root of the jurisdiction of a court to entertain a subsequent claim that has been previously adjudicated between the same parties and that res judicata is a jurisdictional ground on which an application to set aside a default judgement can be founded upon.
The NBC’s third ground of appeal is that the judge erred in law when he held that “In the final analysis, the application by the Respondent/Applicant (NBC) has no substance for being an afterthought and a belated attempt at challenging the jurisdiction of the court. This court is functus officio in this matter and therefore refuses the application of the Respondent/Applicant”.
In its particulars of error, the NBC claimed that the judge’s decision negated his earlier finding in the same ruling that the principle that a court is functus officio and thus precluded from reviewing its earlier ruling is not absolute and allows exceptions, adding that the judge conceded that a ruling could be set aside on grounds of fraud, deceit and abuse of court process. It also alleged that the judge conceded the presence of the features of abuse of court process by MRA and ought to have set aside the ruling.
In its fourth ground of appeal, NBC said the judge erred in law when he found that a party who is the victim of a default judgement fraudulently obtained would not be entitled to the indulgence of a court of law if it applies to set aside the judgement belatedly without having taken the opportunity of appearing to raise those issues in its defence to the substantive claim.
In its particulars of error, the NBC said the law and, in particular, the rules of the Federal High Court, permit a party against whom a default judgement was obtained to subsequently apply to have such a judgement set aside on recognized grounds and that a party ought not to be punished nor shut out from approaching the court to seek a legal remedy conferred on it by law.
