The National Broadcasting Commission, NBC, has lodged an appeal against the November 23, 2023, ruling by Justice James Omotosho of the Federal High Court in Abuja which dismissed the Commission’s motion to set aside his judgment delivered on May 10, 2023.
The court had restrained the NBC from further imposing fines on radio and televisions stations in 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 a Notice of Appeal filed on its behalf by Mr. Babajide Koku, SAN, the NBC is asking the Appeal Court to set aside the ruling and grant the Commission’s application to set aside the judgment delivered on May 10, 2023.
Justice Omotosho had earlier ruled that 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.
The NBC in its four-ground notice of appeal complained about the entire decision.
Its first ground of appeal is that Justice Omotosho erred in law when he refused to set aside the judgment, 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.
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The NBC said the law confers on a court the inherent power to review and set aside its earlier judgment 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 judgment in the face of evidence of fraud, the court permitted MRA to perpetuate and/or enjoy the benefit of the fraud practiced 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 judgment because “res judicata” was not a ground for settling aside a default judgment.
On this, 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 judgment can be founded upon.
The broadcasting commission equally appealed 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.”
The commission claimed that the judge’s decision negated his earlier finding in the same ruling on 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.
NBC in another appeal said the judge erred in law when he found that a party who is the victim of a default judgment fraudulently obtained would not be entitled to the indulgence of a court of law if it applies to set aside the judgment belatedly without having taken the opportunity of appearing to raise those issues in its defense to the substantive claim.
In this plea, the commission said the law and in particular, the rules of the Federal High Court, permit a party against whom a default judgment was obtained to subsequently apply to have such a judgment 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.
