COURT THROWS OUT SUIT BY NPAN AGAINST APCON
Thursday, January 10, 2013
At the Federal High Court sitting in Lagos on Thursday January 10, 2013 Honourable Justice Musa Haruna Kurya dismissed the action filed by the Registered Trustees of the Newspaper Proprietors Association of Nigeria (NPAN) on the 7th September, 2012 challenging the constitutionality of certain provisions of the APCON Code of Advertising Practice & Sales Promotion.
NPAN filed an Originating Summons at the Federal High Court against APCON and the Nigerian Police Force in which they sought to challenge the powers of APCON to impose administrative sanctions for violation of the provisions of the APCON Code and the powers of the NPF to invite individuals (employees of some of the Newspaper companies) who had allegedly violated the provisions of the APCON for the purpose of enforcement.
APCON on its part filed a Preliminary Objection challenging the capacity of the Registered Trustees of the Newspaper Proprietors Association to commence the suit on the basis that there was no controversy between NPAN and APCON, rather if at all there was any dispute the proper plaintiffs ought to have been the aggrieved individual staff. APCON also filed a substantive defence and final address on the issues raised concerning its regulatory powers. The Court was however invited last year to first consider whether NPAN is competent to bring the action before the Honourable Court.
In a thorough and well- considered ruling, Honourable Justice Kurya of the Federal High Court, Lagos gave a brief highlight of the case and the arguments of each counsel. He thereafter gave a background of the facts of the case and after cautioning himself that he was merely delivering a ruling as opposed to a judgment on the merit of the case at that stage, agreed in totality with the preliminary contentions made by the 1st respondent with regards to the standing of NPAN to institute the case as presented in the Originating Summons.
The judge predicated his decision on the fact that nothing in the Plaintiff’s affidavit in support of the Originating Summons showed any controversy between NPAN and APCON. Further, the judge agreed with the submissions proffered by Chief Anthony Idigbe SAN (APCON Counsel) that NPAN are not the ones that were disclosed as being personally aggrieved by the steps taken by APCON and the NPF.
“The only way the Plaintiff would have been properly vested in law with the standing to sue the Defendants, was for them to have commenced the action by way of a representative action on the part of NPAN, and after obtaining leave of court”, Justice Kurya said.
Not having sought the leave of court to initiate a representative action and not having come under a representative capacity, the judge placing reliance on the classic Supreme Court case of Salako v Dosunmu held that the action was bound to be incompetent as constituted and dismissed NPAN case.
The Leadership of APCON has hailed the decision immediately as an indication that the court is willing to lend its judicial weight to assist APCON in performing its regulatory functions and mandate.