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Advertising Practitioners Council of Nigeria (APCON) v. The Registered Trustees of International Ministerial Council (ICMC) & Ors.

Court f Appeal

Judgement delivered on Wednesday June 30, 2010
Citation: 53 NIPJD [CA. 2010] A/93/2006
Suit No. CA/A/93/2006      Jurisdiction: Nigeria

MARY U. PETER-ODILI , JCA
JIMI OLUKAYODE BADA, JCA
ABDU ABOKI, JCA

Between:

ADVERTISING PRACTITIONERS COUNCIL OF NIGERIA (APCON) …………………Appellant

AND

1. THE REGISTERED TRUSTEES OF INTERNATIONAL COVENANT MINISTERIAL COUNCIL (ICMC)

2. THE REGISTERED TRUSTEES OF FOUNDATION FAITH CHURCH

3. FEDERAL MINISTRY OF INFORMATION AND NATIONAL ORIENTATION

4. THE ATTORNEY-GENERAL OF THE FEDERATION AND MINISTRY OF JUSTICE……………………(Respondents)

Appearances: Taiwo Oloyinde, Lukman O. Agbelu for the Appellant
Ochonia M. Ainoko (Miss) for the 1st Respondent

Advertising in Nigeria — The court considered whether in view of the provisions of the advertising Practitioners Registration Act, Cap 7, Laws of the Federation of Nigeria 1990 (as amended by Decree 93 of 1992), the trial Court was right in holding that the plaintiffs not being members of the Appellant, are not bound by the provisions of the Act.

I. FACTS

MARY U. PETER-ODILI, J.C.A (Delivering the Leading Judgment) This is an appeal by the defendant/Applicant against the judgment of A.I. CHIKERE J, sitting at the Federal High Court holden at Abuja. The Plaintiffs/Respondents had filed an Originating Summons dated 6th January, 2005 consequent upon a letter from the appellant requesting the Respondents to submit their religious advertisements for vetting to avoid abuse. This request Plaintiffs/Respondents contested the power of the Appellant thereof in the originating summons. That it constitutes an infraction of their Constitutional rights vide Sections 10, 28, 39, 40 42 of the 1999 Constitution.

In its judgment, the Lower court upheld the contentions of the Plaintiffs/Respondents on the ground that the Advertising Practitioners Registration Act, Cap. 7, Laws of the Federation of Nigeria 1990 as amended by Decree No. 93 of 1992 imposed limitations on the right to freedom of worship as guaranteed under Section 38 of the 1999 Constitution, holding also that the Plaintiffs not being members of the Appellant, are not bound by the provisions of the Act.

On the 22/4/10 date of hearing learned counsel for the Appellant adopted the Appellant’s Brief filed on 24/8/06 and deemed filed on 4/10/06. Also adopted by Mr. Oloyinde of counsel was Appellant’s Reply Brief filed on 20/11/06.

Mr. Oloyinde reminded the court that on the 26/1/09 this court had granted an application by the Appellant to have the appeal heard and determined only on the brief of the Appellant and the Brief of Respondents 1st and 2nd since the 3rd and 4th Respondents failed to file within time or even at all.

The Appellant in the Brief aforesaid formulated two issues for determination which are as follows:-

  1. Whether the Advertising Practitioners Registration Act 7, Laws of the Federation of Nigeria 1990 as amended by Decree No. 93 of 1992 having empowered the Advertising Practitioners Council of Nigeria to regulate the placement of advertisements in the media in Nigeria is inconsistent with the 1999 Constitution of the Federal Republic of Nigeria particularly Sections 10, 38, 39, 40 and 42.
  2. Whether in view of the provisions of the advertising Practitioners Registration Act, Cap 7, Laws of the Federation of Nigeria 1990 as amended by Decree 93 of 1992 empowering the Appellant to regulate and control the practice of advertising in all its ramifications, the trial Court was right to have held that the plaintiffs not being members of the Appellant, are not bound by the provisions of the Act.

The Respondents 1st and 2nd through their learned counsel, Miss Ainoko adopted their Brief filed on 17/10/06 and in it were framed two issues and one in the alternative and these are thus:-

  1. Whether or not the Advertisement Practitioners Registration Act, Cap 7, LFN 1990 is inconsistent with Sections 10, 38, 39, 40 and 42 of the 1999 Constitution with regard to the rights of the 1st and 2nd Respondents/Plaintiffs as embodied in the above sections and thus void to the extent of such
  2. Whether or not the 1st and 2nd Respondents/Plaintiffs as well as their religious activities/programmers are one of those envisaged by the Advertisement Practitioners Registration Act, cap 7, LFN 1990 as falling under the ambit of the regulatory functions of the Appellant/1st

OR IN THE ALTERNATIVE:-

Whether the Appellant are the persons to regulate,vet or approve the services of the 1st and 2nd Respondents vis-a-vis the provisions of Sections 10, 38, 39 and 40 of the 1999 Constitution of the Federal Republic of Nigeria.

As earlier mentioned the 3rd and 4th Respondents did not file any briefs and as the court had earlier ruled the hearing and determination of this appeal had to proceed without their briefs.

It seems to me that the sole issues couched by the 1st and 2nd Respondents in the alternative are adequate in answer to all the questions that have arisen in this appeal and I shall therefore adopt it to assist the court to determine this appeal.

SOLE ISSUE:

Whether the Appellant has the power to regulate, vet or approve the services of the 1st and 2nd Respondents vis-a-vis the provisions of Sections 10, 38, 39 and 40 of the 1999 Constitution of the Federal Republic of Nigeria.

Learned counsel for the Appellant, Mr. Oloyinde stated that before a provision, enactment or law is void for inconsistency with the constitution, the courts are enjoined to consider the circumstances of the case between the parties. He cited the case of Bunge  v.  Governor  of  Rivers  State  (2001)12  NWLR  (pt.727)  374  at 396.

Learned counsel for the Appellant further submitted that in arriving at it decision the trial court failed to consider the circumstances of the matter and that no freedom is absolute since for the good of the general public sometimes rights of certain individuals must be curtailed. That the Advertising Practitioners Registration Act, Cap 7 Laws of the federation 1990 as amended by Decree No. 93 of 1992 Constitution and its subsidy rules regulate the exercise of rights does not render the laws the 1999 constitution, the trial court ought to have considered Sections and 45 of the Advertise Practitioners Act as amended. He cited the cases of Ekwenugo  v.  FRN  (2002)  6  NWLR  (Pt.708)  171  at  185;  Adesanya  v.  President,  Federal  Republic  of  Nigeria  (1981) 2  NCLR  358  at  359;  Attorney  General  Ondo  State  v.  Attorney  general  Ekiti  State  (2001)  17  NWLR  (pt.  743)  706;

Osawe v. Registered Trade Unions (1985) 1 NWLR (pt. 4) 755; Badejo v. Federal Minister of Education (1996) 8 NWLR (pt. 464) 15 at 41.

Mr. Oloyinde went on to contend that the duties and powers of the Advertising Practitioners Council as provided under section 1 of the Act was further amplified and extended by Section 3(1). That by the provisions of section 3 (1) of the Act, the Appellant has the powers to do whatever in its opinion is deemed necessary to facilitate its functions under the Act, inclusive of the powers contained in subsection 3. That if the trial court had adverted its attention to the extensive powers of the Appellant under the Act, that court would have realized that by the provisions of Section 1 (d) and (f) juxtapose with the provisions of Section 3 (1) of the Act, the Appellant is saddled with the powers to regulate and control advertising in all its ramifications irrespective of whosoever is engaged in the act of advertising. That the trial Court was in error in holding that only the members of the Appellant were under the exercise of power of the Appellant. He said that the Lower court should have construed or interpreted the provisions of Section 1 (d) of the APCON Act in its ordinary meaning since there was no ambiguity. He cited Idehen  v.  Idehen  (1991)  6  NWLR  (pt.  198) 382.

Responding, Miss Ainoko learned counsel for the 1st and 2nd Respondents contended that the rights of the 1st and 2nd Respondents/Plaintiffs as embodied in Sections 10, 38 (1), 39 (1) 40 of the 1999 Constitution are sacrosanct and inalienable and thus cannot be varied, modified, altered, removed from and/or added to by the Appellant/1st Defendant based upon the advertising Practitioners Council of Nigeria Act (APCON) and the functions/powers given to the Appellant/1st Defendant by the said Act without the rights of the 1st and 2nd Respondents/Plaintiffs as enshrined in the aforesaid sections of the Constitution of the Federal Republic of Nigeria, 1999. That from the Constitutional provisions the 1st and 2nd Respondents/Plaintiffs’ rights to practice their religion ie. Christianity is sacrosanct and inalienable. That any other law (other than a new constitution or constitutional amendment) made which seeks to deny them of the said rights or even limit the rights would be inconsistent with the said constitutional provisions and would to that extent of inconsistency be void. Thus, Section 1 of the Advertisement Practitioners Registration, (APCON), Act which the Appellant/1st Defendant insists gives it power to regulate the 1st and 2nd respondents/Plaintiff and their religious activities and programmes is inconsistent with the aforesaid constitutional provisions. He cited Attorney General Abia State  &  35  ors  v.  Attorney  General  of  the  Federation  (2002)  FWLR  (101)  1419  at  1587  paras F-H.

Miss Ainoko said that assuming but not conceding that it was the intention of the makers of the APCON to use Section 1 of the Act to limit the rights of the 1st and 2nd Respondents/Plaintiffs as contained in Sections 10, 38, 39, 40 of the constitution 1999, they would have made an express provision to that effect. Therefore the express provision to that effect being absent the issues as affecting rights of the 1st and 2nd Respondents to practice their religion etc is void to the extent of that inconsistency with the provisions of the Constitution 1999. He referred to Ojukwu  v.  Obasanjo  (2004)  All  FWLR  (pt.  222)  1666  at  1679.

Learned counsel for the Respondents 1st and 2nd stated on that even if the rights (contained in Sections 10, 38, 39, 40 of the constitution of the Federation) of the 1st and 2nd Respondents could be limited, it is the constitution above that can expressly do so and not by any Act which is inferior to the Constitution, and it does not matter whether or not the said Act is made for public good, order and morality. He referred so Attorney General Abia State & ors v. Attorney General Federation SC.99/2005; SC.121/2005; SC.216/2005, P.52  Consolidated and judgment delivered on 7/7/06 per Tobi JSC.

Miss Ainoko said that the matter of the Advertisement Practitioners Registration Code was not an issue raised at the trial court and cannot be raised here as Appellant had sought to do in argument. That that matter should be discountenanced. He cited Guobadia v. State (2004) FWLR (pt. 188) 1065 at 1069; Ezukwu v. Ukachukwu  (2004)  FWLR  (pt.  224)  2137  at  2142;  Bayo  v.  Njidda  (2004)  FWLR  (pt.  192)  13  at  19;  Ikem  v.

Nwogwugwu (1999) 13 NWLR (pt.4) 755.

Learned counsel for the 1st and 2nd Respondents said by the submission of appellant the ancillary powers given it under sub-Section (d) – (e) of the Act are wide and limitless and with those powers it can carry out any conceived machinations against the whole world not minding its membership, so long as the conceived machination has to do with advertisement. That interpretation is erroneous. He cited Blacks Law Dictionary 16th Edition wherein incidental is defined at Page 762; Section 1 of the Act; Sections 2 and 10 (2) of the Interpretation Act, Cap 1992, Laws of the Federation 1990; Attorney General Ogun State (2002) FWLR (pt. 93) 1878 at 1882; Section 315 (4) (d) of the 1998 Constitution; Nigeria Code of Advertising Practice January 1, 2005;

Awuse v. Odili (2004) All FWLR (pt. 212) 1611 at  1616.

In reply on points of law, learned counsel for the Appellant submitted that the doctrine of covering the field canvassed by 1st and 2nd Respondents in their Brief and argument do not arise from Appellant’s Grounds of Appeal nor its brief and so these arguments should be ignored by this Court. He cited Achiakpa v. Nduka (2001)  9  MJ.S.C.  137;  Adeleke  v.  Raji  (2002)  12  M.J.S.C.  139;  Adelekan  v.  Ecu-Line  8  MJSC  142;  Oyebade  v.  Ajayi

(1993) 1 NWLR (269) 313 at 323; Idika v. Erisi (1988) 2 NWLR (PT. 78) 563 AT 579 –   580.

He further stated that the argument of Respondents that the Code of Ethics is not a law and should not be adhered to is not tenable as Section 21 (A) of the Decree (now Act) of 1992 makes specific reference to the 21

(A) of the Decree (now Act) of 1992 makes specific reference to the code of Ethics which shows that the Code must take effect. That the Act is to be read conjunctively with the Code of Ethics, as neither is complete without the other. He cited Osawe  v.  reg.  Trade  Unions  (1985)  1  NWLR  (pt.  4)755;.

The three grounds of appeal are stated below without their particulars and these are:-

GROUND ONE:

The learned trial judge erred in law in holding that the plaintiffs are distinct and separate from the Advertising Practitioners Council of Nigeria (APCON) Law imposes limitations on the right to freedom of worship.

GROUND TWO:

The learned trial judge erred in law in holding that the plaintiffs are distinct and separate from the Advertising Practitioners as envisaged by the Act.

GROUND THREE:

The learned trial judge erred in law in delivering the ruling based on the applicants’ written Argument filed out of time without the leave of court.

That is a summary of the submissions of counsel on either side of the divide in this appeal. The right of association guaranteed in Section 37 of the Constitution, like the other rights in Chapter iv of the Constitution, is not an absolute right, but a qualified right. This can be derogated from in accordance with the provision of Section 41 of the 1999 Constitution, Osawe v. Registered Trade Unions (1985) 1  NWLR  (pt.  4)  755, per Kazeem JSC.

The Trade union Act 1978 is a law passed in the interest of public order. It was necessary to ensure order in the chaotic proliferation of trade unions which was the practice before the promulgation of the law.

Osawe v. Registered Trade Union (1985) 1 NWLR (pt. 4) 755.

By virtue of Section 1 (1) of the 1999 Constitution the provisions of the Constitution are superior to every provision made in an Act or Law and are binding on and must be observed and respected by all persons and authorities in Nigeria. It has to be added all other legislations take their hierarchy from the provisions of the Constitution. Therefore any of the relevant Constitutional provision is to the extent of the inconsistency void and  of  no  effect.  See  Attorney  General  Abia  State  v.  Attorney  General  Federation  (2002)  6  NWLR  (pt.762)  264  at 479 – 480 per Kalgo JSC.

The Constitution being the organic law or grundnorm, the provisions thereof must be given a broad and not a narrow interpretation which will do violence to it and fail to achieve its goal, unless there is something in the rest of the Constitution to indicate that the narrower interpretation, it will best carry out the objects and purposes  of  the  Constitution.  Attorney  General  Ondo  State  v.  Attorney  General  of  Federation  (2002)  9  NWLR  (pt  772)  222;  Rabiu  v.  State  (1982)  2  NSLR  293;  Aqua  Ltd  v  Ondo  State  Sports  Council  (1989)  2  NWLR  (pt.  91)

622; Tukur v Government of Gongola state (1989) 4 NWLR (pt.117) 517; Ishola v. Ajiboye (1994) 6 NWLR (pt 352) 6 – 6; Director, SSS v. Agbakoba (1999) 3 NWLR (pt 595)   314.

The Constitution is an organic instrument which confer powers and also create rights and limitations. It is the supreme law in which certain principles of fundamental nature are established. Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a court of law. But their extent and implications may be sought to be interpreted and explained by the court in cases properly brought before it. All agencies of government are organs whose powers are derived either directly from the Constitution or from laws enacted there under. They therefore stand in relationship to the Constitution as it permits of their existence and functions. Attorney General Ondo State v. Attorney General Federation  (2002)  9  NWLR  (pt.  772)  222  at  418  –  419;   462.

Any law which contravenes the provisions of the Constitution is liable to be declared null and void. However,

the declaration must not be made in vacuo, but must be premised or made to relate to an issue, that is, a lis inter parties. Bunge v. Governor of  rivers  State  (2001)  12  NWLR  (pt.  727)  374  at  396  –  397  per  Pats-Acholonu  JCA (as he then was).

In considering the Constitutional rights to freedom of any person, it cannot loose sight of that the freedom could be curtailed when circumstances warrant. For example Section 18 (1) of the Advance Fee Fraud and Other Fraud Related Offences Decree No. 13 of 1995 as amended which stipulates conditions for bail for a person charged under Decree is not in breach of but complementary to the provisions of Section 35 (4) of the 1999 Constitution which vests the court with the discretion to release on bail an accused person either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later  date.  Ekwenugo  v.  Federal  Republic  of  Nigeria  (2001)  6  NWLR  (pt.  708)  171  at  191.

The Court will not hold an Act to be inconsistent with the Constitution where there is no provision of the Constitution relating to the matter whatsoever, expressly or by necessary implication. Attorney General Ondo State  v.  Attorney  General  Ekiti  State  (2001)  17  NWLR  (pt.743)  706  at  773  – 774.

It is a cardinal principle of interpretation that where the provisions of a statute are clear and unambiguous effect must be given to them in their plain and ordinary meaning without the court resorting to any aid, internal or external. It is the duty of the Court to interprete the words of the lawmaker as used. Attorney General Ondo State v. Attorney General Ekiti State (2001) 17 NWLR (pt. 743) 706; Attorney General of Bendel State v. Attorney General of the Federation (1982) 3 NCLR 2; Toriola v. Williams (1982) 7 SC 27; Bronik Motors

  1. Wema Bank (1983) 1 SCNLR 296; Awolowo v. Shagari (1979) 6 – 9 SC 73, Lawal v. G.B. Ollivant (1972) 3 SC 129; Adejumo v. Governor of Lagos State (1972) 3 Sc 45; Tukur v. Government of Gongola state (1989) 4 NWLR (pt. 117) 517; Attorney General Lagos State v. Dosunmu (1989) 3 NWLR (pt. 111) 552; N.B.N. Ltd. v. Weide & Co. (Nig.) Ltd (1996) 8 NWLR (pt. 465) 150; Shell Petroleum Development Co. Nig. Ltd. v. F.B.I.R. (1996) 8 NWLR (pt. 466) 256.

Where a statute mentions specific things, those things not mentioned are not intended to be included.  Awuse

  1. Odili (2004) 8 NWLR (pt.876) 481 at 512, 541; Okumagba v. Egbe (1965) 1 NWLR Pt. 62; Benliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (pt. 420) 478; Ogbunyinya v. Okubo (1979) 6 – 9 SC 32; Udoh v. Orthopedic Hospital Management Board (1993) 7 NWLR (pt. 304) 139.

In construing a statute; it must be read as a whole to get the correct meaning of any particular expression. In other words, when a particular Section of a statute is being interpreted, the section should not be read in isolation but the whole statute must be considered because the section is part of the whole. Awuse v. Odili (2004)  8  NWLR  (pt.  876)  481  at  513  per  Muhammad  JJCA;  Chima  v.  Ude  (1996)  3  NWLR  (pt.  461)    379.

It is not open to the Court to introduce new issues which do not arise from the pleading; thus any decision based on issues not raised by the parties will not be allowed to stand. Therefore a brief of argument ought to be conformed to matters which properly arise. It is to be reiterated that issues or questions for determination as appeal are framed from the grounds of appeal before the Court, consequently any issue, arguments or other part of a brief which has no ground or grounds of appeal to support it or which is based on a ground of appeal for which no leave has been sought and obtained is not only incompetent but completely valueless in the appeal. However in the case in hand nothing has detracted from what happened in the Court below and as captioned by the ground of appeal and the sole issue framed therefrom. The argument by appellant’s counsel on the matter of the Ground 3 not having been made by leave of court does not apply. Idika v. Erisi (1988)  2  NWLR  (pt.  78)  563;  Adeniji  v.  Adeniji  (1972)  4  Sc  10;  Yakassai  v.  Incar  Motors   (1975)   5   SC   107;   Osinugebi  v.  Saibu  (1982)  7  SC  104;  Western  Steel  Works  v.  Iron  &  Steel  Workers  Union  (1987)  1  NWLR  (pt.  49)    284;  Government  of  Gongola  State  v.  Tukur  (No.  2  (1987)  2  NWLR  (pt.  68)      330.

The Law is now well settled that the plaintiff will have locus standi in the matter only if he has a special legal right or alternatively, if he has sufficient or special interest in the performance of the duty sought to be enforced, or where his interest is adversely affected or is about to be adversely affected. What constitute all the above will depend on the facts of each case and whether an interest is worthy of protection is a matter of judicial  discretion.  Adesanya  v.  President  of  Nigeria  &  anor  (1981)  NSCC  146.

I shall quote part of the decision of the Court below, subject of this appeal and it is as follows:-

cannot and does not overflow against the constitutional rights of the applicants to freedom of worship.

I hold the view that the APCON Act imposes limitations on the right to freedom of worship as guaranteed under Section 38 of the Constitution. The APCON Act 55 of 1988 as far as it affects the rights of citizen to freedom of thought, conscience and religion is an aberration to a democratic society. The result is that it is void to the extent of its inconsistency with the provisions of the constitution and to the extent of their inconsistency void. I hereby so declare.

In the instant case I have no difficulty in answering the first question in the negative that is to say that the 1st Respondents have no right to compel the Plaintiffs to produce all religious approval (sic) before being displayed, broadcast or aimed. In fact, I am forted in my view by the provisions of Section 39 (2) of  1999 Constitution which provides thus:-

Every person shall be entitled to own, establish or operate any medium for the dissemination of information, ideas and provisions of Section 39 (2) of 1999 Constitution which provides thus:-

Every person shall be entitled to own, establish or operate any medium for the dissemination of information, ideas and opinions. I have looked at the provisions of the Act and the authorities cited by the defendant’s counsel, I cannot see their relevance to the Plaintiff/Applicant churches especially in my view, and as submitted by the plaintiff’s counsel, the respondent does not possess the requisite knowledge on Islamic matters, traditional religion or Biblical teachings as contained in Holy Bible to be able to regulate the practice of the various religions. I am of the view that the plaintiffs are distinct and separate from the Advertising Practitioners as envisaged by the Act. Not being members of 1st respondent they cannot be bound by Exhibit

  1. I so hold.”

I would like to have hereunder the salient parts of the Constitution Chapter 4, Sections 38, 39, 40 and 42 and Decree, now referred to as Act 55 of 1988 establishing the Advertising Practitioners Council of Nigeria referring to, Chapter 4 of the 1999 Constitution bearing Sections 38, 39, 40 and 42 deals with the fundamental rights of citizens.

In particular Section 39 provides for freedom of expression, including freedom to hold opinion and to receive and impart ideas and information without interference. I shall proceed to recast those Sections of the Constitution above cited and they are as follows:-

Section 38 provides for freedom of thought, conscience and religion. The full texts of these sections are as follows:-

38: Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or behalf and freedom (either alone or in community with others and in public or private) to manifest or propagate his religion or belief in worship, teaching practice and observance.

  • No person attending any place of education shall be required to receive religious instructions or take part in or attend any religious ceremony or observance if such instructions, ceremony or observance relates to a religion other than his own or a religion not approved by his parent or
  • No religious community or denomination shall be prevented from providing religious instructions for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.
  • Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.

Section 39:

  • Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impart ideas and information without
  • 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 dissemination of information, ideas and

Section 40;

Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to a political party, trade union or any other association for the protection of his interests.

Section 42:

  • A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –
    • be subjected either expressly by, or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, place of origin, sex, religious or political opinions are not made subject; or

Subsections (b), (2) & (3) are in the same vein on these restrictions upon circumstances of birth or faith or beliefs.

Decree (Now Act) 55 of 1988 established the Advertising Practitioners Council of Nigeria, which shall be charged with the general duty of; and

Section 1 thereof:-

  1. There is hereby established for advertising practitioners a body to be known as the Advertising Practitioners Council of Nigeria (hereafter in this Decree referred to as “the Council”) which shall be charged with the general duty of”-
  • Determine who advertising practitioners are;
  • Determining what standards of knowledge and skill are to be attained by persons seeking to become registered as members of the advertising profession and reviewing those standards from time to
  • securing in accordance with the provisions of this Decree, the establishment and maintenance of a register of persons entitled to practice as advertising practitioners and the publication, from time to time, of lists of those persons;
  • Conducting examinations in the profession and awarding certificates or diplomas to successful candidates as and when appropriate and for such purpose, the council shall prescribe fees to be paid in respect thereof;
  • Performing the other functions conferred in the council by this

(i) Performing the other functions conferred in the council by this Decree.

  1. (1) The Council shall consist of:-
  • A Chairman who shall be a person of distinction in the profession to be appointed by the President, Commander-in-Chief of the armed forces;
  • seven persons to be appointed by the Minister one of whom shall be from the Ministry and the others from amongst other interests in the field of advertising which in the opinion of the Minister ought to be adequately represented;
  • ten persons to be elected by the association of advertising Partitions of Nigeria (hereafter in this Decree referred to as “the association) in the manner for the time being provided by its constitution; and
  • two persons to represent institutions of higher learning in Nigeria offering courses leading to an approved qualification, to be appointed by the Minister in rotation, so however that the two persons shall not come from the same
  • The provisions set out in Schedule 1 to this Decree shall have effect to the qualification, and tenure of office of members of the Council and the other matters therein

3(1) Subject to subsection (2) of this section and to any directions of the Minister under this Decree, the Council shall have power to do anything which in its opinion is calculated to facilitate the carrying out of its functions under this Decree.

(2) The Council shall not have power to borrow or dispose of any property except with the prior consent of the Minister and shall have power to pay remuneration (including pensions), allowances or expenses to an employee of the council or any other person except in accordance with scales approved by the Minister.

4 (1) The Council shall establish and maintain a fund for the purposes of this Decree.

  • There shall:-
    • be paid into the fund of the Council:-
  • all fees and other moneys payable to the Council in pursuance of this
  • such moneys as may be payable to the Council, whether in the course of the discharge of its functions or not; and
  • any other expenses incurred by the Council in the discharge of its functions under this

5(1) The Council shall prepare and submit to the Minister not later than the 30th day of September of each year (so however that the Minister may, if he considers it necessary, extend the period in the year in which this Decree conies into force) an estimate of the income and expenditure of the Council during the next succeeding year.

It can easily be seen from the facts, the Constitutional provisions, in particular herein Sections 38,39,40,42, rights and privileges thereof and of course the Act in dispute that the learned trial judge was right to have reached her conclusion. This is because what the Appellant seem to be after is force into membership of the advertising practitioners, persons or bodies or establishments who have neither the inclination nor the interest to become same. Also the Advertising Practitioners Council of Nigeria (APCON) would even not be equipped to take charge and handle the matters especially that of the particular religious sect that would present if they were to be allowed to forcibly rope such religious organization’s practices and publicities into the realm of Advertising as envisaged by the Act. The fall out of such an eventuality is better imagined than that they should become reality.

The sum total of what the Appellant is pushing forward is to forcibly make members those who cannot be and who are completely outside the purview of the Act. The Council is better advised to keep its tentacles within its authorised membership and leave well alone persons not within their scope or profession. I rely on the following cases:-

Awuse v. Odili (2004) 8 NWLR (pt. 876) 481 at 512; Okumagba v. Egbe (1965) 1 NWLR Pt 62; Udo v. Orthopedic

Hospital Management Board (1993) 7 NWLR (pt. 304)   139.

From the foregoing I uphold the judgment and orders as made by the Court below. This appeal is dismissed as the judgment and decisions of the Court below are affirmed. I award N20,000:00 costs to the 1st and 2nd Respondents to be paid by the Appellant.

JIMI OLUKAYODE BADA, J.C.A: I have had the advantage of reading in draft a copy of the Judgment of my learned brother MARY U. PETER-ODILI, J.C.A. My Lord has adequately dealt with the issues in this appeal and I agree entirely with the reasons given therein as well as the conclusion that the appeal lacks merit and ought to be dismissed.

I too dismiss the appeal.

I abide by the consequential orders made in the said lead Judgment.

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