The Newspapers Proprietors Association of Nigeria has sued the Advertising Practitioners Council of Nigeria over the harassment of employees of newspapers and magazines.

The suit was instituted at a Federal High Court, Lagos by the registered trustees of NPAN. APCON and the Inspector-General of Police, Mohammed Abubakar, are joined as defendants in the suit.

NPAN is challenging the powers of APCON to regulate the publications of its members who do not engage in the practice of advertising.

NPAN contends that the powers of APCON as captured in Articles 21 and 137(a) of the Nigerian Code of Advertising Practice and Sales Promotion violate the superior provisions of Sections 34 and 4(1) of the Constitution of the Federal Republic of Nigeria.

The three issues that the association has put before the court for determination are: “Whether having regard to the provisions of Section 1 (d) of Advertising Practitioners (Registration, etc) Act CAP A7, LFN 2004, Articles 21 and 137(a) of the Nigerian Code of Advertising Practice and Sales Promotion are not ultra vires the Advertising Practitioner Council of Nigeria (APCON) in so far as the provisions of the Articles affect media houses who do not engage in the practice of advertising.

“Whether the provisions of Articles 21 and 137(a) of the Nigerian Code of Advertising Practice and Sales Promotion are not inconsistent with the provisions of Section 39 of the Constitution of the Federal Republic of Nigeria 1999 which guarantees the freedom of expression including freedom to hold opinion, and to receive and impart ideas and information without interference.

“Whether having regard to the provision of section 4(1) of the Constitution of the Federal Republic of Nigeria 1999 it is competent for the Advertising Practitioners Council of Nigeria to create offences and impose penalties as done in the Nigerian Code of Advertising Practice and Sales Promotion.”

The publishers contend that the Articles violate the freedom of expression, comprising “freedom to hold opinion, and to receive and impart ideas and information without interference” as guaranteed under Section 39 of the Constitution.

NPAN is also seeking the court to declare as “unconstitutional, null and void” the power of APCON to create criminal offences and impose penalties as contained in Article 137 of the Code.

It insists that APCON has no such power under the “Advertising Practitioners (Registration etc) Act” which is the Act establishing the body.

One of the five reliefs being sought by the plaintiff is a declaration that the contentious Articles “are ultra vires the Advertising Practitioners Council of Nigeria in so far as the provisions of the Articles affect members of the plaintiff’s association who do not engage in the practice of advertising.”

Other reliefs that NPAN seeks are: “A declaration that Article 21 of the Nigerian Code of Advertising Practice and Sales Promotion which requires that all advertisements, except public notes, goodwill messages, obituaries and vacancies shall be presented for vetting and approval by the Advertising Standards Panel before publication is inconsistent with the provisions section 39 of the Constitution of the Federal Republic of Nigeria 1999 and therefore is unconstitutional, null and void.

“A declaration that the Advertising Practitioner Council of Nigeria has no power under the Advertising Practitioners (Registration etc) Act Cap A7 Laws of the Federation 2004 to create criminal offences and impose penalties as done in Article 137(a) (b) and (c) of the Nigerian Code of Advertising Practice and Sales Promotion and as such the said Article137(a) (b) and (c) is unconstitutional null and void.

“A perpetual injunction restraining the first defendant from treating or continue to treat Articles 21 and 137 (a) of Nigerian Code of Advertising Practice and Sales Promotion as valid Articles in the Code.

“A perpetual injunction restraining the defendant s whether by themselves, their servants or agents and or representatives from implementing, or representatives from implementing, or otherwise applying the provisions of Articles 137(a) (b) and (c) of the Nigerian Code of Advertising Practice and Sales Promotion against any of the members of the plaintiff’s association or their servants, officers or representatives.”

Articles 137(a) (b) and (c) of the Code provide as follows:

“A media house which publishes or exposes an advertisement without the Advertising Standards Panel’s certificate of Approval shall be liable to a minimum penalty of N200,000

“An agency which creates and/or places publication or exposure of an advertisement without the ASP certificate of approval shall be liable to a minimum penalty of N200,000.

“An Advertising Practitioner who publishes, exposes or knowingly aids the publication or exposure of an advertisement without the ASP Certificate of approval shall be subject to the APCON disciplinary procedure notwithstanding the payment by its client of the appropriate penalty.”

In a 22-paragraph affidavit, the deponent, who is the plaintiff’s Secretary, Comfort Obi, averred that “unless restrained as prayed, the defendants would continue to harass and intimidate members of the plaintiff/association and their staff with threat to arrest and prosecution in purported implementation of the provisions of Articles 21 and 137 of the aforementioned code.”

According to Obi, the police have subsequent upon the coming into effect of the Code, on different occasions, invited members of NPAN and some of their employees informing them that investigations were being carried out following complaint by APCON that they violated Article 21 of the Code.

Media houses which advertising executives have so far received such police invitations are the Leadership Newspaper Group Ltd, publishers of Leadership newspapers on April 16, 2012; Vanguard Media Publishers, publishers of Vanguard newspapers on June 7, 2012; and Guardian Newspapers Limited Publishers, publishers of the Guardian titles.

The members of NPAN, involved in the suit, include the publishers of Punch newspapers, Daily Trust newspapers, Vanguard newspapers, Guardian newspapers, This Day newspapers, Leadership newspapers, The Source Magazine, Democrat and The Sun.

Others are Tribune, Business Day, Tell magazine, National Mirror, News Star, People’s Daily, I.T Telecom Digest, Fresh Fact, Newswatch, New Nigerian, The News magazine, Champion newspapers, Daily Independent newspapers, Business Hallmark newspapers and The Nation newspapers.