Daily Law Tips (Tip 419) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

WHY “APCON” LACKS POWERS TO REGULATE ADVERTISEMENT IN NIGERIA.

First of all, a “LAW” no matter how bad, wicked, offensive, ineffective or empty it is, will remain in operation until it is amended or repealed (abolished). And the only organ that can change law is the legislature. In interpreting a law, one cannot add or remove anything, originally not added or removed by the law makers. By the way, interpretation of law can only be done by a Court and not any agency or establishment of government.

The Advertising Practitioners Council of Nigeria (APCON) was established by an Act of parliament, known as the Advertising Practitioners (Registration etc) Act of 1988. According to the law, APCON was set up to regulate and control the practise of advertisement by Advertising Practitioners. The long title and short title of the Act are clear on this as well as its section 1. Also, even in regulating and controlling of advertisement practitioners by APCON, APCON by law must seek approval from Minister for Health where advertisement relates to matters of food, cosmetics, beverages and drugs.

To avoid abuse and intimidation of public by APCON, the Courts have had to interpret the Advertising Practitioners (Registration etc) Act of 1988, being the main law relied on by APCON and the subsidiary legislations of APCON (like, Nigerian Code of Advertising Practice and Sales Promotion and other Rights/Restrictions on Practice (5th Edition)

In a recent case of MIC Royal Limited v. APCON (Judgment was delivered on July 5, 2018), the Court of Appeal held that APCORN has no powers over ordinary persons, companies, institutions, businesses, or groups advertising anything in so far as such persons or groups are not into the business of advertisement practise. It stated that APCON has powers ONLY over persons (advertisement practitioners) doing business of advertisement practise. The court further, reiterated its earlier warning to APCON in a similar case (APCON v. The Registered Trustees of International Covenant Ministerial Council & Ors.) , to stop harassing and forcing Non-APCON members (Non Advertising Practitioners or general public) to be under APCON, submit their adverts for vetting or pay violation fines. The clear words of the Court of Appeal to APCORN, are below;

“…what the Appellant (APCON) seem to be after is to force into membership of the advertising practitioners, persons or bodies or establishments who have neither the inclination nor the interest to become same… 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 (APCON) is better advised to keep its tentacles within its authorized membership and leave well alone person not within their scope or profession…”

In summary, the law establishing APCON does not give APCON powers to control and regulate “Advertisement” generally in Nigeria rather it gives APCON powers to control and regulate persons (advertisement practitioners) into the business of practise of advertisement (advertisement business). Unlike the Legal profession and even Medical profession, where the Legal Practitioners Act and the Medical and Dental Practitioners Act, expressly reserved such professions and prohibits or limits unlicensed persons from practising such professions, the APCON Act is silent or at best self limiting. However, I doubt if advertisement can ever be exclusively reserved for advertisement practitioners. It is so because, just like law practise and legal services, ordinary persons must be allowed to advertise for themselves and not in return for a fee as is the case in law practise, where non-lawyers are permitted to conduct their cases themselves, personally.

My authorities are;

Sections 1, 20 and 30 of the Advertising Practitioners (Registration etc) Act of 1988
Sections 1 and 22 of the Legal Practitioners Act of 1975.
Sections 8 and 17 Medical and Dental Practitioners Act of 1988.
MIC Royal Limited v. APCON (Suit No. CA/L/1140/2016 – Judgment delivered on July 5, 2018) CITATION: (2018) LPELR-45314(CA),
APCON v. The Registered Trustees of International Covenant Ministerial Council & Ors. (2010) LPELR (CA) 3630)
BELLO & ORS vs. AG. OYO STATE (1986) LPELR -764 (SC).
IBRAHIM Vs. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1997) LPELR – 1408 (SC)

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