The Federal High Court in Lagos has issued an interim order restraining the Advertising Regulatory Council of Nigeria (ARCON), formerly known as the Advertising Practitioners Council of Nigeria, and its agents from demanding N60 billion from Facebook Nigeria Operations Limited for an alleged violation.
Justice Yellim Bogoro made the order on December 12, 2024, in suit FHC/L/CS/2205/2024, following a motion ex parte filed by Facebook through its counsel, Mofesomo Tayo-Oyetibo (SAN), of Tayo Oyetibo LP, on November 29, 2024.
After reviewing the affidavit supporting the motion ex parte, sworn to by Folasade Dada, and hearing arguments from Tayo-Oyetibo and Jessica Adeola-Ajayi, the judge granted the application.
Justice Bogoro stated, “I have considered the ex parte application made, the reliefs sought, particularly relief number two of the ex parte application, the affidavit in support, and the facts deposed thereto. I find merit in the application. I shall grant the reliefs in part. I make this order.”
The order reads: “An interim order of injunction is hereby made pending the determination of the Motion on Notice herein filed for interlocutory injunction restraining the defendant, whether by itself or through its officers, agents, servants, and any other person acting under its authority from enforcing or further enforcing in any manner whatsoever the notice of violation/demand for compliance dated 21 October 2024 issued by the defendant to the applicant. I strongly feel the second relief sought is subsumed in the first relief.”
The case is adjourned to February 20, 2025, for the hearing of the Motion on Notice. Hearing notice will be served on the defendant.
Facebook’s ex parte application sought two reliefs.
The first relief was “an interim order of injunction, pending the determination of the Motion on Notice for interlocutory injunction, restraining the defendant, whether by itself or through any person acting under its authority, from enforcing or further enforcing in any manner whatsoever the Notice of Violation/Demand for Compliance dated 21st October 2024 issued by the Defendant to the Applicant.”
The second relief sought an interim order of injunction restraining ARCON, whether by itself or through its prosecutors or anyone acting under its authority, “from instituting or commencing criminal proceedings in the Advertising Offences Tribunal to prosecute the Applicant, its officers, agents, or representatives, with respect to the allegations and/or decisions made by the Defendant and/or subject matter of the Notice of Violation/Demand for Compliance dated 21st October 2024 issued by the Defendant to the Applicant.”
In support of its application, Facebook filed 11 grounds for the request. It stated that ARCON issued a Notice of Violation/Demand for Compliance dated 21 October 2024, which made certain allegations against Facebook, including imposing the N60 billion fine.
Facebook challenged the constitutionality of the ARCON Notice, citing grounds of denial of fair hearing, its unlawfulness under the Advertising Regulatory Council of Nigeria Act 2022 (“ARCON Act”), and its classification as an ultra vires act of the defendant.
Facebook added that ARCON threatened to enforce the ARCON Notice through criminal prosecution in the Advertising Offences Tribunal if the company failed to meet its demands.
Despite issuing a statutory pre-action notice demanding that the defendant withdraw its threat, Facebook claimed that the defendant had not done so.
The applicant pointed out that Order Vill Rule I of the Advertising Offences Tribunal Practice Direction mandates a hearing must be completed within 180 days of filing the charge. Furthermore, Section 306 of the Administration of Criminal Justice Act 2015 prohibits granting an order for a stay of proceedings in a criminal matter before the Tribunal.
Facebook argued that it would be “vexatious and oppressive” for the defendant to initiate criminal proceedings against the company while its suit challenging the legality and constitutionality of the ARCON Notice is pending in court.
The company stated that there is an “urgent need” for the Court to retain control over the matter and prevent “vexatious and oppressive conduct” by the defendant, emphasizing the need to prevent an abuse of the judicial process through a proliferation of litigation on the same issue.
