Justice Yellim Bogoro held that the regulator acted outside its statutory powers and violated the company’s constitutional right to fair hearing.
Delivering judgment in Suit No. FHC/L/CS/2205/2024, the court declared ARCON’s Notice of Violation/Demand for Compliance dated October 21, 2024, unconstitutional, unlawful, null and void.
Facebook Nigeria, through its counsel, Mofesomo Tayo-Oyetibo, SAN, challenged the notice, arguing that ARCON had no legal authority to determine criminal liability or impose punitive sanctions through an administrative notice without first affording the company a fair hearing.
The company also maintained that it neither owns nor operates Facebook or Instagram, contending that both platforms are owned and controlled by Meta Platforms Inc., a separate foreign corporate entity.
The regulator further contended that its notice was merely a regulatory compliance measure, giving the company the option of complying with its directives, paying the prescribed violation fee or facing prosecution.
But, Justice Bogoro rejected the regulator’s arguments.
The court held that Facebook Nigeria is a distinct legal entity from Meta Platforms Inc. and ruled that ARCON failed to produce sufficient evidence establishing that the Nigerian company owns, operates or controls Facebook or Instagram.
On the issue of fair hearing, the court held that ARCON violated Section 36 of the Constitution by making allegations and simultaneously imposing a substantial financial sanction without first giving the company an opportunity to respond.
Justice Bogoro further held that Section 57(4) of the ARCON Act expressly requires the regulator to accord any alleged violator a fair hearing before imposing any penalty.
The judge held that since the Act stipulates that punishment may only follow “upon conviction,” ARCON lacked the authority to impose the N60 billion penalty through an administrative process.
He ruled that, regardless of the description given to it by ARCON, the N60 billion demand was, in substance, a fine that only a court of competent jurisdiction could impose after due judicial proceedings.
The court accordingly set aside the notice and granted a perpetual injunction restraining ARCON, its officers, agents and privies from taking any further steps to enforce the October 21, 2024 notice against Facebook Nigeria.
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