BY ADEYEMI PITAN, SAN, MCIArb

INTRODUCTION

To begin with,
Recent developments in Nigeria’s marketing communication and advertising industry, birthed by the enactment of the Advertising Regulatory Council of Nigeria (ARCON) Act 2022, have raised fundamental questions regarding the constitutionality of the Act’s provisions and the legislative competence of the National Assembly to enact such comprehensive regulatory frameworks.

The Act seeks to centralize the regulation and control of activities within the advertising industry, bringing all stakeholders under a unified federal regulatory regime.

Two recent judgments from the Federal High Court of Nigeria have produced divergent interpretations of the constitutional provisions governing the legislative powers of the National Assembly, particularly regarding matters of outdoor advertising and hoarding—subjects not expressly enumerated in either the Exclusive or Concurrent Legislative Lists.

While Honourable Justice Akintayo Aluko of the Lagos Judicial Division declared ARCON’s regulatory powers unconstitutional when applied to outdoor advertising, adopting a literal and restrictive approach to constitutional interpretation, Honourable Justice Isa H. Dashen of the Lokoja Division upheld those same powers, applying a liberal and a holistic interpretative approach that considers the community structure of Nigeria’s constitutional architecture.

This analysis examines both decisions with particular attention to the statutory provisions, constitutional framework, and judicial authorities invoked by the learned justices to arrive at their divergent conclusions.

Special emphasis is placed on reviewing the earlier Lagos judgment through the lens of the subsequent and more comprehensive Lokoja decision, which offers a sophisticated, articulation of federal regulatory powers in Nigeria’s constitutional democracy.

BRIEF FACTS AND HOLDINGS

Aluko J: Massilia Motors Limited v. ARCON

To proceed,
On November 7, 2025, Hon. Justice Akintayo Aluko delivered judgment in Massilia Motors Limited v. Advertising Regulatory Council of Nigeria. The case arose when Massilia Motors Limited installed outdoor signage at its business premises comprising flags displaying its Mitsubishi motor vehicle brand with the tagline “Drive Your Ambition.” ARCON issued a Notice of Violation on February 16, 2024, describing the installation as an “unapproved lamp-pole advertisement on an out of home site” and demanding prior approval from ARCON’s Advertising Standards Panel.

When the company failed to comply, ARCON proceeded to issue a Criminal Summons on November 22, 2024. Massilia Motors then approached the Federal High Court, challenging the constitutional validity of ARCON’s regulatory authority over outdoor advertising.

Decision of Aluko J

Furthermore,
Justice Aluko held that Paragraph 1(k)(i) of the Fourth Schedule to the 1999 Constitution (as amended) vests exclusive power over the control and regulation of outdoor advertising and hoarding in Local Government Councils. Consequently, he declared that the relevant provisions of the ARCON Act—insofar as they purport to regulate outdoor advertising and hoarding—are unconstitutional, null and void for inconsistency with the Constitution pursuant to Section 1(3), which contains the supremacy clause. The Court specifically found that Sections 2(2)(a), 8(a), 9, and 54 of the ARCON Act which contains provisions empowering the council to sanction and issue criminal summons in case of violation of the Act, could not constitutionally apply to outdoor advertising and hoarding materials such as the plaintiff’s outdoor signage. ARCON’s Notice of Violation and Criminal Summons were accordingly set aside, and costs of ₦300,000 were awarded in favour of the plaintiff.

Dashen J: Godec Power Nigeria Ltd v. Attorney General of the Federation & ARCON

In addition,
On November 12, 2025, Hon. Justice Isa H. Dashen of the Federal High Court, Lokoja Division, delivered judgment in Godec Power Nigeria Ltd v. Attorney General of the Federation & ARCON. The Plaintiff, another entity engaged in outdoor advertising, similarly challenged ARCON’s constitutional authority to regulate its advertising activities, relying substantially on the same constitutional provisions invoked in the Lagos case.

Holding of Dashen J

Moreover,
Hon. Justice Dashen upheld the constitutional validity of the ARCON Act in its entirety. The Court held that the National Assembly possess legislative competence to enact the ARCON Act pursuant to Items 49, 62, and 68 of the Exclusive Legislative List. The judgment distinguished between the regulation of the physical medium of outdoor advertising (a local government function under Paragraph 1(k)(i) of the Fourth Schedule) and the regulation of advertising content, standards, and professional practice (a federal function) to arrive at its decision. Justice Dashen found no constitutional conflict between the ARCON Act and Paragraph 1(k)(i), holding that both provisions operate in distinct and complementary spheres. The plaintiff’s suit was dismissed in its entirety, with costs of ₦1,000,000 awarded against the plaintiff in favour of both defendants.

ANALYSIS OF THE JUDGMENT OF ALUKO J.

Continuing,
Hon. Justice Aluko’s judgment adopted a strict and rigid literalist approach to constitutional interpretation. The Court emphasized that where constitutional provisions are “clear and unambiguous,” they must be given their “ordinary and natural meaning.” Applying this principle, Justice Aluko found that Paragraph 1(k)(i) uses language that “admits no ambiguity”—it vests control and regulation of outdoor advertising and hoarding in Local Government Councils without qualification or limitation.

This interpretive approach has received judicial blessings in plethora of antecedents in Nigerian jurisprudence. In Nnonye v. Anyichie, the Supreme Court held that “it is both elementary and also fundamental principle of interpretation of statutes that where the words of a statute are plain, clear and unambiguous, effect should be given to them in their ordinary and natural meaning except where to do so will result in absurdity.” Justice Aluko invoked this principle to support his reading of Paragraph 1(k)(i) as conferring exclusive and unqualified authority on Local Government Councils over all aspects of outdoor advertising.

Another significant aspect of the Lagos judgment is its categorical rejection of ARCON’s argument that a distinction exists between regulating the physical medium of outdoor advertising (which belongs to Local Governments) and regulating the content of advertisements (which falls within federal competence). ARCON’s counsel had submitted that Paragraph 1(k)(i) relates only to the regulation and control of the medium of outdoor advertisement such as billboards, signages, outdoor banners, and digital displays, while the ARCON Act is directed at the content of advertisements.

Hon. Justice Aluko found this argument to be an abominable attempt to “read into the meaning and provision of Paragraph 1(k)(i) of the 4th Schedule to the Constitution which has the effect of disregarding the intention of the makers and drafters of the Constitution.” The Court emphasized that Paragraph 1(k)(i) “does not separate or distinguish the content from the medium of an advertisement” and therefore must be understood to encompass both. In the Court’s view, to accept ARCON’s distinction would be to engage in judicial legislation by adding words and limitations not present in the constitutional text itself.

Central to Hon. Justice Aluko’s reasoning is the proposition that the power vested in Local Government Councils by Paragraph 1(k)(i) is exclusive. The judgment repeatedly characterizes Local Governments as “the only constitutional and lawful arm of government vested with powers of control and regulation of outdoor advertising and hoarding in Nigeria.” This exclusivity flows, in the Court’s analysis, from the constitutional principle that powers not specifically granted to one level of government cannot be exercised by another.

The Court cited Kekong v. State for the proposition that where a constitutional provision is flouted, the supremacy clause in Section 1(3) operates to void the inconsistent law. Since the Constitution vests outdoor advertising regulation in Local Governments and does not grant this power to the federal government, any federal legislation purporting to regulate outdoor advertising necessarily conflicts with the Constitution and must be struck down to that extent.

REVIEW OF JUSTICE ALUKO’S DECISION THROUGH THE LENS OF JUSTICE DASHEN’S DECISION

To advance the discussion,
Both cases required the courts to navigate through the trajectory of Nigeria’s complex and well celebrated constitutional provisions. Section 1(1) declares that “This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” Section 1(3) provides the mechanism for resolving constitutional conflicts: “If any other law is inconsistent with the provision of this constitution, this constitution shall prevail and that other law shall to the extent of the inconsistency be void.”

The distribution of legislative powers in Nigeria’s federal system is governed by Section 4 of the Constitution. Section 4(2) vests legislative powers in the National Assembly “to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List.” The Exclusive Legislative List is contained in Part I of the Second Schedule to the Constitution and enumerates sixty-eight specific matters over which the federal legislature has exclusive competence.

Both cases centered more on Paragraph 1(k)(i) of the Fourth Schedule to the Constitution, which provides that “The main functions of a local government council are as follows—control and regulation of outdoor advertising and hoarding.” This provision formed the cornerstone of the plaintiffs’ constitutional challenge in both cases.

Against this constitutional provision empowering the Local Government with the vires to regulate and control out door Advertisement and hoarding, the ARCON Act establishes a comprehensive regulatory framework for advertising in Nigeria. Section 2(2)(a) provides that the Act applies to “individual, organisation, body corporate or agency of the Federal Government, State or Local Government which engages in, regulates, sponsors or takes benefit of advertising services, advertisements and marketing communications service.” Section 8(a) mandates that “The Council shall regulate and control advertising, advertisements and marketing communications in all its aspects and ramifications directed at or exposed to the Nigerian market.” Section 54 requires prior approval from ARCON’s Advertising Standards Panel before any advertisement may be published or exposed in any medium.

Hon. Justice Dashen’s judgment of the Lokoja Division offers a more holistic rather than rigidly textual approach to the constitutional provision brought before the court for adjudication. While acknowledging the importance of constitutional text, the Justice Dashen emphasized that “the Constitution must be construed holistically, not in isolation of its parts.” This principle, drawn from Supreme Court authorities including A.G. Bendel State v. A.G. Federation and Nafiu Rabiu v. Kano State, informed the Court’s entire analytical framework.

The Lokoja judgment expressly rejected the kind of narrow, and rigid reading adopted by Justice Akintayo Aluko, noting that such an approach fails to account for the Constitution’s recognition and allocation of overlapping regulatory responsibilities across different levels of government. Where the learned Hon. Justice of the Lagos state Division allured to strict application of literal interpretation borne out of clarity, Hon Justice of the Lokoja Division saw the need for interpretive principles that would harmonize apparently conflicting provisions and sustain rather than frustrate legitimate exercises of governmental power. In ISHOLA V AJIBOYE(1994) 6 NWLR pt. 352 p.506; (1994) 7-8 SCNJ 1 at 35, the supreme Court established four additional principles for interpreting the Constitution one of which is that seemingly conflicting parts are to be harmonized, if possible, so that effect can be given to all parts of the Constitution

Unlike the Aluko judgment, which largely bypassed the question of federal legislative authority, Justice Dashen conducted an extensive analysis of the National Assembly’s constitutional power to regulate advertising. Hon Justice Dashen identified three independent provisions of the constitution which serve as bases upon which the potency and legislative competence of the National Assembly may be predicated in respect of outdoor advertisement and hoarding regulation and control. These provisions are: Items 49, 62 and 68 of the Exclusive Legislative list.

On item 49 the Court held that advertising constitutes an organized professional occupation analogous to other professions expressly regulated by federal legislation. Just as the National Assembly has enacted comprehensive regulatory schemes for engineers, medical practitioners, accountants, and numerous other professions, it possesses authority to regulate the advertising profession. This regulatory authority extends far beyond practitioners alone to include all persons who engage in or benefit from advertising activities; a point the Court supported by reference to similar provisions in the Engineers (Registration etc.) Act, the Medical and Dental Practitioners Act, and other professional statutes.

The Court cited Skye Bank v. Iwu for the proposition that the expression “any person” connotes universality and admits of no limitation, thereby supporting the ARCON Act’s broad application.

On item 62, the Hon. Justice sitting at Lokoja found that advertising is “manifestly incidental” to trade and commerce, serving as “the communicative vehicle through which commercial activities operate.” This functional connection to trade and commerce—a subject unquestionably within federal legislative competence—provides an independent constitutional basis for the propriety of having a federal advertising regulation. The Court reasoned that to deny the federal government power to regulate advertising would effectively deny it the power to regulate a fundamental component of the commercial marketplace over which it has express constitutional authority.

On item 68, the Lokoja judgment invoked this provision of the Exclusive Legislative List, which grants the National Assembly power over matters “incidental or supplementary” to other items on the List. The Court cited Supreme Court authority in A.G. Abia State v. A.G. Federation and A.G. Federation v. A.G. Lagos State establishing that this incidental power must be given a “liberal, purposive interpretation that sustains rather than stifles constitutional powers.” Applying this principle, Justice Dashen held that regulating advertising standards, content, and professional ethics is manifestly incidental to the federal government’s express authority over trade, commerce, and professional occupations.

This reliance on incidental power doctrine represents a fundamental point of divergence from the Lagos approach. Where Justice Aluko viewed Paragraph 1(k)(i) as creating an impermeable boundary excluding federal involvement in any aspect of outdoor advertising, Justice Dashen viewed the constitutional allocation of powers as more nuanced, permitting federal regulation of certain aspects of advertising even where Local Governments retain authority over other aspects.

It is germane or rather pronto to state at this juncture that the Lokoja judgment’s most innovative contribution lies in its articulation and application of the medium-content distinction that the Lagos Court had rejected. Justice Dashen held that Paragraph 1(k)(i) “concerns the physical regulation of signboards, billboards, and hoardings within a local jurisdiction—that is, the medium or physical infrastructure of display,” while “The ARCON Act, by contrast, concerns the content, quality, and ethical standard of advertising messages disseminated to the Nigerian public.”

This distinction is not merely technical or semantic; it reflects a realism or rather functional approach to gauging the practicability of overwhelming a player in the Advertisement industry with the burden of seeking the approval of over 774 Local governments before making an advertisement that is of a National concern. As Justice Dashen explained, Local Governments possess “institutional capacity and legitimate interest in regulating where outdoor advertising structures are placed, how large they may be, whether they comply with local aesthetic standards, and whether they meet structural safety requirements.” These are quintessentially local concerns that appropriately vary from one jurisdiction to another based on local conditions, values, and planning priorities.

The federal government, through ARCON, possesses different but equally legitimate authority to ensure that advertising content—regardless of medium—meets national standards of truthfulness, decency, consumer protection, and professional ethics. These are national concerns requiring uniform application across the country to protect consumers and maintain professional standards in an integrated national marketplace.

To further support this point reference can be made to the interpretation section which states that :
“In this Act — “advertisement” means a notice, announcement, exposure, publication, broadcast, statement, announcorial, informercial, commercial, hype, display, town cry, show, event, logo, payoff or trademark to promote, advocate, solicit, showcase, endorse, vote or support a product, service, cause, idea, person or organisation with the intention to influence, sway, actuate, impress, arouse, patronise, entice or attract a person, people or organisation by an identified sponsor irrespective of media, medium or platform”(underlined for emphasis).
The concluding statement “irrespective of media, medium or platform suggests that the Act focuses more on the content, a national concern, rather than the medium which is more of a local concern.

In the main, the Lokoja judgment invoking the Supreme Court precedent establishing that “the Constitution must be construed holistically” and that courts should avoid interpretations that create constitutional conflict where harmonious readings are available. held that “no collision between the ARCON Act and paragraph 1(k)(i); both can co-exist without constitutional disharmony.” Local Governments retain their constitutional authority over the physical aspects of outdoor advertising—location, size, structural integrity, aesthetic compliance—while the federal government exercises its distinct authority over content standards, professional ethics, and consumer protection. Each level of government operates within its proper constitutional sphere without encroaching upon or negating the authority of the other.

This approach stands in stark contrast to the Lagos judgment’s zero-sum conception of constitutional authority. Where Hon. Justice Aluko concluded that federal and local powers over outdoor advertising were mutually exclusive and that Paragraph 1(k)(i) necessarily excluded federal involvement, Hon. Justice Dashen demonstrated how both levels of government can exercise legitimate but distinct regulatory authority over different aspects of the same general subject matter.

Both courts addressed the plaintiffs’ contention that the ARCON Act’s application to “any person” who engages in or benefits from advertising—not merely registered advertising practitioners—exceeds federal legislative authority. The Lagos judgment did not extensively analyze this issue, treating it as subsumed within the broader question of federal competence over outdoor advertising generally.

The Lokoja judgment, by contrast, provided a comprehensive analysis of why broad application to non-practitioners is both constitutionally permissible and practically necessary for effective regulation. It was noted that similar formulations appear in numerous professional regulatory statutes, including Section 18 of the Engineers (Registration etc.) Act and Section 17 of the Medical and Dental Practitioners Act, which impose criminal or regulatory obligations on “any person” even though the primary subject is regulation of a profession.

The functional rationale for this broad application is compelling. If advertising regulation applied only to registered advertising practitioners, the vast majority of advertisements—those sponsored by companies, individuals, and organizations who are not themselves professional advertisers—would escape regulatory oversight entirely. This would defeat the consumer protection and professional standards objectives that the ARCON Act was designed to serve. Accordingly, the Court held that extending the Act’s reach to persons who sponsor, publish, or benefit from advertisements is “a necessary incident of effective regulation and is fully consonant with constitutional competence.”

CONCLUSION

Finally,
The divergence between these two Federal High Court decisions calls for appellate review, especially by the Supreme Court of Nigeria. While we anticipate such appellate review, it is my humble opinion that the decision of the Lokoja Court is more logically sound and legally sustainable than that of the Lagos Division as the Lokoja judgment adopts a holistic interpretation technique that has received substantial approbation in numerous decisions of the Supreme Court, including A.G. Ondo v. A.G. Federation.

The Lagos judgment, I must admit, was founded on legitimate concerns about textual fidelity and federalism, which led to the adoption of an overly restrictive and rigid approach that falls short to account for consideration of practical requirements of effective governance in a modern federal state. By contrast, the Lokoja judgment successfully harmonizes competing constitutional provisions, and provides, by its medium-content distinction approach, a workable framework for advertising regulation that better serves the spirit and letters of the ARCON Act.