The judicial divide on ARCON’s constitutional powers

BY ADEYEMI PITAN

Recent developments in Nigeria’s marketing communication and advertising industry, following the enactment of the Advertising Regulatory Council of Nigeria (ARCON) Act 2022, have raised important questions about the constitutionality of the Act and the extent of the National Assembly’s legislative authority to centralise regulation across the sector. The Act attempts to bring all players under a single federal regulatory system.

Two recent federal high court decisions have now produced conflicting interpretations of the National Assembly’s authority, especially regarding outdoor advertising and hoarding, which are not expressly listed in either the exclusive or concurrent legislative lists. Justice Akintayo Aluko of the Lagos division declared ARCON’s powers unconstitutional when applied to outdoor advertising by relying on a strict textual reading of the Constitution, while Justice Isa H. Dashen of the Lokoja Division upheld the same powers by adopting a broad and harmonising approach that considers the overall structure of Nigeria’s constitutional order.

The Lagos decision arose from Massilia Motors Limited v. ARCON, delivered on November 7 2025. Massilia Motors had installed outdoor signage consisting of flags bearing its Mitsubishi brand and tagline. ARCON described the installation as an unapproved lamp pole advertisement, demanded prior approval, and later issued a criminal summons after non-compliance. Massilia Motors challenged ARCON’s authority. Justice Aluko held that Paragraph 1(k)(i) of the Fourth Schedule to the Constitution vests exclusive power over outdoor advertising and hoarding in Local Governments and declared sections of the ARCON Act unconstitutional to the extent that they regulate outdoor advertising. ARCON’s enforcement actions were set aside, and costs were awarded to the plaintiff.

Only five days later, on November 12 2025, Justice Dashen of the Lokoja Division delivered judgment in Godec Power Nigeria Ltd v. Attorney General of the Federation and ARCON. The plaintiff took a similar position by challenging ARCON’s constitutional authority. Justice Dashen upheld the validity of the ARCON Act in full. He held that the National Assembly has legislative competence under Items 49, 62 and 68 of the Exclusive Legislative List. He distinguished control of the physical structures used for outdoor advertising, which he accepted as falling within Local Government authority, from the regulation of advertising content and professional standards, which he held to be matters properly within federal competence. The suit was dismissed with costs against the plaintiff.

Justice Aluko relied on a strict literal approach. He held that the words of Paragraph 1(k)(i) are clear and leave no room for distinction between the advertising medium and advertising content. In his view, Local Governments control both. He relied heavily on Section 1(3) of the Constitution to strike down any part of the ARCON Act that touches outdoor advertising, and he refused to read any implied limits or distinctions into the text.

Justice Dashen approached the same issues from the opposite interpretive direction. Drawing from authorities such as A.G. Bendel v. A.G. Federation, Nafiu Rabiu v. Kano State and Ishola v. Ajiboye, he emphasised that constitutional provisions must be read as a coherent whole rather than in isolation. He examined the legislative powers of the National Assembly in detail. Under Item 49, he held that advertising is an organised profession similar to engineering and accountancy and therefore within federal authority. Under Item 62, he held that advertising is incidental to trade and commerce and therefore within the reach of federal regulation. Under Item 68, he relied on established precedent confirming that the National Assembly may exercise incidental powers broadly where necessary to give effect to matters already within its jurisdiction.

The Lokoja judgment also revived the distinction between regulating the physical medium of signage and regulating advertising content and professional conduct. It held that the Constitution assigns Local Governments only the power to control physical structures and locations, leaving the regulation of content, ethics and standards to federal authorities. The ARCON Act, with its broad definitions and emphasis on consumer protection and professional practice, fits squarely within this federal domain. Justice Dashen further noted the impracticality of requiring national advertisers to seek approval from over seven hundred Local Governments, which would create an unworkable regulatory environment.

The two decisions now stand in clear conflict. The Lagos judgment rests on a narrow reading that gives absolute priority to Paragraph 1(k)(i), while the Lokoja judgment harmonises that paragraph with the broader legislative powers granted to the National Assembly. The holistic approach is more consistent with Supreme Court guidance in cases such as A.G. Ondo v. A.G. Federation, which insist that courts must avoid interpretations that fragment constitutional powers or frustrate national regulatory schemes where both levels of government can operate without contradiction.

The Lagos judgment raises legitimate concerns about federal overreach but does so by adopting an interpretation that is too rigid and that does not accommodate the broader constitutional framework. The Lokoja judgment offers a more coherent and workable interpretation that preserves the role of Local Governments while affirming the federal government’s authority to maintain nationwide advertising standards.

Adeyemi Pitan is a senior advocate of Nigeria