The Fragmented Regulation Of Outdoor Advertising In Nigeria: A Legal Appraisal Of Massilia Motors Ltd V ARCON In The Shadow Of Conflicting Federal High Court Decisions

By Farid Giwa LL.M, MCIArb. (UK)

Introduction

The regulatory framework governing outdoor advertising in Nigeria has entered a period of acute constitutional and institutional instability. This uncertainty has been triggered by two recent but diametrically opposed decisions of the Federal High Court. On the 12th November day of 2025, the Federal High Court sitting in Lokoja, per Isa Dashen J., upheld the constitutionality of the Advertising Regulatory Council of Nigeria Act 2022 (“ARCON Act”) and affirmed the statutory authority of the Advertising Regulatory Council of Nigeria (ARCON) to regulate outdoor advertising and signage nationwide. In dismissing the suit filed by Godec Power Nigeria Ltd, the Court validated the centralised regulatory vision embedded in the ARCON Act and pronounced ARCON’s powers as consistent with the 1999 Constitution.

This conclusion stands in direct contrast with the judgment delivered five days earlier in Massilia Motors Ltd v ARCON (FHC/L/CS/1044/2025) by Aluko J. of the Federal High Court in Lagos. At the core of the dispute was a fundamental constitutional question: does ARCON possess legal authority to regulate outdoor advertising media, or does such power reside exclusively with Local Government Councils under the 1999 Constitution of the Federal Republic of Nigeria (as amended)? In resolving this question, the Court invalidated several substantive provisions of the Advertising Regulatory Council of Nigeria Act 2022 (hereinafter “the ARCON Act”), specifically sections 8(a), 9(f), (p), (q), 43, and 54 on the ground that they unconstitutionally encroached upon an area reserved for Local Governments under paragraph 1(k)(i) of the Fourth Schedule to the Constitution.

These conflicting judicial pronouncements reopen long-standing controversies surrounding the governance of outdoor advertising, which is not only a means of communication but a revenue source for federal, state, and local authorities especially in urban areas. More significantly, because both judgments emanate from courts of coordinate jurisdiction, neither binds the other, leaving litigants, regulators, and industry players in a precarious position. Until an appellate court intervenes, the legal status of ARCON’s authority over outdoor media structures remains uncertain, and stakeholders may feel emboldened to selectively rely on whichever decision favours their institutional or commercial interest.

This article does not attempt to determine which of the two conflicting judgments is “correct.” Instead, it focuses on the broader legal implications arising specifically from the Massilia Motors decision, whose reasoning, if valid, raises several consequential questions about the surviving scope of ARCON’s mandate under the ARCON Act.

Sections 1(1)(d) and 2(1)(a) of the Act purport to vest ARCON with wide regulatory authority over advertising and marketing communications throughout Nigeria. If the Court’s invalidation of provisions concerning outdoor media structure is constitutionally sound, what then becomes of ARCON’s general regulatory powers in relation to outdoor advertising services? Are other provisions such as section 8(d), (f) and (m), which empower ARCON to determine who qualifies as an advertising practitioner, similarly limited or rendered inapplicable to practitioners whose work involves outdoor media?

Further complications arise from section 26 of the ARCON Act, which purports to empower ARCON to “set the standards for regulation by all government agencies whether Federal, State or Local Government involved with advertising control.” If Local Governments constitutionally possess exclusive authority over outdoor advertising structures, can ARCON validly issue binding standards or guidelines to Local Government Councils? Similarly, does section 26(6), which mandates compensation for premature removal of outdoor advertisements, survive constitutional scrutiny given that it directly governs the same domain said to be reserved exclusively for Local Governments?

The uncertainty deepens when the Massilia Motors decision is read alongside Digi Bay Ltd (Trading as Betway Nigeria) v AGF & ARCON

(FHC/L/CS/1262/2024), a judgment delivered last year by the same judge, Aluko J., where the Court affirmed ARCON’s authority over all advertising content irrespective of medium of dissemination.

This juxtaposition raises a critical question: is there an internal inconsistency in the jurisprudence of the same Court? Did Massilia Motors implicitly narrow the wide regulatory competence recognised in Digi Bay, or do both decisions operate within distinct regulatory spheres, content on one hand, physical advertising media on the other?

This article explores these complexities, highlighting the constitutional, statutory, and institutional tensions that continue to shape the legal terrain of outdoor advertising regulation in Nigeria.

Massilia Motors Limited v Advertising Regulatory Council of Nigeria (ARCON): Facts and the Court’s Decision

Massilia Motors Limited (“the Plaintiff”) operated outdoor signage displaying the Mitsubishi otor vehicle brand flags alongside the tagline “Drive your ambition.” On 16th February 2024, the Advertising Regulatory Council of Nigeria (“the Defendant”) issued a Notice of Violation to the Plaintiff, characterising the signage as an “unapproved lamp-pole advertisement on an out-of-home site.” The Notice alleged that the Plaintiff had failed to obtain prior approval from ARCON as required under the ARCON Act. This was followed by a criminal summons dated 22nd November 2024, issued pursuant to Section 54 of the ARCON Act.

Aggrieved by ARCON’s assertion of regulatory authority, the Plaintiff approached the Federal High Court, Lagos seeking, among other reliefs, a declaration that the regulation of outdoor advertising and hoardings falls within the exclusive constitutional competence of Local Government Councils under paragraph 1(k)(i) of the Fourth Schedule to the 1999 Constitution, and consequently, that ARCON lacked the legal authority to regulate or impose sanctions relating to outdoor advertising.

In defending its regulatory jurisdiction, ARCON advanced a significant semantic and constitutional argument that the term “hoarding” in paragraph 1(k)(i) of the Fourth Schedule refers to outdoor advertising media i.e. physical structures such as billboards, signage, and similar outdoor advertising platforms and does not apply to the content of advertisements displayed on the outdoor medium of advertisement.

ARCON further argued that since both “advertisement” and “hoarding” as used in the constitutional provision refer to advertising media (that is, the physical platforms or channels through which advertising messages are disseminated), they belong to the same semantic and regulatory category. The entire concept behind ARCON’s argument was to limit Local Governments’ authority to a narrow category of outdoor structures, while preserving ARCON’s comprehensive jurisdiction over all other advertising media and content.

The Federal High Court, per Justice Aluko, rejected ARCON’s narrow interpretation and held that the Plaintiff’s outdoor signage comprising Mitsubishi brand flags with the tagline “Drive your ambition” constituted outdoor advertising and hoarding within the contemplation of paragraph 1(k)(i) of the Fourth Schedule to the Constitution. The Court determined that regulatory authority over such outdoor advertising structures does not vest in ARCON but resides exclusively with Local Government Councils.

In light of this reasoning, the Court declared sections 8(a), 9(f), (p), (q), 43 and 54 of the ARCON Act unconstitutional, null and void to the extent that they purport to regulate outdoor advertising structures and hoardings, which remain within the constitutional domain of Local Governments.

Constitutional Supremacy and the Limits of ARCON’s Outdoor Advertising Powers

The Federal High Court’s decision in Massilia Motors is anchored firmly on the doctrine of constitutional supremacy, as enshrined in section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides that:

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”

This provision establishes the Constitution as the grundnorm of Nigeria’s legal order, positioning it above all statutes and legislations. Consistent with the above provision, Nigerian courts have, in a plethora of judicial pronouncements, reaffirmed that statutory bodies and enactments must operate strictly within constitutional limits. For instance, in the recent case of Orakul Resources Ltd. v N.C.C. (2022) 6 NWLR (Pt. 1827) 539, the Supreme Court struck down provisions of the Nigerian Communications Commission Act that conflicted with constitutional guarantees, reiterating that where a conflict exists, the Constitution prevails. Similarly, in Ojukwu v Governor of Lagos State (2012) 18 NWLR (Pt. 1329) 259, Niki Tobi JSC emphasized that any law or conduct inconsistent with constitutional provisions is null and void to the extent of the inconsistency.

In Massilia Motors, the Court applied this principle to the provisions of the ARCON Act that purported to regulate outdoor advertising structures. Paragraph 1(k)(i) of the Fourth Schedule to the Constitution explicitly assigns to Local Government Councils the responsibility for the “control and regulation of outdoor advertising and hoarding.” This language is clear, direct and unambiguous in precluding federal intervention in outdoor advertising. The law is trite as recently reaffirmed by the Supreme Court in the case of A.-G., Lagos State v A.-G., Fed. (2025) 5 NWLR (Pt. 1984) 43, that where the Constitution vests a function in a specific tier of government, such function is binding and exclusive unless expressly stated otherwise.
Further to the above, the Court held that Sections 8(a), 9(f), 9(p), 9(q), 43, and 54 of the ARCON Act were inconsistent with the Constitution and therefore ultra vires. In effect, Massilia Motors case reaffirms that statutory bodies must operate strictly within constitutional boundaries, and any attempt to regulate matters constitutionally assigned to another tier of government will be struck down as unlawful, preserving the dual principles of federalism and separation of powers in Nigeria’s advertising regulatory framework.

Outstanding Questions Concerning ARCON’s Surviving Statutory Powers

While the Massilia Motors’ judgment clarified the unconstitutionality of specific provisions of the ARCON Act and invalidated them, it leaves unresolved several complex questions concerning other sections of the Act that confer broad regulatory powers on ARCON but were not expressly challenged in court. The Court in its decision expressly invalidated Sections 8(a), 9(f), (p), (q), 43, and 54 “insofar as they apply to outdoor advertising,” leaving unresolved whether other similar provisions albeit not challenged sections, remain constitutionally operative or are indirectly affected by the same reasoning. For instance, Section 1(1)(d) of the ARCON Act purports to confer upon ARCON “exclusive power” over all advertising-related matters “notwithstanding the provisions in any other Act.” The relevant question at this juncture is whether as it relates to outdoor advertisement, Section 1(1)(d) of the ARCON Act automatically suffers the same kind of fate as Sections 8(a), 9(f), (p), (q), 43, and 54 despite not being specifically challenged in the case or it survives Massilia Motors?

A similar challenge arises with section 8(m), which empowers ARCON to determine who qualifies as an advertising or marketing communications practitioner. If outdoor advertising practitioners are engaged in activities such as the installation, operation, or maintenance of billboard structures that the Constitution reserves exclusively to local governments, then regulating their qualification may amount to an indirect assumption of control over outdoor advertising media. If so, such regulation could violate the principle that the federal legislature cannot achieve indirectly what it is prohibited from doing directly.

Perhaps the most intricate issue is posed by section 26 of the Act. Section 26(1) authorises ARCON to “set the standards for regulation by all government agencies whether Federal, State or Local Government involved with advertising control.” Section 26(3) further mandates compliance with ARCON’s standards by all such regulators. Yet, if local governments possess constitutionally exclusive authority to regulate outdoor advertising structures, the question becomes whether a federal statute, acting through ARCON, can lawfully constrain local governments’ discretion by prescribing binding standards. This raises a potential conflict between federal legislative power under section 4(2) of the Constitution and the autonomy of Local Governments under the Fourth Schedule.

These interpretive dilemmas must be approached with caution, especially in view of the principle of restrictive interpretation of judgments, as our courts have repeatedly held that the precedential effect of a judicial decision is confined to the precise issues litigated before the court. In Obikpong v Offiong (2000) 3 NWLR (Pt 648) 324, the Supreme Court warned against extending the reasoning of a judgment to matters not before the court. More recently, in C.B.N. v Ochife (2025) 12 NWLR (Pt 2000) 1, the Court affirmed that a judgment should be read within the context of its specific facts and issues. Applying these principles, it may be improper to assume that the reasoning in Massilia Motors automatically invalidates other provisions of the ARCON Act that were neither challenged nor interpreted in that case. It is therefore the writer’s position that this principle cautions against the broad assumption that all provisions of the ARCON Act relating to outdoor advertising are automatically void merely because certain provisions were invalidated. Until a court expressly rules otherwise, regulatory actors and legal practitioners cannot unilaterally assume the invalidity of other provisions. The constitutionality of sections 1(1)(d), 8(m), and 26 was not contested before the court in Massilia Motors and therefore remains formally unadjudicated.

The doctrine of severability strengthens this interpretive restraint. Under this principle, courts may excise unconstitutional provisions while preserving the remainder of the statute, provided the surviving portions are workable and consistent. As affirmed in INEC v Musa (2003) 1 SC (Pt I) 106, courts will strive to “save” legislation where possible by removing the invalid portions. By implication, the invalidation of certain provisions of the ARCON Act does not, without more, render the entire Act or other provisions void.

Nevertheless, while sections 1(1)(d), 8(m), and 26 remain intact, the reasoning in Massilia Motors exposes portions of these provisions, particularly where they affect outdoor advertising to potential constitutional vulnerability. The judgment therefore generates substantial regulatory uncertainty and ARCON must exercise caution in enforcing powers whose constitutional limits are now questionable.
From a policy perspective, legislative intervention may be necessary to harmonise the ARCON Act with constitutional boundaries and to resolve the ambiguities highlighted by Massilia Motors. If Massilia Motors eventually enjoys appellate validation, Nigeria’s outdoor advertising landscape will remain legally unsettled, with regulatory actors navigating an increasingly complex constitutional terrain.

Conflict or Complement? Reconciling Massilia Motors and Digi Bay in ARCON’s Regulatory Framework

Apart from the conflict between the decisions of two divisions of the Federal High Court in Massilia Motors and Godec Power analyzed above, Massilia Motors also significantly contrasts with the Digi Bay decision, although they were both delivered by the same judge in the same judicial division, just a year apart. While they arise from different factual contexts, the judgments purport to interpret the same statutory provision, Section 54 of the ARCON Act 2022, yet reached strikingly divergent conclusions about the scope and limits of ARCON’s regulatory jurisdiction, particularly concerning the outodoor advertising, thereby introducing a substantial interpretive dilemma within Nigeria’s advertising regulatory landscape.

In Digi Bay, the Court adopted a broad interpretation of Section 54 of the ARCON Act, holding that ARCON’s regulatory mandate extends to all advertising “across all media platforms, regardless of the medium.” In its judgment, Aluko J held that:

“…Every promotional message directed at the Nigerian public, regardless of the medium, falls within ARCON’s legitimate regulatory reach and mandate within the scope and interpretation of the ARCON Act of 2022.”

Conversely, in Massilia Motors, the same Court limited ARCON’s authority over outdoor advertising. The judgment held that regulation of outdoor advertising falls within the exclusive constitutional competence of Local Government Councils under the Fourth Schedule of the 1999 Constitution, thereby invalidating Section 54 insofar as it purported to extend to outdoor advertising. In this judgment, the Court held that:

“…Counsel submitted that while paragraph 1(k)(i) relates to medium of adverts, he argued that ARCON Act is directed at the content of adverts. Counsel contended that even if the provision of paragraph 1(k)(i) of the 4th schedule to the CRN does not relate solely to medium of advertisements, he submitted that the functions and powers of the local government councils under Paragraph 1 (k) (i) are not exclusive to local government councils.

What the Defendant’s Counsel has done in his above referenced submission is tantamount to reading into the meaning and provision of paragraph 1(k)(i) of the 4th schedule to the CFRN which has the effect of disregarding the intention of the makers and drafters of the constitution.

The provision of paragraph 1(k)(i) is clear and unambiguous and admits no ambiguity as it does not separate or distinguish the content from the medium of an advertisement. Paragraph 1(k)(i) of the 4th schedule to the CFRN unequivocally provides that the main functions of a local government council are control and regulation of out-door advertising and hoarding.

With due respect, it is submitted that this reasoning in Massilia Motors directly contradicts the interpretive foundation laid in Digi Bay. Whereas Digi Bay positions ARCON as having a universal mandate across all advertising platforms, Massilia Motors on the other hand holds that ARCON’s remit cannot extend to outdoor advertising at all. The two decisions therefore rest on irreconcilable assumptions: one assumes that the medium (i.e. whether outdoor or indoor) is irrelevant, while the other treats the medium (i.e. whether outdoor or indoor) as constitutionally decisive.

The legal implications are further compounded by the fact that both judgments emanate from courts of coordinate jurisdiction. As affirmed in Onukwe v. Nigerian Navy (2024) 7 NWLR (Pt. 1938) 501, decisions of judges of the Federal High Court are not binding on one another and carry only persuasive value. A later decision of the same level of court does not overrule an earlier one; the proper venue for resolving such conflict is the Court of Appeal. The result is a fragmented regulatory environment in which both judgments continue to coexist, leaving practitioners, regulators, and advertisers in uncertainty regarding the correct interpretation of ARCON’s statutory powers. This is even more compounded by the Godec Power decision of Honourable Justice Isa Dashen of the Federal High Court, Lokoja, reaffirming ARCON´s regulatory mandate over all advertising irrespective of the medium.
Owing to the foregoing, it is submitted that resolving these uncertainties now requires an appellate pronouncement to clarify whether ARCON’s mandate is universal or constitutionally limited.

Conclusion

The tension between Massilia Motors and the later Lokoja decision of Dashen J. has pushed Nigeria’s outdoor advertising framework into significant constitutional ambiguity. Massilia Motors stands out as a decisive clarification of the limits of ARCON’s mandate, firmly reasserting that Local Government Councils retain exclusive constitutional authority over the “control and regulation of outdoor advertising and hoarding” under paragraph 1(k)(i) of the Fourth Schedule. By striking down portions of the ARCON Act that intruded upon this domain, the Court, at its core, reaffirmed constitutional supremacy, federal balance, and the constraints on administrative overreach.

For advertisers and operators in outdoor advertising, the judgment marks a shift away from ARCON’s pre-clearance to a more decentralised, local government-driven approval regime, which may not be as bureaucratic as ARCON. For Local Governments, the revived authority presents both revenue opportunities if properly tapped into. ARCON, in turn, must recalibrate its functions toward content regulation, ethical standards, and professional oversight, resisting any attempt, direct or indirect, to reclaim outdoor media control now deemed constitutionally off-limits. For state signage agencies, the judgment casts constitutional doubt on their regulatory foundations. States must critically examine whether their signage legislation encroaches upon Local Government authority and consider whether constitutional amendment or legislative restructuring is necessary to preserve regulatory coherence.

Recommendations

To achieve constitutionally compliant, effective advertising regulation, several reforms merit consideration:
Until appellate clarification is provided, ARCON and local governments should adopt a cautious enforcement approach, avoiding overreach and respecting the boundaries highlighted in Massilia Motors.

The National Assembly should amend the ARCON Act to explicitly define ARCON’s jurisdiction while disclaiming authority over outdoor advertising. Furthermore, Section 26 should be revised to respect local government autonomy.

Local Government Councils should prioritise capacity building through technical assistance, training programs, model regulations, and infrastructure support to enable effective regulation of outdoor advertising media, including billboards, hoardings, and other physical structures.

ARCON, state governments, and local government associations should establish formal intergovernmental coordination frameworks to harmonize content regulation with structural oversight, develop standardised operational guidelines, and provide mechanisms to resolve jurisdictional disputes before they escalate to litigation.

Continuous professional development and certification programs should be implemented for advertising practitioners to ensure technical competence, ethical compliance, and adherence to professional standards, particularly where their work intersects federal content regulation and local governments’ structural oversight.

Public awareness and stakeholder engagement campaigns should be conducted to educate advertisers, operators, and the public on the respective regulatory roles of ARCON and Local Governments, thereby reducing inadvertent violations and promoting voluntary compliance.

Long-term consideration should be given to constitutional reform, either by amending the Fourth Schedule to clearly delineate the powers of federal, state, and local authorities or by creating a framework for concurrent jurisdiction with appropriate safeguards to prevent future conflicts between ARCON and Local Governments.

State-level signage and advertising agencies should review their enabling laws to ensure they do not unconstitutionally encroach upon Local Government authority over outdoor media, and where necessary, restructure or align their mandates to conform with constitutional principles and judicial precedents.