In Landmark Ruling, Court Affirms FCCPC’s Regulatory Authority in All Sectors of Economy

* Says NCC lacks exclusive competition regulation in telecom sector

* Declares both regulators share concurrent jurisdiction, consumer rights agency hails judgement

James Emejo in Abuja

In a major boost to its regulatory authority, the Federal High Court in Lagos, on February 7, affirmed the statutory mandate of the Federal Competition and Consumer Protection Commission (FCCPC) to regulate competition and consumer protection across all sectors of the economy, including telecommunications.

The judgement consolidated the commission’s mandate as the primary authority responsible for preventing anti-competition practices and protecting consumers in the country, in line with Sections 17 and 18 of the Federal Competition and Consumer Protection Act (FCCPA) 2018.

The case brought before Justice F.N. Ogazi, was instituted by Emeka Nnubia, a shareholder of MTN and a legal practitioner, who sought to halt the FCCPC’s investigation into MTN Nigeria.

Representing himself, Nnubia argued that the FCCPC’s inquiry could violate data protection laws and that regulatory authority over MTN resided with the Nigerian Communications Commission (NCC) rather than FCCPC.

The ruling, however, clarified that Section 90 of the Nigerian Communications Act (NCA) 2003, which granted NCC jurisdiction over competition matters within the telecom industry, must be read alongside Section 104 of the FCCPA 2018, which established FCCPC as the primary regulatory authority on competition and consumer protection across all sectors.

The judge further held that FCCPA, being the later legislation, superseded conflicting provisions of the NCA 2003 to the extent that they sought to exclude FCCPC’s oversight in the telecommunications industry.

The court’s decision further affirmed that NCC did not have exclusive competition regulation authority in telecommunications. It added that both regulators shared concurrent jurisdiction, ensuring a coordinated approach to fair competition and consumer welfare in the telecom industry.

In a statement issued yesterday, Director, Corporate Affairs, FCCPC, Ondaje Ijagwu, also affirmed that Section 105 of FCCPA 2018 provided for collaboration between FCCPC and sector regulators, including NCC.

Ijagwu said the approach aligned with global best practices, where consumer protection regulators collaborated with industry-specific regulators.

Moreover, the ruling reaffirmed that FCCPC’s jurisdiction remained paramount in competition and consumer protection matters, while also recognising the role of NCC in regulating telecommunications operations.

Furthermore, the court held that entering into a Memorandum of Understanding (MoU) with sector regulators was not a condition precedent for FCCPC’s enforcement of its statutory functions. 

Rather, the court maintained that it was the obligation of sector regulators to engage with FCCPC to define working arrangements, not the other way round. 

The ruling also confirmed that FCCPC acted within its statutory powers in issuing summons to MTN Nigeria as part of its ongoing inquiry into potential anti-competitive practices. 

The summons and request to produce was found to be lawful and within the scope of FCCPC’s investigative powers.

In addition, the court held that the commission’s request for information from MTN did not violate any data protection laws, including the Nigeria Data Protection Act 2023 and the NCA 2003. 

No personal data was requested, and MTN’s obligation to disclose information in the public interest is a legitimate basis for compliance with FCCPC’s inquiry, the court added.

Nonetheless, the court commended the excellence of legal arguments presented in the matter and rejected any attempt to restrain a regulatory authority from exercising its statutory functions. 

The ruling reaffirmed that preventing a regulator from discharging its duties violated the doctrine of separation of powers enshrined in the constitution.

On the issue of cost, the court acknowledged that the case raised important questions regarding the evolving landscape of competition and consumer protection law in Nigeria. 

While the court recognised that costs ordinarily followed events, it declined to award costs due to the public interest significance of the case.

While Nnubia, the plaintiff, appeared in person, Mr. Abimbola Ojenike with Ms. Oluwadamilola Omotosho appeared for the second defendant (Federal Competition and Consumer Protection Commission), while Mr. Chinonso Ekuma appeared for the third defendant (MTN Nigeria). There was no legal representation for the first defendant, the Honourable Minister of Industry, Trade and Investment.