On Friday, Justice F.N. Ogazi of the Federal High Court in Lagos State told Emeka Nnubia, a shareholder of telecommunications company MTN, that he was “wailing more than the bereaved” for attempting to prevent the Federal Competition and Consumer Protection Council (FCCPC) from investigating the African telecom giant.
On December 1, the FCCPC, the federal agency regulating and enforcing customers’ rights, announced that it was launching an investigation into consumer complaints against MTN and other private companies.
However, Nnubia was uncomfortable with that regulatory decision as a shareholder of MTN and he approached the court to halt the inquiry. He argued that such an inquiry could violate the Nigeria Data Protection Act and the guidelines for disclosure to public authorities.
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He also argued that the power to regulate MTN resided in the Nigerian Communications Commission (NCC) and not the FCCPC. Additionally, he said that the data requested by FCCPC constituted personal data and could not be subject to disclosure.
The court heard Nnubia’s arguments on Friday and the judge ruled that they failed to disclose any reasonable cause of action. More importantly, the court wondered how the planned inquiry affected the plaintiff when the FCCPC neither commenced the investigation against Nnubia nor requested any of his personal data.
Before ruling on the substantive suit, the court upheld the FCCPC’s preliminary objections raised by Abimbola Ojenike and Oluwadamilola Omotosho of Slingstone LP who were its lawyers, contending that the suit was commenced without giving it a statutory pre-action notice and challenging the rights of the plaintiff to initiate the case in the first instance.
Nnubia, who is also a legal practitioner, represented himself in the case. Chinonso Ekuma, a legal practitioner, represented MTN as the 3rd defendant.
The court affirmed the FCCPC’s authority as the primary agency regulating companies’ anti-competitive practices and ensuring no company unfairly enjoys a dominant market position.
“The court stated that the FCCPC is the primary authority responsible for regulating anti-competitive practices in the Federal Republic of Nigeria. The Commission’s objectives under Sections 17 and 18 of the FCCPA include preventing the abuse of dominant position and anti-competitive practices,” Ojenike explained to FIJ on Saturday.
“Considering that MTN is one of the largest providers of telecommunication services in the industry, it is necessary for the 2nd defendant to exercise its regulatory oversight, especially because the telecommunications industry is central to the Nigerian economy.
“Section 90 of the Nigerian Communications Act 2003, purportedly vesting NCC with exclusive jurisdiction regarding competition in the telecommunication industry, must be read in consonance with the provisions of Section 104 of the FCCPA 2018, which is the later legislation. Importantly, Section 104 of the FCCPA bears the legislative intendment to vest FCCPC with authority on competition and consumer protection across all sectors including telecommunication.
“Section 104 of the FCCPA overrides Section 90 of the NCA 2003 to the extent of its exclusion of other regulators of consumer protection and competition in the telecommunication industry. Section 90 of the NCA can only be read as conferring NCC with concurrent powers within the telecommunication sector.”
The court also grounded its judgment in some specific provisions of the FCCPA, holding that the NCC and the FCCPC share a concurrent regulatory oversight in the telecom industry in line with practices in other jurisdictions.
“Furthermore, Section 105 of the FCCPA accommodates collaboration between FCCPC and other specific industry regulators like NCC. This is consistent with global practice, especially in South Africa, where consumer protection regulators collaborate with specific industry regulators. The implication of this is that the NCC now shares concurrent regulatory oversight with the FCCPA,” Ojenike continued.
“Notwithstanding FCCPC’s superior regulatory jurisdiction under Section 104 of the FCCPA, Section 105 of the FCCPA recognises the powers of the NCC and extends hands of fellowship to specific industry regulators. The FCCPA does not repeal the powers of the NCC and instead creates room for collaboration and concurrent jurisdiction by the FCCPC and NCC in the telecommunication industry.
“Notwithstanding, entering into a memorandum of understanding with the specific industry regulator is not a condition precedent for FCCPC’s exercise of its regulatory jurisdiction under the FCCPA. In fact, Section 105 of the FCCPA establishes that it is the obligation of other regulators to enter negotiations and agreements with the FCCPC and not the other way around.
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“Accordingly, the plaintiff’s contention that Section 105 of the FCCPA is a condition precedent to the exercise of the FCCPC’s powers fails. The issuance of the summons to MTN is not in any way ultra vires of the FCCPA. FCCPC has the statutory powers, rights, and obligations to demand information and documents requested in the Notice of Limited Initial Inquiry and Possible Prospective Investigation (LIIPPI) with an attached Summons and Request to Produce dated May 17, 2024.
“The summons to MTN does not violate the data privacy principles of the Nigeria Data Protection Act 2023 or the NCA, 2003, and no personal data of the Plaintiff was requested in the Summons. The Plaintiff is only crying wolf where there is no problem. In any event, disclosure to FCCPC is justifiable under the public interest exemptions under the Nigeria Data Protection Act 2023.
“MTN’s obligation to disclose in the public interest is a lawful basis or legitimate purpose for disclosure. In all, the Court lacks the power to restrain a regulatory authority from exercising its legitimate statutory powers as to do so offends the with the doctrine of separation of powers enshrined in the Constitution.”
The post Court Rules Against Shareholder ‘Wailing More Than the Bereaved’, Trying to Block FCCPC’s Investigation Into MTN appeared first on Foundation For Investigative Journalism.