The Federal High Court has affirmed the regulatory jurisdiction of the Federal Competition and Consumer Protection Commission (FCCPC) over anti-competitive practices and consumer protection in the telecommunications industry in Suit No: FHC/L/CS/1009/2024 – Emeka Nnubia v. Honourable Minister of Industry, Trade and Investment & Others (FCCPC and MTN Communications Nigeria Plc).
Slingstone LP is pleased to have represented FCCPC in this landmark case, which provides critical clarity on the primacy of the Commission’s regulatory powers and the statutory framework for inter-agency collaboration for effective enforcement, particularly in industries where sector-specific legislation exists. The judgment also confirms that disclosures made to FCCPC during regulatory investigations are justified under the public interest exemption of the Nigeria Data Protection Act 2023, setting a strong precedent for market surveillance, regulatory monitoring, and enforcement across multiple sectors.
Facts of the Case
On 17 May 2024, FCCPC issued a Notice of Limited Initial Inquiry and Possible Investigation (LIIPPI) to MTN, informing the company that the Commission was evaluating the propriety of certain arrangements that might constitute infringements of the Federal Competition and Consumer Protection Act, 2018 (FCCPA).
MTN acknowledged receipt of the Commission’s letter and Summons and requested an extension of the compliance timeline. FCCPC granted an initial 14-day extension until 18 June 2024, followed by a further extension to 24 June 2024.
Approximately three days before the extended deadline, the Plaintiff, a shareholder of MTN, filed an Originating Summons on 11 June 2024, seeking to challenge FCCPC’s authority and restrain its investigation. The Plaintiff argued that any inquiry or investigation by the Commission was ultra vires and violated the Nigeria Data Protection Act and the guidelines for disclosure to public authorities. He further contended that, as a telecommunications company, MTN fell solely under the jurisdiction of the Nigerian Communications Commission (NCC) and not FCCPC. The Plaintiff sought to nullify FCCPC’s summons, notices to produce, and all regulatory actions related to the investigation. Additionally, he claimed that the data requested by FCCPC constituted personal data and should not be subject to disclosure.
On 26 June 2024, MTN, through its Counsel, declined to comply with the Summons, citing the pending lawsuit as a reason for its inability to adhere to FCCPC’s regulatory directives.
The Court reached the following key conclusions:
Affirmation of FCCPC’s Regulatory Authority
FCCPC is the primary regulator of anti-competitive practices in Nigeria, with its mandate clearly established under Sections 17 and 18 of the FCCPA 2018. The Commission’s broad functions include preventing the abuse of dominant positions and ensuring fair competition. The Court acknowledged MTN’s position as a leading telecommunications provider and affirmed the necessity of FCCPC’s oversight, particularly given the telecommunications industry’s significant role in Nigeria’s economy.
FCCPA’s Authority on Anti-Competition and Relationship with Sectoral Legislations
A key issue in the case was the interpretation of Section 90 of the Nigerian Communications Act 2003 (NCA 2003), which appears to grant the Nigerian Communications Commission (NCC) exclusive jurisdiction over competition matters in the telecommunications sector. The Court held that Section 90 must be read in alignment with Section 104 of the FCCPA 2018, a later legislation reflecting the legislature’s intent to grant FCCPC jurisdiction across all sectors, including telecommunications.
Section 104 of the FCCPA states: “Notwithstanding the provisions of any law but subject to the provisions of the Constitution of the Federal Republic of Nigeria, in all matters relating to competition and consumer protection, the provisions of this Act shall override the provisions of any other law.” As a result, Section 104 of the FCCPA supersedes any interpretation of Section 90 of the NCA that suggests exclusive competition regulation by the NCC. Instead, Section 90 can only be understood as conferring concurrent regulatory powers.
The judgment also clarified the relationship between FCCPC and sector-specific regulators such as NCC under Section 105 of the FCCPA. In line with international best practices, Section 105 establishes a framework for FCCPC, as the primary competition authority, to collaborate with industry-specific regulators for effective enforcement. The decision lends judicial assent to active inter-agency collaboration and concurrent regulatory oversight within the telecommunications sector.
While Section 105 of the FCCPA encourages cooperation, the Court confirmed that entering an agreement with a sectoral regulator is not a prerequisite for FCCPC to exercise its statutory authority. The obligation to initiate cooperation rests on industry regulators rather than FCCPC, dismissing claims that the Commission must secure agreements with sector regulators before taking action on competition and consumer protection matters within the sector.
Validity of FCCPC’s Summons to MTN and Public Interest Exemption for Data Disclosure
The Court upheld FCCPC’s issuance of a Summons and Request to Produce to MTN, affirming that the Commission acted within its statutory authority. The Summons, issued alongside a Notice of Limited Initial Inquiry and Possible Prospective Investigation (LIIPPI) dated May 17, 2024, was deemed lawful and justified.
Furthermore, the Court held that the Summons did not violate the privacy principles of the Nigeria Data Protection Act 2023 (NDPA), upholding FCCPC’s submissions. In its arguments, FCCPC maintained that “personal data” under Section 65 of NDPA and relevant privacy regulations refers to information that uniquely identifies an individual and relates to one or more factors specific to their physical, physiological, genetic, psychological, cultural, social, or economic identity. The information requested from MTN did not meet this definition, as it did not “individuate” the Plaintiff in any manner and nothing qualifies as protectable personal data under the NDPA in the circumstance. Accordingly, the Court found, as a matter of fact, that no personal data belonging to the Plaintiff was requested.
The judgment reinforces FCCPC’s submissions that regulatory obligations, including disclosure in the public interest, provide a lawful basis for information-sharing. This is consistent with Section 25(1)(b)(ii) and (iv) of the NDPA 2023, which recognises compliance with legal obligations and performance of public interest duties as lawful bases for data processing, provided they adhere to established principles for personal data handling. Notably, Section 24(1) of the NDPA, provides appropriate safeguards for lawful processing, fairness, transparency, and proportionality amongst others.
Judicial Non-Intervention in Valid Regulatory Enforcement Processes
In a decisive ruling, the Court reaffirmed that it lacks the power to restrain a regulatory authority from carrying out its legitimate statutory functions. It upheld FCCPC’s argument that injunctive orders aimed at impeding, frustrating, compromising, or interfering with a lawful regulatory enforcement process are unconstitutional, as they violate the doctrine of separation of powers enshrined in the Constitution.
This judgment delivers a strong judicial rebuke against litigations aimed at obstructing regulatory investigations or enforcement actions, affirming the regulator’s power to carry out its statutory mandate without undue interference.
Decision on Jurisdiction
In an initial jurisdictional inquiry, the court had also dismissed the case for lack of legal standing, non-disclosure of cause of action, and failure to comply with the pre-action notice requirement as follows:
- Pre-action notice requirement: The Plaintiff’s omission to comply with the pre-action notice requirement of Section 156(3) is a fatal flaw, and it is untenable to contend that the provision only applies to the employees and officers of the Commission. Section 156(3) of the Federal Competition and Consumer Protection Act (FCCPA) applies to both actions commenced against officers of the Commission and the Commission itself as a corporate sole because every challenge to the conduct of the Commission (such as the action seeking to set aside the Notice of Limited Initial Inquiry signed by A.W Achimugu) is necessarily a challenge to the administrative act of the employee or the officer. The Court affirmed FCCPC’s reliance on the Court of Appeal decision in FIRS v. Midwestern Oil & Gas Co. Plc & Anor (2024) LPELR-61872(CA), where the Court, in a similar context, construed an equivalent provision to Section 156 to require pre-action notice for actions against both the statutory body and its officers/employees.
- Lack of locus standi: The Plaintiff lacks the requisite locus standi to institute, sustain, or maintain the action. The entirety of the action, including the depositions in paragraphs 17 and 18 of the Plaintiff’s affidavit to the Originating Summons, fails to disclose any direct injury suffered or threat of injury or harm to the Plaintiff’s personal rights or any legally cognizable and justiciable personal rights of the Plaintiff that are sought to be protected by the action. It is clear that the action enures to the benefit of MTN, and the Plaintiff failed to demonstrate how MTN’s compliance with the 2nd Defendant’s Summons will affect his personal interest as a shareholder, which is purportedly in the financial fortune of MTN. The Plaintiff’s apprehension is accordingly a remote probability.
- Non-disclosure of cause of action: The reliefs requested do not provide any personal benefit to the Plaintiff as a shareholder and are purportedly aimed at protecting MTN. The Plaintiff’s suit does not disclose a reasonable cause of action or live dispute for adjudication between the Plaintiff and FCCPC. FCCPC has neither commenced an investigation against the Plaintiff nor requested any of his personal data. As such, he is not a party remotely affected by the Summons.
Concluding Remark
This landmark judgment is a resounding victory for FCCPC, setting an important precedent for multi-sectoral competition law enforcement in Nigeria. While it echoes the fundamental conclusions of previous Federal High Court decisions in cases challenging the FCCPA across other sectors, this decision stands out as the most comprehensive judicial exposition on the scope of FCCPC’s competition regulation, the constraints of sector-specific regulations, and the statutory framework for inter-agency cooperation to close enforcement gaps and eliminate regulatory arbitrage.
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