MTN loses case as court upholds FCCPC’s authority

The Federal High Court in Lagos has ruled in favour of the Federal Competition and Consumer Protection Commission in a legal dispute involving MTN Nigeria, affirming the commission’s regulatory authority over competition and consumer protection in the telecommunications sector.

This was disclosed in a statement on Sunday by the Director of Corporate Affairs at FCCPC, Ondaje Ijagwu, who described the ruling as a significant affirmation of the commission’s statutory mandate.

The case, presided over by Justice F.N. Ogazi, was filed by Emeka Nnubia, a shareholder of MTN and a legal practitioner.

Nnubia had sought to prevent the FCCPC from investigating MTN Nigeria, arguing that the Nigerian Communications Commission was the sole regulator of the telecom sector.

He also contended that FCCPC’s inquiry could violate data protection laws.

However, the court ruled that Section 90 of the Nigerian Communications Act 2003, which grants the NCC jurisdiction over competition matters in telecommunications, must be read alongside Section 104 of the Federal Competition and Consumer Protection Act 2018.

It stated that the latter law establishes the FCCPC as the “primary regulatory authority on competition and consumer protection across all sectors,” including telecommunications.

The court further held that the FCCPA, being a later legislation, “supersedes conflicting provisions of the NCA 2003 to the extent that they seek to exclude FCCPC’s oversight in the telecommunications industry.”

This effectively means that the NCC does not have exclusive control over competition regulation in telecoms, and both regulators must share jurisdiction.

In its ruling, the court upheld FCCPC’s right to investigate MTN for potential anti-competitive practices.

It stated that “FCCPC acted within its statutory powers in issuing a summons to MTN Nigeria as part of its ongoing inquiry,” emphasising that the commission’s “summons and request to produce was found to be lawful and within the scope of FCCPC’s investigative powers.”

The court also dismissed concerns about data protection violations, holding that “FCCPC’s request for information from MTN did not violate any data protection laws, including the Nigeria Data Protection Act 2023 and the NCA 2003.”

It clarified that “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 ruling emphasised that the FCCPC does not need to enter into a Memorandum of Understanding with sector regulators before enforcing its statutory functions.

Instead, it is the responsibility of sector regulators to work with the FCCPC.

The court stated, “Entering into a Memorandum of Understanding with sector regulators is not a condition precedent for FCCPC’s enforcement of its statutory functions. Instead, it is the obligation of sector regulators to engage with FCCPC to define working arrangements, not the other way round.”

The judgement also reinforced the principle of regulatory independence, rejecting any attempt to hinder FCCPC from carrying out its statutory mandate.

The court noted that “preventing a regulator from discharging its duties violates the doctrine of separation of powers enshrined in the Constitution.”

While acknowledging the public interest significance of the case, the court declined to award costs, despite noting that “costs ordinarily follow events.”

The plaintiff, Emeka Nnubia, represented himself in the case. Mr. Abimbola Ojenike and Ms. Oluwadamilola Omotosho appeared for the FCCPC, while Mr. Chinonso Ekuma represented MTN Nigeria.

Notably, there was no legal representation for the first defendant, the Minister of Industry, Trade, and Investment.

With this ruling, the FCCPC has secured judicial backing to continue its regulatory oversight in the telecommunications industry.