MICHAEL AKINOLA
The Federal High Court, Lagos Judicial Division has dismissed the suit filed by the Wireless Application Service Providers Association of Nigeria Ltd/Gte, WASPAN, challenging the Digital, Electronic, Online and Non-Traditional Commerce, DEON, Regulations issued by the Federal Competition and Consumer Protection Commission, FCCPC.
The judgment was delivered by Hon. Justice Allagoa.
WASPAN had filed an Originating Summons seeking to set aside the DEON Regulations on the ground that they were ultra vires the powers of the FCCPC.
The Association argued that the FCCPC lacked the power to regulate the communications sector in view of the provisions of the Nigerian Communications Act, and that the DEON Regulations ought to be nullified.
At the hearing in May, the FCCPC filed a Notice of Preliminary Objection.
The Commission contended that WASPAN did not wait for the expiration of the statutory pre-action notice period before filing the suit, and that the suit disclosed no reasonable cause of action.
In its ruling, the Court held that the suit disclosed a reasonable cause of action and that a pre-action notice had been served on the Defendant.
The Court further held that since the matter involved the construction of legislation and not a claim for damages, failure to comply with the pre-action notice period does not oust the jurisdiction of the Court. The Defendant’s Preliminary Objection was therefore dismissed.
In the substantive suit, the Court dismissed WASPAN’s case.
It held that Sections 104, 105, 106 and 163 of the Federal Competition and Consumer Protection Act, FCCPA, empower the FCCPC to investigate competitive conduct, protect consumers, and issue regulations.
The Court also held that there is no conflict between the Federal Competition and Consumer Protection Act and the Nigerian Communications Act.
According to the judgment, the FCCPC is vested with powers relating to competition and consumer protection, while the Nigerian Communications Commission remains the regulator responsible for licensing companies in the telecommunications sector.
The Court specifically held that the FCCPC lacks the powers to issue licences, and that nothing in the DEON Regulations creates a telecommunications licensing regime.
In conclusion, the Court held that the DEON Regulations were not ultra vires the powers of the FCCPC and accordingly dismissed the Plaintiff’s suit.
