The Federal High Court, Lagos Judicial Division, has dismissed a suit filed by the Wireless Application Service Providers Association of Nigeria Ltd/Gte (WASPAN) challenging the DEON Regulations issued by the Federal Competition and Consumer Protection Commission (FCCPC).
By way of an Originating Summons, WASPAN sought an order nullifying the DEON Regulations on the grounds that they were ultra vires the powers of the FCCPC. The association argued that the FCCPC lacked the authority to regulate the communications sector in light of the provisions of the Nigerian Communications Act and therefore contended that the regulations should be set aside.
At the hearing in May, the FCCPC filed a Notice of Preliminary Objection, contending that the plaintiff failed to wait for the expiration of the statutory pre-action notice period before commencing the action, rendering the suit defective. The Commission also argued that the suit disclosed no reasonable cause of action.
In the judgment delivered by Hon. Justice Allagoa, the court agreed with the plaintiff that the suit disclosed a reasonable cause of action and that a pre-action notice had indeed been served on the defendant. The court further held that the plaintiff acted under a genuine apprehension and that, since the matter concerned the interpretation of legislation rather than a claim for damages, any failure to comply with the pre-action notice requirement would not oust the court’s jurisdiction.
Consequently, the court dismissed the defendant’s Preliminary Objection.
On the substantive issues, however, the court dismissed the plaintiff’s claims, holding that Sections 104, 105, 106, and 163 of the Federal Competition and Consumer Protection Act empower the FCCPC to investigate anti-competitive conduct, protect consumers, and issue regulations.
The court further held that there was no conflict between the Federal Competition and Consumer Protection Act and the Nigerian Communications Act. According to the court, the FCCPC is vested with powers relating to competition and consumer protection, while the Nigerian Communications Commission (NCC) remains the regulatory authority responsible for licensing companies operating in the telecommunications sector.
The court concluded that the FCCPC does not possess the power to issue telecommunications licences and that nothing in the DEON Regulations creates or purports to create a telecommunications licensing regime.
Accordingly, the court held that the DEON Regulations were not ultra vires the powers of the FCCPC and dismissed WASPAN’s suit.
The ruling settles the dispute at the trial court level, although the possibility of an appeal means the matter may not yet be finally resolved.
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