The Federal High Court, Lagos Judicial Division has dismissed the suit filed by the Wireless Application Service Providers Association of Nigeria Ltd/Gte (WASPAN) against the DEON Regulations made by the FCCPC. WASPAN by an Originating Summons had sought to strike out the DEON regulations made by the FCCPC on the ground that the regulations were ultra vires the powers of the FCCPC. In its Originating Summons, WASPAN argued that the FCCPC lacked the powers to regulate the communication sector in view of the provisions of the Nigerian Communications Act and the Deon regulations ought to be nullified.
At the hearing in May, the FCCPC had filed a Notice of Preliminary Objection contending that the Plaintiff did not wait for the expiration of the statutory pre-action notice period before filing the action and as such the suit was defective. It was also argued by the FCCPC that the Plaintiff’s 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 the Plaintiff indeed served a pre-action notice on the Defendant. The Court went further to hold that the Plaintiff acted under genuine fear and that since the issue had to do with the construction of a legislation and not damages, the failure to comply with the pre-action notice does not oust the jurisdiction of the Court. The Defendant’s Preliminary Objection was therefore dismissed.
In the substantive suit, the Court dismissed the case of the Plaintiff by holding that Section 104, 105, 106 and 163 of the Federal Competition and Consumer Protection Act empowers the Defendant to investigate competitive conducts, protect customers 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. The FCCPC is vested with the powers relating to competition and consumer protection, which the Nigerian Communication Commission remains the regulator responsible for licensing companies in the telecommunication sector. In conclusion the Court held that the FCCPC lacks the powers to issue licences and that nothing in the Deon Regulations creates a telecommunication licencing.
In dismissing the Plaintiff’s suit, the Court held that the DEON regulations were not ultra vires the powers of the FCCPC. We believe the last may not have been heard in respect of this matter.
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