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Introduction
In recent years, the Nigerian government has increasingly focused on consumer protection and competition issues. In 2019, the Federal Competition and Consumer Protection Act, 2018 (the "FCCPA") came into force to promote fair competition and safeguard consumer rights across Nigeria. The FCCPA established two (2) key institutions to implement its objectives: the Federal Competition and Consumer Protection Commission ("FCCPC") and the Competition and Consumer Protection Tribunal (the "Tribunal"). The Tribunal, a specialised quasi-judicial body, was created to adjudicate disputes relating to competition and consumer protection. However, despite its significance, the Tribunal remains relatively unfamiliar to many businesses and consumers, largely because it is a new institution and its procedures and legal framework are not yet widely understood.
In this article, we seek to demystify the Tribunal by examining the legal framework governing the Tribunal, including its jurisdiction and procedural rules. We critically analyze the Tribunal's broad powers, particularly its powers to order divestiture in cases of prohibited conduct and to review its own decisions. We also highlight some procedural lacunae and inconsistencies, such as issues relating to the filing of written addresses in support of motions and counter-affidavits, as well as the timelines for appealing Tribunal decisions, and offer some recommendations. Generally, we find the framework largely coherent and commendable, certain aspects warrant reform.
1. Composition and Constitution of the Tribunal
a) The composition and manner of appointment of the members of the Tribunal are provided for in the FCCPA. Under the FCCPA, the Tribunal is composed of a chairman and six (6) members who are appointed by the President subject to confirmation by the Senate.1 The chairman of the Tribunal must be a legal practitioner for at least ten (10) years and have cognate experience in the fields of competition, consumer protection or commercial and industrial law.2 The six (6) other members must have ten (10) years professional experience each in any one or more of the following fields: (a) competition and consumer protection law; (b) commerce and industry; (c) public affairs; (d) economics; (e) finance; or (f) business administration or management.3 It is important to note that there is no requirement for the six (6) other members to be lawyers. As such, they can be drawn from all walks of life, provided they have experience in any of the fields mentioned above.
b) Under the FCCPA, undischarged bankrupts, mentally unfit persons, convicted felons, person found guilty of serious misconduct or person found engaging in an act that may undermine the integrity of the Tribunal are disqualified from serving on the Tribunal.4 Once appointed, the members of the Tribunal are entitled to a single five-year term which commences from the date of assumption of office. However, a member may not be permitted to continue holding the office when such member has attained seventy (70) years.5
c) The Tribunal is properly and duly constituted when it sits as a panel of at least three (3) members.6 In such panels, there must be at least one lawyer who has a good knowledge of competition and consumer protection matters.7 A panel may convene with less than three (3) members if, during the hearing, it is disclosed that a member has a financial or other vested interest in the matter and accordingly withdraws, and the chairman permits the proceedings to continue with the remaining members.8
2. Jurisdiction and Powers of the Tribunal
a) The Tribunal has both original and appellate jurisdiction across Nigeria.9 In its original jurisdiction, the Tribunal is vested with powers to adjudicate on matters prohibited by the FCCPA10 such as restrictive agreements, price fixing, abuse of dominant position and monopolies, and any complaints or dispute arising out of the operation of the FCCPA or any other enactments.11 These powers were activated and exercised by the Tribunal when aggrieved consumers commenced proceedings before the Tribunal against Multichoice Nigeria Limited, owners of DStv and GOtv for the upward adjustment of the prices of its services. In Clement Osuya v. Stanbic IBTC (Suit No. CCPT/OP/2/2022), the Tribunal has exercised and affirmed its jurisdiction to hear consumer complaints against banks directly from consumers pursuant to section 39 of the FCCPA.
b) It is pertinent to emphasize that the original jurisdiction of the Tribunal is not exclusive. Consequently, an aggrieved consumer may elect to seek redress before other competent fora. Therefore, an aggrieved consumer may choose to file a complaint with the FCCPC, as the primary consumer-protection regulator, or initiate legal proceedings directly against a business or undertaking that has infringed their consumer rights before the Tribunal, the Federal High Court, or a State High Court.
c) The Tribunal also has jurisdiction to hear appeals and review decisions of the FCCPC, as well as other sector-specific regulators concerning anti-competitive conduct, consumer protection violations, and restrictive trade practices.12 The Tribunal is, however, precluded from entertaining appeals from persons or entities against decisions or exercise of power by sector-specific regulators like Nigeria Civil Aviation Authority, Nigerian Communications Commission, National Insurance Commission, and Central Bank of Nigeria, unless such appeals have been first heard and determined by the FCCPC.13
d) The Tribunal may be conferred with additional jurisdiction through an enactment.14 So far, the Presidency and the National Assembly have not conferred any other jurisdiction on the Tribunal by way of an enactment. The Tribunal is vested with power to make rules regulating its procedures.15 In 2021, the Tribunal exercised this power to make the Competition and Consumer Protection Tribunal Rules, 2021 (the "CCPT Rules").
e) The FCCPA vests power on the Tribunal to summon and examine any person under oath, require the discovery and production of documents, call for and examine witnesses under oath, receive evidence on affidavits and do anything necessary to issue a final and reasoned decision.16
f) The Tribunal is empowered to impose administrative penalties only for prohibited practices under the Act and failure to comply with an interim order of the Tribunal.17 The Tribunal cannot impose an administrative penalty that will exceed 10% of the defaulting entity's annual turnover in Nigeria and its exports from Nigeria during the preceding year.18 In determining the quantum of the penalties, the Tribunal must consider the following factors: (a) the nature, duration, gravity and extent of the contravention; (b) any loss or damage suffered as a result of the contravention; (c) the behaviour of the defaulting party; (d) the market circumstances in which the contravention took place; (e) the level of profit derived from the contravention; (f) the degree to which the defaulting party has co-operated with the FCCPC and the Tribunal; or (g) whether the defaulting party has any prior record of contraventions of the FCCPA.19
g) The Tribunal also has the power to order an undertaking to divest part or all of its shares, interests, or assets. However, this power is limited to situations where an entity (A) has committed a prohibited practice that cannot be adequately remedied under the FCCPA, or (B) has repeatedly engaged in conduct previously determined by the Tribunal to constitute a prohibited practice.20 The FCCPA does not expressly define what amounts to an "adequate remedy" or what qualifies as "repeated" conduct, thereby leaving these terms open to interpretive discretion by the Tribunal. This ambiguity may result in inconsistent application or potential regulatory overreach by the FCCPC. As a result, there is a risk that divestiture could be ordered in circumstances where less intrusive measures such as fines or compliance directives could have been sufficient.
h) Despite these concerns, it appears that the Tribunal's divestiture power is primarily intended to deter businesses from engaging in prohibited practices. It is a last-resort tool to protect the market and consumers when fines or other remedies are not enough.
3. Procedure for Commencing a Civil Suit at the Tribunal
a) Under the CCPT Rules, an aggrieved party (the "Claimant") may commence a suit against another party (the "Defendant") at the Tribunal by way of an Originating Application in respect of complaints or dispute arising out of the operation of the FCCPA or any enactments.21 The Originating Application must state (a) the name and address of the Claimant, (b) that the application is an Originating Application, (c) the claim of the Claimant and the reasons for claiming the relief, and (d) the name, address and profession of the Claimant's representative.22 The Originating Application must be filed along with a list of witness(es), statement of witness(es), and copies of disputed regulatory decisions, notices, or orders of the FCCPC, and any other relevant documents including an expert's report (where necessary).23 After the originating processes are filed with the Tribunal's registry, the Registrar of the Tribunal is required to seal the processes.24 Once sealed, the Claimant cannot amend the originating processes except with leave from the Tribunal.25
b) The CCPT Rules require the Claimant to serve the originating processes on the Defendant no later than five (5) days after the date of filing.26 The Defendant is entitled to respond to the originating processes within twenty-one (21) days after the date of service by way of a Memorandum of Appearance, Defence, list of witness(es), statement of witness(es), any document referred to in the Defence, and any other document including an expert report (where necessary).27 If the Defendant fails to file its defence within the prescribed timeframe, the Defendant can apply for an extension of time.28Thereafter the Claimant must file a Reply on Point of Law and Further Affidavit within seven (7) days from the date of service.29 Parties are required to file ten (10) copies of the processes at the Tribunal registry.30 No hearing date will be fixed until the parties have filed and served all processes,31 but if the Defendant fails to file all its defence papers within the prescribed timeframe, the Tribunal may set down the case for hearing.32
c) A Claimant may withdraw a matter before the Tribunal by filing a notice of withdrawal at the Tribunal's Registry, signed either by the Claimant or its authorised representative, at any time before the commencement of hearing.33 Once hearing has begun, however, withdrawal can only be effected with the leave of the Tribunal.34 The same procedure applies equally to appeals.
d) This provision seems to suggest that where a notice of withdrawal is filed at the Registry before hearing, the matter stands automatically withdrawn without any further pronouncement by the Tribunal. Conversely, after hearing has commenced, it is implied that a Claimant need not file a formal notice but may simply apply orally to the Tribunal for leave to withdraw.
4. Procedure for Filing an Appeal at the Tribunal
a) As previously stated, appeals arising from decisions of the FCCPC and sector-specific regulators may be referred to the Tribunal. Under the CCPT Rules, a person filing an appeal (the "Appellant") is required to file at the Tribunal registry a Notice of Appeal which must be accompanied with the disputed decision, a Record of Appeal, and Appellant's Brief of Argument within thirty (30) days of the delivery of the disputed decision.35 Where the disputed decision does not disclose the full reasonings of the FCCPC or the relevant regulator, the thirty (30) day timeline does not start to run until the Appellant has received the full reasonings of the relevant regulator.36
b) In the event that the Notice of Appeal and the disputed decision are filed at the Tribunal registry without the Record of Appeal and the Appellant's Brief of Argument, the CCPT Rules give an appellant fifteen (15) days to file the Record of Appeal and the Brief of Argument separately.37 The CCPT Rules, however, does not make it clear whether this fifteen (15) day timeline starts running from the expiration of the thirty (30) day period prescribed for filing appeal papers or from the date when the Notice of Appeal and the disputed decision is filed especially if such date is before the expiration of the initial 30-day window. It is important to note that the time for filing briefs of argument stops running whenever the Tribunal is observing its annual vacation.38
c) Upon receipt of the Appellant's appeal processes, the opposing party (the "Respondent") has twenty-one (21) days from the date of service on it of the Appellant's Brief of Argument to file a Memorandum of Appearance, Reply and Respondent's Brief of Argument.39 In response, the Appellant has seven (7) days from the date of service of the Respondent's Brief of Argument to file a Reply on Points of Law.40 The CCPT Rules mandates parties to file ten (10) copies of any process plus such number of copies to be served on the other parties at the Tribunal registry.41
d) Under the CCPT Rules, the Tribunal may, upon application, extend the time within which a Notice of Appeal may be filed.42 Curiously, the CCPT Rules does not grant the Tribunal power to exercise the same discretion for other appeal processes. However, the Tribunal may nevertheless grant an extension in respect of other appeal processes under its inherent powers and in the interest of justice and fair hearing since the CCPT Rules do not explicitly prohibit or prevent the Tribunal from doing so.
e) One interesting difference between the CCPT Rules and the rules of the regular appellate courts is that the Appellant, instead of the FCCPC, is required to compile and transmit the Record of Appeal to the Tribunal registry. The Court of Appeal Rules mandate the registrar of the lower court to compile, serve parties and transmit the Record of Appeal to the Court of Appeal within sixty (60) days of the appellant filing the Notice of Appeal.43 The appellant can only assume this obligation when the registrar of the lower court fails or neglects to compile and transmit the Record of Appeal within the prescribed period.44
f) While compiling, the registrar of the lower court is expected to summon both parties to settle the records and ensure that the Record which would be in the presence of the Court of Appeal is complete and true. A similar provision is found in the Supreme Court Rules. Under the Supreme Court Rules, the registrar of the Court of Appeal is required to compile and transmit the Record of Appeal to the Supreme Court within three (3) months of the filing of the Notice of Appeal.45 The appellant is only allowed to compile and transmit the Record of Appeal where the registrar of the Court of Appeal fails to do so.46
g) The Tribunal may decide an appeal without hearing where (a) the Respondent fails to file a Reply, (b) the Respondent states in writing that he does not oppose the Appeal, (c) the Respondent withdraws its opposition to the appeal, and (d) all parties agree in writing. This power may be exercised if there is no other opposition to the appeal and no important public interest consideration that requires hearing in public.47
5. Interlocutory Applications
a) The Tribunal has power to hear and determine interlocutory applications filed by parties, whether sitting in its original jurisdiction or in its appellate jurisdiction. All interlocutory applications must be brought by way of a motion and supported with an affidavit which must be served within five (5) days of filing.48 As a general rule, motions must be filed on notice, except in circumstances where a motion ex parte is expressly required or permitted by law or by the CCPT Rules.49 A motion may be opposed by filing a counter-affidavit within seven (7) days of service,50 to which the applicant is entitled to file a further affidavit and written address in reply.51
b) A careful review of the CCPT Rules, however, appears to suggest that an interlocutory application may be filed merely with a motion paper and a supporting affidavit, while the applicant is permitted to file a written address together with a further affidavit only after being served with the respondent's counter-affidavit. Similarly, the respondent's response to an interlocutory application is limited to a counter-affidavit appears limited to the filing of a counter-affidavit, with no express provision for a written address. This approach departs significantly from the practice in Nigeria's traditional courts, where a motion is typically filed with both an affidavit and a written address, and the respondent is entitled to file a counter-affidavit and written address in reply.52
c) This apparent lacuna in the CCPT Rules is most likely an inadvertent omission by the drafters, as Order 4 Rule 1(f) expressly contemplates that both parties will adopt their written addresses and may be permitted to make brief oral submissions. Furthermore, Order 1 Rule 1(3) of the CCPT Rules provides that where an issue is not addressed in the Rules, the Tribunal shall adopt a procedure consistent with the provisions of the FCCPA or any other extant law. Given that, under the rules of traditional courts, motions and counter-affidavits are typically filed with written addresses, it would be prudent for the Tribunal to address this lacuna by amending the CCPT Rules accordingly. Such an amendment should expressly allow parties to file written addresses alongside their motion papers and affidavits or counter-affidavits.
d) Under the CCPT Rules, a respondent in either an original action or appeal can file a preliminary objection at the hearing of any matter, provided that in an appeal the preliminary objection must be filed with the Respondent's brief of argument53 The preliminary objection may be argued either in the Respondent's brief of argument or final address.54
6. Appeals Arising from the Tribunal
a) Where the Tribunal delivers an unfavourable decision either in its original or appellate jurisdiction, a party dissatisfied with such decision may exercise its right to appeal by filing a Notice of Appeal to the Court of Appeal. However, before approaching the Court of Appeal, such a party may, as an intermediate step, apply to the Tribunal itself to review and set aside its decision.
b) The Tribunal has the power, either suo motu or upon the application of a party, to review its decision in the following instances: (a) where the decision is wrong due to an error on the part of the Tribunal or its staff; (b) where a party who ought to have been present at the hearing was absent and can provide a justifiable reason for such absence; (c) where the decision was obtained by fraud; (d) where new evidence becomes available which could not reasonably have been discovered or foreseen at the time of the decision; or (e) where the interest of justice requires.55
c) Any application for review must be brought promptly. Specifically, the dissatisfied party must file its application immediately after the decision is delivered, and in any event not later than fourteen (14) days after the decision is received or the new evidence comes to light.56 The other party must be afforded an opportunity to respond to the application. The review will ordinarily be undertaken by the same panel of the Tribunal that delivered the earlier decision. Where, upon review, the panel is satisfied that the decision was wrongly made, it has the discretion to set it aside.57
d) It is important to note that the Tribunal's power to review its own decisions is an unusual concept in law. Under Nigerian law, once a court delivers its judgment on a matter it cannot rehear the case, revisit or review the said judgment except to correct an error in order to express the court's true intention, correct a clerical mistake or accidental slip, set aside an order made without jurisdiction or proper service, or reopen a case decided by default judgment.58 As a quasi-judicial body, the Tribunal is expected to follow the same principle but the CCPT Rules seems to create an exception for the Tribunal.
e) Notably, the CCPT Rules are silent on the effects of an application forreview on the right of appeal. There is no express provision stating whether or not a party's right to appeal is suspended, abated, or otherwise affected by the pendency of an application for review. In the absence of express guidance in the CCPT Rules, the more prudent approach is to treat the right of appeal as preserved, such that a dissatisfied party may still pursue an appeal to the Court of Appeal regardless of whether it first applied for review. This approach ensures that a party's constitutional and statutory right of appeal is not inadvertently curtailed by procedural silence. However, in practice, this area would benefit from clarification in future amendments to the CCPT Rules to provide certainty for litigants and avoid unnecessary procedural disputes.
f) With regard to appeals, there is a divergence among applicable laws regarding the deadlines for appealing the Tribunal's decision. The applicable laws are the CCPT Rules, FCCPA and the Court of Appeal Act, 1976 (the "COA Act"). This confusion is further compounded depending on the status of the decision whether it is a final judgment or an interlocutory ruling of the Tribunal.
g) With regard to the final judgment of the Tribunal, appeals may be filed either thirty (30) days,59 ninety (90) days,50 or three (3) months61 of delivery. At the moment, the dilemma is as-yet not presented and/or determined by Nigerian courts to help resolve. However, under Nigerian law, where there is a discrepancy in the provision of subsidiary legislation (in this case, the CCPT Rules) and its enabling legislation (in this case, the FCCPA) on the same subject matter, the provision of the enabling legislation will prevail.62
h) Additionally, where there is a conflict between two laws covering the same subject-matter, one specific and the other general, the specific law will prevail.63 Thus, given that the timeframe stipulated by the FCCPA (30 days) is specific to appeals from the Tribunal to the Court of Appeal), it prevails over the general provision in the COA Act, which applies to all appeals to the Court of Appeal. Consequently, the Nigerian courts are likely to agree to a 30-day timeline based on the reasoning enunciated above.
i) Regarding interlocutory rulings of the Tribunal, appeals may be filed within either 14 days64 or 30 days65 of its delivery. For reasons expounded above about the specificity of the FCCPA, interlocutory rulings should be appealable within thirty (30) days. Moreso, section 164 of the FCCPA provides that all other enactments, regulations or subsidiary laws should be read with such modifications as are necessary to bring them in conformity with the provisions of the FCCPA. In other words, the FCCPA is superior to the COA Act and the CCPT Rules and as such, the thirty (30) days timeframe is the valid period within which all appeals from the Tribunal should be filed at the Court of Appeal.
j) It is recommended that future iterations or amendments of the CCPT Rules and/or the FCCPA should expressly address and resolve these inconsistencies in order to promote procedural certainty. In the interim, the Tribunal should adopt the thirty (30) day appeal period provided under the FCCPA as the appeal periods for both final judgments and interlocutory rulings.
Conclusion
The establishment of the Tribunal and the enactment of the CCPT Rules is commendable and represent efforts by the Nigerian government to ensure the expeditious resolution of competition law and consumer rights disputes. The Tribunal has already begun to fulfil this mandate, as evidenced by its recent consumer-friendly decisions. However, as this article has highlighted, certain procedural lacunae and inconsistencies remain, particularly when compared to the more established practices of traditional Courts. These include ambiguities surrounding the filing of written addresses in support of motions and counter-affidavits, and the timelines for appealing Tribunal decisions. It is therefore recommended that the Tribunal either issue new rules or amend the existing CCPT Rules to eliminate these ambiguities. Also, the Tribunal's broad powers, particularly its powers to order divestiture in cases of prohibited conduct and to review its own decisions deserve some reconsideration by the National Assembly and the Tribunal respectively.
Footnotes
1. FCCPA, s. 40(2).
2. FCCPA, s. 40(1)(a).
3. FCCPA, s. 40(1)(b).
4. FCCPA, s. 42.
5. FCCPA, S. 41.
6. FCCPA, s. 48(2).
7. FCCPA, s. 48(3)
8. FCCPA, s. 49(5)(a)
9. FCCPA, s. 39(3)
10. FCCPA, s. 39(2).
11. CCPT Rules, Order 2 Rule 1(1).
12. FCCPA, s. 47(1)(a) and (b).
13. FCCPA, s. 47(2).
14. FCCPA, s. 39(2)
15. FCCPA, s. 49.
16. FCCPA, s. 50(2).
17. FCCPA, s.51(1).
18. FCCPA, s. 51(2).
19. FCCPA, s. 51(3).
20. FCCPA, s.52(1).
21. CCPT Rules, Order 2 Rule 1(1).
22. CCPT Rules, Order 2 Rule 1(3).
23. CCPT Rules, Order 2 Rule 1(4)-(5).
24. CCPT Rules, Order 2 Rule 2(3).
25. CCPT Rules, Order 2 Rule 2(5).
26. CCPT Rules, Order 2 Rule 1(8) and 14.
27. CCPT Rules, Order 2 Rules 1(8) and 11(1), (2) and (6).
28. CCPT Rules, Order 2 Rule 12(1)(a).
29. CCPT Rules, Order 2 Rule 1(8).
30. CCPT Rules, Order 2 Rule 2(1).
31. CCPT Rules, Order 2 Rule 2(8).
32. CCPT Rules, Order 14 Rule 13(1).
33. CCPT Rules, Order 3 Rule 1(a).
34. CCPT Rules, Order 3 Rule 1(b).
35. CCPT Rules, Order 2 Rule 5 (3) and (8).
36. CCPT Rules, Order 2 Rule 5(3).
37. CCPT Rules, Order 2 Rule 5(10)
38. CCPT Rules, Order 13.
39. CCPT Rules, Order 2 Rules 5(5),11(6) and 15.
40. CCPT Rules, Order 2 Rule 5(5).
41. CCPT Rules, Order 2 Rule 5 (11) (a).
42. CCPT Rules, Order 2 Rule 7(1).
43. Court of Appeal Rules 2021, Order 8 Rule 1.
44. Court of Appeal Rules 2021, Order 8 Rule 4.
45. Supreme Court Rules 2024, Order 6 Rule 4.
46. Supreme Court Rules 2024, Order 6 Rule 7.
47. CCPT Rules, Order 7 Rule 1.
48. CCPT Rules, Order 4 Rule 1(b)
49. CCPT Rules, Order 4 Rule 2(a)
50. CCPT Rules, Order 4 Rule 1(c)
51. CCPT Rules, Order 4 Rule 1(f).
52. Order 43 Rule 1 of High Court of Lagos State (Civil Procedure) Rules 2019, Order 43 Rule 1 of High Court of Federal Capital Territory (Civil Procedure) Rules 2018, Order 6 Rule 1 of Court of Appeal Rules 2021, Order 4 Rules 1-3 of the Supreme Court Rules 2024.
53. CCPT Rules, Order 11 Rule 1(1).
54. CCPT Rules, Order 11 Rule 1(2).
55. CCPT Rules, Order 7 Rule 4(1).
56. CCPT Rules, Order 7 Rule 4(2).
57. CCPT Rules, Order 7 Rule 4(4).
58. Obioha v. Ibero et al (1994) LPELR-2180(SC).
59. FCCPA, s. 55(1).
60. CCPT Rules, Order 10 Rule 1.
61. COA, s. 24(2)(a).
62. Mobil Producing (Nig.) Unltd. v. Johnson (2018) 14 NWLR (Pt. 1639) 329.
63. NDIC v. Governing Council of the ITF et al (2011) LPELR-19755 (CA)
64. COA Act, s. 24(2)(a).
65. FCCPA, s. 55(1).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
