By Taiye Agbaje
A lawyer, Festus Onifade, on Monday accused the Federal Competition and Consumer Protection Commission (FCCPC) of institutional incompetence.

Onifade made the allegation before a Competition and Consumer Protection Tribunal (CCPT) sitting in Abuja while moving his original summons.

The News Agency of Nigeria (NAN) reports that the claimants; Onifade, a lawyer, and the Coalition of Nigeria Consumers, on his own and on behalf of others, had sued the company and the FCCPC as 1st and 2nd defendants, shortly after the company, on March 22, has announced its intention to raise the price of its April 1st products.

The plaintiffs had asked the court for an order restraining the company, an operator of Gotv and DStv, from increasing its services and other products on April 1, pending the hearing and decision of the motion on notice dated and filed April 30 March, and the court granted the motion ex parte, ordering the parties to maintain the status quo ante bellum.

But despite the court order, the company reportedly continued to raise prices for DStv and Gotv subscriptions.

And on April 11, the court again ordered MultiChoice to return to the old prices maintaining the status quo of its March 30 order, pending the hearing and decision on the merits.
NAN reports that the court had, on June 20, granted Onifade’s reparations in a request for leave to amend his earlier subpoena and treat it as duly filed.

The lawyer, in the latest subpoena, is suing the firm for N10 million in damages.

Onifade, in the Amended Writ of Summons dated June 7 and filed on the same date, also requested the court order directing and directing MultiChoice to immediately adopt a pay-per-view billing model for all of its products and services.

But MultiChoice attorney Jamiu Agoro, in a motion on notice Thursday, challenged the court’s jurisdiction to hear the case.

The three-member tribunal, led by Thomas Okosun, then set a hearing today for the amended original subpoena and counter affidavits from MultiChoice and FCCPC.

When the hearing resumed on Monday, Onifade said his initial summons had a 23-paragraph affidavit filed by himself with nine exhibits.

He said the application was filed under Sections 49, 70 and 72 of the FCCPC Act 2028 and Section 6(6b) of the Constitution 1999 (as amended).

The attorney, who said the application seeks six remedies, urged the court to grant all prayers.

Arguing their case, Onifade said the subject matter of their claim was anchored on the motions dated May 19, 2020 and July 2, 2020 addressed to the 2nd Defendant (FCCPC).

Onifade said in this petition that the plaintiffs raised four major issues;
“That the May 2020 increase was unlawful and a violation of the plaintiffs’ rights as consumers.

“That the first defendant’s pricing and billing system (MultiChoice) is predatory, preying on consumers.

“That the first defendant’s contents are recycled materials that do not give consumers and requesters value for the service.

“Let consumers; that is, applicants in this case should not be required to pay for local television stations when their subscription expires.

The attorney said it was on record that since the petition was written to the FCCPC, the regulator had neither acknowledged nor acted on their petition.

“The attitude of the second defendant (FCCPC) is that the plaintiffs can go to hell.

“That is why the claimants have approached this honorable tribunal and we have an implicit and explicit confidence in this tribunal that it will not send the claimants and Nigerians to hell,” he said.

According to him, the attitude of the second defendant connotes that of institutional incompetence or quite simply they are like a toothless bulldog who cannot bite.

“We have approached this court to activate all of its teeth that they have within its statutory power to bite if necessary,” he said.

In response to the counter affidavit filed by the commission, Onifade said he filed another and better affidavit.

According to him, the most important question here is whether the 2nd defendant really investigated the plaintiffs’ motions.

“While the 2nd Defendant asserted in his counter affidavit that he investigated Plaintiffs’ motion, the 1st Defendant stated that the matter was not investigated.

“The 2nd defendant claimed to have investigated the claim, unfortunately and surprisingly this investigation was conducted in secret as the plaintiffs were never asked to give their own side of the story.

“Assuming the investigation was properly conducted, this is a fundamental breach of the plaintiffs’ right to a fair trial as enshrined in Section 36 of the 1999 Constitution (as amended),” he said.

He said all of the regulator’s exhibits attached to his counter-affidavit were orders for MultiChoice to act with a deadline.

“Exhibits FCCPC A to F are statutory orders of counsel giving the 1st defendant which have a time limit, and there is no evidence of compliance by the 1st defendant, and nothing to show that they were penalized for breach prescriptions.

“The 2nd defendant in this circumstance has shown institutional incompetence and we urge you to quash his counter-affidavit,” he added.

In response to the counter affidavit filed by counsel for MultiChoice (1st defendant), Onifade stated that he had filed an eight paragraph and better supplemental affidavit with an attachment.

He said that contrary to the company’s assertions that the 2nd plaintiff was not a legal entity, “we argued that the 2nd plaintiff, being an unregistered association, can sue and be sued through its representatives elected,” citing an earlier case to back up his argument.

On the issue of market dominance, counsel argued that “there is no doubt that the 1st defendant has a very dominant market position”.

According to him, the president of the 1st defendant alluded to this position and we have attached an exhibit with respect to, that they truly hold a dominant position in the market.

Furthermore, he said that the FCCPC also hinted at his position.

He said that, based on Section 72 of the FCCP Act, a company’s dominance in a market can be found when the company “can act without recourse to its consumers, without recourse to its competitors and without recourse to its regulators”.

He urged the court to reject all of MultiChoice’s submissions and to move forward and assume its jurisdiction by granting all of their remedies.

FCCPC lawyer Chizenum Nsitem disagreed with Onifade.

Nsitem said the commission filed a seven-paragraph counter-affidavit with seven exhibits on July 15 opposing the plaintiffs’ submission.

According to him, Exhibit A is an order of the commission.

“Exhibit FCCPC E dated February 4, 2022 is a commission order against 1st respondent (MultiChoice) to ensure that if there is to be a price change, that price change will introduce new features and log options to price.

“Furthermore, in Exhibit FCCPC F against 1st Defendant, dated March 18, 2022, was a final order of the commission to ensure that 1st Defendant complied with the price log option.

“Finally, it is the FCCPC G addressed to the 1st defendant. This exhibit was a request from the 1st defendant for the distribution of content. It is dated March 16, 2022.

“Monsignor, we have attached a written address dated July 15, 2022,” he said.

The attorney said in their argument that they raised two issues for determination; whether the commission could regulate the prices and whether the plaintiffs had a cause of action against the agency for suing it for negligence and seeking damages.

Nsitem, opposing Onifade’s argument, said the agency was not a price regulator in accordance with its established law.

Counsel also argued that having acted on the motions before it, the plaintiffs failed to establish a cause of action against the FCCCPC, therefore, the argument that the commission had shown negligence could not hold water.

He urged the court to dismiss the plaintiffs’ claim and reverse all remedies sought against the commission.
In his opposition to Onifade’s original subpoena, MultiChoice attorney Agoro said he filed a 16-paragraph counter affidavit on June 22.

“We have filed a written address and adopt said address as our oral submission urging Your Lordship to reject this original instantaneous summons,” he said.

According to him, apart from the question raised in the written address, we want to submit that the amended summons before this honorable court is manifestly incompetent because it is not intended for this honorable court.

Agoro argued that the amended summons filed by Onifade was addressed to the Federal Competition and Consumer Protection Tribunal (FCCPT) instead of the CCPT in accordance with Article 39 of the established law.

“To that extent, this instantaneous original subpoena is manifestly incompetent in this court. Accordingly, this action should be struck out,” he said.

While invoking the provisions of section 88 of the law, the lawyer also asked the court to refuse remedies 1, 2 and 3 of the originating summons.

“In urging Your Lordship to deny Prayer 4 of the original subpoena, we submit that not an iota of evidence is presented before Your Lordship to substantiate the damages suffered by the plaintiffs.

“In urging Your Lordship to deny Prayer 5, we find it to fall into the category of relief not adjudicable at law,” citing two previous cases to support his argument.

According to Agoro, on reading exhibits MC7 and MC8 attached to the incompetent and amended summons, which exhibits would have been presented to the 2nd defendant, on reading these exhibits, it is clear that the complaints were made only for and on behalf of the 2nd applicant.

“There is no complaint before this honorable tribunal against the 2nd defendant on behalf of the 1st plaintiff.

“On this basis, we further submit that the first plaintiff absolutely lacks the basis and jurisdiction to sustain this action.

“On the whole of this submission and the fuller submission on our written address, in particular, that the 2nd plaintiff also lacks jurisdiction to maintain the present action.

“It is our humble plea to Your Lordship that immediate action be dismissed,” the lawyer concluded.

The court therefore adjourned the case until September 6 for judgment. (NOPE)