DStv tariff hike: FCCPC’s attitude connotes institutional incompetence, lawyer tells tribunal


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 originating summons.


The News Agency of Nigeria (NAN) reports that the claimants; Onifade, a legal practitioner, and Coalition of Nigeria Consumers, on behalf of himself and others, had sued the company and FCCPC as 1st and 2nd respondents, shortly after the company, on March 22, announced its plan to increase price of its products from April 1.
The claimants had prayed the tribunal for an order, restraining the firm, an operator of Gotv and DStv, from increasing its services and other products on April 1, pending the hearing and determination of the motion on notice dated and filed on March 30, and the tribunal granted the ex-parte motion, directing parties to maintain status quo ante bellum.

But inspite of the tribunal’s order, the company was alleged to have gone ahead with the price increase on DStv and Gotv subscriptions.
And on April 11, the tribunal again ordered MultiChoice to revert back to the old prices by maintaining status quo of its March 30 order, pending the hearing and determination of the substantive matter.
NAN reports that the tribunal had, on June 20, granted Onifade’s reliefs in an application seeking for a leave to amend his earlier originating summons and deem it to have been properly filed.

The lawyer, in the latest originating summons is suing the firm for N10 million damages.
Onifade, in the amended originating summons dated June 7 and filed same date, also sought the order of the tribunal directing and mandating MultiChoice to adopt a pay-as-you-view model of billing for all its products and services forthwith.
But counsel for MultiChoice, Jamiu Agoro, in a motion on notice on Thursday, challenged the jurisdiction of the tribunal to hear the matter.
The three-member tribunal, headed by Thomas Okosun, then fixed today for hearing of the amended originating summons and counter affidavits by MultiChoice and FCCPC.

Upon resumed hearing on Monday, Onifade said his originating summons had 23-paragraph affidavit deposed to by himself with nine exhibits.
He said the application was brought pursuant to Sections 49, 70 and 72 of the FCCPC Act, 2028, and Section 6(6b) of the 1999 Constitution (as amended).
The lawyer, who said the application sought for six reliefs, urged the tribunal to grant all the prayers.
Arguing his matter, Onifade said the focrum of their claim was anchored on the petitions dated May 19, 2020 and July 2, 2020, to the 2nd defendant (FCCPC).
Onifade said in that petition, the claimants raised four major issues;
“That the increment of May 2020 was unlawful and a violation of claimants’ rights as a consumer.
“That the pricing and billing system of the first defendant (MultiChoice) is predatory, preying on the consumers.
“That the content of the first defendant are recycled materials that does not give the consumers and the claimants value for service.
“That the consumers; that is, the claimants in this case, should not be made to pay for local television stations at the expiration of their subscription.”
The lawyer said it was on record that since the petition was written to the FCCPC, the regulatory agency had neither acknowledged nor treated their petition.
“The attitude of the second defendant (FCCPC) is that the claimants can go to hell.
“That is why the claimants approached this honourable tribunal and we have 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 simply they are like a toothless bulldog that cannot bite.
“We have approached this tribunal to activate all its teeths they have within its statutory power to bite when necessary,” he said.

Responding to the counter affidavit filed by the commission, Onifade said he filed a further and better affidavit.
According to him, the most important issue here is whether the 2nd defendant truly investigated the petitions of the claimants.
“While the 2nd defendant claimed in their counter affidavit that they have investigated the petition of the claimants, the 1st defendant said the matter has not been investigated.
“The 2nd defendant claimed that they have Investigated the petition, unfortunately and surprisingly, this investigation was conducted in secrecy because the claimants were never invited to state their own side of the story.
“Assuming that Investigation was rightly done, it is a fundamental breach to the right of fair hearing of the claimants as enshrined in Section 36 of 1999 Constitution (as amended),” he said.
He said all the regulatory body’s exhibits attached to its counter affidavit were orders giving to MultiChoice to act which had time limit.
“Exhibits FCCPC A to F are statutory council orders giving to 1st defendant which have time lapse, and there is no evidence of compliance from the 1st defendant, and nothing to show that they were penalised in the event they breached the orders.
“The 2nd defendant in this circumstance has shown that they are incompetent institutionally and we urge you to discountenance their counter affidavit,” he added.

Responding to the counter affidavit filed by counsel for MultiChoice (1st defendant), Onifade said he filed an eight-paragraph further and better affidavit with an exhibit attached.
He said contrary to the averments of the company that the 2nd claimant was not a juristic personality, “we submitted that the 2nd claimant, being an unregistered association, can sue and be sued through its elected representatives,” citing a previous case to back his argument
On the issue of market dominance, the lawyer argued that “it is no doubt that the 1st defendant occupies a very dominant position in the market.”
According to him, the chairman of the 1st defendant alluded to this position and we have annexed an exhibit in respect, that truly they occupy dominant position in the market.”

Besides, he said that FCCPC also alluded to his position.
He said based on Section 72 of the FCCP Act, the dominance of a company in a market could be seen when the firm “can act without recourse to its consumers, without recourse to its competitors and without recourse to its regulators.”
He urged the tribunal to discountenance all the submissions of the MultiChoice and go ahead and assume jurisdiction by granting all their reliefs.
Lawyer to the FCCPC, Chizenum Nsitem, disagreed with Onifade.
Nsitem said the commission filed a seven-paragraph counter affidavit with seven exhibits on July 15 in opposing the submission of the claimants.
According to him, Exhibit A is an order of the commission.

“Exhibit FCCPC E dated Feb 4, 2022, is an order of the commission against the 1st defendant (MultiChoice) to ensure that if there must be any change in price, that change in price shall introduce a new features and price log options.
“Also, in Exhibit FCCPC F against the 1st defendant, dated 18 March, 2022, was a final order of the commission to ensure that the 1st defendant complied with price log option.
“Finally is the FCCPC G addressed to the 1st defendant. That exhibit was a request from the 1st defendant for content distribution. It is dated 16th March, 2022,
“My lord, we attached a written address dated July 15, 2022,” he said.

The lawyer said in their argument, they raised two issues for determination; whether the commission could regulate price and whether the claimants had a cause of action against the agency to have sued it for negligence and to have asked for a damages.
Nsitem, in opposing Onifade’s argument, said the agency was not a price regulator going by its established Act.
The lawyer also argued that having acted on the petitions submitted to it, the claimants had failed to establish a cause of action against the FCCPC, hence, the submission that the commission was negligent could not hold water.
He urged the tribunal to dismiss the claimants’ claim and discountenance all the reliefs sought against the commission.
In his opposition to Onifade’s originating summons, counsel for MultiChoice, Agoro, said he filed a 16-paragraph counter affidavit on June 22.
“We filed a written address and adopt the said address as our oral submission in urging your lordship to dismiss this instant originating summons,” he said
According to him, apart from the issue canvass in the written address, we want to submit that the amended originating summons before this honourable tribunal is grossly incompetent as it is not intended to this honourable tribunal.

Agoro argued that the amended originating summons filed by Onifade was addressed to Federal Competition and Consumer Protection Tribunal (FCCPT) instead of CCPT in accordance with Section 39 of the established Act.
“To that extent, this instant originating summons is grossly incompetent before this tribunal. As a result, this action ought to be struck off,” he said.
While relying on provisions of Section 88 of the Act, the lawyer equally prayed the tribunal to refused reliefs 1, 2 and 3 of the originating summons.
“In urging your lordship to refuse prayer 4 of the originating summons, we submit that no iota of evidence is presented before your lordship to justify the damages suffered by the claimants.
“In urging your lordship to refuse prayer 5, it is our submission that same is in the category of reliefs not grantable in law,” citing two previous cases to back his argument.

According to Agoro, a perusal of Exhibits MC7 and MC8 attached to the incompetent and amended originating summons, which exhibits have been purportedly submitted to the 2nd defendant, on the face of these exhibits, it is glearing that the complaints were made solely for and on behalf of the 2nd claimant.
“There is no complaint whatsoever before this honourable tribunal to the 2nd defendant on behalf of the 1st claimant.
“Based on this, we further submit that the first claimant totally lacks the basis and competence to maintain this action.
“On the totality of this submission and the fuller submission on our written address, particularly, that the 2nd claimant also lacks the competence to maintain the instant action.
“It is our humble supplication to your lordship that the instant action be dismissed,” the lawyer concluded.

The tribunal consequently adjourned the matter until Sept. 6 for judgment.(NAN)


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