A lawyer, Festus Onifade, on Thursday, said MultiChoice Nigeria Limited has misapplied the power of its dominance in the market.
Onifade told a Competition and Consumer Protection (CCPC) Tribunal sitting in Abuja, while moving his counter affidavit field to oppose the company’s motion challenging the jurisdiction of the tribunal to hear the matter.
The the three-member tribunal led by Thomas Okosun 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, the operators of DStv and Gotv, for N10 million damages.
Onifade, in the amended originating summons dated June 17 but filed June 20, 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.
The tribunal, which granted the reliefs, ordered the defendants in the matter to file their responses to the new application within 21 days and fixed today for hearing.
The claimants; Onifade, a legal practitioner and Coalition of Nigeria Consumers, on behalf of himself and others, had sued the company and Federal Competition and Consumer Protection Commission (FCCPC) as 1st and 2nd respondents respectively.
They had prayed the tribunal for an order, restraining the firm 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.
But despite 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.
Upon resumed hearing on Thursday, counsel for the company, Onifade informed that the matter was adjourned for hearing and the he was ready to proceed subject to the tribunal’s convenience.
But MultiChoice lawyer, Jamiu Agoro, objected to Onifade’s submission.
He told the tribunal that he did not file any counter in response to the amended originating summons served on him by Onifade because he felt that his motion, challenging the panel’s jurisdiction ought to take precedence.
Agoro said he had pending applications, one of which challenged the jurisdiction of the tribunal to hear the matter.
While Onifade sought an order withdrawing his March 29 motion, Agoro sought an order withdrawing his March 31 application having been overtaken by event and the tribunal struck them out.
Moving his motion on notice challenging the jurisdiction of the tribunal marked: CCPT/OP/1/2022, Agoro said the application, dated July 13, was filed July 15.
He said the motion brought pursuant to Sections 39(1) and (2) and Section 47 of FCCP Act 2018 and under the inherent jurisdiction of the tribunal, prayed for four orders.
The prayers, according to the lawyer, include “an order for stay of execution of the order of the Honourable Tribunal made on March 30, 2022 pending the determination of the instant application; an order setting aside and discharging the order of the CCPT made on March 30 in this present suit.
“An order of the Honourable tribunal striking out the suit in limine for want of jurisdiction by the tribunal, and for such further order or other orders as this Honourable Tribunal may deem fit to make in the circumstances.”
In his six grounds enumerated, Agoro argued that the tribunal lacked jurisdiction to entertain the suit as the claimants lacked the competence to institute the action.
He said the order made by the tribunal on March 30 without affording the company opportunity of being heard amounted to a denial of fair hearing and, thus unconstitutional.
He further argued that the cause of action of the claimants did not arise from the review of the decision of the Federal Competition and Consumer Protection Commission (FCCPC), hence the tribunal lacked jurisdiction to adjudicate on the matter.
Agoro argued that no complaint was made by the claimants against the completed tariff increment of April 1 to the FCCPC or the industry sector regulator, as provided by Section 47 of the established Act before approaching the tribunal, among others.
He urged the tribunal to dismiss the suit.
But in his response, Onifade said he filed a counter affidavit dated July 20 and filed July 21.
“Our counter affidavit in opposition to their motion on notice has 17-paragraph affidavit and a written address.
“We rely on all our averments in the affidavit in urging your lordship to dismiss this present application with substantia cost because it lacks merit, frivolous, vexatious and abuse of the process of this court,” he said.
He said Agoro, in his motion, sought for three independent prayers.
“This includes prayer to stay execution of the order of this honourable tribunal granted on March 30, prayer to set aside and discharge the order of this honourable tribunal granted to the claimants, etc,” he said.
The lawyer said there are conditions to be met for these prayers to be granted because they are independent in nature.
“In this case, the applicant did not provide any of these conditions,” he said.
Besides, Onifade argued that MultiChoice refused to obey the tribunal restraining order made on March 30.
“It is on record and I want to restate it that the 1st defendant by their nature had stated before this hon court that the issue of increase is a forgotten issue, a completed matter, and that all their devices have been configured and deployed for the increase to take effect despite my noble lord’s order.
“My lord, there is no logic in prayers.
“Again, they ask the court to set aside the order of March 30.
“We submit that the order is not in place again; the 1st defendant has violated the order,” he said.
Onifade argued that the law is that the tribunal cannot set aside its own order “except if it is Slip Rule,” and that the condition had not been fulfilled.
“The applicant had not provided that their prayers fall under this law,” he said.
He said contrary to Agoro’s interpretation of Section 47, the company misconstrued his position.
According to him, the section says the tribunal shall have powers to hear appeal or review any decision of the commission.
“The second part which he (Agoro) is silent on is that where the commission refuses to act on any complaint, the tribunal has power to act and assume jurisdiction,” he said.
Onifade said in May 2020 when the company increased its tariffs, he petitioned the FCCPC on May 19, 2020 but he got no response.
He said besides price issue, the claimants also raised the issues of recycled content, pay-as-you-view, etc.
He said contrary to Agoro’s argument, their claim was not limited to the issue of price review of 2022.
“We have increase of 2020 which is unresolved, and looking at the basket of issues before the court, the tribunal has jurisdiction,” he said.
According to him, in summary, we restate that the 1st defendant applicant in his application has failed woefully to satisfy the condition for the prayers which he is seeking before this honourable court.
“That the 1st defendant applicant has abused its power of dominance in the market.
“It has violated the rights of the claimants.
“We hereby urge your noble lordship to assume jurisdiction and dismiss this application with substantial cost,” he said.
Onifade also moved his amended originating summons and the tribunal ordered the company to file its response and adjourned until July 25 for hearing of the objection.
