NCAA, NCC, others kick over new consumer protection laws

Some key government parastatals, the Nigerian Civil Aviation Authority (NCAA) and the Nigerian Communications Commission (NCC) among others, have faulted the new Federal Competition and Consumers Protection Act (FCCPA) 2019, describing it as excessively dominant on regulatory bodies.

While they were unanimous on the need to protect Nigerian consumers, they frowned at the Act’s creation of a “super-regulator” and “extra-territorial applications” of its provisions to industries with specific regulations.

Meeting at the Stark Illuminate 1.0 forum in Lagos yesterday, the parastatals thanked the organiser, Starklegal law firm, for bringing the Act to the their notice, but called for a review to avert major crises in industries and closure of businesses in the Nigeria.

Recall that President Muhammadu Buhari in February signed the new consumer protection bill into law, to repeal the Consumer Protection Council (CPC) Act.

The law applies to all undertakings and all commercial activities within, or having effect within Nigeria. The provisions are binding on Federal and State government corporations and parastatals as well as all commercial activities aimed at making profit and geared towards the satisfaction of demand from the public. 
 
The FCCPA establishes a Consumer Protection Tribunal to hear cases, and the Federal Competition and Consumer Protection Commission (FCCPC) to promote and maintain competitive markets in the Nigerian economy and ensure welfare of consumers by providing consumers with product choices at competitive prices, among other functions that are ancillary and incidental to consumer protection and competition.

Legal Adviser and Head of Compliance and Enforcement at the NCAA, Emmanuel Chukwuma, observed that the new Act is a “legislative stamp” on the activities of the CPC, but portends serious danger for the aviation industry.

Chukwuma explained that the NCAA was established by the Act of Parliament in 2006, with Part 19 of Nigerian Civil Aviation Regulations 2015 providing for consumer protection.

He added that the consumer protection conflict between NCAA and the CPC dated back to 2013 in a case involving Aero Contractor’s cancelled flight, where CPC intervened and charged the airlines to pay penalties in excess of N24 million in total.

“It showed their understanding of the industry but at that pace, no airline will survive in Nigeria. The new law is a legislative stamp on the activities of CPC. The President has signed it and it our law, but the implications are going to be very huge,” Chukwuma said.

Specifically, section 33 states that failure or refusal to attend a summon of the FCCPC amounts to an offense and liable upon conviction to imprisonment for a term not exceeding three years, fine not more than N200 million, or both. 
 
Section 51 empowers the tribunal to impose administrative penalties not exceeding 10 per cent of the undertaking’s annual turnover in Nigeria and its exports from Nigeria during the preceding financial year. 

Chukwuma further said that the extra-territorial application of the FCCPA, even to operations outside Nigeria, contravenes Article 6 of the Chicago Convention and a section of the BASA agreement that made the relevant law as that applicable in the territory of operation.

He said though the Act recognised other government agencies, but gave the FCCPC precedence over and above other government agencies.

“In the light of these concerns, we intend to make our points known and seek serious review of the Act. NCC has reached us to partner with them. NAFDAC and others will join us, so as to make a strong representation to the FCCPC.”

The Company Secretary of Nigerian Airspace Management Agency (NAMA), Paul Oki, added that there are technical agencies like NAMA that operate as a monopoly.

“The act is new and has to be tested. One of the challenges is who to report to in matters of consumer protections – either the NCAA or the FCCPC. I think it is time for lawyers to start getting familiar with how aviation works, to be able to advice consumer s appropriately,” Oki said.